Petition — Nelson v. Butler

Supreme Court brief1978

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IN THE | sep 16 1978

Supreme Court |_Mictax RODAK, JR. CLERK

OF THE

United States :

OcroBek TERM, 1978

No. @8-451

Louis S. NEuson, et al.,

Petitioners,

78.

THEODORE BUTLER,

Respondent.

Louis S. Nexson, et al.,

Petitioners,

vs.

BiLLy GALLIGHER, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

to the United States Court of Appeals

for the Ninth Circuit

Eve.ie J. YOUNGER

Attorney General of the State of California

Jack R. WINKLER

Chief Assistant Attorney General—

Criminal Division

Kpwarp P. O’Brien

Assistant Attorney General

Joun T. Murpuy

Deputy Attorney General

Cares R. B. Kirk

Deputy Attorney General

6000 State Building

San Francisco, California 94102

Telephone: (415) 557-3944

Attorneys for Petitioners

BOWNE-PERNAU WALSH ¢ 1045 SANSOME ST. * S.F.,CA 94111 © (418) 981-7682

SUBJECT INDEX

Opinion below

Jurisdiction

Questions presented

Statement of the case

Statement of facts

Reasons for granting the writ. .....--... «dee

Argument bg <= Pe ar tn ae ee ane Si 3 et

The opinion of the Court of Appeals rejects this court’s deci-

sion in Procunier v. Navarette

A. Negligence is not converted into intentional conduct

merely by adding opprobrious epithets

B. Conduct which had been previously judicially declared

not to be on constitutional tort cannot serve as the basis

for holding petitioners monetarily liable

There is a conflict in the circuits and among panels of this

circuit Dees ER re

Conclusion Pe eR IG EE fe gl PIT NILE Se er ger

TABLE OF AUTHORITIES CITED

Cases

Aktiebolaget Bofors v. United States, 194 F.2d 145 (D.C.

Cir. 1951)

Albany Welfare Rights Org. Day Care Center v. Schreck, 463

F.2d 620 (2d Cir. 1972), cert. denied, 410 U.S. 944

Allen v. Aytch, 535 F.2d 817 (3d Cir. 1976)

Anderson v. Sixth Judicial Dist. Court, 521 F.2d 420 (8th Cir.

1975)

Bercy Industries, Inc. v. Mechanical Mirror Works, Inc., 279

F.2d 428 (S.D.N.Y. 1968)

Blanchard v. Terry & Wright, Inc., 331 F.2d 596 (2d Cir.

1964), cert. denied, 379 U.S. 855

Bounds v. Smith, 430 U.S. 817 (1977)

Brown v. Procunier, No. 73-1044 (9th Cir., February 26, 1974)

Cameron v. Whirlwindhorse, 494 F.2d 110 (8th Cir. 1974)

Cohen v. Norris, 300 F.2d 24 (9th Cir. 1962)

Curtis v. Everette, 489 F.2d 516 (3d Cir. 1973), cert. denied,

396 U.S. 861

Draper v. ae 315 F.2d 193 (9th Cir. 1963), cert. denied,

IN Sco SUC Ts Aare oe soe heer sere ee eels

10, 17, 18, 19

TABLE oF AUTHORITIES CITED

Cases

Duncan v. Nelson, 466 F.2d 939 (7th Cir. 1972), cert. denied,

409 U.S. 894 |

Edelman v. F.H.A., 251 F.Supp. 715 (E.D.N.Y. 1966), aff'd,

382 F.2d 594 (2d Cir. 1967)

Fine v. City of New York, 529 F.2d 70 (2d Cir. 1975)

Finley v. Rittenhouse, 416 F.2d 1186 (9th Cir. 1969)

Fitch v. United States, 513 F.2d 1013 (6th Cir. 1975), cert.

denied, 423 U.S. 866

Fletcher v. Hook, 446 F.2d 14 (3d Cir. 1971)

Guyer v. Sterling Laundry Co., 171 Cal. 761 (1916)

Haines v. Kerner, 404 U.S. 519 (1972)

Hall v. Burton, 201 Cal.App.2d 72 (1962) .

Hall v. United States, 274 F.2d 69 (10th Cir. 1959)

Hoffman v. Halden, 268 F.2d 281 (9th Cir. 1959)

Jewell v. City of Covington, 425 F.2d 459 (5th Cir. 1970), cert.

denied, 400 U.S. 929 | >

Johnson v. United States, 547 F. 2d 688 (D. C. Cir. 1976)

Kadar Corp. v. Milbury, 549 F.2d 230 (1st Cir. 1977)

Kent v. Prosse, 265 F.Supp. 673 (W.D. Pa. hesuke aff'd. sub

nom. Kent v. Prasse ;

Kent v. Prasse, 385 F.2d 406 ( 3d Cir. 1967)

Larsen v. Bloemer, 156 Cal. 752 (1909)

Merz v. Pinto, 343 F.Supp. 374, 375 (D.N.J. aie aff'd, 459

F.2d 1041 (3d Cir. 1972) |

Negrich v. Hohn, 379 F.2d 213 (3d Cir. 1967)

Nickens v. White, 536 F.2d 802 (8th Cir. 1976)

Oakley v. State, 329 N.Y.S.2d 537 (App. Div. 1972)

O'Neil v. United States, 450 F.2d 1012 (3d Cir. 1971)

Padilla v. Lynch, 398 F.2d 481 (9th Cir. 1968)

Place v. Shepherd, 446 F.2d 1239 (6th Cir. 1971)

Powell v. Workmens Comp. Bd. of State of New York, 327

F.2d 131 (2d Cir. 1964)

Procunier v. Navarette, U.S.

, 98 S.Ct. 855 (1978)

Quinn v. Electric Laundry Co., 155 Cal. 500 (1909)

Raper v. Lucey, 488 F.2d 748 (1st Cir. 1973)

Ritchie v. U.M.W., 410 F.2d 827 (6th Cir. 1969)

Rotolo v. Borough of Charleroi, 532 F.2d 920 (3d Cir. wats

Schilling v. Rogers, 363 U.S. 666 (1960)

Page

15, 16

13, 15, 16

15, 19

10, 15, 17, 19

10, 17. 19

4, 9, 10, 11,

14, 16, 17, 18,

iii

TABLE OF AUTHORITIES CITED

Cases

Snowden v. Hughes, 321 U.S. 1 (1944) ;

Tindall v. Moore, 417 F.Supp. 548 (D. Ga. 1976)

United States v. Neustadt, 366 U.S. 696 (1961)

Williams v. Cannon, 370 F.Supp. 1243, (N.D. IIL. 1974), app'l

dismissed, 515 F.2d 512 (7th Cir. 1975)

Wood v. Holiday Inns, Inc., 508 F.2d 167 (5th Cir. 1965)

Constitution

United States Constitution, 13th Amendment

Rules

Rule 12(b)(6) Federal Rules of Civil Procedure

Statutes

Title 28, United States Code, Section 1254(1)

Title 28, United States Code, Section 2101(c)

42 U.S.C. § 1983 |

Texts

Restatement of Torts § 13, Comment (d), pp. 29-30 (1934)

W. Prosser, Torts § 8, p. 30 (2d ed. 1955)

SS ww

2, 4, 6, 8, 9,

, 16, 17, 19,

IN THE

Supreme Court

OF THE

United States

OctroBeR TERM, 1978

No.

Louis S. NELSON, et al.,

Petitioners,

Vs.

THEODORE BuTLer,

Respondent.

Louis S. NEuLson, et al.,

Petitioners.

vs.

Bitty GALLIGHER, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

to the United States Court of Appeals

for the Ninth Circuit

Petitioners, Louis S. Nelson, et al., respectfully pray that

a writ of certiorari issue to review the judgment and opin-

ion of the United States Court of Appeals for the Ninth

Cireuit filed herein on Marek 6, 1978.

OPINION BELOW

The opinion of the Court of Appeals, holding prison

officials might be found liable for monetary damages under

the Civil Rights Act of 1871 (42 U.S.C. ¢ 1983) for negli-

gent conduct which did not violate any clearly-established

constitutional right, is unpublished and is attached hereto

as Appendix A.

JURISDICTION

The Court of Appeals order denying the petition for re-

hearing and rejecting the suggestion for a rehearing en

banc was filed on July 28, 1978, and is attached hereto as

Appendix B.

The jurisdiction of this Court is invoked under Title 28,

United States Code, sections 1254(1) and 2101(c).

QUESTIONS PRESENTED

1. Whether negligert failure to properly maintain ma-

chinery in a prison factory or to adequately train prisoners

in the use of that machinery becomes actionable under the

Civil Rights Act (42 U.S.C. § 1983) merely by alleging that

such failure was “intentionally negligent”?

2. Whether prison officials can be held liable for mone-

tary damages under the Civil Rights Act (42 U.S.C. § 1983)

for injuries sustained by prisoners working with prison

factory machines when prior appellate decisions have held

that prisoner industrial accidents are not actionable claims

under the Act?

STATEMENT Or THE CASE

On February 27, 1970, respondent Theodore Butler filed

a complaint in the United States District Court for the

Northern District of California seeking monetary damages

under the Civil Rights Act (42 U.S.C. § 1983) for injuries

allegedly sustained in the use of an industrial machine in

the San Quentin Prison furniture factory (CT 216). Re-

spondents Billy Galligher, Joseph L. Bohall, and John R.

