Opposition — Smith v. McCray

RECEIVED

SEP 25 1980

OFFICE OF THE CLERK ~

IN THE SUPREME COURT OF THE UNITED ST SUPREME COURT, U.S,

SGT. B. D. SMITH, : October Term, 1980

Petitioner

Vv. : No. 80- 329

MILTON McCRAY,

Respondent

RESPONDENT'S MOTION TO FILE

A BRIEF IN OPPOSITION TO A PETITION

FOR WRIT OF CERTIORARI AND TO

PROCEED TO THE TERMINATION OF PRO-

CEEDINGS IN FORMA PAUPERIS

Pursuant to 28 U.S.C. §1915 and Rule 46 of this Court,

Respondent by his counsel moves this Court for an Order per-

mitting him to file his Brief in Opposition to Petitioner's

Petition for Writ of Certiorari and to proceed to the termination

of proceedings in forma pauperis, or without the payment of any

fees, costs, or security therefor, because as set forth in this

Motion and the attached Affidavit:

1. Respondent is indigent and unable to pay any fees, costs,

Or security to so proceed;

2. In forma pauperis status was sought and granted in the

United States District Court for the District of Maryland and

on appeal in the United States Court of Appeals for the Fourth

Circuit.

A ve ( an Qf

= ‘ al\ Ay KW. 7

RICHARD G. FISHMAN, ESQ.

Keystone Legal Services, Inc.

251 South Pugh Street

State College, PA. 16801

814/238-4958

Attorney for Respondent

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( ¢ RECEIVED

SEP 25 1980

OFFICE OF THE CLERK

SUPREME COURT, U.S,

No. 80-329

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

SGT. B. D. SMITH,

Petitioner

MILTON McCRAY,

Respondent

BRIEF IN OPPOSITION TO A

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RICHARD G. FISHMAN

Keystone Legal Services, Inc.

251 South Pugh Street

State College, Pennsylvania 16801

814/238-4958

Attorney for kespondent

TABLE OF CONTENTS

PAGE

ne Ge Pens 8 6 ee Ke ee a

Sinaasuwe GF THE CASE . 2. 6 st te i we tb els a oe ee

SUMMARY OF ARGUMENT ..... cc ceees ek eee

ARGUMENT . . . * . * . 7 * . . . * . . . . * . . ad 5

A. CONSIDERATIONS UNDER RULE 17 ARE ABSENT

IN THIS CASE AND THE WRIT SHOULD BE

ee 6 be eS Se ek was ob as ee % }

B. SUBJECTIVE BAD FAITH WAS PRESENT .. . oe D

C. DUE DEFERENCE WAS ACCORDED THE

FINDINGS OF THE TRIAL COURT. ....... 6

D. PETITIONER FAILED THE OBJECTIVE TEST

OF A GOOD FAITH DEFENSE EVEN IF THE

SUBJECTIVE PRONG WAS SATISFIED ...... 8

a a 2.5 © 6 + 2 Ee

TABLE OF AUTHORITIES

Anderson v. Nosser, 438 F.2d 183

(oun Cae, EVTals 6 ) 6 eee

Bianchini v. Humble Pipeline Co., 480

¥edG 258 (SEN CEE. AFF) »w wo we we we

Bogard v. Cook, 586 F.2d 399

(eee Webs SOTORc 6 sé 6 eo 6 Se we Oe

Case v. Morrisette, 475 F.2d 1300

sens BOTs + + 6 6) eS ee

Fisher v. United States, 441 F.2d 1288

ig 2 |: see eee ae

Gomez v. Toledo, U.8. ,

L0G S.Ct. 2920 (1900). . « eo ws vee ee

G. R. Corp. v. American Security & Trust Co.

943 F.42G 1164 (D.C.Cir. 1975). ..¢-e

Hancock v. Avery, 301 F.Supp. 786

(M.D. Pa. 1969). . . . . . . . . . . . .

