Petition for Writ of Certiorari — Reed v. Slakan

IN THE eens Gite,

CLERK

Supreme Court of the United States

OCTOBER TERM 1984

AMOS E. REED, et ai.,

Petitioners,

Vv.

CHARLES J. SLAKAN,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RUFUS L. EDMISTEN

Attorney General of

North Carolina

Jacob L. Safron

Special Deputy Attorney General

Lucien Capone Ill

Assistant Attorney General

N.C. Department of Justice

P.O. Box 629

Raleigh, N.C. 27602

Telephone: (919) 733-7188

ATTORNEYS FOR PETITIONER

DiCesare and Associates Printing © Washington, D.C. © (202) 331-8101

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QUESTION PRESENTED

WHETHER THE TWO HIGHEST RANKING STATE

OFFICIALS RESPONSIBLE FOR AN 86 UNIT

PRISON SYSTEM WITH OVER 15,000 INMATES AND

5,700 EMPLOYEES AND THE WARDEN OF THE

STATES LARGEST PRISON CAN BE HELD

PERSONALLY LIABLE FOR DAMAGES UNDER 42

U.S.C. §1983 FOR THE UNAUTHORIZED USE OF

FORCE AGAINST A SINGLE INMATE BY TWO

GUARDS ON THE SCLE THEORY THAT THOSE

OFFICIALS FAILED TO PROVIDE ADEQUATE

SUPERVISION OVER THEIR SUBORDINATES?

PARTIES TO THE PROCEEDING

The parties to the proceeding in the United States

Court of Appeals for the Fourth Circuit whose

judgment is sought to be reviewed are (1) Charles J.

Slakan, an inmate in the custody of the North Carolina

Department of Correction, (2) Amos E. Reed, former

Secretary of the North Carolina Department of

Correction, (3) Ralph Edwards, former Director of the

Division of Prisons of the North Carolina Department

of Correction and (4) Sam Garrison, former Warden of

Central Prison of the North Carolina Division of

Prisons.

TABLE OF CONTENTS

QUESTION PRESENTED ics cndseccdecysceaavons i

PARTIES TO THE PROCEEDING ............... |

COP TRIPE THURMAN. | 56:s:00 0a een eee |

SUSI TE: ., . chime ota 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED .... cece ccccccsecnce 2

STATEMENT OF THE GAGE -is iiss ccade camsias 3

REASONS FOR GRANTING THE WRIT ......... 6

CONGCLUBIOM .. . «0. <s0ueng eee eee 11

CERTIFICATE OF SERVIGE 5 siccciccsscieaces 12

TABLE OF AUTHORITIES

CASES

Bailey v. Turner, 736 F.2d 963

ees cena i peeps sss eouses 8

Beishir v. Swenson, 331 F. Supp. 1227

EE ee re eee ee —;

Clemmons v. Greggs, 509 F.2d 1338

EEC 8

Hawkins v. Elliott, 385 F. Supp. 354

ok tua dadegsscredccvenes 8

Martinez v. California, 444 U.S. 277,

ee Ae en aad Ke 00% 09 0 0-0-0 10

Monell v. New York City Dept. of

Social Services, 436 U.S. 658 (1978) ..... 6, 9, 10

Peterson v. Davis, 551 F. Supp. 137 (D. Md. 1982) 8

Rizzo v. Goode, 423 U.S. 362 (1976) ...... 6, 8,9, 10

Ross v. Reed, 719 F.2d 689 (4th Cir. 1983) ...... 10

Slakan v. Porter, 737 F.2d 368, 376

EE ee eee 6,7,9

Spain v. Procunier, 600 F.2d 189

SNE NT WH WA adn KUeiddecodbacvievesses a

CONSTITUTIONAL PROVISIONS

Eighth Amendment, U.S. Constitution ........... 2

Fourteenth Amendment, U.S. Constitution ....... 2

STATUTES INVOLVED

oo odes wseceeues 2

a yw aib Weed teense i, 2, 3, 6, 10

sc eceveviesesees cs 6

IN THE

Supreme Court of the United States

OCTOBER TERM 1984

AMOS E. REED, et al.,

Petitioners,

V.

CHARLES J. SLAKAN,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

TO: THE HONORABLE CHIEF JUSTICE AND

ASSOCIATE JUSTICES OF THE SUPREME

COURT OF THE UNITED STATES:

The petitioners, Amos E. Reed, Ralph Edwards and

Sam Garrison pray that a Writ of Certiorari issue to

review the judgment of the United States Court of

Appeals for the Fourth Circuit filed June 5, 1984, and

Order denying the Petition for Rehearing filed August

13, 1984.

OPINIONS BELOW

The Opinion of the United States Court for the

Fourth Circuit filed on June 5, 1984 is published at 737

F.2d 368 (4th Cir. 1984). A copy is included in the

Appendix. The Opinion of that Court denying the

Petition for Rehearing filed on August 13, 1984 is

unpublished and is also printed in the Appendix to this

petition.

JURISDICTION

The jurisdiction of this Court is invoked pursuant to

28 U.S.C. §1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves the Eighth and Fourteenth

Amendments to the United States Constitution and 42

U.S.C. §1983.

U.S. Const. Amend. VIII provides:

Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual

punishments inflicted.

U.S. Const. Amend. XIV, §1 provides:

All persons born or naturalized in the United

States, and subject to the juris: diction thereof, are

citizens of the United States and of the state

wherein they reside. No State shall make or

enforce any law which shall abridge the privileges

or immunities of the citizens of the United States;

nor shall any state deprive any person of life,

liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the

equal protection of the laws.

42 U.S.C. §1983 provides:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of

the United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity or other

proper proceeding for redress. For the purposes

of this section, any Act of Congress applicable

exclusively to the District of Columbia shall be

considered a statute of the District of Columbia.

STATEMENT OF THE CASE

This is a civil rights action filed under 42 U.S.C.

§1983 by Respondent, Charles J. Slakan, a North

Carolina State Court inmate, seeking damages for an

alleged excessive use of force against him on August

3, 1979 at North Carolina Central Prison in Raleigh,

North Carolina. The defendants were three guards,

T.C. Porter, M.M. Walters and J. Barefoot; the former

Warden of Central Prison, Sam Garrison, the former

Director of the Division of Prisons, Ralph Edwards;

and the former Secretary of Correction, Amos Reed.

A jury trial began on May 31, 1983 and lasted four

days. The evidence tended to show that on the

morning of August 3, 1979 Slakan was an inmate

assigned to the intensive management cell-block at

Central Prison due to his past history of assaultive

prison behavior. A disruption began on the block

when Respondent hollered to various inmates in order

to wake them up so that they would not miss the coffee

as it was being served. The defendant guards

attempted to resolve the situation by talking to Slakan

but were met with insults. Slakan testified that he

reached through the cell bars and “touched”

defendant Walters whereupon Walters accused

Slakan of trying to slap him and threw a cup of coffee

at Slakan. Slakan then calied Walters “some bad

names”.

When Slakan refused to quiet down or be

handcuffed and removed from his cell the guards

squirted or attempted to squirt him with two fire hoses.

A small amount of tear gas was also sprayed into the

cell by Walters.

The guards then entered the cell and struck Slakan

several times with night sticks when he allegedly

attacked them. Walters and Porter admitted hitting

Slakan a total of four times on the head to stop his

attack. He was then taken to the first aid room and

received a total of 61 stitches for 4 cuts on his head.

Slakan also testified that he had several bruises,

blisters and a burst capillary in his eye. However, the

medical records contained no evidence of any injuries

other than the four head wounds.

Siakan did not allege that petitioners Reed,

Edwards, or Garrison were present or physically

involved in this incident. Rather, it was alleged that

these officials were responsible for failing to exercise

adequate supervision over their subordinates in the

use of force on cell-confined inmates. Slakan offered

evidence of nine prior incidents of the use of fire hoses

and mace against cell-confined inmates during the

preceeding 4 years at Central Prison. None of these

incidents involved the use of batons and only one

involved any evidence of injury (that being limited to

bruises). Also, none of these incidents had ever been

the subject of court action. One incident, which

occurred in 1975, was the subject of a North Carolina

Inmate Grievance Commission report which

recommended against the use of fire hoses against

inmates locked in cells “unless there is an imminent

threat of physical danger of another person or with the

direct approval of the Warden, Deputy Warden or Shift

Supervisor,” That recommendation was rejected by

then Secretary of Correction, David Jones who was

Petitioner Reed’s predecessor in office.'