Beltran filed similar complaints in the District Court on

July 9, 1971 (CT 223).? Petitioners’ motion to dismiss the

complaint in Butler was filed on March 30, 1972, while a

similar motion to dismiss Galligher was filed on April 20,

1972 (CT 216, 223). Both motions were granted on August

4, 1972, with leave to amend being afforded (CT 216, 223).

The first amended complaint in Galligher was filed on

September 1, 1972, while the first amended complaint in

Butler was filed on September 5, 1972 (CT 1-7, 207-14, 216,

223). Petitioner’s motion to dismiss in Butler was filed on

December 18, 1972, while a similar motion in Galligher

was filed on December 20, 1972 (CT 8-31, 217, 224).* Both

motions were heard on March 23, 1973, at which time the

cases were disinissed as to all “Does,” and the applications

to consider the complaints as class actions were denied. The

remainder of the motions to disiniss were denied without

prejudice, and the cases were ordered consolidated (CT

95, 217, 224). Petitioners’ answer to the amended com-

plaints was filed on April 2, 1978 (CT 996-113, 217, 224).

‘USDC No. C-70-436 WTS, which upon subsequent reassignment

was renumbered C-70-436 SC, will hereinafter be referred to as

Butler.

All references to the Clerk’s Transcript in the Court of Appeal

will be abbreviated “CT.”

*USDC No. C-71-1323 CBR, which upon subsequent reassignment

became No. C-71-1323 WTS, and after a second reassignment be-

came No. C-71-1323 SC, will hereinafter be referred to as “Galli-

gher.

LeRoy Taylor was also a plaintiff during the initial stages, but

the cause of action was later dismissed as to him for repeated failure

to comply with discovery. This proceeding does not involve him.

“Respondents motion in Galligher, identical to that filed in Butler,

was not included in the record on appeal. This motion is not essen-

tial to resolution of the issues, however.

Trial by jury commenced on May 28, 1975, but on June

5 a mistrial was declared and the cause returned to the

chief judge for reassignment (CT 221, 226-27). Atter re-

assignment, the District Court called for memoranda di-

rected to whether the first amended complaints stated a

cause of action under the Civil Rights Act, which memo-

randa were filed by the parties on July 1 (petitioners’),

July 2 (respondents’), and July 17 (respondents’ reply)

(CT 222). On July 11, 1975, the cases were dismissed pur-

suant to Rule 12(b)(6) of the Federal Rules of Civil Pro-

cedure (CT 196, 222, 227). Respondents appealed (CT 197).

On March 6, 1978, the Court of Appeals filed its opinion

reversing the District Court on the ground that the

amended complaints stated a cause of action for inten-

tional rather than negligent conduct (Appendix A). Rely-

ing principally on Procunier v. Navarette, ........ Webs .siseiere :

98 S.Ct. 855 (1978), petitioners filed a petition for re-

hearing and suggestion for rehearing en banc on March

20, 1978. On March 27, 1978, the Court of Appeals or-

dered respondents to file authorities disclosing any case

law which established, prior to July 27, 1970, the con-

stitutional rights asserted in the amended complaints.’

Respondents memorandum was probably filed sometime

‘In pertinent part, that order was as follows:

“The response shall be directed to the proposition set forth

in the apace for rehearing that Procunier v. Navarette

:. 3, , U.S.L.W. 4144, holds that prison officials and

Pe tgs are immune from suit where the conduct at issue

did not violate, at the time it occurred, a clearly established

constitutional right.

“The appellants are required to cite what authority they have

in case law for the proposition that the alleged constitutional

rights violated had been judicially established in 1969 and

1970, and particularly prior to July 27, 1970, which is the date

~ the lett act or conduct charged against appellees (complaint

of Bohall),

near June 12, 1978,° Petitioners’ petition for rehearing and

suggestion for rehearing en banc was denied on July 29,

1978,

STATEMENT OF FACTS’

In the Butler amended complaint (C'T 1-7; Appendix C),

plaintiff Butler alleged that defendants—the Director of

the California Departinent of Corrections, the Warden of

the California State Prison at San Quentin, and various

supervisory personnel of the San Quentin Prison furniture

factory—-had foreed Butler, a state prisoner, to work in the

furniture factory, using dangerous machinery which was in

an unsafe condition, In the course of being required to use

a machine (hand-jointer) for a purpose for which it was

not intended, Butler received an injury to the tip of the

little finger on his left hand in June or July, 1969, On No-

vember 26, 1969, Butler was injured a second time on the

machine; this time losing the ring finger of his left hand at

the first (end) joint. Butler alleged that defendants wil-

fully and maliciously compelled him to work on the danger-

ous machine, or that defendants’ conduct was grossly negli-

gent, and that such conduct eaused his injury, He also

alleged that by maintaining the furniture factory in such

hazardous condition, defendants conspired to deny him eon-

stitiittional rights. Butler sought $150,000 in compensatory

damages and $100,000 in punitive damages,

"The order of March 27, 1978, required the response to be filed

by April 12. This date was later continued to April to, A cover letter

from respondents’ counsel to the Court of Appeals and transmitting

the response was dated June 12, 1978,

_ “These “facts” are taken from the amended complaints which are

found in the Clerk’s Transcript in the Court of Appeal. The allega-

tions, insofar as pertinent hereto, are essentially similar, The entire

amended complaint in Butler is included as Appendix C; that in

Galligher as Appendix D,

In the Galligher amended complaint (CT 207-14; Appen-

dix D), plaintiffs alleged that the same defendants had also

foreed plaintiffs, again San Quentin prisoners, to work in

the furniture factory using dangerous machinery which was

in an unsafe condition. Galligher was required to use a ma-

chine (hand-jointer) for a purpose for which it was not

intended, and on May 11, 1970, received an injury which

resulted in the loss of the middle finger of his left hand at

the first (end) joint. After recovering from that injury,

Galligher was reassigned to the same machine and on July

10, 1970, lost the entire fourth finger of his left hand, An-

other plaintiff, Bohall, while operating a table saw, injured

his left thumb on June 3, 1970, and lost part of his right

thumb on July 27, 1976. Plaintiff Beltran, while operating

a radial saw, injured the ligaments of two fingers on his

right hand on August 12, 1970, Plaintiffs alleged that de-

fendants wilfully and maliciously compelled them to work

on this dangerous machinery, or that defendants’ conduct

was grossly negligent, and that such conduct caused their

injuries. They also alleged that by maintaining the furniture

factory in such hazardous condition, defendants conspired

to deny plaintiffs’ constitutional rights. Each of the plain-

tiffs sought compensatory damages of $50,000 and punitive

damages of $100,000 for their respective injuries.

Both suits were based upon the Civil Rights Aet of 1871,

and alleged violations of rights and equal protection, due

process, and freedom from eruel and unusual punishment.

The plaintiffs were allegedly “foreed” to work in the fur-

niture factory because:

“refusal to do so resulted in both immediate diseipli-

nary action and prospective adverse consequences, The

immediate disciplinary action includes a twenty-three

hour a day lock-up for an intermediate period of time

extending to years in many cases, and loss of the sole

souree of earnings while in prison confinement. The

prospective adverse consequences of refusing to work

isa ‘write-up’ in the inmate's file regarding the dis-

ciplinary action, which can ultimately mean possible

increase in a prisoner’s sentence when his file is re-

view by the Adult Authority.” (Butler 9 6; Galligher

q 7)"

The precise conduct with which defendants were charged

was that plaintiffs were;

“compelled by defendants to work in the furniture fac-

tory at San Quentin Prison, at machines that were

dangerous, hazardous and unsafe machines with full

knowledge of the dangerous, hazardous and unsafe con-

dition of the machines thereby inflicting eruel and un-

sual punishment ..., depriving plaintiff[s] of equal

protection of the laws and denying plaintiff{s] the

right to due process of the law, Defendants maintained

‘The “forced labor” aspect ot the amended complaints is hardly

compelling, as the following colloquy between respondents’ counsel

and the District Court judge during the proceedings of July 11,

1975, demonstrates;

“THE COURT; One thing that appeared in the papers, it

was indicated that these individuals are forced to work there?

“MS. SOLADAY: Yes, Your Honor.

“THE COURT; When ft was at San Quentin, [ had the im-

pression that working in the shop was sort of a privilege and

something that the prisoners wanted to do, because it gave

them extra money and extra time, and it was something to

do, as opposed to sitting in the yard doing nothing,

“MS. SOLADAY: Your Honor, as we showed in the [aborted

trial] evidence, in order to seek a favorable consideration for

when you get out of prison, you have to show the proper

attitude, and you have to comply with the law of the prison

and the state,

One of the laws is that you are to work, that is a state law

of California. There are only certain jobs available, only ten

percent of the people in the prison are employed by indus-

tries of the prison, so there are waiting lists of people for any

kind of job. People are locked up on many occasions who do

not have jobs.”

