Amicus Brief — Parratt v. Taylor

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Supreme Court. U. §

No. 79-1734 FILED!

IN THE EG 4 1980)

Supreme Court of the Guited States” -

OCTOBER TERM, 1980

ROBERT PARRATT and

FRANCIS LUGENBILL,

Petitioners,

vs.

BERT TAYLOR, JR.,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS, EIGHTH CIRCUIT

BRIEF OF AMERICANS FOR EFFECTIVE LAW

ENFORCEMENT, INC. AND THE STATE OF INDIANA,

AS AMICI CURIAE IN SUPPORT OF THE PETITIONERS

FrepD E. INBAU, Esq.

Wayne W. SCHMIDT, Esq.

FRANK G. CARRINGTON, JR., Esq.

JAMES P. MANAK, Esq.

Americans for Effective Law

Enforcement, Inc.,

Suite 207,

501 Grandview Drive,

So. San Francisco, Cal. 94080

Counsel for Amici Curiae

STATE OF INDIANA

by the HON. THEODORE L. SENDAK,

Attorney General of Indiana

Of Counsel

TABLE OF CONTENTS

PAGE

Ie Ae No caaticts Nnsdaccateivan’ jaxvesesaavenntouss i

ES SS RES ERs NEE DES POOR RETA 2

Factual and Procedural Setting of This Case........... 4

ce EEE NORRIE ol AONE Bl AR Re Reni 6

RCS RRR CSB ne ele merece 6

I]. Simple negligence is not a claim of con-

stitutional significance worthy of federal

intervention under 42 U.S.C., § 1983,

ee MEME PRE idan ks. Suiits netoarioubeck ons 6

Ill. Remedies for violation of duties of care

arising out of tort law should be brought

in state courts, rather than in the federal

court through 42 U.S.C. § 1983.00.00. 9

IV. Where there is no showing that the

named defendants were directly in-

volved in the alleged negligent activities,

and procedures established by the prison

for the receipt of mailed materials were

not followed, the plaintiff has failed to

SUR OUIIE CII sis ivcckistiverscsisindseaiccs 1]

PNUD cassettes ceabictsscscabhasbapsadtacidbacbeniontniustbcotnsea 12

TABLE OF AUTHORITIES

Cases

Baker v. McCollan, 443 U.S. 137, 99 S. Ct. 2689.

BE Bee Fes Fh yf: ) Nr Rn epee aS 6. 10

Beard v. Mitchell, 604 F. 2d 485 (7th Cir. 1979) ..... 7

Bogard v. Cook, 586 F. 2d 399 ( Sth Cir. 1978) ....... 7

Bonner v. Coughlin, 545 F. 2d 565 (7th Cir. 1976). 7

Butler v. Jenkins, 450 F. Supp. 574 (E.D. Tenn..,

RARE Re amon ree 11

Cotton v. Hutto, 577 F. 2d 453 ( 8th Cir. 1978) ....... 11

Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50

aes UP OU TMD ss cis tabion ciate condecradsvasatanineincenes 8

Howell v. Cataldi, 464 F. 2d 272 (3rd Cir. 1972)... 7

Jones v. Diamond, 594 F. 2d 997 ( Sth Cir. 1979)... 7

Jones v. McElroy, 429 F. Supp. 848 (E.D. Pa.

Ef EN ATOR RTT EN ACTH TERI lp AL ALN AU 7

Leite v. City of Providence, 463 F. Supp. 585

Sec POTTED Latsticdes neckmeiincdssticdess\ vdtodcacasiawneaane 7,11

McNeese v. Board of Education, 373 U.S. 668, 83

S.Ct. 1433, 10 L.Ed. 2d 622 (1963) occ 9

Meachum vy. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49

Fast ain OEE BONED van hacls occnciensteauassckapneorheupetsdone 1]

Naughton v. Bevilacqua, 458 F. Supp. 610 (D.R.I.

OF FW Picksticestctinscancradannssaaernateopiekaeiieice ak uen mus 7

Owens v. Haas, 456 F. Supp. 1009 (E.D.N.Y.

