Opposition Brief — Nosser v. Bradley

Aes merging ee

(i)

TABLE OF CONTENTS

Page

Rs ee ee ii

QUESTIONS PRESENTED FOR REVIEW ............... l

rr re os a 6 ks Kae ke keene ee ees 2

NEA ee ee ee 6

ARGUMENT:

I. The Court Below Properly Found That

Judgment Notwithstanding the Verdict Was

Appropriate on Undisputed Facts ................ 7

II. There Is No Issue of Vicarious Liability in this

Case Since the Court Below Did Not Find

Any Petitioner Liable Under the Doctrine of

I hss a ee ween Reha cee es 8

Ill. The Court Below Properly Held Petitioner

Breazeale Liable for Summarily Punishing

Respondents Without Due Process of Law........... 9

IV. The Court Below Properly Held Petitioner

Robinson Liable Under State Law Because of

His Undisputed Denial of Respondents’ Right

to be Taken before a Magistrate ................ 14

V. Petitioner Breazeale Has No Immunity From

Damages for Violation of the Constitutional

Rights of Persons in His Custody ................ 18

VI. The Facts Relied on by the Fifth Circuit in

; Reaching Its Decision Were Uncontroverted ......... 21

: ER, AO eee 23

EE oii s gb as Siac aa A RS A Add. 1

(ii)

TABLE OF AUTHORITIES

Cases:

Anderson v. Beck, 64 Miss. 113, 8 So. 167 (Miss. 1886) . . . .15-16

Bacon v. Bacon, 24 So. 968 (Miss. 1899) ............... 20

Birnbaum v. Trussell, 347 F.2d 86 (2d Cir. 1965) ......... 18

Boeing Co. v. Shipman, 411 F.2d 365 (Sth Cir. 1969) ...... 78

Brady v. Southern Ry., 320 U.S.476 (1943) .....--+--. 78

Butler v. Crumlish, 229 F. Supp. 565 (ED. Pa. 1964) ....... 10

Catlette v. United States, 132 F.2d 902 (4th Cir. 1943) ...... ll

Chesapeake & Ohio Ry. v. Martin, 283 U.S. 209(1931)....... 7

City of Topeka v.Boutwell, 35 P. 819 (Kan. 1894) ......... 20

Clark v. Kelly, 133 S.E. 365 (W.Va. 1926) .......-.---+--- 20

Cooper v. Pate, 378 RT Pree 18

Davis v. Lindsay, 321 F. Supp. 1134 (S.D.N.Y.1970)....... 10

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

(Miss. 1965) 2.0... cee eee ee eee eens 16

Farmer v. State, 79 So. 2d 528 (Miss. 1955) ............. 19

Griswold v. Connecticut, 381 U.S. 479 (1965) ............ 11

Hague v. CIO, 101 F.2d 774 (3d Cir. 1939),

Modified, 307 U.S.496(1939)) 6. 2 ee eee 18

Haines v. Kerner, 404 U.S.519(1972) ... 2... eee eee ee 18

Hale v. Johnston, 203 S.W.949 (Tenn. 1918) ......---+>> 20

Hamilton v. Love, 328 F. Supp. 1182 (E.D. Ark. 1971) . . . .10,13

Hancock v. Avery, 301 F. Supp. 786 (M.D. Tenn. 1969)... ...

Holt v. Sarver, 309 F. Supp. 362 (E.D. Ark. 1970),

aff'd, 442 F.2d 304 (8th Cir.1971) ..........-5-5-

Jobson v. Henne, 355 F.2d 129 (2d Cir. 1966) .........---

Jones v. Wittenberg, 323 F. Supp. 93 (N.D. Ohio 1971) .....-

Jordan v. Fitzharris, 257 F. Supp. 674 (N.D. Cal. 1966)... . - -

(iii)

Kelly v. Butler County Board of Commissioners,

See es SEG BED Dececccccccccncccsees 12

Kendrick v. Adamson, 180 S.E.647 (Ga. 1935) .......... 20

Knuckles v. Prasse, 302 F. Supp. 1036 (E.D. Pa. 1969). ...... 12

Monroe v. Pape, 365 U.S.167(1961) .............. 10, 18

Palmigiano v. Travisaho, 317 F. Supp. 776 (D.R.I. 1970) ..... 10

Pierson v. Ray, 386 U.S. 547(1967) .................. 19

Roberts v. Williams, 302 F. Supp. 972 (N.D. Miss.

1969), aff'd, 456 F.2d 819 (Sth Cir. 1971) ............ 20

Screws v. United States, 325 U.S.91 (1945) ........... 10-11

Seale v. Manson, 326 F. Supp. 1375 (D. Conn. 1971) ....... 10

Sheffield v. Reece, 20 Miss. 133, 28 So. 2d 745 (1947) ...... 16

Sostre v. McGinniss, 442 F.2d 178 (2d Cir.1971) ...... 13,19

State ex. rel. Tyler v. Gobin, 94 F. 48 (C.C. Ind. 1899) ... .19-20

Tyler v. Ciccone, 299 F. Supp. 684 (W.D. Mo. 1969)........ 10

United States ex. rel. Jones v. Rundle, 453 F.2d 147

i cise cha an Ons be bee bbws chk S066 08 19

Village of Nixa v. McMullin, 193 S.W. 596 (Mo. 1917)....... 20

Washington v. Lee, 390 U.S. 333 (1968) ............... 18

Wilwording v. Swenson, 404 U.S.249(1971) ............ 18

Wright v. McMann, 387 F.2d 519 (2d Cir. 1967), on

remand, 321 F. Supp. 127 (N.D.N.Y.1970) ....... 12,19

York v. Story, 324 F.2d 450 (9th Cir. 1963), cert.

