Appendix — Nosser v. Bradley

Supreme Court brief1972

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INDEX TO APPENDIX

A—Panel Opinion of United States Court of Appeals

for the Fifth Circuit, February 10, 1971

B—Opinion of the United States Court of

en banc, March 3, 1972

C—Statement of the Contested Issues of Fact (Rec-

ord, 1234-1237)

Appeals

MTP a a a ach aa Aiea ade PLONE RIE TE

APPENDIX “A”

Katie Ruth ANDERSON et al.,

Plaintiffs-Appellants,

Vv.

J. J. NOSSER et al., Defendants-Appellees.

James BRADLEY et al., Plaintiffs-Appellants,

Vv.

J. J. NOSSER et al., Defendants-Appellees.

No. 28971.

United States Court of Appeals,

Fifth Circuit.

Feb. 10, 1971.

Rehearing Granted and Rehearing En

Banc Granted May 27, 1971.

Action against various state and municipal officials by

racial protest demonstrators to recover, under federal Civil

Rights Act and Mississippi state law, for subjecting demon-

strators to cruel and unusual treatment, false imprison-

ment, and false arrest. The United States District Court

for the Northern District of Mississippi, William C. Keady,

Chief Judge, rendered judgment for defendants, and plain-

tiffs appealed. The Court of Appeals, Goldberg, Circuit

Judge, held that where racial protest demonstrators, who

were incarcerated only to assure presence at trial, with

male prisoners required to strip naked and remain in such

state of unattire for up to 32 hours, who were detained in

cells with inadequate hygienic facilities, absence of bedding,

and with female prisoners required to strip to their under-

garments and permitted to carry in no personal belongings

including medicine or sanitary napkins and who were given

quantity of laxatives, had been subjected to cruel and un-

usual punishment in violation of the Eighth Amendment.

The Court further held that plaintiffs failed to state cause

of action under Civil Rights Act for failure to bring them

before magistrate without unreasonable delay.

Reversed and remanded in part.

Bell, Circuit Judge, concurred specially and filed opin-

ion.

1. Civil Rights (Key) 13

Damage action against individuals acting under color

of state law for deprivation of federal constitutional rights

will lie under Civil Rights Act. 42 U.S.C.A. § 1983.

2. Courts (Key) 263

Doctrine of pendent jurisdiction permits a considera-

tion of related state claims along with substantial federal

claim.

3. Courts (Key) 263

Action under Civil Rights Act charging state and mu-

nicipal officials with subjecting arrestees to cruel and in-

human treatment during incarceration pending posting of

bond stated substantial federal question and, thus, state

counts, which were grounded on incarceration and treat-

q ment, would be considered by federal court under pendent

j jurisdiction since state and federal counts arose out of a

common nucleus of operative facts. 42 U.S.C.A. § 1983.

4. Civil Rights (Key) 13

Cruel and unusual punishment clause of the Eighth

Amendment is applicable to the state and, thus, violation

of its mandate may constitute a cause of action cognizable

—_

in federal courts under the Civil Rights Act. U.S.C.A.

Const. Amends. 8, 14; 42 U.S.C.A. § 1983.

5, Prisons (Key) 4

Federal courts entertain some reluctance to interfere

with a prison’s internal discipline; however, such chariness

does not mean that prison officials have unfettered discre-

tion in treatment of their prisoners.

6. Criminal Law (Key) 1213

Cruel and unusual punishment clause of Eighth Amend-

ment is a nonstatic, moral precept designed to curb treat-

ment which offends contemporary standards of decency.

U.S.C.A.Const. Amend. 8.

7, Criminal Law (Key) 1213

Cruel and unusual punishment clause of Eighth

Amendment prohibits certain hard core inhuman treat-

ment. U.S.C.A.Const. Amend. 8.

8 Civil Rights (Key) 13

Racial protest demonstrators, who were incarcerated

only to assure presence at trial, with male prisoners re-

quired to strip naked and remain in such state of unattire

for up to 32 hours, who were detained in cells with inade-

quate hygienic facilities, absence of bedding and with fe-

male prisoners required to strip to their undergarments

and permitted to carry in no personal belongings including

medicine or sanitary napkins and who were given quan-

tity of laxatives and who brought action against state

municipal officials under Civil Rights Act, had been sub-

jected to cruel and unusual punishment in violation of the

Eighth Amendment. 42 U.S.C.A. § 1983; U.S.C.A.Const.

Amend. 8.

9. Prisons (Key) 9 )

General common law duty of custodian of a prisoner

to take proper care of him is imposed on penitentiary su- »

perintendent under Mississippi law. Code Miss.1942, §

7930.

10. Criminal Law (Key) 1213

Civil rights protestors, who were detained in Missis-

sippi penitentiary merely for purpose of detaining them for

trial, with male prisoners forced to strip and remain naked

for periods up to 32 hours and who were incarcerated in

cells containing inadequate hygienic facilities, absence of

bedding and heat and who brought action against state and

municipal authorities, were subjected to inhuman treat-

ment in violation of Mississippi statute imposing general

common law duty of custodian of a prisoner to take proper

care of him. Code Miss.1942, § 7930.

11. Civil Rights (Key) 1

False imprisonment can be the type of “constitutional

tort” cognizable under federal Civil Rights Act. 42

U.S.C.A. § 1983. )

12. Civil Rights (Key) 13

Evidence supported verdict in favor of state and mu-

nicipal officials, who were sued for false arrest under fed-

eral Civil Rights Act and Mississippi state law and who}

4 defended on ground that parade ordinance under which the

i civil rights demonstrators were arrested had not been de- )

clared unconstitutional at time of arrest. 42 U.S.C.A. §

1983.

13. Civil Rights (Key) 13

Where city chief of police established that he believed

he was doing his duty as peace officer in arresting civil

i tna al ci eR OEE RON tas re Tl Le SSR AAG vale VE . A

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rights protestors for violating municipal parade ordinance,

officers’ immunity from liability for false arrest under fed-

eral Civil Rights Act and Mississippi law extended to his

subordinates who were simply following chief’s orders in

participating in arrest. 42 U.S.C.A. § 1983.

14. False Imprisonment (Key) 10

Unreasonable or unnecessary delay in bringing a pris-

oner before a magistrate, despite good faith, may give rise

to an action for false imprisonment.

15. Civil Rights (Key) 13

Constitutional Law (Key) 263

Racial protest demonstrators, who had been incarcer-

ated in Mississippi penitentiary solely for purpose of de-

taining them for trial and who had been subjected to cruel

and unusual punishment, had no claim under federal Civil

Rights Act for unreasonable and unnecessary delay in

bringing them before magistrate; even though failure to

take them before a magistrate violated Mississippi law, it

did not rise to status of denial of due process. 42 U.S.C.A.

§ 1983.

16. False Imprisonment (Key) 8

Under Mississippi law, delay in bringing a prisoner

before a magistrate may give rise to an action for false

imprisonment.

17. Criminal Law (Key) 224

Under Mississippi law, the theoretical availability of

a bonding procedure does not immunize the incarceration

of those arrested who either cannot make bond immediately

or who are not permitted to do so; the sterile opportunity

to make bond does not abate the right to a magistratical

confrontation.

’

18. False Imprisonment (Key) 8 ’

Where racial protest demonstrators, who were incar-

cerated in Mississippi penitentiary solely for purpose of )

holding them for trial, were incarcerated for a period in

excess of three days without being taken before magistrate

and it was not shown that magistrate was unavailable, not-

withstanding that arrests were made on weekend, arres-

tees’ state right to be taken before magistrate without un-

necessary delay was violated and, thus, arrestees were

entitled to recover from state and municipal officials for

false imprisonment.

19. Civil Rights (Key) 13 |

Claim that minors participating in racial protest dem-

onstrations were falsely imprisoned because of failure of

state municipal officials to follow procedures of Mississippi

Youth Correction Act and that demonstrators were falsely

imprisoned because their transfer to Mississippi peniten-

tiary by municipal authorities was in violation of state }

statute, did not rise to constitutional dimension so as to

give right of action under federal Civil Rights Act. 42

USCA. § 1983.

20. Civil Rights (Key) 13 .

Where city police chief and police officers played sub-

stantial roles in detaining civil rights demonstrators, deny-

ing them access to a magistrate, and transporting them to

Mississippi state penitentiary, where they were subjected

to cruel and inhuman treatment in maximum security

; ward, and fire chief assisted officers in detention and

| ordered firemen both to escort buses and to remain at pen-

itentiary for duration of incarceration and penitentiary’s

superintendent supervised and directed treatment and de-

tention, situation was akin to that of a chain of command,

vowel

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and thus, each official was liable jointly and severally

under Mississippi law and federal Civil Rights Act for

failure to bring arrestees before magistrate and for inflic-

tion of cruel and unusual punishment. 42 U.S.C.A. § 1983;

Code Miss.1942, § 7930; U.S.C.A.Const. Amend. 8.

21. Civil Rights (Key) 13

Where three of six aldermen directly or indirectly

participated in failure to bring civil rights protestors before

magistrate and in subjecting them to subhuman treatment

while incarcerated at Mississippi penitentiary, mayor of

city, sued along with other officials under Civil Rights Act

and state law, had no duty to act under penalty of dam-

ages, since he could not be required to do an act which

would have been useless or ineffective; similarly, commis-

sioner of highway safety patrol could not be found liable

in absence of showing that he participated in, had knowl-

edge of, or was negligent with regard to actions of highway

patrolman who assisted in detention and transportation of

demonstrators. 42 U.S.C.A. § 1983; Code Miss.1942, § 7930;

US.C.A.Const. Amend. 8.

22. False Imprisonment (Key) 10

Mississippi common law recognizes no immunity for

sheriffs, wardens, police officers, or firemen charged with

false imprisonment or tortious treatment of prisoners.

23. Civil Rights (Key) 13

False Imprisonment (Key) 7(3), 11

City police chief, arresting officers, fire chief and fire-

men, sued under federal Civil Rights Act for subjecting

civil rights demonstrators to cruel and unusual punishment

and under Mississippi state law for false imprisonment and

mistreatment of demonstrators at state penitentiary, were

not immune from liability for false imprisonment or torti- )

ous treatment of demonstrators. 42 U.S.C.A. § 1983; Code

Miss.1942, § 7930; U.S.C.A.Const. Amend. 8.

24. Federal Civil Procedure (Key) 1537

Dismissal of action under federal Civil Rights Act and j}

Mississippi state law for failure of racial protest demon- |

strators, who allegedly were subjected to cruel and un-

usual treatment and falsely imprisoned, to answer written

interrogatories was error in absence of finding of willful

disobedience, gross indifference or deliberate callousness

and in view of fact that counsel was unable to contact all

150 plaintiffs in time allowed, including extension period.

Fed.Rules Civ. Proc. rules 33, 37, 28 U.S.C.A.

Lawrence D. Ross, Jackson, Miss., Lawyers’ Commit-

tee for Civil Rights Under Law, Bernard Jolles, Franklin,

Bennett, Des Brisay & Jolles, Portland, Or., Robert L. Beer-

man, Morrison, Paul & Bailey, New York City, for plain-

tiffs-appellants.

A. F. Summer, Atty. Gen., William A. Allain, Asst.

Atty. Gen., Jackson, Miss., Edwin E. Benoist, Jr., Joseph

S. Zuccaro, Natchez, Miss., Charles A. Marx, Jackson, Miss.,

for defendants-appellees.

Before TUTTLE, BELL, and GOLDBERG, Circuit

Judges.

GOLDBERG, Circuit Judge:

Our locale is Natchez, Mississippi, where the mood in

the fall of A.D. 1965 was anything but irenic. Our story

concerns the arrest and subsequent detention of partici-

pants in racial protest demonstrations. According to the

undisputed facts those arrested were subjected to sub-

human treatment which beggars justification and taxes

eer a ee ate a pape ET

credulity. Finding ourselves unable to sustain the verdict

of the jury below, we reverse and render judgment as to

liability of the defendants and remand for the assessment

of damages due the plaintiffs.

While many peripheral matters in this case are hotly

contested, the central and basic facts are largely uncon-

tradicted. Relying solely on stipulations and undisputed

testimony, we summarize the sordid details.

On October 2, 3, and 4, 1965, plaintiffs and many others

paraded in Natchez to publicize their grievances, particu-

larly discrimination on account of race. At the time a

Natchez ordinance prohibited parades without the written

permission of the Chief of Police. Natchez, Miss. Parade

Ordinance of May 26, 1964, Ordinance Book F, at 395. The

ordinance was later found unconstitutional, but at that time

it had not been so declared.

Shortly after the march commenced on Saturday morn-

ing, October 2, defendant Robinson, Natchez Chief of

Police, and defendants Rickard, Cowart and Beach, Natchez

police officers, arrested approximately 1700' persons for

parading without a permit in violation of the Natchez ordi-

nance. Following the arrests, plaintiffs and others were

transported to the Natchez city auditorium. There defend-

ant Flowers, a Natchez police officer, defendant Cameron,

Natchez Fire Chief, and firemen acting pursuant to Cam-

eron’s directions assisted Chief Robinson and officers Rick-

ard, Cowart, and Beach in detaining plaintiffs. There is

1. There is some dispute as to the number of protesters who

were arrested. Plaintiffs contend that defendants’ own records

reveal that 520 arrests were made on Saturday, but defendants

respond that those records are incomplete in that a number

of children were released without being booked. For the purpose

of this appeal, we accept defendants’ figures as correct.

some evidence that many of those arrested, particularly

minors, were permitted either to post bond or to obtain

release on personal recognizance. The evidence, however,

also reveals that many of those arrested were either not

permitted to make bond or were unable to do so during the

time they were incarcerated in Natchez. Furthermore, no

effort was made to secure a magistrate, and as a result

none of the plaintiffs or other arrestees were brought be-

fore a judicial officer for examination. No youth court

order was obtained with respect to any of those arrested

who were minors.”

