Amicus Brief — Procunier v. Navarette

|

In THE —— n, ow)

Supreme Court of the United States

Octoser Term, 1976

No. 76-446

~—~-

; Raymonp K. Procunier, et al.,

; Petitioners,

—

ApoLinaR NAVARETTE, JR.,

Respondent.

UN WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

—_—_—<=

—_————

BRIEF FOR THE AMERICAN CIVIL LIBERTIES

UNION, AMICUS CURIAE

|

Leon FRIEDMAN

Hofstra University

School of Law

Hempstead, New York 11550

Jorn M. Gora

American Civil Liberties

Union Foundation

22 East 40th Street

New York, New Yerk 10016

Autvin J. Bronstein

National Prison Project

1346 Connecticut Ave., N.W.

Washington, D.C. 20036

Attorneys for Amicus Curiae

6 22° ee

————— — — —

RECORD PRESS, INC., 95 MORTON ST., NEW YORK, N. Y. 10014—(212) 243-5775

>_> »

i

TABLE OF CONTENTS

Page

Table of Authorities .....-eeeeeeeeeee ii

Interest of Amicus .....-cccccceeeeee L

OPINION BELOW ..cececcccccccece ecccos &

QUESTION PRESENTED) ....cceesecscscece§ 3

STATEMENT OF THE CASE) ...ceecceceeeee 3

Introduction and Summary of Argument.. 4

ARGUMENT 3 ciccccccccccccccccscccsescscese |

A Claim of Negligence Can Validly

Serve as a Proper Basis for Relief

Under Section 1983. eeeereee eee eevee 7

A. The Petitioners Misconstrue

the Scope of the Section 1983

Cause of Action. e*weee#reeses#eesesee#eeee#ee#e# 7

B. Petitioners Misconstrue the

nature of Negligence in a

Section 1983 Cause of Action. .... 15

C. Lower Federal Courts Have

Consistently Recognized the

Validity of Claims Similar to

That Involved in This Action. .... 20

CONCLUSION eeneneeneneneneneneneeeneeeneneeeneeneeeee 27

ii iii

Table of Authorities Moor v. County of Alameda, 411 U.S.

693 (1973) cccccseces seeces Seeecece 8

Cases

National Treasury Employees Union

Anderson v. United States, 417 U.S. v. Nixon, 492 F.2d 587 (D.C.

Zil (2974) cocccccecccosescesecescos 4 Cis. 1976) cecccccccecscce seeocecoes 49

Beverly « Morris, 470 F.2d 1356 (5th O'Connor v. Donaldson, 422 U.S. 563

Cis. 1978) ccceecescocseosesese Bee Se (1975) a er are ee a ee ee es Gee

Bonner v. Coughlin, 545 F.2d 565 (7th | O'Shea v. Littleton, 414 U.S. 488

Cir. 1976) cecccccecce ceccccccs§ BB 17 (1974) TTT TTTTT WYTTTTITITITTTT TT.

Bryan v. Jones, 530 F.2d 1210 (5th Paul v. Davis, 424 U.S. 693 (1976)

Cir. 1976) ecvcceccesccesocesoccsecos AD ccccece 2, 17,

Byrd v. Brishke, 466 F.2d 6 (7th Parker v. McKeithen, 488 F.2d 553 (5th

Cit. 1972) cccccccceccosceseseccecce 24 Cir. 1974); cert.denied, 419 U.S.

. FF eens peer eee seeuss OF

Carter v. Carlson, 447 F.2d 358 (D.C.

Cir. 1971), rev'd sub nom (on other Pierson v. Ray, 386 U.S. 547 (1967)...

grounds), District of Columbia v. 8, 12

Carter, 409 U.S. 418 (1973) .... 8, 25

Procunier v. Martinez, 416 U.S. 396

Conley v. Gibson, 355 U.S. 41 (1957)... 4 (1974) 3 ccccccccecs THITTTITLITTTTTre -. 14

Dewell v. Larson, 489 F.2d 877 (10th Rizzo v. Goode, 423 U.S. 362 (1976)....

Cir. 1974) eeeereer ewe eeeeeeeeeaeee 23, 24 2, 8

Estelle v. Gamble, U.S. ; Roberts v. Williams, 456 F.2d 819 (5th

20 HeRG.S6 SEL (ISTE) ccccoccoesse Me W Cir. 1972); cert.denied, 404 U.S. 866

(1971) eeeverereeeeeeeeeeeeees 21, 22, 25

Kent v. Prosse, 265 F.Supp. 673 (W.D.