Meee ree eee eee 11

Statutes:

i iiss wee h tte ke ne 66 6605505 058 passim

Mississippi Code 1942 Ann.

DCC TiA Such ks age bw ab ine 64046 6664008805 15

Te oe 17

|e eee

4 Blackstone, Commentaries on The Laws of England

DT £5256 pe6banWes ebbeehesssoceore

SA Moore, Federal Practice 450.02 (2d ed. 1971) .........

Note, Constitutional Limitations on the Conditions

of PreTrial Detention, 79 Yale L.J.941(1970) ........

IN THE

Supreme Court of the United States

OCTOBER TERM, 1971

No. 71-1571

J. J. NOSSER, et al.

Petitioners,

Vv

JAMES BRADLEY, et al. and

KATIE RUTH ANDERSON, et ai.,

Respondents.

BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioners have requested this Court to review the en

banc decision of the Court of Appeals for the Fifth

Circuit which unanimously held that petitioner Breazeale

was liable to respondents under 42 U.S.C. §1983 for

summarily punishing tiem without due process of law,

and that petitioner Robinson was liable to respondents

under Mississippi law for failing to take them before a

magistrate. This brief in opposition is submitted by

respondents to set forth their views as to why the

petition should be denied.

QUESTIONS PRESENTED FOR REVIEW

1. Whether the court below properly found that

judgment notwithstanding the verdict was appropriate

when the facts are undisputed.

2

2. Whether there is an issue of vicarious liability in this

case since the court below did not find any petitioner

liable under the doctrine of respondeat superior.

3. Whether the court below properly held petitioner

. Breazeale liable for summarily punishing respondents

without due process of law.

4. Whether the court below properly held petitioner

Robinson liable under state law because of his undisputed

denial of respondents’ right to be taken before a

magistrate.

5. Whether petitioner Breazeale has any immunity

from damages for violation of the constitutional rights of

persons in his custody.

6. Whether any of the facts relied on by the Fifth

Circuit in reaching its decision were controverted.

STATEMENT OF THE CASE

The facts as stated by petitioners are not entirely in

accord with the record or with the facts as set forth by

both the panel below and the en banc court. Accordingly,

respondents will restate the facts as shown by the record.

It is important to note at the outset that the panel

relied “solely on stipulations and undisputed testimony”

in reaching its decision (App. 9), and the en banc court

similarly relied only on facts which “appear without

dispute” (App. 54). In large part, the undisputed facts

upon which both courts imposed liability were estab-

lished by the pleadings or by stipulation or admission of

counsel, and were set forth in a pre-trial order approved

by the district judge and all counsel for all parties.’ The

remaining facts were established by admissions of peti-

1 For the convenience of the Court, the relevant portions of the

pre-trial order are reprinted as an Addendum in this Response. The

Addendum is hereafter referred to as “Add.”

3

tioners or their witnesses. Relying solely on evidence

which thus appears without dispute, we briefly review the

facts.

On October 2, 3, and 4, 1965, respondents and many

others paraded in Natchez, Mississippi to protest racial

discrimination. R. 201; Add. 1. At the time, a Nachez

ordinance prohibited parades without the written per-

mission of the chief of police. R. 201-02, 969. The

ordinance was unconstitutional, but at the time it had

not been judically so declared. R. 202. The marchers

were arrested by petitioner Robinson and other Natchez

police officers for violating this ordinance, on October 2

after proceeding half a block, on October 3 “shortly”

after the march commenced, and on October 4 after 60

yeards. R. 202, 206; Add. 1, 3.

After the arrests on Saturday morning, October 2,

respondents were transported to the Natchez city audi-

torium where they were detained until late Saturday

night. R. 203; Add. 1-2. During that time, and indeed

during the entire time they were incarcerated, they were

not brought to a judicial officer for examination of their

cases, nor was any attempt even made to secure a

magistrate. R. 203, 303; Add. 2.

Late that Saturday night those respondents arrested

during the day were transported by bus to the Mississippi

State Penitentiary at Parchman, more than 200 miles

away. Arrangements for the transfer had been made late

Friday evening, October 1, or early Saturday morning,

October 2, prior to any arrests, when an unidentified

Natchez official telephoned petitioner Breazeale, the

penitentiary superintendent, to determine if space was

available to house prisoners from Natchez. R. 569, 586.

This was the only communication made to Breazeale

regarding the transfer. R. 587. The initial group of

prisoners arrived at the penitentiary early Sunday morn-

ae

—

4

ing, October 3, and were taken to its maximum security

unit on orders of respondent Breazeale. Thirty-nine cells

had been vacated for the Natchez prisoners (R. 205,

Add. 2), and more than 250 prisoners were ultimately

housed there. R. 590; Pl. Ex. 2-A.

