Petition for Writ of Certiorari — Soto v. Dickey

Supreme Court brief1985

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84-1827 | TLE D ‘

F JAN 31 1985

;

ALEXANDER L. STEVAS

NO. CLERK

IN THE SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1984

CARLOS S. SOTO and ROBERT

DEMALLORY, on behalf of

themselves and all others

Similarly situated, Petitioners

WALTER J. DICKEY, WARREN

YOUNG and THOMAS BORGEN.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Peter J. Stone

Counsel of Record

2100 Marine Plaza

Milwaukee, Wisconsin

53202-4894

Tele: (414) 271-8210

Counsel for Petitioners

Of Counsel:

Peter L. Gardon

Whyte & Hirschboeck S.C.

Milwaukee, Wisconsin 53202-4894

QUESTIONS PRESENTED

Whether the defendants-

respondents’ use of mace and/or

other chemical agents on the

plaintiffs-petitioners, while

the plaintiffs-petitioners were

locked in their prison cells

and, in some circumstances,

additionally handcuffed or

otherwise restrained, and where

the plaintiffs-petitioners did

not create an immediate threat

of bodily injury or death,

violated their rights under the

Eighth and/or Fourteenth

Amendments to the United States

Constitution.

II.

IIl.

Whether the Court of Appeals

mistakenly assumed that the

Standards establishing a

violation of the Eighth

Amendment are the same as the

Standards establishing a

violation of the Fourteenth

Amendment and consequently

ignored the conclusion of the

District Court that the actions

of the defendants-respondents

violated state regulations and

plaintiffs-petitioners' rights

under the Fourteenth Amendment.

Whether the Court of Appeals

exceeded its authority by

improperly substituting its

opinion of the evidence for that

of the Trial Court.

LIST OF ALL PARTIES

Plaintiffs-petitioners: Carlos S.

Soto, Robert DeMallory, and all past,

present and future residents of the

Adjustment Center at the Waupun

Correctional Institution, State of

Wisconsin.=

1/this petition is brought by

Carlos S. Soto and Robert DeMallory,

on behalf of themselves and all past,

present and future residents of the

Adjustment Center at the Waupun

Correctional Institution, State of

Wisconsin. The action was certified

as a class action by the District

Court, pursuant to Fed. R. Civ. P.

23(a) and (b) (2), on February 21, 1981.

-3-

Defendants-respondents: Walter J.

Dickey, Warren Young and Thomas

Borgen. 2’

2/The Administrator of the

Division of Corrections, the

Superintendent of the Waupun

Correctional Institution, and the

Assistant Superintendent of Security

at the Waupun Correctional Institution

are the defendants-respondents in this

action. At the time of the filing of

the Complaint and through the trial of

this action, Elmer 0. Cady was the

Administrator of the Division of

Corrections, Thomas R. Israel was the

Superintendent of the Waupun

Correctional Institution, and Gerald

Heeringa was the Assistant

Superintendent of Security at the

Waupun Correctional Institution. Mr.

Cady has been replaced by Walter J.

Dickey. Mr. Israel was replaced by

Donald Clusen, and Mr. Clusen

subsequently has been replaced by

Warren Young. In addition, Mr.

Heeringa has been replaced by Thomas

Borgen. Therefore, Mr. Dickey, Mr.

Young and Mr. Borgen are substituted

as defendants-respondents pursuant to

Fed. R. App. P. 43(c).

og-

TABLE OF CONTENTS

Questions Presented. ...+.« « l

Opinions Below . . ... ++ «+s L3

BOREOESCCEGR «c wc cece eecee ee SG

Constitutional and Statutory

Provisions Involved. ...... 15

Statement of Case. ...+++-s I?

Reasons for Granting Writ. ... 32

Conclusion . ..«+«+«++«-«+«+e«e 6)

— issue 42s Spmneea nding lace

TABLE OF AUTHORITIES

TABLE OF CASES, STATUTES AND

OTHER AUTHORITIES CITED

Cases

Page

Anderson v. City of Bessmer,

717 F.2d 149 (4th Cir.

1984), cert. granted,

52 U.S.L.W. 3906

(June 18, 1984) ..... 49

Arsberry v. Sielaff, 586 F.2d

37 (7th Cir. 1978) ... 39

Bailey v. Turner, 736 F.2d 963

(4th Cir. 1984) ..... 55

Battle v. Anderson, 37¢ F.Supp.

402 (Battle I) (E.L.

Okl. 1974), 447 F.Supp.

516 (Battle II) (E.D. Okl.

1977), affd., 564 F.2d

388 (1lOth Cir. 1977),

evidentiary hearing, 457

F.Supp. 719 (E.D.

Okl. 1978); remanded on

other grounds, 594

F.2d 786 (10th Cir.

Beene & 0 6 8 ee +e hl lt 35,

56, 59

Beneficial Finance of

Wisconsin v. Wirtz, 346

F.2d

340 (7th Cir. 1965) ... 42

Bracey v. Herringa, 466 F.2d

7ea Crem Gale 2978) « 2 « 47

Cases

Page

Clark v. Ziedonis, 513 F.2d 79

vam Gene Ala) = ce ce e ec 42

Clemmons v. Greggs, 509 F.2d

1338 (5th Cir. 1975),

cert. denied 423 U.S

946, 96 S.Ct. 360, 46

L.Ed.2d 280 (1975)... . 55

Doran v. Salem Inn, Inc., 422

U.S. 922, 95 S.Ct.

2561, 45 L.Ed.2d 648

C297S)e 2 we ew we ew ew et 41

Estelle v. Gamble, 429 U.S.

