Petition for Writ of Certiorari — Whitley v. Albers

84-1077

No.

{un the Supreme Court

of the United States

OCTOBER TERM, 1984

HAROL WHITLEY, et.al.,

Petitioners,

GERALD ALBERS

Respondent.

Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

— DAVE FROHNMAYER

Attorney General of Oregon

RECEIVED WILLIAM F. GARY

_Deputy Attorney General

—*¥ JAMES E. MOUNTAIN, JR.

JA N 3 1985 Solicitor General

VIRGINIA L. LINDER

Assistant Solicitor General

OFFICE OF THE CLERK MICHAEL D. REYNOLDS

SUPREME COURT, U.S. | "S00 Justice Building

Salem, Oregon 97310

Phone: (503) 378-4402

Counsel for Petitioners

*Counsel of Record

PARTIES

The parties to the proceeding in the Ninth Circuit Court of

Appeals whose judgment is sought to be reviewed are as

follows: Gerald Albers (respondent herein); Harol Whitley,

individually and in his official capacity as Assistant Superin-

tendent at the Oregon State Penitentiary, Hoyt C. Cupp,

individually and in his official capacity as Superintendent at

the Oregon State Penitentiary, J.C. Keeney, individually and

in his official capacity as Assistant Superintendent at the

Oregon State Penitentiary, and Robert Kennecott, indi-

vidually and in his official capacity as a correctional officer at

the Oregon State Penitentiary (petitioners herein).

QUESTION PRESENTED

[ls the Eighth Amendment prohibition of cruel and

unusual punishment violated, so as to expose prison officials

to liability for damages under 42 U.S.C. 1983 for their use of

deadly force in quelling a prison riot, when some evidence.

viewed in a light most favorable to an injured prisoner,

establishes nothing more than an unprivileged common law

)

battery’

TABLE OF CONTENTS

Question Presented

Parties

Opinions Below

Jurisdiction

Constitutional and Statutory Provisions Involved

Statement of the Case

Reasons for Allowance of Writ

Conclusion

Appendix A

Ninth Circuit Court of Appeals Opinion

Appendix B

District Court for the District of Oregon Opinion

I

1]

I

|

6

App

TABLE OF AUTHORITIES

Cases Cited

Albers v. Whitley, 546 F. Supp. 726 (D. Or. 1982)

Albers v. Whitley, 743 F.2d 1372 (9th Cir. 1984)

Arroyo v. Schaefer, 548 F.2d 47 (2d Cir. 1977) .........

Bell v. Wolfish, 441 U.S. 520 (1979)

Burton v. Waller, 502 F.2d 1261 (5th Cir. 1974) ........

Clemmens v. Greggs, 509 F.2d 1338 (5th Cir. 1975) .....

Davis v. Scherer, 468 U.S. , 104 S.Ct. 3012 (1984)

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

Gregg v. Georgia, 428 U.S. 153 (1976) ................

Harlow v. Fitzgerald, 457 U.S. 800 (1982)

Johnson v. Glick, 481 F.2d 1028 (2d Cir.), cert. denied,

414 U.S. 1033 (1973)

Jones v. North Carolina Prisoners’ Labor Union, 433

U.S. 119 (1977)

King v. Blankenship, 636 F.2d 70 (4th Cir. 1980)

Little v. Walker, 552 F.2d 193 (7th Cir.) cert. denied, 435

U.S. 932 (1977)

Meachum v. Fano, 427 U.S. 215 (1976) ...............

Norris v. District of Columbia, 737 F.2d 1148 (D.C. Cir.

1984)

Procunier v. Martinez, 416 U.S. 396 (1974)

Procunier v. Navarette, 434 U.S. 555 (1978)

Page

8-9

Ataf ~—

TABLE OF AUTHORITIES—Continued

Cases Cited— Continued

Rhodes v. Chapman, 452 U.S. 337 (1981)

Ridley v. Leavitt. 631 F.2d 358 (4th Cir. 1980) ......

Smith v. Iron County, 692 F.2d 685 (10th Cir. 1982) .....

Wolff v. McDonnell, 418 U.S. 539 (1974) ....... Peace

Statutory Provisions

28 U.S.C.

AT

—_

~

= 7v

~

Pon

—

PL C abcv nnn ev eevteusnnbve0eeeuteeeseuhe'

tS 0 ee rer er es ee

28 U.S.C. § 2101(c)

er Ona a a 646 6-550:6.046 0660 46600464 8N

eo me” EG rrr

Other Authorities

Prosser on Torts, § 19 and 20 (Hornbook Ed. 1971 ......

Restatement (Second) of Torts. § 70(1) ..............06.

passim

20)

10

iV

PETITION FOR WRIT OF CERTIORARI

Petitioners Harol Whitley, et al., respectfully pray that

this Court issue a writ of certiorari to review the judgment and

opinion of the United States Court of Appeals for the Ninth

Circuit in Albers v. Whitley, et. al., No. 82-3551 (October 1,

1984).

OPINIONS BELOW

The opinion of the Ninth Circuit Court of Appeals is

reported as Gerald Albers v. Harold |sic| Whitley, 743 F.2d 1372

(9th Cir. 1984). A copy of the opinion is atteched to this

petition as Appendix A. The opinion of the United States

District Court is reported as Albers v. Whitley, 546 F. Supp.

726 (D. Or. 1982). A copy of that opinion is attached to this

petitition as Appendix B.

JURISDICTION

The opinion of the Ninth Circuit Court of Appeals was

dated and filed on October 1, 1984. The judgment sought to be

reviewed was entered on the same date. Jurisdiction to review

the Court of Appeals’ judgment in this civil case by writ of

certiorari is conferred upon this Court by 28 U.S.C.

§ 1254(1). This petition for writ of certiorari is filed within

the 90-day period prescribed by 28 U.S.C. § 2101(c), as

computed in accordance with Rule 20 and Rule 29(1) of the

Rules of the Supreme Court of the United States.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Eighth Amendment to the United States Constitu-

tion provides:

2

Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments

inflicted.

The Civil Rights Act of 1871 (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.

STATEMENT OF THE CASE

1. Summary of Facts

‘The evidence, viewed in the light most favorable to the

respondent, supports the following factual summary. '

Respondent Albers was a prisoner housed in Cellblock “A”

at the Oregon State Penitentiary. He brought a claim for

damages under 42 U.S.C. § 1983 after he was shot in the knee

by petitioner prison officials while they were quelling a prison

.

disturbance on June 27, 1980. Petitioner Whitley was

security manager of the penitentiary; Cupp was superinten-

dent; Keeney was an assistant superintendent; and Kennecott

was a corrections officer.

On the night of June 27, 1980, several inmates in Cellblock

“A” became agitated by what they viewed to be mistreatment

' This case was before the Ninth Circuit on review of a district court

order directing judgment for petitioners, the defendants below. The facts set

forth in the Statement of the Case are taken almost verbatim from the

opinion of the Ninth Circuit, 743 F.2d at 1373-74, 1376. (Appendix A, App-Z

App-4). Petitioners also rely on the statement of facts in the opinion of the

U.S. District Court for the District of Oregon, 546 F. Supp. at 729-31

(Appendix B, App-16 - App 22).

by prison guards of other inmates being escorted through the

cellblock. Because of the ensuing commotion and the

inmates’ tense mood, an early “cell-in” order was given. Some

inmates resisted the cell-in order and began to break fur-

niture. One inmate, Richard Klenk, became particularly

upset. After confronting two guards, he assaulted one of

them. The assaulted guard left the area to report the distur-

bance. The other guard was taken hostage by the inmate . und

removed to cell 201 on the second floor of the cellblock.

After prison authorities were notified of the disturbance,

security manager Whitley went to speak with Klenk. A few

attempts were made to demonstrate that the inmates whom

the prisoners were originally concerned about were

unharmed. The disturbance, however, continued. Whitley

checked the condition of the prison guard being held hostage

and found him to be unharmed.

Whitley then began organizing an assault squad. At some

point, prison officials discovered Klenk had a knife, and they

learred he had claimed to have killed one inmate and that

others would die. Klenk also threatened to kill the host-

age. Whitley returned to the cellblock to see that the hostage

was still unharmed. He was told by other inmates that they

would protect the guard.

Respondent Albers left his cell at an inmate's request to

see whether he could aid in quieting the disturbance. Albers

asked Whitley if he would return with a key to the lower tier

cells to allow those on the lower tier, including several elderly

inmates, to remove themselves from the commotion. Whitley

said that he would return with the key. As Whitley left, he

noticed the inmates had constructed a barricade that limited

access to the cellblock.

The prison officials discussed the situatien and agreed

that tear gas could not be used.* Superintendent Cupp there

upon ordered Whitley to take a squad armed with shotguns

into “A” block. He gave instructions to “shoot low.”

Whitley reentered the cellblock and was followed by three

armed guards. There is evidence that Albers asked for the key

and that Whitley screamed “shoot the bastards” as he ran

toward the stairs in pursuit of Klenk. The stairway was the

only route to the cell where the guard was held hostage. It was

also the only route by which Albers could return to his own

cell.

Warning and second shots were fired. Whitley chased

Klenk to the upper tier and subdued him, with the help of

several inmates, outside the door to the cell where the hostage

“s the district court observed:

Here, a decision was made by the defendants not to use tear gas

or mace. There was concern whether prison officials could maneu-

ver through the barricade and administer the gas quickly enough to

assure that no harm came to the hostage. There was also concern

whether gas would have the necessary effect in the relatively large

area of cellblock “A.” Gas would cause great discomfort to the

majority of inmates who had obeyed the cell-in order and were in

their cells.

546 F. Supp at 734.

Albers’ testimony confirmed the prison officials’ concern that tear gas

would not be effective. According to Albers, prior to the prison officials’

invasion of the cellblock, word had spread throughout the cellblock that gas

would be used and prisoners soaked towels and sheets with water to render

the gas ineffective. (Tr. 142-143)

-

”

was being held. Meanwhile, Albers was shot in the knee by

Kennecott while Albers ran up the stairs behind Whitley.

The hostage guard was released unharmed. One other

inmate had been shot on the stairs, and others on the lower

tier also were injured by gunshot.

2. Procedural History

Albers filed a complaint in the federal district court for

damages under 42 U.S.C. § 1983, pursuant to 28 U.S.C.

§ 1343.

At trial before a jury, Albers presented two experts who

testified that other measures, less drastic than those taken by

the prison officials, could have been employed to quell the

disturbance. Albers’ first expert, Mr. Brewer, testified that

less drastic measures included tear gas and assault squads

armed with riot batons. He opined that the use of deadly force

under the circumstances of this case, taking its timing into

account, was unnecessary to prevent imminent danger to the

hostage or other inmates.’ He also testified that the use of

deadly force was excessive under the circumstances at the

time it was used, and that reasonable corrections policy would

dictate that a verbal warning be given immediately before

shooting. Albers second expert, Mr. Perkins, testified that

the prison authorities should have acted differently, and that

Mr. Brewer’s reference to the use of “deadly force” is misleading on at

least two accounts. First, the uncontradicted evidence is that Superinten-

dent Cupp instructed the assault squad to shoot low, thereby minimizing if

not eliminating the possibility that anyone would actually be killed. Second,

Mr. Brewer, testified that a less drastic measure which should have been

utilized invasion by a riot squad armed with riot batons — could also

result in death or serious injury given prison guards’ training in the use of

such weapons. (Tr. 289).

6

they were “possibly a little hasty in using firepower” on the

inmates. Petitioners’ experts controverted the testimony of

Albers’ experts.

At the conclusion of the trial, petitioners moved for a

directed verdict on the basis that the testimony was insuffi-

cient to permit the jury to find a violation of Albers’ Eighth

Amendment right not to be subjected to cruel and unusual

punishment. The district court granted the motion and

entered a written decision. Albers v. Whitley, 546 F. Supp. 726

(D. Or. 1982).

