McCullough v. Cady

• Decision Date: 30 July 1986
• Docket Number: Civ. No. 82-74264.
• Parties: Albert McCULLOUGH, Plaintiff, v. Richard CADY, et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

640 F. Supp. 1012

Albert McCULLOUGH, Plaintiff, v. Richard CADY, et al., Defendants.

Civ. No. 82-74264.

United States District Court, E.D. Michigan, S.D.

July 30, 1986.

Hugh M. Davis, Jr., Detroit, Mich., Douglas M. Mullkoff, Ann Arbor, Mich., for plaintiff.

Elaine Dierwa Fischoff, Corrections Div., Detroit, Mich., for defendants.

MEMORANDUM OPINION AND ORDER

PHILIP PRATT, Chief Judge.

This is an action brought under 42 U.S.C. § 1983 arising from a shooting incident at the State Prison for Southern Michigan at Jackson, Michigan, the plaintiff alleging that he was deprived of rights guaranteed by the Eighth and Fourteenth Amendments. On January 31, 1986, the jury returned a verdict for the plaintiff, assessing actual damages in the amount of $60,000 but denying the plaintiff any punitive damages. The defendants now move for a Judgment Notwithstanding the Verdict, or in the alternative, for a new trial.

A motion for a judgment notwithstanding the verdict is brought pursuant to Fed. R.Civ.P. 56(b). This motion cannot be made unless the defendant had previously moved for a directed verdict either at the close of plaintiff's proofs, or before the case had gone to the jury. Mattivi v. South African Marine Corp., 618 F.2d 163 (2d Cir.1980); see Wright & Miller, Federal Practice & Procedure: Civil § 2537, n. 31. The defendant did not file a motion for directed verdict in this case, and therefore the court cannot entertain his motion for judgment notwithstanding the verdict.¹

A motion for new trial brought pursuant to Fed.R.Civ.P. 59 is committed to the discretion of the trial court, whose decision will not be reversed absent a finding of an abuse of that discretion. Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980); Budoff v. Holiday Inns, Inc., 732 F.2d 1523 (6th Cir. 1984). A new trial may be granted if the movant demonstrates that the verdict was based upon manifest errors of law or fact. Morvay v. Maghielse Tool and Die Co., 708 F.2d 229, 233 (6th Cir.1983), cert. denied, 464 U.S. 1011, 104 S.Ct. 534, 78 L.Ed.2d 715 (1983). The defendant claims that this court committed two prejudicial errors of law. For the following reasons, the court rejects these contentions and denies the defendant's motion for new trial.

The court will first review the facts. On July 12, 1982, defendant Richard Cady, a prison guard, intentionally shot plaintiff Albert McCullough, an inmate at Jackson Prison. On that day, a fight had broken out in the North Yard of Jackson involving three or four inmates. The plaintiff was not involved in this fight. Several prison guards attempted to break up the fight, and the ensuing struggle attracted the attention of possibly 200 prisoners who gathered around the combatants, urging the guards to leave the fighting inmates alone. A few warning shots were fired, after which the defendant fired the shot which struck the plaintiff in the knee.²

Not a single witness was able to place the plaintiff closer than twenty to thirty feet from the fight. There was no testimony that he ever joined the crowd of prisoners around the fight. All the witnesses save one testified that the plaintiff was simply standing some distance from the fight, watching.³ The sole exception to this version of the facts is to be found in the testimony of the defendant. He said, both in deposition testimony and at trial, that he observed the plaintiff chasing, striking, and attacking another inmate. None of the other witnesses, including inmates and prison guards, corroborated this testimony. The person who was allegedly attacked was never identified or produced. No inmate ever filed a complaint against the plaintiff. The defendant testified that an incident report which bore his signature and conformed to his version of the facts had in fact not been filed by him and that his signature had been forged.

One of the officers involved in the fight, Sgt. Cotton, testified that in the course of attempting to subdue the struggling prisoners he put in a call for "firepower." The defendant said that he understood this to mean he was to shoot to disable, as he had already fired a warning shot. Sgt. Cotton said that he was only asking for a warning shot, and that it would have been inappropriate for someone to have intentionally fired at a prisoner in that situation. Though he did believe that he was in danger while breaking up the fight, Cotton did not think the situation warranted either the use of deadly force or even tear gas. Apart from the bullet wound to the plaintiff, one guard was struck in the mouth while breaking up the fight on the yard and no inmates reported injuries. Upon hearing the request for firepower, the defendant testified that he intentionally shot the plaintiff because he appeared to be the most aggressive inmate he had a clear shot at. He stated that his motive was to protect the officers in the North Yard and to bring order to the facility.