Late that Saturday night approximately 150 of those

held at the auditorium were transported by bus over 200

miles to the Mississippi State Penitentiary at Parchman.

‘Mississippi Highway Safety Patrolmen provided the escort.’

This initial group of prisoners arrived at the penitentiary

early Sunday morning, October 3, and were taken to its

maximum security unit upon order of defendant Breazeale,

the penitentiary superintendent. Thirty-nine cells had

been vacated in the unit, and, following the arrest and

transfer of additional protesters on Sunday and Monday,

more than 250 prisoners were ultimately housed there.

2. Subject to certain exceptions Mississippi law provides that

the youth court “shall have original jurisdiction in all proceedings

concerning any delinquent or neglected or battered child residing

or being in the county.” Miss. Code Ann. § 7185-03. And, “when-

ever any child thirteen years of age or older is brought before any

justice of the peace court or municipal court charged with the com-

mission of a misdemeanor under a state law or municipal ordi-

nance, such court shall, unless prosecution is permitted by order of

the youth court, transfer the case to the youth court of the county,

to be dealt with as a case of delinquency in accordance with the

provisions of this act. * * *” Id. § 7185-16.

3. While there may be some contradictions, we are bound

by the evidence which would support a finding that this transfer

was undertaken only after Chief Robinson ascertained that both

Natchez and surrounding jail facilities were incapable of accom-

modating the large number of protesters. The evidence also shows,

however, that no effort was made to continue processing those

arrested so that all those able to do so would at least be able to

post bond and obtain release.

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Prison personnel were directed by Breazeale to proc-

ess the Natchez protesters under the “standard” treatment

accorded prisoners in the maximum security unit. Though

there is some dispute as to exactly what this treatment en-

tailed, the undisputed evidence reveals the following.

On arrival all male prisoners were required to strip

naked and all women prisoners were ordered to remove

their shoes, stockings, sweaters, coats, jewelry, and wigs.

All were compelled to consume a laxative and were de-

prived of all personal belongings, including sanitary napkins

and medicines. The prisoners were then led to the cells.

Up to eight persons were placed in each cell, which con-

tained two steel bunks without mattresses or other bedding,

a toilet without a seat, and a washbasin. There were no

towels or soap and there was inadequate toilet paper. The

temperature ranged from 60 to 70 degrees, the chill being

aggravated by exhaust fans which blew intermittently on

the occupants. Some of the men eventually were per-

| mitted to get their underwear, but others were nude for

a period of 36 hours. Many were subjected to blood tests.

Moreover, while standing in the prison courtyard awaiting

processing several plaintiffs were kicked, pushed, cursed,

and abused by the highway patrolmen and other guards.

On Sunday morning, October 3, and Monday evening,

October 4, more protest marchers were arrested and de-

tained in Natchez. Nearly 100 were subsequently trans-

ported to Parchman and given similar treatment to that ac-

corded the first group of prisoners. Plaintiffs, after in-

dividually posting $200 property bonds, were released on

Monday, October 4, Tuesday, October 5, and on Wednesday,

October 6.

On February 17, 1966, a complaint was filed on behalf

of 68 adults and 84 minors, who had been detained in Parch-

man that October, against Chief of Police Robinson, Police

screges sim tsar vig aah has Tae

Officers Rickard, Cowart, Beach, and Flowers, Fire Chief )

Cameron, Superintendent Breazeale, J. J. Nosser, Mayor

of Natchez, and T. B. Birdsong, Commissioner of Public

Safety. That complaint alleged that plaintiffs were falsely ,

imprisoned and subjected to cruel and unusual punishment, |

and sought monetary damages under 42 U.S.C.A. § 1983. }

An identical complaint on behalf of 11 additional persons

was filed on October 1, 1966. Amended complaints were

filed in each action on December 6 and 9, 1966, alleging false

imprisonment and other torts under Mississippi law. The

actions were consolidated and eventually ordered to trial in

June of 1969, solely on the issue of liability. A jury re

turned a verdict for defendants, and plaintiffs’ subsequent

motions for judgment notwithstanding the verdict or al-

ternatively for a new trial were overruled. Plaintiffs now

appeal from the district court’s denial of those motions.

Il.

Plaintiffs rely on 42 U.S.C.A. § 1983 and Mississippi

tort law joined under the doctrine of pendent jurisdiction

to sustain their contention that defendants should be held

liable as a matter of law.

[1] Since Monroe v. Pape, 1961, 365 U.S. 167, 81 S.Ct.

473, 5 L.Ed.2d 482, it has been clear that section 1983* will

sustain a damage action against individuals acting under

color of state law for deprivation of federal constitutional

rights. See also Adickes v. S. H. Kress & Co., 1970, 398 U.S.

144, 90 S.Ct. 1598, 26 L.Ed.2d 142. Since all defendants in

this case are state or municipal officials, the requisites of

4. 42U.S.C.A. § 1983 provides:

“Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory subjects

or causes to be subjected, any citizen of the United States or

other person within the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities secured by the Con-

stitution and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceeding for

section 1983 are satisfied upon a showing of the denial of a

constitutional right.

[2, 3] Furthermore, the doctrine of pendent juris-

diction permits a consideration of the related state claims.

The court below exercised its discretion to join the state

claims, an action justified by the Supreme Court’s decision

in UMW v. Gibbs, 1966, 383 U.S. 715, 725, 86 S.Ct. 1130,

1138, 16 L.Ed.2d 218:

“Pendent jurisdiction, in the sense of judicial power,

exists whenever there is a claim ‘arising under [the]

Constitution, the Laws of the United States, and

Treaties made, or which shall be made, under their

Authority * * *,” US Const, Art TII, § 2, and the relation-

ship between that claim and the state claim permits the

conclusion that the entire action before the court com-

prises but one constitutional ‘case.’ The federal claim

must have substance sufficient to confer subject matter

jurisdiction on the court. Levering & Garrigues Co. v.

Morrin, 289 U.S. 103, 53 S.Ct. 549, 77 L.Ed. 1062. The

state and federal claims must derive from a common

nucleus of operative fact. But if, considered without

regard to their federal or state character, a plaintiff’s

claims are such that he would ordinarily be expected to

try them all in one judicial proceeding, then, assuming

substantiality of the federal issues there is power in

federal courts to hear the whole.”

See also Whirl v. Kern, 5 Cir. 1969, 407 F.2d 781, cert.

denied, 396 U.S. 901, 90 S.Ct. 210, 24 LEd2d 177. The

federal claims here are substantial, and both the federal

and state counts, grounded upon the incarceration and

treatment of plaintiffs, arise out of “a common nucleus of

operative fact.” Jurisdiction being satisfied, we turn to

the merits of the various allegations.

III.

Plaintiffs’ first contention is that as a matter of law

the trial court should have granted judgment on their claim

that their treatment at Parchman constituted cruel and un-

usual punishment unlawful under federal and state law.

[4] The cruel and unusual punishment clause of the

Eighth Amendment is applicable to the states through the

due process clause of the Fourteenth Amendment, Robinson

v. California, 1962, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758,

and thus a violation of its mandate may constitute a cause

of action cognizable in federal court under section 1983.

Wright v. McMann, 2 Cir. 1967, 387 F.2d 519: Jordan v.

Fitzharris, N.D.Cal. 1966, 257 F.Supp. 674.

[5] Defendants’ primary defense is that the matter

of plaintiffs’ trec‘ment at Parchman was one of internal

prison discipline, not reviewable by the courts. It is true

that the federal courts entertain some reluctance to inter-

fere with a prison’s internal discipline. See Roy v. Wain-

wright, 5 Cir. 1969, 418 F.2d 231; Granville v. Hunt, 5 Cir.

1969, 411 F.2d 9, 12; Schack v. Florida, 5 Cir. 1968, 391 F.2d

593, cert. denied, 392 U.S. 916, 88 S.Ct. 2080, 20 L.Ed.2d

1376. This policy is based on the fear that judicial scrutiny

of the decisions of prison officials would undermine the

authority of those officials and is reinforced by the view

that “lawful incarceration may properly operate to deprive

the convict of certain rights which would otherwise be his

to enjoy,” Jackson v. Bishop, 8 Cir. 1968, 404 F.2d 571,

576. However, this chariness does not mean that prison

officials have unfettered discretion in the treatment of their

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prisoners. As then Circuit Judge Blackmun phrased it in

Jackson v. Bishop, supra, 404 F.2d at 577:°

“The federal courts, including this one, entertain

a natural reluctance to interfere with a prison’s in-

ternal discipline. This is true with respect to federal

institutions, Glenn v. Ciccone, 370 F.2d 361, 363 (8

Cir. 1966); Sutton v. Settle, 302 F.2d 286, 288 (8 Cir.

1962), cert. denied, 372 U.S. 930, 83 S.Ct. 876, 9 L.Ed.2d

734; Garcia v. Steele, 193 F.2d 276, 278 (8 Cir. 1951);

see Holland v. Ciccone, 386 F.2d 825 (8 Cir. 1967),

cert. denied, 390 U.S. 1045, 88 S.Ct. 1646, 20 L.Ed.2d

307, as well as to state prisons, Douglas v. Sigler, 386

F.2d 684, 688 (8 Cir. 1967); Lee v. Tahash, 352 F.2d 970,

971 (8 Cir. 1965); Wright v. McMann, supra, 387 F.2d

at 522.

“However, the courts, including this one, have not

hesitated to entertain petitions asserting violations of

fundamental rights and, where indicated, to grant re-

lief. In Glenn v. Ciccone, which we have just cited,

this court clearly indicated that ‘a factual showing of

cruel and unusual punishment in violation of the Eighth

5. This court has also sanctioned judicial intervention in com-

pelling cases. Thus, in Jackson v. Godwin, 5 Cir. 1968, 400 F.2d

529, 532-533, we stated:

“Acceptance of the fact that incarceration, because of inherent

administrative problems, may necessitate the withdrawal of

many rights and privileges does not preclude recognition by

the courts of a duty to protect the prisoner from unlawful

and onerous treatment of a nature that, of itself, adds punitive

measures to those legally meted out by the court.”

Similarly, in Schack v. Florida, supra, 391 F.2d at 594, we em-

phasized:

“On the other hand, there may be cases where the de-

privation of medical care will warrant judicial inquiry and

action. Cf. Edwards v. Duncan, 4 Cir., 1966, 355 F.2d 993

(federal prisoner); Talley v. Stephens, E.D.Ark., 1965, 247

F.Supp. 683 (state prisoner).

“We have couched the test in terms of an abuse of dis-

cretion on the part of federal prison officials. Thompson v.

Blackwell, 5 Cir., 1967, 374 F.2d 945.”

Amendment’ would support interference by a federal

court. 370 F.2d at 363. We have made a like statement

in many other cases. Carey v. Settle, 351 F.2d 483,

485 (8 Cir. 1965); Haynes v. Harris, 344 F.2d 463, 466

(8 Cir. 1965); Harris v. Settle, 322 F.2d 908, 910 (8 Cir.

1963), cert. denied 377 U.S. 910, 84 S.Ct. 1171, 12

L.Ed.2d 179. Although the Eighth Circuit cases just

cited concern a federal institution, the principle, of

course, has equal application to a state penitentiary.

Wright v. McMann, supra, 387 F.2d at 522; Howard v.

Smyth, 365 F.2d 428 (4 Cir. 1966), cert. denied, 385

U.S. 988, 87 S.Ct. 599, 17 L.Ed.2d 449.”

_ We should be even more alert where one of the basic

underpinnings of the “hands off” policy is absent. Incar-

ceration after conviction is imposed to punish, to deter, and

to rehabilitate the convict. See Rudolph v. Alabama, 1963,

375 U.S. 889, 84 S.Ct. 155, 11 L.Ed.2d 119 (Goldberg, J.,

dissenting). Some freedom to accomplish these ends must

of necessity be afforded prison personnel. Conversely,

where incarceration is imposed prior to conviction, deter-

rence, punishment, and retribution are not legitimate func-

tions of the incarcerating officials. Their role is but a tem-

: porary holding operation, and their necessary freedom of

action is concomitantly diminished.

Plaintiffs here were unconvicted misdemeanants held

a for bond. The purpose of incarceration of them was

: simply detention in order to assure presence at trial. Puni-

tive measures in such a context are out of harmony with

the presumption of innocence. Despite their pigmentation

or political beliefs the accused here cannot be treated as

though convicted of heinous crimes. In Butler v. Crumlish,

E.D.Pa. 1964, 229 F.Supp. 565, 567, quoting Commonwealth

v. Brines, 1920, 29 Pa.Dist. & Co.R. 1091, the court phrased

the matter as follows:

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“It seems to be forgotten that an accused is not a

convict, and that it is only strong necessity that compels

his detention before trial. It is a restraint of the

liberty of his person which is unavoidable. It certainly

should not be aggravated by the infliction of any un-

necessary indignity.”

We must therefore review the cruel and unusual punish-

ment allegations with the thought in mind that the treat-

ment involved was inflicted upon persons not convicted of

any crime. ,

[6] The cruel and unusual] punishment clause is a

nonstatic, moral precept designed to curb treatment which

offends contemporary standards of decency. Until the

early part of this century, the ban on cruel and unusual

punishment had been interpreted to apply only to out-

rageous and barbarous practices. See generally Goldberg

& Dershowitz, Declaring the Death Penalty Unconstitu-

tional, 83 Harv.L.Rev. 1773 (1970); Note, The Cruel and

Unusual Punishment Clause and the Substantive Criminal

Law, 79 Harv.L.Rev. 635 (1966). The concept has now ex-

panded, but its precise boundaries are still unclear. Wil-

kerson v. Utah, 1878, 99 U.S. 130, 135-136, 25 L.Ed. 345

(“Difficulty would attend the effort to define with exact-

ness the extent of the constitutional provision which pro-

vides that cruel and unusual punishment shall not be in-

flicted. * * *”); Trop v. Dulles, 1958, 356 U.S. 86, 78 S.Ct.