The State Penitentiary at Parchman is the authorized

place of detention for convicted felons in Mississippi.

Miss. Code 1942 Ann. §7922 (Supp. 1968). They are

normally housed in open camps. R. 566-67. However,

prisoners who violate prison rules or who are dangerous

may be sent to the maximum security unit for punish-

ment. R. 215, 567, 585. The punishment, in such Cases

includes stripping the prisoner, giving him a laxative,

requiring him to sleep without bedding, depriving him of

his possessions and not permitting him any exercise. See

R. 211, 584, 592.

In cases, such as the present one, where local prisoners

were sent to the State Penitentiary on the ground that

local jail space was unavailable, Superintendent Breazeale

confined them in the maximum security unit, and he saw

no reason to vary the standard punishment imposed there

on pentitentiary prisoners who committed acts requiring

additional punishment. R. 568, 585-86. Accordingly, on

their arrival at the maximum security unit, all of the male

prisoners from Natchez were required to strip naked, and

all women were ordered to remove their shoes, stockings,

Sweaters, coats, jewelry and wigs. The respondents were

required to consume a quantity of laxative.” They were

deprived of all personal belongings, including sanitary

napkins and medicines. R. 205, Add. 3.

? Petitioners state “all prisoners were offered and some took a

laxative.” The pre-trial order, which is controlling, states that all

prisoners “were required to strip naked and consume a quantity of

laxative.” Add. 3. There was no element of voluntariness.

‘ 5

Respondents were inspected and searched, and then

led to the cells. The cells contained two steel bunks

without matresses or other bedding,* a toilet without

seat, and a washbasin. R. 204-05, 556; Add. 2. See PI.

Ex. 1, a photograph of a representative cell. Up to eight

persons were placed in each cell. R. 225, 358, 555. There

were no towels, soap or the like. The temperature ranged

from 60 degrees to perhaps 70 degrees. R. 551.

After being in their cells for varying periods of time,

some of the respondents were permitted to get only their

underwear. R. 274, 378-79, 424. Some were permitted to

wear undersirts, but not underpants. R. 378. Some were

nude for periods up to 36 hours. R. 274. Others were

never given even underwear. See R. 447-48. Petitioners’

own witness did not contradict this testimony. Cf R.

556-57.

Other indignities were inflicted, as shown by uncon-

tradicted testimony of respondents. In addition to lack of

sanitary facilities such as towels, soap, toothbrushes,

toothpaste, and drinking cups, there was inadequate

toilet paper, exacerbated by the fact that each respond-

ent had been forced to consume a laxative. The rule of

thumb in issuing toilet paper seems to have been about

one lap around a roll for each person in a cell. See R.

226, 266, 325, 376, 404, 460. Some respondents had to

use their hands to clean themselves. See R. 268-69.*

> Petitioners state that “mattresses, pillows and covers were not

available in every room.” Petition at 4. The fact is that there was

no bedding in any cell. As petitioner’s own witness, Licata,

emphatically stated: “I never did see no mattresses up there no

where and I went all over it.” R. 556.

“Three reasons were given for the inadequate toilet paper. First,

petitioners’ witness testified that “they couldn’t afford to give

them a roll.” R. 559. Second, apparently some respondents

“misused” toilet paper given them by attempting to cover the bare

steel bunks with it. R. 558-59. Third, petitioners’ witness testified

—

6

Some women were not given sufficient sanitary napkins,

with the result that at least one woman was forced to use

her slip for that purpose. R. 226, 325.

There was inadequate heat. The temperature ranged

between 60 and 70, R. 551, a pleasant fall day unless one

was nude or wearing only underwear. Exhaust fans (to

“change the air,” R. 572) blew intermittently on appel-

lants. R. 225, 267-68, 423, 447. They were freezing, and

huddled together for warmth. See R. 225-26, 324,

376-77, 402, 460.

Following additional arrests on Sunday, October 3 at

about 10:30 a.m. and Monday, October 4 at about 9:00

p.m., those respondents arrested were detailed in Natchez

and then transported to the penitentiary. Their treatment

there was similar to that given the initial group. R. 206;

Add. 3. The prisoners were ultimately released by

Wednesday, October 6. R. 207; Add. 4.

At least two respondents actually “‘cracked up” as a

result of the treatment given them at the penitentiary.

See R. 563.

THE DECISION BELOW

The Fifth Circuit, sitting en banc, held that on these

undisputed facts, respondents were entitled to judgment

under 42 U.S.C. §1983 against petitioner Breazeale for

the summary punishment inflicted by him at the peni-

tentiary without any semblance of due process of law,

and against petitioner Robinson, who made the arrests,

for failing to take respondents before a magistrate as

required by Mississippi law.

We think it noteworthy that every one of the sixteen

judges of the Fifth Circuit agreed with the result outlined

that toiler paper was used to stop up toilets. R. 557. This was

contradicted. R. 380. After this, toilet paper was issued only in

“reasonable amounts,” the quantity not specified. R. 557.