PF PIE Visacicdeinopasncconsatuhpisic-ctagesticcsdaistad ed Oe eae 1]

Page v. Sharpe, 487 F. 2d 567 ( Ist Cir. 1973)......... 7

Parker v. McKeithen, 488 F. 2d 553 (5th Cir.)

cert. den., 419 U.S. 838, 95 S. Ct. 67, 42 L.Ed.2d

kG it, & NACE NER E MDD AV, SOIR: RAOOhaan Wire Es ttl Hie oUF) 7

Parrilla v. Cuyler, 447 F. Supp. 363 (E.D.Pa.

BF FOF Pixicsakiovcserstettesinintaidasnonleae ee ae 1]

Procunier v. Navarette, 434 U.S. 555, 98 S.Ct. 855.

35 £0 Oe 2 ET i ee a ee 6

Rizzo v. Goode, 423 U.S. 362, 96S. Ct. 598. 46 L.

SE. Se DE ORE B iitssclebdestbe eke a 1]

Ronnei v. Butler, 597 F. 2d 564 ( 8th Cir. 1979)...... 7

Russell v. Bodner, 489 F. 2d 280 ( 3rd Cir. 1973)... 8

Schweiker v. Gordon, 442 F. Supp. 1134 (E.D. Pa.

DFE.T Pusiipiedisntanrcctnicévessinceehmciaann ticki 7

Stefanelli v. Minard, 342 U.S. 117, 72 S.Ct. 118. %6

SnRsie. SOP AD OOE P sciQhscloasetndinicncundiininan seen 9

Thornton v. Redman, 435 F. Supp. 876 (D.Del.

PEED iss sintsssbertdiabincsdabamebensgreeeeaeene ae 1]

Tuggle v. Evans, 457 F. Supp. 1015 (D.Colo.

EF FW Piciics.cccursddnamicitaniecs oe eee 9

Williams v. Vincent, 508 F. 2d 541 (2nd Cir.

BF FA, ) sc cnncadhicicssecenaseersoseietelseecdmeaeaskGee animes 7

Statutes

No. 79-1734

IN THE

Supreme Court of the Anited States

OCTOBER TeERM, 1980

ROBERT PARRATT and

FRANCIS LUGENBILL,

Petitioners,

VS.

BERT TAYLOR, JR.,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS, EIGHTH CIRCUIT

BRIEF OF AMERICANS FOR EFFECTIVE LAW

ENFORCEMENT, INC. AND THE STATE OF INDIANA,

AS AMICI CURIAE IN SUPPORT OF THE PETITIONERS

This brief is filed pursuant to Rule 36 of the Supreme

Court Rules. Consent to file has been granted by the Hon. Paul

L. Douglas, Attorney General of Nebraska, counsel for Peti-

tioners, and by Kevin Colleran, Esq., counsel for the Respond-

ent. Letters of consent of both parties have been filed with the

Clerk of this Court. State governments are not required to

obtain consent to file as amicus curiae.

INTEREST OF THE AMICI

Americans for Effective Law Enforcement, Inc. (AELE),

as a citizens group, is interested in establishing a body of law

making the police and correctional effort more effective, in a -

constitutional manner.

AELE is a national, not-for-profit citizens organization

incorporated under the laws of the State of Illinois. As stated in

its by-laws, its purposes are:

1. To explore and consider the needs and require-

ments for the effective enforcement of the criminal law.

2. To inform the public of these needs and require-

ments, to the end that the courts will administer justice

based upon a due concern for the general welfare and

security of law-abiding citizens.

3. To assist the police, the prosecution, and the courts

in promoting a more effective and fairer administration of

the criminal laws.

In furtherance of these objectives, AELE seeks to repre-

sent, nationwide, the concern of the average citizen with the

problems of crime, police effectiveness to deal with crime, and

the effectiveness of correctional administrators in working with

prisoners. It also provides legal research assistance in support

of responsible law enforcement activities, principally through

the amicus curiae process in the courts.