590, 2 L.Ed.2d 630. Courts have relied upon such imprecise

measures as the protection of “the dignity of man,” Trop v.

Dulles, supra, 356 U.S. at 100, 78 S.Ct. 590, or “developing

concepts of elemental decency,” Jordan v. Fitzharris, supra,

257 F.Supp. at 679. In Jordan the court attempted to eluci-

date the scope of the concept:

“What constitutes a cruel and unusual punish-

ment has not been exactly decided.’ Weems v. United

moe

tes

States, 217 U.S. 349, 368, 30 S.Ct. 544, 549, 54 L.Ed. 793 )

(1910). This statement is as true today as it was in

1910. It is possible, however, to identify three general )

approaches to the question. See Rudolph v. Alabama, :

375 U.S. 889, 890-891, 84 S.Ct. 155, 11 L.Ed.2d 119

(1963), (dissenting opinion of Goldberg, J.). The first

approach is to ask whether under all the circumstances

the punishment in question is ‘of such character * * *

as to shock general conscience or to be intolerable to

fundamental fairness.’ Lee v. Tahash, supra, 352 F.2d

at page 972. Such a judgment must be made in the

light of developing concepts of elemental decency.

Weems v. United States, supra, 217 U.S. at 378, 30 S.Ct.

544; Trop v. Dulles, 356 U.S. 86, 100-101, 78 S.Ct. 590,

2 L.Ed.2d 630 (1958) (opinion of Warren, C. J.); Ru-

dolph v. Alabama, supra, 375 U.S. at 890, 84 S.Ct. at

155 (dissenting opinion of Goldberg, J.). Secondly,

a punishment may be cruel and unusual if greatly dis-

proportionate to the offense for which it is imposed.

Weems v. United States, supra; Robinson v. State of

California, supra, [370 U.S.] at 676, 82 S.Ct. 1417, 8

L.Ed.2d 758 (concurring opinion of Douglas, J.); Ru-

dolph v. Alabama, supra, 375 U.S. at 891, 84 S.Ct. at 155

(dissenting opinion of Goldberg, J.). Finally, a pun-

ishment may be cruel and unusual when, although

applied in pursuit of a legitimate penal aim, it goes

beyond what is necessary to achieve that aim; that is,

when a punishment is unnecessarily cruel in view of

the purpose for which it is used. Weems v. United

States, supra, 217 U.S. at 370, 30 S.Ct. 544; Rebinsor..

v. California, supra, 370 U.S. at 677, 82 S.Ct. 1417 (con-

curring opinion of Douglas, J.); Rudolph v. Alabama,

supra, at 891, 84 S.Ct. at 155 (dissenting opinion of

Goldberg, J.).”

257 F.Supp. at 679.

to wt ews

Pitre ses nr itr i

—

[7] Despite the subjective content of such notions,

it is clearly accepted that the amendment prohibits certain

hard core inhuman treatment. Trop v. Dulles, supra, 356

US. at 101, 78 S.Ct. 590. And, since Cooper v. Pate, 1964,

378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (per curiam),

it has been clear that inmates have recourse to the amend-

ment’s protections through section 1983. See generally

Hirschkop & Millemann, The Unconstitutionality of Prison

Life, 55 Va.L.Rev. 795 (1969).

In this light we think that the undisputed treatment

accorded plaintiffs in the maximum security unit at Parch-

man violated even those minimal “standards of decency”

mandated in the treatment of convicted felons, Trop v.

Dulles, supra, 356 U.S. at 100, 78 S.Ct. 590, much less the

standards which must be afforded those as yet unconvicted

of misdemeanor offenses. It would be well to quote in full

that portion of the pre-trial stipulation relating to the treat-

ment at Parchman:

“The buses arrived at Parchman early Sunday

morning October 3, 1965 and proceeded to the com-

pound containing penitentiary’s Maximum Security

Unit. The maximum security building has two wings,

each divided into two cell blocks with 13 cells each,

for a total of 52 cells. One of the four cell blocks,

containing 13 cells is Parchman’s ‘Death Row’. Each

cell contained two steel bunk beds, a toilet and a wash

basin. Three of the cell blocks, excluding Death Row,

containing a total of 39 cells, had been vacated to re-

ceive the Natchez prisoners.

“The men prisoners, including all the male plain-

tiffs that had been arrested on Saturday were required

to strip naked and consume a quantity of laxative.

They were inspected and searched. The men were

— Te

pe et tam be cok pnt

then placed in cells. The female prisoners, including

all the female plaintiffs that had been arrested on

Saturday were required to remove their shoes, stock-

ings, sweaters, coats, jewelry and wigs, but not their

undergarments, dresses, blouses, and pants, and were

searched by female employees and trustees. They also

were given a quantity of laxative. The women were

then placed in cells. The prisoners were segregated by

sex but not race. No one was permitted to carry any

personal belongings into their cells including medicines

and sanitary napkins. * * *

“Prior to release of the prisoners, many, including

many of the plaintiffs, had blood samples taken from

them.”

rationale of a number of cases which have found a viola-

tion of the Eighth Amendment. The situation becomes

even more aggravated by additional undisputed facts, in-

cluding forced nudity of some of plaintiffs for up to 36

hours, inadequate hygienic facilities, an absence of bedding,

cramped, cold quarters and physical and mental abuse. On

similar facts, but involving convicted inmates, the court in

Knuckles v. Prasse, E.D.Pa. 1969, 302 F.Supp. 1036, held

cruel and unusual a period of detention of 24% days in

cramped quarters, without clothing or bedding, and without

toilet articles:

“Finally, there is the question of the two and one-

half days spent by the plaintiffs, two to a cell—six feet

by nine feet, eleven inches. The cells had no windows

and no artifical light. Each cell had only a single bed

and the cells were damp and foul smelling from water

splashing on the floors as a result of malfunctioning

toilets. The men were given no clothing or bedding,

save two blankets, which had to be used to absorb

ee eee ee

—_—_

water from the overflowing toilet and further as a

mattress. The men were given no soap, no towels, no

toilet tissue, no toilet articles.

“The conditions were somewhat less severe but still

quite similar to those described by the court in Wright

v. McMann, 2 Cir., 387 F.2d 519. There the solitary

confinement cell was described as ‘dirty, filthy and

unsanitary, without adequate heat and virtually bar-

ren; the toilet and sink were encrusted with slime, dirt

and human excremental residue * * *’. The plaintiff

was kept completely nude for eleven days and was

denied all hygienic implements and utensils.

“While petitioners here were faced with a damp

cell and not a freezing one, and while there were no

physical beatings and the period of confinement in

question was two and one-half days and not eleven

days, still I fully concur with the view of Judge Kauf-

man in the Wright v. McMann case * * *.” 302 F.Supp.

at 1061-1062.

In Wright v. McMann, supra, the court condemned the

use of a “strip cell,” once again utilized against convicted

inmates:

| “We are of the view that civilized standards of

humane decency simply do not permit a man for a sub-

stantial period of time to be denuded and exposed

to the bitter cold of winter in northern New York

State and to be deprived of the basic elements of hy-

giene such as soap and toilet paper. The subhuman

conditions alleged by Wright to exist in the ’strip cell’

at Dannemora could only serve to destroy completely

the spirit and undermine the sanity of the prisoner.

The Eighth Amendment forbids treatment so foul, so

inhuman and so violative of basic concepts of decency.

; is a

Trop v. Dulles, 356 U.S. 86, 100, 101, 78 S.Ct. 590,

597, 598, 2 L.Ed.2d 630 (1958).” 387 F.2d at 526. '

See also Sostre v. Rockefeller, S.D.N.Y. 1970, 312 F.Supp. )

863; Jordan v. Fitzharris, supra.

Likewise the treatment to which the plaintiffs here

were subjected not only violates “developing concepts of

elemental decency,” but also is “greatly disproportionate

to the offense for which it is imposed.” Jordan v. Fitzhar-

ris, supra, 257 F.Supp. at 679. Like Cain, these plaintiffs

bear the stigma of having served in the penitentiary for

violating a misdemeanor ordinance besotted with consti-

tutional infirmities. They were not felonious terrorists

or hardened recidivists—the treatment in the maximum

security unit was totally unfounded. If similar treatment

for convicted prisoners is universally condemned, which

it is, that treatment has no place here. We deal with human

beings, not dumb, driven cattle.

We think the language of the court in Hancock v.

Avery, M.D.Tenn.1969, 301 F.Supp. 786, is particularly

instructive:

“Applying both of these tests to the instant case,

the Court finds that the effect of confining plaintiff

in the dry cell under the conditions shown to have ex-

: isted was to subject him to cruel and unusual punish-

: ment in violation of the Eighth Amendment. The

: conditions of his dry cell confinement are such as to

make it evident that fundamental concepts of decency

did not prevail. Particularly barbaric are the facts

that plaintiff is forced to sleep in the nude on a bare

concrete floor without even the comfort of a blanket

and that he is deprived at all times of adequate light

and ventilation. Equally offensive is the fact that he

is provided with no means by which he can maintain

sta MOOR caine 0

—

his personal cleanliness, with the result that he is

forced to live and eat under animal-like conditions.

The debasing conditions to which plaintiff is subjected

offend more than some mere “fastidious squeamish-

ness or private sentimentalism.” Rochin v. People of

California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed.

183 (1952). It is clear that requiring a prisoner to

live, eat and sleep in such degrading circumstances

does violence to civilized standards of human decency.

Wright v. McMann, supra; Jordan v. Fitzharris, supra.

“It is also apparent that the dry cell punishment,

as administered in the instant case, is unnecessarily

cruel in view of the purpose for which it is used. The

stated aims in confining plaintiff in the dry cell were

to protect him from self-inflicted injury,’ to protect

the general prison population and personnel from

violent acts on his part, and to prevent his escape.

Solitary confinement for the purpose of achieving

such goals is not per se an unconstitutional form of

punishment. Graham v. Willingham, supra, [384 F.2d

367, (10 Cir.)]. However, the Court is of the opinion

that such goals can be attained without requiring a

prisoner to live in the exacerbated conditions of filth

and discomfort demonstrated in the instant case. Where

prison officials impose such deplorable living condi-

tions in conjunction with solitary confinement, the

Court is compelled to find that cruel and unusual

punishment has been imposed in violation of the Con-

stitution.

“While it is true, as the defendants assert, that all

imprisonment is to an extent inhumane, this fact does

not excuse the imposition of forms of punishment so

harsh as to violate basic standards of human de-

cency.” 301 F.Supp. at 791-792.

[8] Defendants have offered no real justification for

the treatment imposed at Parchman other than to contend

that the treatment was merely the standard operating

procedure for the maximum security unit.° But since we

hold that procedure unlawful, defendants cannot escape

liability because they customarily indulged in such illegal

actions. We therefore hold that plaintiffs should be granted

judgment as a matter of law on liability under section 1983

since the treatment imposed at Parchman was violative of

the Eighth Amendment.

[9, 10] Similarly, liability should be imposed under

the pendent state claims, for Mississippi recognizes that its

prisoners must be afforded civilized treatment. Thus, the

general common law duty of the custodian of a prisoner

to take proper care of him is specifically imposed on the

penitentiary superintendent in Mississippi by statute.

Miss.Code Ann. § 7930 (Supp.1968).7 See generally Roberts

v. Williams, N.D. Miss.1969, 302 F.Supp. 972, 985-986. The

force of this rule is even stronger where a person not con-

victed but merely detained pending posting of bond is con-

cerned. See Farmer v. State, Miss.1955,, 79 So.2d 528.

Mississippi law simply would not tolerate the inhuman

6. Defendants do argue that the blood tests were medically

justifiable because of the prevalence of venereal disease in certain

of the plaintiffs. Assuming arguendo that such a justification

would validate the indiscriminate taking of blood samples demon-

strated here, it is clear from the record that Breazeale’s assertion

of this justification was held inadmissible.

7. § 7930. Management and control of prison system to be

vested in superintendent.

The superintendent, hereinafter provided for, shall be

vested with the exclusive management and control of the

prison system, and all properties belonging thereto, subject

only to the limitations of this act and shall be responsible for

the management of affairs of the prison system and for the

proper care, treatment, feeding, clothing and management of

the prisoners, confined therein. The superintendent shall

have sole authority to employ and discharge employees.

See also Miss.Code Ann. §§ 7921, 7932 (Supp.1968); cf. Miss.Code

Ann. § 7915 (Supp.1968).

—",.

treatment accorded plaintiffs at Parchman. We therefore

find that plaintiffs should be granted judgment on liability

as a matter of law on their pendent state claims.

IV.

[11] Plaintiffs next allege that the course of events

which transpired in October, 1965, constitute federal and

state causes of action for false imprisonment. While such

an action rests basically in tort, usually the province of

state law, it is now clear that false imprisonment can be

the type of “constitutional tort” cognizable under section

1983. See Whirl v. Kern, supra. We therefore turn to

the various grounds which plaintiffs contend require a

finding of false imprisonment as a matter of federal and

state law.

A. False Arrest

Plaintiffs contend that their arrest for parading with-

out a permit is actionable because the ordinance under

which the arrests were made was unconstitutional. The

Natchez parade ordinance made it “unlawful for any

person or persons without the written permission of the

Chief of Police of the City of Natchez * * * to conduct

or participate in any parade or marching” on the city streets

or sidewalks. Such an ordinance was plainly unconstitu-

tional. See, e. g., Hague v. CIO, 1939, 307 U.S. 496, 59 S.Ct.

