Petition — Moffitt v. Loe

78-1260

Mic RODAK, JR, CLERK

Iu the Supreme Court of the United States

OCTOBER TERM, 1978

GLEN MOFFITT, UNITED STATES. MARSHAL, ET AL.,

PETITIONERS

Vv.

RICHARD C. LOE

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WADE H. McCrEE, JR.

Solicitor General

Department of Justice

Washington, D.C. 205380

7 ns ee TEE GE We ENT OEP ELT ae TE Rr Tres ae ee Noe Se

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Iu the Supreme Count of the United States

OCTOBER TERM, 1978

No.

GLEN MOFFITT, UNITED STATES MARSHAL, ET AL.,

PETITIONERS

Vv.

RICHARD C. LOE

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

The Solicitor General, on behalf of Glen Moffitt,

United States Marshal, and the other federal defen-

dants,* petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for

the Fourth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra,

la-19a) is reported at 582 F.2d 1291. The orders of

1 The other federal defendants include William D. Fox and

an unknown, unnamed United States Marshal.

(1)

re

2

the district court dismissing respondent’s complaints

(Apps. D-G, infra, 23a-30a) are not reported.

JURISDICTION

The judgment of the court of appeals (App. B,

infra, 20a) was entered on August 16, 1978. A time-

ly petition for rehearing was denied on November

15, 1978 (App. C, infra, 21a-22a). The jurisdiction

of this Court is invoked under 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether, in circumstances in which the Federal

Tort Claims Act provides an adequate federal rem-

edy, an alternative remedy should be found to be

implied under the Fifth Amendment.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1..The Fifth Amendment to the United States Con-

stitution provides in relevant part:

No person shall * * * be deprived of life, lib-

erty, or property, without due process of-law

2. 28 U.S.C. 1346(b) provides in relevant part:

[T] he district courts * * * shall have exclusive

jurisdiction of civil actions on claims against the

United States, for money damages, * * * for in-

jury or loss of property, or personal injury or

death caused by the negligent or wrongful act or

omission of any employee of the Government

8

while acting within the scope of his office or em-

ployment, under circumstances where the United

States, if a private person, would be liable to the

claimant in accordance with the law of the place

where the act or omission occurred.

. 28 U.S.C. 2674 provides: -

The United States shall be liable, respecting

the provisions of this title relating to tort claims,

in the same manner and to the same extent as a

private individual under like circumstances, but

shall not be liable for interest prior to judgment

or for punitive damages.

If, however, in any case wherein death was

caused, the law of the place where the act or

omission complained of occurred provides, or has

been construed to provide, for damages only pu-

nitive in nature, the United States shall be liable

for actual or compensatory damages, measured

by the pecuniary injuries resulting from such

death to the persons respectively, for whose bene-

fit the action was brought, in lieu thereof.

. 28 U.S.C. 2680(h) provides:

The provisions of this chapter and section 1346

(b) of this title shall not apply to—

oa * * * *

Any claim arising out of asault, battery, false

imprisonment, false arrest, malicious prosecu-

tion, abuse of process, libel, slander, misrepre-

sentation, deceit, or interference with contract

rights: Provided, That, with regard to acts or

omissions of investigative or law enforcement of-

ficers of the United States Government, the pro-

visions of this chapter and section 1346(b) of

4

this title shall apply to any claim arising, on or

after the date of the enactment of this proviso,

out of asault, battery, false imprisonment, false

arrest, abuse of process, or malicious prosecution.

For the purpose of this subsection, ‘investigative

or law enforcement officer” means any officer of

the United States who is empowered by law to

execute searches, to seize evidence, or to make ar-

rests for violations of Federal law.

STATEMENT

1. Respondent alleges that at approximately 10:00

a.m. on April 18, 1977, he injured his right arm while

playing basketball in the gym of the local jail in

Alexandria, Virginia.* Respondent was incarcerated

in the Alexandria jail while he awaited trial on fed-

eral bank robbery charges.’ After injuring his arm,

respondent was taken to the prison infirmary, given

some pain pills, and returned to his cell to await a

physician’s visit.

During the remainder of the day respondent re-

peatedly complained of pain and asked to be taken

to a hospital. The local authorities told respondent

that only the United States marshals could take him

* Respondent filed three separate complaints stemming from

the incidents described below. These actions, only two of

which involve federal defendants, were consolidated on appeal

(App. A, infra, 8a n.1). For the present procedural posture

a oe —- Pays accept as true the allegations of these com-

plaints, which are summarized by the court of a ‘

A, infra, 3a-6a). cei

* Respondent subsequently was convicted of bank robbery

and sentenced to 16 years’ imprisonment.

5

to a hospital and that they had been notified of his

condition. At approximately 9:00 p.m. the jail physi-

cian, Dr. Novak, finally examined respondent’s arm

and concluded that x-rays at the local hospital would

be necesary. At 8:30 a.m. the next day the marshals

took respondent to the hospital. After x-rays demon-

strated a fracture in respondent’s arm, Dr. Novak

placed the arm in a full cast. The federal marshals

then returned respondent to the Alexandria jail.

Some two and one-half weeks later, respondent

began to have considerable pain in the arm. After

several days of this pain, the federal marshals again

took respondent to see Dr. Novak at the hospital. The

doctor examined respondent’s arm, took new x-rays

(which showed that the fracture had not healed), and

replaced the full cast with a half cast that was to be

kept on respondent’s arm for two weeks.

