Opposition Brief — Reed v. Slakan

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IN THE

Sugreme Court, US.

FILED

FEB 13 i985

ALEXANOER L S’évas

CLERK

SUPREME COURT OF THE UNITED STATES

October Term 19864

No. 84-762

AMOS E. REED, et al.,

Petitioners,

Vv.

CHARLES J. SLAKAN,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RESPONDENT'S BRIEF IN OPPOSITION

N.C. PRISONER LEGAL SERVICES,

Charles T.L. Anderson

Post Office Box 509

Raleigh, North Carolina 27602

Telephone: (919) 626-3506

ATTORNEY FOR RESPONDENT

INC.

TABLE OF CONTENTS

QUESTION PRESENTED. occccvccccccccces

PARTIES TO THE PROCEEDING......... eee

OPINIONS BELOW...... eccceccecece eoee

FUNSMORCEAOMS Sc Sec eh RT eeeeedeedecess

*# eee eee eee eee

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED.....

COUNTERSTATEMENT OF THE CASE .......

REASONS FOR DENYING THE WRIT........

A. PETITIONERS FAILED TO OBJECT TO THE JURY

INSTRUCTIONS REGARDING THE LEGAL STANDARD

FOR § 1983 SUPERVISORY LIABILITY.......

B. THE COURTS BELOW APPLIED THE CORRECT AND

ACCEPTED STANDARD OF LIABILITY FOR § 1983

SUPERVISORY LIABILITY .........

C. THE DECISION BELOW IS CONSISTENT WITH THE

LAW THROUGHOUT THE CIRCUIT COURTS OF APPEAL.....

D. THE EVIDENCE IS SUFFICIENT TO SUPPORT THE

PONS @ VERMA le ccececsecberres

i PUTT UY T Ee rrerr rrr rr ere .

CERTIFICATE OF SERVICE

APPENDIX

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“eee eee

TABLE OF AUTHORITIES

CASES

Allee v. Medrano, 416 U.S. 802 (1974) weseseceresesseees

Bowen v. Watkins, 669 F.2d 979 (Sth Cir. 19862) ..seeeees

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

Hague v. CIO, 307 U.S. 496 (1939) ceseescessvaseseeseees

Haygood v. Younger, 7186 F.2d 1472 (9th Cir. 1963) ......

Hays v. Jefferson County, Ky, 668 F.2d 669 (6th Cir.

1962) cert. denied, 459 U.S. 633 (1984) ...+-eeeee

Herrera v. Valentino, 653 F.2d 1220 (6th Cir. 1981) ..

Jerry v. Francisco, 632 F.2d 252 (3d Cir. 1960) .....

King v. Higgins, 702 F.2d 16 (lst Cir. 1963) ....+...

Lenard v. Argento, 699 F.2d 8674 (7th Cir. 1963)

cert. denied, 8. , $06 8.Ct: GB 6i963) oa

Languirand v. Hayden, 717 F.2d 220 (Sth Cir. 1963) ..

McCann v. Coughlin, 6986 F.2d 112 (2nd Cir. 1963) ....

McClelland v. Factueau, 610 F.2d 693 (10th Cir. 1979)

Monell v. New York City Department of Social Services

S56 U.S. O50 (19IO) cocccccccccccccccccccvcesecseeDylO0,12,13

Morris v. Travisono, 528 F.2d 556 (list Cir. 1976) ...

Orpiano v. Johnson, 632 F.2d 1096 (4th Cir. 1980)

cert. denied, 450 U.S. 929 (1981) ..ceccccccscscees

Owens v. Haas, 601 F.2d 1242 (2nd Cir. 1979) cert.

deniec, 444 U.S. 9BO (1979) wesceccevsseseressesecs

Rizzo v. Goode, 623 U.S. 362 (1976) cnscsccescceseves

Turpin v. Mailet, 619 F.2d 196 (2nd Cir. 1960)

cert. denied, 449 U.S. 1016 (1982) ..cessesesevseess

“vee

-10,12,13

Villanueava v. George, 659 F.2d 851 (86th Cir. 1961) ....

Wanger v. Bonner, 621 F.2d 675 (Sth Cir. 1980) -seseeees

Webster v. City of Houston, 689 F.2d 1220

(Sth Cir. 1982) eee eeeeneeeneaweneeaweaneawnaweweaeeaneaneeeaeeeeeee

ly System,

White v. Washington Public Power Su

2F. 2

Williams v. Bennett, 689 F.2d 1370 (11th Cir. 1962)

cert. denied, U.S. » 104 §.Ct. 335 (1983) ...