954, 83 L.Ed. 1423; Cox v. Louisiana, 1965, 379 U.S. 536, 85

S.Ct. 453, 13 L.Ed.2d 471, but the particular Natchez en-

actment had not been considered judicially at the time

the plaintiffs were arrested. See generally Guyot v. Pierce,

5 Cir. 1967, 372 F.2d 658.

Plaintiffs’ claim that the police officers’ conduct con-

stituted false arrest as a matter of federal law is governed

by the Supreme Court’s decision in Pierson v. Ray, 1967,

386 U.S. 547, 87 S.Ct. 1213, 18 LEd.2d 288. There the

Court held that a police officer could not be held liable

under section 1983 for false arrest because of an uncon-

stitutional statute if he acted with probable cause and with

a good faith belief in the validity of the statute. The Court

stated:

“The common law has never granted police of-

ficers an absolute and unqualified immunity, and the

officers in this case do not claim that they are entitled

to one. Their claim is rather that they should not be

liable if they acted in good faith and with probable

cause in making an arrest under a statute that they

believed to be valid. Under the prevailing view in this

country a peace officer who arrests someone with

probable cause is not liable for false arrest simply

because the innocence of the suspect is later proved.

Restatement, Second, Torts § 121 (1965); 1 Harper

& James, The Law of Torts § 3.18, at 277-278 (1956);

[State of Missouri ex rel. and to Use of] Ward v. Fi-

delity & Deposit Co. of Maryland, 179 F.2d 327 (C.A.8th

Cir. 1950). A policeman’s lot is not so unhappy that

he must choose between being charged with derelic-

tion of duty if he does not arrest when he has probable

cause, and being mulcted in damages if he does. Al-

though the matter is not entirely free from doubt, the

same consideration would seem to require excusing

him from liability for acting under a statute that he

reasonably believed to be valid but that was later held

unconstitutional, on its face or as applied. * * *

“We hold that the defense of good faith and

probable cause, which the Court of Appeals found

available to the officers in the common-law action

for false arrest and imprisonment, is also available

to them in the action under § 1983. * * *” 386 US.

at 555, 557, 87 S.Ct. at 1218, 1219 (footnotes omitted).

REY Pe San SRS ST ‘

14 SET WSN tr

[12, 13] Plaintiffs argue that the police officers

could not have reasonably believed the ordinance in ques-

tion was constitutional. It is true that numerous judicial

decisions prior to 1965 had made it clear that statutes

which conferred unbridled discretion upon a public of-

ficial to grant or deny the exercise of expressive activity

were invalid. Simple unawareness of the names and

dates of those relevant decisions would not confer im-

munity. We do not think, however, that the facts of this

case warrant finding as a matter of law that Robinson

knew of the unconstitutionality of the ordinance. The

Pierson test is a subjective one, which of necessity raises

questions of credibility, usually within the province of

the jury. Here there was testimony from Robinson that

he believed he was doing his duty as a peace officer in

arresting plaintiffs. While the status of constitutional

development is a relevant countervailing consideration,

at the time of the occurrences at issue here, there was

no judicial decision from either this court or the Missis-

sippi state courts explicitly ruling on either the Natchez

or identical ordinances. See Guyot v. Pierce, supra;

King v. City of Clarksdale, Miss. 1966, 186 So.2d 228.

We therefore think that there was sufficient evidence to

raise an issue of the Pierson defense. The court below

submitted this issue under proper instructions, and we

are thus bound by the jury determination of no liability.

A similar result obtains under the pendent state

claim for Mississippi follows the Pierson rule, which is

itself grounded in the common law. See Golden v.

Thompson, Miss. 1943, 11 So.2d 906.8 We therefore af-

8. Plaintiffs argue that even if Chief Robinson established a

Pierson defense, officers Rickard, Cowart, and Beach, who par-

ticipated in the arrests, still are liable for they offered no testi-

mony at trial. We reject this contention. These officers were

simply following the orders of Chief Robinson so that his immunity

should extend to them.

;

firm the verdict below which found that defendants are

immune from liability for false arrest.

B. Failure to Take Plaintiffs Be-

fore a Magistrate

The record clearly reveals that defendants neither

took any of plaintiffs before a judicial officer nor made

any attempt to do so. Plaintiffs thus argue that even if

the initial arrest was valid under Pierson, the subse-

quent incarceration is actionable. While the law does

not exact constitutional erudition from those unschooled

in jurisprudence, plaintiffs contend that we must compel

respect for individual liberty to the extent of requiring

officials to follow procedures clearly delineated by stat-

utory or common law mandates. In such a situation,

plaintiffs argue, the “good faith” defense of Pierson is

inapplicable. See Whirl v. Kern, supra.

Ree

iced

[14] It is true that unreasonable or unnecessary de-

lay in bringing a prisoner before a magistrate, despite

good faith, may give rise to an action for false imprison-

ment. Cooley v. Stone, 1969, 134 U.S.App.D.C. 317, 414

F.2d 1213; Czap v. Marshall, 7 Cir. 1963, 315 F.2d 766,

cert. denied, 375 U.S. 942, 84 S.Ct. 348, 11 L.Ed.2d 273;

Moran v. City of Beckley, 4 Cir. 1933, 67 F.2d 161; Fulford

v. O'Connor, 1954, 3 Ill. 490, 121 N.E..2d 767; 35 C.J.S.

False Imprisonment § 30. The cause of action arises

from the uniform requirement, both state and federal,

of prompt presentation before a magistrate. See, e. 9.

Fed.R.Crim.P. 5(a), as construed in Mallory v. United

States, 1957, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479;

Czap v. Marshall, supra, 315 F.2d at 770.

[15] Nevertheless, we hold that plaintiffs have failed

to state a cause of action under section 1983, for they

have not demonstrated a violation of their constitutional

Soh Cae ae

peat RET,

rte BEL

Patina

rights. As we said in Kulyk v. United States, 5 Cir., 1969,

) 414 F.2d 139, 141-142, “[t]he right under the federal rules

to be promptly taken before a magistrate has not been

given constitutional status and has not been applied to

persons in state custody.” See also Edwards v. Holman, 5

Cir. 1965, 342 F.2d 679, cert. denied, 384 U.S. 1017, 86

S.Ct. 1934, 16 L.Ed.2d 1039. Similarly, even though the

failure to take plaintiffs before a magistrate violates Mis-

sissippi law, it does not rise to the status of a denial of

due process. Scarbrough v. Dutton, 5 Cir. 1968, 393 F.2d

6; Baxter v. Rhay, 9 Cir. 1959, 268 F.2d 40; United States

ex rel. Weber v. Ragen, 7 Cir. 1949, 176 F.2d 579, cert.

dismissed, 338 U.S. 809, 70 S.Ct. 49, 94 L.Ed. 489. But see

Goodwin v. Page, E.D.Ok1.1969, 296 F.Supp. 1205, aff'd

on other grounds, 10 Cir., 418 F.2d 867. Plaintiffs’ fed-

eral allegations therefore must fall.

[16] The same result does not obtain, however, under

plaintiffs’ pendent state claim. Mississippi law clearly

holds that delay in bringing a prisoner before a magi-

strate may give rise to an action for false imprisonment.

Dunning v. State, 1965, 251 Miss. 766, 171 So.2d 315, cert.

denied, 386 U.S. 993, 87 S.Ct. 1310, 18 L.Ed.2d 339; Shef-

field v. Reece, 1947, 201 Miss. 133, 28 So.2d 745; Ander-

son v. Beck, 1886, 64 Miss. ‘113, 8 So. 167. By statute

“every person making an arrest shall take the offender

before the proper officer without unnecessary delay for

examination of his case.” Miss.Code Ann. § 2473. What

constitutes unreasonable or unnecessary delay, of course,

must be determined from the facts and circumstances of

each case. See Czap v. Marshall, supra.

[17, 18] Defendants have attempted to meet their

burden of justification by arguing that the failure was

reasonable due to the large number of arrests, the week-

# -

s Re

Baier ey

HabemaoRe. 08

32, etina ee ite

end days on which the arrests were made, and the avail-

ability of a bonding procedure.” However, defendants

have not demonstrated that these factors either frustrated

any attempt to secure a magistrate or negated the obliga-

tion to do so. It is true that a number of those arrested

were apparently permitted to make bond and thus to se-

cure their release. As to those prisoners, many of the

compelling reasons recognized by Mississippi law for im-

mediate presentation for inquiry into the merits of the

accusation disappear. But the Mississippi courts clearly

hold that the theoretical availability of a bonding pro-

cedure does not immunize the incarceration of those ar-

rested who either cannot make bond immediately or who

were not permitted to do so. The sterile opportunity

to make bond does not abate the right to a magistratical

confrontation. See Sheffield v. Reece, supra, 28 So.2d

at 746. It was the duty of the Natchez authorities to at-

tempt to bring those who did not execute bond before

a magistrate, rather than to herd them pell mell off to

Parchman. Nor was this duty relinquished by the mere

fact that there was a large number of arrests on a week-

end. Mass arrests may create problems for the arresting

officers, but the officers must make a reasonable effort

to meet those problems in order to avoid the charge of

“unnecessary delay.” There is nothing in this record to

demonstrate that an unsuccessful attempt was made to

secure a magistrate for any of the plaintiffs. In fact the

record shows that no attempt was made. Similarly, we

cannot hold that Mississippi would consider that its laws

9. Defendants also argue that plaintiffs’ counsel removed

their cases to federal court on Monday, October 4, so that the pris-

oners were no longer the responsibility of the state officials. See

28 U.S.C.A. § 1446(f). A review of the record clearly shows, how-

ever, that in fact there was no removal which would have relieved

state officials of their state law obligation to bring plaintiffs before

a magistrate.

ee,

—

are so Sabatized that they are automatically suspended

over the weekend. Cf. Sheffield v. Reece supra, 28 So.2d

at 748-749. The case might be different if it were shown

that a magistrate was unavailable, but no such showing

was made here. Indeed it is questionable whether such

a showing could have been made. Magistrates in Mis-

} sissippi have authority to hear cases on both Saturday

and Sunday. See Sheffield v. Reece, supra, 28 So.2d at

748. And there is no justification whatsoever for failure

to bring those still incarcerated before a magistrate on

Monday, October 4, which was the next date scheduled

) for a regular session of the local police court. On the

basis of these undisputed facts, we hold that plaintiffs’

state rights were violated. Judgment is therefore ren-

dered for plaintiffs on liability as a matter of law.

[19] Plaintiffs have raised other claims which, they

contend, also compel a finding of liability for false im-

prisonment.'® These claims do not rise to constitutional

dimensions so that we must affirm judgment for defend-

ants under section 1983. We also decline plaintiffs’ in-

vitation to nevertheless engage in the complexities sur-

rounding the construction of these numerous Mississippi

] statutes under our pendent jurisdiction, for we find that

plaintiffs’ allegations simply constitute cumulative grounds

which are subsumed under our basic finding of liability

for false imprisonment lodged upon the failure to bring

plaintiffs before a magistrate. See UMW v. Gibbs, supra,

383 U.S. at 726, 86 S.Ct. at 1139, 16 L.Ed.2d 218 (‘‘Need-

10. Thus, plaintiffs contend that minor plaintiffs were falsely

imprisoned because of defendants’ failure to follow the procedures

of Mississippi’s Youth Court Act. See note 3 supra. Likewise,

plaintiffs argue that they were falsely imprisoned because their

transfer to Parchman by the municipal authorities was in violation

of Miss.Code Ann. § 3374-135 (Supp. 1968), which specifies the

procedures to be followed in transferring municipal prisoners to

the state penitentiary.

less decisions of state law should be avoided both as a

matter of comity and to promote justice between the

parties, by procuring for them a surer-footed reading of

applicable law’’).

We come now to the question of the responsibility

of the individual defendants in light of our holding that

plaintiffs should be granted judgment on liability (1) un-

der state law for failure to bring them before a magi-

strate, and (2) under federal and state law for infliction

of cruel and unusual punishment at Parchman.

Plaintiffs argue that each defendant is liable for the

entire wrong. Robinson, assisted by Rickard, Cowart,

Beach, Flowers, and Cameron, was in charge of the de-

tention in Natchez and was responsible for the failure to

attempt to secure a magistrate. These defendants also

were responsible for the delivery of the prisoners to high-

way patrolmen, under the siatutory supervision and con-

trol of Birdsong, for transportation to Parchman. There,

highway patrolmen and Natchez firemen acting under

orders of Robinson and Cameron assisted in processing

and detaining plaintiffs. Finally, Breazeale supervised

the detention at the penitentiary and directed the manner

of treatment in the maximum security unit. Nosser, while

opposed to these actions, failed to act despite his position

as mayor of the community.

Defendants, on the other hand, would have us atten-

uate responsibility. But to follow defendants’ logic to its

extreme would result in the total exculpation of defend-

ants despite their participation in a chain of events which

we have found to be illegal and unjustified.

We instead begin by emphasizing that section 1983

“should be read against the background of tort liability

that makes a man responsible for the natural consequences

of his actions.” Monroe v. Pape, supra, 365 U.S. at 187,

81 S.Ct. at 484, 5 L.Ed.2d 492; Whirl v. Kern, supra. The

pendent state grounds incorporate the similar rule of Mis-

sissippi. See Smith v. Patterson, Miss.1952, 214 Miss. 87,

58 So.2d 64; Bacon v. Bacon, Miss.1899, 76 Miss. 458, 24

So. 968. This general rule of liability provides that “all

those who, in pursuance of a common plan or design to

commit a tortious act, actively take part in it, or further

it by cooperation or request, or who lend aid or encourage-

ment to the wrongdoer, or ratify and adopt his acts done

for their benefit, are equally liable with him.” W. Prosser,

Law of Torts 59 (3d ed. 1964). So long as there is “an

intent to bring about a result which will invade the in-

terests of another in a way that the law will not sanction”

good faith is no defense. Id. at 31; see Whirl v. Kern,

supra; State for Use of Powell v. Moore, 1965, 252 Miss.

471, 174 So.2d 352.