Because respondent expressed an intent to raise an

insanity defense to his bank robbery charges, he was

transferred to the federal medical center at Spring-

field, Missouri, for psychiatric observation in May

1977. Two federal marshals drove respondent there

in a van. The trip required two days of 12 to 13

hours’ driving, during which respondent was hand-

cuffed to his waist despite his protests of pain. Fol-

lowing his arrival at the Springfield medical center,

respondent removed the half cast in accordance with

Dr. Novak’s instructions. Respondent did not seek

medical attention at that time. Dr. Novak examined

respondent’s arm again in June 1977 after his re-

turn from Missouri and found that the arm was not

6

causing serious pain and required no further treat-

ment. Respondent’s complaint alleges, however, that

his arm never properly healed, and that it still is

painful and does not have normal motion.

2. Respondent contended that the actions of var-

ious local jailers, Dr. Novak, and the three federal

defendants * had violated his Fifth and Eighth Amend-

ment rights against cruel and unusual punishment.

Respondent charged that defendants had “deliber-

ately remained indifferent to [respondent’s] medical

needs” at the time of his injury, during the trip to

Missouri, and after his return to Alexandria (App.

A, infra, 6a). Respondent sought equitable relief

and both compensatory and punitive damages.

The district court dismissed the complaint for fail-

ure to state a claim on which relief can be granted,

finding that respondent’s allegations did not charge

a violation of the Eighth Amendment as construed

in Estelle v. Gamble, 429 U.S. 97 (1976) (App. D,

mfra, 24a-25a).* In accordance with the district

court’s order respondent filed an amended complaint,

this time naming only Dr. Novak as a defendant. The

district court dismissed this complaint as well (App.

E, infra, 26a-27a). Finally, without requiring a re-

sponse from defendants, the district court dismissed

on the ground of res judicata two subsequent com-

plaints seeking relief under the Federal Tort Claims

* See note 1, supra.

* The district court apparently equated respondent’s rights

under the Fifth Amendment as a pre-trial detainee with those

- accorded prisoners under the Eighth Amendment.

7

Act and 42 U.S.C. 1983 (Apps. F & G, infra, 28a-

30a).°

The actions were consolidated on appeal. A divided

panel of the court of appeals first concluded that

a damages action for violation of his Fifth Amend-

ment rights was available to respondent under the ra-

tionale of this Court’s decision in Bivens v. Six Un-

known Named Agents, 403 U.S. 388 (1971). Re

jecting the Fifth Circuit’s contrary decision in Davis

v. Passman, 571 F.2d 793 (5th Cir. 1978), cert.

granted, No. 78-5072 (Oct. 30, 1978), the court stated

that it is appropriate to find an implied constitu-

tional right of action for damages because “Congress

has provided no other remedy for the alleged denial of

this fifth amendment right” (App. A, infra, 9a &

n.2). The court then reversed the district court in

part, holding that respondent’s allegations concern-

ing his lack of medical attention immediately follow-

ing his injury sufficiently stated a claim under the

Fifth Amendment.’ The court of appeals affirmed

‘The original and amended complaints were designated

Civ. Act. No. 77-554-AM. The Federal Tort Claims Act suit

was numbered Civ. Act. No. 77-580-AM, and the last com-

plaint was designated Civ. Act. No. 77-621-AM.

The court applied the “deliberate indifference” standard

established in Estelle v. Gamble, supra, 429 U.S. at 104, to

respondent’s Fifth Amendment claim.

Judge Hall dissented on both the sufficiency of the allega-

tions in light of Estelle v. Gamble, supra, and as to the pro-

priety of extending Bivens to claims arising under the Fifth

Amendment. With regard to the latter point, Judge Hall sub-

stantially relied on Davis v. Passman, supra.

a

4

2

8

the dismissal of respondent’s complaints concerning

the ride to Missouri and his medical care after his

return to Alexandria (App. A, infra, 14a-16a & n.3).°

REASONS FOR GRANTING THE PETITION

The question presented in this case is substantially

the same as the principal question raised in thé peti-

tion in Carlson v. Green, which is being filed concur-

rently with the instant petitiun.° Both cases involve

the application of this Court’s decision in Bivens v.

Six Unknown Named Agents, 403 U.S. 388 (1971).”

8 Although the three cases were consolidated on appeal, the

court of appeals appears to have entered judgment on the

first complaint only (App. B, infra, 20a). To the extent the

judgment applies to all of the consolidated cases, we take it

to vacate all of the district court’s orders (see also App. A,

infra, 3a n.1). Respondent’s purported FTCA action, see note

6, supra, was dismissed erroneously on the ground of res judi-

cata. On remand, however, we would contend that dismissal

was appropriate because (a) the United States, and not the

individual federal employees, is the only proper party to a

suit under the FTCA, and (b) respondent failed to file an

administrative claim concerning his alleged medical maltreat-

ment. See 28 U.S.C. 2674, 2675.

*° A copy of our petition in Carlson v. Green has been sent

to counsel for respondent.

Carlson V. Green involves a Bivens-type claim primarily

arising under the Eighth Amendment, because the injured

party in that case was a convicted federal prisoner at the

time of his death. In the instant case respondent, who was

a pretrial detainee at the time of the incidents complained of,

alleges a Bivens-type claim arising under the Due Process

Clause of the Fifth Amendment. We believe that the legal

_analysis applicable to both cases is essentially the same.

9

For the reasons stated in the petition in Carlson v.

Green, the Court may wish to defer consideration of

the petition pending its decision in Davis v. Passman,

cert. granted, No. 78-5072 (Oct. 30, 1978).

CONCLUSION

The Court should defer disposition of the petition

pending its decision in Carlson v. Green.

Respectfully submitted.

WADE H. McCREE, JR.