OTHER AUTHORITIES

Eagan, The Scope of Supervisory Liability Under

42 U.S.C. § 1982, 6 J. Contemp. L. 1861 (1979) ....--45.

eer eeeeeaeeeaeaeeaaeeeeeee

Municipal Liability Under Section 19863: The Meaning

of “Policy or Custom,” Note, 78 Col. L. R. 308 ......-.. 15

5A Moore Federal Practice § 50.07 (2nd Ed. 1977).. 16

NORTH CAROLINA STATUTES AND REGULATIONS Appendix

S66. Gee, Beats 9 S408, B35 Bes Bhs BO veces as cenen s

GS HCAC ZA COLO occcr cere e eres sbeebs ese ee eeesesreesesese K 4

5 BERS SP SCS CSSD carr ever ees eveeorcevdervesossevoroeve K 5,6

iii

ry IN THE

? SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1984

No. 84-762

AMOS E. REED, et al.,

Petitioners,

Vv.

CHARLES J. SLAKAN,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RESPONDENT'S BRIEF IN OPPOSITION

TO: THE HONORABLE CHIEF JUSTICE AND

ASSOCIATE JUSTICES OF THE SUPREME

COURT OF THE UNITED STATES

The Respondent, Charles J. Slakan, prays that a Writ of

Certiorari 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, be

denied.

QUESTION PRESENTED

Pursuant to Supreme Court Rule 34.2, Respondent Charles J.

Slakan offers the following correction and supplementation to

Petitioner's statement of the Question Presented.

WHETHER STATE PRISON SUPERVISORY OFFICIALS CAN BE HELD

PERSONALLY LIABLE FOR DAMAGES UNDER 42 U.S.C. § 1983 FOR THE

UNCONSTITUTIONAL USE OF FORCE AGAINST A SINGLE, CELL-CONFINED

INMATE BY TWO GUARDS ON THE BASIS OF THEIR DELIBERATE

INDIFFERENCE TO OR TACIT AUTHORIZATION OF A PATTERN OR PRACTICE

OR POLICY OF INDISCRIMINATE OR EXCESSIVE USE OF FORCE AGAINST

CELL-CONFINED INMATES WHICH WAS FOUND BY A JURY TO CAUSE THE

UNCONSTITUTIONAL ASSAULT.

PARTIES TO THE PROCEEDING

OPINIONS BELOW

JURISDICTION

STATUTORY AND CONSTITUTIONAL PROVISIONS INVOLVED

Pursuant to Supreme Court Rule 34.2, these items are omitted

since Respondent is satisfied with Petitioners' statement of each

of these items.

COUNTERSTATEMENT OF THE CASE

Pursuant to Supreme Court Rule 34.2, Respondent Charles J.

Slakan offers the following correction and supplementation to

Petitioners' statement of the case.

First, Petitioners claim that guards “squirted or attempted

to squirt him with two fire hoses" and "[A] small amount of tear

gas was also sprayed into the cell by Walters." (PWC p 6 .*

Testimony during the trial indicated that two high pressure fire

hoses and a dispenser of CS gas were used against Mr. Slakan

while he was unarmed and locked in a single cell. The parties

stipulated that manufacturer’s instructions expressly stated that

the CS gas was not for indoor use. Respondent testified at trial

that the water pressure from the fire hoses forced him to the

back of the cell and forced all the air out of the cell, making

breathing difficult and requiring him to brace himself against the

cell sink to keep from falling or being knocked to the floor.

When he attempted to indicate his submission to the guards, the

spray was directed at his hand and head. (Respondent's Appendix

A 3-6). Then gas was sprayed into the cell, causing Mr. Slakan's

lungs and eyes to burn and making breathing even more difficult.

The parenthetical reference "PWC" is shorthand for

Petitioners' Petition for a Writ of Certiorari to the United

States Fourth Circuit Court of Appeals. "Respondent's Appendix,"

referenced in the text is lodged with the Clerk's Office and is

not attached to the Respondent's Brief in Opposition.

When he attempted to move to the front of the cell to get air,

the spray of the hoses was used to pin him to the back of the

cell. (Respondent's Appendix A 7-11). Three guards then entered

the cell and beat him repeatedly with night sticks or riot batons

about the head and body (Respondent's Appendix A 12-19),

resulting in bruises, contusions and four lacerations requiring

sixty-one (61) sutures and considerable loss of blood.

(Respondent's Appendix B 1). Mr. Slakan's account of the force

used against him was corroborated by the testimony of an inmate

in an adjacent cell and by the testimony of inmate James C.

