Musgrove v. Broglin

• Citation: 651 F. Supp. 769
• Decision Date: 16 December 1986
• Docket Number: No. S 83-448.,S 83-448.
• Parties: Leroy MUSGROVE, Plaintiff, v. G. Michael BROGLIN, Individually, Defendant.
• Court: U.S. District Court — Northern District of Indiana

651 F. Supp. 769

Leroy MUSGROVE, Plaintiff, v. G. Michael BROGLIN, Individually, Defendant.

No. S 83-448.

United States District Court, N.D. Indiana, South Bend Division.

December 16, 1986.

Martin W. Kus, La Porte, Ind., for plaintiff.

William Patrick Glynn, III, Deputy Atty. Gen., Indianapolis, Ind., for defendant.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

I.

It is necessary and desirable to recite briefly the procedural history of this case in order to come to the issue that must be decided as the result of the bench trial that was conducted in this case before the court sitting at Westville Correctional Center on the 10th day of November, 1986. The complaint in this case was originally filed Pro se by Leroy Musgrove while he was an inmate at the Westville Correctional Center on the 30th day of September, 1983. It purported to state a claim for constitutional violations under 42 U.S.C. §§ 1983 and 1981 and invoked this court's jurisdiction under 28 U.S.C. §§ 1331 and 1343(3) and (4). On the 27th of December, 1983, a pretrial conference was held at the Westville Correctional Center at which time the defendants, State of Indiana, Indiana Department of Correction, but not its Director, and the Westville Correctional Center, but not its Superintendent were dismissed. Those rulings are fully justified on numerous grounds including the Eleventh Amendment of the Constitution of the United States and are now reconfirmed. On January 16, 1986, summary judgment was granted as to Anthony Metzus, Medical Director of the Westville Correctional Center, and that ruling is now reconfirmed.

An amended complaint was filed on January 23, 1984, in which Leonard Sales, a correctional officer at the Westville Correctional Center, was made an additional party defendant. Unfortunately, no service of process was ever effected upon Leonard Sales. Therefore, Sales is not a party defendant in this case.

On October 27, 1984, this court appointed Martin W. Kus as counsel for the plaintiff and he entered a formal appearance for the plaintiff on November 19, 1985. Kus has represented the plaintiff in an admirable and highly professional manner for which this court is very appreciative.

At the conclusion of the plaintiff's case presented at the trial on November 10, 1986, this court granted a motion pursuant to Rule 41(b) of the Federal Rules of Civil Procedure dismissing Captain J. Smith and that ruling is now reconfirmed. All claims against Smith are DISMISSED. Also, the evidence presented by plaintiff stated no claim against the Director of the Indiana Department of Correction. All claims against the Director in either his official or individual capacities are DISMISSED. Also, any and all damage claims as against G. Michael Broglin in his official capacity as Superintendent of the Westville Correctional Center are DISMISSED under the authority of the Eleventh Amendment of the Constitution of the United States.

II.

With all of the above prerequisites mentioned and laid aside, the critical question that this court must decide, under the authority of Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) and its progeny in this circuit, is whether G. Michael Broglin was deliberately indifferent to the medical needs of Leroy Musgrove while Broglin was Superintendent and Musgrove was an inmate at the Westville Correctional Center. Certainly any claim of Musgrove is inhibited under § 1983 by the twin cases of Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986) and Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986), both decided January 21, 1986. The Supreme Court espoused a measure of conduct in the above cases which must be shown before a constitutional infringement protected by 42 U.S.C. § 1983 is implicated. The Court emphasized that only those rights directly derived from the Constitution, its Bill of Rights, and Amendments will be protected by 42 U.S.C. § 1983.

In Daniels, supra, the Court reviewed the § 1983 complaint of an inmate who argued that his liberty interest of freedom from bodily injury "without due process of law" pursuant to the Fourteenth Amendment had been abridged when the jail staff left a pillow case on the jail floor which the plaintiff slipped on resulting in physical injury. In Daniels, 106 S.Ct. at 664, the Court cited its prior holding in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), where it held that all that need be shown in a § 1983 suit is that a constitutional deprivation occurred and that there is no requirement of a showing of the defendant's "state of mind". The Court concluded that the unintentional loss of a liberty, a right, property, or personal injury resulting from negligent action does not rise to a level which is protected by the Fourteen Amendment:

To hold that injury caused by such conduct is a deprivation within the meaning of the Fourteenth Amendment would trivialize the centuries old principle of due process of law.