Solicitor General

FEBRUARY 1979

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 77-2039

RICHARD C. LOE, APPELLANT,

Vv.

Louis L. ARMISTEAD, Sheriff, City of Alexandria;

Mr. Fox, Captain, Alexandria City Jail; Lt.

CHERRY, Alexandria City Jail; Mr. ISABELLE, Of-

ficer, Alexandria City Jail; Mr. HoLLow, Officer,

Alexandria City Jail; Lt. CHariTy, Alexandria

City Jail; Mr. DREw, former Officer of Alexandria

City Jail; UNKNYWN NuRSES, Alexandria City

Jail; DR. NOVAK, Alexandria City Jail; Mr. Mor-

FITT, U. S. Marshal; Mr. Morrow, Employee of

Alexandria City Jail; WILLIAM D. Fox, U. S.

Marshal, APPELLEES.

No. 77-2134

RICHARD C. LOE, APPELLANT,

. v.

Mr. MOFFITT, United States Marshal, WILLIAM D.

Fox, United States Marshal, UNKNOWN UNITED

STATES MARSHALS, APPELLEES.

No. 77-2135

RICHARD C. LOE, APPELLANT,

v.

SHERIFF ARMISTEAD, Sheriff of the City of Alexan-

dria; Mr. Fox, Captain at the Alexandria City

Jail; Miss oR Mrs. DopSON, Nurse at the Alex-

andria City Jail; UNKNOWN NURSE at the Alex-

andria City Jail; Mr. CHEerry, Lieutenant at the

Alexandria City Jail; Mr. ISABELLE, Deputy at the

Alexandria City Jail; Mr. HoLLow, Deputy at the

Alexandria City Jail; Mr. CHarity, Lieutenant at

the Alexandria City Jail; and Mr. Drew, Former

Deputy at the Alexandria City Jail; APPELLEES.

Appeals from the United States District Court for the

Eastern District of Virginia, at Alexandria. Albert

V. Bryan, Jr., District Judge.

Argued May 3, 1978 Decided August 16, 1978

Before WINTER, BUTZNER and HALL, Circuit Judges.

WINTER, Circuit Judge:

The district court, without requiring an answer,

summarily dismissed Richard Loe’s pro se suit against

federal officers, state officers and state employees. The

suit alleged that, while Loe was in pretrial custody,

the defendants deliberately denied him adequate medi-

cal treatment for a broken arm and that, while trans-

porting him to Springfield, Missouri, his medical

needs arising from the broken arm were ignored by

federal marshals. The district court’s dismissal was

under Rule 12(b) (6), F. R. Civ. P., for failure to

state a claim upon which relief could be granted.’

The questions before us are whether Loe alleged a

cause of action against the state defendants, whether

he has a cause of action against the federal defend-

ants and, if so, whether he sufficiently alleged it.

We affirm in part, reverse in part and remand for

further proceedings.

a

We state the facts alleged in Loe’s pro se complaint

which we must accept as true for the purpose of de-

*Loe’s appeal from the order dismissing his original com-

plaint is No. 77-2089. After dismissal of the initial complaint,

Loe filed two amended complaints that essentially repeated

the allegations of thu first. Each was dismissed on grounds

of res judicata, and Loe appealed each (Nos. 77-1234 and 77-

2135). In oral argument, his appointed counsel conceded

that the amended complaints alleged no new matter, nor did

they raise any new issues, and that a decision with respect

to the initial complaint (No. 77-2039) would be dispositive

of all of the litigation. Accordingly, we confine our inquiry

to the original complaint.

4a

ciding this appeal since the complaint was dismissed

for failure to state a claim:

At a time when he was a federal prisoner awaiting

retrial on federal charges of bank robbery, Loe was

detained in the Ale..andria, Virginia local jail under

a leasing agreement. On April 18, 1977, at approxi-

mately 10:00 a.m., he injured his right arm when he

slipped and fell on the basketball court at the jail.

Loe was immediately taken to the infirmary. A nurse,

whose identity is unknown, examined his arm and

gave him pills for the pain. She said that she would

notify the jail doctor but cautioned Loe that if hos-

pital care were necessary, the United States marshals

would have to be summoned because only they were

authorized to transport federal prisoners, Loe was

returned to his cell.

By noon the condition of his arm had worsened and

it was obvious that the arm was broken since it was

swollen around the upper forearm and elbow and it

was locked in an extraordinary position. Throughout

the day, until approximately 6:00 p.m., Loe repeated-

ly requested that he be taken to the hospital. He was

repeatedly told that only the marshals could take him

to a hospital and that they had been notified of his

injury. Finally, at approximately 9:00 p.m. the jail

physician, Dr. Novak, examined the arm. Novak

concluded that x-rays would be necessary to determine

whether the arm was broken, and Novak told Loe

that the marshals would take him to the hospital in a

day or so. At 8:30 a.m. the next day, April 19,

‘ United States marshals took Loe to a hospital. X-rays

5a

showed a fracture of the right arm, so Dr. Novak,

who was present in the hospital, placed it in a full

cast. Loe was then returned to the Alexandria jail.

About two and one-half weeks later, Loe began to

experience considerable pain in the arm. After sev-

eral days of this pain, the marshals returned Loe to

the hospital. Dr. Novak examined him and took more

x-rays. These showed that the fracture had not

healed. Dr. Novak replaced the full cast with a half-

cast and said that this should remain on for two

weeks.