Respondent appealed to the Ninth Circuit Court of

Appeals pursuant to 28 U.S.C. § 1291. The Ninth Circuit

reversed the judgment of the district court. It held that Albers

presented sufficient evidence of an Eighth Amendment vio-

lation. It ruled that based on the expert testimony presented,

“a jury could have concluded that the prison officials’ ‘riot

plan’ was hopelessly flawed and that the use of deadly force

against Albers was unreasonable, unnecessary, improper and

engaged in with deliberate indifference to his constitutional

interests.” 743 F.2d at 1376. The Ninth Circuit also

addressed petitioners’ qualified immunity claim. It held that

upon retrial, if a jury should conclude that Albers was sub-

jected to cruel and unusual punishment, the defense of

qualified immunity would not be available to petitioners.

REASONS FOR ALLOWANCE OF WRIT

1. This case reduces to a controversy over whether prison

administrators, confronted with a serious prison riot and

7

imminent risk of loss of life of inmates and guards, made an

incorrect assessment of how best to defuse that threat and

regain control of the cellblock. Plaintiff's evidence, the Ninth

Circuit held, was sufficient at least to create a jury question on

whether plaintiff suffered cruel and unusual punishment at

the hands of prison officials. Under the Ninth Circuit’s opin-

ion, misjudgment can equate with deliberate indifference and

a jury can find wantonness from evidence of imprudence. The

Ninth Circuit, we submit, has laid a new foundation for

Eighth Amendment analysis. On this base, the court has built

an edifice that embodies principles closely akin to common

law tort and drastically different from what historically and

contemporarily have been recognized to reflect the spirit and

purpose of the cruel and unusual punishment clause.

This case arises from a riot in an open cellblock housing

over 200 inmates and located within a maximum security

prison. A prison guard was held hostage for over two hours

while petitioners attempted to negotiate his release from an

armed inmate who repeatedly threatened to kill the guard as

well as other inmates, and who reportedly had already killed

one inmate. The unsuccessful negotiations took place against

a background of commotion and uproar within the cellblock

which included the destruction by inmates of most of the

cellblock furniture. Ultimately, petitioners were successful in

quelling the riot with no loss of life, although some inmates,

including respondent, did incur injuries. No evidence sug-

gested and no claim was made that petitioners continued to

use force after regaining control of the cellblock or that

8

injuries were inflicted in retribution or retaliation for the

inmates’ riotous and violent conduct.

At trial, each side presented expert testimony. Plaintiff's

experts were of the opinion that, although action to regain

control of the ceilblock was needed, the measures taken were

too extreme. Mr. Brewer testified to alternative and, in his

view, less drastic measures (e.g., sharpshooters, riot forma-

tions, tear gas) that in his judgment could have been employed

effectively. Mr. Perkins testified that prison administrators,

given ail the circumstances, might have been “possibly a little

bit hasty” in taking the action they took to stop the

riot. Defendants’ experts, in contrast, believed that the action

taken was appropriate, and that the alternative procedures

proposed by plaintiff's experts would have been ineffective,

less effective or might even have aggravated the danger. In

short, one set of experts pointed to errors in the judgment of

the prison administrators, the other set of experts said no

error in judgment was involved.

Evidence such as that presented in this case, even cast in

the light most favorable to plaintiff, does not rise to the level

of an Eighth Amendment violation upon which a jury should

be permitted to find liability for damages. For the Ninth

Circuit to so hold is error. The Ninth Circuit’s error lies in the

legal standard it fashioned and applied to test whether evi-

dence creates a jury question on a cruel and unusual punish-

ment claim arising out of a prison riot situation. The Ninth

Circuit stated:

In our view, a proper standard deems the eighth

amendment to have been violated when the force used

Y

is “so unreasonable or excessive [as] to be clearly

disproportionate to the need reasonably perceived by

prison officials at the time.” Jones v. Mabry, 723 F.2d

590, 596 (8th Cir. 1983), cert. denied, U.S. , 104

S.Ct. 2683, 81 L.Ed.2d 878 (1984). Thus if a prison

official deliberately shot Albers under circumstances

where the official, with due allowance for the exigency,

knew or should have known that it was unnecessary,

Albers’ constitutional right would have been

infringed. . .

743 F.2d 1375 (emphasis added).

The Ninth Circuit’s opinion points to evidence that the

riot was subsiding at the time of official action as support for

an inference that the force used was excessive. At greater

length, the lower court discussed and canvassed the conflict in

the expert testimony on whether less drastic measures reason-

ably could have and should have been used to stop the

riot. On the basis of the conflicting expert opinions, the

Ninth Circuit conciuded that a jury possibly could have found

that “the use of deadly force against Albers was unreasonable,

unnecessary, improper and engaged in with deliberate indif-

ference to his constitutional interests.” 743 F.2d 1376.'

The Ninth Circuit’s analysis of plaintiff's constitutionally

‘It is questionable whether the evidence even presented a jury issue on

the issue of reasonableness. The district court judge, after listening to all the

vidence, determined that no reasonable jury would conclude that the force

used by petitioners to restore order and security in Cellblock “A” was

unreasonable:

Defendants here were faced with a situation that had extreme

potential danger to a hostage guard and to inmates. Possible

alternatives to force were reasonably considered and

rejected. While plaintiffs experts suggested possible riot forma

tions, tear gas, and sharpshooter alternatives, it would be spec

ulative to conclude that such other alternatives would have been

more effective in securing the release of the hostage and the safety

of the inmates. The safety of the hostage and the nonrioting

inmates was of paramount importance to the defendants.”

546 F. Supp. at 734

10

based cruel and unusual punishment ciaim differs not a whit

from the standard that would apply in a common law tort

action arising from police actions in a situation where persons

in the community had taken control of a nuclear power plant,

held an employee of the plant hostage, and threatened to kill

the hostage, and then, in an effort to gain control of the

property, police shot and injured one or more people. The

claim by those injured would be for tortious assault and

battery. The response by police undoubtedly would be to

claim the privilege of self-defense or defense of others and the

privilege to use deadly force relating to a riot, which under

such circumstances overlap. See, e.g., Burton v. Wailer, 502

F.2d 1261 (5th Cir. 1974) (damages sought for death and

injuries from gunfire used by police to stop student riot). The

inquiry for the jury in such a case would be whether the degree

of force used was unreasonable or excessive in relation either

to real danger, or to danger reasonably believed to exist. To

meet this standard it would have to be shown that the actor

considered whether lesser force would prevent the

apprehended harm. See, Prosser on Torts, §$ 19 and 20

(Hornbook Ed. 1971); Restatement (Second) of Torts,

§ 70(1), comments b and c; Burton v. Waller, supra at 1276-78.

Although the Ninth Circuit opinion recites language like

“deliberate indifference” and “unnecessary and wanton”

infliction of physical pain, the circuit court was willing to find

those Eighth Amendment inquiries satisfied where there was

evidence sufficient to create a jury question on the common

law tort privilege of self-defense or defense of others. The

1]

lower court unquestionably has grafted a tort standard onto

the Eighth Amendment. This cannot be correct.

In the well-developed body of Eighth Amendment case law

of this Court, two principal themes repeatedly are empha-

sized. First, the proscription against cruel and unusual

punishment is addressed not only to tortuous and other

barbarous methods of punishment; it extends also to the

needless, callous or deliberately indifferent infliction of pain

and suffering, when the degree of pain inflicted exceeds

modernly tolerable limits and is totally without penological

justification or purpose. See generally Gregg v. Georgia, 428

U.S. 153 (1976); Rhodes v. Chapman, 452 U.S. 337

(1981). Secend, although courts must act to protect prisoners

from cruel and unusual punishment, they must exercise cau-

tion in judging the actions of prison administrators. The task

of prison administrators is a complex one calling for consider-

able expertise and judgment. Standards articulated under the

Eighth Amendment must accord considerable latitude in

judgment to the officials charged with prison management in

order to avoid mere judicial second-guessing of the sensitive

and delicate problems of prison administration. See, e.g., Bell

v. Wolfish, 441 U.S. 520 (1979); Jones v. North Carolina

Prisoners’ Labor Union, 433 U.S. 119 (1977); Pell v. Procunier,

417 U.S. 817 (1974). Neither of these fundamental themes is

accommodated by the Ninth Circuit's decision below.

The Eig)*h Amendment concern of cruel and unusual

punishment is significantly devalued if the standard for such

punishment is the same standard imposed for civil torts

12

between ordinary citizens. This Court recognized as much in

a different Eighth Amendment context. the provision of

medical services to prisoners. In Estelle v. Gamble, 429 U.S. 97

(1976), this Court rejected, in the strongest of terms, the

notion that tort standards for medical negligence (i.e., mal

practice) could provide the benchmark for a claim of cruel and

unusual punishment:

an inadvertent failure to provide adequate medical

care cannot be said to constitute “an unnecessary and

wanton infliction of pain” or to be “repugnant to the

conscience of mankind.” Thus, a complaint that a

physician has been negligent in diagnosing or treating

a medical condition does not state a valid claim of

medical mistreatment under the Eighth Amend

ment. Medical malpractice does not become a con

stitutional violation merely because the victim is a

prisoner. In order to state a cognizable claim, a pris-

oner 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

Kighth Amendment.

Id. at 105-06 (footnote omitted). The decision in Estelle

concluded that the Eighth Amendment, in the area of inmate

medical needs, was addressed to a more sezious evil. To

constitute cruel and unusual punishment, a failure to meet an

inmate's medical needs must be grave enough to “produce

physical ‘torture or a lingering death’ ” or “result in pain and

suffering which no one suggests would serve any penological

purpose.” 429 U.S. at 103. “The infliction of such unneces-

sary suffering is inconsistent with contemporary standards of

decency.” /bid.

13

Unlike Estelle v. Gamble, the concern here is not with

malfeasance or nonfeasance and tort concepts of negli-

gence. This case involves, instead, intentional action. The

force employed by prison administrators, without question,

was used deliberately and by design. But Estelle v. Gamble

nevertheless makes the essential point. The cruel and

unusual punishment clause was designed to address more

serious affronts to human physical dignity than those gener-

ally addressed by common law tort notions. Injurious force

used to stop an outbreak of life-threatening violence within

prison walls may be excessive, but that does not speak to

whether it also is cruel and unusual punishment. Prison

administrators, in choosing to use such force, may be impru-

dent, unwise or unreasonable. That fact, too, fails to bear on

whether the action constitutes cruel and unusual punishment.

The issue, under the Fight Amendment, must focus

squarely and directly on whether the action taken results “in

pain and suffering that no one suggests would serve any

penological purpose.” Estelle v. Gamble, supra. In a prison

riot setting, where there is no dispute that remedial action

should have been taken, and the only disagreement is whether

the degree of force used was proportionate to the perceived

danger, the cruel and unusual punishment clause has no

application. In that setting, the Eighth Amendment is trig-

gered only where the force is wholly without penological

purpose.

Where prison administrators are, as here, presented with a

prison riot in which the lives of prisoners and guards alike are

14

threatened, we submit that the c 1el and unusual punishment

clause rarely wili be implicated. In extreme or unusual

instances, however, it might be. For example, if injurious

force is used after prisoners have relinquished their weapons

and attempted to surrender to prison authorities, such force

would be without penological purpose. Similarly, force grossly

disproportionate to the danger, such as an order to shoot and

kill any and all-prisoners out of their cells, would suggest,

under these circumstances, that deadly force was used not for

the proper penological purpose of regaining control, but

instead to retaliate and punish everyone participating in any

fashion in the disturbance. Such hypotheticals suggest the

wanton infliction of unnecessary pain which the Eighth

Amendment addresses; borderline disputes between experts

over the most desirable or least drastic methods of controlling

a prison disturbance do not.°

The equally serious danger of the lower court’s decision is

‘Indeed, the testimony of Aivers’ experts in this case established little

more than that petitioner prison officials could have employed more desir-

able methods to control the situation. As this Court observed in Rhodes v

Chapman, 452 U.S. at 348, n. 13:

Respondents and ine District Court erred in assuming that

opinions of experts as to desirable prison conditions suffice to

establish contemporary standards of decency. As we noted in Bell

v. Wolfish, 441 U.S., at 543-544, n. 27, such opinions may be helpful

and relevant with respect to some questions, but “they simply do

not establish the constitutional minima; rather, they establish goals

recommended by the organization in question.” . . . Indeed, gener-

alized opinions of experts cannot weigh as heavily in determining

contemporary standards of decency as “the public attitude toward a

given sanction.” Gregg uv. Georgia, 428 U.S. 153, 173 (1976) (joint

opinion). We could agree that double celling is not desirable,

especially in view of the size of these cells. But there is no evidence

in this case that double celling is viewed generally as violating

decency... .

