William L. Bracey, Jr. v. John Grenoble

SEITZ, Chief Judge

(concurring and dissenting).

I believe that we should remand this case for reconsideration by the district judge, rather than entering judgment for the defendant.

I am willing to accept as applicable to Section 1983 actions the legal principle followed by the district court that “[w]hen a superior personally directs his subordinates to do acts, or when he has actual knowledge of their acts and acquiesces in them, he is regarded as having been personally involved and is liable for his own conduct, not on the basis of respondeat superior but because of his direct personal involvement.”

It is not entirely clear, however, which of the two alternative tests contained in this statement the district court applied. The court’s statement that it had “no difficulty in concluding that the defendant Grenoble was in charge of the prison guards and had complete control over their actions . . . ” is ambiguous at

best. It provides no indication whether the court found that the defendant actually ordered the beating or that the defendant had actual knowledge of the acts of his subordinates and merely acquiesced in them.

The court’s emphasis on the answers to plaintiff’s interrogatories seems to indicate that the court found that defendant actually ordered the guards to beat plaintiff. 1 . The district judge in his memorandum and order, however, points to nothing, other than the answers to the interrogatories, to support his conclusion that plaintiff was beaten by prison guards acting on specific directions from the defendant. Nor can I find in the record any other basis for such a conclusion.

Do the answers to interrogatories executed by defendant’s counsel, and of which the district court took judicial notice, supply the missing ingredient? I am satisfied that they do not because, as Judge Aldisert says, they were not signed by the defendant, were not under oath, and, of critical importance, were not introduced into evidence. Nor do the answers constitute matter which is the proper subject of judicial notice.

Thus, the district court had no permissible basis for inferring that the defendant gave orders to beat plaintiff. Similarly, the answers to the interrogatories cannot be used as the basis for a finding that defendant had knowledge of and acquiesced in the beatings. It does not, however, inexorably follow that judgment should be entered for defendant.

Had the district court judge confined himself to the evidence, I cannot say whether he would have found knowledge and acquiescence on the part of the defendant to the beating after plaintiff had been effectively subdued. While I do not intimate that such a finding would be mandated by the record, I cannot say that the record could not support such a finding.

There was evidence placing the defendant at the scene both immediately before and immediately after the first incident in which the plaintiff was beaten. Possibly, because of its erroneous reliance on the answers to the interrogatories, the district court did not focus on this evidence. I would therefore remand and direct the district court to make properly based findings and draw conclusions concerning defendant’s knowledge of and acquiescence in the beatings at the critical time.

. The court stated that “in his answers to interrogatories [defendant] admitted that he was present at all times and that all actions of the guards were carried out at his orders.”

The key interrogatory and answer is:

“5. Who was the highest person in command present during the incident?

At the scene was Captain John Grenoble and Lieutenant Yueha.

a). Were all actions carried out through his orders?

Yes.”