On May 13, 1977, Loe was transferred to the

Springfield, Missouri Medical Center for psychiatric

observation because he had expressed an intention to

defend the federal bank robbery charges against him

on grounds of mental incompetency. The trip, which

was made by van, required two days of 12 to 13

hours’ driving. He was accompanied by two United

States marshals. They insisted that he remain hand-

cuffed to his waist throughout the trip, notwithstand-

ing his protests that this restraint increased the pain

in his injured arm, which was still in a half-cast. Loe

was told that he would receive medical attention when

he reached his destination.

Loe alleged that while at Springfield he removed

the half-cast as per the instructions of Dr. Novak.

He does not ‘allege, however, that prior to then the

medical condition of his arm required special treat-

ment or that he sought medical care upon his arrival

in Springfield. He does claim that his arm has never

6a

properly healed, that it is painful and that normal

motion has not returned. However, Dr. Novak, who

examined him since he was returned to Alexandria, is

of a contrary view since the arm is not causing serious

pain.

Based upon these factual allegations, Loe charged

that the defendants, two known and one unknown

United States marshals, and various officials, guards,

nurses and the physician at the city jail, had violated

the eighth amendment in failing to provide prompt

and adequate medical care for the injury to his arm,

both prior to his leaving the Alexandria City Jail and

upon his return. A claim based on the eighth amend-

ment was also made against the marshals who ac-

companied him to Springfield for their alleged dis-

regard of his medical needs during the trip. Loe con-

cluded with the general allegation that the defendants

had “deliberately remained indifferent to the plain-

tiff’s medical needs.” His complaint sought damages,

both compensatory and punitive, and equitable re-

lief. In particular, it requested a declaration that

existing procedures for transporting federal prison-

ers in state facilities to hospitals were unconstitution-

al and an order directing the adoption of procedures

better suited to ensure adequate care.

II.

The claims against the officials and employees of

the Alexandria City Jail, including Dr. Novak, may,

of course, be brought under 42 U.S.C. § 1983. But

Ta

their conduct in most part is inextricably linked with

the alleged conduct of the federal marshals. Before

we consider whether the facts alleged state a cause of

action against the defendants, or any of them, we

must first decide whether an action may be main-

tained against the United States marshals named in

the complaint.

At the outset, we note that Loe was not a prisoner

detained under a judgment of conviction; rather, he ©

was a pretrial detainee. Under such circumstances,

the protections that apply to him are found in the

due process clause of the fifth amendment, since he

was a federal prisoner, rather than in the eighth

amendment’s prohibition against cruel and unusual

punishment. Duran v. Elrod, 542 F.2d 998, 999-1000

(7 Cir. 1976); Detainees of Brooklyn House of Det.

for Men v. Malcolm, 520 F.2d 392, 397-98 (2 Cir.

1975); Rhem v. Malcolm, 507 F.2d 333, 337-88 (2

Cir. 1974); Fitzke v. Shappell, 468 F.2d 1072 (6

Cir. 1972). Indeed, in Duran it was held that state

pretrial detainees were entitled to greater protection

under the due process clause of the fourteenth amend-

ment than that afforded them under the eighth amend-

ment; since “they are convicted of no crime for which

they may presently be punished, the state must justify

any conditions of their confinement solely on the basis

of ensuring their presence at trial.” 542 F.2d at 1000.

In the instant case, we need not decide the exact

seape of the protection that due process provides be-

cause we agree with Duran that due process is at

least as co-extensive as the guarantees of the eighth

8a

amendment; and we think that, under the eighth

amendment, Loe has alleged sufficient facts to render

his complaint immune to summary dismissal under

Rule 12(b) (6).

We return therefore to the issue of Loe’s rights,

if any, against the federal marshals. In Bivens v. Six

Unknown Named Agents of the Federal Bureau of

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

held that the victim of an unconstitutional search by

federal officers could recover damages from the of-

ficers in an action based directly on the fourth amend-

ment. We think that, on the authority of Bivens,

damages may be recovered from federal agents on a

fifth amendment violation.

Although Bivens does not speak directly to the

availability of damage remedies derived from other

constitutional rights, there would seem to be no prin-

cipled basis for limiting Bivens to the fourth amend-

ment. Bivens teaches that, at least where there are

no special factors counselling hesitation, federal courts

may grant traditional damage remedies, as well as

equitable relief, to persons whose constitutional rights

have been violated. 403 U.S. at 395-97. Bivens indi-

cated that such special factors might be present where

a remedy might implicate questions of federal fiscal

policy or where there was an “explicit congressional

declaration that persons injured by a federal officer’s

violation of the Fourth Amendment may not recover

money damages from the agents, but must instead be

remitted to another remedy, equally effective in the

view of Congress.” 403 U.S. at 397. Another factor

9a

might be whether the injury caused by the consti-

tutional deprivation is one for which monetary com-

pensation would normally be appropriate. 403 U.S.

at 408-09 (Harlan, J., concurring).

We conclude that no special factors counsel hesita-

tion in this case. Congress has provided no other

remedy for the alleged denial of this fifth amend-

ment right. The alleged denial does not raise a ques-

tion of federal fiscal policy, and “[h]istorically, dam-

ages have been regarded as the ordinary remedy for

an invasion of personal interests in liberty.” Bivens,

403 U.S. at 395. We therefore hold that a damage

action may be maintained against the marshals di-

rectly under the fifth amendment.

This result accords with the preponderance of

authority; other courts have readily extended Bivens

to create damage remedies against federal officials

for violations of constitutional violations other than

the fourth amendment.’? E.g. Dellums v. Powell, 566

2A notable exception is the Fifth Circuit’s recent decision

in Davis v. Passman, 571 F.2d 793 (5 Cir. 1978). In that

case, a woman who had been a member of a congressman’s

staff alleged she had been dismissed by him solely because of

her sex. Claiming that his actions violated the equal pro-

tection component of the fifth amendment’s due process clause,

she brought suit directly on that amendment. The court

ruled that Bivens did not authorize an action based directly

on the fifth amendment.