97, 9/ S.Ct. 285, 50

L.Ed.2d 251, reh.

denied 429 U.S. 1066, 97

S.Ct. 798, 50 L.Ed.2d

785 (1977) on remand,

554 F.2d 653 (5th Cir.

1977), reh. denied, 559

F.2d 1217 (5th Cir. 1977),

cert. denied, 434

U.S. 974, 98 S.Ct. 530,

54 L.Ed.2d 465 (1977) .. $1, 52

Federal Savings and Loan Ins.

Corp. v. PSL Realty

Co., 630 F.2d 515 7th

Cir. 1980), cert. denied,

Granite Invest. Co. v.

Federal Savings and Loan

Ins. Corp., 452 U.S. 961,

101 S.Ct. 3109, 69 L.Ed.2d

Dem Seeeeee 6 6 6 oe 8 ee 42

Freeman v. Franzen, 695 F.2d.

485 (7th Cir. 1982),

cert. denied, Branche

v. Freeman, U.S.

103 S.Ct. 3553, 77

L.Ed.2d 1400 (1983) ... 35

Cases

Greear v. Loving, 538 F.2d

578 (4th Cir. 1976) ...

Hewitt v. Helms, 459 U.S.

460, 103 S.ct. 864, 74

L.Ed.2d 675 (1983),

on remand, 712 F.2d 48

foe Sse. 2963) « «6 © 2 8

Inmates of Attica Correctional

Facility v. Rockefeller,

453 F.2d 12 (2nd Cir.

1971) e a a 2 J] - e e _

Johnson By Johnson v. Brelije,

701 F.2d 1201

(7em Cae. A9BSPes. « « @ 0

Johnson v. Glick, 481 F.2d

1028 (2d Cir. 1973),

cert. denied, Employee-

Officer John v. Johnson,

414 U.S. 1033, 94 S.Ct.

462, 38 L.Ed.2d 324

canvas e &- es e@ 6 © 6 @ @

Landman v. Royster, 333

F.Supp. 621 (E.D. Va.

1971) 7 ° ° - . . . 7 7 7

Matthews v. Hughes, #CV78-PT-

5098-NE (N.D. Ala.

1980) ° ° . . . e . e e

McCargo v. Mister, 462 F.Supp.

813 (D. Md. 1978) ....

33, 54

Cases

Page

Meachum v. Fano, 427 U.S.

215, 96 S.Ct. 2532, 49

L.Ed.2d 451 (1976), reh.

denied, 429 U.S. 873,

97 S.Ct. 191,,.50 L.E3.2d

Bee Chere) se eee ee 34,

Morris v. Travisono, 528 F.2d

856 (lst Cir. 1976) ... 56

Olim v. Wakinekona, 461 U.S.

238, 103 S.Ct. 1741, 75

L.Ed.2d 813 (1983) ... 36

Patterson v. MacDougall,

506 F.2d 1 (5th Cir.

1975) o . . . 7. . . . . . 56

Poindexter v. Woodson, 510

F. (10th Cir. 1975),

cert. denied 423 U.S.

846, 96 S.Ct. 85, 46

bee. ae 6B (1978) . .« ec « 55

Pullman-Standard v. Swint,

456 U.S. 273, 102 S.Ct.

1781, 72 L.Ed.2d 66

(1982) 2. 2. 2 2 we we ww 40,

Shango v. Jurich, 681 F.2d

1091 (7th Cir. 1982)... 34,

35,

Spain v. Procunier, 600

F.20 189 (9th Cir. 1979). 5l,

56,

Stringer v. Rowe, 616 F.2d

385 (7th Cir. 1980) ... 34,

Cases

Vargas v. Correa, 416 F.Supp.

266 (S.D.N.Y. 1976)

Wolff v. McDonnell, 418 U.S.

, 94 S.Ct. 2963,

41 L.Ed.2d 935 (1974)

Constitutional Provisions

and Statutes

U.S. Const. amend. VIII

(Excessive Bail, Fines,

Punishment)

U.S. Const. amend. XIV

(Due Process)

28 U.S.C. §1254(1)

(Certiorari)

-10-

Page

33,

28 U.S.C. §1331

28 U.S.C. §1343(3)

42 U.S. §1983 (Civil Action

for Deprivation of Rights)

Regulations

4 Wis. Admin. Code HSS

306.01 (Security: Applic-

ability and Purpose)

4 Wis. Admin. Code HSS

306.03 (Security Policy)

4 Wis. Admin. Code HSS

306.06 (Use of Force)

4 Wis. Admin. Code HSS

306.06(1) (a) (Use of Force)

4 Wis. Admin. Code HSS

306.06(2) (Use of Force)

4 Wis. Admin. Code HSS

306.08 (Use of Chemical

Agents)

Federal Rule of Appellate

Procedure 43(C)

Federal Rule of Civil

Procedure 23(a)

Federal Rule of Civil

Procedure 23(b) (2)

Federal Rule of Civil

Procedure 52(a)

-li-

Page

16,

17,

40,

IN THE SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1984

CARLOS S. SOTO and ROBERT

DEMALLORY, on behalf of

themselves and all others

Similarly situated, Petitioners

Vv.

WALTER J. DICKEY, WARREN

YOUNG and THOMAS BORGEDN.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

To the Honorable, the Chief Justice

and Associate Justices of the Supreme

Court of the United States:

Carlos S. Soto and Robert

DeMallory, on behalf of themselves and

all others similarly situated, the

petitioners herein, pray that a writ

of certiorari issue to review the

decision of the United States Court of

Appeals for the Seventh Circuit

entered in the above-entitled case on

September 20, 1984.