Mitchell, who similarly described a hosing he suffered while

handcuffed and locked in a cell.

Second, with respect to Mr. Slakan's claims against the

Petitioners, evidence and testimony not mentioned in Petitioners'

statement (PWC p 4-5) was offered in support of the affirmative

link or causal connection between the unconstitutional assault on

Mr. Slekan and the conduct of the Petitioners.

As Petitioners note, eight accounts of use of force against

cell confined inmates, including one incident in which the inmate

was hosed while handcuffed and locked in his cell, were admitted

into evidence. Each of these incidents, which occurred within

the year preceding the assault on Mr. Slakan, is described in the

opinion below. (Petitioner's Appendix A 14, 15). The 1975

Inmate Grievance Recommendation against indiscriminate use of

high pressure fire hoses against cell-confined inmates”

(Respondent's Appendix C-5) was also admitted into evidence.

That report found that high pressure hoses were being used

against cell-confined inmates for periods of 10-60 minutes. Mr.

Slakan also introduced expert opinion testimony to support his

claim that Petitioners knew or should have known of guards'

abusive conduct and acquiesced in or approved said practices

causing his unconstitutional assault.

It was stipulated at trial that under state law the

Commission consisted of five persons appointed by the Governor

with a statutory duty to investigate inmate complaints and, upon

a finding of merit, report its findings and recommendations to

the Secretary of Correction.

Robert E. Swiger, Town of Carrboro Fire Chief, testified at

trial in a video-taped deposition, demonstrating the prison fire

hose for the jury at the 55 p.s.i. (pounds per square inch)

pressure which Mr. Slakan identified as comparable to the force

he was subjected to. This pressure was also certified in prison

tests of the hose. Fire Chief Swiger testified that a straight

stream of water from that hose "could probably hurt" a man "in

critical areas of the body," that the water could probably streak

or redden the back or chest, and, depending upon the size of the

individual, it could knock him down or push him back.

(Respondent's Appendix D 1,2).

Arnold Pontesso, now retired after serving as a warden at

U.S. Bureau of Prisons and as Secretary of Correction in

Oklahoma, testified that the approved policies permitting use of

high pressure fire hoses and tear gas against cell-confined

inmates could not be justified penalogically and constituted

summary punishment. (Respondent's Appendix E 2). Mr. Pontesso

further testified that the Department of Correction's Response

(Respondent's Appendix F 1-2) to the 1975 Inmate Grievance

Commission Recommendation manifested “a callous disregard for the

safety and security of inmates" and that, in his opinion, the

evidence established that a pattern or practice of excessive use

of force against cell-confined inmates” existed at Central

Additional evidence supporting this finding (and

corroborating Mr. Slakan's testimony) included the testimony of

one defense witness who testified that as a guard at Central

Prison he had been personally involved in five or six hosings,

that the general practice was to put the nozzle in the food tray

of the cell foor, 106 inches from the back of the cell, that

inmates would attempt to crawl under their bunks on the wet cell

floor to get away from the hose spray, that the force of water

was strong enough to knock a coffee cup out of an inmate's hand

and pin him to the back wall of the cell, that the water would

knock an inmate around the back of his cell at full pressure and

that the water would sting and bruise an inmate's skin.

(Respondent's Appendix G 1-10).

Defendant Sgt. Walters, a guard at Central Prison, testified

somewhat ambiguously that he would use the high pressure fire

hose to force the air out of the cell and that the hose, when

operative, required two men to hold the nozzle. (Respondent's

Appendix H 5-7). He further testified that he had received no

formal training in use of the high pressure fire hose or the CS

gas (except observed demonstrations) and he had no knowledge that

the CS gas was not recommended for indoor use. (Respondent's

Appendix H 1-3).

Defendant guard Porter, who testified on direct that he hit

Mr. Slakam "like he would a dog," (Respondent's Appendix I 1),

admitted on cross-examination that the high pressure hose, when

Prison. (Respondent's Appendix E 10,14,22,31,32). Finally, Mr.

Pontesso testified that, in his expert opinion, the assault upon

Mr. Slakan was a result of policies or customs approved by the

Petitioners, and these supervisory officials failed to take

reasonable steps to insure that fire hoses, tear gas and billy

clubs used against cell-confined inmates would not be used in an

excessive and unjustified manner. (Respondent's Appendix E 23-

26, 3).

In addition to Petitioners' admission“ in their Answer that

they approved the use of high pressure fire hoses and tear gas

against cell-confined inmates, further evidence came into the

record to support the causal relationship between their conduct

and the assault on Mr. Slakan.