It can plausibly be argued that the relationship between

a congressman and his staff is a matter peculiarly within

the concerns of the legislative branch and that special factors

therefore counsel against implication of a Bivens-type rem-

edy. Indicative of this special relationship is 2 U.S.C. § 92,

10a

F.2d 167 (D.C. Cir. 1977) (first amendment) ; Paton

v. LaPrade, 524 F.2d 862, 869-70 (38 Cir. 1975)

(first amendment); Wounded Knee Legal Defense/

Offense Comm. v. FBI, 507 F.2d 1281, 1284 (8 Cir.

1974) (sixth amendment) ; Patmore v. Carlson, 392

F.S. 737, 739-40 (E.D. Ill. 1975) (eighth amend-

ment). More significantly, in States Marine Lines,

Inc. v. Shultz, 498 F.2d 1146 (4 Cir. 1974), we have

which makes members of a congressman’s personal staff

removable at any time with or without cause. Furthermore,

the amendments to Title VII that extended its coverage to

federal employees did not protect persons in non-competitive

federal positions such as congressional staff members. All

of these factors might justify a refusal to create a Bivens

remedy. Nevertheless, although the Passman court acknowl-

edged the force of this analysis, it placed its primary reli-

ance on a different argument. That argument was that ex-

tension of Bivens to fifth amendment due process claims would

so deluge the federal courts with new actions as to paralyze

them. 571 F.2d at 799-801. The court refused to institute

such a drastic measure without congressional guidance.

Justice Harlan’s concurring opinion in Bivens speaks co-

gently to this point.

Judicial resources, I am well aware, are increasingly

scarce these days. Nonetheless, when we automatically

close the courthouse door solely on this basis, we im-

plicitly express a value judgment on the comparative im-

portance of classes of legally protected interests. And

current limitations upon the effective functioning of the

courts arising from budgetary inadequacies should not be

permitted to stand in the way of the recognition of other-

wise sound constitutional principles.

408 U.S. at 411 (Harlan, J., concurring). In any event, we

think that Passman, if not distinguishable, is inconsistent

with our decision in States Marine Lines, Inc. v. Shultz, 498

. F.2d 1146, 1156-57 (4 Cir. 1974), infra in text, and we de-

cline to follow it.

lla

already held that customs officials who are alleged to

have deprived the owner of a cargo of its property

without due process of law, under the cloak of fed-

eral statutory authority vested in them, may be sued

in a Bivens-type action. Thus, finding that both fed-

eral and state officers may be liable in damages for

their violations of the fifth amendment, we turn to

the specific allegations in this case.

ITI.

It is elementary that a complaint should not be

dismissed under Rule 12(b)(6) for failure to state

a claim “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). The standard of

proof for dismissal under Rule 12(b) (6) is demand-

ing because the Federal Rules of Civil Procedure are

premised on the notion that disputes should be de-

cided on their facts, as developed through discovery

and at trial, rather than on the skill or ineptitude

with which the pleadings are drawn. See Bolding v.

Holshouser, 575 F.2d 461 (4 Cir. 1978); C. Wright,

Federal Courts § 68 (3d ed. 1976). And liberal con-

struction of pleadings is particularly appropriate

where, as here, there is a pro se complaint raising

civil rights issues. See Haines v. Kerner, 404 U.S.

519, 521 (1972); Gordon v. Leeke, 574 F.2d 1147,

1151 (4 Cir. 1978); Canty v. City of Richmond

Police Dept., 383 F.S. 1896, 1899-1400 (E.D. Va.

12a

1974), aff'd, 526 F.2d 587 (4 Cir. 1975), cert. denied,

423 U.S. 1062 (1976).

Of course, whether a complaint states a cognizable

claim depends ultimately on the applicable law. Anal-

ysis of the legal issues in this case is simplified by

the Supreme Court’s recent decision in Estelle v.

Gamble, 429 U.S. 97 (1976), with regard to the right

to medical treatment under the eighth amendment.

Speaking to a state prisoner’s claim that inadequate

medical treatment had caused him to suffer cruel and

unusual punishment, the Gamble Court stated:

[A]n inadvertent failure to provide adequate

medical care cannot be said to constitute “an

unnecessary and wanton infliction of pain” or to

be “repugnant to the conscience of mankind.”

Thus, 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 constitu-

tional violation merely because the victim is a

prisoner. In order to state a cognizable claim, a

prisoner must allege acts or omissions suffi-

ciently harmful to evidence deliberate indiffer-

ence to serious medical needs. It is only such

indifference that can offend “evolving standards

of decency” in violation of the Eighth Amend-

ment.

429 U.S. 105-06 (emphasis added). After articulat-

ing this standard of deliberate indifference, the Court

proceeded to examine the sufficiency of the allega-

. tions in Gamble’s complaint. It concluded that, even

13a.

under the liberal pleading standards of Haines, the

complaint could not be maintained against the de-

fendant doctors because Gamble’s exhaustive descrip-

tion in the complaint of his treatment established

that he had received extensive medical care and that

the doctors were not indifferent to his needs. 429

U.S. at 107-08 and n.16. The Court expressed no

opinion on whether a cause of action had been stated

against the other defendants.

IV.

We think that, measured by the deliberate indif-

ference standard of Gamble, Loe’s allegations regard-

ing the treatment of his broken arm state a claim.