Holt v. Sarver, 300 F.Supp. 825

cvs BOON s + 6 & « 6 be eb Os

Jones v. Pitt County Board of Education,

928 F.2d 414 (4th Cir. 1975)... i. «Oe

Jones v. Wittenberg, 330 F.Supp. 707

sa BWURSs «© © @ on & Eee © 6 wre

Jones v. Wittenberg, 323 F.Supp. 93

is BETES 6 o/s «6 oe & eee

Jordan v. Fitzharris, 257 F.Supp. 674

sMcGRhs BOUORs +s & tae 2 or ds: 24s

Knuckles v. Prasse, 302 F.Supp. 1036

(E.D.Pa. 1969), aff'd (per curiam) 435

7.20 2255 (38 Cis. 20TO) ss 2 wp et

Landman v. Peyton, 370 F.2d 135

wen CAE, APOCee we tt tm et es

Landman v. Royster, 333 F.Supp. 621

[eens Tis BORD) © 6 & w 8 8 ee 4 oes

McCray v. Burrell, 367 F.Supp. 1191

ws BOSH Be 6 ot KK Se EO

McCray v. Burrell, I, 516 F.2d 357

(een Gans AUTO) wow ew os o eon ee a

PAGE

ll

12

ll

ll

12

12

10

2, 4, 12

TABLE OF AUTHORITIES (Continued)

PAGE

McCray v. Burrell, II, 622 F.2d 705

es Me ek kA we 6 eee ee ae 2, 6

Procunier v. Navarette, 434 U.S.

ee Cosel ek kw gee es oR 5, 6

United States v. Bycer, 593 F.2d 549

ee Oe ch eke ke ete ewe S

United States v. U.S. Gypsum Company,

Soe UcOe SOS (AEB) a c's 6 tk el

Wood v. Strickland, 420 U.S. 308

(1975). . 7 . . . . . 7 . . . . . . . . . . 5

Wright v. McMann, I 387 F.2d 519

ee ee BOO TEs Ge wie & oe % eS es By

Wright v. McMann, II, 460 F.2a 126

oe eS EOPRE YS. & 8 6 4% 2 es

CONSTITUTIONAL PROVISIONS

EIGHTH AMENDMENT. . . ». «© «© «© «© e we we e we l

FOURTEENTH AMENDMENT .,........, oil

RULES OF PROCEDURE

RULE 17 of the United States Supreme Court. 4, 5

RULE 52(a) of the Federal Rules of

Civil Procedure ........-e a on

REGULATIONS AND DIRECTIVES

7 N.Y. C.R.R. §§300.1-301.9 “a ar ae So eee eee ™ 10

Administrative Directive 12-70, ..... -« 2

OTHER AUTHORITIES

Wright & Miller, FEDERAL PRACTICE AND PROCEDURE:

coe . Ser ere

RESTATEMENT (SECOND) OF TORTS (1965) . .... 6

ii

No. 80-329

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

SGT. B. D. SMITH,

Petitioner

MILTON McCCRAY,

Respondent

BRIEF IN OPPOSITION TO A

PETITION FOR WRIT OF CERTIORARI TO

THE UNTTED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

STATEMENT OF THE CASE

In McCray's suit against Maryland Penitentiary Officer,

Sgt. B. D. Smith, the Respondent sought compensatory and punitive

damages for being maliciously placed in an isolated confinement

(I.C.) cell without clothes and items of personal hygiene and

subject to conditions that allegedly violated the Eighth and

Fourteenth Amendments to the United States Constitution.

The Fourth Circuit in McCray v. Burrell 1,516 F.2d 357,

368 (4th Cir. 1975), recognized in the case against Smith that:

{A] prisoner evidencing mental derangement

in a form suggestive of self-harm or harm

to others may and should be removed from

the general prison population until his true

condition can be assayed by those competent

to evaluate him; and, until his examination

and the formulation of expert opinion, he may

y, subjected to protective measures.

3la-32a, However, it held that the conditions of confinement

for McCray in the I.C. cell could be justified constitutionally

only if the administrative directive requiring the summoning of

expert medical attention in the situation was followed. Id.

In McCray v. Burrell II, 622 F.2d 705, (4th Cir. 1980), compliance

with the administrative directive 12-70 was found not to be forth-

coming by Smith. 5a,

McCray spent almost two days in the I.C. cell nude and |

without any items of personal hygiene and initially was placed

in there without a mattress. 25a-27a. No psychiatrist or

psychologist ever examined McCray while in I.C. contrary to

Petitioner's assertion at page 6 of his Petition for a Writ of

Certiorari (Petition). 27a. By Petitioner's own admission he did :

not notify the psychologist pursuant to the administrative directive

until almost 24 hours after McCray's placement in I.C. Smith

admitted this notification responsibility was his own.

The only non-party witnesses who testified in regard to

Sgt. Smith were Deputy Commissioner of Correction Herndon and |

Major Clingenpeel. Both testified that under the circumstances

of McCray's confinement in an I.C. cell without clothes or a

mattress that the psychologist had to be contacted and that

1/ “a" indicates what page Of the appendix.

contacting that person almost 24 hours later did not comply with

the administrative directive. Major Clingenpeel was a penitentiary

officer for over 28 years.