Petitioner Reed

Correctional expert Pontesso testified that Secretary Reed

should have known of the Inmate Grievance Commission

Recommendation in the exercise of ordinary care as Secretary of

Correction. (Respondent's Appendix E 12-13, 31). Petitioner

Garrison testified that he assumed Petitioner Reed knew of the

manner in which hoses were used against cell-confined inmates.

(Respondent's Appendix J 9). Mr. Pontesso further testified that

use of force practices accepted or approved by Petitioner Reed

operative, required two men to hold and operate it.

(Respondent's Appendix I 4). Porter further testified that no

supervisor had ever personally reviewed a use of force incident

with him and that he received no formal training in the use of a

riot baton. (Respondent's Appendix I 5-7).

. Petitioners now contend that a fact admitted in their Answer

and stipulated to in the Pretrial Order, i.e. that Petitioners

approved of the use of high pressure fire hoses and tear gas

against individual cell-confined inmates, was not read to the

jury. Respondent contends that this stipulated fact was read to

the jury after they viewed the video taped deposition of Fire

Chief Swiger, whi included a demonstration of the hose;

however, the eae je agpinerad was dismissed at the time the video

tape was played and no record was made of the reading of the

stipulation. In any event, the fact was before the trial judge

in his determination of the Petitioners' Motion for New Trial.

(and Edwards and Garrision) could never be deemed appropriate and

that the conduct of Petitioners did not represent reasonable

remedial action to curtail or prevent continuing abusive

practices (Respondent's Appendix E 25). In his expert opinion,

it was "evident" that Mr. Slakan's unconstitutional assault was

"a result of policies adopted or approved, or customs approved by

the ... Secretary of Correction." (Respondent's Appendix E 24-

26). This evidence, taken in conjunction with Petitioner's

affirmative statutory duties to safeguard the welfare of inmates

(Respondent's Appendix K 1-3), supports the jury's finding of

liability against Petitioner Reed.

Petitioner Edwards

During his testimony Petitioner Edwards admitted that he

knew of and approved the use of high pressure fire hoses and tear

gas against cell-confined inmates and that he would ordinarily

have been (and in all probability was) consulted regarding the

1975 Inmate Grievance Commission Recommendation. > (Respondent's

Appendix L 3-5). In spite of the fact that he had the

responsibility for the day to day operation of the prisons and

the approval of equipment used to control emergencies (5 NCAC 2A

.0101, 2F .1501 (b)(3) & (4); Respondent's Appendix K 4-6),

Edwards admitted that (1) he never inspected or examined the high

pressure fire hoses he approved, (2) he never issued orders

requiring officers to supervise the guards' use of fire hoses or

limit the time and manner that an inmate could be hosed; and (3)

he never requested expert advice regarding the risk of injury

from hosings. (Respondent's Appendix L 5-7). As in the case of

The Response to the Recommendation states the Edwards "was

fully briefed on the incident and he indicates his support of the

action taken by the officers ... ." and "... recommendations ...

(2) that the high pressure water hoses not be used on inmates

locked within a cell unless there is imminent threat of phsyical

danger to another person or with direct approval of the Warden,

Deputy Warden or Shift Supervisor are DISAPPROVED."

(Respondent's Appendix F 2).

Petitioner Reed, correctional expert Pontesso found Edward

conduct to be deliberately indifferent to the threat of at

inmates and causally related to the unconstitutional assau

Mr. Slakan.

Petitioner Garrison

Petitioner Garrison had statutory responsibility for

welfare of inmates assigned to his prison (Respondent's Ap

K 3) and personally reviewed and approved use of force rep

each of the nine incidents of use of force introduced in e

at trial, including the hosing of a cell-confined, handcuf

inmate. On cross examination, he admitted knowledge of ar

incident (not in the record) in which an inmate received e@

injury from a hosing. (Respondent's Appendix J 1,2). He

admitted knowledge and approval of the Department's Respor

the Inmate Grievance Commission Recommendation (that use c

practices be reformed) as well as the fact that use of for

practices and policies had not been altered after the Comn

Recommendation, or after any of the use of force incidents

evidence. (Respondent's Appendix J 11).

REASONS FOR DENYING THE WRIT

The petition for writ of certiorari should be denied.

Petitioners' assertion that the verdict of the jury, enter

after a four day trial, and the decisions of the district

appellate courts "negate[sj} the requirement of personal

involvement as a predicate to liability under 42 U.S.C. §

is not supported by a review of the record. Examination o

Petitioners' statement of the Question Presented makes it

difficult to discern whether Petitioners now challenge the

standard applied in the courts below, or the sufficiency o

evidence supporting the jury's verdict. However, in either

event, the record and the lew support that verdict end dictate

thet a writ of certiorari be denied.