Petitioner Garrison admitted knowledge of these

prior incidents but presented evidence to show that he

had taken steps before August 3, 1979 to implement

training on use of force policies and had directed that

the fire hose be used only with the permission of the

officer in charge. See Appendix.

Petitioner Edwards testified that he was not aware of

the specific incidents offered by Slakan, but was

aware that the fire hose could be used if warranted.?

There was no evidence presented to show that

Petitioner Reed was aware of any of these incidents.

Reed did admit in his Answer that he had “approved

the use of physical force including fire hoses and tear

gas under approrriate circumstances and that these

appropriate circumstances include some situations in

which inmates may be confined to their cells.”

However, that admission was not read to the jury.

‘Reed did not become Secretary until January 1977.

2The Court of Appeals erroneously stated in its Opinion that

Edwards had admitted specific knowledge about the seven

incidents that preceeded Respondent's case. /d. at 374. However,

his actual testimony was as follows,

Q. During those years [‘73 to 81] were you aware that the

high pressure fire hose was being used against inmates confined

in a cell?

A. | knew that fire hoses were used, yes.

Q_ Against inmates confined in a cell?

A. | am not sure that a specific - / am not sure of whether a

specific incident report came across my desk of an inmate being

confined in a cell or not. But | was aware that there was nothing

that prohibited it if the situation warranted it. (Emphasis added)

The jury returned a verdict against all of the

defendants except one guard, J. Barefoot.’ It awarded

Slakan $2500.00 in compensatory damages and

$30,000.00 in punitive damages. The District Court

entered final judgment pursuant to Rule 54(b),

F.R.C.P. on June 3, 1984.

Petitioners appealed to the United States Court of

Appeals for the Fourth Circuit. That Court affirmed in

an opinion filed on June 5, 1984. The Court of Appeals

subsequently rejected Petitioners’ Petition For A

Rehearing on August 13, 1984.

REASONS FOR GRANTING THE WRIT

THE DECISION OF THE COURT OF APPEALS

NEGATES THE REQUIREMENT OF PERSONAL

INVOLVEMENT AS A PREDICATE TO LIABILITY

UNDER 42 U.S.C. §1983.

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

New York City Department of Social Services, 436

U.S. 658 (1978) firmly established the principle that a

supervisory official cannot be held liable under 42

U.S.C. §1983 solely because he has employed a tort-

feasor. Rather, there must be evidence of personal

involvement by the supervisor in the misconduct of his

subordinate, i.e., there must be an “affirmative link”

between the misconduct and the adoption of a plan or

policy by the supervisor showing his authorization or

approval of such misconduct. Rizzo v. Goode, supra at

371. For example, in Monell this Court heid that the

requisite nexus between policy and injury was shown

where city 2mpioyees had acted pursuant to a

*The opinion of the Court of Appeals erroneously states that

T.C. Porter was the exception rather than Barefoot. S/akan v.

Porter, 737 F.2d 368, 372 (4th Cir. 1984)

municipal policy which was unconstitutional on its

face in compelling pregnant employees to take unpaid

leaves of absence before such leaves wer? required

for medical reasons.

In this case the only evidence presented by Slakan

to establish such a link was that of the eight prior use

of force incidents and the 1975 Inmate Grievance

Commission recommendation. Slakan’s theory,

adopted by the Court of Appeals, was that these

incidents revealed a pattern of indiscriminate use of

force against cell-confined inmates which went

unchecked, resulting in the excessive use of force

against him on August 3, 1979. The Court of Appeals

stated in its Opinion that,

The evidence conclusively established that,

despite the obviousness of the danger and

the ease with which it could have been

abated, the supervisors failed to act. They

provided little or no direction to their

subordinates concerning the appropriate-

ress of the water hosing practice or the

afeguards that should be followed to protect

the inmate from excessive force and injury.

Critical decisions relating to permissable

water pressure levels, exposure periods, and

the circumstances justifying its use against

securely confined inmates were all left to the

guards’ unbridled discretion. This

adminsitrative policy, or more accurately lack

of policy, invited abuses of the kind

experienced by Slakan.

Slakan v. Porter, 737 F.2d 368, 376 (4th Cir.

1984).

Yet, this very line of reasoning had previously been

rejected in Rizzo. Plaintiffs in that case brought suit

against several Philadelphia officials seeking to hold

them responsible for various incidents of police

misconduct. They argued that even in the absence of

evidence showing that the officials were directly

responsible for the misconduct the officials’ failure to

act in the face of a statistical pattern of abuse was

sufficient to establish liability. This Court responded

that,

Such reasoning, however, blurs accepted

usage and meanings in the English language

in a way which would be quite inconsistent

with the words Congress chose in §1983. We

have never subscribed to these amorphous

propositions and we decline to do so now.

Id. at 375-76.

Petitioners submit that, just as in Rizzo, the mere

existence of prior use of force incidents, even if they

could be characterized as a “pattern of misconduct,”

are not sufficient to establish a nexus between

Slakan’s injuries and the adoption of a plan or policy

by Petitioners showing their authorization or approval

of such misconduct. Although Petitioners had

approved the use of water hoses and other force

against cell-confined inmates where necessary, that

fact does not show approval, express or otherwise of

the excessive use of force. There is no per se

prohibition of the use of water hoses, tear gas and the

like against cell-confined inmates as several courts

have recognized. See, e.g., Bailey v. Turner, 736 F.2d

963 (4th Cir. 1984); Spain v. Procunier, 600 F.2d 189

(9th Cir. 1979); Clemmons v. Greggs, 509 F.2d 1338

(5th Cir. 1975); Peterson v. Davis, 551 F. Supp. 137 (D.

Md. 1982); Hawkins v. Elliott, 385 F. Supp. 354 (D.S.C.

1974); Beishir v. Swenson, 331 F. Supp. 1227 (W.D.

Mo. 1971). And, as noted above, none of the prior

incidents had been found excessive in any court.4

On the other hand, the uncontradicted evidence

(offered by Slakan himself) showed that the

Petitioners had adopted written policies mandating

that physical force should be used only in limited

circumstances after other methods had failed, (to

prevent escape, to prevent injury to staff, citizenry or

inmates, or to prevent damage to property), and only

in that amount which appears reasonably necessary.

See Appendix.

However, the thrust of the decision below was that

Petitioners should have known that their use of force

policies were inadequate based on the prior incidents

such that Respondent's injuries were a “natural and

foreseeable consequence of the supervisors’

indifference.” S/akan v. Porter, supra at 376. Not only

does this reasoning fail under Rizzo and Monell but it

fails under the undisputed fact that not one of the prior

incidents offered by Slakan involved the use of riot

batons - the instrument that caused the only real

injuries in this case i.e., four cuts to the head. Further,

only one of the prior incidents involving use of the fire

hose resulted in any injury, and that was limited to

bruises. Nevertheless, the decision of the Court of

Appeals effectively requires that the two highest

ranking officials of the State Prison system

encompassing 86 prisons, 15,000 inmates and 5,700

employees as well as the Warden of the State's largest

prison to have predicted what occurred in

Respondent’s case based on the prior, clearly

dissimilar incidents.§

4One subsequent incident was adjudicated in petitioners’

favor.

5The inmate population at Central Prison was nearly 1,500 at

the time of the Slakan incident.

eT

10

Petitioners submit that the effect of such a holding is

to negate the Rizzo and Monell requirement that there

be evidence of an affirmative link between a

subordinate’s misconduct and the adoption of a plan

or policy showing that the supervisors authorized

such misconduct.

The implications for future cases against high

ranking supervisory officials in all areas of State

government are alarming and clear. The failure to

predict the excesses of employees far removed from

the officials’ level of immediate supervision is likely to

result in personal liability for compensatory and

punitive damages under 42 U.S.C. §1983 if it can be

said from the vantage of hindsight that the injury was

foreseeble. This stretches beyond the breaking point

the clear requirement of the statute that there be

personal involvement in the deprivation of another's

constitutional rights in order for liability to attach.

Both this court and the Fourth Circuit Court of Appeals

have recognized that, while high ranking officials can

be held liable under §1983 if they violate another's

rights, there comes a point when their conduct is

simply too remote in legal contemplation to have that

effect. Martinez v. California, 444 U.S. 277, 285 (1980);

Ross v. Reed, 719 F.2d 689 (4th Cir. 1983). That point

was passed in this case.