Contrary to Petitioner's assertions, Sgt. Smith testified

as to the harm he perceived from McCray's behavior, which re-

sulted in his removing McCray's clothes and denying hima

mattress. He also stated that if he perceived no harm the inmate

yot a mattress and coveralls when going into I.C.

Smith testified about the situation in 1973, as follows:

"Well, he [McCray] did'nt make any specific harm, but he said he

wasn't going to do any time in the South Wing, he would rather die

than do time in the South Wing, and so, that was enough for me |

to see that he might do something to injure himself, that's why

I took precautions." Smith also said in 1973, as he did in 1977, :

"If an inmate is going to do some harm to himself, I remove the |

mattress. If he's not attempting to do any bodily harm to

himself, he gets a mattress when he goes in. Also, a pair of

coveralls."

McCray received neither clothes nor a mattess. Thus,

Smith thought he was going to harm himself. There is no indi-

cation he thought McCray was merely acting out. Furthermore,

McCray had already ripped the locker off his cell wall and

“[H]e started screaming, you know, real loud, as a matter of

fact, I [Smith] never heard a man scream as loud before..."

If Sgt. Smith did not think McCray was in such a mental

state as to justify contacting a psychologist, there was no

basis for his confining him under the conditions of I.C. des-

cribed herein. In this regard, the Fourth Circuit noted:

What is clear, however, is that if McCray's

mental condition was reasonably believed to

be so suspect as to justify the conditions we

have described, then it was such as to warrant

if not the actual ministrations of professional

personnel, an immediate effort to gain him

prompt medical evaluation and necessary treat-

ment.

The conclusion that McCray was in such a mental state as

to require immediate medical attention is buttressed by the

District Court's prior decision when it discussed the directive

and said "[A]n inmate may be placed in an isolation cell for

his own safety or that of the inmate population when he displays

mentallydisturbed behavior. Such behavior was Clearly present

in the instant case." McCray v. Burrell, 367 F.Supp, 1191, 1214

(D.Md. 1973), 45a.

Smith, in 1977, shifted his position to attempt to come

within the confines of a subjective good-faith defense, by now

claiming that he did not think McCray would harm himself. The

Fourth Circuit recognized this shift in position. 5a. Again, as

in McCray I, the Court proclaimed that if Smith only thought

McCray was ‘acting out" or emotionally disruptive, then the con-

ditions under which he was placed in I.C., without prompt medical |

attention, could not be justified. Id.

SUMMARY OF ARGUMENT

The Petitioner has failed to substantiate any reason under

Rule 17 of this Court to justify its issuance of a Writ of

Certiorari. The Petitioner is merely asking for this Court to

make a factual determination more to his liking, even though the

Court of Appeals followed established law and usual judicial

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proceedings in reaching its decision.

See ee eR SR anne

’ . ie a —

sy snd enki al

The Fourth Circuit gave due deference to the findings of

the Trial Court but effectively found them clearly erroneous

because of their illogic and internal inconsistencies and

appropriately applied the tests of good-faith defense as es-

tablished by the decisions of this Court.

ARGUMENT

A. CONSIDERATIONS UNDER RULE 17 ARE ABSENT IN THIS CASE

AND THE WRIT SHOULD BE DENIED

The Petitioner has presented no argument within the meaning

of Rule 17 of this Court to justify issuance of the Writ.

Petitioner has merely asked this Court to make a subjective

analysis of facts for purposes of a good-faith defense surrounding

the Respondent's confinment in I.C. by Smith. The Fourth Circuit

did not "so far depart[ed] from the accepted and usual course of

judicial proceedings, as to call for an exercise of this Court's

power of supervision" within the meaning of Rule 17. The Court of

Appeals merely reached a result on the subjective prong of a good-

faith defense which was contrary to the wishes of Petitioner.

As Petitioner has the burden on a good-faith defense and

since he failed to satisfy the subjective test, there was no

necessity for the Fourth Circuit to examine the then existing case

law as part of the objective standard of good-faith. Procunier v.

Navarette, 434 U.S. 555 (1978); Wood v. Strickland, 420 U.S. 308

(1975). Consequently, Petitioner's argument at page 13 of his

Petition that the Fourth Circuit emasculatel the objective standard

of Wood and Procunier is inapplicable.