A. PETITIONERS FAILED TO OBJECT TO THE JURY INSTRUCTIONS

REGARDING THE LEGAL STANDARD FOR § 1963 SUPERVISORY

LIABILITY

It should first be opserved that Petitioners did not object

to the jury instructions et the charge conference during the

trial. Portions of the instructions sddressing the liability of

the supervisory defendants, which are now apparently challenged,

are set forth in the Respondent's Appendix, ™ 1-3.

The instructions clearly instructed the jury thet “the

Greater weight of the evidence” must show that the supervisory

officials “in some manner, acted personally in the Geprivation of

plaintiff's rights” and that “they may not be held liable merely

on the grounds that they were the guards’ supervisors in the

chain of commend. The plaintiff must establish « persone!

connection between the action or inaction of the supervisory

Gefendants and the Genial of the plaintiff's constitutions!

rights.” (Respondent's Appendix ™ i).

The instructions then stete thet personal involvement may be

shown by proof of euthorization in advance “which may have come

from the policies end procedures instituted by these defendants.”

(Respondent's Appendix ™ 2). The trie) court further instructed

the jury, without objection, thet persons] involvement mey be

shown by acquiescence in alleged excessive use of force by the

querds, (see Orpieno v. Johnson, 632 7.24 1096, 1101 (4th Cir.

1980), cert denies, 450 U.S. 929 (1961)}, if the jury found thet

“there was @ pattern of instances where excessive and

unreasonable force was used ageinst him and/or other prisoners

which as 60 pervasive thet the defendant knew or should have

known about it, and failed to teke reasonable steps to remedy the

wrongdoing, such that his deliberate indifference was in effect «

tacit suthorization of the use of excessive end unreasonable

force ageinst pleintiff.” The jury received sedditional

instruction that the evidence @ust show that there were « number

of such incidents such that supervisors were or should have been

put on notice that subordinates engaged in an unlewful practice

(excessive force) against « group of inmates of which plaintiff

Sleken was «4 menber. (Respondent's Appendix ™ 2)

With reference to Monell v. New York City Department of

Social Services, 436 U.S. 656 (1976), the trie) court

instructions stated that supervisory defendants’ policies or

customs, which could be established by omissions a6 well as

affirmative acts, could expose such defendants to lisbility if

the policies or customs caused plaintiff's injury. And further,

that officials with rule making responsibilities could be lisble

if their “unreasonable” failure to make rules (1) “rose to the

level of deliberate indifference to plaintiff's constitutional

rights or constituted tacit suthorization of unconstitutional

practices” and (2) “caused their employees unconstitutional

practices.” The instructions then recite the established

Statutory end regulatory rule-making powers of each of the three

supervisory defendants. (Respondent's Appendix ™ 3)

Petitioners’ failure to object to the instructions, which

were Grafted after « charge conference and include verbsetin

portions of Petitioners’ own requested jury instructions

(Respondent's Appendix 1-3), should estop then from challenging

the legel stendard applied below. Rule Si, F.R.Civ.P.,

specifically prohibits essignment of error to « jury charge or

instruction ebsent «4 timely objection. Rule $i has been applied

strictly by federal appellate courts, subject to « limited plain

error exception. Morris v. Travisono, 526 F.24d 656 (ist Cir.

1976).°

8B. THE COURTS BELOW APPLIED THE CORRECTION AND

ACCEPTED STANDARD OF LIABILITY FOR § 1963

SUPERVISORY LIABILITY

Petitioners assert that the decisions below have

circumvented the requirement, ettributed to Rizzo v. Goode, 423

U.S. 3%2 (1976) and Monell, supra, that “there must be evidence

of an ‘affirmative link’ between s subordinste'’s misconduct and

the adoption of « plan or policy showing the supervisors

authorized such misconduct.” (PWC p 6). Scrutiny of those cases

and the record of the case sub judice refute petitioners’

contention.

Rizzo, which involved claims for injunctive relief sgainst

the Philadelphia Police Department, sddressed itself to the

courts’ exercise of equitable powers under § 1963 and recognized

that previous decisions had properly upheld injunctions’ against

supervisory defendants under § 1963. See Hague v. CIO, 307 U.S.

496 (1939) and Allee v. Medrano, 416 U.S. 602 (1974).