Jackson is the largest walled correctional facility in the United States. This shooting was the first which had occurred at Jackson in the memory of any of the witnesses, who included both the Warden and the Director of the Michigan Department of Corrections. The uncontradicted testimony indicated that the tension level in the North Yard increased after the shooting of the plaintiff. The highest ranking individual at the prison at the time of the incident, Deputy Warden Withrow, testified that a fight in the yard is not a disturbance, but that what happened after the shooting was a disturbance.

The defendant argues that based upon a Supreme Court decision that was issued after the jury verdict in this case, this court erred in allowing the case to go to the jury.⁴ The Supreme Court has recently set forth what standards should be applied by the trial court in deciding a motion for directed verdict made in a case involving Eighth Amendment claims of cruel and unusual punishment arising out of a prison disturbance. Whitley v. Albers, ___ U.S. ___, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986). In Whitley, a guard was taken hostage by some inmates at a state prison. During negotiations with prison officials, the ringleader of this uprising, who was armed with a knife, threatened to kill the hostage. He also said that one inmate had been killed and that other deaths would follow.⁵ After a period of negotiations, it was decided that an assault was necessary to protect the lives of the hostage and the non-rioting inmates. During the course of the assault, a non-rioting inmate was shot in the leg as he attempted to aid elderly inmates.

The injured inmate filed suit, alleging violations of both his Eighth and Fourteenth Amendment rights. The trial court directed a verdict for the defendants at the close of the evidence, ruling that the defendants' action were reasonably necessary to protect life and to restore order and discipline. Albers v. Whitley, 546 F.Supp. 726 (D.C.Ore.1982). The Ninth Circuit reversed, holding that an Eighth Amendment violation claim may go to the jury if the jury could conclude that the defendants knew or should have known their plan was unnecessary, or if it was conduct which was carried out with plain deliberate indifference to the plaintiff's right to be free of cruel and unusual punishment. Albers v. Whitley, 743 F.2d 1372 (9th Cir.1984). On March 4, 1986, the Supreme Court reversed.

Whitley held that if the evidence will only support a inference of errors of judgment by the defendants, an Eighth Amendment claim should not go to the jury.

Accordingly, in ruling on a motion for a directed verdict in a case such as this, courts must determine whether the evidence goes beyond a mere dispute over the reasonableness of a particular use of force or the existence of arguably superior alternatives. Unless it appears that the evidence, viewed in the light most favorable to the plaintiff, will support a reliable inference of wantonness in the infliction of pain under the standard we have described, the case should not go to the jury.

Whitley, 106 S.Ct. at 1085-1086. The court said that prison administrators should be "accorded wide-ranging deference" by courts and juries who are reviewing actions taken to restore order in the face of a prison disturbance. In considering whether a case should go to the jury, the court must view the prison administrators' actions in light of the exigencies of the tense prison environment.

Where a prison security measure is undertaken to resolve a disturbance, such as occurred in this case, that indisputably poses significant risks to the safety to inmates and prison staff, we think the question whether the measure taken inflicted unnecessary and wanton pain and suffering ultimately turns on `whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.' Johnson v. Glick, 481 F.2d 1028, 1033 (CA2) (Friedly, J.) cert. denied sub nom, John v. Johnson, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973). As the District Judge correctly perceived, "such factors as the need for the application of force, the relationship between the need and the amount of force that was used and the extent of injury inflicted," ibid., are relevant to that ultimate determination. From such considerations inferences may be drawn as to whether the use of force could plausibly have been thought necessary, or instead envinced such wantonness with respect to the unjustified infliction of harm as is tantamount to a knowing willingness that it occur.

Id., 106 S.Ct. at 1805. Relevant factors include:

The extent of the threat to the safety of staff and inmates, as reasonably perceived by the responsible officials on the basis of the facts known to them, and any efforts made to temper the severity of a forceful response.

Id. Of course, this deference to prison officials is not unlimited.

It does not insulate from review actions taken

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