McRorie v. Shimoda

• Citation: 795 F.2d 780
• Decision Date: 13 December 1985
• Docket Number: No. 83-1541,83-1541
• Parties: Paul Eugene McRORIE, Plaintiff-Appellant, v. Edwin T. SHIMODA, Warden, Oahu Community Correctional Center; William Oku, Administrator, Halawa High Facility; James Dunn, Sergeant, Halawa High Facility; Tany S. Hong, Attorney General, State of Hawaii, Defendants- Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 780

795 F.2d 780

Paul Eugene McRORIE, Plaintiff-Appellant, v. Edwin T. SHIMODA, Warden, Oahu Community Correctional

Center; William Oku, Administrator, Halawa High Facility;

James Dunn, Sergeant, Halawa High Facility; Tany S. Hong,

Attorney General, State of Hawaii, Defendants- Appellees.

No. 83-1541.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 13, 1985. ^*

Decided July 28, 1986.

Paul Eugene McRorie, in pro. per.

Tany S. Hong, Atty. Gen., James H. Dannenberg, Deputy Atty. Gen., Honolulu, Hawaii, for defendants-appellees.

Appeal from the United States District Court for the District of Hawaii.

Before WALLACE, FLETCHER, and FERGUSON, Circuit Judges.

FERGUSON, Circuit Judge:

McRorie appeals the district court dismissal of his pro se complaint alleging that the defendants violated 42 U.S.C. Sec. 1983. The district court held that McRorie's allegations that a prison guard attempted to plunge a riot stick into McRorie's anus during a strip search after a shakedown failed to state a claim on which relief could be granted. We affirm in part, reverse in part, and remand for further proceedings.

I.

In his complaint McRorie alleged the following: A prison guard brutalized him during a strip search after a shakedown at the Oahu Community Correctional Center (OCCC) on December 15, 1981. After McRorie was stripped, the guard ordered him to turn around, put his hands above his head, and spread his legs. As the guard ordered McRorie to spread his legs farther apart, he tapped the inside of McRorie's thighs with a riot stick. When McRorie involuntarily giggled, the guard said "Oh, you think that's funny, huh?" and attempted to plunge the riot stick into McRorie's anus. Because of the force used, the guard ruptured one of McRorie's hemorrhoids. The guard then ordered McRorie to put on his trousers and "beat it."

McRorie also stated in papers presented to the district court that the attack on him was not an isolated attack "as some twenty-eight (28) inmates were injured at that time," and "Sgt. Dunn was acting under orders of his superiors at the time he perpetrated his brutality upon me.... Sgt. Dunn was ordered by his superiors to injure me in retaliation for the lawsuits I have filed with the court regarding illegal prison conditions existing at O.C.C.C." ¹ He stated that he did not seek treatment at the prison infirmary for his injury because other inmates were more in need of medical attention than he was. The record contains no facts about how or whether prison officials responded to the guards' treatment of McRorie or the other inmates.

McRorie filed this 42 U.S.C. Sec. 1983 action in federal district court seeking damages for violations of his Eighth Amendment right to be free from cruel and unusual punishments and his Fourteenth Amendment right not to be deprived of liberty without due process of law, a declaration that the guard's actions were unconstitutional, and an injunction prohibiting the state from engaging in such excessive and unjustified violence.

The defendants moved to dismiss the action, claiming that isolated attacks on inmates by prison guards do not implicate the Eighth Amendment, and that the assault was not serious enough to have deprived McRorie of a liberty interest protected by the Fourteenth Amendment. They further contended that even if the assault constituted a deprivation of liberty, it did not violate due process because, under Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), Hawaii provided meaningful postdeprivation remedies through state tort law. ² McRorie responded by filing a Motion for Judgment on the Pleadings. The district court denied McRorie's motion and granted the defendants' Motion to Dismiss. The district court concluded, without explanation, that the allegations did not state a claim on which relief could be granted under 42 U.S.C. Sec. 1983 or any other statute. ³ McRorie timely appealed. However, the district court certified that the appeal was not in good faith under 28 U.S.C. Sec. 1915(a) and refused to grant McRorie in forma pauperis status on appeal. This court granted McRorie's motion to consider the appeal based on the record below. We affirm in part, reverse in part, and remand for further proceedings.

II.

Dismissal for failure to state a claim is a ruling on a question of law, freely reviewable by this court. Halet v Wend Investment Co., 672 F.2d 1305, 1309 (9th Cir.1982). McRorie's complaint should not be dismissed " 'unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' " Franklin v. Oregon State Welfare Division, 662 F.2d 1337, 1343 (9th Cir.1981) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974)). In reviewing a motion to dismiss we presume that the facts alleged in the complaint are true. Halet, 672 F.2d at 1309.