The Rizzo Court found the district court findings and

conclusions insufficient to support § 1963 injunctive relief in

several regerds. First, the individual policemen found to have

violated constitutional rights were not named as party defendants

with the defendant Mayor and police supervisors. Second, the

facts revealed no “affirmative link between the occurrence of the

verious incidents of police misconduct and the sedoption of « plan

é “Rule $1 is of considereble imsportence for the orderly and

just functioning of the judicial system” and, “‘({1)})f there is to

be « plein error exception to Rule 51 at all, it should be

confined to the exceptionsl case where the error has seriously

affected the faeirness, integrity or public reputation of judicial

proceedings.** [quoting £.C. Wright © A. Miller, federal

Practice and Procedure 4 2556, et 675 (1971)) Id., at 859.

’ The Rizzo court observed thet the “principles of equity ...

militate sieTeet the grent of en injunction except in the most

extraordinary circumstences.*~ 4.,. #t 379. A cleia# for damages

under 4 1983 does not involve important end delicate

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Third, Arncld Pontes-o, a retired Bureau of Prison Warden

and former Secretary of Correction in Oklahoma, testified that

the prison practices regarding use of force against cell-confined

inmates constituted a pattern of excessive use of force,

uncommon, unacceptable and virtually unheard of in his experience

in corrections. Thus, the approved conduct of the guards, unlike

the behavior in Rizzo, cannot be characterized as typical of

similar systems managed by supervisory defendants.

Finally, unlike Rizzo, the record herein indicates that the

incidents of use of force against cell-confined inmates

established “common thread” or “'pervasive pattern of

intimidation’ flowing from a deliberate plan by the named

defendants...,” Id., at 375.

Monell, which involved a challenge to a municipal agency's

policies compelling unpaid, medically unnecessary pregnancy

leave, is consistent with Rizzo in rejecting vicarious or

respondeat superior liability under § 1983 while recognizing that

supervisory action or inaction that causes the deprivation of

rights is actionable under § 1983. Monell observed first that

the language of the legislation specifically held liable “any

person who, under color of state law...shall subject or cause to

be subjected, any person...to the deprivation of rights... .”

Id., at 692-693. {Quoting 42 U.S.C § 1963).

“The italicized language plainly imposes liability on a

government that, under color of some official policy

‘causes’ an employee to violate another's constitutional

rights.”

Ibid.

By reference to the legislative history of the Civil Rights

Act, the Monell Court found that liability under respondeat

superior was not intended under § 1963, but rather, that a

supervisory governmental unit or official could be deemed liable

if it was found to have “caused” the deprivation under § 1963.

From the legislative history of § 1963, Monell suggests the

supervising governmental bodies, as well as individuals, may be

held liable and to have caused the deprivation of rights if they

"had power to intervene” and “neglect([ed]) or refuse[d] to do so.”

Id., at 692 n. 97."

"([Llocal governments, like every other § 1983 ‘person,’

by the very terms of the statute, may be sued for

constitutional deprivations visited pursuant to

governmental ‘custom’ ever though such a custom has not

received formal approval through the body's official

decision-making channels.”

Id., at 690-91.

The teachings of Mone11!?, as well as the holding in Rizzo,

were carefully applied in the case sub judice, wherein the

district court instructed the jury that supervisory defendants

must be shown to have acted personally, in some manner, and thus

caused the deprivation of rights to be “visited” upon Mr. Slakan.

The district court properly charged that the requisite personal

involvement could be shown by proof of the existence of a pattern

of excessive and unreasonable force against inmates like Mr.

Slakan (cell-confined) such that the officials knew or should

In the Appendix to the Opinion of the Court, the full text

of the second conference substitute for the Sherman Amendment is

set forth.

"[A]ny person or persons having knowledge that any of

the wrongs conspired to be done and mentioned in the

second secticn of this act are about to be committed,

and having power to prevent or aid in preventing the

same, shall neglect or refuse to do so, and such

wrongful act shall be committed, such person or persons

shell be liable to the person injured, or his legal

representatives.” (Emphasis Added).”

Id., at 704. Earlier legislative discussion of the Act stated

that “(t]he primary constitutional justification for the Sherman

amendment was that it was “necessary and proper remedy for the

failure of localities to protect citizens...” and "... the

amendment came into play only when a locality was at fault or had

knowingly neglected its duty to provide protection.” (Emphasis

a id., at 692 n. 57.

a8 Monell interpreted Rizzo in a manner consistent with the

court’s below: “(B)y our decision in Rizzo v. Goode, [supra], we

would appear to have decided that mere right to control without

any control or directions having been exercised and without any

failure to supervise is not enough to support § 1983 liability.”