The Attorney General of the State of Indiana is an elected

and constitutional official and is the chief legal officer of his

State. He has specific responsibility for defending civil rights

suits brought against State correctional officials.

Our specific interest in this case arises from the importance

of effective correctional administration and the adverse impact

that an unnecessarily broad interpretation of 42 U.S.C. § 1983

would have on the effectiveness of the states’ prison systems. In

addition, we are vitally concerned with the potential of abuse in

an increased access to the federal courts, when remedies for the

redress of prisoners’ grievances are readily available in the state

courts. It is our belief that a failure of the Court to reverse the

ruling of the Eighth Circuit Court of Appeals will burden prison

administrators and other personnel in their vital encounters and

relationships with prison inmates. Such a decision is likely to

invite prisoners’ suits in the federal district courts for the most

frivolous and often unfounded grievances. This would cause

enormous expenses to the states for legal defenses and put an

additional strain on the relations between prisoners and prison

employers, rendering the latter less effective in their key roles in

the correctional system. Furthermore, it is our concern that the

federal courts are ill-equipped to handle the anticipated influx

of cases, resulting in the possibility of inattention given to

meritorious claims for which these courts have been designed.

FACTUAL AND PROCEDURAL SETTING OF THIS CASE

The facts of this case were stipulated in the United States

District Court for the District of Nebraska on January 18, 1978,

and are as follows:

1. That Robert Rybolt was the Grievance Supervisor

at the Reformatory at the time of the incident alleged

herein.

2. That plaintiff ordered certain hobby materials from

supply houses in California and that for purposes of

payment thereof two drafts or checks were issued upon

plaintiff's inmate account and accompanied order.

3. That the packages described herein arrived at the

Nebraska Penal Complex on or about April 15, 1975, and

that said package receipts were signed on or about April

21, 1975, by Mr. Paul Geros and Mr. Chuck Kostos who

were assigned to the Prison Hobby Center. At the time the

packages arrived at the Institution Mr. Taylor was in the

Adjustment Center at the Nebraska Penal Complex.

4. That Mr. Taylor was in Deadlock in the Reforma-

tory at the time he contacted Mr. Rybolt regarding said

packages and that Mr. Taylor was not permitted “hobby”

at that time and the packages had never been in Mr.

Taylor’s possession.

5. That Mr. Robert Rybolt was contacted by Mr.

Taylor on numerous occasions and that Mr. Rybolt person-

ally searched for said packages after contacting Mr.

Francis Lugenbill regarding said packages and that

subsequent searches did not turn up said packages.

6. That neither the packages nor the contents of same

have ever been turned up.

7. Normal procedure when a package is received at

the Institution addressed to an inmate at the Central Mail

Room is either that the package is delivered to the inmate’s

cell where he signs the package receipt or the inmate is

noticed to pick up the package at the hobby center and to

personally receipt therefor.

8. Deviations from this practice are made only in

exceptional circumstances; and there is no evidence or

record of there having been any exceptional circumstances

with respect to the packages in question.

9. That it is not Institutional policy for one inmate to

sign for another inmate’s package because the package

receipt is the record of the inmate’s receiving the package.

10. There is no record of Mr. Taylor ever receiving

said package.

11. Over a considerable period of time plaintiff made

numerous inquiries and requested assistance in tracing his

packages. None of the efforts of the persons so contacted

were productive of any further information regarding the

disposition of said packages.

12. Other than the receipts mentioned in paragraph 3

there is no record of the disposition of the packages or the

whereabouts of same.

13. That there is no record indicating personal receipt

of the packages by Mr. Taylor.

Upon consideration of these facts, the District Court

entered summary judgment for plaintiff against the named

defendants in the amount of $23.50.

On appeal the judgment of the District Court was summa-

rily affirmed by the United States Court of Appeals for the

Fighth Circuit. The defendants’ motion for rehearing was

denied. Petition for a writ of certiorari was filed by Petitioners

to the United States Court of Appeals for the Eighth Circuit,

which petition was granted.

