Washington v. Barry

• Decision Date: 28 May 2002
• Docket Number: No. 95,162.,95,162.
• Citation: 55 P.3d 1036,2002 OK 45
• Parties: Michael C. WASHINGTON, Plaintiff-Appellant, v. Robert BARRY, Royce Melton, Capt. Sockey, Billy Pogue, Marion Bess, Sgt. Mcmurtrey, Sgt. Williams, Sgt. Gardner, Cpl. Dodd, Cpl. Welch, Cpl. Workman, and Col. Brittingham, Defendants-Appellees.
• Court: Oklahoma Supreme Court

55 P.3d 1036

2002 OK 45

Michael C. WASHINGTON, Plaintiff-Appellant, v. Robert BARRY, Royce Melton, Capt. Sockey, Billy Pogue, Marion Bess, Sgt. Mcmurtrey, Sgt. Williams, Sgt. Gardner, Cpl. Dodd, Cpl. Welch, Cpl. Workman, and Col. Brittingham, Defendants-Appellees.

No. 95,162.

Supreme Court of Oklahoma.

May 28, 2002.

Rehearing Denied September 24, 2002.

Michael C. Washington, Plaintiff-Appellant, pro se.

W.A. Drew Edmondson, Attorney General and Barbara C. Stoner, Deputy Attorney General, for the State of Oklahoma.

OPINION

WATT, Vice Chief Justice.

FACTS AND PROCEDURAL BACKGROUND

¶ 1 The only recitation of facts in the record comes from plaintiff's verified petition and other filings because the trial court dismissed plaintiff's petition on the State's motion. Consequently, the facts set out in this opinion come exclusively from plaintiff's petition and other filings.

¶ 2 On February 9, 2000, plaintiff was incarcerated in a cell in the Disciplinary Segregation Unit of the Oklahoma State Penitentiary at McAlester. He objected to prison authorities putting another inmate in his cell, saying, "Plaintiff did decline the invitation, saying that he would not take a cell partner while housed on the disciplinary segregation unit." Plaintiff alleged that he "had a fundamental right to a single cell while on the Disciplinary Segregation Unit," but did not further explain why he claimed such a right. Plaintiff also alleged that he had a "fundamental [right] to privacy and to be let alone." Consequently, prison authorities placed plaintiff in handcuffs and leg irons in order to accomplish putting the other prisoner in the cell, which they did "the following evening," apparently without incident. Later, however, plaintiff "refused to give up the handcuffs and leg restraints" and "was allowed to sleep in the restraints over night." The next day, February 11, a guard captain, one of the defendants, assembled the "Corrections Emergency Response Team" to forcibly remove the restraints, which plaintiff had refused to give up voluntarily. Plaintiff also alleged that the altercation that occurred when the Emergency Response Team removed plaintiff's restraints was videotaped by a prison employee.

¶ 3 Plaintiff alleged that he was checked after the altercation by "a nurse on the scene" who found that he "had a cut over his right eye and that the eye was swelled and red." Plaintiff also alleged that he was knocked unconscious during the altercation but regained consciousness while it was still going on. He also claims to suffer from dizziness, severe back and neck pain, and blurred vision in his right eye. Plaintiff, however, does not allege that he either sought or required medical attention after the event.

ISSUE

¶ 4 Did the plaintiff's petition state a cause of action for damages for the use of "excessive force" by the defendants?

We answer the question "no."

DISCUSSION

¶ 5 The Court of Civil Appeals's opinion decided only that the trial court had properly dismissed plaintiff's petition because of plaintiff's admission that he had failed to comply with the requirements of the Governmental Tort Claims Act. Although we agree with the result reached by the trial court and Court of Civil Appeals, we have granted certiorari here in order to resolve a first impression issue, which neither the trial court nor the Court of Civil Appeals addressed: what showing must a prisoner in a penal institution make in order to state a cause of action for the use of "excessive force" against his person by prison employees when the prisoner and those employees have come into conflict?

I. Plaintiff has no cause of action under the Governmental Tort Claims Act.

¶ 6 Plaintiff's petition sought damages for assault and battery and intentional infliction of mental anguish and emotional distress arising from the negligent acts of defendants, not just their intentional acts. Plaintiff made no attempt in his petition to distinguish between negligence and intentional misconduct. Plaintiff made clear in his reply to the Attorney General's response to the petition for certiorari that he was claiming that the defendants were acting within the scope of their employment:

The Governmental Tort Claims Act ("GOVERNMENTAL TORT CLAIMS ACT") was not designed to provide a blanket protection and a safe haven to intentional or negligent correctional officers for wrongs committed within the scope of their employment.