B. SUBJECTIVE BAD FAITH WAS PRESENT

As to what constitutes malicious intent for purposes of an

2/ Gomez v. Toledo, U.S. , 100 S.Ct. 1920 (1980).

=

analysis of subjective good-faith, this Court has referred to the

RESTATEMENT (SECOND) OF TORTS §8A (1965). Procunier v. Navarette,

434 U.S. at 566. Malicious intent under the Restatement in-

cludes intentional injury. Id. Yet, this malicious intent also

includes reckless conduct of one who does not intend to cause the

consequences of his acts, but should realize that there is a

strong probability that the harm will occur. Id. at §500; Bogard

v. Cook, 586 F.2d 399, 412 (Sth Cir. 1978). Comment b to Section

8A in recognizing this identical treatment states, "If the

actor knows that the consequences are certain, or substantially

certain to result from his act, and still goes ahead, he is

treated by the law as if he had in fact desired to produce the

result." Furthermore, unlike Procunier, the instant case does

not contain only an allegation of negligent conduct on the part

of prison officials.

Here, Smith was aware of the probable harm to McCray and

since his condition required the contacting of medical help as

soon as he was placed in I.C., as testified to by Deputy

Commissioner Herndon and Major Clingenpeel, Sgt. Smith must be

treated as having intended the consequences of his acts within

the meaning of the word malicious. The Opinion in McCray II is

not to the contrary.

C. DUE DEFERENCE WAS ACCORDED THE FINDINGS OF THE TRIAL

COURT

While Rule 52(a) of the Federal Rules of Civil Procedure

requires that findings of fact "shall not be set aside unless

clearly erroneous, and due regard shall be given to the oppor-

tunity of the trial Court to judge the credibility of the

witness," this rule was adhered to in the case at bar, under

various decisions interpreting the meaning of "clearly erroneous"

and “credibility of the witness."

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In Jones v. Pitt County Board of Education, 528 F.2d 414,

418 (4th Cir. 1975), the Court held:

We recognize that we are not bound by the

factual determinations of the District Court

merely because they are supported by sub-

stantial evidence, and that a finding may

be rejected as "clearly erroneous" when

although there is evidence to support it,

the reviewing court on the entire evidence

is left with the definite and firm con-

viction that a mistake has been committed.

United States v. U. S. Gypsum Company, 333

U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed.

746 (1948).

See, e.g., G & R Corp. v. American Security and Trust Company,

523 F.2d 1164, 1171, 1172 (D.c. Cir. 1975); Case v. Morrisette,

475 F.2d 1300, 1307 (D.c. Cir. 1973); Pisher v. United States,

441 F.2d 1288, 1290 (3rd Cir. 1971).

It has been held that even where "substantial evidence"

Supports the fact-findings, they may be set aside, if the Court

"[I]s convinced that the finding does ‘not reflect the truth and

right of the case." Bianchini v. Humble Pipeline Co., 480 F.2d

251, 253 (5th Cir. 1973).

As to credibility, it has been stated it "[I]nvolves more

than demeanor and comprehends an overall evaluation of testimony

in the light of its rationality or internal consistency and the

manner in which it hangs together with other evidence." Wright

& Miller, FEDERAL PRACTICE AND PROCEDURE: CIVIL §2585 at 736-737.

Finally, “It is essential, however, that there be a logical

and convincing connection between the facts established and

the conclusion inferred.” United States v. Bycer, 593 F.2d 549,

550 (3d Cir. 1979).

The internal consistency and logical connection of facts

with the conclusion drawn did not hold together in this case.

In 1973 Smith asserted his fear of harm to McCray as a justi-

fication for initially placing him in I.C. without clothes or a

mattress. Four years later he cannot claim that this fear never

existed, as an excuse for his failure to promptly summon medical |

help. j

D. PETITIONER FAILED THE OBJECTIVE TEST OF A GOOD-FAITH

DEFENSE EVEN IF THE SUBJECTIVE PRONG WAS SATISFIED

Even under an objective analysis of good-faith, Sgt. Smith

in 1971 would have been on notice as to the unconstitutionality |

of his actions. The District Court either ignored then existing |

case law or read the issue too narrowly in stating it could find |

no decisions giving Respondent an unquestioned right to have a

psychologist immediately notified. 16a; Petition at 11-12.

In the cases cited by the District Court in its Opinion

as not putting Sgt. Smith and Captain Burrell in the companion

case on notice as to the unconstitutionality of their a 4

medical care or its availability was either an essential issue

in evaluating the conditions of confinement or prison regulations

were discussed or cited which required the permission of a |

medical person or psychiatrist in order to place an inmate in a |

stripped cell without clothes or sanitary articles.