15

that it invites second-guessing of the most sensitive decisions

that prison officials are called on to make. Time and again,

this Court has recognized that the task of managing prisons is

extremely complex and difficult, and that the problems facing

prison officials in the day-to-day operation of prisons are not

susceptible to easy solutions. Bell v. Wolfish, 441 U.S. 520,

547 (1979). See, e.g., Jones v. North Carolina Prisoners’ Labor

Union, 433 U.S. 119 (1977); Wolff v. McDonnell, 418 U.S. 539

(1974): Pell v. Procunier, 417 U.S. 817 (1974); Procunier v.

Martinez, 416 U.S. 396 (1974). This Court also has recognized

that the task of running prisons has been delegated to the

legislative and executive branches of government, not to the

judiciary. The power to devise a prison system and the duty to

make the wide range of judgment calls required for efficient

and effective prison administration rest with state corrections

officials. Bell v. Wolfish, 441 U.S. at 548, 562; Meachum v.

Fano, 427 U.S. 215, 229 (1976). The case law pragmatically

has acknowledged that state prison administrators, unlike

judges, are experts in the management and operation of state

prisons. See Bell v. Wolfish, 441 U.S. at 548; Procunier v.

Martinez, 416 U.S. at 405; Meachum v. Fano, 427 U.S. at

229. As stated in Procunier v. Martinez, 416 U.S. at 404-405:

Prison administrators are responsible for maintaining

internal order and discipline, for securing their institu-

tions against unauthorized access or escape, and for

rehabilitating, to the extent that human nature and

inadequate resources allow, the inmates placed in their

custody. The Herculean obstacles to effective dis-

charge of these duties are too apparent to warrant

explication. Suffice it to say that the problems of

16

prisons in America are complex and intractable, and

more to the point, they are not readily susceptible of

resolution by decree. Most require expertise, compre-

hensive planning, and the commitment of resources,

all of which are peculiarly within the province of the

legislative and executive branches of government. For

all of those reasons, courts are ill equipped to deal with

the increasingly urgent problems of prison administra-

tion and reform. Judicial recognition of that fact

reflects no more than a healthy sense of realism.

Moreover, prison officials, particularly those in maximum

security facilities such as the Oregon State Penitentiary, must

supervise and attempt to rehabilitate inmates who are “not

usually the most gentle or tractable of men and

women.” Johnson v. Glick, 481 F.2d 1028 (2d Cir.), cert.

denied, 414 U.S. 1033 (1973) (Friendly, J.). Given limited

space and limited resources, prison officials must attempt to

maintain order, discipline, and above all the safety and

security of prison inmates and corrections personnel. It is

essential in pursuit of these objectives that prison officials

maintain a regime of close supervision and discipline, Rhodes

v. Chapman, 452 U.S. at 350, for “[t]he danger of prison riots is

a serious concern, shared by the public as well as by prison

authorities and inmates.” /d. at 349, n.14.

For these and other reasons,

[prison officials must be free to take appropriate

action to ensure the safety of inmates and corrections

personnel and to prevent escape or unauthorized

entry.

. . . Prison administrators should be accorded wide-

ranging deference in the adoption and execution of

policies and practices that in their judgment are

needed to preserve internal order and discipline and to

maintain internal security.

17

Bell v. Wolfish, 441 U.S. at 547.

When a prison riot erupts, however, the task of prison

officials is to restore, rather than to attempt to maintain,

order and discipline. In the judgment of prison officials

invoived at the scene of the riot, drastic and immediate

measures may be deemed necessary to achieve this objec-

tive. Prison officials must be accorded wide latitude in their

tasks of quelling the disturbance and of restoring order and

security. They should not be deterred in the pursuit of their

lawful and immediate objectives by the fear that one false

step, no matter how well intentioned, may subject them to

future liability at the hands of prisoners who may incur injury

or even death as a result of measures prison officials deem

necessary to bring an end to the chaos.

The tort-like standard articulated and applied by the

Ninth Circuit not only fails to accord wide latitude to the

judgment of prison administrators, it fails to accord any

meaningful latitude at all. Prison administrators are left to

walk a fine line. They dar. not misjudge whether less drastic

measures would be as effective to regain control; they dare not

mistakingly estimate that the level of force used is proportion-

ate to the threat posed by the riot; they dare not be less than

perfectly reasonable and prudent. If they even arguably devi-

ate from the most reasonable course, a prisoner-plaintiff may

be able to find an expert who, judging the administrators’

actions by hindsight and in the tranquil environment of life

outside prison walls, will conclude that the administrators

acted “a little bit hasty,” or that they first should have

18

experimented with other means to quell the riot. Liability can

attach even though other experts conclude that the action

taken was eminently appropriate, reasonable and sound. The

Ninth Circuit’s decision thus, in short, invites the trier of fact

to second-guess fully the judgments made by prison officials as

they attempt to react to life-threatening emergencies within

institutional walls.

To meet the initial burden of proving an Eighth Amend-

ment violation, it should not be sufficient for a prisoner

merely to present some testimony that less drastic methods

than those employed by prison officials equally may have been

effective in quelling the disturbance, freeing prison officials

held hostage, and restoring order and security. Nor should it

be sufficient for a prisoner merely to show that the prison

officials should have known that the situation was not as

severe as they perceived it to be, thus calling for less force than

actually emploved. All such evidence does, without more, is

prove a prima facie tort case.

An appropriate Eighth Amendment standard of conduct

would subject prison officials to liability for their action in the

course of a prison riot or disturbance where one or more

hostage is being held only if they act wantonly, in a manner

grossly disproportionate to the situation as perceived, or

totally without penological justification. Such a standard

would embody the concept of punishment that is cruel and

unusual, and such a measure would not unduly hamper prison

officials in the performance of their duty.

19

2. Having announced a new “unreasonable force” Eighth

Amendment standard under guise of a “deliberately indif-

ferent” rubric, the Ninth Circuit proceeded to strip petitioner

prison officials of their right to claim qualified immunity. The

lower court’s holding that no qualified immunity defense was

available to petitioners conflicts with this Court’s recognition

that public officials may claim qualified immunity in § 1983

actions when a constitutional right is not clearly established

at the time an action occurred. See Harlow v. Fitzgerald, 457

U.S. 800 (1982); Procunier v. Navarette, 434 U.S. 555

(1978). See also, Davis v. Scherer, 468 U.S. —_, 104. S.Ct. 3012

(1984). If this Court should reach the immunity question, in

the event it approves of the Ninth Circuit’s finding of a

potential Eighth Amendment violation, it nevertheless should

grant review and reverse the circuit court decision to rectify

the anomoly.

The Ninth Circuit concluded that a jury’s finding that

prison officials subjected an inmate to cruel and unusual

punishment necessarily would negate any claim that the

officers acted in good faith and thus were entitled to the

defense of qualified immunity. The court said:

The two findings are mutually exclusive. “Those

‘deliberately indifferent’ to the [plaintiffs right]. . .

could not show that they had not violated ‘established

statutory or constitutional rights of which a reason-

able person would have known.’” Haygood v.

Younger, 718 F.2d at 1483-84. See Miller v. Solem, 728

F.2d at 1025. Similarly, deliberate indifference to

Albers’ right to be free of cruel and unusual punish-

20

ment would violate a right “clearly established at the

time of the conduct at issue.” Davis v. Scherer, 468

U.S. __., __, 104 S.Ct. 3012, 3021, 82 L.Ed.2d 139

(1984).

743 F.2d at 1376. The principal flaw in this reasoning, of

course, is that lower court’s civil assault and battery standard

for evaluating official response to prison riots previously had

not been announced.®

In Procunier v. Navarette, 434 U.S. at 565, this Court ruled

that a claim of qualified, “good faith” immunity by prison

officials could not be rejected as a matter of law, “|b]ecause

they could not reasonably have been expected to be aware of a

constitutional right that had not yet been

declared. . . .”’ Drawing on this precedent, the Court stated

in Harlow v. Fitzgerald, 457 U.S. at 818, that “government

officials 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.” As this Court explained,

li]f the law at [the time an action occurred] was not

clearly established, an official could not reasonably be

expected to anticipate subsequent legal developments,

nor could he fairly be said to ‘know’ that the law

forbade conduct not previously identified as unlawful.

Ibid.

In analyzing the availability of the qualified immunity

defense, the Ninth Circuit failed to focus on whether, in the

In fact, under state law, prison officials are immune from liability for

“ta}ny claim arising out of riot, civil commotion, or mob action or out of any

act or omission in connection with the prevention of any of the forego

ing.” Or. Rev. Stat. § 30.265(3)(e)

21

context of a prison riot, prisoners had a clearly established

constitutional right to be free from the use of unreasonable

force. Assuming for the sake of argument that the Ninth

Circuit correctly concluded that merely unreasonable force to

quell a prison riot is forbidden by the Eighth Amendment,

such a standard was not clearly established when the prison

outbreak in this case occurred. Until the Ninth Circuit's

decision in this case, only one other circuit court apparently

had enunciated a reasonable force rule for prison officials, but

that announcement was made with regard to a due process

claim by a pre-trial detainee in a case that did not arise from a

prison riot. See, Ridley v. Leavitt, 631 F.2d 358 (4th Cir. 1980)

(“only reasonable force under the circumstances may be

employed’). Cf. King v. Blankenship, 636 F.2d 70 (4th Cir.

1980) (“unjustified striking, beating or infliction of bodily

harm upon a prisoner. . . without just cause’). In fact, the

vast majority of the circuit courts that have analyzed prisoner

§ 1983 claims based either on the Eighth Amendment or the

Due Process Clause have followed Judge Friendly’s approach

in Johnson v. Glick, 481 F.2d at 1033:

In determining whether the constitutional line has

been crossed, a court must look to such factors as the

need for the application of force, the relationship

between the need and the amount of force that was

used, the extent of injury inflicted, and whether force

was applied in a good faith effort to maintain or restore

discipline or maliciously and sadistically for the ver)

purpose of causing harm.

(Emphasis added).

See, e.z.. Norris v. District of Columbia, 737 F.2d 1148 (D.C. Cir. 1984)

(Footnote continued on next page

22

The Ninth Circuit, thus, had no basis for concluding, sub

silentio, that the standard it employed was “clearly estab-

lished”” Eighth Amendment law. Its cavalier treatment of

petitioners’ immunity warrants this Court’s attention and

correction.

CONCLUSION

The Ninth Circuit enunciated and applied in this case a

standard of conduct that potentially subjects state prison

officials to liability for damages under 42 U.S.C. § 1983 and

the Eighth Amendment any time experts disagree that the

force used to quell a prison riot and to restore order and

internal security was reasonable. Such a standard goes

against the very grain of the Eighth Amendment. Consistent

with this Court’s prior decisions, state prison officials must be

accorded a broader range of discretion within which to adopt

and implement policies and procedures relating to internal

prison security. They should not be subjected to liability in

damages under § 1983 just because others may teel that the

policies and procedures they invoked in a prison riot were less

desirable than methods which, in hindsight, arguably could

have been used.

