Moore v. Bishop, Civ. A. No. 2597.

• Decision Date: 08 March 1972
• Docket Number: Civ. A. No. 2597.
• Citation: 338 F. Supp. 513
• Parties: Tommy MOORE and Johnny Stair, Plaintiffs-Appellants, v. John BISHOP, Sr., Investigator, Sullivan County Sheriff's Dept., Defendant.
• Court: U.S. District Court — Eastern District of Tennessee

338 F. Supp. 513

Tommy MOORE and Johnny Stair, Plaintiffs-Appellants, v. John BISHOP, Sr., Investigator, Sullivan County Sheriff's Dept., Defendant.

Civ. A. No. 2597.

United States District Court, E. D. Tennessee, Northeastern Division.

March 8, 1972.

Alfred W. Taylor, Johnson City, Tenn., for plaintiffs.

Carl W. Miller and Shelburne Ferguson, Jr., Kingsport, Tenn., for defendant.

MEMORANDUM OPINION

NEESE, District Judge.

This is an action seeking money damages for alleged violation of the respective plaintiffs' federally-protected civil rights. 42 U.S.C. §§ 1983, 1985. This Court has jurisdiction. See memorandum opinion and order herein of December 14, 1970. The evidence was heard by the Court without a jury on May 25-26, 1971.

Each of the plaintiffs is a citizen of the United States, although presently confined to a Tennessee prison. They and others had escaped from the Sullivan County, Tennessee jail on the evening of July 7, 1970. A massive manhunt was engaged. The defendant Mr. Bishop was a duly appointed and acting deputy sheriff of that county and acting at all pertinent times under color of the laws of the state of Tennessee.

Mr. Bill Wright, sheriff of that county, obtained information that the plaintiffs and perhaps another escapee or other escapees were concealed in one of three dwelling places in the Long Island section of Kingsport, Tennessee. He divided his posse into groups. Mr. Bishop and other officers were dispatched to 607 Young Road, premises owned by Mr. Moore's mother and occupied by Mrs. Georgia Hawkins. Mr. Bishop was armed with warrants for the arrest of Messrs. Moore and Stair for escaping jail while serving sentences on a felony charge. It is stipulated that these warrants charged each of the plaintiffs with a felony.

On the evening of July 9, 1970, Mr. Bishop went to the door of the Hawkins residence, announced his identity and purpose and, receiving no response from inside, entered the dwelling with several other officers.

According to Mr. Moore, he hid in a storage room of the house behind a metal sink and under a blanket, and Mr. Stair positioned himself beside the entrance to that room; that Mr. Stair was taken into custody by Mr. Bishop, placed facedown on the floor, and handcuffed; that he (Mr. Moore) then heard a pistol shot; that he was frightened; that Mr. Bishop called his name and told him to come out; that he then heard another shot, and Mr. Bishop told him to come out with his hands up; that he was receiving different instructions from different officers, but came out with his hands hoisted, and said "here I am; what do you want me to do?"; that, thereupon, Mr. Bishop fired a charge from a shotgun within a foot of his head; that Mr. Bishop then instructed him to lie on the floor facedown with his hands behind his back; that afterward he was handcuffed, and after the handcuffs were applied, Mr. Bishop hit him behind the left ear with the barrel of the shotgun, opening a wound some one to 1½ inches in length; that Mr. Bishop then cocked the shotgun, placed it at the back of his head, and stated: "It's a good thing I like you."; that he was transported to jail, where he was given a copy of the warrant charging him with escaping jail; that after about one-half hour he was transported to a hospital, where three or four stitches were taken to close the wound in his head, and he was returned to jail; and, that since the injury his vision has been poorer, and he experiences blackouts and vertigo.

Mr. Stair testified that, when the officers entered the Hawkins dwelling, he stood beside the doorway leading into the storage room of the dwelling; that Mr. Bishop came in and put a gun into his face and said: "If you make a move, I'll kill you"; that he then asked concerning the whereabouts of Mr. Moore; and that, after both plaintiffs had been placed on the floor of the room facedown and had their hands handcuffed behind them, Mr. Bishop kicked him (Mr. Stair) in the side of the head and "busted" Mr. Moore in the back of his head with a gun. Mr. Stair did not seek medical attention, and none was given. He testified that, after this incident, Mr. Bishop told him that, if he and Mr. Moore would say they had broken into a house, he (Mr. Bishop) would not prosecute Mr. Moore as an habitual criminal.

As might be expected, Mr. Bishop's version is markedly different. He said that a bloodhound indicated that the escapees were in the Hawkins dwelling; that he "banged" on its door about four times, identified himself as an officer and stated his purpose to arrest the plaintiffs; that, after waiting "about five minutes", he pushed the front door open, and searched the inside of the house; that he pulled a curtain back from an inner doorway, whereupon Mr. Stair grabbed his revolver; that in the melee the...