Penn. 1967) erereeeev eee een eevee ee eee eee 21 Scheuer Ve Rhodes, 416 U.S. 232 (1974)...

8, 12

Mark v. Groff, 521 F.2d 1376 (9th Cir.

1975) eeneneeeneneeeneeneeeeeeeeneneeneeneee 13

iv

Sims v. Adams, 537 F.2d 829 (5th

Cir. 1976) oer ew ee ee eee eeeeaeeenee 25

United States v. Ehrlichman, 546 F.2d

910 (D.C. Cir. 1976) eeeeeeeneeeeeeee 12

Warth v. Seldin, 422 U.S. 490 (1975).. 8

Wolff v. McDonnell, 418 U.S. 539 ©

(1974) eoeeeeeeeeeeeeneeeeeeeeeeeee 14

Wood v. Strickland, 420 U.S. 308

(1975) ccceecse B8, Do 10, 12, 4. 15, 16

Statutes:

42 We cGe §1983 eoeneeneneeeenvnee Passim

wae Oe ee BO Udédubsecse< 12

Other:

L. Friedman, The Good Faith Defense

in Constitutional Litigation,

5 Hofstra L. Rev. 501 (1977) .... 11, 20

W. Prosser, Handbook of The Law Of

Torts (4th Ed. 1971) ......... 9, ll, 15

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1976

No. 76-446

RAYMOND K. PROCUNIER, et al.,

Petitioners,

Vs.

APOLINAR NAVARETTE, JR.,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

For the Ninth Circuit

BRIEF FOR THE

AMERICAN CIVIL LIBERTIES UNION,

AMICUS CURIAE

Interest of Amicus i/

The American Civil Liberties Union is

1/ Letters of consent from all parties to

the filing of this brief have been lodged

with the Clerk of the Court.

2.

a nationwide, nonpartisan organization of

over 250,000 members. It is organized

solely for the purpose of protecting the

civil rights and liberties of Americans.

The American Civil Liberties Union has been

in existence since 1920. One of the con-

stant concerns of the organization has been

the need to provide adequate legal mechan-

isms to protect against, and remedy, viola-

tions of constitutionally protected rights.

Amicus is most concerned about the impor-

tance of protecting citizens civil rights

and liberties by imposing sanctions against

those state officials who abuse their

office or are indifferent to the rights of

those they are alleged to serve. We have

been concerned that recent decisions cf the

Court have hampered the historic role of

the United States District Courts in im-

plementing remedies for such violations of

civil rights. See, e.g., Imbler v. Pacht-

man, 424 U.S. 409 (1976); Rizzo v. Goode,

423 U.S. 362 (1976); Paul v. Davis, 424

U.S. 693 (1976); Hicks v. Miranda, 422 U.S.

332 (1975). One of our concerns is that

this case, in which the Court of Appeals

followed settled law in concluding that

the plaintiffs, alleging that prison offi-

cials negligently failed to carry out their

clearly established constitutional duties,

presented a claim sufficient to withstand

summary judgment, not become a vehicle for

the overruling or narrowing of Monroe v.

Pape, 365 U.S. 167 (1961).

3.

OPINION BELOW

The opinion of the United States

Court of Appeals for the Ninth Circuit is

reported at 536 *.2d 277.

UESTION PRESENTED

Can negligent actions by prison offi-

cials ever serve as the basis for a suit

under 42 U.S.C. §1983?

STATEME OF THE CASE

The only issue before this Court is

whether the plaintiff's third cause of

action in his amended complaint was prop-

erly upheld by the Court of Appeals. That

claim charged that three subordinate

Soledad Prison correctional officials

"negligently and inadvertently misapplied

the prison mail regulations" in effect at

the time and as a result certain of plain-

tiff's letters to certain newspapers

failed to reach their destination. The

third cause of action also includes a

claim against three supervisory prison

officials for their "negligent failure to

furnish" the subordinate officials with

sufficient training regarding evaluation

of prisoner mail, in other words, for

negligently failing to train and super-

vise the subordinate officials. The Court

of Appeals held that this cause of action

stated a valid claim and that the affi-

4.

davits submitted on behalf of the defend-

ants were insufficient to justify summary

judgment.

Introduction and Summary of Argument

This case could be disposed of by the

Court quite simply. It is well-established

that an action may be dismissed at the

pleading stage only if it appears "beyond

doubt that the plaintiff can prove no set

of facts in support of his claim which

would entitle him to relief." Conley v.