106 S.Ct. at 665. The Court, at 106 S.Ct. 666, made it clear that only those rights which are traditionally derived from an uncluttered and pristine reading of the Constitution, its Bill of Rights and Amendments will trigger Fourteenth Amendment protections:

Our constitution deals with the large concerns of the governors and the governed, but it does not purport to supplant traditional tort law in laying down rules of conduct to regulate liability for injuries that attend living together in society. We have previously rejected reasoning that "would make of the Fourteenth Amendment a font of tort law to be superimposed upon whatever systems may already be administered by the States," Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 1160, 47 L.Ed.2d 405 (1976), quoted in Parratt v. Taylor, 451 U.S., at 544, 101 S.Ct., at 1917.

The Court in Daniels concluded that the actions of the defendants of leaving a pillow case on a floor did not rise to the level of conduct which implicates the Due Process Clause of the Fourteenth Amendment.

Where a government official's act causing injury to life, liberty or property is merely negligent "no procedure for compensation is constitutionally required." Parratt, 451 U.S. at 548, 101 S.Ct. at 1919 (POWELL, J., concurring in result) (footnote omitted).

106 S.Ct. at 666. The Court emphasized its narrow interpretation of those subject matters which can legitimately claim ancestry in the Constitution:

That injuries inflicted by governmental negligence are not addressed by the United States Constitution is not to say that they may not raise significant legal concerns and lead to the creation of protectable legal interests. The enactment of tort claim statutes, for example, reflect the view that injuries caused by such negligence should generally be redressed. It is no reflection on either the breadth of the United States Constitution or the importance of traditional tort law to say that they do not address the same concerns. (footnotes omitted).

106 S.Ct. at 666.

In Davidson, supra, another prison case, the plaintiff, an inmate, filed a § 1983 action against prison administrators alleging that they had abridged his right not to be subjected to cruel and unusual punishment as proscribed by the Eighth Amendment, and his right not to be deprived of personal security without due process of law as protected by the Fourteenth Amendment. Factually, the plaintiff asserted that he had sent a written message to a prison administrator informing the administrator that he had been physically threatened by a fellow inmate and that he feared assault from the inmate whose name was specified. Prison administrators ignored the message. The plaintiff was soon thereafter assaulted by the specified inmate by use of a fork, resulting in wounds to plaintiff's face, neck, head and body, and caused a broken nose. While citing its decision in Daniels, supra, the Court again held that the defendants' inattention to the written message did not rise beyond a level of conduct which could be described as negligent. The Court held that even though serious injury resulted from defendants' conduct, the plaintiff was not protected by the Due Process Clause of the Fourteenth Amendment. Davidson, 106 S.Ct. at 670.

The plaintiff in Davidson attempted to distinguish and isolate the substantive claim (not to be deprived of personal security) from the procedural claim by arguing that his claim was "purely procedural," thus circumventing the requirement that plaintiff must show conduct beyond negligence. The Court reaffirmed that such an argument must fail because the procedural aspect of the Fourteenth Amendment is only triggered if any underlying substantive right is at issue:

In an effort to limit the potentially broad sweep of his claim, petitioner emphasizes that he "does not ask this Court to read the Constitution as an absolute guarantor of his liberty from assault by a fellow prisoner, even if that assault is caused by the negligence of his jailers." Brief for Petitioner 17, Describing his claim as one of "procedural due process, pure and simple," Id., at 14, all he asks is that New Jersey provide him a remedy. But the Fourteenth Amendment does not require a remedy when there has been no "deprivation" of a protected interest.

Davidson, 106 S.Ct. at 670. The Court in Davidson concluded that the complaint failed because "the protections of the Due Process Clause, whether procedural of substantive, are just not triggered by lack of due care by prison officials." Davidson, 106 S.Ct. at 671.

Most recently, at least one judge on our Court of Appeals has summarized: "Negligence is not itself actionable. Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986)." Kirchoff v. Flynn, 786 F.2d 320, 323 (7th Cir.1986). See also Bodine v. Elkhart County Election Board, 788 F.2d 1270, 1272 (7th Cir.1986), and Rascon v. Hardiman, 803 F.2d 269 (7th Cir.1986).

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