[20] In view of these principles we think that the

conduct involved here must be viewed as a continuum, be-

ginning with the illegal incarceration for failure to bring

plaintiffs before a magistrate and ending with inhuman

treatment at Parchman. Each incident flowed proxi-

mately and naturally into the other so that each defendant

who played “a substantial role in bringing about the re-

sults” is liable jointly and severally for the entire injury

and wrong. See Nesmith v. Alford, 5 Cir. 1963, 318 F.2d

110, 119, cert. denied, 375 U.S. 975, 84 S.Ct. 489, 11 L.Ed.2d

420. Thus, Chief Robinson and police officers Rickard,

Cowart, Beach, and Flowers": played substantial roles in

11. These officers, of course, were acting under the orders of

Chief Robinson. Nevertheless

“An inferior officer or deputy is personally liable for any

misconduct of which he may be guilty in making or causing

a wrongful arrest or detention, that the arresting officer is

acting under orders or directions of his superiors ordinarily

being no defense * * *.” 35 C.J.S. False Imprisonment § 42,

at 703; see Nesmith v. Alford, supra.

” pe eT Me Pe

Sait: stheey ide

REQ LALOR PELL DIRS

detaining plaintiffs, denying them access to a magistrate,

and transporting them to Parchman where they would be

subjected to maximum security treatment. Fire Chief

Cameron assisted these police officers in the detention and

ordered Natchez firemen both to escort the buses to Parch-

man and to remain at the penitentiary for the duration of

the incarceration. Finally, Breazeale supervised and di-

rected the treatment and detention at Parchman. This was

a typical “chain of command” situation. As we said in

Nesmith:

“As to the issue of individual liability, each of the

three defendants—Sullivan, Ruppenthal and Alford—

acted as one. Although there was no prior plan de-

vised to bring about the arrest and imprisonment of

the plaintiffs, each of the three had a substantial role

in bringing about the results. This was an instance

of the typical ‘chain of command,’ Sullivan indicat-

ing to Ruppenthal that the Plaintiffs should be re-

moved from the cafe, Ruppenthal giving the authorita-

tive commands constituting the arrest, and Alford pro-

viding the essential transportation at the direction of

Ruppenthal. Their actions throughout the whole se-

quences of events are so intertwined and interlocking

that these Defendants must fall together.” 318 F.2d at

119.

[21] On the other hand, we must sustain the findings

of no liability on the part of Mayor Nosser and Commis-

sioner of Public Safety Birdsong. Plaintiffs argue that

Mayor Nosser, upon learning of the occurrences in Natchez,

either should have called a special meeting of the

Board of Aldermen in order to try to persuade them to

rescind the transferral to Parchman or should have at-

tempted to persuade Breazeale to release the prisoners.

However, we do not think that Mayor Nosser’s failure to

—_

act renders him liable. The record reveals that Nosser

learned of what was happening only on Sunday, October 5,

and at that time made it clear that he opposed the con-

duct of the defendants. There is no evidence that he could

have called together a quorum of the Board of Aldermen

speedily or that, once called, his point of view would have

prevailed. Indeed, the evidence is to the contrary. Three

of the six aldermen, in addition to the named defendants,

directly or indirectly participated in the events at the

heart of this case. Without the support of the Board, the

Mayor was powerless to halt the course of events since

his municipal powers were circumscribed. In such a sit-

uation, we do not find that Nosser had a duty to act under

penalty of damages. See W. Prosser, supra, at 338-39. He

cannot be required to do an act which would have been

useless or ineffective.

It was stipulated that Commissioner Birdsong was

charged by law with the duty of supervision and control

of all Mississippi Highway Safety Patrolmen.'? How-

ever, there is no evidence that he participated in, had

knowledge of, or was negligent with regard to the actions

of the highway patrolmen who assisted in the detention

and transportation of plaintiffs. Lower courts have uni-

formly held that

“[t]he chief of police would not be responsible for the

wrongful acts of the officer unless he was present or

unless it is shown he directed such acts or personally

cooperated in them * * *.” Jordan v. Kelly, W.D.Mo.

1963, 223 F.Supp. 731, 739.

12. See Miss.Code Ann. § 8078 (Supp. 1968). In actuality this

section provides that another official, the “Chief of Patrol,” shall

have authority over the “division of operations of the patrol.”

While the Commissioner has authority to employ members of the

patrol, id. § 8079, in most instances he does not have the power of

dismissal. Id. § 8081.

ie ha ota a

Accord, Burnett v. Short, S.D.Tex.1970, 311 F.Supp. 586;

Snaberg v. Daley, N.D.I11.1969, 306 F.Supp. 277; Mack v.

Lewis, S.D.Ga.1969, 298 F.Supp. 1351; Patrum v. Martin,

W.D.Ky.1968, 292 F.Supp. 370; Pritchard v. Downie,

E.D.Ark.1963, 216 F.Supp. 623, aff’d on other grounds, 8

Cir., 326 F.2d 323; cf. Robertson v. Sichel, 1888, 127 US.

507, 8 S.Ct. 1286, 32 L.Ed. 203. We think that on the facts

of this case this rule is equally applicable to defendant

Birdsong and requires a finding of no liability on his part.’*

13. We emphasize that this holding with regard to the non-

liability of defendant Birdsong is limited to the facts of this case

and may not be applicable to other officials. For example, both

the common law and judicial decisions under the federal civil

rights acts seemingly recognize a broader liability on the part of

sheriffs and wardens. See, e. g., Bethea v. Crouse, 10 Cir. 1969,

417 F.2d 504, 507 n. 2; Whirl v. Kern, supra, 407 F.2d at 795-796;

Talley v. Stephens, E.D.Ark.1956, 247 F.Supp. 683, 692; Note, Tort

Liability of Law Enforcement Officers: State Remedies, 24

La.L.Rev. 130 (1968); 80 C.J.S. Sheriffs and Constables §§ 52, 55,

117. Likewise, we do not decide whether the doctrine of respond-

eat superior has vitality im a suit under section 1983. Compare

Nugent v. Sheppard, N.D.Ind.1970, 318 F.Supp. 314, 315 (doctrine

does not apply), Sanberg v. Daley, supra, 306 F.Supp. at 278

(same), Roberts v. Williams, supra, 302 F.Supp. at 987 (same),

with Hill v. Toll, E.D.Pa.1970, 320 F.Supp. 185 (doctrine applies).

See also Nesmith v. Alford, supra, 318 F.2d at 126; Runnels v.

Parker, C.D.Cal.1967, 263 F.Supp. 271; 35 C.J.S. False Imprison-

ment § 42. As the court in Jordan impliedly noted, many of the

factors upon which respondeat superior is based are absent when

dealing with police supervisors:

“We come next to the question of the liability of the de-

fendant Chief of Police. The decisions are not in harmony as

to the exact scope of the liability of sheriffs, constables, mar-

shals or other peace officers for acts of their deputies. There

is a difference of judicial opinion in the various states. This

is the result, to some extent, of statutory provisions and also

the question as to whether or not the deputies are acting by

virtue of their office and acts done under color of office. 47

Am.Jur. 158; Foley v. Martin, 142 Cal. 256, 71 P. 165, 75 P.

842, 100 Am.St.Rep. 123; State to Use of Russell et ux. v.

Moore et al., 19 Mo. 369; State of Mo. ex rel. and to Use of

red Vault v. Fidelity & Casualty Co. of N. Y., 8 Cir., 107 F.2d

“The rule is different however, with respect to the Chief

of Police of a municipal police department. Even though he

may be charged with the duty of selecting the members of

the force, he is not responsible for their acts unless he has

directed such acts to be «one, or has personally cooperated in

the offense, for each police officer, is like himself, a public

—

We therefore find that defendants Nosser and Birdsong

may not be held liable under the facts of this case.

Defendants would have us extend this finding of non-

liability by arguing that they are protected by the doc-

trine of official immunity from damages. See generally

servant. Casey v. Scott, 82 Ark. 362, 101 S.W. 1152, 118

Am.St.Rep. 80, 12 Ann.Cas. 184; Baisley v. Henry, 55 Cal.App.

760, 204 P. 399; Michel v. Smith, 188 Cal. 199, 205 P. 113,

12 A.L.R. 980, 34 A.L.R. 561; Pritchard v. Downie, 216 F.Supp.

621 (E.D.Ark., 1963).

* ae

“Another case in which the liability of the chief of police

for the acts of the deputy or police officer was discussed, is

Pavish v. Meyers, 129 Wash. 605, 225 P. 633, 34 A.L.R. 561.

There the court stated:

“But the courts have very generally drawn a distinction

between a sheriff and a chief of police, holding that the

deputies of the former are selected by the sheriff and act

purely as his representatives, but that police officers are gen-

erally not selected exclusively by the chief of police, and are

themselves officers and do not act for the chief of police in

the performance of their official duties.’

“Casey v. Scott, supra, 82 Ark. 362, 101 S.W. 1152 (Ark.)

also involved the question of liability of a chief of police for

his police officers. There the court stated:

““*A sheriff is responsible for his deputies, for they are

acting in his private service in his name and stead, and are

only public officers through him. A chief of police may select

a police force, but he is not responsible for their acts, as each

policeman is a public servant himself. So under this ordi-

nance, the dog catcher was a public servant selected by the

chief of police just as a patrolman would be selected by him,

or a mayor or other appointing power. There is no liability

in such cases, unless the appointing officer fails to exercise

reasonable care in the selection of the appointee—a question

not presented here.’

“Very clearly the general rule with respect to the lia-

bility of a chief of police applies to this case. The statutes

clearly require that the officers of the police force of Kansas

City be selected by the chief of police from a list of those who

have qualified pursuant to an examination, and the chief of

police is required under the law to make all selections from

that list, and such officers are in no sense the personal ap-

pointees of the chief of police.

“The police officers are public officials just as the chief

of police is a public official, and their duties are prescribed

by the authority under which their positions are created.”

Jordan v. Kelly, supra, 223 F.Supp. at 737-739.

of og Pebehoisgo tas uaa ans or nina RNa eaten aldY Beg ene NO i

lak te! abet

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pet hag Sith hatha He ia 8 iin AR AR

Jaffe, Suits Against Governments and Officers: Dam-

age Actions, 77 Harv.L.Rev. 209 (1963); Note, The Doc-

trine of Official Immunity Under the Civil Rights Act,

68 Harv.L.Rev. 1229 (1955). In Norton v. McShane, 5 Cir.

1964, 332 F.2d 855, cert. denied, 380 U.S. 981, 85 S.Ct 1345,

14 L.Ed.2d 274, we found that various federal executive

officials were immune from tort liability under federal

common law, where they “were acting within the scope

of their authority or in the discharge of their duties.” See

also United States v. Faneca, 5 Cir. 1964, 332 F.2d 872.

We were careful to point out, however, that the immunity

doctrine might be different with regard both to common

law actions against state officials, governed by state law,

332 F.2d at 860 n. 6, and to civil rights suits against state

officials, governed by section 1983:

“Up to this time we have not referred to cases

brought under the Civil Rights Acts, such as Lewis

v. Brautigam, 5 Cir. 1955, 227 F.2d 124, 55 A.L.R.2d

505. The question involved in these cases is the extent,

if any, to which the Civil Rights Acts have abrogated

the immunity doctrine. While it is clear that the

common-law immunity afforded legislative and judicial

officers applies in suits under the Civil Rights Acts,

there remains much uncertainty as to the extent to

which immunity for subordinate executive officials

applies, if it applies at all. In view of our conclusion

later in this opinion that the instant suits are not with-

in the purview of the Civil Rights Acts, we do not

decide at this time the scope of official immunity

under those statutes. We need only say that the doc-

trine may be given more limited application in those

suits than it has been given at common law.” 332

F.2d at 860-861.

While official immunity has been extended under sec-

tion 1983 to legislative and judicial officers, Pierson v. Ray,

supra; Tenney v. Brandhove, 1951, 341 U.S. 367, 71 S.Ct.

783, 95 L.Ed. 1019; Martone v. McKeithen, 5 Cir. 1969,

413 F.2d 1373, there has been a reluctance to stretch the

doctrine too far, as was well expressed in Jobson v. Henne,

2 Cir. 1966, 355 F.2d 129, 133-134 (Footnotes omitted):

“Thus we reach the question whether ese de-

fendants by reason of their offices should be immune

from the tort liability imposed by § 1983. The Civil

Rights Acts in general, and § 1983 in particular, are cast

in terms so broad as to suggest that in suits brought

under these sections common law doctrines of immunity

can never be a bar. Nevertheless, courts have nar-

rowed the scope of these provisions by applying cer-

tain common law notions of official immunity from

suit; it is now clear, for example, that the common

law immunity from suit afforded legislative and ju-

dicial officers continues to have force in suits brought

under the Civil Rights provisions. See generally,

Note, The Doctrine of Official Immunity Under the

Civil Rights Acts, 68 Harv.L.Rev. 1229 (1955).

“It should be equally clear that oth the language

and the purpose of the Civil Rights Acts are incon-

sistent with the application of common law notions

of official immunity in all suits brought under these

provisions. See Norton v. McShane, 332 F.2d 855,

861 (5 Cir. 1964) cert. denied, 380 U.S. 981, 85 S.Ct.

1345, 14 L.Ed.2d 274 (1965). In suits brought under

§ 1983 an indispensable element of a plaintiff’s case is

a showing that the defendant (or defendants) acted

“under color of any statute, ordinance, regulation,

custom, or usage, of any State * * *.” 42 USC.

§ 1983. This test can rarely be satisfied in the case

Ste

Hoe ee.

inig ety SAE oh EES OPO CER PL

| ce ‘Shik pee saaa isin

—

of anyone other than a state official. See Collins v.

Hardyman, 341 U.S. 651, 662, 71 S.Ct. 937, 95 L.Ed.

