# Petition for Writ of Certiorari — Soto v. Dickey

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1985
- **Citation:** 470 U.S. 1085

## Text

. » ceietne Gk, BE te
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

Vo

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

1/

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

Je

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

51

35

33

56

36

56

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

36

33,

54

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-

18
18

18

Page

16

16

16

16,
17,

17,

40,

38

38

38

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

ee

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

-19-

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-

c

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) ;
see also Louisiana ex
rel. Francis v.
Resweber, 329 U.S. 459,
+ §.Ct. 374, 376,
91 L.Ed. 422 (1947);
Wilkerson v. Ucah,
supra, $99 U.S. at 136.

429 U.S. at 102-103, 97 S.Ct. at 290,
50 L.Ed.2d at 259.

In addition to constitutional
rights under the Eighth Amendment,
prisoners retain certain rights under

the Fourteenth Amendment and “may not

-53-

be deprived of life, liberty or
property without due process of law.”

Hewitt v. Helms, supra; 48 (3d Cir.

1983); Wolff v. McDonnell, supra.

Furthermore, as noted above, 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, supra; Meachum v. Fano, supra.

In the instant case, the
plaintiffs-petitioners maintain that
their rights under the Eighth and
Fourteenth Amendments have been
violated through the indiscriminate
use of mace and chemical agents by the

defendants-respondents without just

7/a brief discussion of the
applicable regulations giving rise to
the plaintiffs-petitioners' claims
under the Fourteenth Amendment can be
found supra at pp. 33-40.

-54-

cause or provocation. The use of mace

is neither a new nor a rare event in
prison systems, and several circuit
courts have at least peripherally
addressed the constitutional
implications of such conduct. For
example, it has been held that the use
of mace and chemical agents on
prisoners does not constitute cruel
and unusual punishment when it is
reasonably necessary to prevent riots
Or excape or to subdue recalcitrant

prisoners. See e.g. Poin exter v.

Woodson, 510 F.2d 464, 466 (10th Cir.

1975), cert. denied, 423 U.S. 846, 96

S.Ct. 85, 46 L.Ed.2d 68 (1975);

Clemmons v. Greggs, 509 F.2d 1338,

1340 (5th Cir. 1975), cert. denied,

423 U.S. 946, 96 S.Ct. 360, 46 L.Ed.2d
280 (1975); Bailey v Turner, 736 F.2d

963 (4th Cir. 1984). Nonetheless,

several courts have held that the use

-55-

of mace and chemical agents in

quantities greater than necessary and
for illegitimate purposes, such as the
infliction of pain or punishment, is
violative of the Eighth Amendment.

Stringer v. Rowe, 616 F.2d 993, 999

(7th Cir. 1980); Spain v. Procunier

Supra; Greear v. Loving, 538 F.2d 578,

579-580 (4th Cir. 1976); Morris v.

Travisono, 528 F.2d 856, 858-859 (lst

Cir. 1976); Patterson v. MacDougall,

506 F.2d 1, 3-5 (5th Cir. 1975);

McCargo v. Mister, 462 F.Supp. 813,

818-819 (D. Md. 1978); Battle v.

Anderson, supra; Landman v. Royster,

333 F.Supp. 621 (E.D. Va. 1971).

The widespread nature of the
litigation in this area, which is
reflected in the cases cited above, is
not surprising given the obvious
importance which is attached to any

alleged violation of an individual's

-56-

constitutional rights. However, the
Significance of the issues involved in
this field of litigation can only be
fully understood when one weighs the
medical consequences of spraying a
human being with mace or another
chemical agent, against the fact that
the victims of these sprayings had not
created an immediate threat of bodily
injury or death to another. The
District Court found that the
application and use of chemical agents
might result in serious and permanent
physical injury, especially to the
eyes and skin, in the absence of
immediate and competent medical
attention. (Finding 18; 566 F.Supp.
at 781; App. p. 94.) Although the
Court of Appeals apparently preferred
to deemphasize this aspect of the
trial (744 F.2d at 1262, App. pp.

10-11), the serious nedical

=$7J-

consequences of the use of mace and
other chemical agents were established
at trial by the defendants' own
admissions and the expert testimony of
Dr. Robert Hyndiuk. During his
adverse examination, defendant Gerald
Heeringa admitted that mace might
cause serious injury and even death,
that the effects of mace would be
greater in an enclosed area such as a
prison cell in the adjustment center
and that he knew of those risks and
dangers as a result of the
manufacturer's warnings and
instructions. Dr. Hyndiuk testified
that permanent, irreversible eye
damage due to corneal ulceration and
corneal scarring would result from the
improper or prolonged use of mace.

Dr. Hyndiuk further testified that in
order to avoid this permanent injury,

the eyes of inmates who suffered the

-58-

effects of mace should be rinsed
copiously with water or other proper
solution. If the effects continued,
the inmates should be given an
ophthalmic examination with at least
appropriate magnification instruments
to determine if further medical
attention is required to avoid
permanent damage. The serious medical
consequences of the use of mace and
other chemical agents against
prisoners also has been recognized by

other courts. See, e.g., Spain v.

Procunier, 600 F.2d at 194; Battle v.

Anderson, 376 F.Supp. at 423. These

consequences illustrate the need for
strict compliance with all applicable
regulations regarding the use of mace
on inmates. Moreover, these
consequences underscore the
Significance of the constitutional

issues raised by the use of mace on

inmates who are restrained and who
-59-

have not created an immediate threat
of death or bodily injury to another.

Despite the obvious significance
of the issues present in this area,
and the widespread and somewhat
conflicting decisions of the circuit
courts that have addressed these
issues, the plaintiffs-petitioners are
unaware of any case in which this
Court has addressed whether the use of
chemical agents on prisoners who are
locked in cells, handcuffed or
otherwise restrained, and who have not
threatened anyone with bodily injury
or death, violates their rights under
the Eighth and/or Fourteenth
Amendments to the United States
Constitution. The plaintiffs-
petitioners respectfully submit that
it is time for the Court to address

these important issues.

-60-

CONCLUSION

WHEREFORE, petitioners
respectfully pray that a Writ of
Certiorari issue from this Honorable

Court to review the judgment of the

Seventh Circuit Court of Appeals in
Soto v. Dickey.

Dated this 5H day of Februa:y,
1985.

“) ‘
A ~~

Peter J. Stone
Peter L. Gardon

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_2427%3A1. Public record. Not legal advice.