Vun Cannon v. Breed, C-70-2423 WHO.

• Decision Date: 28 March 1975
• Docket Number: No. C-70-2423 WHO.,C-70-2423 WHO.
• Citation: 391 F. Supp. 1371
• Court: U.S. District Court — Northern District of California
• Parties: Bernard C. VUN CANNON, Individually and on behalf of all others similarly situated, Plaintiff, v. Allen F. BREED et al., Defendants.

391 F. Supp. 1371

Bernard C. VUN CANNON, Individually and on behalf of all others similarly situated, Plaintiff, v. Allen F. BREED et al., Defendants.

No. C-70-2423 WHO.

United States District Court, N. D. California.

March 28, 1975.

B. E. Bergesen, III, Armando M. Menocal, III, San Francisco, Cal., for plaintiff.

Evelle J. Younger, Atty. Gen., of Cal., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Gloria F. DeHart, Patrick G. Golden, Deputy Attys. Gen., San Francisco, Cal., for defendants.

ORRICK, District Judge.

On the morning of June 8, 1970, plaintiff, Bernard Vun Cannon ("Vun Cannon"), an inmate in K-Wing at the Deuel Vocational Institute ("DVI"), was stabbed by a fellow prisoner. K-Wing is one of the maximum security portions of DVI, itself a maximum security institution within the California State prison system. The shocking, and today almost unbelievable, description of this medieval prison was provided by those incarcerated and employed there. K-Wing was, in June, 1970, and remains today, a human zoo — a dank, dark, dirty and noisy place where inmates are locked in their cells virtually around the clock. During the time period germane to the incident which prompted this litigation, each seven by nine foot cell was occupied by two men despite the fact that there was only one bed in each cell; one inmate had to sleep on a mattress on the floor.

DVI inmates were housed in K-Wing and particularly on K-1 (the ground floor level of K-Wing where Vun Cannon resided) because they were disciplinary problems. Punishment for violations of institution regulations was often administered to K-Wing residents in the form of a short sentence to one of the wing's "quiet cells". These were somewhat shorter than the regular K-Wing cells in order to accommodate a set of double doors, one of which was solid. When the solid door was closed, the occupant was thrust into near total darkness. On occasion, inmates were compelled to undergo this ordeal stripped of their clothing.

In order to cope in this dehumanizing environment, the inmates developed a social system based, in part, on racism and violence. Official Department of Corrections statistics reflect that during the period in question DVI was the most violent of all state institutions. Although confined to their cells, inmates banded into cliques, which invariably were formed along racial lines. Inmates spent many of their waking hours plotting, with other members of their particular cliques, their own self-aggrandizement and/or their self-preservation.

Occasionally, a member of one clique would engage in a shouting match with a member of a rival group. Due to the inmates' enforced idleness, exchanges of obscenities and slurs would often go on for extended periods of time. The participants in such exchanges created certain expectations in their peers; pursuant to the unwritten code of prisoner conduct, the two were obligated to engage in physical combat as soon as they were able to do so. In K-Wing this meant that if, by chance or otherwise, the two were ever chosen by the officer on duty to exercise together (only two or four inmates exercised at any one time), they had to fight. Fighting, in that environment, meant more than coming to blows since many inmates possessed crudely fashioned knives and daggers.

Vun Cannon was a member in good standing of a white supremacist clique. He claimed to be a member of the Nazi Party and responded to the nickname "German". In early June, 1970, he engaged in a series of verbal confrontations with a black inmate named Spencer. The insults and slurs were heard by many of their fellow inmates, and most of the K-Wing prisoner population expected that the two would make good on what in essence was their bargain to engage in mortal combat the next time they had access to one another. Within a few days the two were presented with just such an opportunity; they were released to exercise together. Instead of fighting, however, the two engaged in a brand of jailhouse detente.

Vun Cannon's peers became incensed over what they deemed to be an act of extreme cowardice. There was much talk among members of Vun Cannon's clique about the incident and about what to do with Vun Cannon now that he had failed them. The caged men communicated through several means: cellmates, of course, could discuss matters in hushed tones in near privacy; inmates out on the tier for their daily hour of "exercise" (walking back and forth down the narrow, dimly lit corridor), could stop and talk with other individuals still locked in their cells; they could shout between cells; or they could talk "over the vents" or through the plumbing. The latter two means of communication constituted an inmate network of information. The vents are ventilation grills behind each cell which lead to a large ventilation tunnel. The problem with this means of communication, like the problem with shouting, is that discussions could be overheard by guards and anyone else who happened to be within earshot.¹ Another problem with talking over the vents is that once more than one or two conversations were in progress simultaneously, it became difficult to keep track of what was being said.

As the monotonous hours and days wore on, the enmity against Vun Cannon from his former confidants grew. Finally, the clique decided, collectively, that Vun Cannon should be taught a lesson for his indiscretion. As with many other planned attacks, however, the aggressor was not a specified individual; it was to be the first of several candidates who was afforded the proper opportunity. Leo Giddings ("Giddings"), a former confederate of Vun Cannon's, was among the more vitriolic. It was Giddings who was presented with the first opportunity and it was he who in fact stabbed Vun Cannon several times² with a dental tool that had been converted into a sort of stiletto. Vun Cannon was severely injured, both physically and psychologically.

Vun Cannon brought this action against several DVI administrators and correctional officers alleging various civil rights violations, specifically that the defendants had prior knowledge that Giddings intended to attack him, and that they used this knowledge, individually and in a conspiracy, to "set up" the assault. As the case developed through discovery and pretrial motions, all but two defendants were dropped from the action. The two remaining defendants are Sergeant LaVern Nelson ("Nelson") and Correctional Officer Richard Ezell ("Ezell"); the former was the officer-in-charge of K-Wing at the time of the assault, and the latter was the individual who threw the switch that...