A broken arm can be an excruciating injury, and few

people would freely choose to delay twenty-two hours

or even eleven hours in seeking a doctor’s care. In-

deed, an indigent could reasonably expect faster

treatment at a hospital emergency room. The un-

usual length of the delay provides a reasonable basis

for the inference that there was deliberate indiffer-

ence to Loe’s serious medical needs either on the part

of some or all of the state defendants, or, if the

marshals were notified as Loe alleged, in their fail-

ure to take Loe to a hospital where prompter medical

attention was available.

We cannot confidently proceed beyond this conjec-

ture, however, because the complaint, unlike the one

in Gamble, provides only a sketchy description of the

treatment and offers no explanation for the eleven

hour delay in examination by Dr. Novak, why he de-

l4a

layed the taking of an x-ray overnight, and why the

marshals did nothing until the morning after the

accident. On this record, which consists solely of

Loe’s pro se complaint, we do not know when the

doctor was notified. We do not know whether the

doctor, once notified, delayed seeing Loe or, if so, the

reasons for the delay. We do not know when the

marshals were notified or what they were told. We

do not know why the marshals did not take Loe to

the hospital until the next day. We express no view

on the merits of Loe’s case, and we have no knowl-

edge of the proof that Loe may adduce; but Loe’s

allegations, viewed in the light most favorable to him,

assert deliberate indifference on the part of the de-

fendants. Dismissal under Rule 12(b)(6) of his

complaint with regard to initial treatment of his

broken arm was not proper.*

* We conclude otherwise with regard to Loe’s allegations

of the subsequent treatment of his broken arm. His assertion

that he suffered pain two and one-half weeks after the injury

and that the fracture had not healed do not establish delib-

erate indifference or lack of due process. Similarly, his al-

legation that he has not achieved a satisfactory recovery sug-

gests nothing more than possible medical malpractice. It

does not assert a constitutional tort.

Lest the district court believe that we acquiesce in our dis-

senting brother’s interpretation of what we decide and be in

doubt as to the scope of the proceedings on remand, we dis-

avow that what we hold is that “when a prisoner has a

broken arm he can maintain a § 1983 action against any

responsible state or federal official who has failed to assure —

that he is examined by a physician within at least 11 hours

of his injury and has his arm x-rayed within 22 hours of his

injury.” A more correct statement of our holding is that the

15a

V.

We reach a different conclusion, however, on the

dismissal of the claim arising from the trip to Spring-

field. The allegations regarding that trip could not

conceivably support a finding of deliberate indiffer-

ence to a serious medical need, nor do we perceive

any other lack of due process. Two considerations

persuade us to this conclusion. First, there is no in-

dication that Loe’s arm was seriously injured at the

time of the trip. True, the arm was still in a cast,

but Loe alleges no medical restrictions on its use that

required special treatment during the trip. Absent a

medical necessity for special treatment, it is not un-

reasonable that one accused of bank robbery, espe-

cially one who had formerly pled guilty to the offense,

should be subjected to restraints on his physical

movement while he was being transported cross-

country in a motor vehicle. Second, Loe’s failure to

allege that he sought and was denied immediate

medical attention upon his arrival in Springfield

belies his contention that the marshals ignored urgent

medical needs. In short, the district court could

complaint of a prisoner under § 1983 against responsible state —

and federal officials is not subject to summary dismissal when

he alleges that, with deliberate indifference, the defendants

failed to have his painful and obviously broken arm examined

until 11 hours after his injury and failed to have it x-rayed

until 22 hours after his injury. As a consequence, plaintiff

will have the opportunity to present his evidence of de

liberate indifference and defendants will be required to plead

and present evidence explaining the delays in providing medi-

cal attention.

16a

properly conclude that Loe could prove no facts that

would enable him to prevail on this claim and sum-

mary dismissal under Rule 12(b) (6) was proper.

To summarize, we reverse the judgment of dismis-

sal with respect to Loe’s alleged cause of action with

regard to the initial treatment of his broken arm and

remand this part of the case for further proceedings.

We affirm the dismissal of Loe’s complaint with

regard to all other matters alleged.

AFFIRMED IN PART;

REVERSED IN PART

AND REMANDED.

HALL, Circuit Judge, dissenting:

I must, respectfully, dissent for two reasons:

First, the majority today holds that when a pris-

oner has a broken arm he can maintain a § 1983

action against any responsible state or federal official

who has failed to assure that he is examined by a

physician within at least eleven hours of his injury

and has his arm x-rayed within twenty-two hours of

his injury. This holding rests upon facts admitted in

the plaintiff’s various complaints that he was injured

by a known cause, was suffering from a known

trauma to a non-vital body part, was immediately

taken to an infirmary provided at the jail facility,

was seen there by a nurse who gave him a pain pill,

was several hours later seen by that same nurse, was

able to complain to a second nurse, was examined

17a

eleven hours after the injury by a physician who did

not prescribe a more potent pain reliever than that

provided to plaintiff earlier, was taken to a hospital

at eight-thirty the next morning by federal marshals

for x-rays, had his arm put in a full shoulder-to-

wrist cast at the hospital by the same physician who

saw him at the jail at nine o’clock the night before,

and had his arm placed in a patient-removable half-

cast two weeks thereafter, which the prisoner chose

to remove himself several weeks later—an incredible

set of facts upon which to find the district court was

clearly erroneous in finding no claim to have been

stated for “deliberate indifference to serious medical

needs.” Estelle v. Gamble, 429 U.S. 97 (1976).