Gibson, 355 U.S. 41, 45-46 (1957). Since

the complaint alleges that the subordinate

prison officials negligently and inadver-

tently failed to mail certain letters and

that their superiors negligently failed to

train and supervise them, the plaintiff

should be allowed to prove his claim. The

petitioners admit that "deliberate indif-

ference" could be the basis of a Section

1983 action (Petitioners Brief, at 9), as

could an “unwillingness to act in the face

of a known duty to do so." (Ibid. at 6).

This Court should easily construe plain-

tiff's complaint as fitting within that

standard and remand the case for trial,

in accordance with the Ninth Circuit's

decision below. But the State of Calif-

ornia has instead asked this Court to take

a giant step backward in interpreting

Section 1983. There is no need to do so

under any circumstances and, for the

following reasons, there is certainly no

basis for doing so here.

Petitioners misconstrue Section 1983

in claiming that negligence cannot be the

basis for a civil rights suit. Previous

§1983 cases have dealt with problems of

defining "person," "state" or the consti-

tutional right involved. But these cases

do not relate to whether the conduct com-

plained of must be volitional or negligent.

In fact, the development of the good

faith defense in §1983 cases undercuts

petitioners’ position. The theory of the

good faith defense is that a state official

should not be held answerable in damages if

he reasonably believed in the legality of

his acts. The touchstone of the defense is

what a reasonable state official would

believe he could do in the circumstances.

Negligence theory applies the same approach:

what risks to a constitutional right would

a reasonable state official foresee with

respect to his actions. A reasonable man

test is used in both areas for the same

reason: Section 1983 demands of state

officials that they be concerned about

unreasonable risks to constitutional

rights and unreasonable assumptions about

the legality of their conduct.

Negligence does not involve any good

or bad faith by a state official. It

involves the unreasonable assumption of

risk. If the risk is to a constitution-

ally protected right, then Section 1983

should apply. Viewed from another per-

6.

spective, if the negligence involves an

unreasonable risk to the constitutional

rights of a wide number of citizens, the

basic promise of Section 1983 would be

violated by refusing to recognize a cause

of action.

Lower federal courts have consistent-

ly upheld Section 1983 cases based upon

the negligence of state officials, parti-

cularly when the negligence relates to

their training and supervision of person-

nel under their command. That is precisely

what is involved in the instant case.

7.

ARGUMENT

A Claim of Negligence Can Validly

Serve as a Proper Basis for Relief

Under Section 1983.

The simplicity of the question pre-

sented in this case masks che revolution-

ary step which the State of California is

asking this Court to take. By confusing

a series of separate elements in the §1983

cause of action, the California prison

officials are asking this Court virtually

to wipe out one phase of §1983 jurispru-

dence, to eliminate an important protection

for citizens' rights and to overrule a long

line of precedents upholding claims such as

those involved in the instant case. There

is no justification for gutting Section

1983 in this manner.

A. ‘he Petitioners Misconstrue the Scope

of the Section 1983 Cause of Action.

Petitioners basic misconception is to

treat Section 1983 cases as if they had

but a single component. They argue that

such cases are confined to intentional

conduct by state officials. In support of

this notion they treat a series of this

Court's decisions in §1983 actions as if

they involved a continuous development of

a single theme leading to the conclusion

the petitioners urge. But a closer look

at the cases cited by petitioners demon-

strates that the cases involved entirely

8.

different components of a 1983 action than

that involved in this action.

To succeed in a Section 1983 action,

a citizen must show that he was deprived

of a right, privilege or immunity secured

by the Constitution or federal law through

the actions of a person acting under color

of law of a state. These elements have

been before the Court a number of times.

Thus this Court held that the term

"person" does not include a municipality,

Moor v. County of Alameda, 411 U.S. 693

(1973), and the term "state" does not

include the District of Columbia, District

of Columbia v. Carter, 409 U.S. 418 (1973).

This Court has also held that rules

on. standing, injury, and case and contro-

versy apply as well to Section 1983 actions.

See Warth v. Seldin, 422 U.S. 490 (1975);

O'Shea v. Littleton, 414 U.S. 488 (1974);

Rizzo v. Goode, 423 U.S. 362 (1976).

Finally, this Court has established

special rules on immunity in suits for

damages against state officers sued under

Section 1983. In Pierson v. Ray, 386 U.S.