In Jordan v. Fitzharris, 257 F.Supp. 674 (N.D. Cal. 1966)

the Plaintiff brought suit about conditions in solitary confine-

ment strip cells, including a Chinese toilet flushed from the

outside, lack of sanitation or sanitary articles in the cells,

improper lighting and a lack of cell bedding and furnishings

and inadequate medical care. Id. at 676-678.

In finding these conditions unconstitutional, the Court in

Jordan commented on a proposed manual of procedures for use of

the strip cells and said:

3/ lla-22a

(T]he practices set out in the manuals

relied upon by defendants would, if

adopted and fcllowed, meet the minimum

standards required by the Eighth Amend-

ment.

Id. at 683. The manual provided in part:

The not uncommon practice of confining

insane inmates there [in strip cells[

is indefensible, all insane inmates should

be transferred to a mental hospital or

medical psychiatric treatment facility.

Id. Jordan would at a minimum here, command a psychiatric or

psychological person to attend to McCray who was confined under

similar conditions.

In Wright v. McMann I, 387 F.2d 519 (2d Cir. 1967) con-

ditions involving being placed nude in a barren, dirty cell, in

the cold of winter without hygienic materials was held to be a

violation of the Eighth Amendment, if proven. Id. at 526. In

making its determination the Court specifically referred to

regulations of the United States Bureau of Prisons as not per-

mitting the conditions Wright alleged:

They require that "the quarters used for

segregation shall be well ventilated ade-

quately lighted, appropriately heated and

maintained in a sanitary condition at all

times," an inmate can be deprived of clothing

only when prescribed by the Chief Medical

Officer for medical or psychiatric reasons;

and toilet tissue, tooth brush, comb, etc.

are not to be denied a segregation inmate.

Id. This case was then remanded to the District Court which foun

Wright's nude confinement in a strip cell cruel and unusual

punishment. Wright v. McMann, 321 F.Supp. 127, 128 (N.D.N.Y.

1970). The Dis trict Court in Wright also required appropriate

regulations be issued prior to the cells being used. On appeal,

the Second Circuit reversed that part of the lower Court Order

requiring new regulations because in its Opinion, rules already

d

( € ii:

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existed to cover the situation. Wright v. McMann II, 460 F.2d

126, 131 (2d Cir. 1972).

The regulations in Wright provided for various furnishings

and health and sanitation conditions for one confined in puni-

tive segregation. Id. 7 N.Y.C.R.R. §§300.1-301.9. The District

Court here states in this regard "the court [in Wright] tacitly

approved regulations permitting the removal of lights, toilets,

beds, washstands and mattress from psychiatric observation cells.

if there was imminent danger that the inmate would destroy them

22a.

or use them to harm themselves". / However, the District Court in

the case at bar ignores the following part of these same regu-

lations, also cited in Wright:

"(d) In cases where the inmate is deprived

of clothing, and is without some sufficient

means Of covering his body, or where the

inmate is kept in a cell without ma=tress

and blankets at a time when inmates in the

general population are in bed, the report

shall be delivered to whoever is in charge

of the facility at the time and it shall be

the duty of that person to make every effort

to have a physician visit the inmate imme-

diately. If a physician cannot visit the

inmate within two hours of the time the inmate

is deprived of the item, it shall be the

duty of the person in charge of the facility

at the time to personally visit the inmate

and determine the necessity for deprivation

of the item and, where such deprivation is

continued, to arrange for a physician to visit

the inmate as soon as possible."

7. N.Y.C.R. §301.7(d).

These New York correction regulations as set forth in the

second Wright v. McMann case would certainly indicate a duty

to get medical help for McCray.

Landman v. Royster, 333 F.Supp. 621 (E.D.Va. 1971), in-

volved a suit brought over solitary confinement conditions in-

cluding denuding of an inmate and removal of a mattress, among

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other deprivations. Id. at 627. As to denuding it was said:

"The Court will permit an inmate to be kept nude in his cell only

when a doctor states in writing that the inmate's health will not

thereby be affected and that the inmate presents a substantial risk

of injuring himself if given garments." Id. at 648. The Landman |

(Court went on to say "If the cell is otherwise clean, and well

‘heated, and the prisoner keeps his clothing, it should not be

,detrimental." Id. at 649,

In Hancock vy. Avery, 301 F.Supp. 786 (M.D.Tenn. 1969), a |

prisoner was placed for non-punitive reasons in solitary confine-

“ment. The cell conditions included a chinese toilet (flushing

' controlled by an outside officer), no lighting, no hygienic or

Sanitary facilities and plaintiff's nude placement on a concrete

| floor for purposes of sleeping. Id. at 791-792, |

Interestingly, the defendants in Bancock argued that the

| conditions were constitutional because plaintiff had a daily

Opportunity to make complaints to medical personnel. Id. at 789,

Despite this argument the Court went on to say that "confinement

_— the conditions of harshness and cruelty reflected by the

present record should not be tolerated for any length of time,

however brief." Id. at 792.