( Reporter's Transcript 5:24 to 6:15)

these dangerous, hazardous and unsafe conditions by

failing and refusing to properly train those chosen to

work in this facility, by failing and refusing to use the

machines in a manner and for purposes for which they

were designed, by failing and refusing to see that thie

machines were maintained and repaired by profes-

sional and competent maintenance personnel, by failing

and refusing to heed the warnings and complaints of

inmate-employees even after witnessing numerous and

repeated injuries to prisoners and plaintiff[s] oceur-

ring because of the dangerous, hazardous and unsafe

working conditions.” (Butler { 7; Galligher { 8)

The conduct which the Court of Appeal apparently felt

constituted an actionable tort under the Civil Rights Act

was described by plaintiffs as follows:

“Defendants exhibited a reckless disregard of the

safety of plaintiff[s] and thereby breached their duties

to plaintiff{s]. Defendants had actual knowledge of the

dangers likely to ensue from a failure to furnish plain-

tiff{s] with safe and proper machines and by maintain-

ing these dargerous, hazardous and unsafe conditions.

That knowledge notwithstanding, defendants mali-

ciously, recklessly, knowingly and willfully compelled

plaintiff[s]to subject himself [themselves] to severe

injuries and loss of limb[s] by forcing plaintiff[s] to

work on such dangerous, hazardous and unsafe ma-

chines and under dangerous, hazardous and unsafe

working conditions; by ignoring the hazardous working

conditions which defendants knew existed in the furni-

ture factory; and by refusing to heed the warnings of

plaintiff{s] and of other inmates and of agents, ser-

vants and employees of defendants regarding those

conditions and the numerous injuries caused thereby.

Defendants’ actions caused the accidents hereinbefore

alleged to have occurred, with attendant injuries and

damages, thereby denying plaintiff’s right to be free

from cruel and unusual punishment, denying him

[them] due process of law.” (Butler § 9; Galligher

710)

After alleging that this same conduct alternatively con-

stituted gross negligence (Butler | 10; Galligher § 11), it

was also alleged that:

“| DJefendants’ intentional, affirmative and malicious

conduct in compelling plaintiff[s] to work under these

hazardous conditions constitutes an infliction of eriel

and unusual punishment, violative of the Kighth

Amendment of the United States Constitution. .. .”

(Buller § 11; Galligher § 12)

It was further alleged that this conduct constituted a con-

spiracy (Butler J 14; Galligher § 14).

REASONS FOR GRANTING THE WRIT

Plaintiffs were allegedly injured while using machinery

in a prison factory. They assert that these injuries to fin-

gers are injuries to their civil rights. Defendants are now

confronted with the prospect and burden of litigating a

nou-diversity industrial accident case in federal court.

In the opinion below, the Court of Appeals, conceded

that negligent conduct was not actionable under the Civil

Rights Act of 1871, following this Court’s decision in

Procumer v. Navarette, .... U.S. ...., 98 S.Ct. 855 (1978).

But seizing upon plaintiffs’ allegations to the effect that

“defendants maliciously, recklessly, knowingly and_ will-

fully violated” plaintiffs’ various rights, the Court of

Appeals concluded that the amended complaints alleged

intentional torts and were outside the structures of Pro-

cunier v. Navarette. In so doing, the Court of Appeals ig-

nored the essential nature of the various acts alleged in

the complaints and the historicai construction of such

allegations in the law of torts, for the complaints herein

allege nothing more than common industrial accidents

which have traditionally been considered negligent torts.

If all a plaintiff need do is allege that defendants were

“intentionally negligent,” then Procunier v. Navarette is

completely emasculated.

Furthermore, prior to the decision of the Court of

Appeals herein, all reported decisions of other Circuit

Courts had held identical injuries to state prisoners to

be nothing more than industrial accidents which did not

constitute violations of the Civil Rights Act. A prior, un-

reported decision of this same circuit had previously

reached the same conclusion. For the Court of Appeals

to thus posit defendants’ liability upon conduct which had

been previously construed as no violation of the Civil

Rights Act is a rejection of this Court’s decision in Pro-

cunier v. Navarette, supra, 98 S.Ct. at 860-62.

Insofar as the decision of the Court of Appeals holds

prison officials monetarily liable to state prisoners who

are injured in prison industrial accidents, it conflicts with

Merz v. Pinto, 343 F.Supp. 374, 375 (D.N.J. 1971), aff'd,

459 F.2d 1041 (3d Cir. 1972), and Kent v. Prasse, 385

F.2d 406, 407-08 (3d Cir. 1967), and with a previous

similarly unreported decision of this same circuit in Brown

v. Procunier, No. 73-1044 (9th Cir., February 26, 1974).*

Certiorari should be granted herein to resolve a conflict

between two panels of the Ninth Circuit and between this

circuit and the other circuits.

*A copy of this opinion is printed as Appendix E.

STR PRN manne — “oe

ARGUMENT

THE OPINION OF THE COURT OF APPEALS

REJECTS THIS COURT’S DECISION IN

PROCUNIER v. NAVARETTE.

A. Negligence is not Converted into Intentional Conduct

Merely by Adding Opprobrious Epithets

In the amended complaints, the plaintiff-prisoners alleged

that defendants, prison employees and administrators, re-

quired them to work in a prison furniture factory and did

so with the knowledge that the machines upon which the

prisoners were to work were hazardous, dangerous and

unsafe, and that defendants did not provide proper train-

ing, utilize the machines for their intended purposes, prop-

erly maintain the machines, or adequately respond to re-

ports of unsafe machines. Although conceding that this

Court’s decision in Procunier v. Navarette, ... U.S. ..., ...,

98 S.Ct. 895, 862, had foreclosed liability under a negli-

gence theory (Opinion, fn. 1), the Court of Appeals never-

theless held that a cause of action had been stated in

intentional tort because plaintiffs had alleged that “de-

fendants maliciously, recklessly, knowingly and willfully

violated appellants’ right against cruel and unusual punish-

ment by subjecting them to forced labor under conditions

resulting in the maiming of their hands” and thus “the

complaints at issue cannot be fairly construed to allege

merely ordinary negligence.” But as this Court held in

Snowden v. Hughes, 321 U.S. 1, 10 (1944), the mere addition

of opprobrious epithets such as “willful” or “malicious”

does not transform the acts alleged into intentional conduct.®

*Snowden was a civil rights complaint concerning alleged uncon-

stitutional conduct by voting officials in refusing to certify the plain-

tiff as the winner of an election. This Court declared: “The lack of

General, conclusionary allegations unsupported by facts

have always been considered insufficient to establish a civil

rights violation.” Instead, the plaintiff “must set forth the

elaim in a manner which, taking the pleaded facts as true,

states a claim [violation of a constitutional right] as a mat-

ter of law.” Nickens v. White, 536 F.2d 802, 803 (8th Cir.

1976).% See Bounds v. Smith, 430 U.S. 817, 825 (1977).

Such words as “intentional,” “willful,” “reckless,” “know-

ing,” and “malicious,” without supporting facts, are merely

conclusionary allegations which are insufficient to establish

a claim. Cameron v. Whirlwindhorse, 494 F.2d 110, 114 (8th

Cir. 1974), Curtis v. Everette, 489 F.2d 516, 521 (3d Cir.

1973), cert. denied, 396 U.S. 861.*°

any allegations in the complaint here, tending to show a purposciul

discrimination between persons or classes of persons is not supplied

by the opprobrious gone is ‘willful’ and ‘malicious’ applied to the

Board’s failure to certify petitioner as a successful candidate, or by

characterizing that failure as an unequal, unjust, and oppressive

administration of the laws of Illinois.” 321 U.S. at 10.

Rotolo v. Borough of Charleroi, 532 F.2d 920, 922-23 (3d Cir.

1976); Anderson v. Sixth Judicial Dist. Court, 521 F. 2d 420, 420-21

(Sth Cir. 1975); Albany Welfare Rights Org. Day Care Center v.

Schreck, 463 F.2d 620, 623 (2d Cir. 1972), cert. denied, 410 U.S.

944; Place v. Shepherd, 446 F.2d 1239, 1244 (6th Cir. 1971);

Fletcher v. Hook, 446 F.2d 14, 16 (3d Cir. 1971); Jewell v. City of

Covington, 425 F.2d 459, 460 (5th Cir. 1970), cert. denied, 400 U.S.

929; Finley v. Rittenhouse, 416 F.2d 1186, 1187 (9th Cir. 1969);

Negrich v. Hohn, 379 F.2d 213, 215 (3d Cir. 1967); Powell v. Work-

mens Comp. Bd. of State of New York, 327 F.2d 131, 137 (2d Cir.

1964): Hoffman v. Halden, 268 F.2d 281, 294 n. 15 and text (9th

Cir. 1959), overruled on other grounds, Cohen v. Norris, 300 F.2d

94, 29-30 (9th Cir. 1962); see Duncan v. Nelson, 466 F.2d 939, 943

(7th Cir. 1972), cert. denied, 409 U.S. 894.

“Accord, Fine v. City of New York, 529 F.2d 70, 73 (2d Cir.

1975); Raper v. Lucey, 488 F.2d 748, 752 (1st Cir. 1973); Padilla v.

Lynch, 398 F.2d 481, 482 (9th Cir. 1968).

‘The conclusionary nature of the plaintiffs’ allegations herein can-

not be excused under the rationale of Haines v. Kerner, 404 U.S.

519, 520 (1972). The complaints herein were not only prepared by

an attorney, but have even been redrafted once by counsel. Hence

the Haines remission is inapplicable. Allen v. Aytch, 535 F.2d 817,

921-22 n. 21 (3d Cir. 1976); Williams v. Cannon, 370 F.Supp. 1243.