CONCLUSION

For the reasons stated above the Petition for a Writ

of Certiorari should be granted.

This is the 9th day of November 1984.

Respectfully submitted.

RUFUS L. EDMISTEN

Attorney General

Jacob L. Safron

Special Deputy Attorney General

Lucien Capone III

Assistant Attorney General

N.C. Department of Justice

P.O. Box 629

Raleigh, North Carolina 27602

Telephone: (919) 733-7188

12

CERTIFICATE OF SERVICE

This is to certify that three (3) true and correct copies

of the foregoing Petition for Certiorari has been

served upon the following by depositing three (3)

copies of the same in the United States Mail, postage

prepaid, addressed to:

Charles T.L. Anderson

N.C. Prisoner Legal Services

6th Floor Capital Club Building

16 W. Martin Street

Raleigh, North Carolina 27611

This is the 9th day of November, 1984

RUFUS L. EDMISTEN

Attorney General

Jacob L. Safron

Special Deputy Attorney General

Lucien Capone Ill

Assistant Attorney General

APPENDIX

APPENDIX

Opinion of the Court of Appeals .............. A-1

Opinion of the Court of Appeals on Rehearing . A-26

Regulations and Policy Statements on

I hice iene in bly KAO Cd 0.w Bide BiW%e 6 A-38

Charles J. SLAKAN, Appellee,

v.

T.C. PORTER, M.M. Walters, Amos

Reed, Ralph Edwards, Sam

Garrison, Appellants.

and

J.B. Barefoot, J.G. Watson, D.R. Woodward, Jack

Lemons, Defendants.

No. 83-6542.

United States Court of Appeals,

Fourth Circuit.

Argued Feb. 19, 1984.

Decided June 5, 1984.

Inmate who was injured when prison guards used

high-pressure water hoses, tear gas and billy clubs to

subdue him while he was confined in a one-man cell

brought section 1983 suit against three guards and

three high-ranking prison supervisory officials,

alleging that guards used excessive force in violation

of Eighth Amendment and that supervisory officials

were deliberately indifferent to a known risk of harm.

The United States District Court for the Eastern

District of North Carolina, Alexander Denson,

Magistrate, entered judgment in favor of prisoner in

the amount of $32,500, and defendants appealed. The

Court of Appeals, Sprouse, Circuit Judge, held that:

(1) prison guards’ heavy-handed use of water hoses,

billy clubs, and tear gas against prisoner crossed line

separating necessary force from brutality; (2)

evidence was sufficient to establish supervisory

liability of warden, Director of Prisons, and Secretary

of Correction; (3) supervisory officials were not

entitled to qualified immunity from money damages,

since they had explicit legal guideposts to follow when

discharging their duties and were or should have been

aware of firmly established duty to ensure that

legitimate instruments of control were not misused;

(4) trial court committed harmiess eyror in relying on

North Carolina law for its ruling that conversations

between prisoner and his psychologist were

privileged and could not be disclosed; (5) trial court

acted within bounds of its discretion in permitting

jury to view videotape depicting force unleashed by

high-pressure water hoses and (6) correction expert's

opinions concerning punitive nature of North

Carolina’s water hosing practices were property

admitted.

Affirmed.

1. Civil Rights

Unjustified striking or beating of prisoner by police

or correctional officials constitutes cruel and

unusual punishment” which is actionable under

section 1983. 42 U.S.C.A. §1983; U.S.C.A. Const.

Amend. 8.

See publication Words and Phrases for other judicial

constructions and definitions.

2. Prisons

High-pressure water hoses, tear gas, and billy clubs,

though legitimate forms of control in certain

circumstances, become instruments of brutality when

used indiscriminately against a defenseless prisoner.

3. Prisons

Even when a prisoner's conduct warrants some

form of response, norms of decency require prison

officials to use techniques and procedures that are

both humane and restrained.

4. Civil Rights

Although prisoner's abusive language as he

complained about missing morning cup of coffee may

have deserved punishment through prison

disciplinary machinery, it did not justify subjecting

him to steady blasts of water from two high-pressure

hoses, tear gas, and beating him savagely around the

head and body with billy clubs, and thus guards’

conduct crossed line separating necessary force from

brutality and indisputably deprived prisoner of a right

secured by the Constitution and laws of the United

States. U.S.C.A. Const. Amend. 8.

5. Civil Rights

Supervisory officials may be held liable in certain

circumstances for constitutional injuries inflicted by

their subordinates; liability in such context is not

premised on respondeat superior, but on recognition

that supervisory indifference or tacit authorization of

subordinates’ misconduct may be a causative factor in

constitutional injuries they inflict on those committed

to their care.

6. Civil Rights

Prisoner assumes a heavy burden of proof in

supervisory liability cases, since he not only must

demonstrate that prisoners face a pervasive and

unreasonable risk of harm from some specified

source, but he must show that supervisor’s inaction

amounts to deliberate indifference or tacit

authorization of offensive practices.

7. Civil Rights

Prisoner who brings supervisory liability suit cannot

satisfy his burden by pointing to a single incident or

isolated incidents, for a supervisor cannot be

A-4

expected to promulgate rules and procedures

converting every conceivable occurrence within area

of his responsibilities; nor can he reasonably be

expected to guard against deliberate criminal acts of

his properly trained employees when he has no basis

upon which to anticipate misconduct; however, a

supervisor's continued inaction in face of

documented widespread abuses provides an

independent basis for finding he either was

deliberately indifferent or acquiesced in the

constitutionally offensive conduct of his subordinates.

8. Civil Rights

Supervisory liability in civil rights context may

extend to highest levels of state government; outer

limits of liability in any given case are determined

ultimately be pinpointing persons in decision-making

chain whose deliberate indifference permitted

constitutional abuses to continue unchecked; final

determination generally is one of fact, not law, but

state statutes fixing administrator's legal duties

provide a useful guide in determining who had

responsibility and capability to end offensive

practices.

9. Civil Rights

Although conduct of supervisory officials may be

fairly characterized as a breach of their legal and

constitutional duties, they are not liable in a civil

rights context unless an affirmative causal link exists

between their inaction and harm suffered by plaintiff.

10. Civil Rights

Warden, Director of Prisons, and Secretary of

Corrections were liable as supervisors for injuries

suffered by prisoner in a one-man cell who was

subjected to water blasts from high-pressure hoses,

where evidence established that supervisors all had

varying degrees of knowledge about excessive and

unregulated use of water hoses against unarmed,

securely confined inmates in prison, they were aware

of their special statutory and _ constitional

responsibilities to protect inmates against inhumane

treatment, they knew that water blasts from a high-

pressure hose would have probably inflicted injuries

of unprecictable severity on prisoners, but they failed

to act and provided little or no direction to their

subordinates concerning appropriateness of water

hosing practice of safeguards that should be followed

to protect inmate from excessive force and injury.

11. Civil Rights

Warden, Director of Prisons, and Secretary of

Corrections were not entitled to qualified immunity

from money damages awarded prisoner who was

subjected to water hosing, tear gas and beating, since

officials had explicit legal guideposts to follow in

discharging their duties, and they were or should have

been aware of their firmly established duty to ensure

that legitimate instruments of control were not

misused; moreover, whether or not officials were

actually aware of their constitutional and statutory

obligations, they were presumed to know what the law

required, and could be legally accountable for

conduct that violated fixed standards.

12. Federal Courts

Federal Rule of Evidence requires federal courts to

determine testimonial privileges in accordance with

federal common law, except in cases in which law of

the state supplies rule of decision. Fed. Rules Evid.

Rule 501, 28 U.S.C.A.

A-6

13. Federal Courts

Trial court inaction by prisoner alleging he was

deprived of his civil rights by water hosing and beating

admnistered by guards erred in relying on North

Carolina law for its ruling that conversations between

prisoner and his psychologist were privileged and

could not be disclosed; however error was harmless

since prison officials proffered the evidence to prove

that prisoner accepted partial responsibility for

provoking guard’s attack and evidence was merely

cumulative of other testimony and did not prejudice

their attempt to present a provocation defense to jury.

