Van Horn v. Lukhard

• Decision Date: 08 April 1975
• Docket Number: Civ. A. No. 75-0064-R.
• Citation: 392 F. Supp. 384
• Parties: Vance VAN HORN v. W. L. LUKHARD et al.
• Court: U.S. District Court — Eastern District of Virginia

392 F. Supp. 384

Vance VAN HORN v. W. L. LUKHARD et al.

Civ. A. No. 75-0064-R.

United States District Court, E. D. Virginia, Richmond Division.

April 8, 1975.

Thomas M. Ammons, III, Virginia Beach, Va., for plaintiff.

Burnett Miller, Asst. Atty. Gen., Joseph B. Benedetti, Robert L. Harris, Richmond, Va., for defendants.

MEMORANDUM

MERHIGE, District Judge.

Plaintiff, a former Virginia prisoner, brings this civil rights action seeking monetary damages from certain present and former prison officials, and certain inmates, in order to redress alleged injuries of a constitutional dimension suffered while incarcerated in the Virginia State Penitentiary. At the time that the injuries allegedly occurred, defendant W. L. Lukhard was Director of the Department of Welfare and Institutions DWI of the Commonwealth of Virginia; defendant James Howard was Director of the Division of Corrections, DWI; defendant Slayton was Superintendent of the Virginia State Penitentiary; and defendants Richardson, Librom, Hardy, Brown, McKee, Tedder, Payne and White were inmates of the penitentiary. This action arises under 42 U.S.C. § 1983 and jurisdiction is conferred by 28 U.S.C. § 1343. This matter comes before the Court on the motion of defendants Lukhard, Howard and Slayton to dismiss for lack of jurisdiction over the subject matter, for failure to state a claim, and because the action is barred by the statute of limitations.

I. STATEMENT OF FACTS

The plaintiff has alleged the following "facts" which the Court deems to be true for purposes of disposition of this motion. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969). On May 21, 1973, plaintiff was sentenced by the Circuit Court for the City of Norfolk to serve two years in the Virginia State Penitentiary. On May 29, 1973, the plaintiff arrived at the State Penitentiary and was placed in the receiving dormitory. At a little before midnight, plaintiff was attacked in the receiving dormitory by a group of 10-15 inmates, among whom were the named defendant inmates, who repeatedly raped him and then forced him to commit sodomy and other unnatural sex acts over a period of one to two hours. Plaintiff alleges that prison guards and officials stationed nearby made no effort to rescue him despite his cries for help and the general uproar in the receiving dormitory. Defendant also charges that the named prison officials either negligently or intentionally failed to take proper precautions and provide proper safeguards for the safety and protection of new inmates in the receiving dormitory. Plaintiff finally charges that he suffered grave psychological and physical injury as a result of the sexual attacks perpetrated upon him in the receiving dormitory during the first night of his incarceration and seeks damages in the sum of $1,000,000 to redress this alleged constitutional injury.

II. DEFENDANTS' MOTIONS TO DISMISS

A. Jurisdiction Over This Action

In order to state a cause of action under 42 U.S.C. § 1983, plaintiff must satisfy two prerequisites. First, he must allege that the defendants have deprived him of a right secured by "the Constitution and laws" of the United States. Second, he must further allege that the defendants acted under "color of state law" in infringing his constitutionally protected right. Adickes v. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Canty v. City of Richmond Police Department, 383 F. Supp. 1396, 1399 (E.D.Va.1974).

Construing plaintiff's complaint broadly, as indeed it is required to do in civil rights actions,¹ Burris v. State Department of Public Welfare of South Carolina, 491 F.2d 762, 763 (4th Cir. 1974); Canty v. City of Richmond Police Department, supra, 383 F.Supp. 1396 (E.D.Va.1974), the Court reads the plaintiff's complaint as alleging that the three state defendants through their gross negligence or intentional failure to properly supervise guards and prisoners at the State Penitentiary deprived him of reasonable and adequate protection from actual violence and sexual assault by fellow inmates, and concludes that plaintiff has stated a claim upon which relief can be granted. Inmates have a right, secured by the Eighth and Fourteenth Amendments, to reasonable protection from acts of violence and sexual assault perpetrated by fellow inmates. Woodhous v. Virginia, 487 F.2d 889, 890 (4th Cir. 1973); Penn v. Oliver, 351 F. Supp. 1292, 1294 (E.D.Va.1971); Holt v. Sarver, 309 F.Supp. 362, 373 (E.D. Ark.1970), aff'd 442 F.2d 304 (8th Cir. 1971). Prison officials have a correlative duty to exercise "reasonable care to prevent prisoners from intentionally harming others or from creating an unreasonable risk of harm." Woodhous v. Commonwealth, supra, 487 F.2d at 890.