1245 (N.D. Ill. 1974), appl dismissed, 515 F.2d 512 (7th Cir. 1975).

The Court of Appeals has taken plaintiffs’ allegations

of “intentional” conduct at face value. However, the label

which the plaintiff attaches to his claim is not determina-

tive of its nature. Johnson v. United States, 547 F.2d 688,

691 (D.C. Cir. 1976) ; Ritchie v. U.M.W., 410 F.2d 827, 832

(6th Cir. 1969); Akticbolaget Bofors v. United States, 194

Mid 145, 148 (D.C. Cir. 1951); Bercy Industries, Inc. v.

Mechanical Mirror Works, Inc., 279 F.2d 428, 429 (S.D.N.Y.

1968). Instead, the court should have looked beyond the

literal language to ascertain the essential nature of the

claimed cause of action by examination of the factual alle-

gations. United States v. Neustadt, 366 U.S. 696, 703-04

(1961); Schilling v. Rogers, 363 U.S. 666, 676 (1960).

“More detail is required than a plaintiff’s bald state-

ment ‘that he has a valid claim of some type,’ and

courts do ‘not accept conclusionary allegations on the

legal effect of the events plaintiff has set out if these

allegations do not reasonably follow from his deserip-

tion of what happened. .. 2” Kadar Corp. v. Milbury,

549 I'.2d 230, 233 (1st Cir. 1977).

See Wood v. Holiday Inns, Inc., 508 F.2d 167, 172 n. 1 (5th

Cir. 1965).

Looking to the essential factual allegations of the

amended complaints, petitioners’ alleged liability is based

upon their conduct in requiring prisoners to work upon

machines which were known to be dangerous and unsafe,

In Schilling, this Court counselled that “[S]uch conclusionary

allegations may not be read in isolation from the complaint’s factual

allegations.” Ibid. The Courts of Appeal have always looked to the

facts set out in the complaint to Cetermine the nature of the cause

of action. Fitch v. United States, 513 F.2d 1013, 1015 (6th Cir. 1973)

cert. denied, 423 U.S. 866; Blanchard v. Terry & Wright, Inc. 331

F.2d 596, 599 (2d Cir. 1964), cert. denied, 379 U.S, 855; Hall v.

( nited States, 274 F.2d 69, 71 (10th Cir. 1959); Aktiebolaget Bofors

v. United States, 194 F.2d 145, 148-49 (D.C. Cir. 1951).

—_—

in not providing adequate training, in not using the mia-

chines for their intended purposes, in improper mainte-

nance, in failure to provide adequate protective devices,

and in failing to respond to reports of unsafe machines.

Plaintiffs did not plead “intentional” tort at all. As Pros-

ser notes:

“(T]he mere knowledge and appreciation of a risk,

short of substantial certainty, is not the equivalent of

intent. The defendant who acts in the belief or con-

sciousness that he is causing an appreciable risk of

harm to another may be negligent, and if the risk is

great his conduct may be characterized as reckless or

wanton, but it is not classed as an intentional wrong.”

W. Prosser, Torts § 8, p. 30 (2d ed. 1955).

The Restatement similarly distinguishes intentional from

negligent conduct:

“In order that an act may be done with the intention

of bringing about a harmful or offensive contact or

an apprehension thereof to a particular person, either

the other or a third person, the act must be done for

the purpose of causing the contact or with knowledge

on the part of the actor that such contact or appre-

hension is substantially certain to be produced. It is

not enough that the act itself is intentionally done and

this, even though the actor realizes or should realize

that it contains a very grave risk of bringing about the

contact or apprehension. Such realization may make

the actor’s conduct negligent or even reckless, but un-

less he realizes that to a substantial certainty, the

contact or apprehension will result, the actor has not

that intention which is necessary to make him liable.

..2’ Restatement of Torts § 13, Comment (d), pp. 29-30

(1934).

This distinction between “intentional” and “negligent” torts

has been recognized by this Court. Procunier v. Navarette,

vee US. oooey ..---» 98 S.Ct. 855, 862 (1978). The so-called “in-

tentional” conduct of petitioners herein did not meet the.

standard set out in Prosser’s text, the Restatement, or that

recognized by this Court. At most, the alleged conduct con-

stituted negligence.

As the district court properly held, the plaintiffs’ allega-

tions set out what is essentially an industrial-accident

claim based upon concepts of negligence. In an almost

identical case involving a federal prisoner, the court de-

scribed the conduct of prison officials as negligence. Tin-

dall v. Moore, 417 F.Supp. 548, 548-52 (D. Ga. 1976). Fail-

ure to install adequate protective devices was described

as negligence in O’Neil v. United States, 450 F.2d 1012,

1015 (3d Cir. 1971). Requiring a prisoner to work on a

grossly-defective machine was held to be negligence in

Kent v. Prosse, 265 F.Supp. 673, 674-75 (W.D. Pa. 1967),

aff'd sub nom. Kent v. Prasse, 385 F.2d 406 (3d Cir. 1967).

Similarly, lack of adequate supervision over reformatory-

school inmates using defective or dangerous machinery has

been described as negligence by a New York court. Oakley

v. State, 329 N.Y.S.2d 537, 539 (App. Div. 1972).

Another means of determining the true nature of a com-

plaint is to compare those facts with how similar allega-

tions have been historically construed. Johnson v. United

States, 547 F.2d 688, 692 (D.C. Cir. 1976). In the federal

setting, such allegations have been considered to establish

a negligent tort. O’Neil v. United States, 450 F.2d 1012,

1015 (3d Cir. 1971) ; Kent v. Prosse, 265 F.Supp. 673, 674-

75 (W.D. Pa. 1967) aff'd Kent v. Prasse, 385 F.2d 406 (3d

Cir. 1967) ; Tindall v. Moore, 417 F.Supp. 548, 548-52 (D.

Ga. 1976). Under California law—and California’s law is

typical of state decisions in this area—such allegations

would establish a claim of negligence. See Hall v. Burton,

“Tt is interesting to note that even plaintiffs characterized their

injuries as “accidents.” See Butler { 9, 13; Galligher § 10.

201 Cal.App.2d 72, 80-81 (1962) (furnishing defective ma-

chinery to employee with knowledge of defect, failure to

inspect or maintain machines) ; Guyer v. Sterling Laundry

Co., 171 Cal. 761, 764-65 (1916) (no protective device on

machine) ; Larsen v. Bloemer, 156 Cal. 752, 756-57 (1909)

(failure to install or inspect protective devices on ma-

chinery); Quinn v. Electric Laundry Co., 155 Cal. 500, 506-

07 (1909) (failure to adequately instruct inexperienced

operator).

If this Court’s decision in Procunier v. Navarette, ...

USS. ...., ...., 98 S.Ct. 855, 862, was meant to confine liability

under the Civil Rights Act of 1871 to cases of intentional

tortious conduct breaching constitutional rights, then the

decision of the Court of Appeal effectively emasculates

Procunier. To paraphrase Johnson v. United States, 547

F.2d 688, 691-92 (D.C. Cir. 1976), a litigant should not be

able to circumvent the Act by the simple expedient of

drafting in terms of “intentional tort” a claim which in

reality constitutes negligence. Or as another court has

ruled, “The Court ... [should not be] bound by the con-

clusion of the pleader and will not permit the essential

character of the suit to be disguised or distorted by the

‘artful drafting of a complaint.” Edelman v. F.H.A., 251

F.Supp. ' 15, 717 (E.D.N.Y. 1966) (footnote omitted), aff'd,

382 F.2d 594 (2d Cir. 1967). But this is exactly what the

opinion of the Court of Appeals permits.

B. Conduct Which had been Previously Judicially De-

clared Not to be a Constitutional Tort Cannot Serve as

the Basis for Holding Petitioners Monetarily Liable

In Procunier v. Navarette, .... US. sensy accep OO Ot. BOB,

860-62 (1978), this Court held that prison officials cannot

be held liable in damage actions based upon conduct which

did not, at the time the conduct occurred, violate any

clearly-established constitutional right. Insofar as the

Court of Appeals has found petitioners liable under the

allegations of the amended complaints, that court has com-

pletely disregarded the Procunier v. Navarette decision.

In their complaints, the plaintiffs allege that defendants

(petitioners herein) “required them to work in a prison

furniture factory” and did so with the knowledge that the

machines upon which the prisoners were to work were

hazardous, dangerous and unsafe, and that prison officials

did not provide proper training, utilize the machines for

their intended purposes, properly maintain the machines,

provide adequate protective devices, or adequately respond

to reports of unsafe machines. Insofar as the “forced labor”

aspect of these complaints is concerned, the United States

Constitution permits the states to require prisoners to

work (U.S. Const., 13 Amend.), and the Court of Appeals

had previously held that “There is no federally protected

right of a state prisoner not to work while imprisoned

after conviction. .. .” Draper v. Rhay, 315 F.2d 193, 197

(9th Cir. 1963), cert. denied, 375 U.S. 915. And the only

reported cases dealing with prison-staff liability for in-

juries to prisoners suffered while being required to work in

prison industries have held that there is no cause of action

under the Civil Rights Act. Mertz v. Pinto, 343 F.Supp.