1253 (1951). To hold that all state officials in suits

brought under § 1983 enjoy an immunity similar to

that they might enjoy in suits brought under state

law “would practically constitute a judicial repeal of

the Civil Rights Acts.” Hoffman v. Halden, 268 F.2d

280, 300 (9 Cir. 1959). Furthermore, and perhaps more

basically, the purpose of § 1983 as well as the other

Civil Rights provisions is to provide a federal remedy

for the deprivation of federally guaranteed rights in

order to enforce more perfectly federal limitations on

unconstitutional state action. To hold all state officers

immune from suit would very largely frustrate the

salutary purpose of this provision. We conclude the

defense of official immunity should be applied sparingly

in suits brought under § 1983. Cf. Robichaud v. Ronan,

351 F.2d 533 (9 Cir.1965).”

[22, 23] In the present case there can be no question

of official immunity. The Mississippi common law recog-

nizes no immunity for sheriffs, wardens, police officers, or

firemen charged with false imprisonment or tortious treat-

ment of prisoners. See, e. g., Sheffield v. Reece, supra;

Farmer v. State, supra; State for Use of Powell v. Moore,

supra; Vice v. Holley, 1906, 88 Miss. 572, 41 So. 7. Like-

wise, there is no immunity for these officials under section

1983. E. g., Whirl v. Kern, supra (sheriff); Joseph v.

Rowlen, 7 Cir. 1968, 402 F.2d 367 (police officers); Cohen

v. Norris, 9 Cir. 1962, 300 F.2d 24 (same); Wright v. Mc-

Mann, supra (warden); Sostre v. Rockefeller, supra

(same); Roberts v. Williams, supra (same); Beauregard v.

Wingard, S.D.Cal.1964, 230 F.Supp. 167, 174 (same); see

Monroe v. Pape, supra; Nesmith v. Alford, supra.

In conclusion, we have found that plaintiffs should be

granted judgment as to liability (1) under section 1983 for

——_

cruel and unusual punishment and (2) under Mississippi

state law for false imprisonment and mistreatment at

Parchman. We hold that under the federal section 1983

claim defendants Robinson, Rickard, Cowart, Beach, Flow-

ers, Cameron, and Breazeale are liable jointly and severally

for the damages flowing from the illegal treatment at

Parchman. Under the pendent state claims these defend-

_.ants are liable jointly and severally for the damages flow-

ing from the illegal incarceration following the arrests

and the resulting treatment at Parchman. Judgment is re-

versed and rendered as to liability, leaving open for trial

the question of damages, compensatory and punitive.

VI.

Plaintiffs finally urge us to reverse the trial court’s

dismissal of the action prior to trial, with prejudice, as to

26 of the initial plaintiffs. This dismissal was ordered be-

cause of failure to answer written interrogatories pro-

pounded by defendants under Fed.R.Civ.P. 33.

Fed.R.Civ.P. 37, as it read in 1969,’ provided several

sanctions for failure to make discovery, including dismissal

14. Rule 37 provided in part:

(b) Failure to Comply With Order.

(1) Contempt. If a party or other witness refuses to be

sworn or refuses to answer any question after being directed to

do so by the court in the district in which the deposition is being

taken, the refusal may be considered a contempt of that court.

(2) Other Consequences. If any party or an officer or

managing agent of a party refuses to obey an order made under

subdivision (a) of this rule requiring him to answer designated

questions, or an order made under Rule 34 to produce any docu-

ment or other thing for inspection, copying, or photographing or

to permit it to be done, or to permit entry upon land or other

property, or an order made under Rule 35 requiring him to submit

to a physical or mental examination, the court may make such

orders in regard to the refusal as are just, and among others the

following:

(i) An order that the matters regarding which the

questions were asked, or the character or description of the

thing or land, or the contents of the paper, or the physical or

mental condition of the party, or any other designated facts

shall be taken to be established for the purposes of the action

in accordance with the claim of the party obtaining the order:

of the action. The trial court based its dismissal either on

(ii) An order refusing to allow the disobedient party

to support or oppose designated claims or detenses, or pro-

hibiting him from introducing in evidence designated docu-

ments or things or items of testumony, or trom introducing

evidence of physical or mental condition;

(iii) An order striking out pleadings or parts thereof, or

staying further proceedings until the order is obeyed, or ais-

missing the action or proceeding or any part thereof, or ren-

dering a judgment by default against the disobedient party;

(iv) In lieu of any of the foregoing orders or in addi-

tion thereto, an order directing the arrest of any party or

agent of a party for disobeying any of such orders except an

ordei to submit to a physical or mental examination,

(d) Failure of Party to Attend or Serve Answers.

lf a party or an officer or managing agent of a party wilfully

fails to appear before the officer who is to take his deposition,

after being served with a proper notice, or tails to serve answers

to interrogatories submitted under Rule 33, after proper service

of such interrogatories, the court on motion and notice may strike

out all or any part of any pleading of that party, or dismiss the

action or proceeding or any part thereof, or enter a judgment by

default against that party.

Rule 37 was revised in 1970 to read in relevant particuiars’

as tollows:

(b) Failure to comply with order.

(1) Sanctions by court in district where deposition is taken.

If a deponent fails to be sworn or to answer a question after being

directed to do so by the court in the district in which the depo-

sition is being taken, the failure may be considered a contempt

of that court.

(2) Sanctions by court in which action is pending. If a

party or an officer, director, or managing agent of a party or a

person designated under Rule 30(b) (6) or 31l(a) to testify on

behalf of a party fails to obey an order to provide or permit dis-

covery, including an order made under subdivision (a) of this

rule or Rule 35, the court ir which the action is pending may make

such orders in regard to the failure as are just, and among others

the following:

(A) An order that the matters regarding which the order

was made or any other designated facts shali be taken to be estab-

lished for the purposes of the action in accordance with the claim

of the party obtaining the order;

(B) An order refusing to allow the disobedient party to

support or oppose designated claims or defenses, or prohibiting |

him from introducing designated matters in evidence;

staying further proceedings until the order is obeyed, or dismiss-

ing the action or proceeding or any part thereof, or rendering a

judgment by default against the disobedient party;

——

Rule 37(b) (2) (iii) or on 37(d). The validity of this ac-

tion must be measured against the test set forth in Societe

Internationale Pour Participations Industrielles et Com-

merciales, S. A. v. Rogers, 1958, 357 U.S. 197, 78 S.Ct. 1087,

2 L.Ed.2d 1255, and reiterated by us in such cases as Dor-

sey v. Academy Moving & Storage, Inc., 5 Cir. 1970, 423 F.2d

858; B. F. Goodrich Tire Co. v. Lyster, 5 Cir. 1964, 328 F.2d

411, and Read v. Ulmer, 5 Cir. 1962, 308 F.2d 915. See

also 4 J. Moore, Federal Practice {] 37.03 [2.-1], [2.-5]

(1970). In Dorsey, Judge Wisdom stated the following

test:

“The sanctions available under Rule 37(b) for

such conduct are predicated upon the presence of such

factors as willful disobedience, gross indifference to the

(D) In lieu of any of the foregoing orders or in addition

thereto, an order treating as a contempt of court the failure to

obey any orders except an order to submit to a physical or mental

examination;

(E) Where a party has failed to comply with an order under

Rule 35(a) requiring him to produce another for examination,

such orders as are listed in paragraphs (A), (B), and (C) of this

subdivision, unless the party failing to comply shows that he is

unable to produce such person for examination.

(d) Failure of party to attend at own deposition or serve

answers to interrogatories or respond to request for inspection.

If a party or an officer, director, or menaging agent of a party or

a person designated under Rule 30(b) (6) or 31(a) to testify on

behalf of a party fails (1) to appear before the officer who is to

take his deposition, after being served with a proper notice, or (2)

to serve answers or objections to interrogatories submitted under

Rule 33, after proper service of the interrogatories, or (3) to

serve a written response to a request for inspection submitted

under Rule 34, after proper service of the request, the court in

which the action is pending on motion may make such orders in

regard to the failure as are just, and among others, it ~ ay take

any action authorized under paragraphs (A), (B), and (C) of

subdivision (b) (2) of this rule. In lieu of any order or in addi-

tion thereto, the court shall require the party failing to act or

the attorney advising him or both to pay the reasonable expenses,

including attorney’s fees, caused by the failure, unless the court

finds that the failure was substantially justified or that other cir-

cumstances make an award of expenses unjust.

The failure to act described in this subdivision may not be

excused on the ground thac the discovery sought is objectionable

unless the party failing to act has applied for a protective order

as provided by Rule 26(c).

, bY . <7

44 |

right of the adverse party, deliberate callousness, or

gross negligence. The sanctions are not predicated up- ’

on a party’s failure to satisfy fully the requirements

of < production order when the failure ‘was due to in-

ability fostered neither by its own conduct nor by cir-

cumstances within its control’. Societe Internationale |

Pour Participations Industrielles et Commerciale. )

S. A. v. Rogers, 1958, 357 U.S. 197, 211, 78 S.Ct. 1087,

1095, 2 L.Ed.2d 1255, 1266.

“(The Rule] should not be construed to authorize

dismissa] * * * because of * * * noncompliance with a |

pretrial production order when it has been estab- )

lished that failure to comply has been due to inability,

and not to willfulness, bad faith, or any fault of peti-

tioner. 357 U.S. at 212, 78 S.Ct. at 1096.

“The rule is designed to empower the court to com-

pel production of evidence by the imposition of rea-

sonable sanctions. The court, however, should not go

beyond the necessities of the situation to foreclose the

merits of controversies as punishment for general mis-

behavior. B. F. Goodrich Tire Co. v. Lyster, 5 Cir.

1964, 328 F.2d 411; see 4 J. Moore, Federal Practice

§ 37.03 (1969).” 423 F.2d at 860-61

See also Bon Air Hotel, Inc. v. Time, Inc., 5 Cir. 1967,

376 F.2d 118, 121, cert. denied, 393 U.S. 815, 89 S.Ct. 225,

21 L.Ed.2d 179 (“The dismissal of an action with prejudice

is a drastic remedy and should be applied only in extreme )

circumstances’’).

[24] We hold that the trial court erred in dismissing

the action as to the 26 plaintiffs. The court made no find-

ing of “willful disobedience,” “gross indifference,” or “de- .

liberate callousness,” and we can find no evidence of such.

The record shows that while this action was commenced in

ara Peibing a Nera att ele ma POS Sn ee

— 45

’

)

1966 by over 150 plaintiffs, the defendants took no discov-

ery whatsoever until April 7, 1969, less than two months

prior to trial. Defendants then submitted to each plaintiff

37 interrogatories and numerous subquestions, including

several irrelevant questions which were stricken by the

court after the plaintiffs moved for a prctective order.

Plaintiffs were ordered to answer the remaining interroga-

tories by May 22, which date was extended 24 hours. The

record reveals that counsel made a good faith effort to se-

cure the required answers, but simply ran out of time.

Plaintiffs’ counsel were able to compile over 300 pages of

discovery, but simply were unable to contact all plaintiffs

in such a short time, especially since many of plaintiffs

had moved from Natchez after the passage of 3 years. Some

milder sanction might have been appropriate for failure to

answer, see Societe Internationale Pour Participations In-

dustrielles et Commerciales, S. A. v. Rogers, supra, 357 U.S.

at 208, 78 S.Ct. 1087. However, considering the large num-

ber of plaintiffs, the length of the interrogatories, and the

dilatoriness on the part of defendants, cf. B. F. Goodrich

Tire Co. v. Lyster, supra, we think the drastic remedy ap-

plied here was unjustified.

We do not intend that plaintiffs should profit from fail-

ure to respond to discovery. Our determinations as to li-

ability, however, would not be affected by the unanswered

interrogatories, the information which was sought being

largely stipulated or irrelevant to our decision. On remand

for a determination of individual damages, however, the

trial court may exercise its discretion to cure any prej-

udice to defendants. For example, it may take as admitted

in accordance with defendants’ claims those questions

which remain unanswered, Fed.R.Civ.P. 37(b) (2) (A),

or, after a reasonable time for compliance has passed, ulti-

mately dismiss the action as to those who are then in will-

— —_—

ful noncompliance. See R. De Bouard & Cie v. S. S. Ionic

Coast, S.D.'Tex.1969, 46 F.R.D. 1.

Reversed and remanded in part.

: BELL, Circuit Judge (concurring specially):

3 I concur specially to indicate my agreement with the

result reached by the majority, and also to record a con-

tinuing belief that all police and ancillary personnel in this

nation, whether state or federal, should be subject to the

same accountability under law for their conduct. In a

sense, this is a resurrection of the dissenting opinion of

Judge Gewin in Norton v. McShane, 5 Cir., 1964, 332 F.2d

855, 863.

and unusual punishment in violation of the Civil Rights

Statute, 42 U.S.C.A. § 1983. They were acting under color

of state law but in Norton v. McShane, we held the same:

law inapplicable to federal officers charged with conduct

| equally reprehensible. We went further and found the fed-

- eral officers immune from accountability under the com-

: mon law cause of action. I agreed then with Judge Gewin’s

;

| Here we properly hold defendants responsible for cruel

;

: strong dissent to the effect that the federal officers should

s not have been treated with impunity. It is regrettable that

we have one law for Athens and another for Rome.

Such a condition is difficult for the average citizen to |

understand and makes an already complex system of fed-

eralism needlessly more complex. In a case involving fed- |

eral officers, I would terminate this anomaly by seeking to

overrule Norton v. McShane to the end of making all police

and jailers subject to the same standard of accountability

in their treatment of the citizen.

ON PETITION FOR REHEARING AND PETITION

FOR REHEARING EN BANC

Before JOHN R. BROWN, Chief Judge, and TUTTLE,

WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN,

GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMP-

SON, MORGAN, CLARK, INGRAHAM and RONEY, Cir-

cuit Judges.

BY THE COURT:

A member of the Court in active service having re-

quested a poll on the application for rehearing en banc and

a majority of the judges in active service having voted in

favor of granting a rehearing en banc,

It is ordered that the cause shall be reheard by the

Court en banc on briefs without oral argument. The Clerk

will specify a briefing schedule for the filing of supple-

menta! briefs.

APPENDIX “B”

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 28971

KATIE RUTH ANDERSON, ET AL,

Plaintiffs-Appellants,

versus

J. J. NOSSER, ET AL,

Defendants-Appellees,

JAMES BRADLEY, ET AL,

Plaintiffs-Appellants,

versus

J. J. NOSSER, ET AL,

& Defendants-Appellees.