8 AOC RANE ETE wa ED Te OOH

womens

OPINIONS BELOW

The September 20, 1984 opinion of

the Court of Appeals, whose judgment

is herein sought to be reviewed, is

reported at Soto v. Dickey, 744 F.2d

1260 (7th Cir. 1984), and is reprinted

in the separate Appendix to this

Petition, at pages 3-56 ("App.

pp. 3-56") .2/ The November 2, 1984

order of the Court of Appeals denying

3/On November 2, 1984, the

Seventh Circuit Court of Appeals

entered an order denying the

plaintiffs-petitioners' Petition For

Rehearing In Banc, and amending the

opinion that it had entered on

September 20, 1984. (As noted above,

a copy of that order is reprinted at

App. pp. 151-152.) Therefore, the

opinion reported at Soto v. Dickey,

744 F.2d 1260 (7th Cir. 1984) contains

amendments to the original opinion

entered by the Court on September 20,

1984. The opinion of the Seventh

Circuit Court of Appeals, as it was

entered on September 20, 1984, is

reprinted at App. pp. 3-56.

-13-

the plaintiffs-petitioners' Petition

For Rehearing With Suggestion For

Rehearing In Banc, was not reported

and is reprinted herein at App.

pp. 151-152. The June 29, 1983

opinion of the United States District

Court for the Eastern District of

Wisconsin is reported at Soto v. Cady,

566 F.Supp. 773 (E.D. Wis. 1983)

(findings of fact, conclusions of

law), and is reprinted herein at App.

pp. 57-116. The District Court's

February 22, 1982 decision denying the

plaintiffs-petitioners' motion for

preliminary injunction and summary

judgment was not reported, and is

reprinted herein at App. pp. 119-148.

JURISDICTION

The judgment of the Court of

Appeals was entered on September 20,

-14-

1984. The plaintiffs-petitioners'

Petition For Rehearing With Suggestion

For Rehearing In Banc was denied by

the Court of Appeals on November 2,

1984. The jurisdiction of this Court

is invoked pursuant to 28 U.S.C.

§1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves the Eighth

Amendment to the Constitution of the

United States, which provides as

follows:

Excessive bail shall not

be required, nor

excessive fines imposed,

nor cruel and unusual

punishments inflicted.

This case also involves the first

section of the Fourteenth Amendment to

the United States Constitution, which

provides as follows:

-15-

All persons born or

naturalized in the

United States, and

subject to the

jurisdiction thereof,

are citizens of the

United States and the

State wherein they

reside. No state shall

make or enforce any law

which shall abridge the

privileges or immunities

of citizens of the

United States; nor shall

any State deprive any

person of life, liberty

Or property, without due

process of law; nor deny

to any person within its

jurisdiction the equal

protection of the laws.

In addition, this case involves

the following regulations of the

Division of Corrections, Department of

Health and Social Services, State of

Wisconsin, the pertinent portions of

which are set forth in the attached

Appendix: 4 Wis. Admin. Code HSS

306.01 (App. p. 153); 4 Wis. Admin.

Code HSS 306.03 (App. p. 153); 4 Wis.

Admin. Code HSS 306.06 (App. pp.

154-157); 4 Wis. Admin. Code HSS

@16-<

306.06(1) (a) (App. p. 154); 4 Wis.

Admin. Code HSS 306.06(2) (App. p.

155); 4 Wis. Admin. Code HSS 306.08

(App. pp. 157-159).

STATEMENT OF THE CASE

This is a civil rights action

brought by the named plaintiffs,

Carlos S. Seto and Robert DeMallory,

on behalf of themselves and all past,

present, and future residents of the

Adjustment Center at the Waupun

Correctional Institution, State of

Wisconsin. The plaintiffs-

petitioners, seeking injunctive and

declaratory relief, maintain that the

defendants-respondents violated their

constitutional rights under the Eighth

and Fourteenth Amendments to the

United States Constitution and under

state law through the improper use of

o)7-

mace and other chemical agents in the

Adjustment Center.

The plaintiffs-petitioners,

proceeding pro se, filed their

Complaint on February 20, 1980,

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

§1331 and 28 U.S.C. §1343(3). Their

motion to proceed in forma pauperis

was granted by the District Court on

February 21, 1980. On June ll, 1980,

the class plaintiffs filed a motion

seeking assistance of counsel. The

District Court granted the plaintiffs'

motion and requested the undersigned

to act as counsel on July 7, 1980.

The Adjustment Center and Chemical

Agents

The Waupun Correctional

Institution is a maximum security

prison in the State of Wisconsin, with

an approved designated capacity of 810

-18-

inmates. At the time of the trial,

the Institution had a population of

approximately 1,154 inmates. (See The

District Court's fifth Finding of

Fact, Soto v. Cady, 566 F.Supp. 773,

780 (E.D. Wis. 1983), reprinted at

App. p. 89.) ("Finding 5; 566 F.Supp.

at 780; App. p. 89.") The Adjustment

Center, the major segregation center

within the institution, is a concrete

and steel building containing 67

cells. Three of the sides of each

cell are solid concrete. The fourth

Side consists of a metal barred door.

