# Appendix — Nosser v. Bradley

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1972
- **Citation:** 409 U.S. 848

## Text

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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.

2

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

—_

3

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.

a

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.

i

’

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

Pe ee o- ee

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7

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

a

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

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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.

L

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.

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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.

BA LS gt a OR LR Lidia ARR CLE

RE OER IOP TELE, ORNL ER PP way

—

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.

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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

12

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

=_

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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.

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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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15

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.”

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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:

wee it Shaw aot bimee a.
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17

“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

Ne
moe
tes

oo

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.

18

to wt ews

Pitre ses nr itr i

—

19

[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

20

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

—_—_

21

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

—

23

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.

24

[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).

—",.

25

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,

by
ae

<<
26

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

27

[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.

9
4
'
a
j
4

Ree

iced

Fa

[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,

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Patina

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oe

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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.

29

[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

30

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,

—

31

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.

.

32

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’’).

V.

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

33

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.

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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

—_

35

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

36

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

—

37

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.

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38

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.

_

39

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

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40

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

——_
41

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:

a

42

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;

(C) An order striking out pleadings or parts thereof, or
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;

——

43

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).

D
4,
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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

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— 45

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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-

— —_—
46

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

3
d
:
;
| Here we properly hold defendants responsible for cruel
3
7
:
:
;

: 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.

'
i

-_

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.

47

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.

49

L

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.

ne

a wd, eal IS at ALE PAI AIOE Tic

50

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

—

51

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

52

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.

—

53

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

tS

54

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

55

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.”

56

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,

—
57

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
SP ced © RIES BE AAD REBELS LEONEL EE

—

58

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

—

59

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.”

oe

aie ties ie Ney

Shae 5

60

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.

61

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?

Vy
62

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:

63

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?

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64

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)

65

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0946%3A2. Public record. Not legal advice.