ARGUMENT

INTRODUCTION

The argument presented by amici focuses on three selected

issues raised by this case, providing an analysis of relevant case

law and a discussion of policy questions implicated by the

issues. Amici wish to state that we are in complete accord with

the arguments presented by the Petitioners in this case and wish

to associate ourselves with and express our complete support for

such arguments and points not discussed herein.

Il.

SIMPLE NEGLIGENCE IS NOT A CLAIM OF CON-

STITUTIONAL SIGNIFICANCE WORTHY OF FEDER-

AL INTERVENTION UNDER 42 U.S.C. § 1983, CIVIL

RIGHTS ACT

In Procunier v. Navarette, 434 U.S. 555, 98 S. Ct. 855, 55

L. Ed. 2d 24 (1978), this Court specifically left open the

question of whether negligent conduct can ever constitute a

cause of action under 42 U.S.C. § 1983. Shortly thereafter in

Baker v. McCollan, 443 U.S. 137 at 139, 99S. Ct. 2689 at 2692,

61 L. Ed. 2d 433, at 439 (1978), this Court stated that the

question of whether negligence could be a basis for a § 1983

claim, “‘may well not be susceptible of a uniform answer across

the entire spectrum of conceivable constitutional violations

which might be the subject of a § 1983 action.” The circum-

stances of the instant case, however, clearly illustrate the need

for a determination of whether a § 1983 claim may be based on

simple negligence. The facts of the instant case serve to give

clear notice of the types of suits that will be continually brought

to the federal courts if this Court rules that simple negligence is

an appropriate basis for § 1983 relief.

The lower federal courts have not been consistent in

addressing this issue. While they have not defined a standard

of negligence which would give § 1983 jurisdiction, the great

majority of cases that have addressed this issue on facts similar

to the instant case have rejected claims based on simple or mere

negligence. The court in Leite v. City of Providence, 463 F.

Supp. 585 at 589 (D.R.I. 1978), stated: “‘Despite the statute’s

potential sweep, numerous courts have limited section 1983 so

as not to reach instances of isolated negligent misconduct.” See,

e.g., Bonner v. Coughlin, 545 F. 2d 565 (7th Cir. 1976) (en

banc) (simple negligence not actionable); Beard v. Mitchell,

604 F. 2d 485 (7th Cir. 1979) (same); Parker v. McKeithen,

488 F. 2d 553 (Sth Cir.) cert. den., 419 U.S. 838, 95 S. Ct. 67,

42 L. Ed 2d 65 (1974) (isolated incident of negligence not

sufficient but gross negligence is actionable); Williams v.

Vincent, 508 F. 2d 541 (2nd Cir. 1974) (negligence not

actionable ); Howell v. Cataldi, 464 F. 2d 272 (3rd Cir. 1972)

(same); Naughton v. Bevilacqua, 458 F. Supp. 610 (D.R.I.

1978); Page v. Sharpe, 487 F. 2d 567 (1st Cir. 1973) (mere

negligence, in absence of conduct which shocks the conscience,

will not suffice); Ronnei v. Butler, 597 F. 2d 564 (8th Cir.

1979) (negligence or inadvertent conduct not sufficient ); Jones

v. McElroy, 429 F. Supp. 848 (E.D. Pa. 1977) (negligence not

actionable); Bogard v. Cook, 586 F. 2d 399 (Sth Cir. 1978)

(simple negligence not enough to pierce official immunity);

Jones v. Diamond, 594 F. 2d 997 (Sth Cir. 1979) (same); and

Schweiker v. Gordon, 442 F. Supp. 1134 (E.D. Pa. 1977)

(same).