547 (1967), this Court held that a police

officer does not have to anticipate con-

stitutional changes and cannot be held

liable in damages for an arrest under a

law later held unconstitutional. In

Scheuer v. Rhodes, 416 U.S. 232 (1974),

Wood v. Strickland, 420 U.S. 308 (1975),

and O'Connor v. Donaldson, 422 U.S. 563

9.

(1975), this Court established the test

of qualified, good faith immunity for state

officers sued for damages.

These cases are treated by the peti-

tioners as if they all dealt with the

problem now before this Court. But none

of them has anything to do with the issue

of whether the conduct of the state offi-

cial must be volitional or negligent. In

fact, the implications of those cases are

contrary to the petitioners’ position.

This Court established a good faith

defense in Wood v. Strickland, with both a

subjective and an objective “reasonable

man" component. A state official cannot

be held liable for intentional acts if he

sincerely believed in the legality of his

acts and if that belief was reasonable.

That approach can be applied precisely to

negligent acts as well.

Prosser has written: "In negligence,

the actor does not desire to bring about

the consequences which follow, nor does

he know that they are substantially certain

to occur, or believe that they will. There

is merely a risk of such consequences,

sufficiently great to lead a reasonable man

in his position to anticipate them, and to

guard against them." Prosser, Handbook of

the Law of Torts, (4th ed. 1971) (hereafter

"Prosser on Torts"), at 145. If a state

official foresees that a constitutionally

protected right of a citizen is endangered

by his acts or omissions, he will be liable

10.

under traditional Section 1983 principles.

However, if he does not foresee such a

danger, but a reasonable man in his posi-

tion would have done so, he should also be

liable.

The good faith defense set out in

Wood v. Strickland already utilizes the

reasonable man approach which is at the

heart of negligence theory. If a police

officer arrests a person under a vagrancy law

already held unconstitutional, he may

sincerely believe he has the right to do

so. But a federal court could well con-

clude that the officer "reasonably should

have known that the action he took...

would violate the constitutional rights of

the [person] affected..." Wood v. Strick-

land, 420 U.S. at 322. Thus he would be

held liable.

The negligence theory is simply an

application of the good faith defense at

an earlier stage, to the conduct itself,

instead of at the stage of a fact-finder

viewing its presumptive legality. Ifa

state officer reasonably should have known

that his actions or omissions would have

caused an injury to a constitutionally

protected right of a citizen, then he

should be held liable.

In standard negligence theory, a

plaintiff can succeed if he shows: (1) a

duty recognized by the law, requiring the

actor to conform to a certain standard of

conduct; (2) a failure on his part to

ll.

conform to the standard required; (3) a

reasonably close causal connection between

the conduct and the resulting injury;

(4) actual loss or damage. Prosser on

Torts, at 143.

Section 1983 requires an injury to a

constitutionally protected right. Thus

this approach will not increase suits

against state officers since lower courts=

have long recognized negligence as the

basis for a Section 1983 action.

2/ Petitioners claim that recognizing

negligence as the basis for a Section 1983

action will significantly increase the

number of civil rights suits brought to

the overcrowded federal courts. That

claim is wrong. As noted in the text,

federal courts have long recognized negli-

gence as the basis for such suits. In

addition, the increase in civil rights

suits since 1960 is due in part to

passage of laws against employment dis-

crimination, discrimination in public

accomodations, infringement of voting

rights and so on. The rubric of “civil

rights" suits used by the Administrative

Office of the United States Courts is

not equivalent to Section 1983 actions.

See Friedman, The Good Faith Defense in

Constitutional Litigation, 5 Hofstra L.

Rev. 501, n. 1 (1977).

12.

Similarly, this Court has limited the

applicability of 18 U.S.C. Sections 241

and 242 to criminal acts which specific-

ally interfere with interests protected

by a clearly delineated constitutional

right. See Anderson v. United States,

417 U.S. 211 (1974); United States v.

Ehrlichman, 546 F.2d 910, 921 (D.C. Cir.

1976). In the same way, requiring that

the foreseeability of injury be limited

to constitutionally protected rights will

limit the number of negligence cases

against state officials.

In short, basic principles of tort

liability can be and should be applied to

the situation before this Court. Just as

a person cannot be allowed to disregard

well-established constitutional rights,

he cannot be permitted to overlook the

dangers to those rights which a reasonable

man would foresee.