Fifteen of the cells have a wooden

outer door in addition to the metal

barred doors and are commonly referred

to as double door or wooden door

cells. Inmates are sent to the

Adjustment Center from the general

population for disciplinary purposes

and punishment resulting from

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ee a SS eee eC LUC OmUmc

violations of prison rules. The

reasons an inmate may be sent to the

Adjustment Center range from

possession of contraband, theft,

refusing to go to work, up to fighting

with prisoners or staff. (Findings 6,

7, 9; 5€6 F.Supp. at 780; App. pp.

90-91.)

Two chemical agents,

Chloroacetenophenone (CN) and

Chlorobenzylmalononitrite (CS), are

used in the Adjustment Center. CN and

CS are intended to have the immediate

effect of disabling and incapacitating

persons on whom they are discharged by

Causing pain and an intense and

pervasive burning and tearing action.

(Findings 12, 17; 566 F.Supp. at 781;

App. pp. 92, 94.) The application and

use of CN and CS may result in serious

and permanent physical injury,

especially to the eyes and skin, in

=20-

the absence of immediate and competent

medical attention. The possibility of

Serious injury as a result of the use

of chemical agents is greater when

chemical agents are used in enclosed,

poorly-ventilated areas such as a

Prison cell. (Findings 18, 27; 566

F.Supp. at 781, App. pp. 94, 96.)

Mace is a brand name used by one of

the manufacturers of the CN which is

available in the Adjustment Center.

Guidelines Regarding the Use of Mace

in the Adjustment Center

The State of Wisconsin has

established guidelines regarding the

use of chemical agents in the

Adjustment Center. The first document

issued by the Department of Health and

Social Services, Division of

Corrections on the use of chemical

agents was placed into effect on

January 15, 1978 and stated that:

a2}«

Chemical agents for

purposes of security and

control shall be used

only in extraordinary

circumstances when a

Situation arises in

which physical force

would be otherwise

necessary and

unavoidable to protect

residents or staff from

great bodily harm.

(Emphasis added.)

(Finding 28; 566 F.Supp. at 781; App.

pp. 96-97.)

The Wisconsin Administrative Code

provides even more specific guidelines

regarding the use of chemical agents

by Wisconsin prison officials. 4 Wis.

Admin. Code HSS 306.06 ("HSS 306.06")

strictly limits the use of "force"

against inmates, and HSS 306.06(1) (a)

specifically includes the use of

chemical agents within its definition

of force. App. pp. 154-157. However,

in addition to the restrictions

contained in HSS 306.06, HSS 306.08

provides additional limitations

-22-

regarding the use of chemical agents.

As of the date of the trial in this

action, HSS 306.08 provided that

chemical agents could be used in two

and only two situations: (1) to subdue

an inmate who posed an immediate

threat of injury or death to another,

and (2) to regain control of an

institution or part of an

institution. App. pp. 157-159. The

regulations also provided that the use

of chemical agents “shall be

authorized only by the

Superintendent". App. pp. 158-159.4/

On occasions when chemical agents

are used in the Adjustment Center,

4/on June 8, 1984, the Wisconsin

Department of Corrections proposed an

Amendment to HSS 306.08 which would

provide more detailed restrictions

regarding the use of chemical agents

against inmates. HSS 306.08, as

amended effective November 1, 1984, is

reprinted at App. pp. 160-167.

=23-

"Macing Incident Reports” are written

by correctional officers and are

intended to contain most of the

relevant information regarding the use

of chemical agents on a particular

eccasion. (Finding 23; 566 F.Supp. at

781; App. p. 95.)

The Use of Chemical Agents in the

Adjustment Center

The Macing Incident Reports

indicate that approximately 130

"macing incidents" occurred in the

Adjustment Center from January l, 1981

to November 4, 1982. Nearly all of

these macing incidents involved

Situations where inmates were maced or

suffered the effects of mace while

they were locked in their cells or in

a strip cage. (Findings 21, 22; 566

F.Supp. at 781; App. p. 95.)

Moreover, the reports demonstrate that

-24-

many of the incidents involved the use

of mace on inmates who were handcuffed

or otherwise restrained in addition to

being locked in their cells.

Specifically, the incident reports

indicate that chemical agents have

been used in the Adjustment Center in

the following situations: (1) to

create and preserve an atmosphere of

discipline (Finding 38; 566 F.Supp. at

782; App. p. 100); (2) to gain

complia:ce with non-emergency orders

when the inmates against whom the

agents are used are locked in their

cells, handcuffed, or otherwise

restrained (Finding 39; 566 F.Supp. at

782; App. p. 100); (3) to seek

compliance with an order to stop

yelling obscenities (Finding 40; 566

F.Supp. at 782; App. p. 100); (4)

against inmates who refuse orders to

take medication (Finding 41; 566

-25-

F.Supp. at 782; App. p. 100) (the

incident reports relevant to this

finding were presented at trial as

Exhibits 115, 116, 121, 123, 125, 126)

{Ex. 115, 116, 121, 123, 125, 126));

(5) against an inmate who threw liquid

from a cell, where the inmate was

otherwise passive, non-violent,

without any weapons, and not issuing

any threats of any kind (Findings 42,

47, 48; 566 F.Supp. at 782, App.

pp. 100, 102, 103) (Ex. 57); (6)

against an inmate who, while otherwise

passive and locked in his cell,

refused to remove a book from the

outer wooden door of an adjustment

cell (Findings 43, 51; 566 F.Supp. at

782, 783; App. pp. 101, 103, 104) (Ex.

55A); (7) against an inmate who, while

otherwise passive and locked in his

cell, refused to return his plastic

meal tray (Findings 44, 45; 566

F.Supp. at 782; App. pp. 101, 102)

(Ex. 63, 125); and (8) against an

inmate who was locked, naked, ina

small strip cage, because the inmate

had refused to spread his buttocks for

a search. (Finding 52; 566 F.Supp. at

783; App. p. 104) (Ex. 124).