There can be no question that § 1983 serves a valuable

purpose in providing a remedy to those who have been

deprived of constitutional rights, privileges, and immunities by

abuses of officials acting in their official capacities. But at the

same time, the Civil Rights Act is not an appropriate vehicle for

the solution of every grievance suffered by prison inmates. In

the instant case, the alleged negligence can be no more than an

isolated instance of a breach of an established procedure for the

receipt of mail. The proper procedure appears to have been

breached, in part at least, because the plaintiff was in dis-

ciplinary segregation, and thus had placed himself in a position

where he could not personally take possession of the hobby

materials. If the warden and hobby manager can be held liable

in a § 1983 action under these circumstances, one can only

assume that every prison official wil! be vicariously held to the

highest standard of care, even though they had no personal

involvement in the facts, and the specific circumstances of the

misconduct were beyond their control. Such a rule would

subject prison officials to a virtual floodtide of unfounded suits.

In addition, if the Respondent were to prevail in this case,

there would be two standards upon which a prisoner could

bring a § 1983 suit; one standard for property, that being mere

negligence, and another for a prisoner’s medical care, that

being the standard of deliberate indifference set forth by this

Court in Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L. Ed

2d 251 (1976). This dichotomous result would require prison

Officials to exercise a higher standard of care in insuring the

integrity of a prisoner’s personal property than in the protection

of a prisoner’s health or life—a novel and totally unsatisfactory

outcome.

Beyond the legal significance of these points, amici respect-

fully request that the Court consider the practical impact of

holding mere negligence to be a basis for § 1983 suits in terms

of the prospective volume of such cases likely to be brought by

prisoners. Based on the burgeoning increase over the past

decade of civil rights actions filed by state prisoners, a decision

by this Court which gives license to prisoners to pursue their

most insignificant grievances for the most remote and isolated

instances of alleged negligent misconduct, will almost assuredly

cpen the federal courts to a new generation of suffocating civil

litigation. At a time when the federal courts are already

hearing prisoners’ civil rights actions involving seven packages

of cigarettes (Russell v. Bodner, 489 F. 2d 280 (3rd Cir.

1973) ); foreign objects in food ( Tuggle v. Evans, 457 F. Supp.

1015 (D. Colo. 1978); and, in the instant case, a hobby set

valued at $23.50, there is a compelling need for this Court to

define the boundaries of questions of constitutional proportion

with particularity and specificity. The setting of a standard

higher than simple negligence will serve to allow the federal

courts to direct their attention to meritorious claims rather than

becoming mired in claims that can only be considered in-

significant and frivolous. Surely it is not to be supposed that

either the architects of the federal judiciary or the framers of

the Civil Rights Act had in mind that the federal district courts

were to sit as a small claims court for prison inmates bearing de

minimis personal property complaints.

REMEDIES FOR VIOLATION OF DUTIES OF CARE

ARISING OUT OF TORT LAW SHOULD BE

BROUGHT IN STATE COURTS, RATHER THAN IN

THE FEDERAL COURTS THROUGH 42 U.S.C. § 1983

An examination of the purposes of § 1983 illustrate again

that it should not be applied as a substitute for tort law

remedies available in the state courts. In Stefanelli v. Minard.,

342 U.S. 117, 72 S. Ct. 118, 96 L. Ed 138 (1951), this Court

held that § 1983 actions were to respect the proper balance

between the states and the federal government and that the

Statute was not to be used in a manner disruptive of proper

federal-state comity. Three purposes of § 1983 were set forth in

McNeese v. Board of Education, 373 U.S. 668, 83 S. Ct. 1433.

10 L. Ed 2d 622 (1963): (1) it overrides certain kinds of state

laws; (2) it provides a remedy where state law is inadequate;

and (3) it provides a federal remedy where the state remedy,

though adequate in theory, is not available in practice.

The Respondent has made no showing of the need to

invoke § 1983 relief on the basis of any of these purposes. On

the contrary, adequate relief is provided for in the state courts.

Such relief is available in both theory and practice. The

Respondent seeks to use the federal courts to provide a federal

forum for nothing more than his common law tort claim. In

Baker v. McCollan, supra, this Court addressed this concern

without equivocation when it stated: “Section 1983 imposes

liability for violation of rights protected by the Constitution, not

for violations of duties of care arising out of tort law. Remedy

for the latter type of injury must be sought in state court under

traditional tort law principles.” Indeed, a contrary holding

would open the federal courts to every manner of tort claim

presently cognizable in state courts, including simple negligence

involved in the operation of motor vehicles owned by state

governmental agencies. These, too, would be brought under 42

U.S.C. § 1983, if the Respondent’s position were sustained in

the instant case.