374, 375 (D.N.J. 1971), aff’d, 459 F.2d 1041 (3d Cir. 1972) ;

Kent v. Prasse, 385 F.2d 406, 407-08 (3d Cir. 1967). Simi-

larly, the Court of Appeals itself had previously held that

no cause of action was stated by a California prisoner who

allegedly lost 3 fingers in a prison metal press which

prison officials knew to be unsafe. Brown v. Procunier,

**But see note 7, supra at p. ...

No. 73-1044 (9th Cir, February 26, 1974) (reprinted as

Appendix If),”°

In Procunier v. Navarette, .... U.S, ..., 98 S.Ct, 855,

860-61, this Court noted that there was some conflict in

various federal decisions which rendered the existence of

a constitutional right, with the violation of which those

defendants were charged, questionable. This Court went

on to say:

“As a matter of law, therefore, there was no basis for

rejecting the immunity defense on the ground that

petitioners knew or should have known that their al-

leged conduct violated a constitutional right. Because

they could not reasonably have been expected to be

aware of a constitutional right that had not yet Leen

declared, petitioners did not act with such disregard

for the established law that their conduct ‘cannot rea-

sonably be characterized as in good faith.’” Zd., ....

US. at ...., 98 S.Ct. at 861-62,

In view of the uniformity in reported decisions establish-

ing that petitioners’ purported conduct did not violate any

constitutional rights, and the conformity of the unreported

Ninth Circuit decision with the reported rule, it is simply

impossible to square the holding of the Court of Appeals

with this Court’s decision in Procunier v. Navarette.

THERE IS A CONFLICT IN THE CIRCUITS AND

AMONG PANELS OF THIS CIRCUIT.

This petition should be granted to resolve a conflict in the

circuits. In this decision, the Court of Appeals has held that

The fact that the decision in Brown v. Procunier was unpub-

lished is of no significance herein. Raymond K. Procunier, the

“Procunier” of Brown v. Procunier, was the Director of Corrections

and in charge of all California prisons when petitioners’ conduct

allegedly occurred, and hence it cannot reasonably be urged that

petitioners were unaware of the Brown v. Procunier decision. As a

matter of fact, it is the same Mr. Procunier who is listed as a defend-

ant in both the Butler and Galligher complaints.

allegations charging that petitioners required prisoners to

work upon machines which were known to be dangerous

and unsafe, without providing adequate training, without

us ng the machines for their intended purposes, without

maintaining the machines properly or installing protective

devices, and that petitioners ignored reports of unsafe ma-

chines, stated a claim of “intentional” tort under the Civil

Rights Act of 1871. This decision is in direct conflict with

Mertz v, Pinto, 343 F.Supp. 374, 375 (D.N.J. 1971), aff’d,

459 F.2d 1041 (3d Cir. 1972), which holds that prison offi-

cials cannot be held liable under the Civil Rights Act for

injuries to a prisoner who was allegedly forced to work

around a meat grinder despite his susceptibility to dizzy

spells and was injured when falling into the grinder. It is

in direct conflict with Kent v. Prasse, 385 F.2d 406, 407-08

(8d Cir. 1967), which holds that prison officials cannot be

held liable for injuries to a prisoner hurt while operating

a machine known to be defective. It is in direct conflict with

Kent v. Prosse, 265 F.Supp. 673, 674-75 (W.D. Pa. 1967),

aff'd sub nom. Kent v. Prasse, 385 F.2d 406 (3d Cir 1967),

which holds that requiring a prisoner to work on a grossly-

defective machine is unactionable negligence. And insofar

as it determines that the conduct alleged is “intentional”

rather than negligence, it is in direct conflict with Tindall

v. Moore, 417 F.Supp. 548, 548-52 (D. Ga. 1976), which holds

that virtually identical allegations pertaining to a federal

prisoner constitute negligence.

But even more confusing is the situation in this circuit;

where one panel (Brown v. Procunier, reprinted in Ap-

pendix E) has held that forcing a prisoner to work on a

defective industrial machine is not a basis for a Civil Rights

claim, while the instant panel has held to the contrary. Since

both decisions are unpublished, they are of equal weight as

precedent or guidance as constitutional directives. Those

defendants or potential defendants who are prison admin-

istrators on a state-wide level, and counsel who must advise

them, are thus faced with an intolerable quandary: deter-

mination of constitutional rights and liabilities by Russian

roulette,

CONCLUSION

Contrary to traditional tort concepts and the decisions of

every federal court which has touched upon the subject,

the Ninth Circuit has construed a prisoner damage suit

based upon what is essentially an industrial accident as an

actionable intentional tort under the Civil Rights Act. This

construction, based solely upon plaintiffs’ use of conclu-

sionary words such as “willful” or “knowingly” in the com-

plaint, promises to completely undermine Procunier v. Nav-

arette insofar as that decision holds that negligent conduct

does not create a Civil Rights action. In apparent defiance

of the Procunier v. Navarette requirement of “prior notice,”

the Ninth Circuit has held petitioners liable for conduct

which every previous reported or unreported case has found

not actionable. For these reasons, we respectfully urge that

this petition for a writ of certiorari should be granted.

Dated, San Francisco, California

September 12, 1978.

Eve.uue J. YOUNGER

Attorney General of the State of California

Jack R. WinKLER

Chief Assistant Attorney General—

Criminal Division

Epwaarp P. O’Brien

Assistant Attorney General

Joun T. Murpy

Deputy Attorney General

Craxues R. B. Kirk

Deputy Attorney General

Attorneys for Petitioners.

(Appendices Follow)

cnt

Appendices

A-1

Appendix A

DO NOT PUBLISH

United States Court of Appeals

for the Ninth Circuit

No. 75-2969

Theodore Butler,

Plaintiff-Appellant,

Louis S. Nelson, et al.,

Defendants,

Billy Galligher, John Beltran, and Joseph}

Bohall, et al.,

Plaintiffs-Appellants,

Louis S. Nelson, et al.,

Defendants. |

[Filed March 6, 1978]

Appeal from the United States District Court

for the Northern District of California

MEMORANDUM

Before: CARTER and HOFSTEDLER, Circuit Judges,

and SMITH,® District Judge.

Plaintiffs filed complaints in federal district court alleg-

ing defendants had violated their civil rights by forcing

them to work in the prison furniture factory under danger-

*Hon. Russell E. Smith, United States District Judge, District of

Montana, sitting by designation.

A-2

ously unsafe conditions resulting in serious injuries. After

one mistrial the case was assigned to a new judge who dis-

missed the case pursuant to Fed. Rules Civ. Proc. 12(b) (6)

for failure to state a cause of action for which relief can

be granted. The district judge concluded the complaints

alleged no more than ordinary negligence which he felt was

not sufficient to permit plaintiffs to invoke federal jurisdic-

tion under the Civil Rights Acts, 42 U.S.C. §§ 1981 et seq.’

Complaints should not be dismissed for failure to state a

cause of action “unless 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). Although these consolidated com-

plaints were inartistically drawn, they alleged, inter alia,

that defendants maliciously, recklessly, knowingly and will-

fully violated appellants’ right against cruel and unusual

punishment by subjecting them to forced labor under con-

ditions resulting in the maiming of their hands. Such alle-

gations, unless so lacking in factual support as to be

frivolous, adequately state a cause of action under 42 U.S.C.

§ 1983. Based on the record, the district judge simply could

not say that plaintiffs could prove no set of facts which

would bring them within the purview of the act. We reverse.

‘Negligent conduct is not actionable under 42 U.S.C. § 1983. The

Ninth Circuit had held that the deprivations of an individual’s fed-

erally insured rights need not be purposeful to be actionable under

section 1983. Navarette v. Enomoto, 536 F.2d 277, 281 (9 Cir. 1976).

But that decision was reversed by the United States Supreme Court

sub nom. Procunier v. Navarette,.... U.S. ... , 46 U.S.L.W. 4144

(February 22, 1978). We do not face this question because the com-

plaints at issue cannot be fairly construed to allege merely ordinary

negligence.

B-1

Appendix B

United States Court of Appeals

for the Ninth Circuit

No. 75-2969

Theodore Butler, |

Plaintiff-Appellant,

vs.

Louis S. Nelson, et al.,

Defendants.

Billy Galligher, John Beltran, and Joseph}

Bohall, et al.,

Plaintiffs-Appellants,

vs.

Louis S. Nelson, et al.

Defendants.

;

[Filed July 28, 1978]

ORDER

Before: CARTER, HUFSTEDLER, and SMITH, J udges.

The panel in the above entitled case voted unanimously

to deny the petition for rehearing.

Judge Carter and Judge Smith recommended the re-

jection of the suggestion for rehearing en banc, and Judge

Hufstedler voted to reject the suggestion for rehearing en

banc.

The petition for rehearing en banc was circulated to all

active judges and no judge has voted for a rehearing en

banc.

IT IS ORDERED that the petition for rehearing is

denied and the suggestion for rehearing en banc is re-

jected.

C-1

Appendix C

Salle S. Soladay

SOLADAY & BEGLEY

1029 Fourth Street

San Rafael, California 94901

Telephone : 457-9351

Attorney for Plaintiff

In the United States District Court

for the Northern District of California

No. C-70 436 WTS

Theodore Butler, individually end on be-

half of all others similarly situated,

Plaintiff,

vs.

Louis S. Nelson, Raymond K. Procunier, |

Paul L. Lemon, George P. Smith, W.