The Court is mindful that an isolated attack by one prisoner upon another does not constitute cruel and unusual punishment and that an isolated act or omission by a prison official which allows an attack to occur is not constitutionally actionable. Penn v. Oliver, supra, 351 F.Supp. at 1294. On the other hand, when continuing acts or omissions by prison officials have the effect of producing a pattern of violence and such a lessened degree of security that "assaults become the rule rather than the exception, then conditions have developed that are intolerable to accepted notions of decency." Id.

The Court finds the factual allegations described herein particularly disturbing because the alleged sexual assaults took place in the receiving dormitory during the first day of the plaintiff's incarceration. Prison officials may have a greater duty to provide new inmates adequate protection during their transition from civilian life to incarceration because new inmates will often be unfamiliar with the realities of prison life and will, therefore, be less adept at avoiding situations which could lead to sexual assault, and in defending against such assaults. Furthermore, subjection to gang rape and sodomy during the first day of incarceration hardly sets an appropriate prelude for ultimate rehabilitation. Consequently, the Court views the allegations in plaintiff's complaint as of such a serious and shocking nature as to state a violation of the Eighth and Fourteenth Amendments.

Furthermore, plaintiff has satisfied the second prong of the test for Civil Rights Act jurisdiction because defendants were state officials at the time that the alleged claim arose and were, therefore, acting "under color of state law." Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Accordingly, the Court has jurisdiction over the subject matter of this dispute and the persons of these three defendants.

Plaintiff has alleged a sufficient nexus between the acts or omissions of these defendants and the unconstitutional conduct leading to his injury to establish liability should he be able to prove the facts alleged. Since the Court at this stage of the litigation is not, nor could it on the present state of the record be expected to be, convinced beyond a doubt that the plaintiff cannot prove his claim, the motions to dismiss proffered by these three defendants must be denied.

B. The Statute of Limitations Issue

Plaintiff suffered his alleged constitutional injuries on May 29, 1973, and filed this lawsuit on January 28, 1975. Defendants now contend that this action is barred by the one year statute of limitations which Virginia has enacted to govern the timely assertion of § 1983 claims, § 8-24 of the Code of Virginia (1950), as amended, which reads in pertinent part:

Notwithstanding any other provision of law to the contrary, every action brought pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983, shall be brought within one year next after the right to bring the same shall have accrued.

The Court concludes to the contrary for reasons that follow, however, that § 8-24 of the Code of Virginia, insofar as it is intended to apply, is unconstitutional because it substantially burdens the assertion of paramount federal rights in a federal court and unreasonably discriminates against the maintenance of § 1983 "constitutional tort" actions, such as the one before the Court. Accordingly, defendants' motion to dismiss this action because barred by the statute of limitations shall be denied.

1. Background

The immediate controversy is before the Court because Congress did not see fit to enact a limitations period for civil rights actions brought under 42 U.S.C. § 1983. When the Fourth Circuit had occasion to consider the problem of the appropriate limitations periods for § 1983 actions, it held in Almond v. Kent, 459 F.2d 200, 204 (4th Cir. 1972), a case which arose in the Western District of Virginia, that since a § 1983 action was analogous to a state tort "personal injury" action, Virginia's two year "personal injury" statute of limitations governed the maintenance of § 1983 actions brought in Virginia federal courts. The rule of Almond v. Kent is that District Courts should look to the law of the state where the District Court is sitting for appropriate guidance in fashioning a statute of limitations for § 1983 actions.

The Fourth Circuit suggested, however, in a footnote to Almond v. Kent, that the Commonwealth of Virginia might well consider enacting a specific statute of limitations of § 1983 actions "because of the rising tide of § 1983 suits against state officials and the difficulty of applying a statute enacted primarily to deal with different types of litigation." Id. at 203 n.3. The Court of Appeals did not proffer this suggestion, however, without providing guideance as to what it would consider the permissible parameters of a state enacted limitations period. First, the Court quoted from Mr. Justice Harlan's concurrence in Monroe v. Pape, 365 U.S. 167, 196, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), by way of indicating that it considered the "constitutional tort" made actionable by § 1983 "more serious than a violation of a...