Brief for the United States — Hudson v. McMillian

QUESTIONS PRESENTED

Did the Fifth Circuit apply the correct legal test when

determining that Petitioner’s claim that his Eight

Amendment rights under the Cruel and Unusual Punishment

Clause was not violated as the result of a_ single

incident of force by the respondents which did not cause

a significant injury?

LIST OF PARTIES

The parties to the proceedings below in the United

States Court of Appeals for the Fifth Circuit were petitioner

Keith J. Hudson, a prisoner at the Louisiana State Penitentiary

and the respondents Jack McMillian, Marvin Woods, and Arthur

Mezo, all correctional security officers at the Louisiana State

Penitentiary.

ii

TABLE OF CONTENTS TABLE OF AUTHORITIES

QUESTIONS PRESENTED. i CONSTITUTION :

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STATE OF THE CASE. 1 el ee a

REASON FOR DENYING THE WRIT. ..........2...2.2...4

TO PRISONER HUDSON'S CLAIN ee

STATUTES

CONCLUSION 10 a6 ©.8.C. SOCTION 636 (C). . ew ec ee een ese v ae S

PROOF OF SERVICE 11 42 U.S.C. SECTION 19863 . 2. 2 1 6 ee ow ww wo be hel

CASES

ADAMS V. HANSEN, 906 F. 2d 192 (Sth Cir. 1990). ...9

CITY OF OKLAHOMA CITY V. TUTTLE, 471 U.S. 808

i. a 6 6 4 4 6 8 8 eee 8 oe eee

DANIELS V. WILLIAMS, 474 U.S. 327 (1986). ...... 8

DAVIDSON V. CANNON, 474 U.S. 344 (1986) ....... 8

ESTELLE V. GAMBLE, 429 U.S. 97 (1976) .... . 8

GILBERT V. COLLINS, 905 F. 2d 61 (Sth Cir. 1990)... 9

GRAHAM V. CONNOR, 490 U.S. 386 (1989) .....+.. 5

iii iv

HUDSON V. PALMER, 468 U.S. 517 (1984) ........ 8 NUMBER: 90-6531

HUGUET V. BARNETT, 900 F. 2d 838 (Sth Cir. 1990). .. 3,7

MONROE V. POPE, 365 U.S. 167 (1961) .......24+2.7

IN THE

MCHENRY V. CHADWICK, 896 F. 2d 184 (1990) ......49 ; SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

OLIVER V. COLLINS, 914 F. 2d 56 (5th Cir. 1990) ...9

PARATT V. TAYLOR, 451 U.S. 527 (19862) ...+-+-e«e- 8 KEITH HUDSON

PETITIONER

o8. @. Geeeese. 3335 6.8. B00 (80GR). « « we eo tw we ee #F

VERSUS

WESSON V. OGLESBY, 910 F. 2d 278 (5th Cir. 1990). .. 9

WHITLEY V. ALBERS, 475 u.S. 312 (1986). .... . .5,6,8 JACK MCMILLAN, MARVIN WOODS,

AND ARTHUR MEZO

WILLIAMS V. LUNA, 909 F. 2d 121 (Sth Cir. 1990) ...9 RESPONDENTS

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

RESPONDENTS BRIEF IN OPPOSITION

The respondents, Jack McMillian, Marvin Woods, and

Arthur Mezo, respectfully request that This Court deny the

Petition for Writ of Certiorari, seeking review of the Fifth

Circuit’s Opinion in this case. That Opinion is unreported.

STATEMENT OF THE CASE

Petitioner, Keith J. Hudson, (Prisoner Hudson) is a

prisoner confined at the Louisiana State Penitentiary (L.S.P.)

which is a maximum security prison housing only adult male’s

convicted of felonies by a Louisiana state court. Respondents,

Jack McMillian, Marvin Woods, and Arthur Mezo, are all

correctional officers working at L.S.P.

Prisoner Hudson ii:voked 42 U.S.C. § 1983 and sued

Corrections Officers McMillian, Woods and Mezo in the United

States District Court for the Middle District of Louisiana

alleging that his Fifth, Fourteenth and Eighth Amendment rights

were violated because excessive and unnecessary force was used on

him. The parties consented to having the case adjudicated before

a Magistrate Judge pursuant te 28 U.S.C. § 636 (c). Following a

bench trial before the Magistrate Judge, the factual

determination was made that on October 30, 1983 Prisoner Hudson

while in restrains, got into an argument with Corrections Officer

McMillian who punched Prisoner Hudson in the mouth, eyes, chest,

and stomach while Corrections Officer Woods kicked Prisoner

Hudson on his’ backside. During this physical alteration

Corrections Officer Mezo, the supervisor of Corrections Officers

McMillian and Woods, watched the beating but did nothing to stop

it.

As a result of this physical altercation Prisoner Hudson

alleged that his partial dental plate was cracked, his lower lip

was split and his teeth loosened. Prisoner Hudson also claimed

that he received bruises to his body but no other cuts. A review

of Prisoner Hudson’s medical record revealed that he appeared at

sick call on October 31, and November 1, 1983 with a dental

complaints; his medical records made no reference to facial

bruises or other cuts nor did Prisoner Hudson make complaints

about other injuries. None of the alleged injuries required any

medical care. The alleged injuries were short in duration and

had no lasting effect.

The Corrections Officers denied that they used any force

on Prisoner Hudson on October 30, 1983. The Magistrate Judge

gave creditability to Prisoner Hudson’s and his fellow prisoner’s

testimony and not that of the Corrections Officers. The-

Magistrate Judge found that the force used was totally

unnecessary and resulted in minor bruises and swelling to

Prisoner Hudson’s face, mouth and lip. The Magistrate Judge

concluded that Prisoner Hudson’s injuries were minor and required

no medical treatment. Based on these factual findings the

Magistrate Judge found that the Corrections Officers violated

Prisoner Hudson’s Eighth Amendment right to be free from the

application of excessive and unnecessary force and awarded Eight

Hundred Dollars ($800.00) in retrospective money damages.

The Corrections Officers appealed to the United States

Court of Appeal for the Fifth Circuit. A panel of the Fifth

Circuit accepting the findings of fact as true applied the legal

test for such claims as set out in Huguet v. Barnett, 900 F. 2d

838, 841 (5th Cir. 1990). This legal test had not been

established prior to the ruling by the District Court. Accepting

the factual determinations of the District Court and applying the

intervening legal test set out in Huguet, the Fifth Circuit

concluded that Prisoner Hudson did not prove the essential

element of significant injury under his Eight Amendment claim.

The Fifth Circuit reversed the judgment of the District

Court. Prisoner Hudson filed for a rehearing before the Fifth

Circuit, which was denied. He now seeks review in this Court.

(REASON FOR DENYING THE WRIT)

THE FIFTE CIRCUIT APPLIED THE CORRECT LEGAL

TEST TO PRISONER HUDSON’S CLAIM

Prisoner Hudson appears to be arguing in his petition

that the legal test applied by the District Court rather than the

legal test applied by the Fifth Circuit was the proper legal test

to apply to the facts of his claim. (Petition p. 3-4)

Corrections Officers McMillian, Woods and Mezo assert that the

legal test applied by the Fifth Circuit was the proper legal test

to apply to the facts of Prisoner Hudson’s claim.

This suit presents the prototypical example of prisoner

pro se litigation under 42 U.S.C. § 1983 that proliferates in the

lower federal courts. This suit involves a_ single isolated

incident in which a state prisoner alleges that he has been

mistreated by one or more State Corrections Officers. This suit,

like so many others that involve single instances of alleged

mistreatment by State Corrections Officers, boils down solely to

a question of credibility - the prisoners giving one story, the

corrections officers amother, and a lack of demonstrative

evidence to support either side. In the instant suit Prisoner

Hudson and his fellow prisoner witnesses claimed that physical

force was used on Prisoner Hudson by Correction Officers

McMillian and Woods while Corrections Officer Mezo watched.

Corrections Officer Woods denied that any physical force was used

on Prisoner Hudson by either himself or Corrections Office

McMillian. There was no documentary evidence to support use of

physical force or any injuries which might have resulted. The

allegations of Prisoner Hudson as to the use of force and

resulting injuries were catroborated by testimony of two fellow

prisoners. The trier of fact gave credibility to the prisoners’

story and not the Corrections Officers’ story. The trier of law

then applied a subjective balancing test in which the existence

of any single factor could establish a violation of the Eighth

Amendments’ Cruel and Unusual Punishment Clause. However, the

Fifth Circuit as trier of the law applied a four part essential

element test the to facts as found by the trier of fact and

determined that Prisoner Hudson did not meet his burden of proof

on the essential element of significant injury. It is the four

part essential element test of the Fifth Circuit which should be

applied to this type Eight Amendment claim.

This Court has determined that excessive force claims

brought by prisoners against corrections officers fall solely

under the Eighth Amendment’s Cruel and Unusual Punishment Clause.

Graham v. Connor, 490 U.S. 386, 398-399 (1872-1873), (1989)

citing Whitley v. Albers, 475 U.S. 312, 320-321 (1986). There

can be absolutely no question that Prisoner Hudson’s clain,

therefore, rest solely and wholely under the Eighth Amendment’s

Cruel and Unusual Punishment Clause. Thus Prisoner Hudson's

assertions as to his alleged claims under the Fifth and

Fourteenth Amendments are without legal merit.

In Whitley this Court dealt with the question of

excessive and unnecessary force by correctional personnel on

prisoners under the Eight Amendment. In Whitley, however, the

need for the use of force was factually present and undisputed,

only the degree of need was factually in dispute. Id. 475 U.S.

at 320-321. Im Whitley the existence of a significant injury was

factually present - severe damage to leg and severe mental and

emotional distress. Id. 475 U.S. at 317. In the instant case

whether or not any force was used at all was factually disputed

by the Corrections Officer., therefore, no proof of its need was

or could have been presented. Additionally, the injuries alleged

by Prisoner Hudson as the result of the force were minor at best.

Therefore, the balancing test presented in Whitley provides

little if any guidance to the trier of the law for the type of

claim raised by Prisoner Hudson. Their is little or no

predictability in regards to the out come under Whitley as

applied to the facts in the instance case since the extent of the

injury is minor and the need for the use of force is not present

as a matter of fact. The legal balancing test in Whitley does

not work in the prototypical prison suit because the result is

unpredictable and provides absolutely no guidance as to what

would constitute a violation of the Eighth Amendment’s Cruel and

Unusvi3l Punishment Clause.

Under the balancing test as applied by the District

Court +n the instant case allows for an Eighth Amendment

violation based solely on a single factor and a determination of

credibility. This makes the Cruel and Unusual Punishment Clause

a liars contest, rather than a_ constitutional prohibition. The

legal test applied by the Fifth Circuit in the instant case

provides for a usable and effective test which has a high degree

of predictability regardless of the various factual scenarios.

The legal test in the Fifth Circuit which is applied to

all excessive force claims made by prisoners under the Eighth

Amendment’s Cruel and Unusual Punishment Clause is:

3. A significant injury, which;

2. Resulted directly and only from the use

of force that was clearly excessive to

the need, the excessiveness of which was;

3. Objectively unreasonable, and;

4. The action constituted an unnecessary and

wanton infliction of pain.

Each of these four elements must be proven in order for a

prisoner to prevail on his excessive and unnecessary force claim

under the Eighth Amendment’s Cruel and Unusual Punishment Clause.

Huguet v. Barnett, 900 F. 2d 838, 841 (Sth Cir. 1990) (cite other

5th Cir. cases)

The focus of § 1983 is on the "(Mjisuse of power,

possessed by virtue of state law and made possible only because

the wrongdoer is clothed with the authority of state law."

Monroe v. Pope, 365 U.S. 167, 184 (1961) quoting U.S. v. Classic,

313 U.S. 299, 325-326 (1941). § 1983 does not, however, reach

all misuses of power even if done by those clothed with the

authority of state law. § 1983 reaches only those misuses of

power which rise to constitutional proportions. See: City of

Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985) Not every use

of force by corrections officers on prisoners arises to

constitutional proportions. Only those uses of force by

correction officers on prisoners which shock the conscious of

mankind arise to constitutional proportions. Whitley v. Albers,

475 U.S. at 319-320.

This Court has made it clear that mere torts do not rise

to constitutional proportions merely because they are committed

within a prison setting. This is true whether the act is based

on negligence or intentional misconduct. Daniels v. Willimas,

474 U.S. 327 (1986), Davidson v. Cannon, 474 U.S. 344 (1986),

Hudson v. Palmer, 468 U.S. 517 (1984) and Paratt v. Taylor, 451

U.S. 527 (1981). The misuse of power must be so serious as to

shock the conscious of mankind. Whitley v. Albers, 475 U.S. at

310-320. The mere fact that the misuse of power has no

penologica’ purpose is not sufficient to raise a prisoner’s claim

to the level of cruel and unusual punishment unless a significant

injury results. See: Estelle v. Gamble, 429 U.S. 97, 104-107

(1976). Merely because an injury is sustained by a prisoner at

the hands of a corrections officer does not create an Eighth

Amendment claim. See: Davidson v. Cannon, 474 U.S. at 332-334

and Estelle v. Gamble, 429 U.S. at 104-107. Unless proof of a

significant injury exists under the Fifth Circuit’s legal

standard no Eighth Amendment claim can exist. Under the Fifth

Circuit’s legal standard all claims similar to that of Prisoner

Hudson correctly belong in state rather than federal court.

Using the balancing test set out by the District Court in the

instant case every touching in a prison setting becomes a claim

of cruel and unusual punishment. The four part essential element

test set out by the Fifth Circuit is the correct legal standard

to be applied to excessive for claims by state prisoners. Unless

this legal standard is used constitutional law under the Cruel

and Unusual Punishment Clause will become a mere matter of

credibility devoid of any legal standard.

The Fifth Circuit has applied the four part essential

element test to a number of prisoner cases. Gilbert v. Collins,

905 F. 2d 61 (5th Cir. 1990), Adams v. Hansen, 906 F. 2d 192 (5th

Cir. 1990), Williams v. Luna, 909 F. 2d 121 (Sth Cir. 1990),

Wesson v. Oglesby, 910 F. 2d 278 (5th Cir. 1990), Oliver v.

Collins, 914 F. 2d 56 (5th Cir. 1990). Only one other circuit

has examined the Fifth Circuit’s four part essential element

test. The Sixty Circuit has specifically rejected the use of

Significant injury or essential elements in excessive force

claims arising out of state prisons. See: McHenry v. Chadwick,

896 F. 2d 184 (6th Cir. 1990)

The Fifth Circuit applied the proper legal test to facts

in the instant case. There is no basis for reversing the Opinion

of the Fifth Circuit in the instant case.

CONCLUSION PROOF OF SERVICE

For these reasons, the Petition for a Writ of Certiorari I, Joseph Erwin Kopsa, a member of the Bar of This

should be denied. Court, hereby certify that on this 12th day of March 1991, three

Respectfully submitted, copies of the Respondents Brief in Opposition in the above

entitled case was mailed, first class postage prepaid, to Keith

JOESPH ERWIN KOPSA

ASSISTANT ATTORNEY GENERAL J. Hudson, D.O.C. Camp J, Shark Unit #4-L=11, Louisiana State

LOUISIANA DEPARTMENT OF JUSTICE

DIVISION OF RISK LITIGATION Penitentiary, Angola, Louisiana 70712, pro se for petitioner

APPEALS AND RESEARCH SECTION

POST OFFICE BOX 94095 herein. I further certify that all parties required to be served

BATON ROUGE, LOUISIANA 70804-9095

TELEPHONE: (504) 342-8494 have been served.

COUNSEL OF RECORD

WILLIAM J. GUSTE, JR.

ATTORNEY GENERAL FOR

THE STATE OF LOUISIANA ERW

LOUISIANA DEPARTMENT OF JUSTICE pone A ph GENERAL

POST OFFICE BOX 94095

BATON ROUGE, LOUISIANA 70804-9095 LOUISIANA DEPARTMENT OF JUSTICE

TELEPHONE: (504) 342-8495 ervrstes Or aren LITIGATION

POST OFFICE BOX 94095

BATON ROUGE, LOUISIANA 70804-9095

TELEPHONE: (504) 342-8494

COUNSEL FOR PETITIONER

COUNSEL OF RECORD

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