7

above. Eight judges would have disapproved the holding

of the panel that the treatment imposed at the peniten-

tiary by Breazeale constituted cruel and unusual pun-

ishment prohibited by the Eighth Amendment, while five

judges would have gone further and imposed liability on

all of the original defendants who participated in the

arrests of and detention of respondents. However, all

members of the Court concurred in Judge Bell’s opinion

for the Court. While this Court is certainly not bound by

this unanimity in our view this 16-0 decision represents

imposing authority for its correctness.

ARGUMENT

THE COURT BELOW PROPERLY FOUND THAT

JUDGMENT NOTWITHSTANDING THE VERDICT

WAS APPROPRIATE ON UNDISPUTED FACTS.

As previously noted, both the panel and the en banc

court relied solely on stipulations and undisputed evi-

dence in determining that judgment notwithstanding the

verdict was appropriate. App. 9, 54. There can be no

doubt that evidence of such quality warrants withdrawing

a case from jury consideration. See e.g., Chesapeake &

Ohio Ry. v. Martin, 283 U.S. 209 (1931); 5A Moore,

Federal Practice 4 50.02 at 2319 n.10 (2d ed. 1971).

Petitioners argue that they perceive a difference in the

test for judgments enunciated by the Fifth Circuit in

Boeing Co. v. Shipman, 411 F.2d 365 (Sth Cir. 1969) (en

banc) and this Court’s language in Brady v. Southern Ry.,

320 U.S. 476 (1943). In Boeing, the court held that “‘if

the facts and inferences point so strongly and over-

whelmingly in favor of one party that the Court believes

that reasonable men could not arrive at a contrary

verdict, granting of the motions [for directed verdict or

judgment notwithstanding the verdict] is proper.” 411

a

8

F.2d at 374. In Brady, the Court stated that when “there

can be but one reasonable conclusion as to the verdict,”’ a

motion for judgment is appropriate. 320 U.S. at 479. We

are able to see no significant difference in these two

formulations. Indeed, it would seem that the Fifth

Circuit in Boeing was simply attempting to flesh out the

Brady test in language that would be usable by a trial or

appellate court considering such a motion.

This analysis is, however, irrelevant in the present case

for the plain fact is that here judgment was granted on

stipulations and undisputed facts, and the courts below

thus did not need to choose between any arguably

varying standards for weighing facts. Petitioners in

essence seek to have this Court review the decision in

Boeing Co. v. Shipman, supra, but the case before the

Court is Nosser v. Bradley, and the rule there applied

that judgment is appropriate on undisputed facts has, to

our knowledge, never been questioned.

THERE IS NO ISSUE OF VICARIOUS LIABILITY IN

THIS CASE SINCE THE COURT BELOW DID NOT

FIND ANY PETITIONER LIABLE UNDER THE

DOCTRINE OF RESPONDEAT SUPERIOR.

Petitioners argue strenuously that vicarious liability

cannot be imposed on petitioner Breazeale in a damage

action under 42 U.S.C. §1983. See Petition at 15-19. The

fact is that the court below did not impose liability

vicariously; Breazeale was held liable for personally

ordering and directing the punishment of respondents. As

the court stated, “this punishment was solely the work of

Breazeale.” App. 52. The court further detailed the

personal actions of Breazeale in punishing respondents, to

which we refer this Court without additional discussion.

See App. 52-54.

A AES EI ee TN a REI EN ESF RERES

“

_ :

The decision of the panel makes it crystal clear that no

person was held liable vicariously. The panel exonerated

one of the original defendants, Commissioner of Public

Safety Birdsong, because it found no evidence that he

participated in, had knowledge of, or was negligent in

supervising highway patrolmen who were alleged to have

beaten many of the respondents during the period they

were in custody. App. 35-36. The panel specifically noted

that, as to the warden, “we do not decide whether the

doctrine of respondeat superior has vitality in a suit

under section 1983.” App. 36 n.13. These rulings of the

panel were not disturbed by the en banc court.

The doctrine of respondeat superior is thus not in any

way involved in this case. Petitioners seek no more than

an advisory opinion from this Court on this issue.

lil.

THE COURT BELOW PROPERLY HELD PETI-

TIONER BREAZEALE LIABLE FOR SUMMARILY

PUNISHING RESPONDENTS WITHOUT DUE

PROCESS OF LAW.

The undisputed facts make it clear that Breazeale

ordered respondents subjected to the same punitive

regimen applied to penitentiary prisoners who had

violated prison rules and were sent to the maximum

security unit for punishment. As we have noted, this

treatment included stripping the prisoner, requiring him

to consume a laxative, depriving him of bedding, etc. The

panel termed this “subhuman treatment which beggars

justification and taxes credulity,” App. 8-9, and held that

it constituted cruel and unusual punishment. The en banc

court stated that the punishment “was designed for

incorrigible felons but exceeded even the design. It was

inflicted arbitrarily and in the unfettered discretion of

Superintendent Breazeale.” App. 55. The en banc court

found this constituted a violation of “‘a principle basic to

10

the concept of due process of law—no punishment of

mere arrestees without a trial.” App. 55.

