Manning v. Lockhart, 79-1354

• Decision Date: 26 June 1980
• Docket Number: No. 79-1354,79-1354
• Citation: 623 F.2d 536
• Parties: 6 Fed. R. Evid. Serv. 796 Willie R. MANNING, Appellant, v. A. L. LOCKHART, Superintendent, Cummins Unit, Arkansas Department of Correction, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 536

623 F.2d 536

6 Fed. R. Evid. Serv. 796

Willie R. MANNING, Appellant, v. A. L. LOCKHART, Superintendent, Cummins Unit, Arkansas

Department of Correction, Appellee.

No. 79-1354.

United States Court of Appeals,

Eighth Circuit.

Submitted June 23, 1980.

Decided June 26, 1980.

Willie R. Manning, pro se.

Steve Clark, Atty. Gen., and Darrell F. Brown, Asst. Atty. Gen., Little Rock, Ark., for appellee.

Before HEANEY, ROSS and McMILLIAN, Circuit Judges.

PER CURIAM.

Appellant Willie R. Manning, an inmate at the Cummins Unit of the Arkansas Department of Corrections, appeals the dismissal by the District Court for the Eastern District of Arkansas of his civil rights claim pursuant to 42 U.S.C. § 1983. For the reasons indicated below, we reverse.

The events pertinent to Manning's claim date to 1976, when Warden A. L. Lockhart assigned Manning to work at the State Police Headquarters in Little Rock on an assignment similar to work release. On July 4, 1976, a burglary occurred in Little Rock and Manning was suspected of committing the crime. He was returned to the Cummins Unit pending investigation and was interviewed by Warden Lockhart on July 9, 1976, regarding the matter.

Appellant's complaint alleged that during this interview Warden Lockhart handcuffed him and then beat him with a stick for one hour and forty minutes after saying, "Nigger, you are lying to me and I'll get the truth out of you if I have to beat you a year and a day." Although no confession issued from this alleged incident, appellant was subsequently convicted of the burglary and sentenced to a term of two years.

In December, 1976, appellant proceeding pro se filed a Pauper's Writ of Habeas Corpus, which was construed by the district court as a petition for relief under 42 U.S.C. § 1983 because of the nature of his allegations. Manning's complaint included the allegation that he had been beaten by Warden Lockhart, that he had subsequently suffered from lack of medical attention, that he was improperly charged with burglary and theft, and that he had not received promised payment for his work at State Police Headquarters. He requested and was denied the appointment of counsel in this case.

Trial to the district court followed, with the result that the district court in a lengthy Memorandum and Order dismissed the medical care claim pursuant to Fed. R. Civ. P. 41(b), and the allegation of beating as not borne out by the evidence. In this appeal, Manning renews most of the allegations ¹ presented to the district court. For the reasons indicated below, most of his claims are not properly before the Court. However, we reach the issues of the alleged beating and the appointment of counsel, reversing the judgment of the district court on these matters.

Because appellant has to this point proceeded pro se, we have examined the record to determine whether his allegations provide a basis for relief on any possible theory. Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 598, 30 L.Ed.2d 652 (1972); White v. Bloom, 621 F.2d 276 (8th Cir. 1980). Even the principle of liberal construction, however, does not allow us to consider the denial of parole, a matter which was first mentioned on appeal and which occurred after the termination of this action in district court. We can properly consider only the record and facts considered in the district court. Fed. R. App. P. 10(a); Shields v. Hopper, 519 F.2d 1131 (5th Cir. 1975); Tanner v. United States, 401 F.2d 281, 288 (8th Cir. 1968), cert. denied, 393 U.S. 1109, 89 S.Ct. 922, 21 L.Ed.2d 806 (1969).

Manning's claim that he was wrongly charged with burglary and theft on the basis of inmates' speculation is also not cognizable. Although this claim was presented to the district court, that court correctly did not take up the matter. If appellant wishes to contest the sufficiency of the evidence supporting his burglary conviction, he must do so by direct appeal of the conviction in the Arkansas courts. Ark. Stat. Ann. § 43-2701 (1977 Repl.).

Appellant also fails to raise a cognizable claim in protesting the non-payment of wages for his work at State Police Headquarters. Construed as a breach of contract claim, the allegation is not one of constitutional dimension. Characterized as a claim of unconstitutional deprivation of property or other fundamental right, the claim again warrants no relief. Sigler v. Lowrie, 404 F.2d 659, 661 (8th Cir. 1968), cert. denied, 395 U.S. 940, 89 S.Ct. 2010, 23 L.Ed.2d 456 (1969) (prisoner has no constitutional right to be paid for his prison labor and such compensation is by grace of the state).

A closer issue on which we reach the merits is Manning's allegation that he was beaten by Warden Lockhart. Manning testified that he was beaten about the body and head for an hour and forty minutes; that the incident took place shortly before midnight; that he was alone with Warden Lockhart in the Warden's office; and that he was handcuffed throughout the incident. The government offered the rebuttal testimony of the Warden, who testified that Manning was interviewed without handcuffs shortly after 6:00 p. m. on July 9 1976, that no physical force was involved, and that Assistant Warden M. J. Hawke was also present in the room.

At the close of this testimony, government counsel offered into evidence the affidavits of Assistant Warden Hawke and Classification Officer Gary I. Duke, stating that Hawke could not be located although he was known to be somewhere in Texas, and that affiant Duke "ha(d) been unavailable for the last three days." The affidavits, which supported Warden Lockhart's testimony, were admitted into evidence. The court simultaneously refused Manning's request that fellow inmate Willie Gray be subpoenaed in his behalf, although the court stated that the record could show Gray's testimony to be that the interview took place at the time claimed by Manning.

Because this case turned on the credibility of Lockhart and Manning, the admission of the government's affidavits and the simultaneous failure to call Gray were certainly significant. Review of the record convinces us that the district court erred in both respects.

There is no question that oral testimony is the preferred form of testimonial evidence, and that testimony by deposition or affidavit should be used as a substitute only if a witness is not available to testify in person. Salsman v. Witt, 466 F.2d 76, 79 (10th Cir. 1972); 8 C. WRIGHT & A. MILLER, FEDERAL PRACTICE & PROCEDURE ...