Footnote continued from previous page

Smith v. lron County, 692 F.2d 685 (10th Cir. 1982); Martinez v. Rosado, 614

F.2d 829 (2d Cir. 1980). See also Arroyo v. Schaefer, 548 F.2d 47 (2d Cir

1977) ("[t}here must be present ‘circumstances indicating an evil intent, or

recklessness, or at least deliberate indifference to the consequences of his

ynduct for those under his control or dependent upon him’ ”); Clemmens

Greggs, 509 F.2d 1338 (5th Cir. 1975) (“[t}he essence of punishment ts the

intentional infliction of penalty or harm upon another. At the very least

punishment comprises conduct so grossly negligent that intent may be

inferred from its very nature’); Little vu. Walker, 552 F.2d 193 (7th Cir.) cert

i US. 9 (1977) (unnecessary and wanton infliction of pain

violates Eighth Amendment)

23

This Court should enunciate the appropriate standard to

be applied to § 1983 claims based on the Eighth Amendment

and arising out of prison riot situations. The Court should

grant this petition, issue a writ of certiorari, and reverse the

Ninth Circuit’s decision.

Respectfully submitted,

DAVE FROHNMAYER

Attorney General of Oregon

WILLIAM F. GARY

Deputy Attorney General

JAMES E. MOUNTAIN, JR.

Solicitor General

VIRGINIA L. LINDER

Assistant Solicitor General

MICHAEL D. REYNOLDS

Assistant Attorney Genera!

Counsel for Petitioners

App-1

APPENDIX A

Gerald ALBERS, Plaintiff-Appellant,

v.

Harold |sic| WHITLEY, et al.,

Defendants-Appellees.

No. 82-3551.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Nov. 10, 1983

Decided Oct. 1, 1984.

| Names of counsel omitted in printing]

BEFORE: WRIGHT, CANBY and BOOCHEVER, Circuit

Judges.

CANBY, Circuit Judge

Plaintiff Albers appeals from a final judgment entered by

the district court upon a directed verdict in favor of defen

dants. Albers v. Whitley, 546 F Supp 726 (D. Or. 1982 Phe

lower court’s ruling was issued following a 3-day jury

trial. Albers sought compensatory and punitive damages

against defendants pursuant to 42 U.S.C. § 1983, allegin

violations of his eighth and fourteenth amendment rights. He

also requested damages under the Oregon Tort Claims Act for

pendent state claims. We reverse in part the district court's

judgment verdict and remand for a new trial. We affirm as to

the pendent state claims

FACTS

Albers was a prisoner whose claims arise from his havi!

been shot in the knee by defendant prison officials while they

App-2

were quelling a prison disturbance in ““A”’ Block of the Oregon

State Penitentiary on June 27, 1980. Cellblock “A” consists

of two tiers and houses more than 200 inmates. The only

reasonable mode of access between the two tiers is a connected

stairway. The stairway is separated from the lower tier by a

barred door. Prison officers may enter the cellblock from

either end, on either tier ai.d can control entry into either tier

by means of barred walkways. Defendant Whitley was

security manager of the penitentiary; defendant Keeney was

an assistant superintendent; and defendant Kennecott was a

corrections officer.

On the night of June 27, 1980, some inmates in cellblock

“A” became agitated about what they viewed as mistreatment

of other inmates by prison guards. Because of the ensuing

commotion and the inmates’ tense mood an early “cell-in”

order was given

Some inmates resisted and one inmate, Richard Klenk,

became particularly upset. He confronted two guards and

assaulted one. After the assaulted guard left the cellblock,

some inmates began to break furniture. The remaining guard

was moved to a safer area by several helpful inmates but was

Prison authorities were notified and defendant Whitley

went to speak with Klenk. A few attempts were made

lemonstrate that the inmates whom the prisoners were Orig!

App-3

nally concerned about were unharmed, but the disturbance

continued.

Whitley checked the condition of the prison guard being

held hostage and found him unharmed. He then began orga-

nizing an assault syuad. At some point the prison officials

discovered that Klenk had a knife and had claimed that one

inmate had been killed and that others would die.

Whitley returned to the cellblock to see that the hostage

guard was still unharmed, and was told by other inmates that

they would protect the guard. Whitley then spoke with Albers

who had left his cell at an inmate’s request to see whether he

could aid in quieting the disturbance. Albers asked Whitley if

he would return with a key to the lower tier cells to allow those

on the lower tier, including several elderly inmates, to remove

themselves from the commotion. Whitley said that he would

return with the key. When Whitley left, he noticed a bar-

ricade had been constructed, limiting access to the cellblock.

The prison officials agreed that their only feasible alter-

native was to arm a squad with shotguns and invade the

cellblock. Cupp ordered the squad to “shoot low.”

When Whitley reentered the cellblock he was followed by

three armed guards. There is evidence that Albers asked for

the key and Whitley screamed “shoot the bastards” and ran

toward the stairs in pursuit of Klenk. The stairway was the

only route to the cell where the guard was held hostage; it was

ilso the only route by which Albers could return to his own

App-4

Warning and second shots were fired. Whitley chased

Klenk to the upper tier. Albers ran up the stairs behind

Whitley and was shot in the knee by Kennecott. Klenk was

subdued by Whitley with the help of several inmates. The

hostage guard was released unharmed. One other inmate had

been shot on the stairs and others on the lower tier also were

harmed by gunshot. Albers sustained severe nerve damage to

his lower left leg, with residual paralysis, and mental and

emotional distress.

The issues on appeal are (1) whether there was evidence

from which a jury could conclude that Albers was deprived of

any constitutional rights; (2) whether defendants are pro

tected by qualified immunity; and (3) whether Albers’ state

law claims are barred by the Oregon Tort Claims Act.

DISCUSSION

To establish a prima facie case under section 1983, Albers

was required to show (1) that the conduct he complained of

was committed by defendants and under color of state law,

and (2) that this conduct deprived Albers of rights, privileges

or immunities secured by the Constitution or laws of the

United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct.

1908, 1912, 68 L.Ed.2d 420 (1981). There is no question that

defendant prison authorities were acting under color of state

law. Our focus is therefore upon deprivation of federally

protected rights. It is not enough for Albers to show that he

may have been the victim of a state-law tort: he must show a

violation of the Constitution or a federal statute. Baker |

App-5

McCollan, 443 U.S. 137, 142, 99 S.Ct. 2689, 2693, 61 L.Ed.2d

433 (1979).

The right upon which Albers relies is his right under the

eighth amendment not to be subjected to cruel and unusual

punishment.' Punishment has been characterized as cruel

and unusual when it is incompatible with “the evolving

standards of decency that mark the progress of a maturing

society,” Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2

L.Ed.2d 630 (1958), and when it involves an unnecessary and

wanton infliction of pain or is grossly disproportionate to the

severity of the crime. See Solem v. Helm, —_ U.S. , 103

S.Ct. 3001, 3006, 77 L.Ed.2d 637 (1983); Rhodes v. Chapman,

452 U.S. 337, 346, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981);

Estelle v. Gamble, 429 U.S. 97, 102-03, 97 S.Ct. 285, 290 50

L..Ed.2d 251 (1976). A formal intent to punish is not required;

unjustified striking, beating or infliction of bodily harm upon

a prisoner by or with the authorization of state officials may

be sufficient to violate the eighth amendment. See, King v.

Blankenship, 636 F.2d 70, 72 (4th Cir. 1980). It is difficult to

draw a precise line at which the application of force becomes

unconstitutional, but “‘unnecessary, unreasonable, and

grossly” excessive force qualifies. Williams v. Mussomelli, 722

F.2d 1130, 1134 (3d Cir. 1983).

We agree with the district court that Albers is not asserting an

independent violation of fourteenth amendment due process. 546 F. Supp

at 732 n. 1. There is consequently no need to consider whether Albers’

protections under that clause differ in any way from those under the eighth

amendment. See Williams v. Mussomelli, 722 F.2d 1130 (3d Cir. 1983

App-6

All of these general standards require adaptation however,

to fit the facts of Albers’ case. Without question, shooting a

prisoner in the knee would qualify as cruel and unusual if it

were simply done as punishment for crime or bad behav-

ior. Here, however the shooting occurred in the course of a

forcible response to a prison emergency. “Prison officials

must be free to take appropriate action to ensure the safety of

inmates and corrections personnel and to prevent escape or

unauthorized entry.” Bell v. Wolfish, 441 U.S. 520, 547, 99

S.Ct. 1861, 1878, 60 L.Ed.2d 447 (1979). Moreover, those

authorities must be allowed a reasonable latitude for the

exercise of discretion in determining the appropriate response

to a crisis; a measure that in retrospect appears not to have

been necessary might have seemed very necessary to a reason-

able prison administration at the time it was taken. See id;

Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied,

414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973).

On the other hand, the latitude accorded to prison

authorities does not mean that they are authorized to use any

amount of force, however great. Ridley v. Leavitt, 631 F.2d

358, 360 (4th Cir. 1980). In our view, a proper standard deenis

that eighth amendment to have been violated when the force

used is “so unreasonable or excessive to be clearly dispropor-

tionate to the need reasonably perceived by prison officials at

the time.” Jones v. Mabry, 723 F.2d 590, 596 (8th Cir. 1983),

cert. denied, U.S. , 104 S.Ct. 2683, 81 L.Ed.2d 878

(1984). Thus if a prison official deliberately shot Albers under

circumstances where the official, with due allowance for the

App-7

exigency, knew or should have known that it was unnecessary,

Albers’ constitutienal right would have been

infringed. Similarly, if the emergency plan was adopted or

carried out with “deliberate indifference” to the right of

Albers to be free of cruel unusual punishment, when the

eighth amendment has been violated. See, Haygood v

Younger, 718 F.2d 1472, 1482-83 (9th Cir. 1983), petition for

rehearing en banc granted, 729 F.2d 613 (9th Cir. 1984); Miller

v. Solem, 728 F.2d 1020, 1024 (8th Cir. 1984). This “deliberate

indifference” standard arose in cases where prisoners were

denied proper medical care, and it was designed to differenti-

ate violations of constitutional rights from mere malprac

tice. See, Estelle v. Gamble, 429 U.S. 97, 104-106, 97 S.Ct. 285,

291-292, 50 L.Ed.2d 251 (1976). The standard may appropri-

ately be applied to test the constitutionality of other exercises

of professional judgment by prison officials that result in

harm to prisoners. See, Haygood v. Younger, 718 F.2d at

1482-83; Miller v. Solem, 728 F.2d at 1024. So applied, ‘‘delib

erate indifference” goes well beyond negligence and amounts

to the “‘unnecessary and wanton infliction of pain’

proscribed by the Eighth Amendment.” Estelle v. Gamble, 429

U.S. at 104 (quoting Gregg v. Georgia, 428 U.S. 153, 173, 96

S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976)).

Albers contends that he presented sufficient evidence to

permit a jury to find that unreasonable, disproportionate and

unnecessary force was used against him, and that it was used

with deliberate indifference to his constitutional right. The

district court, referring to uncontradicted evidence that defen

App-8

dants were faced with a prison uprising and that an inmate

armed with a knife had threatened to kill a hostage, held that

the defendants’ actions, even in hindsight, could not be viewed

as unreasonable. The court accordingly directed a verdict for

defendants. Our review of the record convinces us that the

district court erred in so doing.

The district court could properly direct a verdict for

defendants only if, after viewing the evidence as a whole and

drawing all possible inferences in favor of Albers, it found no

substantial evidence that could support a jury verdict in his

favor. California Computer Products, Inc. v. IBM, 613 F.2d

727, 732-34 (9th Cir. 1979). The district judge was not

entitled to resolve contradictions in the evidence, Autohaus

Brugger, Inc. v. SAAB Motors, Inc., 567 F.2d 901, 909 (9th

Cir.) cert. denied, 436 U.S. 946, 98 S.Ct. 2848, 56 L.Ed.2d 787

(1978), or to pass upon the credibility of witnesses. Fountila v.

Carter, 571 F.2d 487, 490 (9th Cir. 1978). Those are jury

functions.