14. Evidence

Inaction by prisoner for injuries suffered when

prison guards used high-pressure water hoses, tear

gas and billy clubs to subdue him while he was

confined in one-man cell, trial court acted well within

bounds of discretion in permitting jury to view

videotape depicting force unleashed by hose

squirting water under 55 pounds of pressure, since

water pressure and hose nozzle used against prisoner

were the same as those depicted in videotape

documentation, tape was shown in conjunction with

expert testimoney of fireman who was fully qualified

to discuss force generated by high-pressure water

hoses, and thus videotape accurately and fairly

depicted force applied against prisoner.

15. Evidence

Federal Rules of Evidence permit trial court wide

discretion in admitting expert testimony bearing on

ultimate issues in the case. Fed. Rules Evid. Rules 702,

704, 28 U.S.C.A.

A-7

16. Evidence

Inaction by prisoner to recover for injuries he

sustained when prison guards used high-pressure

water hoses, tear gas, and billy clubs to subdue him

while he was confined in a one-man cell, trial court did

not abuse its discretion in admitting correction

expert's opinions concerning punitive nature of North

Carolina's water hosing practices.

Lucien Capone, III, Asst. Atty. Gen., Raleigh, N.C.

(Rufus L. Edmisten, Atty. Gen.., Raleigh, N.C., on

brief), for appellants.

Charles T.L. Anderson, Apex, N.C. (Richard E.

Giroux, North Carolina Prisoner Legal Services, Inc.,

Raleigh, N.C., on brief), for appellee.

Before SPROUSE and CHAPMAN, Circuit Judges,

and PECK, Senior Circuit Judge.”

SPROUSE, Circuit Judge:

Charlies J. Slakan, a North Carolina inmate, was

injured when prison guards Michael Walters, Tracy

Porter, and Johnny Barefoot used high-pressure

water hoses, tear gas, and billy clubs to subdue him

while he was confined in a one-man cell. He broughta

42 U.S.C. § 1983 suit against the three guards and

three high ranking prison supervisory officials,

Warden Sam Garrison, Director of Prisons Ralph

Edwards and Secretary of Corrections Amos Reed,

alleging (1) that the guards used excessive force

against him in violation of the eighth amendment's

cruel and unusual punishi,.ent clause and (2) that

*Hon. John W. Peck, Senior Circuit Judge, Sixth Circuit, sitting

by designation.

A-8

supervisory officials were deliberately indifferent to a

known risk of harm, as evidenced by their failure to

provide prison guards with adequate training and

guidance. The jury absolved prison guard Porter of

liability, but awarded Slakan $32,500 in combined

compensatory and punitive damages against the

remaining five defendants. We affirm.

Slakan was housed in a one-man cell at Central

Prison in Raleigh, North Carolina, during the episode

involved in this appeal. Walter, Porter, and Barefoot

were prison guards assigned to the intensive manage-

ment section of the Raleigh facility where Slakan was

confined. Garrison was the Central Prison Warden

and Edwards and Reed served as North Carolina’s

Director of Prisons and Secretary of Corrections,

respectively.

On the morning of August 3, 1979, Slakan awakened

to discover that he and many of his feliow inmates had

missed receiving their usual morning cup of coffee. He

complained loudly and finally drew the attention of

Walters, the acting lieutenant in charge of cell-blocks,

A, B, C and D. Walters brusquely rejected Slakan’s

complaint and began walking away from the cell when

the inmate reached through the bars of his door and

slapped the lieutenant on the shoulder. The parties

vigorously dispute the amount of force Slakan used to

impede the g'iard’s movement. Walters spun around

upon receiving the blow and flung a cup of coffee he

was holding in Slakan’s direction, striking the prisoner

in the face and shoulder. Enraged, Slakan spewed

obscenities at Walters, who immediately called for a

water hose to quell the one-man disturbance. The

hose was brought to the cell door and a blast of water

A-9

was directed at Slakan’s head and neck. The inmate

panicked and hurled toilet paper, cleaning agents, and

other small items within his reach toward Walters.

Another hose was ordered and a second biast of water

was directed at Slakan’s head and nack, forcing him

against the back wall of his cell.

Meanwhile, tear gas was sprayed into the cell every

several minutes, eventually rendering the prisoner

powerless. Guards Walters, Barefoot, and Porter

ceased their two-pronged attack against Slakan after

five to ten minutes and entered his cell. One of the

guards struck Slakan twice on the head and with a billy

club causing him to fall into his bed. He then was

beaten repeatediy on the head and body an

indeterminate number of times until he apparently

lost consciousness. Slakan eventually was removed

from the cell and taken to the first aid room for

treatment. He required sixty-nine stitches for the head

wounds received during the attack, and reportedly

suffered minor contusions and eye irritation from the

water blasts and tear gas.

Slakan, acting pro se, filed suit against the guards

involved in the episode, alleging that they had used

excessive force in the conduct of their duties. He also

named Warden Garrison, Director Edwards, and

Secretary Reed as co-defendants, claiming that they

either had been deliberately indifferent to the use of

excessive force by guards or had tacitly authorized

such practices through their regulations and policies.

The district court appointed counsel to assist Slakan

in the presentation of his case, and all parties

consented to jury trial before a United States

magistrate.

The trial began on May 31, 1983, and lasted four

days. The evidence relating to the guard’s excessive

use of force in subduing Slakan was straightforward

and convincing. The evidence relating to the super-

visory liability of Garrison, Edwards, and Reed,

however, was much more indirect and involved. It

showed that though none of the three men had given

express approval for the use of force against Slakan,

they were all aware of seven recent cases involving the

use of high-pressure hoses against Central Prison

inmates housed in one-man cells. The evidence

further showed that Garrison and Edwards had

disapproved of a gubernatorial committee’s call for

rules restricting the use of high pressure water hoses

to situations in which the inmate posed a threat to

himself or others. Slakan’s case against Secretary

Reed focused principally on his failure to enact

regulations specifying when and under what

circumstances high-pressure hoses, billy clubs, and

tear gas might be used against a prisoner in a one-man

ceil.

The jury deliberated for a few hours and returned a

verdict for the plaintiff against all defendants except

Porter, one of the guards allegedly responsible for

striking Slakan on the head. All five remaining

defendants were ordered to pay $500 each in

compensatory damages and sums ranging from

$10,000 to $1,000 each in punitive damages, for a total

award to Slakan of $32,500. On appeal, the various

defendants seek reversal on the following grounds: (1)

the evidence adduced at trial was insufficient to

establish the supervisory liability of Garrison,

Edwards or Reed; (2) in any event these officials

enjoyed qualified immunity because they did not

violate any of Slakan’s established constitutional

rights; (3) the video demonstration of the effects of a

high-pressure water hose was prejudicial and should

have been excluded; (4) the trial court erred by ruling

that the plaintiff's conversations with his psychologist

A-11

immediately after the attack were privileged; and (5) the

trial court erred by permitting an expert to testify

about the punitive nature of North Carolina’s practices

concerning the use of water hoses against inmates.

[1-31 The unjustified striking or beating of a prisoner

by police or correctional officials constitutes cruel

and unusual punishment which is actionable under 42

U.S.C. § 1983 Wellington v. Daniels, 717 F.2d 932, 935

(4th cir. 1983); King v. Blankenship, 636 F.2d 70, 72

(4th Cir. 1980). See also Bruce v. Wade. 537 F.2d 850

(5th Cir. 1976); Johnson v. Glick 481 F.2d 1028 (2d

Cir.) cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38

L.Ed.2d 324 (1973). Society’s intolerance for such

brutality is well-documented, but it rises to new levels

when the instrument of harm, even when properly

used, possesses inherently dangerous characteristics

capable of causing serious and perhaps irreparable

injury to the victim. High-pressure water hoses, tear

gas, and billy clubs, though legitimate forms of control

in certain circumstances, become instruments of

brutality when used indiscriminately against a

defenseless prisoner, See, e.g., Spain v. Procunier,

600 F.2d 189 (9th Cir. 1979). Even when a prisoner's

conduct warrants some form of response, evolving

norms of decency require prison officials to use

techniques and procedures that are both humane and

restrained.

[4] The prison guards’ heavy-handed use of water

hoses, billy clubs, and tear gas against Slakan

unquestionably crossed the line separating necessary

force from brutality. The prisoner was locked in a one-

man cell at the time of the incident and posed no direct

physical threat to other inmates or any of the guards.

His abusive language may have deserved punishment

through the prison disciplinary machinery but it

assuredly did not justify subjecting him to steady

blasts of water from two high-pressure hoses or

beating him savagely around the head and body with

billy clubs. The guards’ conduct indisputably deprived

Slakan of a right secured by the Constitution and the

laws of the United State. Baker v. McCollan, 443 U.S.