Cox, Melvin L. James and Does One

through Fifteen, inclusive,

Defendants.

| Filed September 5, 1972]

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

AND FOR DAMAGES

Plaintiff complains of defendants and each of them as

follows:

I. JURISDICTION

1. Jurisdiction of this court is invoked pursuant to

28 U.S.C. Sections 1331, 1343 and 2201 and 2202. This is

C-2

a suit authorized by 42 U.S.C. Sections 1981, 1983, 1985

and 1988 to redress the deprivation under color of state

law of rights, privileges and immunities secured by the

due process and equal protection clauses of the Fourteenth

Amendment of the United States Constitution and the

cruel and unusual punishment clause of the Eighth Amend-

ment of the United States Constitution. This is also a pro-

ceeding for declaratory judgment as to plaintiff’s right to

be free from such deprivation by defendants acting under

color of state law, for injunctive relief and for damages

both compensatory and punitive.

II. PARTIES

2. Plaintiff is a citizen of the United States and a resi-

dent of the State of California. At the time the action

arose the plaintiff was a prisoner of the State of Cali-

fornia, incarcerated at San Quentin Prison, and is now

on parole upon orders of the defendants and defendant

‘RAYMOND K. PROCUNIER.

3. Defendants RAYMOND K. PROCUNIER, Director

of Corrections, LOUIS S. NELSON, Warden of San Quen-

tin Prison, PAUL L. LEMON, Corrections Industry Man-

ager at San Quentin Prison, GEORGE P. SMITH,

Superintendent of the Furniture Factory at San Quentin

Prison, W. COX, Assistant Superintendent of the Furni-

ture Factory at San Quentin Prison, and MELVIN L.

JAMES, Foreman of the Furniture Factory at San Quen-

tin Prison, and all officers and/or employees of the State

of California. Defendants are being sued individually and

in their official capacity.

4. The true and/or full names and/or capacities of the

remaining defendants, sued herein as DOES ONE #lrough

FIFTEEN inclusive, are unknown to plaintiff who .»ere-

C-3

fore sues said defendants by such fictitious names. Plain-

tiff will request leave to amend this complaint to show

such true names and/or capacities when the same have

been ascertained.

5. At all times mentioned herein defendants were offi-

cers and/or employees of the State of California and were

acting within the course and scope of their employment

and acting under color of the laws of the Giate of Cali-

fornia.

Ii]. STATEMENT OF CLAIM

6. Plaintiff was compelled by defendants to work in

whatever job defendants assigned him. Plaintiff had no

choice as to whether or not he would work; refusal to do

so resuited in both immediate disciplinary action and

prospective adverse consequences. The immediate disci-

plinary action includes a twenty-three hour a day lock-up

for an indeterminate period of time extending to years in

many cases, and loss of the sole source of earnings while

in prison confinement. The prospective adverse conse-

quence of refusing to work is a “write-up” in the inmate’s

file regarding the disciplinary action, which can ultimately

mean possible increase in a prisoner’s sentence when his

file is reviewed by the Adult Authority.

7. Plaintiff was compelled by defendants to work in the

furniture factory at San Quentin Prison, at machines that

were dangerous, hazardous und unsafe and defendants com-

pelled piaintiff to work at these dangerous, hazardous and

unsafe machines with full knowiedge of the dangerous,

hazardous and unsafe condition of the machines thereby

inflicting cruel and unusual punishment on plaintiff, de-

priving plaintiff of equal protection of the laws and deny-

ing plaintiff the right to due process of law. Defendants

maintained these dangerous, hazardous and unsafe condi-

tions by failing and refusing to properly train those chosen

to work in this facility, by failing and refusing to use the

machines in a manner and for purposes for which they

were designed, by failing and refusing to see that the ma-

chines were maintained and repaired by professional and

competent maintenance personnel, by failing and refusing

to provide protective devices on the machines, by failing

and refusing to replace worn and defective equipment, by

failing and refusing to establish a safety committee which

would insure a safer working environment in the future

factory, by refusing to heed the warnings and complaints

of inmate-employees even after witnessing numerous and

repeated injuries to prisoners and plaintiff occurring be-

cause of the dangerous, hazardois and unsafe machines

and the dangerous, hazardous and unsafe working condi-

tions.

8. As a direct and proximate result of being compelled

by defendants to work under these dangerous, hazardous

and unsafe conditions, which defendants who direct and

manage this million dollar operation knew or should have

known to be unsafe, plaintiff received serious injuries, to

wit:

(a) Plaintiff BUTLER was assigned to the furniture fac-

tory during his six years confinement at San Quentin

Prison, and during that time observed the conditions as set

forth above. During June or July, 1969, plaintiff BUTLER

was injured in the course of operating a hand-jointer, a

machine designed to prepare boards for fitting in a joint.

This machine was not designed to process “junk-ends,” 1.¢.,

small warped and knotty pieces of wood and further the

only guard on this machine is open to the operator’s hand

once he begins sending the wood pieces through the machine

C-5

instead of having the proper protective device which would

prevent such injuries. Plaintiff BUTLER was required to

send “junk ends” through the jointer even though defend-

ants knew that this machine was dangerous, hazardous and

unsafe when used for this purpose with this guard as sev-

eral prisoners had been injured on numerous occasions

when they were required to send “junk ends” through this

machine and had informed defendants of the dangerous,

hazardous and unsafe nature of such use of this machine.

As a result of forcing plaintiff to perform this work on the

jointer, he received an injury when the tip of the blade

caught the little finger of his left hand.

(b) After his return to the furniture factory defendants

again maliciously and recklessly forced plaintiff to work on

the hand-jointer and required plaintiff to send “junk-ends”

through the machine without a proper protective guard. In

order to insure that the wood would be properly graded be-

fore being sent through the machine, plaintiff BUTLER

attempted to protect himself by doing his own grading.

However, defendant JAMES, foreman, upon discovering

this, ordered plaintiff to stop doing his own grading and to

confine his activities to the above described operation of the

hand-jointer only. As a direct and proximate consequence

of defendants’ orders plaintiff BUTLER on November 26,

1969, was injured a second time, a serious injury resulting

in the loss of the ring finger at the first joint. Extreme sen-

sitivity in the remainder of that finger presently inhibits

plaintiff from full use of his left hand.

9. Plaintiff further alleges that defendant and each of

them owed a duty of care to plaintiff. Defendants exhibited

a reckless disregard of the safety of plaintiff and thereby

breached their duties to plaintiff. Defendants had actual

knowledge of the dangers likely to ensue from a failure to

furnish plaintiff with safe and proper machines and by

C-6

maintaining these dangerous, hazardous and unsafe condi-

tions. That knowledge notwithstanding, defendants malici-

ously, recklessly, knowingly and willfully compelled plain-

tiff to subject himself to severe injuries and loss of limb by

forcing plaintiff to work on such dangerous, hazardous and

unsafe machines and under dangerous, hazardous and un-

safe working conditions; by ignoring the hazardous working

conditions which defendants knew existed in the furniture

factory; and by refusing to heed the warnings of plaintiff

and of other inmates and of agents, servants and employees

of defendants regarding those conditions and the numerous

injuries caused thereby. Defendants’ actions caused the ac-

cidents hereinbefore alleged to have occurred, with attend-

ant injuries and damages, thereby denying plaintiff’s right

to be free from cruel and unusual punishment, denying him

equal protection of the law, and denying him due process

of law.

10. In the alternative, defendants’ acts and omissions

hereinbefore alleged constituted gross negligence, in that

defendants failed to furnish safe and fit equipment or ade-

quate supervision or assistance for the task which they

ordered plaintiff to perform. Defendants should reasonably

have known such equipment, supervision, and assistance to

be necessary to prevent the likelihood of severe personal

injury in the performance of such task. As a direct and

proximate result of such gross negligence, the accidents

hereinbefore alleged occurred, with attendant injuries and

damages. Accordingly, defendants are liable to plaintiff for

their gross negligence under circumstances establishing a

duty not to be negligent in that plaintiff was subjected to

cruel and unusual punishment, denied equal protection of

the law and denied due process of the law.

C-7

11. Plaintiff alleges that defendants’ intentional, affirma-

tive and malicious conduct in compelling plaintiff to work

under these hazardous conditions constitutes an infliction

of cruel and unusual punishment, violative of the Eighth

Amendment of the United States Constitution as applied to

the States through the Fourteenth Amendment.

12. Plaintiff, after being seriously injured on the occa-

sion described herein, had to walk approximately the dis-

tance of two city blocks, from the furniture factory to the

prison medical facility. On arrival there at about 8 or 9 a.m.

he was sent up to the second level. There he was told that

they had no lights and no doctor. After waiting close to 45

minutes his finger was wrapped in gauze, and he was sent

back downstairs. Finally, at about 12 noon a doctor by the

name cf Simmons arrived, performed some surgery on

plaintiffs finger and confined him to the hospital for one

day. Upon his release from the hospital, plaintiff returned

to the job site, but the foreman, seeing that he could not do

any job hecause of the condition of his hand, sent him to

his cell. There he remained for four months. Upon request

for sick pay plaintiff was informed by defendant SMITH

that since he had never been put on “medically unassigned”

status he could only receive four weeks sick pay. Upon

examination of his finger, Doctor Simmons advised plain-

tiff that a second operation should be done to remove part

of the fingernail which the doctor had neglected to remove

during the initial operation.