The record discloses numerous instances of conflicting

testimony regarding excessive use of force. While the evi-

dence regarding the threatening behavior of inmate Klenk was

uncontradicted, there was testimony that the general distur-

bance in the cell block [sic] was subsiding by the time that the

defendants stormed it with shotguns. The jury might have

believed that conditions were so improved that it was or

should have been apparent to defendants, and have called for

less force. See Ridley v. Leavitt, 63i F.2d 358 (4th Cir.

1980). Both plaintiff and defendants presented expert testi-

mony on the propriety of the prison authorities’ actions

App-9

during the prison disturbance. It was the jury’s function to

weigh the experts’ testimony on the basis of each expert's

experience, knowledge, and opportunity to observe. See,

Cockrum v. Whitney, 479 F.2d 84, 86 (9th Cir. 1973).

Albers’ expert, Mr. Lou Brewer, testified that the use of

deadly force under the circumstances of this case, taking its

timing into account, was unnecessary to prevent imminent

danger to either the hostage or other inmates. He also testi

fied that the use of deadly force was excessive under the

circumstances at the time it was used, and that reasonable

corrections policy would dictate that there be a prior verbal

warning immediately before shooting. Albers [sic] second

expert, Mr. Lee Perkins, testified that the prison authorities

should have acted differently, and that they were “possibly a

little hasty in using firepower” on the inmates.

Although this testimony was controverted by defendants’

experts, Mr. W. James Fstelle, Jr. and Mr. Roger W. Crist, it

is more than possible that a jury could have concluded that the

prison officials’ “riot plan” was hopelessly flawed and that the

use of deadly force against Albers was unreasonable, unneces-

sary, improper and engaged in with deliberate indifference to

his constitutional interests. We hold that there was sufficient

evidence presented from which a jury applying the proper

eighth amendment standard could have found that plaintiff's

eighth amendment rights were violated. Consequently, we

must reverse the judgment of the district court and remand for

App-10

a new trial.

QUALIFIED IMMUNITY

One final note should be taken of the qualified immunity

defense claim. Under Harlow v. Fitzgerald, 457 U.S. 800, 102

S.Ct. 2727, 73 L.Ed.2d 396 (1982), government officials “‘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.” Jd. at 818, 102 S.Ct. at 2738. This is an objective

standard.

As we noted in Haygood, supra, however, there is overlap

between our eighth amendment analysis and the qualified

immunity defense. A finding of deliberate indifference is

inconsistent with a finding of good faith or qualified immu-

nity. The two findings are mutually exclusive. “Those ‘delib-

erately indifferent’ to the [plaintiff's right]. . . could not show

that they had not violated ‘established statutory or constitu-

tional rights of which a reasonable person would have

known.” Haygood v. Younger, 718 F.2d at 1483-84. See,

Miller v. Solem, 728 F.2d at 1025. Similarly, deliberate indif-

ference to Albers’ right to be free of cruel and unusual

punishment would violate a right “‘clearly established at the

time of the conduct at issue.”’ Davis v. Scherer, 468 U.S. —

, 104 S.Ct. 3012, 3021, 82 L.Ed.2d 139 (1984).

Therefore, a new trial must determine whether Albers was

subjected to cruel and unusual punishment under the “‘delib-

erate indifference” standard by defendants’ use of excessive

force against him. If it is determined that the prison

App-11

authorities’ conduct did not violate this standard, they are

absolved of all liability under § 1983. If an eighth amendment

violation is found, there is no qualified immunity defense

available.

PENDENT STATE CLAIMS

The district court correctly dismissed Albers’ pendent

state tort claims because recovery is barred by the Oregon

Tort Claims Act. See, O.R.S. § 30.265(3)(a).

REVERSED IN PART, AFFIRMED IN PART, and

REMANDED.

EUGENE A. WRIGHT, Circuit Judge, dissenting:

I would affirm substantially for the reasons stated by

Judge Panner in his excellent opinion below. Albers v

Whitley, 546 F. Supp. 726 (D. Or. 1983). I add these com-

ments. I agree with the district judge that: (1) no constitu-

tional rights were violated by the prison officials’ use of deadly

force during a prison riot, and (2) the prison officials enjoy

immunity to Albers’ claim for damages.

|. The Eighth Amendment Claim

This is the first case in which a federal court has counte-

nanced a cause of action for cruel and unusual puuishment

arising from a prison disturbance. It is not ou™ rtunction to

second guess the prison officials’ response to a riot situa-

tion. Administration of a prison is “at best an extraordinarily

difficult undertaking.”” Hudson v. Palmer, U.S.

104 S.Ct. 3194, 3200, 82 L.Ed.2d 393 (1984); Wolff v. McDon-

nell, 418 U.S. 539, 566, 94 S.Ct. 2963, 2979, 41 L.Ed.2d 935

(1974).

App-12

The district court viewed the evidence correctly in the

light most favorable to the plaintiff and concluded that no

triable issue existed because the prison officials responded in

good faith to a genuine emerzency. Albers v. Whitley, 546 F.

Supp. 726, 735 (D. Or. 1982) This was a riot. Prisoners were

armed with a knife and pieces of furniture. A guard was held

hostage. One inmate was reported dead.

Prison officials attempted and failed to achieve a peaceful

settlement. They elected not to use tear gas because of the

great discomfort it would cause the majority of inmates who

had obeyed the cell-in order. Albers, 546 F. Supp at 733-34.

Close judicial scrutiny is inappropriate where prison offi

cials react in good faith to a true crisis. Arroyo v. Schaefer, 548

F.2d 47, 50 (2d Cir. 1977); LaBatt v. Twomey, 513 F.2d 641, 647

(7th Cir. 1975). See also Pepperling v. Crist, 678 F.2d 787, 789

(9th Cir. 1982) (extreme deference given to prison officials in

matters of internal security). Judge Friendly has observed,

“Not every push or shove, even if it may later seem unneces-

sary in the peace of a judge’s chambers violates a prisoner's

constitutional rights.” Johnson v. Glick, 481 F.2d 1028, 1033

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

324 (1973).

II. Qualified Immunity

Under Davis v. Scherer, ___U.S. ___, 104 S.Ct. 3012, 82

L.Ed.2d 139 (1984), prison officials enjoy immunity unless, at

the time Albers was shot, it was “clearly established” that

prison officials could be held liable for using deadly force in

quelling a prison riot. The standard is objective and is appro-

priate for summary disposition by a trial judge. Harlow v.

App-13

Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738. 73 L.Ed.2d

396 (1982). We view the “objective reasonableness of [the]

official’s conduct as measured by reference to clearly estab

lished law.”” Davis, U.S. at , 104 S.Ct. at 3018 (quoting

Harlow, 457 U.S. at 818, 102 S.Ct at 2738).

The majority, however, merges the question of ‘deliberate

indifference” with the question whether a right is “clearly

established” for qualified immunity purposes. This incor

rectly inserts a subjective element into the determination of

an Official’s immunity. It also transforms qualified immunity

from a question of law for the judge, to a question of fact for

the jury.

There is no definitive guide as to when a right is “clearly

established.” Zweibon v. Mitchell, 720 F.2d 162, 168-69 (D.C

Cir. 1983). The Supreme Court has indicated that a high

standard should be applied in prison cases such as this. In

Davis, the Court recognized that prison officials routinely

make close decisions and that they “should not err always on

the side of caution.” Davis, U.S. at , 104 S.Ct. at

3021. Those persons “must often act swiftly and firmly at the

risk that action deferred will be futile or constitute virtual

abdication of office.” Jd.

No court has awarded damages to a prisoner injured in a

prison riot. As evidenced by the divergence of opinion among

us on this panel, the constitutional rights of prisoners during a

prison riot are not well settled. These rights are not “clearly

established” under Davis.

App-14

ipproaci Ss not compe led by Ha LO0d

$42 $5.5-34 (9th Cir. LYs icated y

84). A vacated decision has no vitality as

Western Electric ( Inc. 672 F.2d 381,

ert. denied. 459 U.S. 981.1038 8.Ct 18. 74

App-15

APPENDIX B

Gerald ALBERS, Plaintiff,

Vv.

Harol WHITLEY, et al., Defendants.

Civ. A. No. 81-517-PA.

l'nited States District Court

LD. Oregon

Aug. 31, 1982

|'Names of counsel omitted

OPINION

PANNER, District Judge

in printing

This is a civil rights action against individual corrections

officers arising out of a disturbance in “A” Block of the

’

Oregon State Penitentiary on June 27, 1980. Plaintiff was

injured by shotgun fire. He alleged that he was deprived of

rights under the eighth and fourteenth amend

ments. Additionally, he appended state tort claims for assault

and battery and negligence.

At the conclusion of a jury trial, | directed a verdict for the

defendants. | ruled that there was not sufficient evidence

presented from which a jury could conclude that plaintiff was

deprived of any constitutional rights. Alternatively, I ruled

that the defendants were immune from damages. I| rejected

plaintiff's pendent claims. Entry of judgment has been with

held pending this opinion.

App-16

STANDARDS FOR DIRECTED

VERDICT

A directed verdict is appropriate if the evidence permits

only one reasonable conclusion as to the verdict. California

Computer Products v. 1.B.M., 613 F.2d 727, 732-33 (9th Cir.

1979). To reach such a conclusion, I must consider all the

evidence but must do so in a light most favorable to the

nonmovant. Autohaus Brugger, Inc. v. Saab Motors, Inc., 567

F.2d 901, 909 (9th Cir.), cert. denied, 436 U.S. 946, 98 S.Ct.

2848, 56 L.Ed.2d 787 (1978). I cannot weigh the evidence

presented nor consider the credibility of witnesses. All rea

sonable inferences must be drawn in favor of the nonmo

vant. Fountila v. Carter, 571 F.2d 487, 490 (9th Cir. 1978); Kay

v. Cessna Aircraft Co., 548 F.2d 1370, 1372 (9th Cir.

1977). Finally, I note this circuit’s admonition that a motion

for directed verdict should be granted only “where there is no

substantial (or ‘believable’) evidence to support” any other

verdict. Autohaus Brugger, supra at 910.

FACTS

Plaintiff Gerald Albers was an inmate housed in cellblock

“A” at the Oregon State Penitentiary in Salem, Oregon on

June 27, 1980. Defendant Whitley was security manager of

the penitentiary; defendant Cupp was superintendent; defen-

dant Keeney was an assistant superintendent; and defendant

Kennecott was a corrections officer.

Cellblock “A” is an “honor” cell consisting of two tiers and

housing for over 200 inmates. Lower tier cells are adjacent to

an open area. A stairway leads to the upper tier. A hallway off

App-17

the open area leads out of the cellblock. The lower tier cells

are separated from the open area by floor-to-ceiling bars and a

barred door. On each tier are two opposing rows of

cells. Open floor separates the lower tier rows of cells. Open

space separates the rows on the upper tier. While it is possible

to jump and climb between tiers, the stairway offers the only

practicable way for inmates to reach the upper tier. Prison

officers may enter cellblock “A” from either end, on either tier

and can control entry into either tier Dy means of barred

walkways.

Inmates housed in cellblock “A” have good disciplinary

records and accordingly, enjoy certain privileges that are

denied the rest of the prison population. Significantly, cell

block “A” inmates are allowed more time outside their

cells. Normal “‘cell-in” time for cellblock “A” is 11:00 p.m. on

weekdays and midnight on weekends.

On Friday night, June 27, 1980, several cellblock “A”

inmates became upset over perceived mistreatment of other

inmates who were being escorted by guards to the prison’s

segregation and isolation building. Some inmates verbally

expressed their agitation believing there was unnecessary

force used by the guards in escorting the prisoners.

Corrections officers Fitts and Kemper were on duty in

cellblock “A” on June 27, 1980. At approximately 9:15 p.m.,

Officer Kemper received a call. He was instructed to order all

inmates in cellblock “A” to return to their cells. This cell-in

order was apparently due to the commotion and tense mood of

the inmates. Accordingly, Kemper issued the order for all

App-18

inmates to return to their cells. At that time, he was standing

in the open area adjacent to the lower tier. Fitts was

nearby. Plaintiff was in his upper tier cell #274.