137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). Our

principal focus, then, is determining whether the

responsibility for that deprivation can be traced to the

actions of the guards supervisors.

A

[5] The decisions of this Court have firmly

established the principle that supervisory officials

may be held liable in certain circumstances for the

constitutional injuries inflicted by their subordinates.

See Orpiano v. Johnson, 632 F.2d 1096, 1101 (4th Cir.

1980), cert denied, 450 U.S. 929, 101 S.Ct. 1387, 67

L.Ed.2d 361 (1981). See also Wellington, 717 F.2d at

936; Withers v. Levine 615 F.2d 158 (4th Cir. 1980).

Liability in this context is not premised on respondeat

superior, Monell v. Department of Social Services, 436

U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611

(1978), but on a recognition that supervisory

indifference or tacit authorization of subordinates’

misconduct may be a causative factor in the

constitutional injuries they inflict on those committed

to their care. Orpiano, 632 F.2d at 1101.

[6, 7] The plaintiff, of course, assumes a heavy

burden of proof in supervisory liability cases. He not

only must demonstrate that the prisoners face a

pervasive and unreasonable risk of harm from some

specified source, but he must show that the

supervisor's corrective inaction amounts to deliberate

A-13

indifference or “tacit authorization of the offensive

[practices]”. Orpiano, 632 F.2d at 1101 (quoting

Withers v. Levine, 615 F.2d 158, 161)(4th Cir. 1981).

Ordinarily, he cannot satisfy his burden of proof by

pointing to a single incident or isolated incidents,

Orpiano, 632 F.2d at 1101, for a supervisor cannot be

expected to promulgate rules and procedures

covering every conceivable occurrence within the

area of his responsibilities. Nor can he reasonably be

expected to guard against the deliberate criminal acts

of his properly trained employees when he has no

basis upon which to anticipate the misconduct. A

supervisor's continued inaction in the tace of

documented widespread abuses, however, provides

an independent basis for finding he either was

deliberately indifferent or acquiesced in the

constitutionally offensive conduct of his

subordinates. /d. See also Wellington, 717 F.2d at 936.

[8] Supervisory liability in the civil rights context

may extend to the highest levels of state government.

See, e.g., Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct.

1683, 40 L.Ed.2d 90 (1974). The outer limits of liability

in any given case are determined ultimately by

pinpointing the persons in the decisionmaking chain

whose deliberate indifference permitted the

constitutional abuses to continue unchecked. The

final determination “generally is one of fact, not law,”

Avery v. County of Burke, 660 F.2d 111, 114 (4th Cir.

1981), but state statutes fixing the administrator’s

legal duties provide a useful guide in determining who

had the responsibility and capability to end the

offensive practices.

We are satisfied that the evidence offered by Slakan

against Warden Garrison, Director Edwards, and

Secretary Reed established the supervisory liability of

these government officials. cf. McElveen v. Hutto, 725

A-14

F.2d 925 at 958 (4th Cir. 1984) (fact-finding by jury will

be set aside only where evidence, viewed in light most

favorable to prevailing party, is so clearly wrong that

reasonable persons could not reach any other

conclusion that the asserted by losing party on

appeal). Garrison was responsible for the day-to-day

operations of the Central Prison and for the training

and conduct of the guards. He admitted at trial that he

knew of and condoned the use of high-pressure water

hoses against inmates housed in one-man cells on at

least seven occasions in the twelve months preceding

the attact upon Slakan.' He admitted, moreover, that

on one occasion he had personaily approved of the

use of a high-pressure hose against an inmate who

was handcuffed and confined in a4 cell by himself.

‘In the months immediateldy preceding the Slakan incident, several

inmates confined in one-man cells were sprayed with tear gas and hosed

by Central Prison guards. Only one of the incidents involved an inmate

posing a physicial threat to himself or guards.

Inmate Ingram complained about a prison guard's failure to provide

him with a pork-free meal and slung his food tray at his cell door.

Although he was secure in his cell and posed no threat to himself, guards

or other inmates, he was subjected to the water biast from a high-

pressure hose for several minutes. The Warden took no action against

the guards involved.

inmate Grogan reportly was acting strange late one night while the

other prisoners were sleeping. He apparently threw his radio from his

cell and used abusive language when a guard investigated. He was

hosed for five minutes. The Warden approved of the use of force in the

incident.

inmate Shephouser was sprayed with tear gas and hosed for five

minutes after he threw a light bulb and mirror from his cell. The mirror

struck a guard in the chest, but did not cause an injury. The prisoner was

not armed and posed no direct physical threat to himself, guards or other

inmates. The Warden approved of the use of force.

inmate Rice was confined in a one-man cell at Central Prison. On May

10, 1979, he twice threw unknown substances at passing inmates. He

was warned by guards to cease and then sprayed with tear gas and high-

pressure water hose. He was treated for injuries at the first aid station.

The guards were exonerated of any wrongdoing by the Warden.

A-15

Slakan’s case against Garrison was bolstered by the

testimony of a non-defendant guard who reportedly

took part in six hosings while at Central Prison. He

indicated that the practice was widespread among the

guards and seldom questioned by supervisors. He

also noted that alternative intervention techniques

training was given to guards dealing with mental

patients, but not to those handling regular inmates.

Evidence introduced at trial further showed that

Garrison had opposed a gubernatorial commission

recommendation in 1975 that would have strictly

regulated the use of water hoses against inmates

locked in one-man cells. The commission

recommendation was an outgrowth of an incident in

which a North Carolina inmate was subjected to the

Inmate Brower broke his food tray into pieces and began throwing

them from his cell. He was sprayed with tear gas and later treated for eye

irritation. The use of force was approved by the Warden.

Inmate Perry reportedly threw his food tray and cup of water at

inmates serving his meal. He was sprayed with tear gas by prison guards

to bring him under control. The use of force was approved by Warden.

Inmate ingram was involved in a second hosing incident weeks before

the Slakan attack. He reportedly reached through the bars of his cell and

attempted to cut a passing guard with a razar blade. He refused to

surrender the blade and then was sprayed with mace and subjected to

water blast of a high-pressure hose for several minutes.

Inmate Mitchell became abusive with guards while he was in the

visitation center, and was taken back in handcuffs to his one-man cell in

the intensive management section of the prison. Several minutes later,

the guards reappeared at his cell door with a water hose and began

spraying the still handcuffed prisoner. The hosing lasted for nearly

twent-five or thirty minutes before the uproar of inmates witnessing the

incident caused the guards to cease. Mitchell was treated by emergency

room Officials for his injuries. The Warden approved of the use of force

against Mitchell.

A-16

high-pressure blast of a water hose for 25 to 30

minutes while he was securely confined in his cell. In

sum, the prevalence of the hosing practice was well-

known to Garrison, yet he failed to offer adequate

guidance to his subordinates concerning the

appropriate uses of such techniques when dealing

with inmates securely confined.”

Director Edwards was responsible for the day-to-

day operations of all prisons in the North Carolina

system. One of his primary responsibilities was

implementing policies governing the treatment of

inmates. 5 N.C.ADMIN.CODE 2A. 0101. In his official

capacity, Edwards became aware well before the

Slakan incident that hoses and tear gas were routinely

being used against inmates locked in their individual

cells. He admitted specific knowledge about the seven

incidents that immediately preceded the Slakan attack

and indicated that he approved of the use of force in

each case. He conceded that the practice created

certain risks for the inmates yet testified that he never

attempted to discover the magnitude of the risks as

part of a plan to restrict or regulate the practice. He

conceded, moreover, that he had opposed

implementing the 1975 commission recommendation

concerning the need for tighter controls on the use of

high-pressure hoses against cell-confinded inmates.

His own testimony also established that he had never

issued orders placing restrictions on the use of hoses

against inmates, despite his actual knowledge about

the widespread reliance on the practice.

The case against Secretary Reed was equally

?Slakan introduced evidence indicating that the inmate population

deeply resented the use of water hoses against individuals who were

locked in their cells. In some instances, the use of water hoses actually

triggered riotous behavior among those inmates forced to watch one of

their own pinned against the wail of his cell by a continuous biast of

water.

A-17

convincing. The State of North Carolina invests the

Secretary of Corrections with the responsibility for the

“control and custody of all prisoners serving

sentence(s) in the .. . the prison system.”

