Tanner v. Hardy

• Citation: 764 F.2d 1024
• Decision Date: 21 June 1985
• Docket Number: No. 84-6192,84-6192
• Parties: James Dale TANNER, # 144047, Appellant, v. J. Brown HARDY, Former Acting Director, Patuxent Institution; Arthur Kandel, Associate Director, Patuxent Institution; Forrest Calhoun, Jr., Associate Director, Patuxent Institution, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 1024

764 F.2d 1024

James Dale TANNER, # 144047, Appellant, v. J. Brown HARDY, Former Acting Director, Patuxent

Institution; Arthur Kandel, Associate Director,

Patuxent Institution; Forrest Calhoun,

Jr., Associate Director,

Patuxent

Institution,

Appellees.

No. 84-6192.

United States Court of Appeals,

Fourth Circuit.

Argued March 8, 1985.

Decided June 21, 1985.

Andrew D. Levy, Baltimore, Md. (Frank, Bernstein, Conaway & Goldman, Baltimore, Md., on brief), for appellant.

Carmina Hughes (Stephen H. Sachs, Atty. Gen., Philip M. Andrews, Asst. Atty. Gen., Baltimore, Md., on brief), for appellees.

Before RUSSELL, MURNAGHAN, and ERVIN, Circuit Judges.

MURNAGHAN, Circuit Judge:

James Dale Tanner, the plaintiff, has reason to complain, but the central issue raised by his appeal from a grant of summary judgment to the defendants is whether those who have been selected as defendants can be held liable in damages.

Following arrest on June 16, 1968, Tanner was charged with rape and incarcerated pending trial. His trial before the Circuit Court for St. Mary's County, Maryland, resulted in a conviction for which he was sentenced to a prison term of eight years counting from June 16, 1968. The Circuit Court for St. Mary's County sent Tanner to the Patuxent Institution for Defective Delinquents at Jessup, Maryland for an evaluation as to whether he was a "defective delinquent." ¹

Patuxent was required by the Act to make an examination of one so referred, stating findings as to defective delinquency in a written report to the court which had sentenced him. Md.Ann.Code of 1957, Art. 31B Sec. 7(a) (repealed 1977). Tanner, upon arrival at Patuxent and consistently thereafter, refused to be interviewed by the staff or to cooperate in any way with the evaluation process. Patuxent, consequently, did not send a psychiatric evaluation to the sentencing court, but continued to hold Tanner on the grounds that the requirement of a written report of findings as to defective delinquency was only directory. State v. Musgrove, 241 Md. 521, 217 A.2d 247 (1966).

Thereafter, on June 19, 1972, the Supreme Court of the United States held in McNeil v. Director, Patuxent Institution, 407 U.S. 245, 92 S.Ct. 2083, 32 L.Ed.2d 719 (1972) that it was a denial of due process to hold an individual at Patuxent beyond the expiration of the fixed criminal sentence where doing so was based only on the original ex parte order referring him to Patuxent for evaluation. Approximately two months thereafter, the Patuxent staff proceeded to evaluate Tanner solely on the basis of his file and without the benefit of the personal interview which Tanner refused to provide. The Maryland Court of Appeals, in Director, Patuxent Institution v. Cash, 269 Md. 331, 347, 305 A.2d 833, 842 (1973), validated the procedure adopted by Patuxent of diagnosing without the benefit of a personal interview when the unavailability of the person to be evaluated was directly attributable to the individual concerned.

A manifest purpose of such incomplete diagnoses was to deal sensibly in advance with the problem which otherwise would be sure to arise upon the running of the fixed sentence imposed. With no evaluation of any kind, a likely consequence would be invocation of a rule that someone in Tanner's position would have to be released, even though an unrehabilitated defective delinquent, since a diagnosis had not been made and, consequently, none had been reviewed by the Maryland court which had requested an evaluation.

On August 21, 1972 a diagnostic staff report on Tanner, which concluded that he was a defective delinquent, was sent to the Circuit Court for St. Mary's County with a copy to the State's Attorney for the county. ²

Despite Patuxent's valiant effort to avoid a problem they had foreseen would arise at the conclusion of Tanner's fixed eight year sentence, the Circuit Court for St. Mary's County simply sat on the diagnostic staff report. No hearing on the defective delinquency recommendation ever took place and, indeed, Patuxent received no response from the Circuit Court for St. Mary's County. ³

The statute requires that, in such circumstances, the court summon the individual "forthwith." Md.Ann.Code of 1957, Article 31B Sec. 8(a) (repealed 1977). Nevertheless, only deafening silence emanated from the court. Tanner simply was not summoned to appear. From all that the record discloses, the letters of October 8, 1973 represented the only effort by the defendants, officials of Patuxent, to remedy a patent error in legal procedure which, through the court's failure to act, had come to their attention. Concededly the mistake was not, in the first instance, of their making, but, nevertheless, it was one of which their professional responsibilities necessarily made them fully aware.

Sympathy necessarily extends itself to the three defendants. They were faced with a perilous situation created not by them, but by the St. Mary's County Circuit Court. ⁴ The risk to the safety of society in the release of Tanner was by no means negligible. At the same time, however, the factual surroundings of what amounted to a dilemma not just for the defendants but for the plaintiff as well have by no means been sufficiently explored to make summary judgment appropriate. We are of the opinion that the case should be remanded for further development through submission of opposing affidavits or otherwise.

Through such development, it will be possible to ascertain whether, indeed, the defendants did all that it was reasonable to expect they should do to insure that Tanner was not deprived of his rights. Unlike the situation here, the defendant sheriff in Bryan v. Jones, 530 F.2d 1210 (5th Cir.1976), cert. denied, 429 U.S. 865, 97 S.Ct. 174, 50 L.Ed.2d 145 (1976) had been misled by a typographical error not his responsibility. Here, however, the defendants did not rely on any erroneous documents or instructions. They were fully aware of the Circuit Court's failure to do what the law unambiguously called on it to do. The law permitted no discretion on the part of a state court judge to do otherwise.

Even if the defendants did not have to take any action prior to June 16, 1976, the date of expiration of Tanner's sentence, it becomes a tangled question of fact whether the defendants had any basis for continuing to confine Tanner at Patuxent until September 9, 1976, i.e., for nearly three illegal months of unjustified imprisonment, when his sentence had expired on June 16, 1976. The defendants were aware of Tanner's June 16, 1976 petition for a writ of habeas corpus. They delayed replying until September 9, 1976, when they joined Tanner in his request for his release.

It is a well established principle that qualified immunity, which is the most in the way of immunity to which the defendants are entitled, see Procunier v. Navarette, 434 U.S. 555, 561, 98 S.Ct. 855, 859, 55 L.Ed.2d 24 (1978) (State prison officials and officers were not entitled to absolute immunity in Sec. 1983 action but were entitled to qualified immunity), is a matter on which the burden of proof is allocated to the defendants. Harlow v. Fitzgerald, 457 U.S. 800, 819, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982).

The defendants on remand may, indeed, bolster their contention that, faced with the terrible choices presented to them of a) keeping a man illegally imprisoned beyond the term of his sentence or b) releasing someone who, had the Circuit Court of St. Mary's County only acted as it properly should have done, might well have been determined to be a defective delinquent who should not be released from prison, they acted properly in relying on legal advice of the Maryland Attorney General's office. However, to insure an adequate factual basis for that good faith immunity defense there should be detailed information as to whether and when such advice was given and the degree of mature consideration accorded the matter by the Assistant Attorney...