The cell-in order was met with resistance. Several

inmates demanded to know the reason for the order. One

inmate, Richard Klenk, became particularly upset. Klenk

jumped from the second tier and confronted and assauited

Kemper. Kemper left the cellblock but Fitts

remained. Shortly after Kemper left, Klenk and other

inmates began to break furniture. T'wo inmates escorted Fitts

from the open area into an office, stating that Fitts would be

protected from harm there.

Kemper informed the control center of the disturbance in

cellblock “A”. Defendants Cupp and Kenny [sic] were imme-

diately notified and both proceeded to the penitenti-

ary. Defendant Whitley was also advised of the disturbance

and went to cellblock “A”.

Whitley entered cellblock “A”, climbing over broken fur-

niture placed by inmates in the hallway leading into the

cellblock. Whitley spoke with inmate Klenk. Whit!cy agreed

to allow four inmates to be escorted to the segregation and

isolation building to observe the condition of the inmates who

were taken there earlier. Whitley left cellblock “A” with

those four inmates. The four later reported back to fellow

inmates in cellblock “A” that the prisoners in segregation and

isolation were not harmed but were intoxicated. This infor-

mation did not quell the disturbance.

App-19

Whitley returned to the ceilblock and asked Klenk to

allow him to see Officer Fitts. Klenk brought Fitts to Whitley

who observed that Fitts was not harmed. Fitts was returned

to the office but shortly thereafter was taken to cell #201 on

the upper tier.

Meanwhile, Whitley left the cellblock and began organiz-

ing an assault squad. At some point, Whitley and others were

aware that Klenk had secured a homemade knife. Klenk had

also informed Whitley that one inmate had been killed and

that others would die.

Whitley returned to the cellblock for a third time. Klenk

repeated his earlier demand to meet with media represen-

tatives. Whitley again requested to see Fitts. Klenk escorted

Whitley to cell #201. Fitts reported that he was

unharmed. Several inmates in and around cell #201 stated to

Whitley that they would protect Fitts from physical

harm. Whitley left the cellblock, noting that a barricade had

been constructed that limited access into the cellblock.

Whitley advised defendants Kenney and Cupp of the

events and his assessment of the situation. It was agreed that

tear gas could not be utilized. Cupp thereupon ordered

Whitley to take a squad into “A” block armed with shot-

guns. Cupp ordered that the squad be instructed to “shoot

low.”

During these events, plaintiff left his cell on the second

tier. While this was in violation of the “‘cell-in” order, there

was evidence that plaintiff was requested by other inmates to

App-20

leave his cell and aid in quelling the disturbance. Plaintiff

proceeded down the stairs from the upper tier to the open area

in front of the lower tier cells. Although a disputed fact, I

accept for purposes of analyzing the evidence, that the steei-

barred door which provides access from the lower tier to the

open area was closed and locked. I also accept as true,

plaintiff's statement that he spoke with Whitley shortly after

Whitley spoke with Fitts in cell #201. Plaintiff asked Whitley

whether the locked door on the lower tier could be opened to

allow inmates, including several elderly inmates, to leave that

area until the commotion died down. Whitley responded that

he would find out and return with the key.

By this point, the assault group had assembled outside the

barricaded entry way. Shotguns had been assigned to Ken-

necott and Officers Jackson and Smith. Acting under Cupp’s

orders, the guns were loaded with #6 shot. A second group of

officers, without firearms, were assigned to immediately fol-

low the assault group across the barricade. Whitley

instructed Kennecott to follow him across the barricade and

to fire a warning shot on entry and to shoot low at anyone

heading up the stairs toward #201. At about 10:30 p.m.,

Whitley entered the cellblock, unarmed, followed by Ken-

necott, Jackson and Smith, all armed with shotguns.

Plaintiff was waiting at the bottom of the stairway for

Whitley to return with the key. When Whitley did return,

plaintiff asked about the key. The events that followed are in

dispute. Viewed in a light most favorable to plaintiff, there

was evidence that Whitley screamed “shoot these bastards”

App-21

and began running toward the stairs in pursuit of inmate

Klenk, without ordering plaintiff to return to his cell. While

some lights were broken, there was evidence that the area was

sufficiently lighted to enable plaintiff to be recognized and

distinguished from other inmates.

Kennecott followed Whitley over the barricade and dis

charged a warning shot into the wall opposite the cellblock

entrance. Once over the barricade, Kennecott discharged a

second shot which struck a post near the stairway.

Meanwhile, Whitley had chased Klenk up the stairs

toward cell #201. At the doorway to cell #201, Whitley

caught and, with the aid of several inmates, subdued

Klenk. Concurrently, plaintiff began running up the stairs

behind Whitley. Kennecott fired a third shot which struck

plaintiff in his knee. After being shot, plaintiff crawled up the

stairs and sought shelter in a mop room at the top of the

stairs. After Officer Fitts was released unharmed, corrections

personnel began to care for the wounded inmates. In addition

to plaintiff, another inmate was injured by gunshot on the

stairs. Other inmates on the lower tier were also struck by

gunshot.

Plaintiff does not claim that his medical care was inade-

quate. It is, therefore, not detailed. Plaintiff sustained severe

nerve damage to his lower left leg, with residual paralysis, and

App-22

mental and emotional distress.

ISSUES

1. Was there evidence from which a jury could conclude

that plaintiff was deprived of any rights, privileges, or immu-

nities secured by the Constitution?

2. Alternatively, are defendants immune from money

damages? and

3. Was there evidence from which a jury could conclude

that defendants are liable for assault and battery and negli-

gence under state law”?

DISCUSSION

I. CONSTITUTIONAL RIGHTS.

Lawful imprisonment necessarily limits individual rights

and privileges. Price v. Johnson, 334 U.S. 266, 285, 68 S.Ct.

1049, 1060, 92 L.Ed. 1356 (1948). By the very nature of

confinement, a prisoner is deprived of certain liber-

ties. Nevertheless, convicts do not forfeit all constitutional

protections. Bell v. Wolfish, 441 U.S. 520, 545, 99 S.Ct. 1861.

1877, 60 L.Ed.2d 447 (1979). “There is no iron curtain drawn

between the Constitution and the prisons of this coun-

try.” Wolff v. McDonnell, 418 U.S. 539, 555, 94 S.Ct. 2963,

2974, 41 L.Ed.2d 935 (1974).

Section 1983 provides a civil remedy for alleged corstitu-

tional deprivations. To establish a prima facie case, plaintiff

need only prov’ that the conduct was committed by a person

acting under color of state law, and that the conduct in

question deprived plaintiff of rights secured by the Constitu-

tion. It is not necessary to allege or prove the defendants’

App-23

state of mind. Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908,

68 L.Ed.2d 420 (1981).

All defendants were acting under color of state law. Plain-

tiff's proof was therefore limited to the issue of whether

defendants’ conduct deprived him of any rights secured by the

Constitution.

Based upen the events of the night of june 27, 1980,

plaintiff argues that defendants violated his constitutional

rights guaranteed by the eighth and fourteenth amend-

ments.' Underlying that claim is plaintiff's theory that defen-

dants used unreasonable, excessive force under the

circumstances. While plaintiff does not question defendants’

‘I do not understand plaintiff to assert an independent violation of

fourteenth amendment due process. To prevail on such a theory, plaintiff

must prove that he was divested of a protected interest without the due

process of law. While plaintiff undoubtedly had liberty and life interest at

stake, it is unclear what process was due him. “Once it is determined that

due process applies, the question remains what process is due.”” Morrissey v

Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972).

The right to be free from infliction of harm without due process as

guaranteed by the fourteenth amendment usually applies to pretrial

detainees. E.g., Arroyo v. Schaefer, 548 F.2d 47, 49-50 (2d Cir. 1977). I.

limited instances, a regulation or statute may create a due process interest

enforceable by a prisoner. E.g., Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct.

2963, 41 L.Ed.2d 935 (1974); Greenholtz v. Inmates of Nebraska Penal and

Correctional Complex, 442 U.S. 1,.99 S.Ct. 2100, 60 L.Ed.2d 668

(1979). Here, no regulation or statute was cited which would give plaintiff an

expectation of a due process hearing prior to the alleged deprivation of

liberty. See Hayward v. Procunier, 629 F.2d 599, 601 (9th Cir. 1980), cert

denied, 451 U.S. 937, 101 S.Ct. 2015, 68 L.Ed.2d 323 (1981). Furthermore,

in the midst of the emergency created by riotous inmates holding a guard

hostage, the Constitution simply does not mandate a due process hearing for

each inmate potentially affected by remedial action. Hayward, supra at 602-

03 (no due process right to hearing prior to lockdown of prison). When

prison authorities are reacting to emergency situations in an effort to

preserve the safety and integrity of the institution, the state’s interest in

decisive action clearly outweighs the inmates’ interest in a prior procedural

safeguard. La Batt v. Twomey, 513 F.2d 641, 645 (7th Cir. 1975).

App-24

responsibilities to quell inmate disturbances and to rescue

hostages, plaintiff argues that action short of deadly force

should have been used. Plaintiff argues, therefore, that defen-

dants’ use of deadly force deprived him of rights secured by the

Constitution.

The unjustified striking, beating, or infliction of bodily

harm upon a prisoner gives rise to liability under

$ 1983. King v. Blankenship, 636 F.2d 70, 72 (4th Cir.

1980). The eighth amendment, applicable to the states

through the fourteenth amendment, prohibits the infliction of

cruel and unusual punishment. Robinson v. State of Califor-

nia, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). Intent

to punish a prisoner is not a necessary component of an eighth

amendment claim under § 1983. Spain v. Procunier, 600 F.2d

189, 197 (9th Cir. 1979); Haygood v. Younger, 527 F. Supp 808,

820 (E.D. Cal. 1981). What is required in a § 1983 action

based on the eighth amendment is that the defendants caused

harm upon the plaintiff that was cruel and unusual.

While the use of excessive force may give rise to liability

under § 1983, the statute cannot be interpreted to impose

liability for breach of duties of care arising out of tort

law. Baker v. McCollan, 443 U.S. 137, 146, 99 S.Ct. 2689, 2695,

61 L.Ed.2d 433 (1979). “[N]ot every instance of the use of

excessive force gives rise to a cause of action under § 1983

merely because it gives rise to a cause of action under state tort

law or is prosecutable under criminal assault and battery

-

law.” King v. Blankenship, supra, 636 F.2d at 73. To be

App-25

actionable under § 1983, the alleged excessive use of force

must rise to “constitutional dimensions.” Pritchard v. Perry,

508 F.2d 423, 426 (4th Cir. 1975). See also, Johnson v. Glick.

481 F.2d 1028, 1033-34 (2d Cir.), cert. denied, 414 U.S. 1033, 94

S.Ct. 462, 38 L.Ed.2d 324 (1973); Miller v. Hawver, 474 F.

Supp. 441 (D. Colo. 1979). As Judge Friendly observed in

Johnson v. Glick, supra, 481 F.2d at 1033, “Not every push or

shove, even if it may later seem unnecessary in the peace of a

judge’s chambers, violates a prisoner's constitutional rights.”

In determining whether this constitutional line has been

crossed in this case, | must examine such factors as the need

for application of force, tire relationship between the need and

amount of force that was used, and the extent of the injury

inflicted. Johnson v. Glick, supra, 481 F.2d at 1033. In apply

ing these factors, I bear in mind that the defendants here are

not charged with a pattern of practice of conditions usually

associated with eighth amendment violation. Here, the cause

of action arose from a single, isolated incident, not likely to be

repeated. Under those circumstances, courts have shown a

general relunctance to judge the actions of jailers in

hindsight. F.g., La Batt v. Twomey, 513 F.2d 641, 647 (7th Cir.