The notion that persons detained prior to trial are

detained solely to insure their appearance at trial and

may not be subjected to punishment over and above this

simple detention is not novel or startling. Blackstone

states:

“Upon the whole, if the offense be not bailable,

or the party cannot find bail, he is to be committed

to the county gaol by the mittimus of the justice, or

warrant under his hand...; there to abide till

delivered by due course of law. But this imprison-

ment... is only for safe custody, and not for

punishment: therefore, in this dubious interval

between the commitment and trial, a prisoner ought

to be used with the utmost humanity; and neither

be loaded with needless fetters, or subjected to

other hardships than such as are absolutely requisite

for the purpose of confinement only ....”

4 Blackstone, Commentaries on the Laws of England 300

(7th ed. 1775). There is no dearth of modern cases taking

the same view. See Hamilton v. Love, 328 F. Supp. 1182,

1191 (E.D. Ark. 1971); Seale v. Manson, 326 F. Supp.

1375, 1379 (D. Conn. 1971); Jones v. Wittenberg, 323 F.

Supp. 93, 100 (N.D. Ohio 1971); Davis v. Lindsay, 321

F. Supp. 1134, 1139 (S.D. N.Y. 1970); Palmigiano vy.

Travisano, 317 F. Supp. 776, 785 (D.R.I. 1970); Tyler v.

Ciccone, 299 F. Supp. 684 (W.D. Mo. 1969); Butler v.

Crumlish, 229 F. Supp. 565, 567 (E.D. Pa. 1964). See

generally Note, Constitutional Limitations on the Condi-

tions of Pretrial Detention, 79 Yale L.J. 941 (1970).

The due process clause is an appropriate vehicle

through which to protect the dignity and security of

arrested, but still presumptively innocent, persons. The

basic premise relied on by the court below is that “those

who decide to take the law into their own hands and act

11

as a prosecutor, jury, judge and executioner plainly act to

deprive a prisoner of the due process of law guaranteed

him.” Screws v. United States, 325 U.S. 91, 106 (1945).

Other cases have found mistreatment of the kind prac-

ticed in this case to be due process violations. Thus, in

Monroe v. Pape, 365 U.S. 167 (1961), part of the police

mistreatment complained of was the forced nudity of

plaintiffs in the presence of police officers. Justice

Frankfurter, even in dissent, agreed that the “‘calculated

degradation of insult and forced nudity” was a violation

of due process. /d. at 210-11 (dissenting opinion). Ferced

consumption of a laxative is also unlawful. For example,

in Catlette v. United States, 132 F.2d 902 (4th Cir.

1943), a criminal prosecution, it was held that persons

who were forced to drink castor oil, denied food and

toilet facilities, and marched out of town on a rope, had

been deprived of constitutional rights.

The forced nudity of appellants also invaded one of

the basic “zones of privacy,” Griswold v. Connecticut,

381 U.S. 479, 484 (1965), protected by the Constitution.

In York v. Story, 324 F.2d 450, 455 (9th Cir. 1963),

cert. denied, 376 U.S. 959 (1964), where the plaintiff

was photographed in the nude by police officers, the

court stated:

“We cannot conceive of a more basic subject of

privacy than the naked body. The desire to shield

one’s unclothed figured [sic] from view of strangers,

and particularly strangers of the opposite sex, is

impelled by elementary self-respect and personal

dignity.”

Closer factual parallels to the present case may be

found in cases testing treatment in prison against the

Eighth Amendment, and those cases have universally

condemned the kind of treatment respondents here were

subjected to.

12

Wright v. McMann, 387 F.2d 519 (2d Cir. 1967),

involved a “strip cell,”” where the prisoner was kept naked

and was denied the use of basic necessities such as toilet

paper, soap, towels, and the like. The court held that

these “subhuman conditions ... 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.” Jd. at 526. In Hancock v. Avery, 301 F. Supp.

786 (M.D. Tenn. 1969), the question was the legality of a

“dry cell,” similar to the strip cell considered in Wright v.

McMann. The court held that it was “evident that

fundamental concepts of decency did not prevail.” /d. at

791-92. The court added, in words equally applicable to

this case (id. at 792):

“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 . . . . Equally

offensive is the fact that he is provided with no

means by which he can maintain his personal

cleanliness, with the result that he is forced to live

and eat under animal-like conditions.”

See also Kelly v. Butler County Board of Commissioners,

399 F.2d 133 (3d Cir. 1968), 399 F.2d 132 (3d Cir.

1967); Holt v. Sarver, 309 F. Supp. 362 (E.D. Ark.

1970), aff'd, 442 F.2d 304 (8th Cir. 1971); Knuckles v.

Prasse, 302 F. Supp. 1036, 1061-62 (E.D. Pa. 1969);

Jordan v. Fitzharris, 257 F. Supp. 674 (N.D. Cal. 1966).

Although the en banc court did not choose to rest its

decision on the Eighth Amendment, these cases consti-

tute important support for its due process decision, for if

treatment of the kind administered here cannot be

imposed on convicts because of the Eighth Amendment,

it certainly could not be imposed on non-convicts

SO PE PE TF

ae

without any due process safeguards whatsoever. Even

convicts are entitled to minimum due process safeguards

before any substantial deprivations may be imposed on

them for prison misconduct. E.g., Sostre v. McGinniés,

442 F.2d 178, 198 (2d Cir. 1971) (en banc).

Finally, we would note that respondents were also

denied equal protection by the treatment here imposed.