N.C.Gen. Stat. § 148-4. Every state correctional

facility is by statute placed under his “administrative

control and direction.” N.C. Gen. Stat. 148-36. In

discharging his duties, the Secretary is empowered

to “propose rules and regulations for the government

of the State prison system, which shall become

effective when approved by the Department of

Correction.”

N.C. Gen. Stat. § 148-11. The Secretary shoulders

specific responsibility for classifying prison facilities

and for developing programs “so as to permit the

proper segregation and treatment of prisoners

according to the nature of the offenses committed, the

character and mental conditions of the prisoners, and

such other factors as should be considered in

providing an individualized system of discipline, care

and correctional treatment” N.C.Gen.Stat. § 146-36.

Slakan’s case against Secretary Reed focused on

his failure to exercise his statutory powers in a manner

calculated to end the indiscriminate use of high-

pressure water hoses against inmates securely

housed in one-man Cells. In support of his case,

Slakan introduced copies of the Department of

Correction’s regulations governing the use of force

against prisoners. Those regulations state that

“[p]hysical force, firearms, tear gas, mace and other

weapons for crowd and individual control will be used

only when necessary to prevent escape or injury to

staff, citizenry, or inmates; or to prevent damage to

property.” 5 N.C.ADMIN.CODE 2f. 1501(a). They do

not differentiate, however, between the application of

force against a roaming inmate and one locked in his

A-18

one-man cell. Nor do they even mention the use of

high-pressure water hoses against any segment of the

prison population, much less provide proper guidance

for their use against an individual securely segregated

from the general prison population.

A correctional expert testifying on behalf of

Slakan’s claim detailed the shortcomings of the North

Carolina regulations. He noted that the Secretary had

failed to properly identify the circumstances justifying

the use of tear gas against a prisoner and omitted any

reference at all to the use of water hoses, thereby

leaving the critical decisions as to the use of these

inherently dangerous instrumentalities solely to the

discretion of frontline personnel. He expressed the

view that the use of water hoses and tear gas against

cell-confined inmates was an act of punishment rather

than an acceptable control measure. He also offered

the option that the application of force against Slakan

was an outgrowth of the prison system's failure to

provide adequate direction to subordinates concerning

the proper use of force against any inmate locked ina

one-man cell.

Secretary Reed indisputably knew that water hosing

was used as a routine control measure in North

Carolina prisons. The evidence showed that Reed

became Secretary shortly after a highly-publicized

incident in which an inmate was hosed for 25 to 30

minutes while helplessly locked in his cell. Although

he had no direct hand in the incident, Reed certainly

must have been aware of the commission report

recommending tighter controls on the use of water

hoses in North Carolina prisons. Moreover, the

prevalence of the practice was itself a circumstantial

indication that administrators at all levels knew and

approved of water hosing. The defendants admitted

that seven cell-confinded inmates were water hosed at

A-19

Central Prison in the months immediately preceding

the Slakan attack. Warden Garrison and Director

Edwards testified that they had personal knowledge of

these incidents and approved of the procedures

followed in each case. A non-defendant guard

testified that he was involved in at least six incidents of

hosings in the year he spent at Central Prison without

ever receiving a reprimand. There also was evidence

of an incident in which an inmate was handcuffed and

hosed for 25 to 30 minutes without any action being

taken against the guards. Put bluntly, it is

inconceivable that an administrator with direct

Statutory responsibility for prescribing the operating

rules of the prison system would be unaware of a

practice as rampant and as widely approved of as the

use of water hoses against securely confined inmates.

Any doubt about the Secretary’s awareness was

dispelled by the testimony of Warden Garrison, who

indicated that Reed knew of the water hosing

practices.

[9] The failure of Garrison, Edwards and Reed to act

in the face of a known risk of harm does not alone

establish their liability to Slakan. Though their

conduct may be fairly characterized as a breach of

their legal and constitutional duties, they are not liable

unless an affairmative causal link exists between their

inaction and the harm suffered by Siakan. Rizzo v.

Goode, 423 U.S. 362, 96 S. Ct. 598, 46 L.Ed.2d 561

(1976). See also Wellington, 717 F.2d at 936; Bowen v.

Watkins, 669 F.2d 979, 988 (5th Cir.1982); Sims v.

Adams, 537 F.2d 829, 831 5th Cir. 1976). The proof of

causation may be direct, “as in Monel/, where the

policy commands the injury of which the plaintiff

complains . . . [o]r may be supplied by [the] tort

A-20

principle that holds a person liable for the natural

consequences of his action.” Wellington, 717 F.2d at

936.

[10] The evidence presented at trial was sufficient to

establish that Slakan’s injuries were a natural and

forseeable consequence of the supervisors’

indifference. Warden Garrison, Director Edwards, and

Secretary Reed all had varying degiees of knowledge

about the excessive and unregulated use of water

hoses against unarmed securely confined inmates in

North Carolina's Central Prison. As experienced

administrators, they were keenly aware of their special

statutory and constitutional responsibilities to protect

inmates against inhumane intreatment. They all knew,

moreover, that water blasts from a high-pressure hose

would probably inflict injuries of unpredictable

severity on inmates. Finally they were cognizant of the

volatile nature of the prison environment and the need

to provide clear quidance to frontline personnel on the

permiss ole use of force against defenseless inmates.

The evidence conclusively establishes that, despite

the obviousness of the danger and the ease with which

it could have been abated, the supervisors failed to

act. They provided little or no direction to their

subordinates concerning the appropriateness of the

water hosing practice or the safeguards that should be

followed to protect the inmate from excessive force

and injury. Critical decisions relating to permissible

water pressure levels, exposure periods, and the

circumstances justifying its use against securely

confined inmates were all left to the guards’ unbridled

discretion. This administrative policy, or more

accurately lack of policy, invited abuse of the kind

experienced by Slakan.

A-21

[11] Garrison, Edwards and Reed argue that, even if

their conduct was actionable under § 1983, they are

entitled to qualified immunity from money damages.

We disagree. In Harlow v. Fitzgerid, 457 U.S. 800, 818,

102 S.Ct. 2727, 2739, 73 L.Ed.2d 396 (1982), the

Supreme Court carefully defined the contours of the

qualified immunity or good faith defense:

“[G]overnment officials performing discretionary

functions generally are shielded from liability for civil

damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of

which a reasonable person would have known.” See

also Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57

L.Ed.2d 895 (1978); Procunier v. Navarette, 434 U.S.

555, 98 S.Ct. 855 55 L.Ed.2d 24 (1978); Wood v.

Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214

(1975); Scheuer v. Rhodes, 416 U.s. 232, 94S.Ct. 1683,

40 L.Ed.2d 90 (1974). Harlow reaffirmed the principle

that a public official cannot escape § 1983 liability by

relying solely on his subjective good faith or lack of

actual knowledge about the extent of his

constitutional or statutory duties. His subjective state

of mind is but one part of the formula, for he is

presumed to kriow what the law requires and may be

forced to pay money damages when his actions cross

those well-marked boundaries. Harlow, 457 U.S. at

815, 102 S.Ct. at 2737. See also McElveen et al. v.

Hutto, 725 F.2d 954 (4th Cir.1984).

The officials involved in the present case had

explicit legal guideposts to follow in discharging their

duties. At the time of Slakan’s beating, the eighth

amendment unquestionably protected inmates from

the unjustified and excessive use of force by prison

officials. See Bruce v. Wade, 537 F.2d 850 (5th

|

A-22

Cir.1976); Pritchard v. Perry, 508 F.2d 423, 425-26 (4th

Cir.1975); Johnson v. Glick, 481 F.2d 1028 (2d Cir.)

cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d

324 (1973). Roughly the same protection was provided

by the North Carolina law. See N.C.Gen.Stat. §148-20.

Of course, the use of billy clubs, tear gas, and high-

pressure hoses against securely confined prisoners

was not then, and is not now, unlawful per se, see

Spain v. Procunier, 600 F.2d at 195; Clemmons v.

Greggs, 509 F.2d 1338 (5th Cir.) cert. denied, 423 U.S.

946, 96 S.Ct. 360 46 L.Ed.2d 280 (1975), but North

Carolina officials were or should have been aware of

their firmly established duty to ensure that these

legitimate instruments of control were not misused.

See Landman v. Peyton, 370 F.2d 135 (4th Cir.), cert.

denied, 385 U.S. 881, 87 S.Ct. 168, 17 L.Ed.2d 108

(1966).