1975) (institutional lockdown); Miller v. Hawver, 474 F. Supp

441, 442-43 (D. Colo. 1979) (physical attack by guards); Arroyo

v. Schaefer, 548 F.2d 47, 50 (2d Cir. 1977) (tear gas injury); see

also, Cattan v. City of New York, 523 F. Supp. 598, 600-01 (S.D.

N.Y. 1981) (excessive force by police officers). Nevertheless,

emergency conditions do not excuse irresponsibility. The

infliction of harm to a prisoner may be cruel and unusual even

App-26

when applied in pursuit of legitimate objectives, if it goes

beyond what is necessary to achieve those objectives. Ridley v.

Leavitt, 631 F.2d 358, 390 (4th Cir. 1980); Suits v. Lynch, 437

F. Supp. 38, 40 (D. Kan. 1977).

Here, the uncontradicted evidence is that defendants were

faced with a riot situation. At least one inmate was armed

with a knife. Others were armed with pieces of furniture. One

inmate was reported dead and others were said by Klenk to be

in danger. Inmates had destroyed much of the cellblock

furniture and had constructed a barricade. One guard was

held hostage and although there is evidence to show that for

the most part he was in the hands of sympathetic inmates,

there was uncontradicted evidence that the armed inmate

threatened to kill the hostage. In response to this situation,

defendants utilized deadly force and inflicted upon plaintiff a

serious injury.

Prison officials must be free to deal firmly with outbreaks

and uncontrolled situations. They must maintain order, dis-

cipline and preserve the security of inmates and guards. Suits

v. Lynch, supra, 437 F. Supp. at 40. Jailers are not obliged to

await large-scale violence or repeated assaults on inmates or

guards before taking action. Indeed, prison officials would be

derelict if, after receiving warning of violent action, they

waited fulfillment of the threat before responding. Olgin v.

Darnell, 664 F.2d 107, 109 (5th Cir. 1981). In the setting of a

prison emergency such as an inmate riot, where certain

remedial measures are necessary, prison officials must, within

their discretion, curtail certain rights of prisoners. Blair v.

Finkbeiner, 402 F. Supp. 1092, 1094-95 (N.D. Ill. 1975). Of

App-27

course, while prison officers are to be afforded broad discre-

tion in maintaining order within the prison walls, the discre-

tion is not unlimited. Only reasonable force under the

circumstances may lawfully be employed. Ridley v. Leavitt,

631 F.2d 358, 360 (4th Cir. 1980); Martinez v. Rosado, 614 F.2d

829 (2d Cir. 1980).

Defendants reasonably exhausted attempts to quel! the

riot through nonforceful means. Three times defendant

Whitley entered the cellblock to attempt to calm inmates,

disarm inmate Klenk, and to restore order. While there is

evidence, viewed in a light most favored to plaintiff, that the

general disturbance was subsiding, Whitley’s attempt at non-

forceful resolution failed. The hostage remained. Klenk had

also claimed to have killed one inmate and threatened oth-

ers. Under these circumstances, I hold that the use of force to

quell the riot, rescue the threatened hostage, and restore order

to cellblock “A” was reasonable, necessary and proper. No

reasonable jury would have concluded otherwise. An issue

remains, however, wiiether the use of deadly force was reason-

ably proportional to the need for force.

My research disclosed no reported decisions in which an

inmate, shot by guards during the quelling of a prison riot,

sought damages for alleged violations of constitutional

rights. While such shootings have occurred, e.g., /nmates of

Attica v. Rockefeller, 453 F.2d 12, 15 (2d Cir. 1971), apparently

no civil suits were filed.

In LeBlanc v. Foti, 487 F. Supp. 272, 275-76 (E.D. La.

1980), the court assumed for purposes of analysis that plaintiff

was maced by prison guards when a disturbance broke out

App-28

among inmates. The court held that the use of mace by prison

guards to quell the disturbance was not unreasonable force

under the circumstances. Accord, Clemmons v. Greggs, 509

F.2d 1338, 1340 (5th Cir.), cert. denied, 423 U.S. 946, 96 S.Ct.

360, 46 L.Ed.2d 280 (1975) (use of tear gas to prevent escape

held to be reasonable); Davis v. United States, 439 F.2d 1118,

1119-20 (8th Cir. 1971) (use of tear gas to quell riot was

reasonable).

Here, a decision was made by the defendants not to use

tear gas or mace. There was concern whether prison officials

could maneuver through the barricade and adminster the gas

quickly enough to assure that no harm came to the host-

age. There was also concern whether gas would have the

necessary effect in the relatively large area of cellblock “A”.

Gas would cause great discomfort to the majority of inmates

who had obeyed the cell-in order and were in their

cells. These concerns were reinforced by expert testimony by

both sides at trial.

The decision to use deadly force was made after failure of

nonforceful settlement and after rejection by officials of the

use of gas. The gunshots were loaded with #6 shot which

consists of quite small pellets. Instructions were given to

shoot low anyone who followed Whitley up the stairs toward

cell #201.

Viewing the evidence in favor of plaintiff, the prison

officials knew that inmates who had disobeyed the cell-in

order might be injured by the shooting. Nevertheless, inter-

ests of prisoners must be balanced against those of the prison

App-29

institution. Blair v. Finkbeiner, supra, 402 F. Supp. at

1095. Where prison authorities react to emergency situations

and determine that immediate action is necessary to forestall

a riot, that determination outweighs the interest of accurately

assessing individual culpability before taking precautionary

steps. La Batt v. Twomey, supra, 513 F.2d at 645.

Defendants here were faced with a situation that had

extreme potential danger to a hostage guard and to

inmates. Possible alternatives to force were reasonably con-

sidered and rejected. While plaintiff's experts suggested pos-

sible riot formations, tear gas, and sharpshooter alternatives,

it would be speculative to conclude that such other alter-

natives would have been more effective in securing the release

of the hostage and the safety of the inmates. The safety of the

hostage and the nonrioting inmates was of paramount impor-

tance to the defendants.

Prison officers’ choice of alternatives available to them in

emergency situations must not be unduly hindered by over-

board judicial scrutiny, especially on the basis of

hindsight. La Batt v. Twomey, supra, 513 F.2d at

647. Although factually distinguishable, La Batt, is highly

instructive on the proper degree of judicial review of prison

officials’ decision-making during emergency situations:

‘We recognize that present or impending disturbances

which might overtax the control capacity of a prison

creates a dominant interest in prison authorities being

able to act without delay if they feel that delay would

endanger the inmate, others, or the prison commu

nity. [Citations omitted.] This is so even though the

assessment of difficulties may subsequently prove to

App-30

be unfounded. . .” [Citations omitted.] The psychol-

ogy and social stability of a prison community are

foreign to one who is not involved with it on a day-to-

day basis. Any attempt to reconstruct, at a later date,

the conditions present at the time of dispute, and the

dangers then feared by prison authorities, is fraught

with perils of misunderstanding and misapprehension.

Accordingly, the standard of review of a challenge

to the sufficiency of the basis of emergency response

must be generous to the administration. We conclude

that, absent a claim of bad faith or mere pretext on the

part of prison authorities in the imposition of emer-

gency procedures, the underlying bases of dec’sion

must be deemed to lie fully within their expertise and

discretion and, accordingly, is insulated from subse-

quent judicial review.

La Batt, supra, 513 F.2d at 647.

Viewing the evidence in a light most favorable to the

plaintiff, I hold that defendants’ use of deadly force was

justified under the unique circumstances of this case. Possible

alternatives were considered and reasonably rejected by

prison officers. The use of shotguns and specifically the order

to shoot low anyone following the unarmed Whitley up the

stairs were necessary to protect Whitley, secure the safe

release of the hostage and to restore order and disci-

pline. Even in hindsight, it cannot be said that defendants’

actions were not reasonably necessary.

Accordingly, applying the factors enumerated in Johnson

v. Glick, supra, 481 F.2d at 1033, I hold that under the

circumstances of this case, plaintiffs claims of excessive force

do not rise to that “constitutional dimension” sufficient to

support a cause of action under § 1983.

App-31

Il. QUALIFIED IMMUNITY.

Prison officials enjoy a qualified immunity from damages

in § 1983 actions. Procunier v. Navarette, 434 U.S. 555,

561-62, 98 S.Ct. 855, 859-60, 55 L.Ed.2d 24 (1978). Defen-

dants bear the burden of pleading and proving their entitle-

ment to qualified immunity. Gomez v. Toledo, 446 U.S. 635,

100 S.Ct. 1920, 64 L.Ed.2d 572 (1980) (pleading); Harris v.

City of Roseburg, 664 F.2d 1121, 1129 (9th Cir. 1981) (prov-

ing). Such immunity is necessary to insulate public officers

from vexatious litigation and to allow public officers to take

prompt action based on information provided to them by their

parties. Scheuer v. Rhodes, 416 U.S. 232, 246, 94 S.Ct. 1683,

1691, 40 L.Ed.2d 90 (1974) (state governors); Wood v. Strick-

land, 420 U.S. 308, 319, 95 S.Ct. 992, 999, 43 L.Ed.2d 214

(1975) (school board members). These factors become partic-

ularly relevant for prison officers who must exercise an

exceedingly broad range of discretion in performing official

duties. Douthit v. Jones, 619 F.2d 527, 534 (5th Cir. 1980)

(dictum).

There is often confusion between a plaintiff's prima facie

case and defendants’ affirmative defense of qualified immu-

nity. This is because the evidence the plaintiff is required to

produce to establish a prima facie case is precisely the type of

evidence that makes the defendants’ immunity less

likely. Gullatte v. Potts, 654 F.2d 1007, 1014-15 (5th Cir.

1981). It is not unusual for courts to “skip” over the constitu-

tional claims and consider the immunity issue since a finding

of qualified immunity moots the effect of the constitutional

violation. E.g., Procunier v. Navarette, supra; Baker v. Nor-

App-32

man, 651 F.2d 1107, 1124 (5th Cir. 1981)). While I hold that

defendants did not deprive plaintiff of any constitutional

rights, I find it appropriate to analyze defendants’ affirmative

defense of qualified immunity. I hold as an alternative

grounds in support of the directed verdict that defendants are

immune from damages.

Under the qualified immunity doctrine, a public officer

performing acts in the course of official conduct is insulated

from damage suits if (1) at the time and in light of circum-

stances there existed reasonable grounds for the belief that

the action was appropriate; and (2) the officer acted in good

faith. Harris v. City of Roseburg, supra, 664 F.2d at

1128. Courts have determined that this two-prong analysis

calls for both an objective and subjective evaluation of official

conduct. E.g., Williams v. Treen, 671 F.2d 892, 896 (5th Cir.

1982); Gullatte v. Potts, supra, 654 F.2d at 1012-14; Harris v.

City of Roseburg, supra, 664 F.2d at 1127-28; Lock v. Jenkins,

641 F.2d 488, 499-500 (7th Cir. 1981). See also, Wood v.

Strickland, supra, 420 U.S. at 321-22, 95 S.Ct. at 1000-01;

Procenier v. Nararette, supra, 434 U.S. at 562-66, 94 S.Ct. at

859-62. Under the subjective test, an official forfeits his

immunity when he acts with malicious intent to cause a

deprivation of constitutional rights. Williams v. Treen, supra,

671 F.2d at 896. An official must prove that “he was acting

sincerely and with the belief that he was doing right, not

knowing that his official action would violate [plaintiff's]

constitutional rights. . . .” Harris v. City of Roseburg, supra

664 F.2d at 1128. Under the objective standard an official,

App-33

even if acting in the sincere subjective belief that actions

taken are right, loses the cloak of qualified immunity if the

actions taken contravene settled, indisputable law. Williams

v. Treen, supra, 671 F.2d at 896. Defendants must show that

they should not have reasonably known that their official

actions would violate plaintiff's constitutional rights. Harris

v. City of Roseburg, supra, 664 F.2d at 1128.