As pre-trial detainees, they were entitled, at worst, to be

treated the same as ordinary convicts incarcerated at the

state penitentiary. See Hamilton v. Love, supra, 328 F.

Supp. at 1191 (conditions for pre-trial detainees must be

superior to those of convicted prisoners). Yet respond-

ents were not treated as ordinary convicts; they were

treated as convicts who had violated prison regulations

and were accordingly punished. This arbitrary classifi-

cation denied respondents equal protection of the laws.

13

In summary, there was utterly no justification for the

inhuman and degrading treatment of respondents. The

primary defense that this treatment was necessary

because respondents were housed in he maximum

security unit and that was the standard procedure in

maximum security is one that no court could accept, and

indeed all sixteen judges of the en banc court rejected it.

It is akin to saying that if, perchance, respondents had

been housed on death row, then execution would be the

necessary concomitant. In our view, the en banc court

properly held this a violation of due process, the panel

properly held it to constitute cruel and unusual punish-

ment, and the equal protection clause would also be a

sound basis for decision.

14

IV.

THE COURT BELOW PROPERLY HELD PETI-

TIONER ROBINSON LIABLE UNDER STATE LAW

BECAUSE OF HIS UNDISPUTED DENIAL OF

RESPONDENTS’ RIGHT TO BE TAKEN BEFORE A

MAGISTRATE.

It is admitted that none of the respondents was taken

before any judicial officer at any time. (R. 203; Add. 2,

3.) Further, no attempt was even made to do so. The

arresting officer, petitioner Robinson, testified:

“Q. Well, to your knowledge, Chief Robinson, did

you or anyone else to your knowledge who was an

official of the city of Natchez make any attempt to

bring any of these people before a magistrate, justice

of the peace, or any judicial officer before they were

sent to Parchman?

“A. No, sir.” (R. 303)

Robinson’s justification for failure to take appellants

before a judicial officer was that they had not posted

bond:

“Q. What happened relative to that, Chief Robinson,

relative to them being taken before Judge Keyer?

Were they taken before Judge Keyer?

*“A. The bonds were set, the ones that got out on

bonds, were set returnable before Judge Keyer.”’ (R.

500)

Robinson admitted that in requiring a bond as a

condition to presentation to a magistrate, he was not

acting in accordance with law:

“Q. Chief Robinson, do I understand your testi-

mony to be then that before anybody could have

been taken before a magistrate they had to put up a

$200.00 bond, is that true? zs

“A. Yes, sir, a $200.00 property bond.”

* ~« ~

15

“Q. ... l assume then that you are aware that any

officer making an arrest in the state of Mississippi is

required to bring his prisoner before a magistrate

without unnecessary delay. Are you aware of that

statute?

“A. Yes, sir.”

~ * *

“Q. And did that statute ever provide in there that

they had—anybody had to put up any amount of

bail before he could be taken before a magistrate?

“A. Not to my knowledge.

“Q. So the fact that anybody didn’t put up bail has

nothing to do with going before a magistrate, isn’t

that right?

“A. That’s right.

“Q. And you know that?

“A. That’s right.

“Q. But you didn’t do that?

“A. That’s exactly right.” (R. 503-04)

These undisputed facts clearly entitle respondents to

judgment for false imprisonment under Mississippi law.

Since as early as Anderson v. Beck, 64 Miss. 113, 8 So.

167 (Miss. 1886), Mississippi has recognized that delay in

bringing a prisoner before a magistrate gives rise to an

action for false imprisonment:

“A warrant is process for the arrest of a person who,

when arrested, should be taken before an officer

authorized to inquire into the cause of arrest, and

the unexplained detention of the party by virtue of

process for his arrest without any mittimus, was a

cause of action.”

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 1942 Ann.

§ 2473.

a.

Under the statute, where there is no arraignment on

the date of arrest, the burden of proof shifts to the

arresting officer “‘to show that a reasonable effort was

made to induce a magistrate or justice to issue a warrant

and fix bail on the date of arrest.” Sheffield v. Reece, 20

Miss. 133, 28 So.2d 745, 749 (1947). See also Anderson

v. Beck, supra, making actionable an “unexplained”

detention. Presentation to a magistrate is required to

grant the accused “an opportunity to have a hearing on

the merits of the accusation against him.” Sheffield v.

Reece, supra, 28 So.2d at 746. Where the accused can

promptly post bond and secure his liberty, compelling

reason for immediate presentation for inquiry into the

merits disappears. But where those arrested cannot make

bond immediately, as in the present case, presentation

before a magistrate becomes imperative. As the court

stated in the Sheffield case, “‘one thus arrested may, in

some instances, be unable to execute a bail bond, but he

is nevertheless entitled, in such event, to have his case

examined into without unnecessary delay.” Jd. at 746-47.

Here, of course, none of the respondents could execute a

bond, and it was therefore Robinson’s duty to bring them

promptly before a magistrate. He made no attempt

whatsoever to do so.