The experiences of two of the

plaintiffs-petitioners illustrate the

circumstances in which chemical agents

have been used in the Adjustment

Center. Inmate Robert Mallory was

Girectly maced, in the eyes, on

February 4, 1981, while he was passive

and locked in his cell, for refusing

to return his plastic meal tray.

Instead of returning the tray, he

placed it on his bed, went to the back

of the cell and sat on the toilet or

sink. He was not violent, made no

o2Fa

LONE BIOL ALAR EF SOA INT OO COREE RE TEN

threats against any of the guards, had

no weapons and was not barricaded in

his cell. On February 5, 1981,

Mallory followed the same pattern of

conduct, as on February 4, 1981.

However, instead of macing Mallory on

that date, several guards entered his

cell dressed in Emergency Response

Unit equipment and retrieved the tray

from the cell. (Findings 44, 45; 566

F.Supp. at 782; App. pp. 101, 102)

(Ex. 63).

Inmate Laron McKinley was maced on

November 24, 1980, while he was

passive and locked in one of the

double-doored adjustment sells. On

that date McKinley was maced for

refusing to remove a book from the

outer wooden door of the cell. The

inner metal barred door was locked at

all times. Inmate McKinley did not

issue any threats against any

=29-

correctional officers, did not posses

any weapons in his cell, and was not

barricaded in his cell. (Finding 51;

566 F.Supp. at 783; App. pp. 103-104)

(Ex. 55A, App. pp. 138-139).

The Rulings Below

Trial to the District Court was

held on November 16-19, 1982. In

order to insure the manageability of

the trial, the District Court

Suggested and counsel agreed to limit

the number of fact witnesses

testifying about the 130 macing

incidents. The first day of trial

took place at the Waupun Correctional

Institution. Testimony of five

individual plaintiffs was taken inside

the prison and the Court viewed the

Adjustment Center. The remainder of

the trial took place at the federal

courthouse in Milwaukee, Wisconsin.

-29-

On June 29, 1983, the District

Court issued its decision, order and

judgment. The District Court ruled

that the defendants-respondents, and

their subordinates and agents, had

violated the plaintiffs-petitioners'

rights under the Fourteenth Amendment

to the Constitution by using chemical

agents in violation of the Wisconsin

Administrative regulations. Soto v.

Cady, 566 F.Supp. 773, 784 (E.D. Wis.

1983) (App. p. 108). In addition, the

District Court held that the

defendants-respondents had violated

the plaintiffs-petitioners' rights

under the Eighth Amendment to the

Constitution. Soto v. Cady, 566

F.Supp. 773, 784-785 (E.D. Wis. 1983)

(App. p. 107). The District Court

entered a permanent injunction

restricting the circumstances under

-30-

which chemical agents could be used in

the Adjustment Center.2/

The decision of the District Court

was reversed by a panel of the Seventh

Circuit Court of Appeals in an order

entered on September 20, 1984. Soto

v. Dickey, 744 F.2d 1260 (7th Cir.

1984) (App. pp. 3-56).

5/In a related damage action

brought by Carlos S. Soto, one of the

named plaintiffs in the class action,

the District Court found that the

defendants had violated plaintiff

Soto's rights, but held that a “good

faith immunity" defense was available

to the defendants and declined to

award damages to Soto. (App. p. 87).

The undersigned did not act as counsel

in the damage action, and the damage

action is not specifically included

within this Petition.

-3l-

REASONS FOR GRANTING THE WRIT

I. The Court of Appeals Mistakenly

Assumed That The Standards

Establishing A Violation Of The

Eighth Amendment Are The Same As

The Standards Establishing A

Violation Of The Fourteenth

Amendment And Consequently Ignored

The Conclusion Of The District

Court That The Actions Of The

Defendants-Respondents Violated

The Plaintiffs-Petitioners’ Rights

Under The Fourteenth Amendment.

The only portion of the opinion of

the Court of Appeals which discusses

the District Court conclusion that the

defendants-respondents violated the

plaintiffs-petitioners' rights under

the Fourteenth Amendment is the last

sentence in the last paragraph before

the panel reaches its decision to

reverse and remand this case. Soto v.

Dickey, 744 F.2d at 1271; App. p. 55.

The determination of whether or not

the use of mace against prisoners

locked in their cells, where there is

no immediate threat of bodily injury

—- °- =

or death, violates the Eighth

Amendment does not resolve the

question whether or not the same

actions violate the Fourteenth

Amendment.

Prisoners retain certain rights

under the Fourteenth Amendment and

"may not be deprived of life, liberty

or property without due process of

law." Hewitt v. Helms, 459 U.S. 460,

103 S.Ct. 864, 869, 74 L.Ed.2d 675,

685 (1983), on remand, 712 F.2d 48 (3d

Cir. 1983); Wolff v. McDonnell, 418

U.S. 539, 556, 94 S.Ct. 2963, 2974, 41

L.Ed.2d 935, 951 (1974). A due

process right in the prison context

may arise from the Constitution or

some entitlement of the state such as

statute, custom, policies, practices,

rules or regulations. Hewitt v.

Helms, 459 U.S. 460, 103 S.Ct. 864,

869, 74 L.Ed.2d 675 685 (1983);

-33-

Meachum v. Fano, 427 U.S. 215, 96

S.Ct. 2532, 49 L.Ed.2d 451 (1976),

reh. denied, 429 U.S. 873, 97 S.Ct.