The plaintiff admits that upon breaking his arm his

immediate medical need was pain and that it was

treated by medical personnel immediately, and he

further admits in his complaint that his injury was

not serious and was attended to by a physician work-

ing in the evening and early morning hours with

the reasonable and, apparently conscientious, coop-

eration of all local and federal officials involved. I

can find no possible basis for a finding of alleged

deliberate indifference to a serious medical need and,

therefore, I must dissent from the majority’s finding

that the district court was clearly erroneous in dis-

missing the plaintiff’s complaint.

Second, the majority would apparently create a

general federal remedy in this circuit under the

Fifth Amendment for any alleged violation of a due

18a

process right on the bare allegation that federal

marshals may or may not have been called to take

plaintiff to the hospital before plaintiff was seen by

a physician. The majority disregards the well-

reasoned opinion of the Fifth Circuit in Davis v.

Passman, 571 F.2d 798 (5th Cir. 1978), wherein

the court, sitting en banc, refused to indiscriminately

recognize such a cause of action against federal

officials without consideration of the nature of the

viclation, the federal right to be protected and the

need for a special federal remedy for violation of

such right. The basis of that opinion was that

extension of the federal remedy in Bivens v. Six

Unknown Named Agents of the Federal Bureau of

Narcotics, 408 U.S. 888 (1971), would so deluge

federal courts with new actions so as to paralyze

them. The majority’s rush to establish such a cause

of action against federal officials on the speculative

facts of this case clearly ignores the reasoning in

Davis v. Passman and serves to encourage the liti-

gious prisoner who can find federal officials to sue

for alleged violations of any conceivable due process

rights of the Fifth Amendment.’ I think it is in-

cumbent upon the federal judiciary to prevent claims,

particularly unmeritorious ones, from over-burdening

our judicial resources to the exclusion of speedy deci-

sion of all claims, most particularly meritorious ones.

It should be noted that government counsel for the fed-

eral defendants informed the court in oral argument that the

three cases here appealed constituted the tenth, eleventh and

_ twelfth actions filed in the district court below and that the

defendant has taken seven appeals to this court.

19a

Therefore, because I think the majority analysis

of the facts alleged in plaintiff’s complaints is wrong

and the implied indiscriminate creation of a general

federal remedy for any violation of a Fifth Amend-

ment right is unnecessary in this case and improvi-

dent in any case, I must strongly dissent.

20a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 77-2039

RICHARD C. LOE, APPELLANT,

V8

Louis L. ARMISTEAD, Sheriff, City of Alexandria; MR.

Fox, Captain, Alexandria City Jail; LT. CHERRY,

Alexandria City Jail; Mr. ISABELLE, Officer, Alex-

andria City Jail; Mr. HoLLow, Officer, Alexandria

City Jail; LT. CHarITy, Alexandria City Jail; Mr.

DREW, former Officer of Alexandria City Jail; Un-

known Nurses, Alexandria City Jail; Dr. Novok,

Alexandria City Jail; Mr. MorriTt, U.S. Marshal;

Mr. Morrow, Employee of Alexandria City Jail;

WILLIAM D. Fox, U.S. Marshal, APPELLEES.

Appeal from the United States District Court

for the District of Virginia

JUDGMENT

THIS CAUSE came on to be heard on the record

from the United States District Court for the Eastern

District of Virginia, and was argued by counsel.

ON CONSIDERATION WHEREOF,, It is now here

ordered and adjudged by this Court that the judgment

of the said District Court appealed from, in this

cause, be, and the same is hereby, affirmed in part, re-

versed in part and the case remanded to the United

States District Court for the Eastern District of Vir-

ginia, at Alexandria, for further proceedings con-

sistent with the opinion of this Court filed herewith.

[Filed, Aug. 16, 1978, William K. Slate, II Clerk]

/s/ William K. Slate, II

Clerk

21a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 77-2089

[Filed, Nov. 15, 1978, William K. Slate, II, Clerk]

RICHARD C. LOE, APPELLANT,

Versus

Louis L. ARMISTEAD, ETC., ET AL, APPELLEES.

No. 77-2134

RICHARD C. LOE, APPELLANT,

Versus

Mr. MOFFITT, ETC., ET AL, APPELLEES.

No. 77-2135

RICHARD C. LOE, APPELLANT,

versus

SHERIFF ARMISTEAD, ETC., ET AL., APPELLEES.

ORDER

The appellees’ petition for rehearing and sugges-

tion for rehearing en banc has been submitted to the

22a

court. A request for a poll on the suggestion for

rehearing en banc was made, but the poll failed for

lack of majority support.

IT IS ORDERED that the petition for rehearing

is denied.

Entered at the direction of Judge Winter with the

concurrence of Judge Butzner. Judge Hall dissents.

/s/ William K. Slate, II

For the Court,

Clerk

23a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

Civil Action No. 77-554-AM

[Filed, July 18, 1977, J.W., Clerk,

U.S. District Court, Alexandria, Virginia]

RICHARD C. LOE, PETITIONER,

Vv.

Louis L. ARMISTEAD, SHERIFF, CITY OF ALEXANDRIA,

ET AL., RESPONDENTS.

ORDER

Let the complaint tendered by Richard C. Loe be

filed in forma pauperis.

Petitioner has tendered an action for damages un-

der 42 U.S.C. § 1988 alleging a denial of his con-

stitutional right to medical treatment by the de-

fendants in their failure to provide petitioner-with

prompt and adequate medical treatment for a broken

arm. He also seeks declaratory relief under 28 U.S.C.

§§ 2201 and 2202.