[Emphasis added.] Plaintiff's conclusion on this score is fundamentally wrong because § 152.1(A) the Governmental Tort Claims Act immunizes not only the state and its subdivisions but also "all of their employees acting within the scope of their employment." Further, the foregoing quote from plaintiff's petition demonstrates plaintiff's concession that the individual defendants were acting within the scope of their employment.

¶ 7 In his petition for certiorari, Plaintiff frankly admits that he did not sue the state because the Governmental Tort Claims Act, 51 O.S.2001 § 155(24), expressly immunizes the state and its subdivisions from liability arising out of the "Provision, equipping, operation or maintenance of any prison. . . ." Thus, he concedes that he has no cause of action against the state. But Plaintiff ignores the fact that § 152.1(A) of the Governmental Tort Claims Act immunizes not only the state and its subdivisions but also "all of their employees acting within the scope of their employment." "Scope of employment" is defined, in § 152(9), to mean "performance by an employee acting in good faith within the duties of the employee's office or employment or of tasks lawfully assigned by a competent authority...." With exceptions not applicable here, § 163(C) provides that employees may not be joined as defendants for their actions that are within the scope of their employment. We discussed these statutes in Carswell v. Oklahoma State University, 1999 OK 102 ¶ 17, 995 P.2d 1118, 1123.

¶ 8 The statutes and cases discussed above reveal that plaintiff may not avoid the immunities granted by and the requirements of the Governmental Tort Claims Act by simply declining to join the state as a party, although he claims the prison employee defendants were acting within the scope of their employment. The prison employee defendants are expressly immunized from liability while acting within the scope of their employment. Here, although plaintiff conceded that defendants were acting within the scope of their employment, he nevertheless seeks to impose liability against them despite their immunity from liability under § 152.1(A) of the Act. Our analysis leads us to the inescapable conclusion that the Act immunizes defendants from liability for the acts complained of by plaintiff just as it does the state itself for negligent acts.

II. Plaintiff had a potential cause of action for the excessive use of force by the defendant prison employees but failed to state an actionable claim in his petition.

¶ 9 Plaintiff seeks to impose liability for the defendants' use of "excessive force." We have not heretofore examined the issue of what showing must be made by a prisoner in a penal institution under circumstances, such as those in the case at bar, where force has been applied to maintain discipline. We first observe that our analysis in such cases must differ significantly from the analysis we have applied in determining what was "excessive force" in cases involving police officers making arrests and those involving nursing home employees dealing with patients. See, for example, Nail v. City of Henryetta, 1996 OK 12 ¶ 11, 911 P.2d 914, 917 and Rodebush v. Oklahoma Nursing Homes, Ltd., 1993 OK 160 ¶ 12, 867 P.2d 1241, 1245 (Okla.1993). The U.S. Supreme Court dealt with these distinctions in Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), holding that plaintiffs who are not prisoners have significantly broader rights arising from the application of force by police officers making arrests than do those who are incarcerated.

¶ 10 A prisoner in a penal institution has no right to recover for the use of excessive force by prison employees unless the force applied was so excessive that it violated the prisoner's right to be protected from the infliction of "cruel or unusual punishments" under the state and federal constitutions. Ok. Const., Art. 2 § 9; U.S. Const., 8th Amd. Thus, a prisoner has a significantly greater burden to bear in establishing his right to a cause of action than does a person who is not incarcerated. Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 89 L.Ed.2d 251. Whitley was different on its facts from the case at bar in that it involved the quelling of a prison riot resulting in the plaintiff-prisoner being shot. It's analysis, however, is determinative of this appeal.

¶ 11 In Whitley, 475 U.S. at 320-321, 106 S.Ct. at 1085, the court spelled out what is required to make actionable the conduct of prison officials when a prisoner resists the maintenance of order, as plaintiff did when he first resisted the placement of another prisoner in his cell and then resisted the removal of his restraints:

Where a prison security measure is undertaken to resolve a disturbance, such as occurred in this case, that indisputably poses significant risks to the safety of inmates and prison staff, we think the question whether the measure taken inflicted unnecessary and wanton pain and suffering ultimately turns on "whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm." [Citation omitted.]

The court also observed. "such factors as the need for the application of force, the relationship between the need and the amount of force that was used, and the extent of injury inflicted should be considered in making the determination whether the prison officials' conduct was done maliciously and sadistically." [Emphasis added, internal...