Nor can these officials seriously argue that the

application of eighth amendment liability to their

actions represents a novel or unanticipated

development in the jurisprudence governing § 1983

actions. in Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct.

1683, 40 L.Ed.2d 90, which was decided five years

before the incident involved here, the Supreme Court

stated that officials at the highest levels of government

could be individually liable for the constitutional

injuries they inflict. Moreover, well before the Slakan

incident, this Court and others had acknowledged that

the misconduct of frontline personnel could give

rise to § 1983 actions against their supervisors in

certain circumstances. See Davis v. Zahradnick, 600

F.2d 458, 459, n. 1 (4th Cir. 1979): Bursey v.

Weatherford, 528 F.2d 483, 488 n. 7 (4th Cir.1975) rev'd

other grounds, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d

30 (1977); Woodhous v. Virginia, 487 F.2d 889 (4th Cir.

1973). See also Wright v. McMann, 460 F.2d 126 (2d

A-23

Cir.), cert. denied, 409 U.S. 885, 93 S.Ct. 115, 34

L.Ed.2d 141 (1972). Whether or not these officials were

actually aware of their constitutional and statutory

obligations, they are presumed to know what the law

requires, and may be legally accountable for conduct

that violates fixed standards.

IV

{[12]The prison guards and supervisory officials

raise several evidentiary arguments that deserve brief

mention. The first of their contentions is that the trial

court erred in relying on North Carolina law for its

ruling that conversations between Slakan and his

psychologist were privileged and could not be

disclosed. We agree, but find the error harmless.

Federal Rule of Evidence 501 requires federal courts

to determine testimonial privileges in accordance with

federal common law, except in cases in which the law

of the state supplies the rule of decision. Slakan’s

federal constitutional claims obviously did not qualify

for that exception and, therefore, the district court

should have admitted the conversations pursuant to

the well-settled federal rule that such communications

are not privileged. See United States v. Meagher, 531

F.2d 752, 753 (5th Cir.), cert, denied, 429 U.S. 853, 97

S.Ct. 146, 50 L.Ed.2d 128 (1976).

[13] Prison officials proffered the evidence to

disclose the content of Slakan’s communications with

his psychologist in order to prove that he accepted

partial responsibility for provoking the guard’s attack.

The same evidence or defense theory, however, was

introduced through the testimony of at least two other

witnesses. Nathan Rice, an assistant warden at

Central Prison, testified that the plaintiff admitted his

partial responsibility for the attact during the

Warden's investigation of the incident. Slakan himself

A-24

admitted that he had verbally confronted the prison

guard and initiated physical contact by reaching

through his cell doors. He also testified that he felt

some responsibility for the incident. In short, the

defendants’ excluded evidence was merely

cumulative of other witnesses’ testimony and did not

prejudice their attempt to present a provocation

defense to the jury.

[14] We find no merit in the defendants’ contentions

that the trial court erred by allowing a video tape to be

viewed by the jury. The tape contained a visual

depiction of the force unleashed by a hose squirting

water under the fifty five pounds of pressure. It was

offered by Slakan to prove that serious injury could

result from the indiscriminate and unregulated use of

water hoses against inmates — a key element of his

eight amendment case against the prison officials. Its

relevancy, therefore, was established. The only

ground for excluding the evidence was its accuracy.

The water pressure and hose nozzle used against

Slakan were the same as those depicted in the

videotape documentation. Moreover, the tape was

shown in conjunction with the expert testimony of a

fireman who was fully qualified to discuss the force

generated by high-pressure water hoses. There is no

question, then, that the videotape accurately and fairly

depicted the force applied against Slakan. In these

circumstances, the trial court acted well within the

bounds of its discretion in permitting the tape to be

viewed by the jury. See, e.g., Renfro Hosiery Mills Co.

v. National Cash Register Co., 552 F.2d 1061 (4th Cir.

1977); Jackson v. Fletcher, 647 F.2d 1020 (10th Cir.

1981).

[15, 16] We also find no merit in the prison officials’

challenge to the admissibility of a correction expert's

opinions concerning the punitive nature of North

A-25

Carolina’s water hosing practices. Federal Rules of

Evidence 702 and 704 permit the trial court wide

discretion in admitting expert testimony bearing on

the ultimate issues in the case. The trail court here

exercised that discretion only after assuring itself of

the witness’s professional expertise and his familiarity

with the North Carolina procedures under scrutiny.

The court took the additional cautionary step of

instructing the jury as to the proper weight to be given

to the expert’s opinions. Its actions were entirely

proper. See, e.g., United States v. Logan, 641 F.2d 860,

863 (10th Cir.1981) (expert accountant may testify as

to whether funds were improperly removed from

agency).

Accordingly, the district court’s judgement is

affirmed.

AFFIRMED.

A-26

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 83-6542

Charles J. Slakan,

Appellee,

Versus

T. C. Porter; M. M. Walters; Amos Reed;

Ralph Edwards; Sam Garrison,

Appellants,

and

J. B. Barefoot; J. G. Watson; D. R. Woodard

Jack Lemons,

Defendants.

ORDER

The appellants’ petition for rehearing and suggestion

for rehearing in banc were submitted to this Court. As

no member of the Court requested a poll on the

suggestion for rehearing in banc, and

As the panel considered the petition for rehearing

and is of the opinion that it should be denied,

IT IS ORDERED that the petition for rehearing and

suggestion for rehearing in banc are denied.

Entered at the direction of Judge Sprouse, with the

concurrence of Judge Chapman and Judge John W.

Peck, United States District Judge, sitting by

designation.

For the Court,

JOHN M. GREACEN

CLERK

A-27

.1501 GENERAL

(a) Physical force, firearms, tear gas, mace, and

other weapons for crowd and individual control will be

used only when necessary to prevent escape or injury

to staff, citizenry, or inmates; or to prevent damage to

prevent damage to property. Each correctional staff

member involved in an incident requiring use of force

wil! make an immediate and comprehensive “Use of

Force” report to the officer in charge of the unit or

institution (DC-422). The report will include all

relevant facts including the time and place of the

incident and the name of all staff and inmate

witnesses. Also, the threatening circumstances that

made force necessary must be explained.

(b) The officer in charge will then investigate to

determine whether the report of his subordinate is

accurate and complete. Before completing his

investigation, he will allow the inmate to explain his

version of the incident. He will then report the results

of his investigation on form DC-422 and submit the

form through the chain of command to the

Geographic Command Manager, Manager of

Institutions, or Manager of the Youth Services

Complex. Written statements of all witnesses should

be attacted.

(c) When an inmate complains of use of force in

grievance and no DC-422 has been completed, the

officer in charge will investigate. If he determines that

a DC-422 should have been completed, the

responsible staff member will be subject to

disciplinary action.

(b) The officer in charge will report serious

incidents directly by telephone.

(e) Inmates and employees involved in an incident

in which force is used will be examined immediately

A-28

after cessatin of the incident. Emergency medical

treatment will be provided by correctional medica!

staff. If necessary, those involved will be sent to the

nearest medical facility for treatment.

History Note: Statutory Authority G.S. 148-11; 148-

46; Effective July 1, 1976.

.1502 APPLICATION

(a) Physical Force. Only the amount of force that

appears reasonably necessary will be used. Physical

force may be used to maintain reasonable order and

security within the Division of Prisons only when

necessary to prevent escape, injury to citizens, staff or

inmates or to prevent damage or property. Except in

the event of an emergency which may result in injury

or damage to property, physical force should not be

used until other methods of restoring order have been

attempted.

(6) Crowd Control Devices. The following provisions

will govern the use of tear gas in cannisters and all

other tear gas weapons:

(1) Tear gas will only be used as a final measure in

the maintenance of order and security in the

Division of Prisons and only under emergency

conditions, unless specifically approved by the

Area Administrator/Institution head. The use of

tear gas as a punishment is prohibited. Vio-

lations shall subject involved personnel to

appropriate disciplinary action.

(2) Tear gas may not be used unless an exit is

available or can be made readily available for

the inmates following the return of control.

(3) Protective equipment approved by the Director

A-29

of Prisons will be made available to correctional

staff.

(4) Only standard equipment approved by Director,

Division of Prisons shall be employed in the

control of an emergency.

(5) Tear gas equipment will be maintained and

operational at all times. Sufficient quantities of

tear gas and tear gas ammunity to meet a

continuing emergency will be maintained in the

arsenal.