(Emphasis Added). Id., at 694 n.5& By showing supervisors’

disregard for the known need to control and supervise,

Respondent's evidence established precisely the “affirmative

link” which was absent in Rizzo.

have known about it, and failed to take reasonable remedial steps

to the point that their conduct evidenced deliberate indifference

to or tacit authorization of the use of excessive force. }”

The record in the case sub judice, unlike that in Rizzo,

clearly supports the finding of an affirmative link between the

guards’ violation of Mr. Slakan's eighth amendment rights and the

supervisory defendants’ adoption of a plan or policy tacitly

authorizing such misconduct. The Petitioners all knew and

approved of the complained-of practices. Each Petitioner knew or

should have known of the Inmate Grievance Commission's

Recommendation against the indiscriminate use of force against

cell-confined inmates. Hosings and macings of cell-confined

inmates continued unabated.

Based upon the record, the jury found that Petitioners had

or should have had knowledge of the past abusive practices and

the likelihood of continued abuse if they refused to take

remedial action. The record supports the jury's finding of

Petitioners’ authorization of, indifference to, or acquiescence

in the abusive practices of the guards which caused the

deprivation of Mr. Slakan's rights.

Indeed, the jury's recognition of this “link,” as well as

the weight of the evidence supporting the supervisory defendants’

personal responsibility for Mr. Slakan's injury, is reflected in

the award of damages among the respective defendants. !* Through

deliberate indifference to a known policy of indiscriminate use

In the context of medical care to prisoners, the Court

recognized the distinction between inadvertent and advertent

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

",..-in the medical context, an inadvertent failure to

provide medical care cannot be said to constitute ‘an

unnecessary and wanton infliction of pain’ or to ‘be

repugnant to the conscience of mankind.’ ... In order to

state a cognizable claim, a prisoner must allege acts

or omissions sufficiently harmful to evidence deliberate

indifference to serious medical needs. It is only such

indifference that can offend ‘evolving standards of

decency’ in violation of the Eighth Amendment.” Id.

429 U.S., at 100, 101. joy

aS The jury's perception of the facts and acceptance of the

Respondent's theory of the case is borne out by the award of

damages. Five hundred dollars ($500.00) in compensatory damages

were awarded against five of the six defendants. Awards of

punitive or exemplary damages increased with respect to the

defendants’ authority: Reed ($10,000.00), Edwards ($6,000.90),

Garrison ($7,000.00); Walters ($3,000.00); Porter ($2,000.00).

of force against cell-confined inmates, the Petitioners caused

Mr. Slakan to be subjected to a deprivation of his rights under

the Eighth Amendment of the United States Constitution. Section

1983 liability for such conduct is supported by equity, common

sense, the language of the Act, its legislative history, and the

decisions of this court. /*

C. THE DECISION BELOW IS CONSISTENT WITH THE LAW

THROUGHOUT THE CIRCUIT COURTS OF APPEAL

Petitioners assert that the decision below has new and

undesired implications as to supervisory officials' liability

under § 1983. However, except for the evidence and jury verdict,

Mr. Slakan's case and the legal standards applied below merely

reflect the law as it has been interpreted throughout the circuit

courts of appeal.!> Petitioners do not contend that a conflict

See, e.g. Municipal Liability Under Section 1983: The

Meaning of "Policy or Custom,” Note, 78 Col.L.R. 308; Eagan, The

Scope of Supervisory Liability Under 42 U.S.C. § 1983, 6J. ~~

Contemp. L. 181 (1979).

Cases involving § 1983 claims for damages against

supervisory officials or governmental units have applied the law

in a manner consistent with the decision below. Cases turn on

the facts in the record supporting “supervisory” liability. King

v. Higgins, 702 F.2d 18, 21 (lst Cir. 1983)(damages against

prison superintendent for failure to correct improper

disciplinary procedure after receiving notice; "[DJefendant

apparently does not dispute the fact that as the official

designated to hear prisoners’ appeals, he should be liable in

damages for his inaction in curing deficiencies in the

disciplinary proceedings of which he was aware. See Rizzo v.

Goode [supra]."); Turpin v. Mailet, 619 F.2d 196, 201-202 (2nd

Cir. 1980), cert. denied, 449 U.S. 1016 (1982)(city may be liable

for damages under § 1983 “where senior personnel have knowledge

of constitutionally offensive acts but fail to take remedial

steps" amounting “to deliberate indifference to or tacit

authorization of the offensive acts;" evidence held insufficient

to support inference), see also Owens v. Haas, 601 F.2d 1242,

1246 (2nd Cir. 1979) cert. denied, 444 U.S. 980 (1979), McCann v.