Appeals from the United States District Court for the

Northern District of Mississippi

(March 3, 1972)

Before BROWN, Chief Judge, and TUTTLE, WISDOM.

GEWIN, BELL, THORNBERRY, COLEMAN, GOLD-

BERG, AINSWORTH, GODBOLD, DYER, SIMP-

SON, MORGAN, CLARK, INGRAHAM, and RONEY,

Circuit Judges.

BELL, Circuit Judge: The court, having been con-

vened en banc, having considered additional briefs and

having heard oral argument, modifies the panel decision

in this matter, Anderson v. Nosser, 5 Cir., 1971, 438 F.2d

183, as follows.

The federal cause of action is premised on 42 USCA,

§ 1983. The panel decision was that the uncontradicted

evidence made out a case as a matter of law that cruel

and unusual punishment was inflicted upon plaintiffs, or

some of them, at the Parchman State Penitentiary. Sec-

tion 1983 vouchsafes “all rights, privileges or immunities

secured by the Constitution”. The complaints alleged the

deprivation of several such rights including the right not

to have cruel and unusual punishment inflicted upon plain-

tiffs as well as the right not to have summary punishment

imposed upon them without due process of law. We have

carefully considered the evidence adduced on the trial and

have concluded that the cause of action under § 1983 sounds

more in the nature of a deprivation of due process through

the infliction of summary punishment than the imposi-

tion of cruel and unusual punishment within the meaning

of the Eighth Amendment. We therefore pretermit* de-

cision on a § 1983 violation based on cruel and unusual

punishment and place our decision on the due process

clause of the Fourteenth Amendment. The result from the

standpoint of a cause of action is the same: _ the establish-

ment of a claim under § 1983 of such dimension as to war-

rant a directed verdict.

The panel concluded that a verdict should have been

directed on the cause of action based on pendant juris-

diction that plaintiffs were not taken before a magistrate

within a reasonable time as required by the Mississippi

statute. Miss. Code Ann. § 2473. We affirm this holding.

The panel also held that a verdict should have been

directed on the pendant jurisdiction claim based on mis-

, *See the special concurring opinion of Judge Simpson herein

in which JJ. Gewin, Coleman, Dyer, Morgan, Clark, Ingraham,

and Roney join.

a wd, eal IS at ALE PAI AIOE Tic

treatment of prisoners at the state penitentiary as pro-

scribed by Mississippi law. Miss.Code Ann. § 7930 (1964

Ann. Supp.). This portion of the panel decision will be

deleted. This is for the reason that this issue was not

submitted to the jury and there was no objection on the

part of plaintiffs as to the failure to submit it. We have

given careful consideration to the entire record and have

concluded that this was not an ultimate issue in the case

although such a cause of action was alleged in the amended

complaints.

As to the causes of action based on § 1983 and on

failure to take plaintiffs before a magistrate, and the di-

rected verdict on each cause as to liability, we next con-

sider which defendants were due to be cast under the di-

rected verdict. The panel imposed joint and several li-

ability on defendants Brazeale, Robinson, Cameron,

Cowart, Beach, Rickard and Flowers. We modify this hold-

ing.

II.

The facts center on two principal events. The first

occurred in Natchez, Mississippi. The other was at the

Parchman State Penitentiary, 215 miles away.

The Natchez occurrence included the arrest of plain-

tiffs while engaged in a civil rights march without a parade

permit on one of the principal streets of Natchez, and their

subsequent detention at the city auditorium for several

hours. The arrests took place on Saturday, Sunday, and

Monday, October 2, 3, and 4, 1964 under the same circum-

stances. The children who were arrested were released

to their parents and some of the arrestees were released

on bonds of $200 or on their own recognizance. The re-

maining arrestees were removed to the Parchman State

Penitentiary on commercial buses, three busloads on Sat-

urday, two on Sunday and one on Monday.

[SS ae

—

The jails of Natchez were insufficient to accommodate

the number who did not make bond, and no arrangements

were made to take them before a magistrate so that the

magistrate might determine whether they should be held.

Chief of Police Robinson checked with several counties

and municipalities in an effort to find space for the

arrestees but had no success. He then arranged to have

them sent to Parchman.

The Natchez defendants are Chief Robinson, four city

policemen, Cowart, Beach, Rickard, and Flowers, and Fire

Chief Cameron who was pressed into service by the city

council as an ex officio policeman. All assisted Chief

Robinson but he testified, and this testimony was uncon-

tradicted, that he made every arrest. It also appears

that he was in complete charge at the auditorium. He did

not go to Parchman but arranged over the telephone to

have defendant Brazeale, the superintendent of the Parch-

man Penitentiary, receive and detain the arrestees pending

their making bond. They made bond over the next several

days, with the last arrestee leaving Parchman on Wednes-

day, October 6.

The Mississippi statute requires in specific terms that

“Every person making an arrest shall take the offender

before the proper officer without unnecessary delay for

examination of his case.” Section 2473, supra. Chief Rob-

inson testified that he was familiar with this statute and

with his duty under it. He also testified that he contrived

the rule that no one would be taken before a magistrate who

had not posted bond, and that he knew that posting of bond

had nothing to do with the requirement that the arrestees

be taken before a magistrate. This makes it clear, as the

panel held, that Chief Robinson failed to comply with this

statute. However, the panel went further to hold the fire

chief and the four police officers for this same dereliction.

Dich 4 ee RAN ean ra AT es IRIE a thy SA

iat Ard aio Rie I Ret Mr AD Wie bee

It must be remembered that this holding is on the con-

tention that a verdict should have been directed against

them, the jury having found no liability. Unlike the absence

of conflicting facts on the‘ question in the case of Chief

Robinson, there is a considerable conflict as to these five

defendants. There is no testimony that the fire chief or the

four police officers ever arrested anyone or that they were

in position to take plaintiffs before a magistrate. As stated,

the Chief of Police made every arrest and was in complete

charge at the auditorium. In our view, whether they

violated this statute as arresting officers was a jury question,

and it follows that there is no basis for directing a verdict

against them on this claim. The panel properly held that

a verdict should have been directed against Chief Robinson

on this claim.

The panel also held that Brazeale, the Parchman

superintendent, who had nothing whatever to do with the

Natchez events, was jointly and severally liable under this

state claim. The question then is whether a verdict should

have been directed against Brazeale for having failed to take

the arrestees before a magistrate. He had nothing to do

with the arrests or the detention in Natchez. It appears

without contradiction that he had no part in the bonding

procedures established by Chief Robinson for the arrestees

in Natchez and Parchman. His sole role was that of jailer

at Parchman. The statute places the responsibility on the

arresting officer. Thus we conclude that a directed ver-

dict was not due on this claim as to Brazeale.’

This leaves the claim based on the punishment in-

flicted upon plaintiff-arrestees at Parchman. This pun-

ishment was solely the work of Brazeale. He agreed to

1. There is some confusion in the record as to whether

Brazeale was tried on this issue. It appears that a summary judg-

ment had theretofore been granted in his favor on this claim. At

any rate, our holding moots the question.

—

detain the arrestees for the City of Natchez. No ar-

rangements were made as to the type of custody. He alone,

insofar as the record shows, determined that he would

place them in a section of the prison reserved for felons who

for one reason or another were required to be in maximum

security. He removed these felons from this section of the

prison and placed them elsewhere. He had a set pro-

cedure which applied to felons in this section of the prison

and which was different from the treatment accorded the

other 1800 or so felons at Parchman who were not main-

tained in maximum security. Brazeale made the decision

to apply this procedure to the arrestees from Natchez

rather than giving them the milder treatment accorded

felons generally.

One facet of this special treatment was that each per-

son was compelled to take a laxative upon admission to

maximum security. He applied this procedure to the ar-

restees who testified. Another tactic then employed in this

section of the prison was that male prisoners were deprived

of their clothing and issued underwear as their sole wearing

apparel while confined.* This tactic was doubly imposed

on the male arrestees. They were stripped of their clothing

and left naked for varying periods of time, some for as long

as 36 hours. None were issued underwear. Some were

allowed to claim and wear their own underwear, one was

allowed to wear the top to his underwear but not his shorts.

As to the female arrestees who testified, they were

compelled to take the laxative. They were deprived

of their coats and other outer garments, stockings and

shoes, but were allowed to wear their dresses and un-

dergarments.

2. The present superintendent of Parchman testified that

the practices of forcing the consumption of laxatives on prisoners

in maximum security and giving them only underwear for clothing

has been discontinued.

ne 4 ¥ Pe eee ee th ere | fold ai

Sestak uni oee é

oo re se

Tay Sedan? SRM A ted

sie ati anaes

All arrestees were confined in cells designed to ac-

commodate two persons, having two bunk beds, one

lavatory, and one commode. They were not given mat-

tresses, pillows or cover. The temperature ranged from

60° to 70°. From four to eight persons were placed in each

of the cells. They slept on the bare steel beds or on the

floor. They huddled together for warmth.

Despite the forced consumption of the laxative, toilet

paper was in short supply. The penitentiary authorities

blamed this on the fact that plaintiffs wasted the paper

by covering the bunks with it. This may have been true,

but it appears without dispute that toilet paper was in

short supply. The penitentiary was also niggardly in sup-

plying sanitary napkins to some of the female plaintiffs, it

becoming necessary for one plaintiff to use her slip instead

and for another to tear her slip into pieces for this pur-

pose.

Two prisoners suffered so-called “breakdowns” dur-

ing the confinement and were sent back to Natchez.

These facts appear without dispute,’ and we think that

they make out a case as a matter of law against Brazeale

of summary punishment without any semblance of due

process within the teachings of Screws v. United States,

1945, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495. See also

Monroe v. Pape, 1961, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d

492 (violation of Fourth Amendment through illegal search

and mistreatment during the search by police officers stated

a cause of action under § 1983). In Screws, a prisoner was

beaten to death by the arresting officers, one of whom was

the sheriff. He was prosecuted under 18 USCA, § 242 for

3. Plaintiffs also complain of having been given blood tests.

The purpose of and the need for these tests was at least sub-

stantially disputed. One arrestee was found to have an infectious

disease. The tests were given in the interest of preventing the

spread of the disease. The tests disclosed that several others had

infectious diseases. Whether this was an appropriate procedure

and justified in an institution such as a prison under the circum-

stances was a jury question.

BE LEP eR REE NETO

violating the civil rights of the prisoner. This statute is

similar to § 1983* in all respects except for the use of the

word “willfully’ in the criminal statute. See Monroe v.

Pape, supra, 365 U.S. at 187.

Here plaintiff arrestees were not beaten. However,

they were charged with the minor offense of parading with-

out a license in violation of a municipal ordinance for which

the maximum sentence was a fine of $300 or 90 days. They

had not been convicted and were in Parchman for deten-

tion pending the making of bond. The punishment they

suffered has been described; it was designed for incorrigible

felons but exceeded even the design It was inflicted arbi-

trarily and in the unfettered discretion of Superintendent

Brazeale. He was the prosecutor, judge and jury in in-

flicting what we determine to be summary punishment.

The imposition constituted a violation of a principle basic

to the concept of due process of law—no punishment of

mere arrestees without a trial. Screws, supra, 325 U.S. at

106.

We have previously held that a verdict should have

been directed against Chief Robinson, the arresting officer,

4. 42 USCA, § 1983:

“Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory, sub-

jects, or causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities secured

by the Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other proper

proceeding for redress.”

18 USCA, § 242:

“Whoever, under color of any law, statute, ordinance,

regulation, or custom, willfully subjects any inhabitant of

any State, Territory, or District to the deprivation of any

rights, privileges, or immunities secured or protected by the

Constitution or laws of the United States, or to different

punishments, pains, or penalties, on account of such inhabi-

tant being an alien, or by reason of his color, or race, than are

prescribed for the punishment of citizens, shall be fined not

more than $1,000 or imprisoned not more than one year, or

both; and if death results shall be subject to imprisonment for

any term of years or for life.”

for failing to take plaintiffs before a magistrate. We now

hold that a verdict should have been directed as requested

against Superintendent Brazeale for violating plaintiffs’

constitutional rights secured to them by § 1983, to-wit:

denial of due process of law through summary punishment.

This leaves for decision whether Chief Robinson and

the other Natchez defendants should have been included,

along with Superintendent Brazeale, in the directed verdict

for the punishment at Parchman. In Nesmith v. Alford,

5 Cir., 1963, 318 F.2d 110, we applied principles of tort law

and charged all who had a substantial role in an arrest with

a § 1983 violation. We found that their actions throughout

were interlocked and intertwined. 318 F.2d at 119. The

chain of causation which started in Natchez, for purposes of

a directed verdict, may well have been broken or at least a

jury might find that it was broken, as the jury here may

have found, when plaintiffs were dispatched from Natchez

to Parchman. On the other hand, it may be argued that

as to Robinson, plaintiffs were at Parchman without hav-

ing been taken before a magistrate, and that an appearance

before a magistrate might have resulted in their not having

been taken to Parchman. They would thus have avoided

the punishment in question. It is true that Chief Robinson

put them beyond the reach of a magistrate by sending them

to Parchman. Nevertheless, questions of causation are

usually for a jury under the Seventh Amendment. See

Boeing Company v. Shipman, 5 Cir., 1969, 411 F.2d 365,

374,5 on when a verdict should be directed. Here the jury

5. “, . . If the facts and inferences point so strongly and

overwhelmingly in favor of one party that the Court be-

lieves that reasonable men could not arrive at a contrary

verdict, granting of the motions is proper. On the other

hand, if there is substantial evidence opposed to the mo-

tions, that is, evidence of such quality and weight that

reasonable and fair-minded men in the exercise of im-

partial judgment might reach different conclusions, the

motions should be denied, and the case submitted to the

| Se al

oa WEEE es CaaS OMe? Oo pabemgeminy,

—

might have drawn the inference that the conduct of

Brazeale in inflicting the punishment described above

was not foreseeable to Robinson. See Prosser, Law of

Torts (4 Ed., 1971), p. 290, on questions of foreseeability

being for the jury. Indeed, there is nothing in the record

from which one might draw an inference that such unusual

punishment was foreseeable.