15. Plaintiff alleges that on the occasion of the second

accident he was acutely in need of urgent and timely med- |

ical attention and that the long delay in receiving same,

as well as the inadequate surgical operation as indicated

above, amounted to indifference on the part of prison ofli-

cials and was tantamount to a refusal to grant medical

C-8

eare. Such intentional and wilful refusal constitutes cruel

and unusual punishment in violation of the Kighth Amend-

ment of the United States Constitution as applicable to

the states by the Fourteenth Amendment of the United

States Constitution.

14. Plaintiff alleges that by directing and managing the

operation of the furniture factory at San Quentin in a

manner which gave rise to extremely hazardous working

conditions, and then by denying timely and adequate med-

ical care to those who are injured while being compelled to

work under such conditions, defendants wilfully and in-

tentionally conspired together to deny and deprive plaintiff

of rights guaranteed to him under the United States Con-

stitution.

15. Plaintiff has been subjected because of the above

recited acts to the deprivation under color of state law of

rights, privileges and immunities secured by the due proc-

ess clause of the Fourteenth Amendment, in that refusal

to work under these conditions would have resulted in

severe punishment being imposed upon him without even

the slightest imposition of any of the elements of proce-

dural due process.

16. Plaintiff has no plain, adequate or complete remedy

at law to redress the wrongs alleged herein, and this suit

for declaratory judgment and injunction is his only means

of securing adequate relief. Plaintiff is now suffering and

will continue to suffer irreparable injury from defendants’

policies and practices in the operation of the furniture fae-

tory at San Quentin Prison as set forth herein.

C-9

WHEREFORE, plaintiff respectfully prays that this

court enter judginent granting plaintiff :

1, A declaratory judgment that defendants’ acts, poli-

cies, and practices complained of herein constitute a con-

spiracy to violate plaintiff’s rights secured by the cruel and

unusual punishment clause of the Kighth Amendment of

the United States Constitution as applied to the states by

the Fourteenth Amendinent of the United States Constitu-

tion and secured by the due process clause of the Four-

teenth Amendment of the United States Constitution.

) . . . . . . . . .

2. A preliminary and permanent injunction enjoining

defendants from compelling plaintiff to work under condi-

tions which expose him to serious bodily injury and maim-

ing and death and from punishing plaintiff for refusing

to work under such conditions.

3. Compensatory damages for plaintiff in the amount

of ONE HUNDRED FIFTY THOUSAND DOLLARS

($150,000.00) and punitive damages for plaintiff in the

amount of ONE HUNDRED THOUSAND DOLLARS

($100,000.00).

4. ‘Lhe costs of this suit.

¥. Such other and further relief as this court may deem

just and proper.

Dated: September 1, 1972.

SALLE 8. SOLADAY

Salle S. Soladay

Attorney for Plaintiff

Salle S. Soladay

Soladay & Begley

1029 Fourth Street

San Rafael, California 94901

Telephone: 457-9351

Attorney for Plaintiffs

In the United States District Court

for the Northern District of California

No. C-71 1323 WTS

Billy Galligher, Joseph Lewis Bohall,

LeRoy Taylor and John Raymond

Beltran, individually and on behalf

of all others similarly situated,

Plaintiffs,

Raymond K. Procunier, Louis S. Nelson,

Paul L. Lemon, George P. Smith,

W. Cox, Melvin L. James and

Does One through Fifteen, inclusive,

Defendants.

[Filed September 1, 1972]

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

AND FOR DAMAGES

Plaintiffs complain of defendants and each of them as

follows:

I. JURISDICTION

1. Jurisdiction of this court is invoked pursuant to 28

U.S.C. Sections 1331, 1343 and 2201 and 2202. This is a

D-2

suit authorized by 42 U.S.C. Sections 1981, 1983 and 1985

and 1988 to redress the deprivation under color of state

law of rights, privileges and immunities secured by the

due process and equal protection clauses of the Fourteenth

Amendment of the United States Constitution and the

cruel and unusual punishment clause of the Eighth

Amendment of the United States Constitution. This is also

a proceeding for declaratory judgment as to plaintiffs’

rights to be free from such deprivation by defendants act-

ing under color of state law, for injunctive relief and for

damages both compensatory and punitive.

Il. PARTIES

2, Plaintiffs are citizens of the United States and resi-

dents of the State of California. At the time the action

arose the plaintiffs were prisoners of the State of Cali-

fornia, incarcerated at San Quentin State Prison, Tamal,

California, and are now all in custody at San Quentin

Prison or have been transferred to other Department of

Corrections facilities or are on parole upon orders of the

defendants RAYMOND K. PROCUNIER.

3. Defendants RAYMOND K. PROCUNIER, Director

of the California Department of Corrections, LOUIS 8S.

NELSON, Warden of San Quentin Prison, PAUL L,

LEMON, Corrections Industry Manager at San Quentin

Prison, GEORGE P. SMITH, Superintendent of the Fur-

niture Factory at San Quentin Prison, W. COX, Assist-

ant Superintendent of the Furniture Factory at San

Quentin Prison, and MELVIN L. JAMES, Foreman of

the Furniture Factory at San Quentin Prison, are all of-

fieers and/or employees of the State of California. De-

fendants are being sued individually and in their official

capacity.

p-3

4. The true and/or full names and/or capacities of the

remaining defendants, sued herein as DOES ONE through

FIFTEEN inclusive, are unknown to plaintiffs who there-

fore sue said defendants by such fictitious names. Plain-

tiffs will request leave to amend this complaint to show

such true names and/or capacities when the same have

been ascertained.

d. At all times mentioned herein defendants were offi-

cers and/or employees of the State of California and were

acting within the course and scope of their employment

and acting under color of the laws of the State of Cali-

fornia.

{Il. CLASS ACTION

6. Plaintiffs bring this action on behalf of themselves

and all other present or past inmates of San Quentin

Prison who are or who have been similarly situated, in

accord with Rule 23(b)(1) and (2) of the Federal Rules

of Civil Procedure. The class is so numerous that joinder

of all members is impracticable; there are questions of

law and fact common to the class; the claims or defenses

of the representative parties are typical of the claims or

defenses of the class; and plaintiffs will adequately and

fairly represent the interests of the class.

IV. STATEMENT OF CLAIMS

7. All prisoners, including the plaintiffs, have been and

continue to be compelled by defendants to work in what-

ever job they are assigned. They have no choice as to

whether or not they will work; refusal to do so results in

both immediate disciplinary action and prospective ad-

verse consequences. The immediate disciplinary action

includes a twenty-three hour a day lock-up for an inde-

terminate period of time extending to years in many

D-4

eases, and loss of the sole source of earnings while in

prison confinement. The prospective adverse consequence

of refusing to work is a “write-up” in the inmate’s file

regarding the disciplinary action, which can ultimately

mean possible increase in a prisoner's sentence when his

file is reviewed by the Adult Authority.

8. Plaintiffs were compelled by defendants to work in

the furniture factory at San Quentin Prison, at machines

that were dangerous, hazardous and unsafe and defen-

dants compelled plaintiffs to work at these dangerous, haz-

ardous and unsafe machines with full knowledge of the

dangerous, hazardous and unsafe condition of the ma-

chines thereby inflicting cruel and unusual punishment on

plaintiffs, depriving plaintiffs of equal protection of the

laws and denying plaintiffs the right to due process of law.

Defendants maintained these dangerous, hazardous and

unsafe conditions by failing and refusing to adequately

and directly supervise the inmate plaintiffs, by failing and

refusing to properly train those chosen to work in this

facility, by failing and refusing to use the machines in a

manner and for purposes for which they were designed,

by failing and refusing to see that the machines are main-

tained and repaired by professional and competent main-

tenance personnel, by failing and refusing to provide pro-

tective devices on the machines, by failing and refusing

to replace worn and defective equipment, by failing and

refusing to establish a safety committee which would in-

sure a safer working environment in the furniture factory,

by refusing to heed the warnings and complaints of

inmate-employees even after witnessing numerous and

repeated injuries occurring because of the dangerous, haz-

ardous and unsafe machines and the dangerous, hazardous

and unsafe working conditions.

D-5

9. As a direct and proximate result of being compelled

by defendants to work under these dangerous, hazardous

and unsafe conditions, which defendants who direct and

manage this million dollar operation knew or should have

known to be unsafe, plaintiffs received serious injuries,

to wit;

(a) Plaintiff GALLIGHER was assigned to operate a

hand-jointer, a machine designed to prepare boards for

fitting in a joint. It is not designed to process “junk-ends,”

i.e., small warped and knotty pieces of wood. Plaintiff GAL-

LIGHER was ordered to send “junk-ends” through the

jointer, even though defendants knew that another inmate

had previously been injured on two occasions while using

the jointer in this manner. On May 11, 1970, plaintiff GAL-

LIGHER was seriously injured while using the machine in

this manner. The injury resulted in the loss of the middle

finger of his left hand at the first joint. Thereafter, plain-

tiff GALLIGHER complained in writing to the officials of

the prison regarding the danger of this practice. Upon his

release from the hospital plaintiff GALLIGHER was again

assigned to the same job of sending junk-ends through the

same machine. On July 10, 1970, plaintiff GALLIGHER

was injured a second time, losing the entire fourth finger of

his left hand.