In addition, the broad proposition

urged by the petitioners would apparently

apply to suits for injunctive relief as

well as for damages. But the development

of the good faith defense has been care-

fully limited to the issue of damages.

Whether or not the Mississippi policeman

in Pierson, the Ohio National Guard

officials in Scheuer, the Arkansas school

administrators in Wood and the Florida

hospital officials in O'Connor were ultim-

ately liable for damages, if their conduct

was held to be unconstitutional, it can and

must be enjoined and declared invalid. If

13.

a federal court finds a constitutional

violation, it must grant such relief so

long as Congress has given the court power

and jurisdiction to do so - as it has done

in a Section 1983 case. As the District

of Columbia Circuit explained in National

Treasury Employees Union v. Nixon, 492

F.2d 587, 609 (D.C. Cir. 1974):

A good faith defense in a suit for

damages brought against any federal

official as an individual is seem-

ingly established by Bivens v. Six

Unknown Agents, 456 F.2d 1339 (2d

Cir. 1972) on remand from the

Supreme Court, 403 U.S. 388 (1971),

but that defense is not assertable

in the face of a quest limited to

injunctive, declaratory or mandamus

relief. 3/

In the same way, any negligent inter-

ference with a person's constitutional

rights must be declared invalid and en-

joined. If prison officials negligently

interfere with the First Amendment rights

3/ Although the NTEU case involved a suit

against a federal official, federal courts

have applied the same standards of immun-

ity for both federal officials sued in a

Bivens-type action and state officials

sued in a Section 1983 action. See Mark

v. Groff, 521 F.2d 1376 (9th Cir. 1975).

14.

of prisoners, see Procunier v. Martinez,

416 U.S. 396 (1974), their Fifth and Sixth

Amendments rights, see Wolff v. McDonnell,

418 U.S. 539 (1974), or their Eighth Amend-

ment rights, see Estelle v. Gamble,

U.S. __, 50 L.Ed. 2d 251 (1976), federal

courts must stop those actions regardless

of whether they were negligent or inten-

tional.

The problem of personal liability for

damages for negligent acts involves pre-

cisely the same considerations as those

involved in the good faith defense outlined

by this Court in Wood v. Strickland,

supra - a balancing between the need for

vigorous administration of the laws and

the need to protect citizens' rights. As

noted below, the line between volitional

or intentional acts and negligent acts is

often difficult to draw - which is pre-

cisely why plaintiff in this case alleged

in one cause of action that there was an

intentional failure to mail his letters

and in another cause of action that there

was a negligent failure by the defendants.

The basic theory of the Section 1983

cause of action is that state officers

clothed with the enormous power of their

office have the potential of doing great

damage to the citizens whom they serve.

If they misuse that power deliberately to

cause injury to rights protected by the

Constitution, they must answer in damages.

Similarly, if their actions, though inad-

vertent or negligent, have the potential

15.

to do injury to the constitutionally-

protected interests of many citizens whom

they are serving, Section 1983 should

provide relief. There is no interest to

be served by encouraging state officers

to be careless or inadvertent or indiffer-

ent with respect to the rights of the

citizens they serve. "Any lesser standard

would deny much of the promise of §1983."

Wood v. Strickland, 420 U.S. at 322.

B. Petitioners Misconstrue the Nature of

Negligence in a Section 1983 Cause of

Action.

There are at least three separate

definitions of the term "negligence" which

the California state petitioners confuse

in their brief. (1) Negligence may mean

carelessness generally, a lack of ordinary

care; (2) negligence may often be used to

signify a particular state of mind with

which an act is done - "a mental element,

usually one of inadvertence or indiffer-

ence," Prosser on Torts at 139. (3) Neg-

ligence may also mean conduct itself, an

instance of carelessness or inattention

or omission to act when the opposite would

be expected of a reasonable person.

The legal definition tracks the third

meaning noted above. In Prosser's defini-

tion of the term:

Negligence is a matter of risk

- that is to say, of recogniz-

able danger of injury. It has

16.

been defined as “conduct which

involves an unreasonably great

risk of causing damage” or...

conduct “which falls below the

standard established by law for

the protection of others against

unreasonably great risk of harm."

"Negligence is conduct, and not

a state of mind." Ibid. at 145.

Thus the petitioners are totally in

error when they cite this Court's deci-

sions in the cases dealing with the good

faith defense as supporting their position.

