appointment “only where liberty at stake”
How later courts described this case
- appointment “only where liberty at stake”
- opinion filed August 7, 1969
Written by the judges who cited it.
The opinion
SETH, Circuit Judge
(dissenting):
The trial court found the facts to disclose nothing more than an incident giving rise to a private claim for assault and battery against a fellow prisoner. The court also found “* * * this is not a case where prison authorities were called upon to preserve order or were justified in exerting necessary force to restrain or punish a prisoner,” and “* * * plaintiff was not being subjected to discipline at the time he was assaulted.”
As to the Warden, the trial court found that he “* * * did not participate in or countenance the assaults upon plaintiff; the beating administered to plaintiff by another inmate took place under conditions and circumstances in direct violation of defendant’s specific orders; the plaintiff’s injuries were not of a serious nature and he was not denied medical care or treatment.”
Prom these findings and the record, the assault was an isolated incident which was the unintended outgrowth of a meeting arranged by prison officials between the several prisoners concerned. The meeting was for a prison administrative purpose. The trial court thus concluded that the incident was not within the Civil Rights Act. This conclusion is perhaps not entirely consistent with the finding that the event was under color of state law, but the basic facts as found are entirely clear. The findings in the judgment of the trial court must be considered rather than statements made by the trial court in ruling on preliminary motions.
Under the findings derived from the undisputed facts the incident was not disciplinary, and the majority opinion so agrees. The incident was not to restore order or summary discipline related to such an event. Under these circumstances it is difficult to see how-it can be considered as “punishment.” The trial court found it was outside the constitutional protections — it was thus a private assault, and I must agree.
The majority opinion nevertheless assumes that the assault was “punishment” without mentioning the matter and moves on to the next step, which is the degree of force used — was “it” cruel and unusual? The majority thus says in effect if the degree of force was great there is a constitutional violation, but if it was small, there is no constitutional issue.
The majority on the liability issue makes the same “punishment” assumption, and yet another one in saying the Warden is liable if the force is great and not liable if it is small.
The majority has thus said:
“What force amounts to simple assault and battery and how much more force amounts to cruel and unusual punishment is a difficult question of degree.”
Also the opinion states after discussing an arrest case:
“* * * [T]he ultimate issue is whether the assault as found by the factfinder is sufficiently severe in the circumstances to shock the conscience of a reasonable man. If so, the verdict should go for the plaintiffs; if not, for the Warden.”
The majority as a matter of law thus presents the only issue remaining for the trial court to be the degree of force, and not differences in the nature of the incident or the “character” of the assault as the trial court mentioned.
In my opinion the degree issue is not reached until the nature of the incident is established, and the legal issues on the liability of a Warden are examined. *511 The court found the undisputed facts to show the nature of the incident — the character of the assault, and this was sufficient for the summary judgment. Obviously there was a dispute on how violent the assault was, but this was not pertinent to the disposition of the case by the trial court.
As indicated above the majority concludes that, as a matter of law, the Warden is liable if the force was great, and not liable if it was small. I cannot agree. The appellants assert that the Warden deprived them of their rights. The affidavits and findings are to the contrary. The physical setting of the incident is not sufficient to overcome these facts. The showing that the incident took place in the prison and he is the Warden is not sufficient. The ordinary rules of responsibility for one’s own acts or the acts of subordinates should be applied, assuming the other requirements of the Civil Rights Act are met. The Warden cannot be liable for the private-individual assault of one prisoner upon another, depending only on the severity of the assault.
The majority relies on and quotes from Talley v. Stephens, 247 F.Supp. 683 (E.D.Ark.1965), on the liability issue. The cited case however concerned regular corporal punishment administered for disciplinary reasons at the Arkansas prison farms. Corporal punishment had been formally authorized by the prison board several years before and was carried out at the prison farms if the workers did not perform their duties. The court described the nature of the punishment. This certainly was a regular course of punishment for disciplinary reasons, including the post-trial punishments mentioned in the opinion. This is quite different from the case at bar where there is nothing more than an isolated incident.
F would affirm.
“SETH, J., voted to grant a rehearing.
HICKEY and SETH voted to grant rehearing en banc.