191, 50 L.Ed.2d 155 (1976). This

concept was articulated by the Seventh

Circuit Court of Appeals in Stringer

v. Rowe, 616 F.2d 993 (7th Cir. 1980):

In Meachum v. Fano,

Supra, 427 U.S. at 229,

96 S.Ct. at 2540, the

Supreme Court held that

the state could create a

liberty interest "by

Statute, by rule or

regulation.” This court

has recognized that a

prisoner may have due

process rights as a

result of entitlements

created by prison

regulations and by

official policies or

practices. Arsberry v.

Sielaff, supra, 586 F.2d

at 47; Durso v. Rowe,

579 F.2d 1365, 1369 (7th

Cir. 1978), cert.

denied, 439 U.S. 1121,

99 S.Ct. 1033, 59

L.Ed.2d 82 (1979). 616

F.2d at 996.

A liberty interest is a substantive

interest of an individual. Shango v.

-34-

Jurich, 681 F.2d 1091, 1100-1101 (7th

Cir. 1982).

Liberty interests may originate in

the due process clause itself.

Johnson By Johnson v. Brelje, 701 F.2d

1201, 1205 (7th Cir. 1983). The

liberty interest contained in the due

process clause protects persons from

Summary punishment and unprovoked

attacks. Freeman v. Franzen, 695 F.2d

485, 491 (7th Cir. 1982), cert.

denied, Branche v. Freeman,

1400 (1983); Johnson v. Glick, 481

U.S. » 103 S.Ct. 3553, 77 L.Ed. 2d

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

denied, Employee-Officer John v.

Johnson, 414 U.S. 1033, 94 S.Ct. 462,

38 L.Ed.2d 324 (1973); Battle v.

Anderson, 376 F.Supp. 402, 433-434

(Battle I) (E.D. Okl. 1974), 447

F.Supp. 516 (Battle II) (E.D. Okl.

1977), aff'd, 564 F.2d 388 (10th Cir.

o35-

1977), evidentiary hearing, 457

F.Supp. 719 (E.D. Okl. 1978), remanded

on other grounds, 594 F.2d 786 (10th

Cir. 1979); Vargas v. Correa, 416

F.Supp. 266, 269 (S.D.N.Y. 1976);

Matthews v. Hughes, #CV-78-PT-5098-NE

(N.D. Ala. 1980).

The manner in which a liberty

interest is created by the state was

defined by this Court in Olim v.

‘Wakinekona, 461 U.S. 238, 103 S.Ct.

1741, 75 L.Ed.2d 813 (1983). There

the Court stated:

These cases demonstrate

that a State creates a

protected liberty

interest by placing

substantive limitations

on official discretion.

An inmate must show

"that particularized

standards or criteria

guide the State's

decisionmakers."

Connecticut Board of

Pardons v. Dumschat, 452

U.S. 458, 467, 101 S.Ct.

2460, 2465, 69 L.Ed.2d

158 (1981) (BRENNAN, J.,

concurring). If the

decisionmaker is not

-36-

"required to base its

decisions on objective

and defined criteria,"

but instead "can deny

the requested relief for

any constitutionally

permissible reason or

for no reason at all,"

ibid., the State has not

created a

constitutionally

protected liberty

interest. See id., at

466-467, 101 $.Ct., at

2465 (opinion of the

Court); see also Vitek

v. Jones, 445 U.S. at

488-491, 100 S.Ct., at

1261-62 (summarizing

cases). 103 S.Ct. at

1747, 75 L.Ed.2d at 823.

Accord, Shango v. Jurich, supra. The

existence of a liberty interest is

determined by the nature of the

interest rather than its source. See

Shango v. Jurich, 681 F.2d at 1099.

The District Court was correct in

concluding that the defendants

violated the Fourteenth Amendment by

using chemical agents in violation of

the Wisconsin Administrative

Regulations, HSS 306.08. (Soto v.

o3Fq

wet sea see oh

1 Geaany afeleecenys

,eot 18 CRBS bf rua

ape ei6i9-eAs : ned

4 beg

sLigage,. % bt

P'39044 .¥ Tiame- 5

, & is oo (--"* O37)

fet-ipbh

Cady, 566 F.Supp. at 784; App.

p. 77.) It found that the State of

Wisconsin had placed substantial

limitations on the discretion of

prison officials in the use of

chemical agents and that the

plaintiffs had a liberty interest in

not being subjected to the use of

chemical agents except as set forth in

the regulations. (Soto v. Cady, 566

F.Supp. at 784; App. p. 77.) The

limitations placed on the discretion

of prison officials in the use of

chemical agents are obvious. The

administrative regulations of the

Division of Corrections forbid the use

of excessive force, 4 Wis. Adm. Code

HSS 306.06(1) (a), and the corporal

punishment of inmates, 4 Wis. Adm.

Code HSS 306.06(2). (App. pp.

154-155.) HSS 306.08 permitted the

use of chemical agents in only two

-38-

circumstances: (1) to subdue an

inmate or inmates who posed an

immediate threat of bodily injury or

death to another or (2) to regain

control of an institution or part of

an institution. (App. p. 158.) The

defendants and their subordinates were

simply and completely prohibited from

using mace under any other

circumstances. These prohibitions

created a reasonable expectation that

chemical agents would not be used

against the plaintiffs in the absence

of these circumstances. See e.g.,

Arsberry v. Sielaff, 586 F.2d 37,

45-46 (7th Cir. 1978).