(c) Individual Control Devices. The following

provisions will govern the use of individual control

devices:

(1) Designated correctional officers assigned to

maximum, close, and medium security units

and institutions other than those designated to

house youthful offenders, will be authorized to

carry hand-held billy clubs, riot batons, slap

jacks and mace. Correctional officers at institu-

tions designated to house youthful offenders

may be authorized to carry mace and/or hand-

held billy clubs subject to approval of the

Manager of the Youth Services Complex. Area

administrators and institutions heads will be

responsible for designating the security posts

which are authorized to carry individual control

devices. Except under emergency conditions,

individual control devices will be used only as a

final means of maintaining order and security

and after other reasonable means of ensuring

order have been attempted.

(2) Mechanical restraints or other physical res-

traints may be used to control inmates who

have threatened to mutilate themselves. If the

officer in charge deems this action necessary,

A-30

he will temporarily restrain the inmate and

immediately contact the unit physician or area

psychologist and the area administratory or

institution head. Subject to instructions from

the unit physicians, the area administrator or

institution head may authorized the use of

restraints for a period not to exceed 48 hours.

The reasons for restraint will be documented on

form DC-141. If the unit physician or area

phychologist feels that continued restraint is

necessary to prevent self-mutilation after this

period has expired, he will refer the inmate to

the mental health clinic at Central Prison where

he can be adequately supervised and treated.

(3) The officer in charge may take necessary action

to secure and maintain control over restrained

inmates. Every effort will be made to avoid

undue physical hardship. Restrained inmates

will be temporarily released from their res-

traints every three hours during the first and

second shifts so that they may eat, drink, and

take care of their bodily functions. During the

third shift, an inmate need not be temporarily

released unless he requests to take care of his

bodily functions. However, periodic obser-

vation will be required during the night at 1 hour

intervals and documented on form DC-141.

(d) Firearms. The use of firearms will be authorized

only after an inmate has been ordered to halt during an

intended escape, or to prevent serious injury to staff or

inmates or citizens. Personnel using weapons to

prevent escapes or serious injury will make every

effort to disable rather than kill the individual fired

upon

History Note: Statutory Authority G.S. 148-11

148-46 Effective July 1, 1976.

A-31

(g) Use of Force As provided in Genera! Statute

148-46, when any inmate or several combined offer

violence to any office or employee, or to any fellow

inmate, or attempt to do any injury to state property, or

attempt to escape, resist or disobey any lawful

command, the officer or employee will use any means

necessary to defend himself or to enforce the obser-

vance of discipline, or to secure the person of the

offender, or to prevent an escape. No officer or

employee will strike or lay hands on an inmate except

in defense of himself, or unless it be necessary to

prevent escape or serious injury to person or property

or to quell a distrubance, or to insure compliance with

a reasonable lawful order of a correctional officer. In

such cases, only the amount of physical force neces-

sary to accomplish the desired result is authorized.

.1502 APPLICATION

(a) Physical Force. Only the amount of force that

appears reasonably necessary will be used. Physical

force may be used to maintain reasonable order and

security within the Division of Prisons only when

necessary to prevent escape, injury to citizens, staff or

inmates or to prevent damage to property. Except in

the event of an emergency which may result in injury

or damage to property, physical force should not be

used until other methods of restoring order have been

attempted.

(b) Crowd Control Devices. The following pro-

visions will govern the use of tears gas in cannisters

and all other tear gas weapons:

(1) Tear gas will only be used as a final measure in

the maintenance of order and security in the

Division of Prisons and only under emergency

conditions, unless specifically approved by the

Area Administrator/Institution head. The use of

A-32

tear gas as a punishment is prohibited. Vio-

lations shall subject involved personnel to

appropriate disciplinary action.

A-33

OFFICE MEMORANDUM

To Shift Heads

PLACE Central Prison

DATE: 12-15-77

FROM: Supt. B.R. Watson

SUBJECT: Restraining of Inmates

Recently | have not been receiving adequate no! fi-

cation and documentation of inmates being

restrained. Inamemo of this date to Mr. Wheeler | have

stressed the importance of the approval of the OIC in

the restraining of any inmate.

It will be your responsibility to submit to me

documentation in the form of a memo each time an

inmate is placed in or removed from restraints. This

memo should give detailed information such as

reason restrained, Dy whom requested and by whom

approved.

Thank you for your cooperation in this matter

cc: Capt. Stewart

Capt. White

Capt. Hagemann

File

A-34

OFFICE MEMORANDUM

TO: Shift Heads

PLACE Central Prison

DATE: 12-19-77

FROM: Supt. B.R. Watson

SUBJECT: High Pressure Water Hose

Expect in cases of extreme emergency the high

pressure water hose will not be used except with the

permission of the OIC.

cc: Capt. Stewart

Capt. White

Capt. Hagemann

File

A-35

OFFICE MEMORANDUM

TO: All Concerned Date 1-9-78

FROM: Capt. R.L. White

RE: Use of Force

1.

2.

When possible, use other means available to bring

inmate under control.

When, in your opinion, it is deemed necessary to

use force to bring inmate under control, use only a

reasonable amount to gain control of inmate.

After force has been used, remember, threatening

circumstances that caused force to be used must

be explained.

Obtain statements from ALL staff eyewitnesses.

Obtain statement from inmate involved if he wishes

to make statement.

Render treatment to inmate that force was used on

if necessary. (If no injury received have examined

at first aid room, regardless).

Fill out form DC-422 and route properly.

A-36

OFFICE MEMORANDUM

TO: All Concerned DATE: 5/4/78

FROM: Supt. B.R. Watson

RE: Use of restraints for IM Recreation

Effective immediately the use of restraints during

recreation periods for intensive Management Inmates

will be discontinued.

Restraints will be used in transferring IM inmates to

and from the recreation area however once they are

locked inside the recreation area, the restraints will be

removed.

The officer supervising the recreation must have the

Gas Gun available at all times.

Your cooperation in this matter is appreciated.

cc: Capt. Godfrey

Capt. White

Capt. Hagemann

File

A-37

REGULATIONS AND POLICY STATEMENTS

ON THE USE OF FORCE

5 NCAC 2B

INMATE CONDUCT RULES, DISCIPLINE

.0201 GENERAL

(a) Initial, Any member of the State Correction

Service or other authorized person who witnesses

what appears to be an act of misconduct by an inmate

shall take appropriate action to prevent continuation

of any actual misbehavior by that inmate. Counseling

may be sufficient and should be tried when no add-

itional action appears necessary to stop the mis-

behavior and prevent a recurrence. Assistance shall

be obtained from other personne! when needed to

enforce discipline with minimum risk to persons or

property. The inmate shall be placed in administrative

segregation Only when this action appears to be

necessary to control that inmate or to prevent further

disorder.

(b) Reports. When an observer of apparent mis-

conduct by an inmate concludes that counseling will

be sufficient action because the suspected offender

does not appear responsive or because of the serious-

ness of the suspected offense or when an inmate

observes s®*ious misconduct, the observer should

report the matter to the officer designated by the

superintendent to investigate offenses committed.

(c) Investigations

(1) The designated officer shall begin his invest-

igation as soon as possible, and in any event

within 24 hours after being notified of a

suspected offense. He shall discuss the matter

with the person reporting the incident and with

i 8

A-38

the inmate or inmates accused. Where neces-

sary to ascertain the true facts, he should inter-

view other witnesses, make searches, and

employ other appropriate investigatory tech-

niques

(2) When the investigating officer is satified he has

learned the relevant facts, he may dismiss the

charges if he concludes that the facts do not

justify further proceeding. /n that event, he shall

explain his action to the person reporting the

suspected offense and also the inmate accused.

(3) /f the investigating officer concludes that the

facts found do justify further proceedings, he

shall obtain written and signed statements from

the person reporting the suspected offense,

from the suspected offender, and from the

other persons providing pertinent information.

(4) The accused inmate shall be advised by the

investigating officer that he is entitled to have

written statements from his witnesses but the

number will be limited to avoid useless repet-

ition of the same substance. When statements

are not taken from all of his witnesses, the

investigating officer shall record their names

with an explanation for not taking their state-

ments.

(5) The investigation officer shall make written

notes of any observations made by him during

the course of the investigation which directly

relate to the alleged offense, and he shall take

under his control any physical evidence avail-

able.