There was no showing whatever that the other Natchez

defendants, Robinson’s subordinates, played any part

in the decision to send the arrestees to Parchman. This

circumstance supports the position that a directed verdict

was not due against them on the § 1983 claim. We thus

conclude that plaintiffs were not entitled to a directed ver-

dict on the § i983 claim as to liability against Robinson,

Cameron, Cowart, Beech, Rickard and Flowers.

In sum, we hold that a directed verdict was due

against Brazeale as to liability on the § 1983 claim based

on the improper treatment at Parchman. A directed ver-

dict was due against Chief Robinson as to liability for his

violation of the Mississippi statute in failing to take plain-

tiffs before a magistrate.

On remand, all plaintiffs who can show themselves

as having suffered the punishment as described herein

under the § 1983 claim may assert their claim for damages.

The same is true as to the plaintiffs who fall into the cate-

gory of those who were not taken before a magistrate. The

§ 1983 damages will be asserted against Brazeale alone.

The damages for failing to take plaintiffs before a magis-

trate will be asserted against Robinson alone.

Except as modified, the results reached in the panel

decision are adopted.

AFFIRMED in part; REVERSED in part; REMANDED

for further proceedings not it:consistent herewith.

— oo tS op = not face ie gar i te Se

—

SIMPSON, Circuit Judge, with whom GEWIN, COLE-

MAN, DYER, MORGAN, CLARK, INGRAHAM and

RONEY, Circuit Judges, join, CONCURRING SPE-

CIALLY:

I voice no objection to the opinion prepared for the

en banc Court by Judge Bell with one slight but neverthe-

less significant exception.

Rather than hold that we “pretermit decision on a §

1983 violation based on cruel and unusual punishment” I

would decide forthrightly that no violation of Eighth

Amendment rights warranting the direction of a verdict

as to liability was made out below, and definitely disap-

prove the panel decision to this effect.

TUTTLE, Circuit Judge, with whom BROWN, Chief

Judge, and W'SDOM, Circuit Judge, join, CONCURRING

IN PART AND DISSENTING IN PART:

Having concurred in the original opinion for the court,

see Anderson v. Mosser, 5 Cir. 1971, 438 F. 2d 183, I now

adhere to all that is said in that opinion. I agree that the

relief now granted by the court under the provisions of

the Fourteenth Amendment are appropriate, but, like my

colleague, Judge Goldberg, I also believe that the relief

afforded against the other defendants was appropriate.

The breaches of the plaintiff’s rights by all of these de-

fendants was, in light of the fact that they had been con-

victed of no crime, not only a violation of their Fourteenth

Amendment rights, but their rights not to be subject to

cruel and unusual punishment under the Eighth Amend-

ment. For myself, I would hold that the actions described

in the opinion of the court that occurred at Parchman were

cruel and unusual punishment, no matter what the status

of the person in custody. However, the circumstance of

1. My views as to civil liability under the cruel and unusual

punishment clause under the Eighth Amendment are as explicated

in my special concurrence in Arthur Roberts, by his father and

guardian, etc. v. Columbus oe et al,, [No. 28,829, decided

April 1, 1971, 5 Cir. 1971, ........ F.2d .......]

se Rl et

—

the confinement of these plaintiffs, none of whom had been

convicted of any offense, makes it even more apparent that

the Eighth Amendment prohibits what was done to them.

Ever since the Supreme Courts decided Weems v. United

States in 1909, 217 U.S. 349, it has been held, as stated in

the syllabus of the Weems opinion, that “in interpreting

the Eighth Amendment it will be regarded as a precept of

justice that punishment for crime should be graduated in

proportion to the offense.”

I, therefore, concur in the opinion and judgment of

the court as far as it goes to afford relief. I dissent from

that part of the opinion and judgment which denies re-

lief as against the defendants covered by the original

opinion and which holds that relief afforded is mandated

only by the prohibitions contained in the Fourteenth

Amendment.

GOLDBERG, Circuit Judge, with whom BROWN,

Chief Judge, WISDOM and THORNBERRY, Circuit

Judges, join, CONCURRING IN PART AND DISSENTING

IN PART:

I neither retreat nor recede one whit from my analysis

of the facts and law in writing for the original panel in

this case. See Anderson v. Nosser, 5 Cir. 1971, 438 F.2d

183. Specifically, I retract not one jot or tittle from the

decision that the perpetrated deeds which occurred at

Parchman constitute cruel and unusual punishment inter-

dicted by the Eighth Amendment. While believing that the

heinousness of the Parchman events does not tolerate ju-

dicial pretermission, I nevertheless do not dissent from the

holding that such perpetrations also violate the Due

Process protections afforded by the Fourteenth Amend-

ment. There are many roads to Rome, and while one is

clearly marked “Eighth Amendment,” I agree that passage

can be had along that wide, familiar boulevard known

as “Due Process.”

aie ties ie Ney

Shae 5

While I accede to the applicability of the Due Process

avenue, I am unable to assent to the wholesale absolution

of various Natchez defendants. My Brother Bell’s opinion

limits liability for the Natchez derelictions to Chief of

Police Robinson, exculpating his subordinates and associ-

ates. It is clear that the Fire Chief and the four police

officers, acting pursuant to Robinson’s commands, assisted

in arresting the demonstrators, in detaining them in the

auditorium, and in herding them off to Parchman. Since

these Natchez defendants participated directly in the denial

of magistratical confrontation which resulted in the in-

vasion of the plaintiffs’ rights, I perceive no reason to splice

the rope that noosed the plaintiffs. Indeed, any other re-

sult runs counter to this court’s decision in Nesmith v. Al-

ford, 5 Cir. 1963, 318 F.2d 110, cert. denied, 1964, 375 U.S.

829. In addition, I am unable to concur in the exoneration

of Superintendent Breazeale for his participation in ‘the

failure to take the plaintiffs before a magistrate. The

noose that began in Natchez finds its final strands in the

hands of the Superintendent, and Nesmith dictates that the

very minimum of liability for Natchez’s activities must be

visited against the jailer.' See Whirl v. Kern, 5 Cir., 1969,

1. The court below entered summary judgment for the de-

fendant Breazeale concerning the plaintiffs’ claim for false im-

prisonment. Defendants assert that this court cannot now reverse

that decision since’ no appeal was taken therefrom. The simple

answer to this contention can be found in F.R.C.P. 54. Rule 54(b)

provides that unless otherwise appealable by statute a district

court order adjudicating less than all of the claims in a single

action is not a final judgment and thereby appealable unless the

district judge makes an express determination that there is no

just reason for delay and an express direction for the entry of

judgment. Thus, if a district judge does not “certify” a partial

adjudication, it remains interlocutory in nature and cannot be

appealed until properly certified or until the district court enters

judgment disposing of all of the claims and all of the parties. The

court below made no such certification, and hence the court carried

Breazeale’s summary judgment order with the case. That order

did not become final until after the jury returned its verdict and

the district court entered judgment which disposed of the entire

case. See generally, 6 J. Moore, Federal Practice f 54.28 and

cases cited therein.

—

407 F.2d 781, cert. denied, 396 U.S. 901. Repressing any

penchant for verbiage, I simply iterate the convictions ex-

pressed in my original opinion regarding the scope and na-

ture of the defendants’ liability.

APPENDIX “C”

8. The contested issues of fact are as follows:

a. Were the demonstrations of October 2, 3 and 4,

1965, peaceful and orderly?

b. Were the arrests of Octobér 2, 3 and 4 made in

good faith and with probable cause?

c. Were the plaintiffs or any of them pushed, cursed,

hit, kicked or pushed prior to and while being loaded on

| the buses to the City Auditorium?

d. While aboard the paddy wagon and enroute to

the City Auditorium were the plaintiffs harassed by be-

ing cursed, threatened and made to lose their balance by

sudden unnecessary stops?

e. Were plaintiffs informed by the defendants of

their right to counsel, their right to make a telephone

call or their right to be released on bail?

f. Did defendants ignore or impede the release of

plaintiffs by refusing bail bonds to be posted by, or on

behalf of, certain plaintiffs?

g. Upon plaintiffs’ arrival at Parchman, were they

made to stand in the cold for about one hour, cursed and

insulted by Natchez policemen and firemen?

h. Upon plaintiffs’ arrival at Parchman, were they,

or any of them, kicked or beaten by Natchez police of-

ficers and firemen or by patrolmen of the Mississippi

Highway Safety Patrol?

—

cr : mee

=e?

i. Were male plaintiffs made to strip naked and

remain so for a day or more and thereafter only allowed

to wear undergarments?

j. Were female plaintiffs required to expose them-

selves to the view and obscene remarks of male prison

employees and others?

k. Were the majority of plaintiffs compelled by

trick, threat of force and violence to consume a cupful

of harsh laxative?

lL Did said laxative render plaintiffs sick, disrupt

their normal bowel control and cause frequent defeca-

tion?

m. While incarcerated in Parchman did the plain-

tiffs have mattresses, blankets and pillows?

n. Were the cells crowded beyond capacity with

plaintiffs?

o. By reason of cell overcrowding and the laxative

given to the plaintiffs were the cells rendered unsanitary

and unhealthy?

p. Were the plaintiffs ever allowed a shower?

q. Were the cells unheated?

r. Did prison employees open windows or turn on

fans for the purpose of creating cold and unhealthy con-

ditions for the plaintiffs?

s. What was the temperature in the cells?

t. Were plaintiffs given adequate toilet paper under

the circumstances?

u. Were plaintiffs denied drinking cups and soap?

v. Was running water available in the cells?

w. Was the food at Parchman fit for human con-

sumption?

J eee oe taeda eli l

ANSE StS LR:

x. Were plaintiffs made to submit to blood tests

against their will?

y. Was medical attention at Parchman refused or

withheld?

z. Were plaintiffs or any of them cursed, threatened

with bodily harm and being doused with cold water when

they asked for medical attention?

aa. Did plaintiffs have to make their own arrange-

ments for transportation back to Natchez and pay any ex-

penses they incurred themselves?

bb. Did plaintiffs undergo pain and suffering, seri-

ous mental and physical injuries and rendered sick and

ill for varying periods with abnormal bowel functions,

colds and other respiratory infections?

cc. Were plaintiffs deprived of human dignity?

dd. Were the conditions and treatment plaintiffs re-

ceived at Parchman intended to make them as miserable

as possivle?

ee. Was the purpose of this incarceration to punish

plointiffs for and to deter them from advocating equal

rights for Negroes?

ff. Were the plaintiffs given an opportunity to make

bond and were the plaintiffs given the opportunity to

make a telephone call?

gg. Were any of the plaintiffs assaulted by any de-

fendant?

hh. Did any conspiracy exist by and between the

defendants or any of them?

ii. What was the identity of any defendant inflicting

any assault or battery on any plaintiff and of any piaintiff

who had inflicted on him or her any assault and battery?

aoe ae

ah eae

THINS rei Th.»

jj. Did any plaintiff suffer any compensatory dam-

ages?

kk. Is any plaintiff entitled to any punitive dam-

ages and, if so, from whom?

ll. Were minor plaintiffs integrated with persons

over the age of 18 years?

APPENDIX “D”

TESTIMONY OF THOMAS J. LICATA

“Q. And did you have an opportunity to observe the

food these people were served while you were there?

A. I did.

Q. Would you tell the jury what it was?

A. Well, to me it was good wholesome food...

By the Court:

Just answer the question. “Good wholesome food?

A. Yes, sir.

By Mr. Zuccaro:

Q. Did you eat it?

A. Well, I seen it cooked end it was cooked in a

good wholesome way, and it was served in a good whole-

some way. It was served on G.I. stainless steel trays,

and they had a G.I. stainless steel cup to drink out of.

They had ham, they had pork chops, they had potatoes,

they had sweet potatoes, they had beans, they had greens,

they had carrots, they had beets, and it was all good clean

food.” (R. 550)

APPENDIX “E”

“Q. Mr. Licata, did you have an occasion at any

time to be asked about any—did you have any requests

from the Natchez prisoners? Did any of them make any

requests of you?

Oh, yes.

What was that?

They asked for aspirin.

What did you do?

I got them aspirin.

Any other thing?

They asked for sanitary napkins, which they got,

the sanitary napkins. They asked for toilet paper and

they got that too.

Q. Were you generally available to all the Natchez

prisoners up there?

A. I was.

Q. How many hours a day were you available.

A. From seven in the morning until about seven

at night.

Q. Did you have occasion to see most of them during

that period of time?

A. Oh, yes, I walked down through the cell block.

Q. Did you talk to any of them?

A. Oh, yes, I talked to them. I knew most of them.

Q. Did any of them have any complaints?

A. Well, if they had any complaints I tried to the

best of my ability to satisfy them.

Q. Did anybody ask you anything about any medica]

assistance?

A. Oh, yes, whenever anyone was sick or needed to

go to the doctor they would send for the doctor.

Q. Who arranged that?

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A. I did, through the sergeant that was in charge

of maximum security.” (T. 550-554)

Q. Well, I didn’t phrase that very well. What I

meant was did the prisoners use up or run short of toilet

paper?

A. Well, now, when we first got there to the best

of my knowledge they were given plenty of toilet paper

but they misused it.

A. They were issued toilet paper in a reasonable

amount.

BY MR. JOLLES:

Q. I see. And when you say that they misused it

what you mean is that they put it on their bunk used it for

padding on the bunk?

A. And also stopping up the toilets and the 7

Q. But it is true that is what they were doing, at

least in part, putting it on their bunk, is that right?

A. They could have. I have seen it laying on the

bunk.” (T. 557-558)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.