(b) Plaintiff BOHALL was assigned to operate an Oliver

brand power table saw, which was not equipped with a

safety device. Although plaintiff BOHALL protested the

lack of safety device to the authorities he was ordered to

operate the saw, notwithstanding its defects. On June 23,

1970, plaintiff BOHALL was seriously injured while oper-

ating this saw, when the saw kicked a board back into his

left hand and groin. Plaintiff BOHALL’s left thumb was

ripped open and the knuckle was displaced. He has not

D-6

regained the use of his left thumb. Upon release from the

prison hospital plaintiff BOHALL was again assigned to

the same machine. No safety device had been installed.

On July 27, 1970, plaintiff BOHALL was injured a second

time, resulting in removal of part of his right thumb. He

will never regain full use of his right thumb.

Drum Sander. It was not equipped with a safety device.

On May 19, 1970, while operating the sander plaintiff TAY-

LOR sustained an injury resulting in the amputation of the

middle and ring fingers of his left hand at the first joint.

(d) Plaintiff BELTRAN was assigned to operate a radial

saw, which was not equipped with any safety device. On

August 12, 1970, while operating the saw plaintiff BIEL-

TRAN received permanent disfiguration and handicap

when ligaments in the middle and ring finger of his right

hand were severed.

10. Plaintiffs further allege that defendants and each of

them owed a duty of care to each plaintiff. Defendants ex-

hibited a reckless disregard of the safety of plaintiffs and

thereby breached their duties to plaintiffs. Defendants had

actual knowledge of the dangers likely to ensue from a fail-

ure to furnish plaintiffs with safe and proper machines and

by maintaining these dangerous, hazardous and unsafe con-

ditions. That knowledge notwithstanding, defendants mali-

ciously, recklessly, knowingly and willfully compelled plain-

tiffs to subject themselves to severe injuries and loss of

limb by forcing plaintiffs to work on such dangerous, haz-

ardous and unsafe machines and under dangerous, hazard-

ous and unsafe working conditions; by ignoring the hazard-

ous working conditions which defendants knew existed in

the furniture factory; and by refusing to heed the warnings

of plaintiffs and of other inmates and of agents, servants

D-7

and employees of defendants regarding those conditions

and the numerous injuries caused thereby. Defendants’ ac-

tions caused the accidents hereinbefore alleged to have

occurred, with attendant injuries and damages, thereby

denying plaintiffs’ right to be free from cruel and unusual

punishment, denying them equal protection of the law, and

denying them due process of law.

11. In the alternative, defendants’ acts and omissions

as hereinbefore alleged constituted gross negligence, in that

defendant failed to furnish safe and fit equipment or ade-

quate supervision or assistance for the task, which they

ordered plaintiffs to perform. Defendants should reason-

ably have known such equipment, supervision and assist-

ance to be necessary to prevent the likelihood of severe

personal injury in the performance of such task. As a direct

and proximate result of such gross negligence, the accidents

hereinbefore alleged occurred, with attendant injuries and

damages. Accordingly, defendants are liable to plaintiffs

for their gross negligence under circumstances establishing

a duty not to be negligent in that plaintiffs were subjected

to cruel and unusual punishment, denied equal protection

of the law and denied due process of the law.

12. Plaintiffs allege that defendants’ intentional, affirma-

tive and malicious conduct in compelling plaintiffs to work

under these hazardous conditions constitutes an infliction of

cruel and unusual punishment, violative of the Eighth

Amendment of the United States Constitution as applied to

the States through the Fourteenth Amendment.

13. Plaintiffs have been subjected because of the above

recited acts to the deprivation under color of state law

of rights, privileges and immunities secured by the due

process clause of the Fourteenth Amendment, in that

refusal to work under these conditions would have resulted

D-8

in severe punishment being imposed upon them without

even the slightest imposition of any of the elements of

procedural due process.

14. Plaintiffs allege that by directing and managing the

operation of the furniture factory at San Quentin Prison in

a manner which gave rise to extremely dangerous, hazard-

ous and unsafe working conditions as seen from the overt

acts hereinbefore specified defendants willfully and inten-

tionally conspired together to deny and deprive plaintiffs

of rights guaranteed them under the Constitution of the

United States.

15. Plaintiffs and members of plaintiffs’ class on behalf

of whom this complaint is brought have no piain, adequate

or complete remedy at law to redress the wrongs alleged

herein, and this suit for declaratory judgment and injunc-

tion is their only means of securing adequate relief. Plain-

tiffs and members of the plaintiffs’ class are now suffering

and will continue to suffer irreparable injury froni defend-

ants’ policies and practices in the operation of the furniture

factory at San Quentin Prison as set forth herein.

WHEREFORE, plaintiffs respectfully pray that this

court enter judgment granting plaintiffs:

1. A declaratory judgment that defendants’ acts, poli-

cies, and practices complained of herein constitute a con-

spiracy to violate plaintiffs’ rights and the rights of the

members of plaintiffs’ class secured by the cruel and un-

usual punishment clause of the Kighth Amendment of the

United States Constitution as applied to the States by the

Fourteenth Amendment of the United States Constitution

and secured by the due process clause of the Fourteenth

Amendment of the United States Constitution.

2. A preliminary and permanent injunction enjoining

defendants from compelling plaintiffs and members of

D-9

plaintiffs’ class to work under conditions which expose them

to serious bodily injury and maiming and death and from

punishing plaintiffs for refusing to work under such con-

ditions.

3. Compensatory damages for plaintiff GALLIGHER

in the amount of FIFTY THOUSAND DOLLARS

($50,000.00) and punitive damages for plaintiff GAL-

LIGHER in the amount of ONE HUNDRED THOUSAND

DOLLARS ($100,000.00).

4. Compensatory damages for plaintiff BOHALL in the

amount of FIFTY THOUSAND DOLLARS ($50,000.00)

and punitive damages for plaintiff BOHALL in the

amount of ONE HUNDRED THOUSAND DOLLARS

($100,000.00).

5. Compensatory damages for plaintiff TAYLOR in the

amount of FIFTY THOUSAND DOLLARS ($50,000.00)

and punitive damages for plaintiff TAYLOR in the

amount of ONE HUNDRED THOUSAND DOLLARS

($100,000.00).

6. Compensatory damages for plaintiff BELTRAN in the

amount of FIFTY THOUSAND DOLLARS ($50,000.00)

and punitive damages for plaintiff BELTRAN in the

amount of ONE HUNDRED THOUSAND DOLLARS

($100,000.00).

7. Thecost of suit, and

8. Such other and further relief as this court may deem

just and proper.

Dated : September 1, 1972.

SALLE S. SOLADAY

Salle S. Soladay

Attorney for Plaintiffs

E-1

Appendix E

In the United States Court of Appeals

for the Ninth Circuit

No. 73-1044

Willie Brown,

Plaintiff-Appellant,

Raymond Procunier, et al.,

Defendant-Appellee.

{Filed February 26, 1974]

Appeal from the United States District Court

‘ for the Kas’ >rn District of California

MEMORANDUM

Before; KOELSCH, WRIGHT and SNEED,

Circuit Judges,

The appellant, a prisoner in California State Prison at

Folsom, sued his jailers under 42 U.S.C, §§ 1983, 1985 al-

leging that he lost three fingers while operating a defective

metal press after he had previously been injured and had

warned his supervisors that the press was defective, He

also alleged that prisoners generally were required to oper-

ate machinery known by prison officials to be unsafe, He

asked for monetary, declaratory, and injunctive relief for

himself and on behalf of the class of prioners similarly

situated,

The district court dismissed the action pursuant to Fed,

R, Civ, P, 12(b) (6) for failure to state a claim, The district

court erred by neither disclaiming reliance on affidavits sub-

K-2

mitted by the defendants nor treating the motion as one for

summary judgment under Rule 56 and affording the plain-

tiff an opportunity to submit controverting affidavits. Sve

Carter v, Stanton, 405 U.S, 669 (1972); Costen v. Pauline’s

Sportswear, 391 F.2d 81 (9th Cir. 1968); Brlich v. Glasner,

374 F.2d GSL (9th Cir, 1967), Nevertheless, we have re-

viewed the complaint without the affidavits, and conelude

that it, fails to state a claim and should be dismissed pur-

suant to Rule 12(b) (6),

In support of his § 1988 claim, plaintiff alleges what is

essentially a single instence of an intentional tort, Such an

allegation does not support a § 1988 eaim, Williams v, Field,

416 F.2d 483 (9th Cir, 1969); Kent v, Prasse, 885 F.2d 406

(3d Cir, 1967) (considering facts nearly identical to those

presented here),

Plaintiff also alleges that it is a widespread practice for

prisoners to be required to work on machinery known by

prison officials to be unsafe, We need not decide whether

negligent conduct, sufficiently widespread, could support a

claim under § 1988, It is sufficient to note that plaintiff has

alleged no facts which support his conclusion that such con-

duct is in fact widespread, Indeed, he alleges no facts aside

from his own case,

In support of his 5 LOSS elaim, plaintiff alleges merely

that defendants conspired against him to commit the aets

alleged in support of the § 1983 elaim, The allegation is

entirely conclusory, and plaintiff alleges no conerete facts

from which a conspiracy can be inferred,

The dismissal of the complaint by the distriet court is

affirmed, We note that, untike the plaintiff in Neat, Brown

is not without a remedy, He can sue his jailers under 6 844.6

of the California Government Code,

APEIRMEIED,

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.