It is true that negligent conduct does not

involve “bad faith" or "malice." But that

is irrelevant. In the first place, Sec-

tion 1983 cases do not require an allega-

tion or showing of bad faith or malice, as

this Court made clear in Wood v. Strickland.

Secondly, good or bad faith are totally

irrelevant when dealing with negligent

actions. Judge Swygert of the Seventh Cir-

cuit recently pointed out, in a dissent in

Bonner v. Coughlin, 545 F.2d 565, 573 (7th

Cir. 1976) (d=% ent), that there can be no

good faith in a negligence action:

This argument collapses upon exam-

ination. Its underlying premise is

that good faith is nothing but the

absence of bad faith, and since an

official can only act in bad faith

when he is acting intentionally, a

nonintentional act can never be in

bad faith. While it may be true

that a nonintentional act cannot be

A eet ON i tt

17.

in bad faith, it is not true that

good faith is simply the absence

of bad faith. Good faith requires

that “[{t]he official himself [is]

acting sincerely and with a belief

that he is doing right." Wood,

420 U.S. at 321. Such an affirm-

ative belief is only possible with

respect to intentional acts. It

is nonsensical to speak of commit-

ting a negligent act in good faith.

There are some acts of prison offi-

cials that do not serve as the basis for

a §1983 action, - when a constitutional

right is not involved. For example, in

Bonner v. Coughlin, supra, the Seventh

Circuit en banc held that prison guards

cannot be held liable under §1983 for

"negligently" leaving the plaintiff's cell

door open after a security search, which

conduct resulted in the loss of his trial

transcript. Plaintiff claimed that his

property was taken without due process of

law and thus that he had the basis for a

Section 1983 suit. The Seventh Circuit

rejected his claim. The court cited this

Court's recent decision in Paul v. Davis,

424 U.S. 693 (1976), and found that the

plaintiff “has pointed to no specific

constitutional guarantee against the neg-

ligence of the two prison guards," 545 F.2d

at 567. But Paul v. Davis dealt with the

nature of the constitutional right and not

the state of mind with which an act was

done or the doing of the act itself. Thus

the Bonner decision merely means that there

18.

was no due process right to begin with in

the circumstances of the case.

If a prison guard, knowing that his

car has bad brakes, negligently runs over

a prisoner in an exercise yard, there may

be no Section 1983 action. This is true

because no constitutional right is infring-

ed even if state law would permit such a

suit. But if he intentionally or inadver-

tently or negligently failed to allow a

prisoner to go to religious services in

prison, then different considerations

apply, as explained below.

Similarly, this Court in Estelle v.

Gamble, supra, focused on the nature of

the constitutional right involved. This

Court held that the “infliction of...unnec-

essary suffering" upon prisoners by denial

of medical care is a violation of the

Eighth Amendment. 50 L.Ed.2d at 259. The

reach of the Eighth Amendment right includes

protection against the infliction of such

4/ The Seventh Circuit in its opinion

seemed to confuse the nature of the con-

stitutional right involved and the injury

which plaintiff had suffered since a copy

of the transcript was later returned. The

Court also questioned whether there was

any state action because the loss of the

transcript occurred after the state action

had ended. However, at the heart of the

opinion was the parallel with Paul v.

Davis, which is discussed above.

19.

pain through the “deliberate indifference

to a prisoner's serious illness or injury."

Ibid. at 260. This Court noted,

a complaint that a physician has

been negligent in diagnosing or

treating a medical condition does

not state a valid claim of medical

mistreatment under the Eighth

Amendment. Medical malpractice

does not become a constitutional

violation merely because the

victim is a prisoner. In order

to state a cognizable claim, a

prisoner must allege acts or

omissions sufficiently harmful

to evidence deliberate indiffer-

ence to serious medical needs.

Ibid. at 26l.

In short, the Eighth Amendment right it-

self is defined to protect against delib-

erate indifference to a prisoner's medical

needs. The right itself does not include

protection against negligent treatment or

diagnosis.

Another approach to this problem was

suggested in Bryan v. Jones, 530 F.2d 1210

(Sth Cir. 1976). In that case, the Fifth

Circuit en banc had to consider the lia-

bility of a sheriff for negligently fail-

ing to release a prisoner after the District

Attorney had dismissed all charges against

him. He stayed in jail for 35 days after

after the dismissal. He then sued under

§1983 for false imprisonment. The Fifth

20.

Circuit held that the sheriff was entitled

to an instruction on the good faith defense

even if Texas law did not recognize it.