III.

We conclude that McRorie's allegations, if true, state a section 1983 claim because they show that the defendants acted under color of state law and that their conduct deprived McRorie of his Eighth and Fourteenth Amendment rights. ⁴ See Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir.1985) (en banc), cert. denied, --- U.S. ----, 106 S.Ct. 3333, 92 L.Ed.2d 739 (1986).

Unquestionably, the prison guard was acting under color of state law because he was performing his official duties when he assaulted McRorie. See Meredith v. Arizona, 523 F.2d 481, 482 (9th Cir.1975). Shimoda, the OCCC Warden, and Oku, the Halawa High Security Facility Administrator, acted under color of state law, and would be liable in their personal capacities under section 1983 for the guard's assault if they "caused the deprivation," Kentucky v. Graham, --- U.S. ----, 105 S.Ct. 3099, 3106, 87 L.Ed.2d 114 (1985). Because a suit against government officers in their official capacities is generally equivalent to a suit against the governmental entity itself, Shimoda and Oku will be liable in their official capacities if " 'policy or custom' ... played a part in the violation of federal law." Id. 105 S.Ct. at 3105-06. There is no need to determine now in which capacity Oku and Shimoda are being sued. ⁵ All we must determine is whether they are proper defendants in either capacity.

If McRorie's allegations are true, it is clear that Oku and Shimoda are proper defendants. In Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir.1978), the court stated:

[P]ersonal participation is not the only predicate for section 1983 liability. Anyone who "causes" any citizen to be subjected to a constitutional deprivation is also liable. The requisite causal connection can be established not only by some kind of direct personal participation in the deprivation, but also by setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury.

See Heller v. Bushey, 759 F.2d 1371, 1375 (9th Cir.1985) ("The proper individual defendants in this action are those officials who were in office before or at the time [the plaintiff] was arrested and who may have adopted a plan or policy authorizing the alleged unconstitutional conduct."), rev'd and remanded on other grounds sub nom., City of Los Angeles v. Heller, --- U.S. ----, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986); Wanger v. Bonner, 621 F.2d 675, 679-81 (5th Cir.1980) (must establish causal connection between act of supervisory official and alleged constitutional violation, such as that subordinates acted pursuant to policies implemented by supervisor), cited with approval in Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 680-81 (9th Cir.1984); see also Oklahoma City v. Tuttle, --- U.S. ----, 105 S.Ct. 2427, 2434, 2436, 85 L.Ed.2d 791 (1985); Jones v. Johnson, 781 F.2d 769, 772 (9th Cir.1985). ⁶ McRorie alleges that guards seriously injured him and twenty-eight other prisoners during the shakedown and that Sergeant Dunn was acting under orders of his superiors. If proved, these acts reflect a "disposition to disregard human life and safety so prevalent as to be ... policy or custom." Grandstaff v. City of Borger, Texas, 767 F.2d 161, 171 (5th Cir.1985), petition for cert. filed, 54 U.S.L.W. 3745 (U.S. Mar. 27, 1986) (No. 85-1585); see also Fundiller v. City of Cooper City, 777 F.2d 1436, 1443 (11th Cir.1985) (supervisor may be held liable for police shooting of civilian because of policy allowing excessive force). Policy or custom may be inferred if, after the shakedown, the prison officials took no steps to reprimand or discharge the guards, or if they otherwise failed to admit the guards' conduct was in error. Grandstaff, 767 F.2d at 171-72. The record is silent as to what action the officials took after the shakedown. On remand, McRorie should be given the opportunity to amend his complaint to make allegations about the officials' conduct.

For the reasons set forth below, the guard's brutality deprived McRorie of his Eighth Amendment right to be free from cruel and unusual punishments and his Fourteenth Amendment right against a deprivation of liberty without due process of law.

IV.

We hold that McRorie stated a claim under 42 U.S.C. Sec. 1983 by alleging that the prison guard used unjustified and excessive force against him in violation of the Eighth Amendment proscription against cruel and unusual punishments. A prison guard's unjustified striking, beating, or infliction of bodily harm on an inmate violates the Eighth Amendment when it "evince[s] such wantonness with respect to the unjustified infliction of harm as is tantamount to a knowing willingness that it occur." Whitley v. Albers, --- U.S. ----, 106 S.Ct. 1078, 1085, 89 L.Ed.2d 251 (1986).

We recognize that "[p]rison officials must be free to take appropriate action to ensure the safety of inmates and corrections personnel and to prevent escape or unauthorized entry." Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct....