Amicus Curiae Brief — Hudson v. McMillian

~

( 0) JUL 9 1991

No. 90-6531 ~~ DErIok OF THe Clint

IN THE =

Surreme Court of the United States

OctToser TerM, 1991

KEITH HUDSON,

Petitioner.

VS.

JACK McMILLIAN, MARVIN WOODS

and ARTHUR MEZO,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF AMICUS CURIAE OF PRISONERS’

LEGAL SERVICES OF NEW YORK,

IN SUPPORT OF PETITIONER

Joun A. GRESHAM,

Counsel of Record

STEPHEN M. LATIMER

Prisoners’ Legal Services of New York

105 Chambers Street

New York, New York 10007

(212) 513-7373

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES iii.

STATEMENT OF INTEREST 1

SUMMARY OF ARGUMENT 5

I.

Il.

Iil.

IV.

THE UNNECESSARY AND WANTON

INFLICTION OF PAIN, NOT

SIGNIFICANT INJURY, SHOULD BE

THE KEY TO EIGHTH AMENDMENT

LIABILITY IN BRUTALITY CASES. . 10

THE PRESENT CASE EXEMPLIFIES

THOSE WHERE AN "UNNECESSARY

AND WANTON" STANDARD, RATHER

THAN A “MALICIOUS AND SADIS-

TIC" STANDARD IS APPROPRIATE. . 16

WHEN GUARDS BREACH PRISON

DISCIPLINE BY NEEDLESSLY

BEATING INMATES, THEY UNDER-

MINE THE STATE'S INTERESTS IN

SECURITY, ORDER AND REHABILI-

TATION, AND ENDANGER ALL

THOSE WITHIN PRISON WALLS. .. 18

A “SIGNIFICANT INJURY"

STANDARD WOULD LEGITIMIZE

PRACTICES WHICH SHOULD BE

RELEGATED TO OUR PAST. .... 24

ii.

Page

Vv. REQUIRING "SIGNIFICANT IN

JURY" WILL NOT END FACTUAL

DISPUTES, BUT WILL FOCUS

INCREASED ATTENTION ON UNRE-

LIABLE PRISON MEDICAL RE-

CUOMMBe csc eo eco ee ee ee ew ele oe

VI. REQUIRING “SIGNIFICANT IN-

JURY" MAY DISCOURAGE NEEDED

MEDICAL TREATMENT, AND EN-

COURAGE VERY DANGEROUS CON-

DUCT BY GUARDS. - - - +--+. + + 46

CONCLUSION - + + + + + + «© «© © « « « 5O

APPENDIX A

Hayden v. Maldonado, No. 82-Cv-

1166, Memorandum - Decision and

Order (N.D.N.Y., March 24, 1989). .A-l

APPENDIX B

"Eng videotape" - lodged with

Clerk - . . - . . . . . . . . . . . B-1

APPENDIX C

Young v. Napper, No. 86-CV-453

(N.D.N.Y.), deposition exhibits. . . C-l

APPENDIX D

New York Correction Law, § 137(5)

New York Administrative Policy on

use of physical force ....... D-l

iii.

A. CASES

, 429 U.S. 97,

(1976) . . . . . . . . . . .

, No. 82-CV-1166,

Memorandum - Decision and Order

(N.D.N.Y., March 24, 1989)

10,11,16-21 --+-**e*ee* 2 *

15, 25

, er,

885 F.2d 1060 (2d Cir. 1989) --:-- 29

= iv i, 926 F.2d 235 (2d :

Gir. 1991) ~« 2+ 2« 22 2 2 © © © © 8 2

, No. 82-CV-1149 om

(GLG) (S.D.N.¥.-) - +++ +e 2% *°

, 623 F. Supp. 392,

. . . 45

(S.D.N.¥. 1985) -- +++:

, No. 80-CV-385(T),

Decision and Order 2-3, 7, 12, 14, 16

oo. ovember 5, 1990)

and 17 (W.D.N.Y., N P oe Wr

Freeman v. Franzen, 695 F.2d 485, (7th

Cir. 1982), cert. denied, Branche v.

Freeman, 463 U.S. 1214 (1982) . .

, No. 82-CV-1166,

isi Order

Memorandum - Decision and

(N.D.N.Y. March 24, 1989) 20-21. .- 37

32

iv.

Hewitt v. Helms, 459 U.S. 460, (1983)16

, 682 F.2d

1237 (9th Cir. 1982) ....... 45

in the Matter of Brian F. Malone, 65

N.Y.2d 772, 482 N.E.2d 565, 492

N.Y.S.2da 947 (1985) .. 23, 34, 35, 36

v. Rockefeller, 453 F.2d 12 (2d Cir.

1971) . . . . . . . . . . . . . . . 29

, 404 F.2d 571, (8th

Gare GD sito es ttces ee

Johnson v. Glick, 481 F.2d 1028, (24

Cir. 1973), Sark. Senied. 414 U.S. 1033

(1973) . . . . . . . 7 17

LeMaire v. Maass, 745 F. —

623, (D.Or. 1990) ...., isa a

, 486 F.Supp.

504, (S.D.I1ll. 1980) ne Ob ke a *

Matter of Ware v. Smith, Index No. a3.

186, Memorandum and Judgment 3 (Wyoming

County Sup. Ct.,

December 30, 1983) .. e « e« 41, 50

, , 5903 F.2d 1320,

[aun ee a ds 6 he ce 4 me ws 45

, 503 F.Supp.

1265, (S.D.Tex. 1980) ......., 45

, 903 F.2d 400 (5th

ee eee: fe ee ee

, 431 F.Supp. 1129

(S.D.N.Y. 1977), atid, 565 F.2d 48

(2d Cir. 1977) .. © « « 33, 45

, 526 F.Supp.

United States v. Pageau

1221 (N.D.N.Y. 1981) .. . 12, 14, 20

j , 535 F.Supp.

1031 (N.D.N.Y. 1982) jet «ss ee Oe

Wesson v. Oglesby, 910 F.2d 278,

(5th Cir. 1990) . . . . . . . . . . 48

Whitley v. are 475 U.S. 312,

(1986) . . . . . . . 16, 17

, No. 86-CV-453

(N.D.N.Y.) . . . . . . . . . . 38

B. MISCELLANEOUS

"Rights of Inmates, Prison Guards,

Being Weighed at Trial in Albany," run

by Plattsburgh Press-Republican,

February 11, 1982, p. 5, col. 7, June

3, 1982, p. 5, col. 1, and June 4,

1982, p. 5, col. 1, respectively . 13

American Correctional Association, ,

416,

417 (34 ed., 1966) ..--+-+-+-+-+ 26

American Correctional Association,

‘

417 (34 e@., 1966) ~. 2.22222 - 49

American Correctional Association,

’

417 (3d ed., 1966) . . . . . . . . 49

Attica: The Official Report of the New

York State Special Commission on Att-

ica, 142-157 (1972) ...+.-+ ++ 21, 27

vi.

Philpot, Noveiuber 23, 1988 .... 48

in the Matter of the Death of

Darrel Booth, May 10, 1991 .... 48

Manual of Correctional Standards . 22

New York State Commission of Correc-

tion, Report of the Westchester County

Jail Disturbance, July, 1981, 22-23 30

New York State Commission on Criminal

Justice and the Use of Force, Report to

the Governor 343, 355-357, n.23 at 365,

and n.44 at 367 (1987) ...... 32

Ottaway News Service stories, "Judge to

Rule Today on Use of VideoTapes in

Trial," "Trial Opens in Case of Beaten

Prison Inmate," "Prison Guards Face

Second Trial Starting Today," "Rights

of Inmates, Prison Guards, Being

Weighed at Trial in Albany," "Alleged

Victim a No-Show, Prosecution Rests,"

and "Guards’ Pleas Bargain Brings

Dismissal of Charges," carried by

Plattsburgh Press-Republican, October

21, 1981, p. 5, col. 1; February 11,

1982, p. 5, col. 7; June 3, 1982, p. 5,

col. 1; June 4, 1982, p. 5, col. i;

June 5, 1982, p. 5, col. 1; and June 8,

1982, p. 1, col. 1, respectively . .

oe «© © «© «© @ «© SB, 23,

Pappas, supra., 75 ..+-«-eecee 22

Riots and Disturbances in Correctional

Institutions 19 (3d ed., 1990) .. 19

See Respondents’ Brief in

ns oe 2s s+ + 6 es eee ae

vii.

Testimony of Thomas A. Coughlin, III,

before the New York State Black and

Puerto Rican Legislative Caucus Commit-

tee on Criminal Justice, presented at

hearing on Use of Force and Deadly

Force in New York State Correctional

Facilities, June 12, 1991 ...-. + 23

The Jail: Its Operation and Management,

United States Bureau of Prisons in

cooperation with the University of

Wisconsin, reprinted by the Department

of the Navy, 1977, p- 83 +--+ + = » 19

STATEMENT OF IvEREST

Prisoners’ Legal Servi-

ces of New York ("PLS") is a not-for-

profit corporation which provides legal

services free of charge to indigent

state prisoners who lack other counsel.

The New York State prison system now

confines over 56,000 individuals under

sentence. PLS also provides such ser-

vices to several hundred New York City

prisoners. PLS’ staff includes 32

attorneys. It was formed in 1976 in

response to the 1971 Attica riot.

Throughout its history,

PLS has handled Eighth Amendment exces-

Sive force cases. Its docket presently

includes twenty-eight cases with such

Cclaims.'

The outcome of the in-

stant case may affect present and fu-

ture cases of PLS clients. For exam-

1

701(C) (W.D.N.Y.)

’ No. 86-CV

Atkins v. Coughlin, No. 89-CV-453(T)

(W.D.N.Y.)

v , No. 84-CV-1049(E)

(W.D.N.Y.)

Boston v. Brown, No. 88-CV-1179 (N.D.N.Y.)

Boyd v. Selmar, No. (none as yet) (N.D.N.Y.)

Braithwaite v. Yakey, No. 83-CV-60 (N.D.N.Y.)

Brown v. Sheridan, No. 88-CV-1330 (N.D.N.Y.)

Cay _v. Burleigh, No. 89-CV-878 (N.D.N.Y.)

Chapman v. Stone, No. 91-CV-0088 (N.D.N.Y.

Collazo v. Tillman, No. 91-CV-0382 (N.D.N.

Devon v. Keane, No. 90-CV-5496(TPG) = -N.Y.

Diaz v. Richardson, No. 90-CV-448 (N.D.N.Y.)

Eng v. Coughlin, No. 80-CV-385(T) (W.D. N. Y.)

Frazier v. Giordani, No. 88-CV-007(E)

(W.D.N.¥.) ($1000 judgment for plaintiff en-

tered, fees negotiations pending)

a No. 88-CV-567 (N.D.N.Y.)

Hamilton v. Ross, No. 89-CV-431(T) (W.D.N.Y.)

)

Y.)

» No.90-CV-1343 (N.D.N.Y.)

Harrison v. Mantello

Jones _v. Huff, No. 82-CV-1031 (N.D.N.Y.)

Justiniano v. Jubert, No. 91-CV-0346

(N.D.N.Y.)

, No. 91-Cv-0338

(N.D.N.Y. agg

Mayes v. Ashline, No. 90-CV-275 (N.D.N.Y.)

McCrory v. Liberty, No. 87-CV-509 (N.D.N.Y.

Miller v. Melville, No. 86-CV-34(T) (W.D.N

Poze v. Ricotta, No. 90-CV-6983(LMM)

(S.D.N.Y.)

Rosado v. Crowley, No. 87-CV-791 (N.D.N.Y.)

Rosario v. Coughlin, No. 88-CV-56(JL)

(N.D.N.Y.)}

, No. 86-CV-644 (W.D.N.Y.)

Sackett v. Dylag

($65,000 judgment for plaintiff entered May

10, 1991; motion for judgment n.o.v. wwe

Scott v. Coughlin

1 No. 87-CV-1340 (N.D.N.Y.)

)

-Y.)

ple, in a case decided approximately

two years ago, Judge Munson of the

Northern District of New York awarded

$12,300 to a PLS client for physical

injuries and mental distress that re-

sulted from a beating by prison guards,

and reserved on punitive damages.’

The Court found that the

prisoner, John Hayden, was punched and

kicked because he “badgered" a guard

about another inmate’s request to go to

a movie being shown in the prison.

Judge Munson found Hayden suffered

seven bangs and bruises and a retinal

hemorrhage which eventually resolved

itself, but no permanent injuries. The

judge also found Hayden suffered two

spells of unconsciousness. His

"spells" were episodes of anxiety neu-

. The parties later settled

all plaintiffs’ damage claims and their ap-

peals for $24,600, plus certain interest.

rosis and hyperventilation syndrome.

The first spell was triggered by fear

during the beating, and the second by

fear his attackers, guards who worked

in his cellblock, would return. The

only treatment Hayden received was

Tylenol and Vizine. Hayden v. Maldon-

ado, No. 82-CV-1166, Memorandum - Deci-

sion and Order (N.D.N.Y., March 24,

1989) 10,11,16-21. See Appendix A,

A-44.

In a case like Hayden’s,

desrite the physical pain, mental dis-

tress and unconsciousness, under the

Fifth Circuit standard being reviewed

here, there might be no "significant

injury" and hence no liability. This

could be so even though a beating was

administered intentionally when there

was absolutely no reason whatsoever to

use force.

We will offer material

We will offer material

primarily related to the New York State

prison system, the second largest in

the nation.

SUMMARY OF ARGUMENT

The unnecessary and wan-

ton infliction of pain should remain

the keystone of Eighth Amendment bru-

tality law, and “significant injury"

should not be added as a prerequisite

to liability. Physical and mental pain

can be severe enough that their unjus-

tified infliction offends contemporary

standards of decency. The terror a

prison beating can inspire is height-

ened by the fact that the prisoner

remains trapped in a closed society, at

the mercy of its keepers.

We call the Court’s at-

tention to a videotape which we have

dent in a New York State prison which

resulted in the federal criminal prose-

cution of two staff members. It illus-

trates our point about how severe the

pain and terror of a prison beating can

be. The conduct it depicts is contrary

to contemporary standards of decency,

regardless of whether the resulting

injuries require short term treatment

or are permanent.

The appropriate standard

in cases such as those on the videotape

and Hudson’s is the "unnecessary and

wanton infliction of pain." While not

every push or shove violates the Con-

stitution, where no force is necessary,

no deference is due the need to make

spilt-second decisions. Hence, the

"malicious and sadistic" standard is

inappropriate in these cases.

In Hudson’s case, the

guards’ conduct violated prison order

and security. Prison systems have a

strong interest in preventing such

guard conduct. The spark for the 1971

Attica riot was an incident in which

inmates believed two of their fellows

were beaten while being taken to disci-

plinary housing, in part because that

is what they had come to expect. Beat-

ings without justification do not teach

inmates anything positive about how to

conduct themselves, and are contrary to

the State’s interest in rehabilitation.

The Commissioner of New

York State’s prison system has frankly

acknowledged a brutality problem. A

"significant injury" requirement would

complicate the state’s task of operat-

ing safe and orderly prisons.

Grossly inhumane prac-

tices once common in our prisons, the

like of which have occurred in New York

State in the past two decades, may not

create "significant injury." Adding a

“significant injury” requirement would

remove the Eighth Amendment as a barri-

er to practices which should be rele-

gated to our past.

Contrary to respondents’

suggestion, adding a “significant

injury" requirement will not reduce

factual disputes. Other means, such as

use of video cameras, are better suited

for that purpose. Such a requirement

would, however, increase the importance

of prison medical records.

Unlike free world medi-

cal records, prison medical records are

created in an atmosphere where neither

patient nor provider is necessarily

free from coercion and intimidation.

New York State prison officials have

described a brutally-enforced “code of

Silence." Prison records may be al-

tered or destroyed to cover wrong-do-

ing. Whether inmates even see medical

personnel after a beating may depend on

the beaters or their friends.

Prison records are often

sloppily written, and the examinations

are far from ideal. For example, in

Attica, physical assessments on admis-

sion to disciplinary housing last 10-28

seconds. Brutality complaints often

arise from events just prior to such

admissions.

Moreover, prisoners gen-

erally can turn to no one other than

those provided by their keepers for

documentation of their injuries. Mak-

ing even liability, not just damages,

_more dependent on prison medical

records will not contribute to fair-

ness.

Finally, if Eighth

Amendment liability is made to turn

more on whether injuries are treated, a

10

disincentive to treat will be created.

Likewise, conduct which can have very

serious consequences will be encour-

aged. For example, the Fifth Circuit

appears to have held that choking an

inmate unconscious does not in itself

violate the Eighth Amendment. Recent-

ly, two inmates in this State died from

such force.

The decision of the

Court of Appeals requiring proof of

"significant injury" in Eighth Amend-

ment cases should be vacated, and the

judgment of the District Court rein-

stated.

POINT I

THE UNNECESSARY AND WANTON INFLICTION

OF PAIN, NOT SIGNIFICANT INJURY, SHOULD

BE THE KEY TO EIGHTH AMENDMENT LIABILI-

TY IN BRUTALITY CASES.

As petitioner Hudson ar-

gues, it is the unnecessary and wanton

infliction of pain that should remain

11

the keystone of Eighth Amendment bru-

tality law, and "significant injury"

should not be added as a prerequisite.

Where there is no need for force, as in

Hudson’s case, injury beyond de minimis

should create liability. Pain, shysi-

cal and/or mental, can be great enough

to contravene contemporary standards of

decency if inflicted without justifica-

tion, even in the absence of "signifi-

cant injury."

We have lodged with the

Clerk as Appendix B to this brief a

videotape of a prison incident’ which

° The incident occurred July 5,

1980 at Clinton Correctional Facility, Dannem-

ora, NY, 12929, which retains the original

tape. The tape shows areas inside the Special

Housing Unit, or disciplinary housing. The

incident began as the inmate was taken out of

his cell; the tape probably does not show all

the force used on the inmate. The rapid swit-

ches in scene occur as the video system opera-

tor switches through various cameras. The

lack of sound in part of the tape is so in the

Original. Parts of the tape were broadcast on

NBC news nationally and on the local televi-

sion news in Albany and Plattsburgh, N.Y., in

April, 1982. -

12

videotape of a prison incident’ which

provoked the federal criminal prosecu-

tion of a prison guard and a sergeant.‘

We call particular attention to the

first three minutes and a couple of

. The incident occurred July 5,

1980 at Clinton Correctional Facility, Dannem-

ora, NY, 12929, which retains the original

tape. The tape shows areas inside the Special

Housing Unit, or disciplinary housing. The

incident began as the inmate was taken out of

his cell; the tape probably does not show all

the force used on the inmate. The rapid swit-

ches in scene occur as the video system opera-

tor switches through various cameras. The

lack of sound in part of the tape is so in the

Original. Parts of the tape were broadcast on

NBC news nationally and on the local televi-

sion news in Albany and Plattsburgh, N.Y., in

April, 1982.

’ They were indicted and tried

for violating the inmate’s constitutional

rights. Pretrial matters produced two report-

ed opinions: United States v. Pageau, 526

F.Supp. 1221 (N.D.N.Y. 1981) (tape admissi-

ble), and 535 F.Supp. 1031 (N.D.N.Y. 1982),

(media may copy tape). The first trial re-

sulted in a mistrial. The indictments were

later dismissed in exchange for the defendan-

ts’ accepting administrative penalties of a

month’s suspension without pay (almost double

the potential criminal fines) and a year’s

assignment away from inmate contact. See

Ottaway News Service story, "Guards’ Plea

Bargain Brings Dismissal of Charges,” carried

in Plattsburgh Press-Republican, June 8, 1982,

p- 1, col. 1. We refer to press accounts

because almost no portion of either trial was

transcribed.

13

provocation.* The sergeant does not

stop the kicks and blows, and actually

appears to join in. Although the situ-

ation is not identical to Hudson’s, the

similarities are substantial.°®

$s

One of the press descriptions

of the tape says:

One of the . . . guards

has a club approximately two feet long,

and is seen delivering at least half a

dozen blows at the man on the ground.

- « « The man on the ground screamed,

"Go ahead, kill me, kill me, you (ex-

pletive), go ahead, kill me.". . . One

of the guards responded, "I will, I

will. I’d love nothing better. ...

Give me an excuse..." The guard

repeated, “give me an excuse” about

half a dozen times.

Another story adds, "({g)jive me an excuse, you

slant-eyed (expletive).” Ottaway News Service

stories, “Judge to Rule Today on Use of Video-

Tapes in Trial” and "Alleged Victim a No-Show,

peosseutien Rests,” carried by Plattsburgh

, October 21, 1981, p. 5, col.

1, ond June 5, 1982, p. 5, col. 1, respec-

tively. Note the dialogue at about 8:34 on

the clock counter.

. According to prisoner records

and press accounts of the evidence, John Eng

had many contusions and abrasions, cuts re-

quiring stitches in his head and thigh, and a

fracture of a small bone just above the knuck-

le of his little finger, which was splinted.

He was hospitalized for two days. Ottaway

News Service stories, “Trial Opens in Case of

Beaten Prison Inmate,” "2 Prison Guards Face

Second Trial Starting Today,” and “Rights of

(continued...)

14

Although the incident

started when Eng, upon leaving his

cell, grabbed the officer by the

throat, Judge Miner, then of the North-

ern District of New York, framed the

issue in the federal prosecution of the

guard and sergeant as one "of inten-

tional use of excessive and unnecessary

force" since the tape depicts "defen-

dant Pageau striking the inmate a nunm-

ber of times with his nightstick and

also depicts defendant Welch kicking

the inmate on one or more occasions."

United States v. Pageau, 535 F.Supp.

1031, 1033, n.3, (N.D.N.Y. 1982).

*(...continued)

Inmates, Prison Guards, Being Weighed at Trial

in Albany,” run by Plattsburgh Press-Republi-

Can, February 11, 1982, p. 5, col. 7, June 3,

1982, p. 5, col. 1, and June 4, 1982, p. 5,

col. 1, respectively. While inmate Eng clear-

ly had “significant injuries,” conduct such as

that on the videotape should not be made con-

stitutional by the subtraction of a couple of

the most damaging kicks or clubbings.

15

In thinking about the

terror a prison beating can inspire, it

is necessary to remember that prisoners

are cut off from the world, and often

left at the mercy of their keepers.

Prison beatings occur out of public

view. Very few beatings are on video-

tape. We offer the Eng videotape to

show how much pain and terror can be

involved. We submit that the media

interest in the tape in 1982 (see foot-

notes 3 and 4), like the media interest

in the video of the police handling of

Rodney King in Los Angeles, was due to

the fact that conduct, like that seen

on the Eng videotape, greatly offends

contemporary standards of decency,

whether or not it causes "significant

injury." Estelle v. Gamble, 429 U.S.

97, 103 (1976).

16

POINT II

THE PRESENT CASE EXEMPLIFIES THOSE

WHERE AN “UNNECESSARY AND WANTON" STAN-

DARD, RATHER THAN A “MALICIOUS AND

SADISTIC" STANDARD, IS APPROPRIATE.

This Court has ensured

that prison authorities have wide lati-

tude to maintain prison order and dis-

Ccipline. See, e.g., Hewitt v. Helms,

459 U.S. 460, 470, 472 (1983). That

latitude should not extend to the use

of force to inflict pain when there is

no legitimate occasion for the use of

force.

There are occasions dur-

ing disturbances when prison authori-

ties must make split-second decisions

on the use of force, and where hind-

sight is less important than "the ex-

tent of the threat to the safety of

staff and inmates, as reasonably per-

ceived by the responsible officials."

Whitley v. Albers, 475 U.S. 312, 321

17

(1986). In such circumstances, Whitley

teaches that a "malicious and sadistic"

standard is a fitting measure of the

basic constitutional test of “unneces-

sary and wanton infliction of pain."

Id. at 320-321.

However, there are

cases, such as Hudson’s, when force is

not applied as a “prophylactic or pre-

ventive measure intended to reduce

- »« « breaches of prison discipline."

Whitley, 475 U.S. at 322. In such cas-

es, a standard of simply "unnecessary

and wanton infliction of pain," Whit-

ley, 475 U.S. at 320, is appropriate,

even though "[njot every push or shove

- « « Violates a prisoner’s constitu-

tional rights." Johnson v. Glick, 481

F.2d 1028, 1033 (2d Cir. 1973), cert.

denied, 414 U.S. 1033 (1973).

18

POINT III

WHEN GUARDS BREACH PRISON DISCIPLINE BY

NEEDLESSLY BEATING INMATES, THEY UNDER-

MINE THE STATE’S INTERESTS IN SECURITY,

ORDER AND REHABILITATION, AND ENDANGER

ALL THOSE WITHIN PRISON WALLS.

States have a strong in-

terest in preventing their prison

staffs from needlessly beating inmates.

Louisiana’, like New York’, has rules

against the conduct found by the Magis-

trate in the instant case to be uncon-

stitutional. It is more than ironic

that the Louisiana Attorney General is

before this Court arguing that such

conduct should be constitutional.

Just as civil disturb-

ances can be triggered by police mis-

4 In the instant case, Officer

James Cole testified that an officer who abus-

es an inmate is subject to disciplinary action

and probably discharge. Magistrate’s opinion,

p- 6, Joint Appendix at 23.

° The disciplinary charges

against the guard and sergeant in the Eng

incident were of this nature. See footnote 4.

The New York statute and administrative rules

are quoted Appendix D.

19

handling of citizens, prison distur-

bances can be triggered by "a random

incident that gets out of control and

sows the seeds of discontent in an

inmate population," such as one when "a

staff member momentarily loses self-

control and hits an inmate." American

Correctional Association, Riots and

Disturbances in Correctional Institu-

tions 19 (3d ed., 1990). Therefore,

Corrections Officers must be extremely

careful when subduing a violent prison-

er in front of other inmates. "If the

situation is not handled correctly,

violence may spread." Nick Pappas,

editor, The Jail: Its Operation and

Management, United States Bureau of

Prisons in cooperation with the univtr-

sity of Wisconsin, reprinted by the

Department of the Navy, 1977, p. 83.

Even the New York State

Department of Correctional Services be-

20

lieves this to be true. That depart-

ment argued against the media’s request

to copy the "Eng videotape,"*® because

they felt that if their inmates were to

view the tape on television, there

would be “a very real and immediate

risk of a violent disturbance." United

States v. Pageau, 535 F.Supp. 1031,

1033 (N.D.N.Y. 1982) (quoting from

affidavit of a Deputy Commissioner).

Any unnecessary violence

seen or heard or discussed among pris-

oners is alarming. The spark for the

1971 Attica riot was a situation in

which inmates believed two of their

fellows had been beaten while being

° The tape, discussed at pp. 5

and 11-15, was lodged with the Clerk as Appen-

dix B to this brief. We have asked the Clerk

to notify the New York State Department of Law

if any media organization requests to copy the

tape.

ee

21

taken to disciplinary housing.” The

rumor was based in part on their expec-

tation that this would occur. Attica:

The Official Report of the New York

State Special Commission on Attica,

142-157 (1972).

The resentment which

follows an unjustified beating hinders

both rehabilitation and the maintenance

of order and security. Unjustified

punishment of any kind not only "gener-

ates hatred toward the keepers and the

system which permits it," but also

degrades "the punisher and the punished

alike." Jackson v. Bishop, 404 F.2d

571, 580 (8th Cir., 1968) (Blackmun,

J.). In addition,

ad Hudson was also beaten while

being taken to the “dungeon,” with other in-

mates hearing the beating or seeing the re-

sults.

Magistrate’s opinion 3-5 and 9, Joint Appendix

21, 22 and 25.

22

Prisoners cannot be

expected to control their behav-

ior if jail personnel show by

their attitudes and their behav-

ior on the job that they then-

selves cannot maintain self-con-

trol.

Pappas, supra., 75.

Furthermore, the Ameri-

can Correctional Association’s Manual

of Correctional Standards, states that

well run prisons allow force “only when

necessary to protect one’s self or

others from injury, or to prevent es-

cape, or serious injury to property"

and allow only as “much force... as

is necessary to control the person...."

416-17 (3d ed., 1966)."

There is no question

that brutality occurs in New York State

prisons. Thomas A. Coughlin, III, the

present Commissioner, testified in 1984

. See Appendix D for the rele-

vant New York statute and administrative poli-

cy.

:

i

23

that he “had a problem... . with Cor-

rections Officers beating up inmates

- « « (and) getting . . . adequate

proof that could convict Corrections

Officers of assault." Record of hear-

ing before referee 28-29, Exhibit A to

Brief for Respondent In the Matter of

Brian F. Malone, 65 N.Y.2d 772, 482

N.E.2d 565, 492 N.Y.S.2d 947, (1985).

Just four weeks ago, he testified that

there still are a

distinct number of individuals

- »« « Who engage in racial mis-

conduct and who, occasionally

commit acts of violence against

inmates....

The challenge...

is .. . to ascertain who these

individuals are, to catch them

committing an act of racism or

brutality and then to impose the

harshest disciplinary penalty the -

law will allow.

Testimony of Thomas A. Coughlin, III,

before the New York State Black and

Puerto Rican Legislative Caucus Commit-

tee on Criminal Justice, presented at

24

hearing on Use of Force and Deadly

Force in New York State Correctional

Facilities, June 12, 1991 (available

from N.Y.S. Department of Correctional

Services, Building 2,\State Campus,

Albany, NY 12226).

It does not serve any

legitimate penological purpose to cre-

ate further obstacles to the civil and

criminal prosecution of correction

officers who undermine the prison sys-

tem through inappropriate and unjusti-

fied uses of force.

POINT IV

A “SIGNIFICANT INJURY" STANDARD WOULD

LEGITIMIZE PRACTICES WHICH SHOULD BE

RELEGATED TO OUR PAST.

Aside from physical bru-

tality and the infliction of terror,

other sorts of prisoner mistreatment

are inconsistent with contemporary

standards of decency, and hence ought

to remain proscribed by the Eighth

25

Amendment. Estelle, 429 U.S. at 103.

Some may not leave any discernible

. physical injury, "significant" or

otherwise.

If the Eighth Amendment

proscribes only "significant injury" as

the Fifth Circuit uses the term, many

of the following list of physical pun-

ishments could well be administered

constitutionally:

..-flogging, strapping, beating

with fists or clubs, spraying

with a stream of water, stringing

up by the wrists, exposure to

extremes of heat or cold or to

electric shock, confinement in

the stocks or in cramped sweatbo-

xes, handcuffing to cell doors or

posts, shackling so as to enforce

cramped position or to cut off

circulation, standing for exces-

sive periods "on the line" or

barrel-heads, painted circles,

etc., deprivation of sufficient

light, ventilation, food or exer-

cise to maintain physical and

mental health, forcing a prisoner

to remain awake until he is men-

tally exhausted, etc.

This list was compiled by the American

Correctional Association ("ACA"), which

26 | 27

apparently thought the listed practices marked with chalk Xs on their backs.

likely enough as of 1966 to specify Additionally,

them as corporal punishments which

“should never be used under any circunm-

stances." American Correctional Asso-

ciation, Manual of Correctional Stan-

dards 416, 417 (3d ed., 1966).

Despite the fact that

New York probably has one of the better

run prison systems, we have seen in the

past two decades not only beatings, but

also some practices similar to those on

the ACA list. Two such instances will

be described in the subsequent para-

graphs.

The first followed the

retaking of Attica’s D yard in 1971,

where "not-too-disguised attempts were

made to hit [{inmates]} in the genitalia"

to get them to lie on the ground, ac-

cording to a National Guard doctor.

Suspected leaders of the riot were

One large inmate,

after he was stripped, was or-

dered to lie down on his back

across a recreation table. A

football was placed under his

chin, and he was told he would be

dead if the football fell. ...

Three or four in-

mates picked out as leaders were

ordered to lie on their backs in

A yard with their knees drawn up,

and shotgun shells were balanced

on their knees and chests. ..

[Other inmates] said some troop-

ers and correction officers on A

catwalk above them occasionally

flipped down lighted cigarettes

on them. Other peace officers

spat down on then.*

* The inmates’ statements were

corroborated by National Guards-

men... . In addition, a medi-

cal examination .. . noted mul-

tiple first degree burns on but-

tocks and other parts of the

bodies of several inmates.

Attica: The Official Report of the New

York State Special Commission on Atti-

ca, 429, 431, 435.

Furthermore,

A guardsman carrying

an inmate back to A block from

28

the hospital that afternoon tes-

tified: "I was assigned to one

stretcher on which there was a

large black man. There were gun

wounds in his legs and rear end.

"A . . . [correction

officer] came up to us and asked

what was wrong with this particu-

lar prisoner, and I told him the

inmate had gunshot wounds in the

legs. My telling him seemingly

went unnoticed. He told us to

put the inmate down. [The man

then) picked the head end of the

stretcher up and dumped [the in-

mate} onto his feet. The [in-

mate) fell over onto his shoulder

and really bounced off the floor.

There was debris and slime water

all over the floor.

"Then this non-uni-

formed man pulled out a Phillips

screwdriver and [said to the in-

mate), who was lying on the floor

on his back, ‘If you don’t get

moving - if you don’t get up on

your feet you are going to get

this right up your ass.’ Then he

did stick this man right in the

anal area five or six times. And

the prisoner, he didn’t say a

word, but just sort of [got up

and} pushed with his legs toward

the cellblock this man wanted him

to go into . . . [Tjhe prison

guards were standing around and

seemingly not even noticing it.

id, 436-437 (bracketed material is so in

29

original). The official report contains

other lengthy accounts of gauntlets and

beatings, including beatings of wounded

inmates on stretchers, the routine racial

abuse, etc... Id, 428-441, 452-453.”

The second incident oc-

curred in 1981, following the negotiated

resolution of a disturbance at the Westc-

hester County Jail in which one staff

member was slightly injured. State Cor-

rectional Emergency Response Teams had

regained control of the jail. Senior

state prison administrators and watchdog

agency monitors were present. Nonethe-

less, the staff, some of whom were not

wearing name tags and thus were difficult

to identify, assembled all inmates at

se See Al-Jundi_ v. Mancusi, 926

F.2d 235 (2d Cir. 1991), Al-Jundi v. Estate of

Rockefeller, 885 F.2d 1060 (2d Cir. 1989), and

» 453 F.2d 12 (2d Cir. 1971) for

the history of the litigation about the retri-

bution after the retaking of Attica.

30

aproximately 11:00 p.m.

in the courtyard . . . without

clothes or shoes, and their hands

remained cuffed behind their

backs. . . . Inmates were forced

to stand in their position and

remain silent. . .. At about 12

a.m. . . . the inmates were per-

mitted to sit down, but a moment

later were made to stand for the

count. Many were able to sit

only with the assistance of offi-

cers while others lay flat, ap-

parently because of the discom-

fort experienced in trying to

sit.

During the time they

were in the yard, numerous in-

mates began to complain about the

tightness of their handcuffs.

They complained of numbness in

their hands, and SCOC staff noted

that in some cases, the flexicu-

ffs had deeply indented the skin.

- « « In a few cases, inmates

apparently passed out.”

New York State Commission of Correction,

(e) W e

Disturbance, July, 1981, 22-23 (available

a It is not surprising that the

most widespread and well documented staff

misbehavior occurs after disturbances, espe-

cially ones where staff is hurt. Both those

who hurt staff and those who did not can be-

come targets.

31

from N.Y.S. Commission of Correction, 60

South Pearl Street, Albany, NY 12207)."

The Fifth Circuit’s "sig-

nificant injury" standard would shield

from Eighth Amendment scrutiny conduct

which, according to the ACA, "should

never be used under any circumstances."

In the absence of what the Fifth Circuit

considers "significant injury," these

practices would be constitutional.

POINT V

REQUIRING "SIGNIFICANT INJURY" WILL NOT

END FACTUAL DISPUTES, BUT WILL FOCUS

INCREASED ATTENTION ON UNRELIABLE PRISON

MEDICAL RECORDS.

Requiring “significant

injury" will not end factual disputes in

- The state eventually settled

300 inmates’ claims from this incident for

$250,000. Allman v. Coughlin, No. 82-CV-1149

(GLG) (S.D.N.Y.).

32

prison brutality cases." courts are,

after all, designed to resolve factual

disputes. But requiring "significant

injury" will focus more attention on

” A useful way to cut down

factual disputes is to use video cameras in

locations which produce many brutality com-

plaints. According to the Inspector General

of the New York State Department of Correc-

tional Services, installation of a closed-

circuit television system in the disciplinary

housing area of one New York State prison cut

down brutality complaints by 95%. Expansion

of such systems was recommended to Governor

Cuomo by a state special commission. New York

State Commission on Criminal Justice and the

Use of Force, Report to the Governor 343, 355-

357, n.23 at 365, and n.44 at 367 (1987).

Four weeks ago, the Commissioner of New York’s

prison system stated:

Videotaping . . . {is} an ex-

tremely important managerial tool. It

is next to impossible for either an

inmate or a staff member to argue that

an incident which is depicted on video-

tape did not actually happen the way

the videotape shows it to have hap-

pened.

Testimony of Thomas A. Coughlin, III, before

the N.Y.S. Black and Puerto Rican Legislative

Caucus Committee on Criminal Justice, 6, pre-

sented at hearing on Use of Force and Deadly

Force in New York State Correctional Facili-

ties, June 12, 1991 (available from N.Y.S.

Department of Correctional Services, Building

2, State Campus, Albany, NY 12226).

Aside from New York State, at least

Illinois uses video cameras in its prisons.

See Freeman v. Franzen, 695 F.2d 485, 489 (7th

Cir. 1982), cert. denied

Freeman, 463 U.S. 1214 (1982).

33

prison medical records in establishing

the extent of both injuries and liabili-

ty.

Prison medical records are

not like medical records in the free

world. Neither the patient nor the medi-

cal provider is necessarily free from

coercion and intimidation. Medical pro-

viders in the prison system are often

far from detached recorders of truth.

Additionally, prison medical records have

been altered, concealed and destroyed to

cover misconduct. In many instances,

records are ineptly kept and examinations

are conducted sloppily or under circum-

stances inimical to a thorough evalua-

tion. See Todaro v. Ward, 431 F.Supp.

1129 (S.D.N.Y. 1977), aff’d 565 F.2d 48

(2d Cir. 1977).

Increased reliance on pr-

ison medical records will create added

pressures for the under-recording of

34

injuries, and the destruction of records.

The current Inspector General of the New

York State Department of Correctional

Services, Brian F. Malone, gave this

account of an incident involving the use

of force at a New York prison, in a June

8, 1983 letter to the Committee on Pro-

fessional Standards:

[(Cjertain medical

documents had been removed from

an inmate’s folder who had suf-

fered a knee injury and a head

wound. . . . [The] nurse who had

treated this inmate on the date

of the incident, and who, at the

time of the interview, had se-

cured other employment, [said

that) an attempt had been made to

alter the treatment records so

that two separate medical proce-

dures would be interpreted as

one, thus obfuscating a period of

time where excessive force was

utilized, as well as documenting

a false reason for the inmate’s

head wound.

The letter is Exhibit C to Respondent’s

Brief. In the) Matter of Brian F. Mal-

one, 65 N.Y.2d 772, 492 N.Y.S.2d 947,

482 N.E.2d, 565 (1985), aff’g, 105

35

A.D.2d 455, 480 N.Y.S. 2d 603 (3d Dep’t

1984).

In In the Matter of Bri-

an F. Malone, Malone, an attorney,

faced misconduct charges stemming from

his attempt in a brutality case to

pierce the guards’ "code of silence."

He felt the "code" was facilitated by

the joint representation by a union

lawyer of both targets and potential

staff informants in his investigations.

Malone submitted the letter previously

quoted to explain the impediments to

his investigations. The record of

testimony in Malone’s case, reflected

in the dissents in the Court of Appeals

and Appellate Division, indicated a

guard breaking the "code" would be rare

and might well have reason to fear

a a et

36

physical retaliation."

Where there is a brutal-

ly enforced "code of silence," medical

personnel have reason to fear for their

safety if they record injuries in a way

which suggests guard brutality. The

Guards who beat an inmate may be stand-

ing over the inmate and the medical

provider during any examination. Aside

oe Ramon Rodriguez, Counsel for

the Department of Correctional Services at the

time of the events leading to the charges

against Malone, testified:

[T)his was the first time in my

memory . . we had a real live [uni-

formed) witness, who watched and saw

brutality occur in one of our prisons.

It is a very rare occurrence.

- We were both very concerned...

that Mr. Lewis [a guard who reported

that three other guards had beaten an

inmate without cause], who was in fear

of his safety, would not want to testi-

fy. . . . (Wje spent a great deal of

time trying to figure out how we could

make it as safe as possible for Mr.

Lewis because he was doing something

° - that would put him in a great

deal of danger.

Record of hearing before referee 45, 47-48,

54-55, Exhibit A to Brief for Respondent In

, 65 N.Y.2da 772,

the Matter of Brian F. Malone

492 N.Y.S.2d 947, 482 N.E.2d 565 (1985).

‘

A‘

37

from facing direct retaliation and har-

assment, medical providers could find

themselves left in the lurch when need-

ing security assistance from guards.

If they fear further

mistreatment, brutalized inmates may be

afraid to seek medical aid, or to say

how they got their injuries. The lat-

ter is what the court concluded oc-

curred in Hayden v. Maldonado, No. 82-

CV-1166, Memorandum - Decision and

Order (N.D.N.Y. March 24, 1989) 20-21.

See Appendix, A-41.

Whether inmates will

even see medical staff, and after what

delay, may be up to the very people who

used force, or their work mates. Hud-

son testified he repeatedly sought

medical treatment, but to no avail.

Magistrate’s opinion 8, Joint Appendix

25. See, for example, Simpson v.

Hines, 903 F.2d 400 (5th Cir. 1990),

38

where ten policemen and guards entered

a cell to search one man. He was left

dead on the floor, and although he was

observed to be motionless twice in the

next five hours, no medical help was

called.

A striking example of

under~-recording of injuries in prison

medical records comes from a PLS case,

Young v. Napper, No. 86-CV-453

(N.D.N.Y¥.). Our client, Cedric Young,

was involved in a series of incidents

in which force was used on him on the

morning of July 8, 1985. Photographs

made by PLS the next day” and deposi-

tion exhibits 85 and 86, are in the

appendix at C-9 and C-10. They show

obvious swelling, bruising and abra-

sions on his face. The prison medical

sid Our clients are not often

fortunate enough to be photographed by outsid-

ers so soon after a beating.

39

records show he was seen by medical

staff at 9 a.m., 9:30 a.m., 11:30 a.m.,

and 3:55 p.m. on the day of the inci-

dent, and 4:20 p.m. the next day, as

well as at sick call on July 11, 17 and

18. The records note various injuries

on his body, but there is not a word

about facial injuries. Deposition

exhibits at appendix, C-2 to C-8. The

facial injuries shown in the photos may

not qualify as "significant injuries,"

but excessive force producing them

should not be constitutional, regard-

less.

Young’s claim was set-

tled for $12,000. Had it been tried,

the factual disputes most likely would

have included just what his injuries

were and when he got them, as in any

case where the adequacy of prison medi-

cal records is challenged.

The adequacy of medical

40

care for inmates in Attica’s Special

Housing Unit ("SHU") (disciplinary

housing) is at issue in Eng v. Coughl-

in, No. 80-CV-385(T) (W.D.N.Y.). The

medical care in such a setting is crit-

ical to documenting brutality, since

many inmate complaints of brutality

concern events which occurred just

before or during their transfer to the

SHU. This is logical, since inmates

are moved to the SHU after they have

had major difficulties with staff, and

Staff may still be angry at them during

the transfer process.

. After taking testimony on a

number of incidents at Attica, a state court

judge found:

- brutality has occurred when in-

mates are being transferred from Gener-

al Population to the Special Housing

Unit. . . . Apparently, it starts as an

intimidation effort. . . . As could be

expected, several times the intimida-

tion escalated into much more serious

matters. One man suffered a seriously

broken leg and at least two others had

cuts on their heads that required su-

turing.

(continued...)

41

In Eng, PLS sought a

preliminary injunction when an inmate

died following a violent confrontation

with staff. The incident raised very

serious questions about emergency care

for inmates in Attica’s SHU. The Court

preliminarily ordered that all medical

staff be periodically trained in (among

other things) proper procedure in as-

sessing an inmate’s condition, the

necessity of conducting a thorough

personal examination when medically

appropriate, and accurately and com-

pletely filling out ambulatory health

records. A further hearing is set on

'8(...continued)

- The testimony further disclosed .

that on most occasions the Correction

Officers had removed their name tags .

This action on their part indi-

cated that trouble was expected and

they did not wish to be identified.

v , Index No. 11, 186,

Memorandum and Judgment 3-4 (Wyoming County

Sup. Ct., December 30, 1983).

42

(among other things) the degree to

which adequate medical examinations can

be done through plexiglass attached to

the fronts of cells, the proper scope

of medical examination on admission to

the SHU, the adequacy of medical re-

cords, the provision of Spanish inter-

preters in emergencies, and whether

medical care is delayed or effectively

denied in certain types of cases.

The Court noted that the

inmates’ expert had reviewed 17 medical

files and found serious deficiencies in

12, and defendants’ expert agreed there

were deficiencies in eight. In one of

those,

- + an inmate denied injury

when he arrived at the SHU .

and physical examination upon

admittance consisted only of a

"nude viewing." Raymond Rpt. at

19-20. Several hours later,

however, the inmate complained to

a CO that he could not move.

Although the CO reported this to

the RN on duty, she merely recom-

mended that the CO administer

43

Tylenol and did not come to the

SHU to talk to or examine the

inmate. An hour later, the Co

observed the inmate lying motion-

less on the floor of his cell and

again notified the nurse. This

time, the nurse came to the SHU,

and in her notes reported the

inmate’s complaints of pain and

numbness in his extremities. De-

spite the potentially serious

nature of the complaints, her

only recorded physical assessment

was "no visible injuries." Ray-

mond Rpt. at 19-20; Hines Aff.

§ 37(3). No further action ap-

pears to have been taken in this

case.

Eng_v. Coughlin, No. 80-CV-385(T),

Decision and Order 2-3, 7, 12, 14, 16

and 17 (W.D.N.Y., November 5, 1990).

Additionally, a report of

the inmates’ expert which was before the

Court provides:

Many records . . . displayed ab-

sent, or inadequate physical

examination. The substitution of

visual inspection for physical

examination is untenable. The

subjective impression of a nurse

or PA based on such visual in-

spection . . . represents an

unacceptable level of access to

meaningful medical intervention.

- + «+ Simple and basic elements

of physical examination can, and

44

must be performed in order to

adequately assess the serious

medical complaints of inmates.

Multiple instances of poor medi-

cal records and clinical charting

practices were identified. Sev-

eral charts were noted to have

incomplete SOAP entries. ...

Some SOAP notes contained only an

outline of the therapeutic Plan,

without benefit of the Subjective

(inmate’s stated complaint), Ob-

jective (physical exam and diag-

nostic testing), or Assessment

(diagnostic impression). This

practice causes future reviewers

to have to guess at these

other components by virtue of the

nature of the therapeutic plan.

Albert J. Raymond, M.D., Eng v. Cough-

lin, Attica Visit #2 - Case Reports 26-

27 (9/6/90)."

The report also states:

Medical Screening of Inmates Tr-

ansferred into the SHU: .. . In

a series of some fifteen consecu-

tive videotaped screening exams

- « the longest examination

performed lasted only 28 seconds,

” A typed version of an example

is at appendix, C-4 to C-6. This form, the

Ambulatory Health Record, is used in all New

York State prisons.

45

with five of the fifteen exams

lasting less than 10 seconds.

. « « Essentially a brief medical

inventory of questions were asked

by rote, and included in-quiries

as to any injuries, medical prob-

lems, and medications, followed

by the nude viewing and quick

exit of the medical personnel

from the scene.

Id, 29.

- Exceedingly poor medical

records were found at another New York

State prison in Todaro v. Ward, 431 F.

Supp. at 1145-46. In Dean v. Coughlin,

623 F. Supp. 392, 395 (S.D.N.Y. 1985),

the dental system was found "defunct"

as to routine care, in part because 300

inmate requests to see the dentist were

stuffed into a gauze box and ignored.

Similar findings are not uncommon.”

Elevating the importance

7 See, e,g,, Newman v. Alabama,

503 F.2d 1320, 1323 (Sth Cir. 1974); Lightfoot

v. Walker, 486 F.Supp. 504, 517 (S.D.I11l.

1980); LeMaire v. Maass, 745 F.Supp. 623, 633

(D.Or. 1990); Ruiz v. Estelle, 503 F.Supp.

1265, 1323 (S.D.Tex. 1980); Hoptowit v. Ray,

682 F.2d 1237, 1252-1253 (9th Cir. 1982).

46

of prison records is not fair, since

inmates almost never have any choice of

providers, and are almost always com-

pletely at the mercy of those who gen-

erate the documentation of their inju-

ries. Contrary to what respondents

appear to suggest, given that prison

records may be so unreliable, adding a

"significant injury" requirement will

not reduce factual disputes. See Re-

spondents’ Brief in Opposition, p. 9.

POINT VI

REQUIRING “SIGNIFICANT INJURY" MAY DIS-

COURAGE NEEDED MEDICAL TREATMENT, AND

ENCOURAGE VERY DANGEROUS CONDUCT BY

GUARDS.

It appears that "signif-

icant injury" may be distinguished from

“insignificant injury" by the fact of

medical treatment. For example, cuts

on an in-mate’s finger which required

sutures were "significant," while

Hudson’s bangs and bruises and fat lip

—

Ee eS Te ee re ne

° tet ted agile Bh ml, ante t

-

7

x

t

*

47

and loose teeth were not. Compare

Adams v. Hansen, 906 F.2d 192 (5th Cir.

1990) with the Court of Appeals deci-

sion in the instant case, Joint Appen-

dix 30-33.

If prison personnel be-

come aware that, absent treatment, a

prisoner’s tateries may not support a

claim of civil or criminal Eighth

Amendment violation, a disincentive to

provide treatment will be created.

Medical personnel could be discouraged

from treating, if they are friendly

with or intimidated by guards, and

guards could be discouraged from taking

injured inmates to see medical staff.

Furthermore, the Fifth

Circuit has permitted guards to endan-

ger the lives of inmates without any

fear of liability. For example, un-

consciousness caused by a choke hold,

absent "serious or permanent injury

48

stemming from his brief blackout," was

held not a "significant injury" in

Wesson v. Oglesby, 910 F.2d 278, 280,

283 (5th Cir. 1990). However, in New

York, two state prison inmates have

died in the last 32 months as a result

of choke holds. In one case, the in-

mate died as a result of "homicidal

sustained compression of the neck and

chest." In the other case, the inmate

died from "homicidal asphyxia - com-

pression of the neck." The compression

in both cases was applied by staff

during struggles with the inmates.?”!

Finally, permitting the

lack of medical treatment to determine

"significant injury" will discourage

21

Darrel Booth, May 10, 1991, and In the Matter

of the Death of Shelton Philpot, November 23,

1988 ("one or more... treatment assistants

applied physical force to the neck of the

deceased, resulting in traumatic compression

of the neck and fatal asphyxia.”"), New York

State Commission of Correction, 60 South Pearl

Street, Albany, NY 12207.

en Re ee ee ee ae ee ee

49

civil and criminal enforcement of the

Eighth Amendment. Tragic cases, caused

by guards who "overdo it," may well be-

come more numerous. As has been ob-

served by the Eighth Circuit:

Corporal punishment is easily

subject to abuse in the hands of

the sadistic and the unscrupu-

lous.

. . »« Where power to punish is

granted to persons in lower lev-

els of administrative authority

there is an inherent and natural

difficulty in enforcing the limi-

tations of that power.

Jackson v. Bishop, 404 F.2d at 578

(concerning supposedly regulated "str-

apping").

Besides abuse, if unjus-

tified force is permitted at all, it

will not be long "before it gets out of

hand and rises to dangerous propor-

tions." American Correctional Associa-

tion, Manual of Correctional Standards,

417 (3d ed., 1966). A state court

judge found that is exactly what hap-

50

pened at Attica. Matter of Ware v.

Smith, Index No. 11, 186, Memorandum

and Judgment 3 (Wyoming County Sup.

Ct., December 30, 1983).

CONCLUSION

For the reasons stated

above, the decision of the Court of Ap-

peals should be reversed and the judg-

ment of the District Court reinstated.

New York, NY,

July 10, 1991

PRISONERS’ LEGAL SERVICES

OF NEW YORK

105 Chambers St., 5th floor

New York, NY 10007

(212) -513-7373

by: John A. Gresham

Attorney of Record, and

Stephen Mark Latimer

On The Brief:

Joanne Schwartz

Law Student

APPENDICES

A-1

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

JOHN HAYDEN,

Plaintiff,

Vv. 82-CV-1166

CORRECTIONS OFFICERS ARISTIDES

MALDONADO and LARRY BROOKS,

Defendants.

APPEARANCES:

PRISONERS' LEGAL SERVICES

OF NEW YORK

Attorneys for Plaintiff

22 Broad Street

P.O. Box 1215

Plattsburgh, New York 12901

OF COUNSEL:

ROBERT BENSING, ESQ.

JOHN A. GRESHAM, ESQ.

DAVID C. LEVEN, ESQ.

ROBERT ABRAMS

Attorney General of the

State of New York

Attorney for Defendants

The Capitol

Albany, New York 12224

OF COUNSEL:

ALAN S. KAUFMAN, ESQ.

HOWARD G. MUNSON, J.

A-2

MEMORANDUM-DECISION AND ORDER

From August 11, 1986 to

August 14, 1986 the court conducted a

non-jury trial in this case at the

United States Courthouse in Auburn, New

York. The action is brought under 42

U.S.C. §§ 1983 and 1985. It involves

‘ the alleged beating of plaintiff, John

Hayden, by corrections officers at

Clinton Correctional Facility

("Clinton"), Dannemora, New York.

Plaintiff claims that three corrections

officers, defendants Maldonado, Brooks

and a third unidentified officer, as-

saulted and injured him on May 24, 1981

in Clinton. The following constitutes

this court's findings of fact and con-

<< ws a? °

ee Co ee eet eee ee ee. ee

Se ee ee ee ee el oe

A-3

tive findings and conclusions, the court

will address five evidentiary questions

left unresolved at trial.

I. Evidentiary Matters.

A. Unfair Surprise in Dr. Ecker's

testimony.

At trial plaintiff pre-

sented an expert medical witness, Dr.

Arthur Ecker. The doctor's testimony

went beyond the letter that defendants

were given on his proposed testimony.

The letter stated that plaintiff's

injuries were inconsistent with an

epileptic seizure. The doctor, however,

altered his opinion and testified at

trial that plaintiff suffered from a

hyperventilation syndrome and not from

Clusions of law. See Fed. R. Civ. P. epilepsy. He changed his opinion subse-

52. Prior to setting forth the substan- quent to examining the plaintiff and

A-4

taking a history, all of which was done

on the first day of trial.

At trial defense counsel

objected to the doctor's testimony to

the extent which it went beyond the

notice which defendants were given.?+

While an objection was made, defense

counsel did not seek a continuance.

When unfair surprise is claimed, "the

appropriate remedy is a continuance

rather than rejection of the evidence."

McCormick on Evidence 440 n.34 (E.

Cleary 2d ed. 1972); see Outley v. City

of New York, 837 F.2d 587, 590 (2d Cir.

1988) (citing Johnson v. H.K. Webster,

inc., 775 F.2d 1, 8 (lst Cir. 1985)).

Fed. R. Civ. P. 15(b) supports the view

1. Transcript ("Tr.") at 212

A-5

that continuance is the appropriate

remedy to unfair surprise. Id. Addi-

tionally, in an effort to minimize the

prejudice created by the unfair sur-

prise, the court permitted Physician's

Assistant Sorrell to sit in on Doctor

Ecker's testimony. Finally, there is no

evidence that the lack of notice in the

change in Dr. Ecker's testimony stemmed

from any willful conduct on the part of

plaintiff's attorneys to gain a tactical

advantage. See Escalera v. Coombe, 852

F.2d 45, 48 (2d Cir. 1988) (citing

Taylor v. Iliinois, 108 S. Ct. 646, 655-

57 (1988)). The court therefore con-

cludes that Dr. Ecker's testimony was

properly admissible even to the extent

with which it differed from his original

opinion as shared with the defendants.

A-6

B. Evidence that defendant Mal-

donado filed a false report and

exercised excessive force.

At trial plaintiff's

counsel in his cross-examination of

defendant Maldonado sought to elicit

testimony and introduce documentary

evidence for the ommnaes of attacking

Maldonado's credibility. Specifically,

counsel tried to prove that, subsequent

to the occurrence which is the subject

of this lawsuit, defendant Maldonado was

disciplined and received a notice of

dismissal for use of excessive force and

filing a false report. The disciplinary

charges and subsequent notice of dis-

missal related to an incident which

occufFred at Clinton on April 5, 1985.

At trial, plaintiff's counsel questioned

Maldonado regarding the charges and

A-7

sought to introduce documentary evidence

on the issue. The court reserved deci-

sion on defense counsel's objections to

the line of questioning and the intro-

duction of documentary evidence. 2

Counsel in part relies on

Fed. R. Evid. 608(b) in seeking to have

this evidence admitted.? As pertinent,

Rule 608(b) provides that:

Specific instances of conduct of a

witness, for the purpose of attack-

ing or supporting his credibility,

other than a conviction of crime as

provided in rule 609, may not be

proved by extrinsic evidence. They

may, however, in the discretion of

the court be inquired into on cross-

examination of the witness...

concerning his character for truth-

fulness or untruthfulness. ...

The Rule itself plainly states, and

Second Circuit authority holds, that

2. Plaintiff offered these documents as

Exhibits 18, 19 and 20.

3. Plaintiff's Post-Trial Memorandum at 7.

A-8

credibility cannot be attacked through

extrinsic evidence of specific instances

of conduct. United States v. DiPaolo,

804 F.2d 225, 230 (2d Cir. 1986); United

States v. Smith, 727 F.2d 214, 221 (2d

Cir. 1984); United States v. Clemente,

640 F.2d 1069, 1083 (2d Cir.), cert.

denied, 454 U.S. 820 (1981). Under Rule

608(b) Plaintiff's Exhibits 18,19, and

20 are a However, cross-

examination of Maldonado as to specific

acts of conduct is permissible in the

court's discretion. United States v.

Weichert, 783 F.2d 23, 25 (2d Cir.),

cert. denied, 479 U.S. 831 (1986). The

court now concludes that it was proper

for counsel to cross-examine Maldonado

on the charge of filing a false report.

See Fed. R. Evid. 608(b). The testimony

ae nt Medill

:

:

;

A-9

adduced through cross-examination showed

that Maldonado was involved in an inci-

dent on April 5, 1985, that he got a

notice of discipline concerning that

incident, the notice of discipline

sought his dismissal, that he appealed

the Department of Correctional Service's

("DOCS") determination and that at the

time of trial DOCS continued to seek

Maldonado's dismissal, but the entire

appeals process was not yet complete. 4

The testimony regarding the charges which

was elicited am cross-examination,

however, is too sketchy to be of assist-

ance to a fact-finder. It is disjointed

-- in part because of the frequent

objections of defense counsel -- and not

very informative. As a result, the

4. Tr. at 451 and 460-67.

A-10

court will not consider the testimony

regarding the charges. See Fed. R.

Evid. 403.

Counsel offers a second

reason for offering the testimony and

documentary evidence of the disciplinary

charges which were pending against

Maldonado. Counsel asserts that the

evidence should come in as to the state

of mind of another defense witness,

Nurse Dupra. In other words, the evi-

dence is offered on the theory that

Nurse Dupra was intimidated as a wit-

ness. She, however, denied knowledge of

the charges pending against Maldonado.”

The court will not infer, as plaintiff's

counsel suggests, that despite her

5. Tr. at 365-66.

ee oy i foe rs

A-11

denials, Nurse Dupra knew of the charges

pending against Maldonado. Plaintiff

offered no evidence to the effect that

these charges had been brought to Nurse

Dupra's attention. Even on this second

basis, the court will not consider the

evidence regarding Maldonado's discipli-

nary charges. See Fed. R. Evid. 403.

C. Rebuttal Testimony of Brian

Malone.

Plaintiff offered in

rebuttal the testimony of Brian Malone,

the Inspector General of DOCS. His

testimony centered around a code of

silence which operates among some DOCS

personnel. In reaching its conclusion,

the court has not relied on this testi-

mony. Therefore, the court need not

rule on its admissibility.

A-12

D. Max Vidal's Statement.

In his post-trial papers,

plaintiff seeks to strike certain testi-

mony elicited on cross-examination from

Max Vidal, plaintiff's corroborating

witness. The testimony regarded a

written statement he gave to Prisoners'

Legal Services ("PLS"). Previously, on

direct examination the document in

question was not weed to refresh Vidal's

memory. See Fed. R. Evid. 612. Defense

counsel did not insist on gaining the

statement from the plaintiff. ® ce.

United States v. Nobles, 422 U.S. 225

(1975) (holding that the prosecution is

entitled to the portions of a written

report referred to in the testimony of a

defense investigator).

A-13

In response to defense

counsel's questions on the statement

given to PLS, Vidal stated that the

statement was sworn to, that he did not

recall what the statement said, but that

he did know that it referred to "this

case."/ Subsequent to discussion at

trial on the issue of admissibility of

the testimony and the document, counsel

for plaintiff withdrew his objection to

defense counsel's inquiring into the

8 "In the situa-

statement's contents.

tion where a party makes an objection,

then decides to withdraw it, one may

properly speak of the objection as

having been waived." C. Wright & K.

Graham, Federal Practice and Procedure:

to Be BS 368

8. Tr. at 192.

A-14

Evidence § 5033 (1977); see United

States v. Montemayor, 684 F.2d 1118,

1123 (Sth Cir. 1982). The court con-

cludes that the objection was waived.

Moreover, the testimony

elicited regarding the statement did not

breach any work-product privilege.

Perhaps that is why plaintiff's counsel

withdrew his objection. Vidal did not

recall the contents of the statement.

His testimony did not go to the mental

processes of plaintiff's attorneys. See

Nobles, 422 U.S. at 238; Hickman v.

Taylor, 329 U.S. 495, 514 (1947).

Inasmuch as this was testimony given at

trial, it could not help defendants

prepare for trial, Nobles, 422 U.S. at

248 (White, J., concurring), but could

serve in "the search for truth."

:

;

;

A-15

Nobles, 422 U.S. at 232.

Finally, it is not at all

clear whether plaintiff seeks to strike

Vidal's testimony or avert production of

the statement. It appears that the

concerns of plaintiff's counsel rested

with the statement itself. Counsel is

worried that the court's decision might

form a precedent under which PLS would

have to — to defendants the state-

ments of the witnesses whom PLS has

interviewed.? For instance, plaintiff's

post-trial memorandum argument on this

point is made under the heading, "Ne-

fendants Are Not Entitled To Max Vidal's

Statement." Such an argument is inappo-

site since Vidal's statement was never

9. See Tr. at 185.

A-16

offered into evidence nor provided to

the defendants. For the foregoing

reasons, the court will not strike the

questions asked and answers given.

E. Vidal's Testimony Regarding Drug

use.

Defense counsel cross-

examined Vidal regarding his drug use in

prison, as well as his being disciplined

when drugs were found in his prison

cell.2° at trial, the court reserved

decision on the admissibility of such

evidence.11

Defense counsel argued that

the evidence was admissible to show

Vidal's motive for testifying at

trial.12 The proper analysis for this

argument is under Fed. R. Evid. 608 and

10. Tr. at 194-97.

11. Tr. at 199.

12. Tr. at 195.

A-17

not under Rule 404(b) because

"'"tmjotive' in Rule 404(b) refers to

influence over out-of-court acts." C.

Wright & K. Graham, Federal Practice and

Procedure: Evidence § 5240, 1988 Supp.

at 422 (1978). The court concludes that

the evidence of the disciplinary action

was admissible. The fact that correc-

tions officers found drugs in Vidal's

cell could in some way impact on his

desire to strike out in general at

corrections officers. See C. Wright &

K. Graham, Federal Practice and Proce~

dure: Evidence § 5240, at 475 n.34

(1978) (prior crime can show bias of

witness and the prejudice is less if the

witness is not a party); cf. United

States v. DeLeon, 498 F.2d 1327, 1332-33

(7th Cir. 1974) (evidence of prior crime

A-18

is admissible to show that the witness

may be testifying in order to fend off

any pending prosecution). The evidence

of drug use is another matter. In and

of itself it does not show a tendency

for untruthfulness under Fed. R. Evid.

608(b). See Crimm v. Missouri Pacific

R.R. Co., 750 F.2d 703, 707-08 (8th Cir.

1984); see also United States v. Noti,

731 F.2d 610, 612-13 (9th Cir. 1984).

Therefore, the court rules inadmissible

any testimony of Vidal's drug use.

II. The Injuries to John Hayden.

Neither side in this

lawsuit disputes that plaintiff suffered

injuries on May 24, 1981. A central

issue in this case, though, is whether

plaintiff's injuries resulted from a

:

:

A-19

seizure of some sort or from a beating.

To this end the expert medical testimony

elicited at trial is crucial. The

interpretation of this testimony is the

keystone of the court's opinion.

Four medical personnel

testified at trial. They were Dr.

Arthur Ecker, plaintiff's expert, Elber-

ta Dupra, the nurse who first adminis-

tered to plaintiff's injuries, Physi-

cian's Assistant James Sorrell, who

conducted an examination of plaintiff on

May 28, 1981, and Dr. Jerome Davis,

defendants' expert, a neurologist who

sees patient referrals at Clinton and who

saw plaintiff on such a referral on or

around May 28, 1981.33

Plaintiff's injuries are

13. Tr. at 518.

A-20

enumerated in two entries on Exhibit 1-1

which is one page of plaintiff's health

record kept at Clinton. The first entry

is by Nurse Dupra and was made on May

24, 1981; it lists seven injuries. The

second entry is by Sorrell and was made

on May 28, 1981. This entry shows one

additional injury which the nurse did

not find. Plaintiff was injured as

follows:

1) a three centimeter

bruise on his left side, below the ribs;

2) a black and blue left

eyelid;

3) a four inch bruise on

his upper left thigh;

4 and 5) reddened areas

on both sides of the neck;

6) reddened areas on the

|

|

A-21

upper chest;

7) small abrasion on the

top of the head;

8) and a small hemor-

rhage in the right retina.

Plaintiff's expert, Dr. Ecker, testified

that in his opinion, these injuries did

not stem from a seizure of any sort, +4

rather the injuries were consistent with

a beating. ?°

Dr. Ecker explained the

basis for his medical judgment. As an

initial matter, he stated that in his

opinion plaintiff does not suffer from

epilepsy as defendants suggest. In-

stead, according to Dr. Ecker, plaintiff

suffers from hyperventilation

14. Tr. at 264-65 and 269.

15. Tr. at 265.

A-22

syndrome. 2® The hyperventilation syn-

drome accompanies an anxiety neurosis.?’

The episodes resulting from this condi-

tion start when plaintiff is in a state

of fear. The fear leads to muscular

tremors, shaking and hard breathing. In

the more severe episodes, the sufferer

of anxiety neurosis can lose conscious-

ness.?® plaintiff himself testified

that he suffered from "nervous

spells."+9 He stated that he could feel

one of these attacks coming on and he

would then lay down. 29

The doctor cited a number

of factors which led him to the conclu-

18. Tr. at 223-24.

19. Tr. at 20.

ool

A-23

sion that plaintiff does not suffer from

epilepsy. First, he satisfied himself

that during an attack plaintiff bites

his tongue deliberately and not involun-

tarily.?? The doctor concluded this

because there is no scarring of the

tongue. Additionally, plaintiff has

never wet himself when he has had an

"episode." In contrast, it is frequent-

ly the case that sufferers of grand mal

epilepsy do wet themselves during sei-

zures. 22

Other considerations also

influenced Dr. Ecker's opinion. Plain-

tiff's brain is not scarred. While one

recording of plaintiff's brain waves was

borderline, the one Dr. Ecker took was

normal. Finally, there was no evidence

21. Tr. at 226.

22. Tr. at 229.

A-24

that the medication given plaintiff for

his epilepsy -- dilantin and phenobarbi-

tal -- reduced the frequency of plain-

tiff's "episodes. "4?

The relevance of the

testimony regarding whether plaintiff

suffered from epilepsy or hyperventila-

tion syndrome is the severity of plain-

tiff's “episodes.” Dr. Davis, the

defense expert, testified that he has

seen someone who has suffered a broken

back from an epileptic seizure.** In

comparison, the tenor of Dr. Ecker's

testimony is that hyperventilation

syndrome does not jerk the body as

violently as a grand mal epileptic

seizure.

23. Tr. at 21-22 (Hayden); Tr at 234-35 (Ecker).

24. Tr. at 236.

A-25

As noted, Dr. Ecker's

opinion is that plaintiff's injuries did

not come from an episode of hyperventi-

lation syndrome. He also stated that

the injuries could not have come from an

epileptic seizure.*> As a basis for

these conclusions, the doctor noted that

plaintiff was injured on both sides of

his neck. He also suffered injuries to

both eyes. The eyes and the neck are

protected areas and are less prone to

injury than are more exposed parts of

the body. For that reason alone, Dr.

Ecker explained, it is unlikely that

plaintiff received his injuries from a

hyperventilation episode, or even from

26

an epileptic seizure. In addition,

25. Tr. at 265.

26. Tr. at 269.

A-26

the very nature of seizures diminishes

the possibility of receiving the in-

juries in such a manner. According to

Dr. Ecker, the head moves up and down in

27 As a result, Dr.

any kind of seizure.

Ecker did not see how plaintiff could

have suffered injuries on both sides of

the neck from a seizure or hyperventila-

tion "episode. "28 His opinion remained

unchanged even in light of the possibil-

ity that plaintiff somehow injured

himself on objects in his cell.??

The court observed Dr.

Ecker to be a thorough and competent

witness. In contrast, the defense

expert, Dr. Davis, was not as thorough

at. FT. @ 367.

28. Tr. at 267-68.

29. Tr. at 267-69.

A-27

in the explanation of his opinion.

Moreover, Dr. Ecker's medical opinion

makes sense. The court, as a result,

adopts as a finding of fact Dr. Ecker's

opinion that plaintiff suffers from

attacks related to anxiety neurosis and

an accompanying hyperventilation syn-

drome. Furthermore, the court adopts as

a finding of fact Dr. Ecker's opinion

that plaintiff's injures suffered on May

24, 1981 did not result from such an

attack, or from a grand mal epileptic

seizure. Ever Dr. Davis, the defense

expert, agreed that plaintiff's injuries

were consistent with a beating. 2°

Additional support for the court's

finding lies in the fact that, even

though plaintiff has suffered injuries

30. Tr. 524.

A-28

from previous “episodes," the injuries

were never as severe as those suffered

on May 21, 1981.°+ on one occasion

plaintiff had a nervous "episode" and

fell off his bed. The bed collapsed on

top of him. At that time, plaintiff

suffered red spots on both knees, on his

right trunk and on his right hand. >

While it is possible that

plaintiff could have suffered his in-

juries from neither a beating nor an

epileptic seizure or a hyperventilation

"episode," defendants do not posit such

a theory. The court will not pursue its

own theoretical fishing expedition to

rule out all other possible causes of

31. See Plaintiff's Post-Trial Memorandum, pp.

40-41 (containing a summary of the occasions

when plaintiff was seen by medical staff follow-

ing an "“episode").

32. Exhibit ("Exh.") (Accident Report filed

12/4/81); see Tr. at 292.

A-29

the injuries. Therefore, given the

finding that plaintiff's injuries of May

24, 1981 are not consistent with a

seizure or "episode" and are consistent

with a beating, the court must next

address the question of who administered

the beating. Two categories of assail-

ants seem possible, plaintiff's fellow

inmates or corrections officers.

Defendants did not

present to the court the theory that

plaintiff received his injuries from

fellow inmates. No testimony was elic-

ited to this effect. Furthermore,

defendants' version of the events on May

24th fails to demonstrate that plaintiff

was not secure in his cell from between

1 p.m. and 5:30 p.m. Neither side con-

tends that plaintiff received his in-

A-30

juries prior to the time when he locked

into his cell on the afternoon of May

24, 1981. Both sides agree that plain-

tiff, acting on defendant Maldonado's

instructions, locked into his cell at

around 1 p.m.>? Defendants presented no

evidence to show that plaintiff was

subsequently "cracked out" of his cell

until approximately 5:30 that afternoon.

Officer Tourangeau testified that he

inspected plaintiff at approximately

1:15 p.m. and again at 2:20 p.m.?4 He

conducted his inspection of plaintiff

through the plaintiffs' cell bars.?> In

his report on the injuries, Sergeant,

now Deputy Superintendent, Colon stated

33. Tr. at 10 and 436.

34. Tr. at 485-86.

35. Tr. at 485-86.

A-31

that Officer Rodriguez went to check on

inmate Hayden and saw a bruise on his

face. °°

Sergeant Colon's report does

not specify whether Officer Rodriguez

conducted his inspection of plaintiff

inside the cell or outside the cell.

Plaintiff was released from his cell at

approximately 5:30 p.m. when Sergeant

Colon instructed Officer Rodriguez to

escort plaintiff to the prison

hospital. >?

In sum, it is highly un-

likely that plaintiff received [sic] was

assaulted by non-prison personnel while

he was locked in his cell.

Defendants are correc-

tions officers and plaintiff's complaint

revolves around the allegation that he

A-32

was beaten by defendants. In determin-

ing whether defendants assaulted plain-

tiff, the court in part, as noted above,

relies on the medical testimony; in part

the court also relies on its evaluation

of the credibility of individual wit-

nesses. To that end, the court credits

plaintiff's testimony that he was as-

saulted by Officers Brooks and Maldonado

and a third unknown officer.2® with

respect to the events leading up to the

time of the-assault, there is little

dispute. Plaintiff badgered defendant

Maldonado to allow a fellow inmate attend

that afternoon's movie.*? Defendant

Maldonado rejected these requests. He

told plaintiff to lock-in, which he

38. Tr. at 14.

39. Tr. at 9-10 and 427-29.

A-33

did.*° Then defendant Maldonado wrote

up a Notice of Report on plaintifrr.*?

At this point the two

stories diverge. Plaintiff testified

that he was "cracked out" of his cell

and told that the sergeant wanted to see

him.*2 ‘Then it is plaintiff's testimony

that Maldonado, Brooks and a third

unknown officer assaulted him; they

kicked, hit and punched him.4? pPlain-

tiff contends that he was hit between

the eyes by a heavy object and fell

44

unconscious. However, this contention

does not ring true. If plaintiff had

received such a blow then Nurse Dupra

40. Tr. at 10-11 and 428-29.

41. Exh. C-1l.

42. Tr. at 12.

43. Tr. at 12-18.

44. Tr. at 16.

—~s

.

A-34

likely would have recorded in the medi-

cal record an injury to plaintiff's

forehead. She did not.*°® Contrary to

plaintiff's version, the court finds it

much more likely that plaintiff suffered

a hyperventilation "episode" during the

attack and, as a result, fell uncon-

scious.

The court credits plain-

tiff's testimony - to what occurred

immediately after the assault. He

testified that after becoming uncon-

scious he awoke in his cell.*® Upon

waking, plaintiff testified, he got

nervous for fear that his assailants

47

would return and beat him some more.

He started to hyperventilate and fell

46. Tr. at 16.

47. Tr. at 19.

A-35

unconscious. 48

Defendants Maldonado and

Brooks testified that they did not

assault plaintiff. *? The court does not

credit that testimony. The court, as

noted above, rejects the defense theory

that plaintiff's injuries resulted from

a seizure or “episode" in his cell. The

court instead finds that on the after-

noon of May 24, 1981 both defendants and

a third unknown officer assaulted plain-

tiff and caused the injuries listed in

the May 24, 1981 and May 26, 1981 en-

tries on Exhibit 1-1.

While on the whole the

court finds credible plaintiff's narra-

tion of both the events leading up to

48. Tr. at 19.

49. Tr. at 426 and 432-33.

A-36

the assault and the details of the as-

sault itself, the court does not find

that the beating lasted 15 to 20 minutes

as plaintiff testified.°° The injuries

are not consistent with a beating of

that duration.°! ‘The court's finding

that defendants assaulted plaintiff

remains, nonetheless, unchanged. Even

if plaintiff exaggerated the length of

time of the assault, that does not mean

he was not assaulted.

Circumstantial evidence

supports the court's finding that the

defendants did assault plaintiff on May

21, 1981. Defendant Maldonado conceded

that he was a little upset with plain-

50. Tr. at 18.

51. Tr. at 524 and 534 (Dr. Davis); Tr. at 305

(Dr. Ecker).

A-37

tiff.°>? Additionally, after the inmates

on the movie list in Block H -- the

block in which plaintiff was housed --

left for the movies, and as the inmates

who were to go to the yard were leaving

for the yard, defendants Maldonado and

Brooks were to report to duty in the

yard. Even though he testified that he

went out into the yard that afternoon, >?

defendant Maldonado apparently did not

show up for yard duty. His name does

not appear on the yard station list kept |

by Sergeant LaVarnway on the afternoon

of May 24, 1981.°4 In any event, if

Maldonado did show up, he was most

likely late. One explanation for de-

fendant's absence or tardiness is that

52. Tr. at 433 and 441.

53. See Tr. at 430.

54. Exh. F; see Tr. at 477.

A-38

he was kept late writing up a misbehav-

ior report on plaintiff.°° Another

explanation, which the court finds

plausible, is that defendant Maldonado

did not show up or was delayed because

he both wrote up the misbehavior report

and assaulted plaintiff. Officer Brooks'

name appears on the yard station list

for that afternoon. He was posted as

"extra."9© officer Brooks was "extra"

because, as the yard sergeant testified,

"C(hje must have been one of the last

057

ones there. Officer Brooks' late

arrival for yard duty confirms that he

had an opportunity to assault plaintiff.

The court's finding that

55. Exh. C-3.

56. Exh. F; see Tr. at 476.

57. Tr. at 477.

A-39

defendants assaulted plaintiff is not

undermined by the fact that the court

does not credit the testimony of Max

Vidal, an inmate who attempted to cor-

roborate plaintiff's version of the

facts. Vidal was not a credible wit-

58 Further-

ness. He proved evasive.

more, as defendants point out, Vidal's

story rests on his having free reign of

H Block. For instance, he testified

that on May 24th at around the time

plaintiff was assaulted, he traveled

between several galleries on H Block. >?

While this is not impossible, it does

not seem plausible because the general

practice at Clinton was to keep the

doors between the galleries locked

58. See, e.g., Tr. at 176-77.

59. See, e.g., Tr. at 132-33, 150 and 157.

A-40

unless there was movement by the inmates

on a large scale. °°

Finally, the court ad-

heres to its finding that defendants

assaulted plaintiff despite conflicting

testimony as to whether plaintiff told

various prison personnel that he had

been assaulted. Plaintiff testified

that on May 24th he told two officers

that he was assaulted. These were

61

Sergeant Colon, and Officer

Rodriguez. © Plaintiff also testified

that he told Nurse Dupra, °? Dr. Sheri-

64

dan, who was the prison doctor, and

Dr. Davis®? that he was assaulted.

60. Tr. at 410.

61. Tr. at 30.

62. Tr. at 27.

63. Tr. at 32.

64. Tr. at 41.

65. Tr. at 42.

A-41

Neither Officer Rodriguez nor Dr. Sheri-

dan testified at trial. However, Ser-

67 and Dr.

geant Colon, °® Nurse Dupra

Davis®® all took the stand and denied

that plaintiff told them of the assault.

In all probability, plaintiff did not

tell these individuals that he had been

assaulted. The motive for not telling

these individuals is that he feared

further retribution. Plaintiff testi-

fied that after the assault he was

69

scared of the officers. Consequently,

he would be reticent to tell any prison

personnel that he was attacked, because

word might get back to the original

assailants.

66. Tr. at 383.

67. Tr. at 356.

68. Tr. at 518.

69. Tr. at 46; see Tr. at 19.

A-42

III. Liability.

The defendants concede in

their pre-trial memorandum that "if

plaintiff proves that either defendant

hit, beat, kicked or punched plaintiff

it would constitute ... ‘unnec-

essary and wanton inflection [sic] of

pain' and violate the Eighth Amendment."

They cite for this proposition Whitley

v. Albers, 475 U.S. 312, 320 (1986).

See Unwin v. Campbell, 863 F.2d 124, 129

(lst Cir. 1989) ("the unjustified strik-

ing, beating, or infliction of bodily

harm upon a prisoner gives rise to

liability under 42 U.S.C. § 1983 on the

part of one who, acting under color of

state law, engages in such conduct

without just cause") (quoting King v.

Blankenship, 636 F.2d 70, 72 (4th Cir.

A-43

1980)); see also Johnson v. Glick, 481

F.2d 1028, 1033 (2d Cir.), cert. denied

sub nom., John v. Johnson, 414 U.S.

1933

(1973). Given the findings of fact in

this case, the court concludes that

defendants did violate plaintiff's

eighth amendment rights and are liable

for damages under 42 U.S.C. § 1983.

As noted much earlier,

plaintiff, in addition to his claim

under § 1983,

U.S.C. § 1985.

tioned "Conspiracy to interfere with

civil rights."

also makes a claim under 42

Section 1985 is cap-

In the case at bar,

plaintiff cannot prevail under § 1985

because he presented the court with no

evidence of a conspiracy.

See Traggis

v. St. Barbara's Greek Orthodox Church,

851 F.2d 584,

586-87 (2d Cir.

1988).

A-44

IV. Damages.

Plaintiff suffered the

eight injuries previously listed in this

opinion. He stayed in the prison hospi-

tal for two weeks after the assault. He

complained of headaches and was treated

with Tylenol and Vizine. 7° Despite the

short duration of plaintiff's hospitali-

zation and despite the unextraordinary

nature of the care he received, plain-

tiff still complains of a lasting effect

from the assault; namely he claims his

vision is affected and he must wear

glasses to correct it.71 The court

cannot accept plaintiff's contention of a

lasting injury. By his own admission,

70. Tr. at 43.

71. Tr. at 48.

A-45

plaintiff has worn glasses since 1969.72

Furthermore, as defendants argue, there

was no medical testiniony establishing a

causal connection between plaintiff

wearing glasses and being beaten.

Moreover, plaintiff's medical witness,

Dr. Ecker, testified that the retinal

hemorrhage had healed by the time he

examined plaintiff on the first day of

trial.’? For the purpose of assessing

damages, the court concludes that plain-

tiff suffered no permanent injuries.

"Physical injury as well

as intangible injuries, such as pain and

suffering, personal humiliation, mental

distress, and embarrassment are compens-

able injuries under Section 1983."

tae Be GS GF.

73. Tr. at 314.

A-46

Freeman v. Franzen, 695 F.2d 485, 493

(7th Cir. 1982) (citations omitted),

cert. denied, 463 U.S. 1214 (1982). In

his complaint plaintiff seeks $100,000

in compensatory damages. The court

awards plaintiff $12,300 dollars in

compensation for his physical injuries

and mental distress.

The issue of punitive

damages is presently not before the

court. During trial, the court bifur-

cated the consideration of punitive

damages from the consideration of li-

ability and compensatory damages. 74 At

10:30 a.m. on July 5, 1989 in the United

States Courthouse in Auburn, New York

this court will continue the trial as to

the issue of punitive damages. The

74. Tr. at 322.

A-47

parties are directed to file pre-trial

submissions on this issue on or before

June 14, 1989.

It is So Ordered.

Syracuse, New York.

Howard G. Munson

United States

District Judge

March 24, 1989

APPENDIX B

"Eng videotape" - lodged with Clerk

APPENDIX C

DEPOSITION EXHIBITS FROM

YOUNG V. NAPPER

No. 86-CV-453

(N.D.N.Y.)

In written material, words in bold face

were printed on a form, words in ordi-

nary type were typed onto a form, and

words in italics were hand written. All

relevant portions reproduced.

C-2

DEPOSITION EXHIBIT 3

Unusual Incident 2232, Use of Force 1271

- July 8, 1985 - Assault on Staff,

Disruptive Behavior, Refusal to Follow

Instructions - Inmate Cedric Young 79 A

836

CLINTON CORRECTIONAL FACILITY

USE OF FORCE~PHYSICAL EXAMINATION

INMATE'S NAME: Young, Cedric

DEPT. ID. NO.: 79 A 836

EXAMINER'S NAME AND TITLE: Philip T.

Erickson, RN II

TIME OF EXAMINATION: 9:00 AM

DATE OF EXAMINATION: 7/8/85

MEDICAL REPORT, DESCRIBE EXTENT OF

INJURY AND TREATMEMT PROVIDED:

EXAMINED NUDE - ABRASION with CONTUSION

ANTERIOR PORTION LT SHOULDER - Addendum

9:30 am Pt reexamined - superficial

scratch + discolor on (R) upper arm (R)

thigh (R) rib area and (R) chest.

RX: WOUND CLEANSED with H50

Addendum 9:30 Same Rx

Philip T. Erickson

C-3

DEPOSITION EXHIBIT 4

ACCIDENT REPORT

DATE OF ACCIDENT: 7/8/85

PLACE: YARD DOOR

TIME: approx. 8:45 AM.

INMATE'S FULL NAME: YOUNG, CEDRIC

NUMBER: 79 A 836

EXTENT OF INJURY. DESCRIBE FULLY:

EXAMINED NUDE - ABRASION with CONTUSION

ANTERIOR PORTION LT SHOULDER

Addendum 9:30 AM. Pt. reexamined -

superficial scratch and discoloration on

(R) upper arm, (R) thigh (R) rib area

and (R) chest.

TREATMEMT EXTENDED. DESCRIBE FULLY:

WOUND CLEANSED with H50>

Addendum 9:30 am, same Rx.

INMATE'S STATEMENT: NO STATEMENT

TIME INMATE ARRIVED AT HOSPITAL:

9:00 AM.

NAME OF PERSON FURNISHING TREATMENT:

Philip T. Erickson, RN

C-4 C-5

DEPOSITION EXHIBIT 31

DATE: 07/08/85

STATE OF NEW YORK-DEPARTMENT OF CORREC-

TIONAL SERVICES SUBJECTIVE: Seen by C. Cobus RN MHSU

while making PM rounds

AMBULATORY HEALTH RECORD

OBJECTIVE: c/o multiple aches pains

INMATE NUMBER: 79 A 836 some trouble deep breathing sl dizzy

INMATE NAME: YOUNG, C. PLAN OR RX: TO SEE PA IN AM

SIGNATURE: R. Provence RN

DATE: 07/08/85

SUBJECTIVE: USE OF FORCE DATE: 07/09/85

OBJECTIVE: ABRASION with CONTUSION SUBJECTIVE: c/o of mild Headaches,

ANTERIOR PORTION LT SHOULDER denies blurriness of vision or dizzi-

ness; denies breathing problems

PLAN OR RX: (1) ARMO (2) USE OF FORCE

(3) WOUND CLEANSED with H505 PLAN OR RX: (1) will follow-up daily;

(2) Sip & rinse mouthwash; (3) ASA 2 q 6

hrs prn

DATE: 07/08/85

DATE: 7/9/85

SUBJECTIVE: Admission to Unit 14

SUBJECTIVE: brought to IPC per ambula-

OBJECTIVE: 11:30 AM. Seen on admission tory by order of watch commander

to U.14. No new injuries noted from

ARMO @8:45 AM. OBJECTIVE: c/o generalized aches &

pains

SIGNATURE: C. Rock N

, PLAN OR RX: wants sleeping med. - told

ee tte ee eer eee to see MHSU

SIGNATURE: R. Provence, RN

C-6

DATE: 07/11/85

SUBJECTIVE: “involved in altercation"

OBJECTIVE: Generalized aches & pains.

PLAN OR RX: (1) Sip & Rinse mouthwash;

(2) MLT 2 gq 6 hrs prn

DATE: 07/17/85

SUBJECTIVE: dry skin.

PLAN OR RX: (1) A & D ointment; (2)

cepacol lozenges

DATE: 07/18/85

SUBJECTIVE: Dry Skin; wants mouthwash

PLAN OR RX: (1) sip & rinse; (2) A &D

ointment

C-7

DEPOSITION EXHIBIT 70

7/8/85, 3:20-11:20 cont.

3:50: Young, 79A 836 returned to cell.

No incident.

3:55: Inmate Young, 79 A 836, examined

by this writer - pt had numerous c/o -

all reported to Med Staff Nurse, R.

Provence

Pt. condition seems stable @ present -

to be seen by P.A. in Morning

C. Cobus, RN

C-8

DEPOSITION EXHIBIT 87

Medical Log

3-113: 7-9-85

s/c 4:20 Young 79 A 836 U-14, Brought

to IPC seen per request watch commander

- “aching all over" Tylenol given

DEPOSITION EXHIBIT 85

DEPOSITION EXHIBIT 86

C-10

APPENDIX D

Correction Law, §137(5)

No inmate in the care or

custody of the department shall be

subjected to degrading treatment, and no

officer or other employee of the depart-

ment shall inflict any blows whatever

upon any inmate, unless in self defense,

or to suppress a revolt or insurrection.

When any inmate, or group of inmates,

shall offer violence to any person, or

do or attempt to do any injury to proper-

ty, or attempt to escape, or resist or

disobey any lawful direction, the offi-

cers and employees shall use all suit-

able means to defend themselves, to

maintain order, to enforce observation

of discipline, to secure the persons of

the offenders and to prevent any such

attempt or escape.

The administrative policy

is:

New York State Department

of Correctional Services, Directive

4004, p. 1 (February 21, 1979).

The following rules will

govern the use of physical force:

a. The greatest caution and conser-

vative judgment shall be applied in

determining whether physical force

is necessary and the degree of such

force.

b. When it is necessary to use

D-3

physical force, only such degree of

force as is reasonably required shall

be used.

c. Unless there is an immediate

danger to safety, security or

property, an employee will notify

his supervisor who will notify the

Superintendent, or person designated

to act in the Superintendent's

absence, of any situation where the

use of physical force may become

necessary and will not attempt to

use physical force except in accord-

ance with instructions received from

the person designated by the Super-

intendent to take charge of the

situation.

ad. An employee will not lay hands

on or strike an inmate unless the

——

D-4

employee reasonably believes that

the physical force to be used is

necessary for self-defense, to

prevent injury to person or proper-

ty, to enforce compliance with a

lawful direction, to quell a dis-

turbance, or to prevent an escape.

e. Other than a firearm, or chemi-

cal agents, an employee must use a

weapon, for example a baton, issued

by the Department only when and to

the extent that the employee reason-

ably believes such use is necessary

for self-defense, to prevent a

serious assault, gross destruction

of property, to quell a disturbance,

or to prevent an escape. When it is

necessary to use such a weapon,

employee should take due care to

avoid, to the best of his ability

the infliction of serious physical

injury.