Petitioners apparently seek to explain Robinson’s

failure to make any attempt whatever to secure a

magistrate on the ground that the first arrests were made

Saturday afternoon and Robinson was “well aware” that

SA defense that delay was necessary or reasonable was not

attempted, but in any event delay of up to five days seems

unreasonable as a matter of law. Cf Sheffield v. Reece, supra,

where the delay was from Saturday to the following Monday, and

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

where the Court assumed that an unexplained three and one-half

day delay was undue delay.

_

17

the municipal judge was not in his office Saturday

afternoons or Sunday. Petition at 24.

First, the initial arrests were made on Saturday

morning when, according to petitioners, the judge was

holding court. (R. 202, Add. 1) Second, there is nothing

in the record to indicate that the local judge would not

have remained in his office Saturday afternoon, ° partic-

ularly since Miss. Code 1942 Ann. §3374-103 requires a

municipal judge to hold office on Saturdays “if the

business of the municipality requires,” and it might be

assumed that hundreds of arrests in the municipality

would constitute such business. Third, there is no

explanation why no attempt was made to bring respond-

ents before a judge on Monday, Tuesday or Wednesday,

while they were still incarcerated.

But these are merely suppositions, and we are left to

supposition because of the simple fact that petitioner

Robinson, who made the arrests, gave no reasons what-

ever for failing to bring respondents before a magistrate.

Thus, we do not know that the magistrate was unavail-

able, even though petitioners’ counsel now say he was,

because no attempt was made to see if he was available.

The burden of explaining a failure to present an arrestee

to a magistrate rests, in Mississippi law, quite clearly with

the arresting officer, and Robinson did not meet this

burden. He cannot evade liability by now hypothesizing

all the things that might have occurred had he attempted

to secure a magistrate.

Indeed, there is nothing in the record to indicate the local

judge was in fact not in his office. This is simply the assertion of

- - petitioners in their Petition.

18

v

PETITIONER BREAZEALE HAS NO IMMUNITY

FROM DAMAGES FOR VIOLATION OF THE CON-

STITUTIONAL RIGHTS OF PERSONS IN HIS CUS-

TODY.

Petitioner Breazeale argues that this Court should grant

to state prison officials an absolute immunity for actions,

such as those in the present case, which deny their

prisoners fundamental constitutional rights. Such an

immunity would essentially nullify the basic purposes of

42 U.S.C. $1983, for that statute is only applicable to

persons acting under color of state law, and can thus

rarely be satisfied except in the case of a state official.

See, e.g., Jobson v. Henne, 355 F.2d 129, 133-34 (2d Cir.

1966); Birnbaum v. Trussell, 347 F.2d 86, 88-89 (2d Cir.

1965). Nevertheless, petitioners cite cases dealing with

immunity of legislative or judicial officers, or of adminis-

trative officers, such as parole officers, who act in a

judicial or quasi-judicial capacity, and argue from this

that all state officials are immune from damages in suits

under section 1983.

It is clear that this is not the law. 42 U.S.C. § 1983

authorizes actions against state officials for deprivation of

constitutional rights, and monetary damages are an

appropriate remedy under the statute. E.g., Monroe v.

Pape, 365 U.S. 167 (1961); Hague v. CIO, 101 F.2d 774

(3d Cir. 1939), modified on other grounds, 307 U.S. 496.

Only recently, this Court held that state prison officials

may be required to stand trial for monetary damages in

1983 actions, Haines v. Kerner, 404 U.S. 519 (1972), and

the Court has repeatedly held that section 1983 is an

appropriate vehicle through which state prisoners may

assert basic constitutional rights. Wilwording v. Swenson,

404 U.S. 249 (1971); Washington v. Lee, 390 U.S. 333

(1968); Cooper v. Pate, 378 U.S. 546 (1964).

_

19

Against this background, it is not surprising that lower

federal courts have rejected the notion that state prison

officials are immune from damages if they violate the

constitutional rights of their prisoners, and they have

awarded damages in appropriate cases. See, e.g., Sostre v.

McGinniss, 442 F.2d 178, 205 n. 51 (2d Cir. 1971) (en

banc); United States ex rel. Jones v. Rundle, 453 F.2d

147, 150 n. 11 (3d Cir. 1967); Wright v. McMann, 387

F.2d 519 (2d Cir. 1967), on remand, 321 F. Supp. 127,

143-44 (N.D. N.Y. 1970). See also the extensive discus-

sion of the panel in the present case on the question of

immunity, in which the en banc court concurred. (App.

37-40).

Pierson v. Ray, 386 U.S. 547 (1967), indicates that in

order to determine whether an immunity exists under

section 1983 it is appropriate to look to the common law

dealing with the kind of official against whom liability is

asserted and the kinds of acts that official is alleged to

have committed. Resort to the common law of both

Mississippi and the remainder of the states shows that

jailers and wardens have never enjoyed any immunity for

mistreatment of prisoners in their care.

Mississippi law is crystal clear on this point. In Farmer

v. State, 79 So.2d 528, 531 (Miss. 1955), the Mississippi

Supreme Court rejected a defense of immunity and

imposed liability on a jailkeeper, adopting the holding of

State ex rel. Tyler v. Gobin, 94 F. 48, 50 (C.C. Ind.