The District Court found that the

defendants used chemical agents

against the plaintiffs in violation of

the regulations. (Soto v. Cady, 566

F.Supp. at 778-780, 784; App. p.

76-84.) This finding was clearly

-39-

supported by testimony of the

plaintiffs and the incident reports,

which demonstrate that mace and other

chemical agents have repeatedly been

used against the

plaintiffs-petitioners in situations

where there was no imminent or actual

threat of violence or bodily injury or

where control over a portion of the

institution was lost.

Accordingly, The decision of the

District Court concluding that

defendants violated plaintiffs' rights

under the Fourteenth Amendment should

have been affirmed.

II. The Court of Appeals Substituted

Its Opinion Of The Evidence For

That Of The District Court In

Direct Contravention Of Proper

Appellate Practice, Fed. R. Civ.

P. 52(a), And Put imag Stengare

v. Swint, 456 U.

S.Ct. 1781, 72 L.Ed. 66 (1982).

The primary thrusts of the opinion

of the Court of Appeals are its views

-40-

that the District Court failed to give

proper deference to the correctional

officials (Soto v. Dickey, 744 F.2d at

1267-69; App. pp. 33-48) and that the

findings of fact of the District Court

were clearly erroneous, especially

concerning the defendants' motives for

the macings. (Soto v. Dickey, 744

F.2d at 1264-65; App. pp. 18-27.) In

reaching its decision the panel failed

to properly apply the standards of

review which govern its conduct and

instead attempted to impose its views

as though it was hearing this case de

novo.

It is well settled that injunctive

relief granted by a district court

will not be disturbed absent a showing

that the district court abused its

discretion. Doran v. Salem Inn, Inc.,

422 U.S. 922, 931-32, 95 S.Ct. 2561,

2567-68, 45 L.Ed.2d 648 (1975);

-4l-

Federal Savings and Loan Ins. Corp. v.

PSL Realty Co., 630 F.2d 515, 520 (7th

Cir. 1980), cert. denied Granite

Invest. Co. v. Federal Savings and

Loan Ins. Corp., 452 U.S. 961, 101

S.Ct. 3109, 69 L.Ed.2d 971 (1981);

Beneficial Finance Of Wisconsin v.

Wirtz, 346 F.2d 340, 344 (7th Cir.

1965). Furthermore, the detailed

findings of facts issued by a district

court should not be set aside unless

they are found to be clearly

erroneous. Pullman-Standard v. Swint,

456 U.S. 273, 102 S.Ct. 1781, 72

L.Ed.2d 66 (1982); Fed. R. Civ. P.

52(a). AS recognized by the Seventh

Circuit Court of Appeals in Clark v.

Ziedonis, 513 F.2d 79, 83 (7th Cir.

1975), the district court, as the

trier of fact, is often "called upon

to make difficult factual

Geterminations™ which must be accorded

o42-

o") ee + afe Fee

"a. “2 230 yee “ ;

' i

ri eT ae

lk Bt ad acer a

Oo io; 86 ‘4 Be

; os co-b tebe) ws ne

7. oa3f 3e = "arn, tipenpade

_—

“great deference" because the trial

judge is in a position to observe all

of the facts and circumstances

Surrounding the case, including the

demeanor of the witnesses.

The District Court's decision,

findings of fact, conclusions of law,

injunctive order and judgments were

issued after it heard trial testimony

by individual prisoners, guards,

prison officials and correctional and

medical experts over a four day

period, viewed the adjustment center,

reviewed the Macing Incident Reports

and other trial exhibits, studied the

applicable administrative regulations,

and examined the relevant legal issues

and constitutional standards. The

decision and injunctive order are

replete with specific findings of fact

and conclusions of law and contain a

thorough discussion of the applicable

legal principles.

-43-

The District Court was keenly

aware of the need for deference to

correctional officials in the

administration of a prison system.

However, the defendants" own absolute

refusal to alter their policies and

practices forced the District Court to

enter the injunction to protect the

plaintiffs-respondents' constitutional

rights. The District Court's

sensitivity to the requirements of

federal-state comity is displayed in

both its February 22, 1982 decision

denying the plaintiffs‘ motion for

summary judgment and preliminary

injunction and in its decision and

order dated June 29, 1983 granting

permanent injunctive relief. In the

summary judgment decision, the

District Court stated:

-44-

enya

Henan

vee.

- « « Federal courts

have followed a strong,

well-established policy

of avoiding unnecessary

interference with

internal prison

administration. For

that reason and because

the state administrative

regulations exhibit a

sensitivity to

constitutional

requirements, I will not

preliminarily enjoin

defendants, but will

admonish them to look

more closely at their

regulations and the case

law discussed

below . .. . (App. pp.

128-129.)

- « « A prison cannot be

run by stubborn, defiant

inmates, but rather it

must be run by state

officials lawfully

entrusted with the

responsibility for

administering a

reasonably safe and

orderly institution.

Because of the serious

and difficult tasks

faced by defendants to

this action, I am

convinced that the

public interest is

served by allowing them

time to reevaluate their

interpretation of the

regulations before being

faced with a federal

court order.

-45-

App. p. 146. In the decision and

order granting permanent injunctive

relief to the plaintiffs, the District

Court stated:

So far as I can tell,

the decision of

February 22, 1982, has

had no effect on

Gefendants' views.

Consequently, I must set

aside my reluctance to

become involved in the

administration of the

prison and my hope that

the defendants would

recognize that

regardless of their

personal views, the law,

while not entirely

clear, requires curbs on

the use of chemical

agents. The point has

come to be certain that

the constitutional

rights of the inmates

are not being violated.