Coughlin, 698 F.2d 112 (2nd Cir. 1983); Jerry v. Francesco, 632

F.2d 252, 256 (3d Cir. 1980)(J. Adams, concurring) (warden with

statutory duty to safeguard jail inmates may be held liable for §

1983 damages resulting from “general conditions and policies

within the superivory purview of the officer in charge of the

prison."); Wanger v. Bonner, 621 F.2d 675, 680 (5th Cir.

1980)(Sheriff may be held liable for damages under § 1983 for

acts of deputies if "he knew of or should have known that

allegedly unconstitutional acts were occurring and acquiesced in

them," causing violation of rights), see also Languirand v.

Hayden, 717 F.2d 220, 227-226 (Sth Cir. 1983), Webster v. City of

Houston, 689 F.2d 1220 (Sth Cir. 1982), Bowen v. Watkins, 669

F.2d 979, 988-89 (5th Cir. 1982); Hays v. Jefferson County, Ky,

668 F.2d 869, 874 (6th Cir. 1982) cert. denied, 459 U.S. 833

(1982) ("At a minimum a plaintiff must show that the

[supervisory] official at least implicity authorized, approved or

exists within the circuits and, contrary to their assertions, the

case sub judice does not present a new developement or even a

change in the law.

D. THE EVIDENCE IS SUFFICIENT TO SUPPORT THE JURY'S VERDICT

Petitioners further argue that their conduct was too remote

from the unconstitutional assault on Mr. Slakan to establish

liability. The court below correctly observed that this same

contention, regarding causation or proximate cause, raised an

issue essentially of fact, not law, Slakan, 737 F.2d at 373, and

found the evidence more than sufficient to support the jury's

finding. As observed by the Fourth Circuit Court of Appeals,

"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 than asserted by the losing party on appeal." See

e.g. 5A Moore Federal Practice § 50.07 [2] at 50-82 to 50-83 (2nd

Ed. 1977). The recitation of the evidence set forth in the court

knowingly acquiesced in the unconstitutional conduct of the

offending officers."); Lenard v. Argento, 699 F.2d 874, 886 (7th

Cir. 1983) cert. denied, U.S. ___, 104 S.Ct. 69 (1983)("Only

where there is a pattern of constitutionally offensive acts with

failure to invoke remedial measures will there result in

municipal liability for subsequent violations ‘if the

supervisor's inaction amounts to deliberate indifference or tacit

authorization of the offensive acts.'" [quoting Turpin v.

Mailet, ([supra.]); Villanueva v. George, 659 F.2d 651, 854 (8th

Cir. 1981)(En Banc)(chief jailor may be held liable for money

damages under § 1983 if he had knowledge that detainees

“conditions of confinement were punitive and yet refused to

remedy same. See Estelle v. Gamble [supra]"), see also Herrera

v. Valentine, 653 F.2d 1220, 1224 (8th Cir. 1981); White v.

Washington Public Power Supply System, 692 F.2d 1286, i290 (9th

Cir. 1982)(evidence insufficent to support § 1983

damages/liability against public corporation; "(t]here must be a

showing either of official sanction of the agents' acts, or of

culpable negligence, or impliedly or tacitly authorized approved

or encouraged discriminatory conduct as a matter of course on the

part of the employer in failing to correct known slurs or other

discriminatory acts of its employees."), see also Haygood v.

Younger, 718 F.2d 1472 (9th Cir. 1983); McClelland v. Facteau,

610 F.2d 693, 697 (10th Cir. 1979)(cause of action under § 1983

exists against police chief for allegedly abusive acts of

subordinates if chief “kriew or should have known of the

misconduct and yet failed to act to prevent future harm.");

Williams v. Bennett, 689 F.2d 1370, 1380-1381, (llth Cir. 1982),

cert. denied, _—s U.S. _—s- 104 S.Ct. 335 (19864)(§ 1983 action for

damages against individual prison officials for subjection to

cruel and unusual prison conditions requires a showing of

deliberate indifference to his need for reasonable protection

from violence which in fact caused the deprivation of rights).

[ee

ee ee eM en ne ee

of appeals' opinion clearly indicates that the evidence was

sufficient to support the verdict against the Petitioners herein.

Compare Turpin v. Mailet, supra.

CONCLUSION

For the reasons set forth above, the petition for writ of

certiorari should be denied.

Respectfully submitted, this the day of February, 1985.

NORTH CAROLINA PRISONER LEGAL SERVICES, INC.

Attorney for Respondent

By:

Charles T. L. Anderson

Post Office Box 509

Raleigh, North Carolina 27602

Telephone: (919) 828-3508

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