The Supeme Court recently re-examined the qualified or

‘good faith” immunity defense. In Harlow & Butterfield |

Fitzgerald, U.S. ,1028.Ct. 2727, 73 L.Ed.2d 396 (1982),

the Court reviewed the traditional “objective” and “subjec

tive’ standards and greatly limited the use of the subjective

analysis. Relying on its past decisions in Procunier 1

Navarette, supra, 434 U.S. at 565, 94 S.Ct. at 861 and Wood «

Strickland, supra, 420 U.S. at 321, 95 S.Ct. at 1000, the Court

held that government officials performing discretionary func

tions 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. Harlow, supra, 102 S.Ct. at 2738. The

Court concluded that judicial inquiry into subjective moti-

vation was particularly disruptive of effective government and

prevented the pretrial resolution of many insubstantial

claims. /d.

The Court thus defined the limits of qualified immunity

essentially in objective terms, concluding that such a limita-

tion would adequately safeguard individual statutory and

constitutional rights. “Where an official could be expected to

App-34

know that certain conduct would violate statutory or constitu-

tional rights, he should be made to hesitate; and a person who

suffers injury caused by such conduct may have a cause of

action. But where an official’s duties legitimately require

action in which clearly established rights are not implicated,

the public interest may be better served by action ‘taken with

independence and without fear of consequences.” Pierson v.

Ray, 386 U.S. 547, 554 [87 S.Ct. 1213, 1217-18, 18 L.Ed.2d 288]

(1967)” (footnote omitted). Harlow, supra, 102 S.Ct. at 2739.

Applying these standards to the facts of this case, I hold

that defendants are immune from damages. Defendants are

liable only if they actually knew or should have known that

their action violated plaintiff's constitutional rights. Harlow,

supra, 102 S.Ct. at 2739; Sequin v. Eide, 645 F.2d 804, 812 (9th

Cir. 1981). Only a reasonable belief is necessary since officials

cannot be expected to predict the course of constitutional law

upon which federal judges often differ. Smiddy v. Varney, 665

F.2d 261, 266 (9th Cir. 1981), citing Bivens v. Six Unknown

Named Agents of the Federal Bureau of Narcotics, 456 F.2d

1339, 1349 (2d Cir. 1972) (Lumbard, J., concurring).

The issue of qualified immunity is generally a question for

the jury. Beard v. Udall, 648 F.2d 1264, 1272 (9th Cir.

1981). Nevertheless, if the evidence permits only one reason-

able conclusion, a directed verdict is appropriate. Here, there

was no clearly established constitutional right to be free from

the use of deadly force administered for the necessary purpose

of quelling a prison riot and rescuing a hostage. While injuries

had undoubtedly occurred under similar circumstances no

App-35

reported cases established the right of a prisoner to recover

damages for the alleged constitutional violation. In contrast,

case authority at the time of this incident clearly provided

great discretion to prison officials to take necessary action to

maintain and control prison situations.”

I hold that defendants could not have reasonably known

that actions taken to quell the disturbance and rescue the

hostage would violate any prisoner’s constitutional

rights. Therefore, applying the objective test mandated by

Harlow, supra, | hold that defendants are entitled to a

qualified immunity from damages. No reasonable jury would

conclude otherwise.

Il. PENDENT CLAIMS.

A. Jurisdiction.

Federal courts may exercise jurisdiction over pendent

state claims that arise from “a common nucleus of rete aap

facts.” United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86

5.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). When federal claims

are dismissed prior to trial, pendent state claims with few

exceptions must also fail. Gibbs, supra at 726, 86 S.Ct. at 1139;

Wren v. Sletten Construction Co., 654 F.2d 529. 536 (9th Cir.

E.g., Arroyo v. Schaefer, 548 F.2d 47 (2d Cir. 1977); La Batt v

Twomey, 513 F.2d 641 (7th Cir. 1975); 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);

Pritchard v. Perry, 508 F.2d 423 (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); Davis v. United States, 439 F.2d 1118 (8th Cir. 1971; LaBlanc v. Foti,

487 F. Supp. 272 (E.D. La. 1980); Miller v. Hawver, 474 F. Supp. 441 (D.

Colo. 1979); Suits v. Lynch, 437 F. Supp. 38 (D. Kan. 1977); Blair ¢

Finkbeiner, 402 F. Supp. 1092 (N.D. Ill. 1975). See generally, discussion in

Section I, supra.

App-36

1981). Nonetheless, it is not necessary to have continual

jurisdiction over federal claims as a prerequisite to resolution

of pendent claims. Meyer v. California and Hawaiian Sugar

Co., 662 F.2d 637, 640 (9th Cir. 1981). Where there has been a

trial of the operative facts underlying both federal and state

claims, a “decent regard for economical and sensible use of the

state and federal judicial machinery and considerations of

expense to the litigants” requires a court to decide the pendent

claims even though the federal ones fail. McLearn v. Cowen &

Co., 660 F.2d 845, 848 (2d Cir. 1981) (dictum). Once a trial is

held, dismissal of the pendent claims should be made only if

the federal cause of action was so insubstantial and devoid of

merit that there is obviously no federal jurisdiction. T'raver v.

Meshrtiy, 627 F.2d 934, 939 (9th Cir. 1980).

I hold that the federal claims in this case were not

frivolous nor insubstantial. While the federal claims ulti-

mately were not meritorious, they were sufficient to confer

jurisdiction. Accordingly, I exercise my discretion to reach

the merits of the pendent state claims. Rosado v. Wyman, 397

U.S. 397, 404-05, 90 S.Ct. 1207, 1213-14, 25 L.Ed.2d 442

(1970).

B. Merits

Plaintiff asserted two pendent state claims. First, plain-

tiff alleged’t hat defendants were negligent. To state a cause of

action in negligence under Oregon law, plaintiff must allege

that defendants owed a duty, that defendant breached that

duty, and that the breach was the cause in fact of some legally

cognizable damage to plaintiff. Brennan v. City of Eugene, 285

App-37

Or. 401, 405, 591 P.2d 719, 722 (1979). Second, plaintiff

alleged that defendants committed an assault and bat-

tery. Under Oregon law, assault is an intentional attempt to

do violence to another person. Cook v. Kinzua Pine Mills

Company, 207 Or. 34, 47, 293 P.2d 717, 723 (1956). Battery is

the voluntary act which causes intentional!y harmful or offen-

sive contact with another. Baker v. Baza’r, Inc., 275 Or. 245,

249, 551 P.2d 1269, 1271 (1969).

Even assuming that plaintiff can prove the necessary

elements to recovery for these alleged tort claims, I hold that

recovery is barred by the Oregon Tort Claims Act. Or. Rev.

Stat. § 30.265(3)(e) provides that every public body and its

officers acting within the scope of their employment are

immune from the liability for any claims arising out of riots,

civil commotion or mob actions. The immunity further

extends to any act or omission in connection with the preven-

tion of riots.

Plaintiff argues that the statute provides only government

immunity and not employee immunity. Plaintiff contends

that Or. Rev. Stat. § 30.265 applies only to the financial

liability of the state for actions taken by the public bodies and

by their employees as officials within the scope of their

employment. Thus, immunity would not extend to employees

who are sued as individuals based on personal, tortious con-

duct.

Or. Rev. Stat. § 30.265(3) does not bar suit against state

officers who commit torts while acting outside the scope of

their employment or duties. Dickens v. DeBolt, 288 Or. 3,

App-38

10-12, 602 P.2d 246, 250-51 (1979) (police officer not immune

for acts taken outside scope of employment). Nonetheless,

that exception does not apply here. Plaintiff specifically

alleges that defendants acted by virtue of their vested auth ir

ity and in their official capacities. There was no evidence to

the contrary.

Plaintiff argues that no recovery is sought against the

public body. Under the Oregon Tort Claims Act, the public

body is liable for the torts of its employees acting within the

scope of their employment. Or. Rev. Stat. § 30.265(1). The

public body has an obligation to defend its employees in such

civil actions and, if necessary, to indemnify them. /d. Here,

the state legislature chose not to waive immuity for officers

acting within the scope of their employment for claims arising

out of a riot.

Plaintiff's remaining arguments against the application of

immunity are considered and rejected.’ Accordingly, plain-

Plaintiff argues that the affirmative defense of immunity was not

properly raised. I find, however, that the Answer aileges as a “Third

Affirmative Answer and Defense” that defendants are immune from liability

as a matter of law. Plaintiff also argues that application of Or. Rev. Stat.

§ 30.265(3)(e) to bar employee liability violates the due process provision of

the Oregon Constitution. Oregon Constitution, Art. I, Section 10. That

section provides that “. . . every man shall have remedy by due course of law

for injury done to him and his person, property or reputation.”

Article I. Section 10 of the Oregon Constitution was historically directed

against denying a remedy for a legal injury to private interest recognized

under the common law of torts or property. American Can Co. v. Oregon

Liquor Control Commission, 15 Or.App. 618, 647, 517 P.2d 691, 705

(1973). Here, plaintiff argues that barring recovery from public employees

for actions which, if performed by private individuals might very well be

actionable, is a denial of due process under the Oregon Constitution.

The disparate treatment between private and public tortfeasours pro

vided by the Oregon Tort Claims Act has been the subject of prior

Footnote continued on next page)

App-39

tiffs pendent claims for negligence and assault and battery

are dismissed.

CONCLUSION

It is unfortunate that an inmate was injured by prison

officials attempting to quell a riot and rescue a host-

(Footnote continued from previous page)

constitutional challenge. E.g., Webb v. Highway Div., et al., 56 Or.App. 323,

328, 641 P.2d 1158, 1161 (1982) (equal protection and due process challenge

to disparate notice requirements rejected); Riddle v. Cain, 54 Or.App. 474,

178-79, 635 P.2d 394, 396, pet. for review denied, 292 Or. 334, 644 P.2d 1127

(Or. 1981) (due process challenge to notice requirement rejected); Brown «

Portland School District #1, 48 Or.App. 571, 576, 617 P.2d 665, 668 (1980),

rev. on other grounds 291 Or. 77, 628 P.2d 1183 (1981) (equal protection

challenge to notice requirement rejected); and Edwards v. State, Militar)

Department, 8 Or.App. 620, 623-25, 494 P.2d 891, 893-94 (1972) (equal

protection challenge to immunity for liability of tort claims covered by

Workmen's Compensation Law rejected).

Here, although the constitutional challenge differs from the above cases.

it must nevertheless be rejected. The purpose of Article I, Section 10 due

process provision is “to save from legislative abolishment those jural rights

which had become well established prior to the enactment of our Constitu

tion.” Stewart v. Houk, 127 Or. 589, 591, 271 P. 998, 999 (1928) (invalidat

ing Oregon's first automobile guest statute). Prior to enactment of the Tort

Claims Act in 1967, public bodies were immune from all tort liability. E.g.,

Bacon v. Harris, 221 Or. 553, 352 P.2d 472 (1972). Additionally, employees

were immune from tort liabi rising from the performance of “discretion

ary functions.” Jarrett v. » .s, 235 Or. 51, 54-55, 383 P.2d 995. 997

(1963). By passage of the Oregon Tort Claims Act, the legislature waived

immunity with enumerated exceptions. No remedy was abolished. On the

contrary, the Act provides redress of grievance which did not before

exist. The due process protection of Article I, Section 10 is not pro

scribed. See Noonan v. City of Portland, 161 Or. 213, 88 P.2d 808 (1938)

(due process provision does nu‘ invalidate an exemption clause in city

charter that withholds remedy against city); Gearin v. Marion County, 110

Or. 390, 223 P. 929 (1924) (due process provision has no application to a case

involving immunity of state or subordinate agency)

App-40

age Viewing the evidence in the light most favorable to the

plaintiff, however, I hold that plaintiffs civil rights claims

must fail. The use of deadly force was justified under the

unique circumstances of this case. Alternatively, | hold that

defendants have a qualified imm unit y from

damages. Similarly, defendants are immune from liability as

to the pendent state claim.

Accordingly, the clerk is directed to enter judgment in

favor of defendants.

This opinion shall constitute findings of fact and conclu-

sions of law pursuant to Fed. R. Civ. Pro. 52(a).