Soto v. Cady, 566 F.Supp. at 776; App.

p. 66. It is clear that the District

Court gave the defendants-

respondents the deference they

deserved.

-46-

Every finding of fact issued by

the District Court was supported by

the evidence after a review and

evaluation of all the evidence. In

many instances, the District Court's

findings were supported by the

testimony of the defendants and their

subordinates. In fact, the most

persuasive proof that the

defendants-respondents violated

constitutional and regulatory

requirements is found in the Macing

Incident Reports prepared by one or

more of the correctional officers

involved in the macing incidents. As

noted above, these reports are

intended to contain all relevant

information regarding the use of

chemical agents. In Bracey v,.

Herringa, 40. F.2d 702, 704-705 (7th

Cir. 1972), which involved defendant

Heeringa while he was a captain, the

247<

Seventh Circuit Court of Appeals

expressly recognized the suspect

nature of such reports. Yet, despite

the biased and self-serving nature of

these reports, particularly those

which were written after the inception

of this lawsuit, they clearly ; ‘nport

the plaintiffs-petitioners' claims.

(See Ex. 1-128A.)

Despite the District Court's

acknowledgement of the defendants'

testimony and its citations to and

reliance upon the Macing Incident

Reports, the Court of Appeals accused

the District Court of ignoring the

testimony of the defendants. Such an

accusation is obviously unfounded in

the instant case. On the contrary, as

noted above, a great deal of the

defendants' testimony supported the

findings of the District Court. Yet

-48-

what is most disturbing is that after

making the accusation against the

District Court, the Court of Appeals

accepted every self-serving statement

made by the defendants as gospel

without consideration of the duty to

evaluate the credibility of the

defendants as well as the duty to

evaluate all of the testimony,

including that of the plaintiff

prisoners.

According to the Federal Rules of

Civil Procedure and good appellate

practice credibility determinations

and questions of fact are to be made

by the trier of fact, the District

Court.9/ A panel of the Appellate

6/tThis Court has recently

indicated that it will, in the near

future, address the extent to which an

appellate court may properly review

the district court's finding of fact.

Anderson v. City of Bessmer, 717 F.2d

149 (4th Cir. 1984), cert. granted, 52

U.S.L.W. 3906 (June 18, 1984).

-49-

Court does not hear these matters de

novo. Considered under the

appropriate standards of appellate

review, the decision of the District

Court should have been affirmed.

III. The Supreme Court Should

Determine Whether The Use of

Mace And/Or Other Chemical

Agents On Prison Inmates, When

They Are Locked In Cells,

Handcuffed Or Otherwise

Restrained, And Do Not Pose An

Immediate Threat Of Bodily

Injury Or Death, Violates The

Inmates’ Rights Under The Eighth

And/Or Fourteenth Amendments To

The United States Constitution.

The use of mace and other chemical

agents on prisoners who are confined

to cells, handcuffed, or otherwise

restrained, particularly when those

inmates do not pose an immediate

threat of bodily injury or death,

presents significant constitutional

issues that merit the attention of

this Court.

-50-

Prisoners retain certain

constitutional rights upon their

incarceration including the right to

be free from cruel and unusual

punishment in violation of the Eighth

Amendment. Estelle v. Gamble, 429

U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251

(1976), reh. denied, 429 U.S. 1066, 97

S.Ct. 798, 50 L.Ed.2d 785, (1977) on

remand, 554 F.2d 653 (Sth Cir. 1977),

reh. denied, 559 F.2d 1217 (5th Cir.

1977), cert. denied, 434 U.S. 974, 98

S.Ct. 530, 54 L.Ed.2d 465 (1977);

Inmates of Attica Correctional

Facility v. Rockefeller, 453 F.2d 12,

23 (2d Cir. 1971). As stated by the

Ninth Circuit Court of Appeals in

Spain v. Procunier, 600 F.2d 189,

193-194 (9th Cir. 1979):

Whatever rights one may

lose at the prison

gates, ... the full

protections of the

eighth amendment most

certainly remain in

-51- .

force. The whole point

of the amendment is to

protect persons

convicted of crimes.

Eighth amendment

protections are not

forfeited by one's prior

acts. Mechanical

deference to the

findings of state prison

officials in the context

of the eighth amendment

would reduce that

provision to a nullity

in precisely the context

where it is most

necessary. The ultimate

duty of the federal

court to order that

conditions of state

confinement be altered

where necessary to

eliminate cruel and

unusual punishments is

well established.

(Citations omitted).

In Estelle v. Gamble, supra, this

Court evaluated the protections of the

Eighth Amendment in the prison context

as follows:

The Amendment embodies

"broad and idealistic

concepts of dignity,

civilized standards,

humanity, and

Gecency . . .," Jackson

v. Bishop, 404 F.2d 571,

579 (C.A. 8 1968),

against which we must

-52-

evaluate penal

measures. Thus, we have

held repugnant to the

Eighth Amendment

punishments which are

incompatible with “the

evolving standards of

decency that mark the

progress of a maturing

society." Trop v.

Dulles, supra, at i0l,

78 S.Ct. ~ 98; see

also Gre Georgia,

Supra, at Tie 173, 96

S.Ct. at 2925 (joint

opinion); Weems v.

United States, supra,

217 U.S. at 378, 30

S.Ct. at 553, or which

"involve the unnecessary

and wanton infliction of

pain,” Gre v. Georgia,

Supra, at » 96 §.Ct.

at 2925 (joint opinion) ;