Further it held that while his negligence

in one case might not be enough to incur

liability, "[i]f he negligently establishes

a record keeping system in which errors of

this kind are likely, he will be held

liable." 530 F.2d at 1215.

Where negligence of state officials

has the potential for inflicting wide-

spread harm to the individuals they are

serving, such acts must be the basis for

a §1983 action. 5/ Where the negligence

relates to a system of training and super-

vision, the likelihood is great that the

acts in question will have continuing

impact and will injure other citizens.

In those situations, such as that involved

here, the purpose of Section 1983 requires

a recognition of the cause of action.

—

G. r Federal Court ve iste

Recognized the Validity of Claims

Similar to That I: volved in This Action.

Petitioners have misapprehended the

nature of negligent violations of civil

rights. By focusing their attention on

examples of personal injury actions (e.g.,

5/ See Friedman, “The Good Faith Defense

in Constitutional Litigation," 5 Hofstra

L. Rev. 501, 520-522 (1977).

a

A A a ncn OO

21.

Kent v. Prosse, 265 F.Supp. 673 (W.D.

Penn. 1967), Petitioners Brief at 18,

(where a prisoner was injured by a piece

of faulty machinery), they would have the

Court believe that such matters are rep-

resentative of the character of negligent

violations of civil rights recognized by

the federal courts. This could not be

further from the truth. Nor is it com-

parable to the situation presented in

this case. The conduct on which plaintiff

bases his complaint is that of a negligent

failure by an official to perform his duty.

This negligent cmduct directly resulted

in the violation of plaintiff's "clearly

established" constitutional rights. Exam-

ined in this light, the decision of the

Court of Appeals is exactly in line with

the trend of recent lower court holdings

on this issue.

In a 1972 case similar to the cause

of action asserted by plaintiff, the Fifth

Circuit held in Roberts v. Williams, 456

F.2d 819 (5th Cir. 1972); cert.denied, 404

U.S. 866 (1971), that a supervisor could

be held to account under §1983 for his

"failure to train and supervise" a prison

trusty. It was the prison trusty's neg-

ligence in the use of a shotgun which was

the immediate cause of the plaintiff

prisoner's injury. However, the Court

held that the “superintendent" of the

County Farm, who was responsible for

supervising the trusty system, was prop-

erly subject to liability under §1983 in

Roberts' action “based on negligence, "

supra, at 826.

22.

Two Court of Appeals decisions sub-

sequent to Roberts v. Williams, amplified

this holding. Byrd v. Brishke, 466 F.2d

6 (7th Cir. 1972), concerned a civil rights

action filed against several Chicago

policemen in the beating of the plaintiff,

Thomas Byrd, in the backroom of a local

tavern. The District Court directed a

verdict for the defendants which was

reversed by the Seventh Circuit. In an

opinion by Chief Judge Swygert, the court

held that in addition to the liability of

those who participated in the beating, a

§1983 suit could be maintained against

those supervisory and non-supervisory

officers who negligently failed to protect

the plaintiff. The Seventh Circuit

stated the principle of tort liability for

negligence by citation to a pertinent

passage of a lower court opinion, as

follows:

Negligent liability generally

arises in the context of affirm-

ative action. The defendant is

seemed culpable where he has acted

and his acts do not conform to the

standard of a reasonably prudent

man as judged against the commun-

ity ideal of reasonable behavior.

See Prosser, Torts, §§ 53, 54 (3d

ed. 1964). The defendant is not

usually held to be responsible for

inaction. However, where the

defendant is under some affirma-

tive duty to act and he fails to

act accordingly, he may be held

negligently responsible for his

23.

omission. He is responsible if

his omission is unreasonable in

light of the circumstances.

Huey v. Barloga, 277 F.Supp.

864, 872 (N.D. Ill. 1967); see,

Symkowski v. Miller, 294 F.Supp.

1214, 1217 (E.D. Wis. 1969).

466 F.2d at 10.

In the same year, a Police Chief of

the City of Atlanta was held liable under

Section 1983 for his negligent supervision.

In Beverly v. Morris, 470 F.2d 1356 (5th

Cir. 1972), as in this case, the defendant

was sued "on the theory that Williams was

negligent in failing to train properly the

auxilliary officer, [and] to supervise his

patrol duties..." The court, in a per

curiam opinion, upheld the judgment in

favor of the plaintiff. The judges empha-

sized that the case was "not one of

vicarious liability founded on the theory

of respondent superior, but is instead a

claim founded upon the defendant's own

negligence." Beverly v. Morris, supra at

1357.