In Jones v. Wittenberg, 323 F.Supp. 93, 99 (N.D.Ohio 1971)

the Court found conditions similar to those in the instant case

‘as cruel and unusual punishment. The same Court later spoke more

directly to the issue, and proclaimed standards in Jones v.

Wittenberg, 330 F.Supp. 707, 720 (N.D.Ohio 1971). The Court in

, Jones v. Wittenberg stated that isolation must have proper heat,

light, ventilation ard sanitation and that prisoners not be

deprived of clothing. Id. Its condivions were to mirror those

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in the normal institutional population except for freedoms and

privileges. Id. Furthermore, "Prisoners who appear dangerously

violent or suicidal must be examined immediately by a physician, |

and if he deems it advisable, removed to a mental hospital." Id.

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In Landman v. Peyton, 370 F.2d 135 (4th Cir. 1966), the Court

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decried the lack of effective control and supervision on personnel

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in direct charge of segregation, which ultimately adds punishmen

to those confined there and raises due process and Eighth Amend- |

ment questions. Id. at 139, 141. Such problems are present in |

the case at bar.

Furthermore, the District Court's distinguishing of iso-

lation cases involving similar conditions on the basis that they

involved punitive ae only strengthens the plaintiff's

case as what may be justifiable in a punitive setting will not |

necessarily survive in the situation here. McCray v. Burrell, I,

516 F.2d at 367, 29a-30a,.

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Other Courts deciding cases around the time of the incident |

here and involving similar conditions have also found them un-

constitutional, in violation of Eighth Amendment proscriptions. |

Anderson v. Nosser, 438 F.2d 183, 193 (5th Cir. 1971); Knuckles v.

Prasse, 302 F.Supp. 1036, 1061 (E.D.Pa. 1969); aff'd (per curiam)

435 F.2d 1255 (3d Cir. 1970); Holt v. Sarver, 300 F.Supp. 825, |

832-833 (E.D.Ark. 1969). | |

Thus, the objective test of good faith indicates the state |

of the law of the time at the incident in question clearly

established that McCray could not be confined with a lack of

medical attention under the deprivations present. Sgt. Smith

should have been on notice of the various decisions discussed

herein.

47 Tia

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As Sgt. Smith was under an obligation to follow a directive

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prescribing immediate medical attention, his position is even more |

untenable than the situation where medical care is not provided, |

but no regulation prescribing such exists for guidance.

Thus, under the objective or subjective test there is nothing

to indicate the Fourth Circuit substantially departed from the |

usual course of judicial proceeding in reaching the result in-

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volved in this case.

CONCLUSION

WHEREFORE, Respondent prays that the Petition for a Writ of

Certiorari be denied.

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RICHARD G,. F SHMAN, ESQ.

Keystone Legal Services, Inc.

251 South Pugh Street

State College} PA. 16801

814/238-4958

Attorney for Respondent |

=} 30

a

No. 80-329

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

SGT. B. D. SMITH,

Petitioner

r v.

! MILTON McCRAY,

i Respondent

CERTIFICATE OF SERVICE

| I, RICHARD G. FISHMAN, ESQ., hereby certify, pursuant to

Rule 28.3 that I served a true and correct copy of the Brief in

Opposition to a Petition for a Writ of Certiorari to the United |

re Court of Appeals for the Fourth Circuit and Respondent's !

Motion and Affidavit to Proceed in Forma Pauperis to Donald R.

_ Stutman, Assistant Attorney General, Attorney for Petitioner, '

' one South Calvert Building, Baltimore, Maryland 21202, by first-

‘

class mail postage prepaid on this z v4 day of September, 1980.

I further certify that all parties required to be served have been

“served. " |

WRG MSE

RICHARD G. FISHMAN, ESQ.

Keystone Legal Services, Inc.

251 South Pugh Street

State College, PA. 16801

814/238-4958

Attorney for Respondent

rns