Accepting the petitioner’s allegations as true, they

make out the following facts:

In the morning of April 18, 1977, petitioner slipped

and fell while imprisoned in Alexandria. Petitioner

complained of pain in his right arm to jail officials

24a

and informed them that he thought the arm was

broken. At 9:00 p.m. the same day, petitioner was

examined by the jail physician, Dr. Novak. At 8:30

a.m., on April 19, 1977, petitioner was transported

to Jefferson Memorial Hospital in Alexandria, where

Dr. Novak took x-rays. The x-rays were positive and

Dr. Novak placed petitioner’s arm in a cast from

shoulder to wrist.

Two and one half weeks later, petitioner com-

plained of pain in his broken arm and was returned

to Jefferson Memorial Hospital where Dr. Novak

again took x-rays and examined the arm. This time

Dr. Novak placed the arm in a half cast.

Finally, on June 24, 1977, the cast having been

removed by petitioner, Dr. Novak again examined the

arm and pronounced it healed.

The Supreme Court has recently established stand-

ards by which to measure medical treatment against

the dictates of the Eighth Amendment. Estelle v.

Gamble, 45 U.S.L.W. 4023 (November 30, 1976).

Under that decision, only “deliberate indifference to

serious medical needs of prisoners” violates the Eighth

Amendment. By his own pleading, petitioner states

that he was treated by a doctor three times in two

months, had two sets of x-rays taken and had two

casts placed on his arm. This treatment falls far

short of deliberate indifference. At most petitioner

presents a negligence claim against Dr. Novak for

the improper treatment of his arm. Negligence is not

ordinarily sufficient to state a cause of action, even if

25a

the negligent conduct results in personal injury. See

McCray v. Maryland, 456 F.2d 1, 5-6 (4th Cir. 1972).

It is ORDERED that the petition be dismissed pur-

suant to F. R. Civ. P. 12(b) (6) for failure to state

a claim cognizable under 42 U.S.C. § 1983. The peti-

tioner is advised that should he desire to amend his

complaint to include facts sufficient to make out a

cognizable claim, he must do so within fifteen (15)

days, at which time this order becomes final. Should

petitioner desire to appeal, written notice of appeal

must be received by the Clerk of this Court within

thirty (30) days from the date of this Order.

The Clerk is directed to send a copy of this Order

to the petitioner and to the defendant.

/s/ G. V.B. J. “i

United States District Judge

Alexandria, Virginia

July 13th, 1977 ©

26a

APPENDIX E

IN THE

UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

Civil Action No. 77-554-AM

RICHARD C. LOE, PLAINTIFF,

v.

LouIs ARMISTEAD, Sheriff, City of

Alexandria, ET AL., DEFENDANTS.

ORDER

Pursuant to this Court’s order of July 13, 1977,

Richard C. Loe has filed an amended complaint in the

above action. In the amended complaint he names Dr.

Novak as the only defendant. He alleges no new facts

which, construed liberally, would rise to the level of

deliberate indifference to his medical needs. Estelle

v. Gamble, 45 U.S.L.W. 4023 (November 30, 1976).

At best he states a claim for negligence, which does

not state a cause of action. McCray v. Maryland, 456

F.2d 1, 5-6 (4th Cir. 1972). The amended complaint

must be dismissed for failure to state a claim. It is

so ordered.

27a

Should plaintiff desire to appeal written notice of

appeal must be received by the Clerk of this Court

within thirty (30) days of the date of this Order.

/3/ G. V. B. J.

United States District Judge

Alexandria, Virginia

July 27th, 1977

28a

APPENDIX F

IN THE

UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

Civil Action No. 77-580-A-7

RICHARD C. LOE, PLAINTIFF,

Vv.

Mr. MOFFITT, ET AL., DEFENDANTS.

ORDER

Let. the complaints tendered by Richard C. Loe be

filed in forma pauperis.

Richard Loe has filed two complaints under the

Federal Tort Claims Act which seek damages for

alleged inadequate medical treatment for a broken

arm. The complaint alleges the same facts and claims

raised in Civil Action No. 77-554-AM which was dis-

missed by order of this Court on July 13, 1977. Mr.

Loe has simply substituted bases of jurisdiction

(from 42 U.S.C. § 1983 to 28 U.S.C. § 1846(b) and

2671 et seq.) and switched the names of defendants.

The claim arises out of the facts and transaction com-

plained of in Civil Action No. 77-554-AM and is

barred by the principles of res judicata. The com-

plaints will be dismissed. And it is so ordered.

/s/ G. V. B. J.

United States District Judge

Alexandria, Virginia

July 27th, 1977

29a

APPENDIX G

IN THE

UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

Civil Action No. 77-621-AM

RICHARD C. LOE, PETITIONER

Vv.

SHERIFF ARMISTEAD, Sheriff of the

City of Alexandria, ET AL., RESPONDENT

ORDER

Let the complaint tendered by Richard Loe be filed

in forma pauperis.

Richard Loe has tendered a complaint seeking dam-

ages under 42 U. S. C. sec. 1983 and declaratory

relief. Jurisdiction is based upon 28 U. S .C. sec.

1343 and 28 U. S. C. sec. 2201, 2202. The injury for

which he seeks redress is the alleged lack of medical

treatment given his after his arm was broken. The

claims Loe raises were raised before in Civil Action

No. 77-554-AM, which was dismissed by order of this

court on July 13, 1977. They are thus barred from

relitigation by the principals of res judicata. The

complaint will be dismissed.

30a

Should the plaintiff wish to appeal, written notice

must be received by the Clerk within thirty (30)

days of this order.

/s/ G. V. B. J.

United States District Judge

Alexandria, Virginia

August 12, 1977

W ou. S. GOVERNMENT PRINTING OFFICE; 1979 286566 320 '