This is not to say that an aggrieved prisoner must exhaust

his state remedies before seeking recourse in the federal courts.

It is, rather, that where there is an adequate state remedy in

theory and in fact available to one seeking to redress damage to

his or her property because of the alleged simple negligence of

state Officials, there is no constitutional violation nor depriva-

tion of property without due process requiring the invocation of

federal jurisdiction. The availability of the state court forum

provides the complete process that is due the prisoner in such

negligence claims. In the instant case there, of course, could be

no notice and hearing prior to the taking of the hobby materials

because there was no intentional taking by the parties. Thus,

due process could only be accorded after the loss occurred and

that was done in this case by way of the availability of the state

forum.

The Respondent may indeed have a valid and proper tort

claim in the state court, but has failed to make out a claim of

constitutional magnitude. Furthermore, the state courts not

only have a more direct interest in this type of claim, but are

better able to respond to the volume of such cases.

In a related case involving due process, this Court has

stated, “The federal courts do not sit to supervise state prisons,

the administration of which is of acute interest to the States.”

Meachum v. Fano, 427 U.S. 215 at 229, 96 S. Ct. 2532, at 2540,

49 L. Ed 2d 451, at 461 (1976).

IV.

WHERE THERE IS NO SHOWING THAT THE NAMED

DEFENDANTS WERE DIRECTLY INVOLVED IN THE

ALLEGED NEGLIGENT ACTIVITIES, AND THE

PROCEDURES ESTABLISHED BY THE PRISON FOR

THE RECEIPT OF MAILED MATERIALS WERE NOT

FOLLOWED, THE PLAINTIFF HAS FAILED TO ES-

TABLISH CAUSATION

Respondent seeks to apply a respondeat superior theory to

the warden and hobby manager to hold them liable in their

official capacities. There has been neither an allegation nor a

showing that either party had a direct involvement in any

misappropriation of the Respondent’s hobby materials.

The United States Supreme Court and the lower courts

have been consistent in holding that public officials cannot be

held liable under § 1983 solely for their failure to exercise

proper supervision over subordinates. See, e.g., Rizzo v. Goode,

423 US. 362, 96 S. Ct. 598, 46 L. Ed. 2d 561 (1976); Leite v.

City of Providence, supra; Owens v. Haas, 456 F. Supp. 1009

(E.D.N.Y. 1978): Butler v. Jenkins, 450 F. Supp. 574 (E.D.

Tenn., N.D. 1978); Parrilla v. Cuyler, 447 F. Supp. 363

(E.D.Pa. 1978); and Thornton v. Redman, 435 F. Supp. 876

(D.Del. 1977). Even the Eighth Circuit has ruled in Corton v.

Hutto, 577 F. 2d 453, 455 (8th Cir. 1978) that the doctrine of

respondeat superior is not applicable in § 1983 actions.

The absence of direct involvement by the named parties is

coupled with the fact that a prison procedure had been adopted

for the receipt of mailed materials, but had not been followed

in this particular case, through no fault of these named parties.

To hold these individuals personally liable would be a radical

departure from the prevailing case law and would impose the

strictest possible standard on prison supervisory personnel. The

result of such a decision would have the greatest negative

impact on the prisoners themselves. Prison administrators

would be forced to drastically reduce all privileges which

prisoners may now enjoy, because of any potential liability that

may be created by a breach in an otherwise well-conceived

policy or procedure. Such a rule would adversely impact upon

the common interests of prisoners and prison administrators

alike.

CONCLUSION

Amici respectfully submit that the decision of the United

States Court of Appeals for the Eighth Circuit should be

reversed on the law and on the basis of sound judicial policy.

Respectfully submitted,

FRED E. INBAU, Esq.

WAYNE W. SCHMIDT, Esq.