Later cases have added further weight

to this iine of authority. The first was

Dewell v. Lawson, 489 F.2d 877 (10th Cir.

1974). It, too, involved a police chief

who was held to be accountable for negli-

gent supervision. In Dewell, the plaintiff

suffered a diabetic coma in the police

lock-up, allegedly because the chief had

“failed to establish procedures within the

Oklahoma City Police Department whereby

jail personnel of the said Department were

24.

advised of missing persons listed in all

points bulletins..." Had such procedures

been in effect, the plaintiff alleged, the

chief would have been aware that he was

holding in his jail as a purported drunk a

man who he was already informed was actually

a diabetic suffering from a medical emer-

gency. Circuit Judge Barrett reversed

the lower court's dismissal of the §1983

action against the Chief of Police. The

Court held that the District Court could

not, as a matter of law, dismiss Dewell's

§1983 claim that Lawson be held liable for

being "negligent in not supervising his

subordinates..." Dewell v. Lawson, supra,

at 881.

Shortly thereafter, a decision was

handed down in Parker v. McKeithen, 488

F.2d 553 (5th Cir. 1974); cert. denied,

419 U.S. 838 (1974), concerning, as the

instant case does, the liability of a

warden for the negligent supervision of

his staff. In this case the warden was

sued under §1983 for his negligent super-

vision of security operations at the

Louisiana State Penetentiary. The plain-

tiff alleged that this neglivence permit-

ted a situation where another prisoner was

able to make his way to Parker's bed and

attack him with a dangerous weapon. The

Circuit Court reversed the summary judg-

ment which had been granted in favor of

the warden. In doing so, they went so far

as to hold that even an "isolated incident

of a negligent failure” to act might under

appropriate circumstances support a §1983

action against the warden.

25.

The approach was most recently re-

affirmed in the case of Sims v. Adams, 537

F.2d 829 (Sth Cir. 1976). The case con-

cerned the negligent failure of supervisory

defendants including the Mayor and Chief of

Police of Atlanta, to discipline a police

officer who was known to be prone to vio-

lent acts. Citing Roberts v. Williams,

supra, and Beverly v. Morris, supra, Judge

Gee reversed the lower court's dismissal

as to the liability of these defendants

under §1983.

The District of Columbia Circuit took

a similar approach in Carter v. Carlson,

447 F.2d 358 (D.C. Cir. 1971); rev'd sub

nom (on other grounds), District of Columbia

v. Carter, 409 U.S. 418 (1973) which this

Court has considered in another context.

Although this Court chose not to address

the issue of liability for negligence in

the supervision of subordinates on cert-

iorari, see, 409 U.S. at 420, n. 3, the

District of Columbia Circuit Court had

addressed the matter specifically on

appeal.

Even if Captain Prete or Chief

Layton is protected by official

immunity from suit at common law,

they are both subject to suit under

§1983 for any negligent breach of

duty that may have caused appellant

to be subjected to a deprivation of

constitutional rights. Indeed, Mr.

Justice Frankfurter maintained that

§1983 was designed for precisely

26.

such a case, i.e., the case in

which the State shields a police

officer from liability for conduct

which would subject a private

citizen to liability. While the

Supreme Court has read into the

statute immunity for legislators

and judges, it has not read into

the statute a broad common law

immunity for all government offic-

ers exercising discretionary

functions. In particular, various

supervisory officers have been held

subject to suit under §1983 for

negligence in supervising their

subordinates. 447 F.2d at 365

(footnotes omitted).

In short, the lower federal courts have

consistently recognized that negligent con-

duct by state officers can give rise to a

Section 1983 action, particularly where the

risk of harm to constitutionally protected

rights is widespread.

27.

CONCLUSION

For the reasons stated above, the

judgment of the Court of Appeals should

be affirmed.

April, 1977

*

Respecfully svbmitted,

LEON FRIEDMAN

Hofstra University Law

School

Hempstead, New York 11550

JOEL M. GORA

American Civil Liberties

Union Foundation

22 East 40th Street

New York, New York 10016

ALVIN J. BRONSTEIN

National Prison Project

1346 Connecticut Ave., NW

Washington, DC 20036

Attorneys for Amicus ”

Counsel gratefully acknowledge the

assistance of Steven Haft, a third-year

student at the Hofstra Law School in the

preparation of this brief.