1899), where it was stated:

“If the law imposes [upon a sheriff] a duty of care

in respect to animals and goods which he has taken

into his possession by virtue of his office, why

should not the law impose the duty of care upon

him in respect of human beings who are in his

custody by virtue of his office? ... When a sheriff,

by virtue of his office, has arrested and imprisoned a

—

20

human being, he is bound to exercise ordinary and

reasonable care, under the circumstances of each

particular case, for the preservation of his life and

health. This duty of care is one owing by him to the

person in his custody by virtue of his office, and for

a breach of such duty he and his sureties are

responsible in damages on his official bond.”

In Roberts v. Williams, 302 F. Supp. 972 (N.D. Miss.

1969), aff'd, 456 F.2d 819 (5th Cir. 1971), the district

court, interpreting Mississippi law, held that the superin-

tendent of a county penal farm enjoyed no immunity if

he failed to properly care for prisoners under his control,

and imposed liability under state law. 302 F. Supp. at

985-86. See also Bacon v. Bacon, 24 So. 968 (Miss.

1899), where the court found the superintendent and

trustees of a state mental institution liable for improperly

admitting persons thereto.

The common law in other American jurisdictions is no

different. The general rule was stated in City of Topeka v.

Boutwell, 35 P. 819, 822 (Kan. 1894):

“(H]Javing the prisoner fully in his power, the

officer is then liable for any unnecessary harm or

indignity done to the prisoner. It is the duty of all

keepers of jails and prisons to treat their prisoners

humanly. [They] ... have no warrant or authority

in law to be harsh and brutal in the management of

those in their custody. For all needless sufferings

and indignities which they impose they are

accountable in damages... .”’

See also Kendrick v. Adamson, 180 S.E. 647, 648 (Ga.

1935); Village of Nixa v. McMullin, 193 S.W. 596, 598

(Mo. 1917); Hale v. Johnston, 203 S.W. 949, 952-53

(Tenn. 1918); Clark v. Kelly, 133 S.E. 365, 368-69

(W.Va. 1926).

ual ‘

Since there is no immunity under Mississippi law or in

the jurisprudence of other states for persons who mistreat

prisoners in their custody, the court below was clearly

correct in holding that no immunity should be read into

section 1983 for such mistreatment.

VI.

THE FACTS RELIED ON BY THE FIFTH CIRCUIT

IN REACHING ITS DECISION WERE UNCONTRO-

VERTED.

Petitioners assert that there is substantial evidentiary

conflict in the record as to facts relied on by the court of

appeals in reaching its decision. We have extensively set

forth the uncontroverted facts in our Statement of the

Case, as did the panel (App. 9-12) and the en banc court

(App. 50-54), and will thus limit this discussion to

commenting on certain assertions of petitioners.

First, on the issue of nudity, petitioners state that

there is an evidentiary dispute as to whether the male

plaintiffs were made to strip naked and remain so for a

day or more. Petition at 46. Yet, in their Statement of

the Case, petitioner themselves state that “there was a

shortage of underwear’ which resulted in some of the

detainees being left without clothing for periods as long

as 36 hours.” Petition at 4. Petitioners’ own witness, Mr.

Licata, upon whom they place great reliance, testified

that he observed nude men in the cells. (R. 557). In

short, we can see utterly no conflict in the en banc

court’s statement that “they were stripped of their

clothing and left naked for varying periods of time, some

for as long as 36 hours.” (App. 53).

7The record is devoid of evidence that the reason for the nudity

was a shortage of underwear. Petitioners’ counsel have apparently

supplied this fact for the first time in this petition.

—

Petitioners state that there is evidence that no one was

“required or forced” to consume a laxative. Petition at

39. The stipulated facts are that respondents ‘“‘were

required to . . . consume a quantity of laxative.” (R. 205,

Add. 3). Petitioners cannot avoid this stipulation by

arguing that of the more than 250 persons incarcerated

during this time, two may have evaded the laxative.

22

Petitioners cite Mr. Licata’s testimony to the effect

that respondents’ were initially given “‘plenty”’ of toilet

paper but this was cut when they “misused”’ it. Petition

at 38. We do not see that this conflicts with testimony

that respondents were given about one lap around a roll

for each person in a cell. See R. 226, 325, 404, 460.

Petitioners offer no evidentiary conflict to the undis-

puted facts that respondents were given no bedding

whatever or toilet articles such as soap, towels and the

like; that they were herded up to eight to a cell and

forced to sleep on bare steel bunks or concrete floors;

that the temperature ranged from 60 to 70 degrees and

that exhaust fans were in operation; that respondents,

who were nude or wearing only underwear and were

inactive for extended periods, were freezing under these

conditions, and the like.

In conclusion, we would again emphasize that the facts

relied on by the court below appeared in stipulations,

admissions, and uncontradicted testimony, and none of

the sixteen judges who reviewed this case found any

evidentiary dispute in the record, on those facts relevant

to the decision.

ried altar ie tat rid 0 ee i Re Nae RT / r ah alia

_—

23

CONCLUSION

The Petition for a Writ of Certiorari should be denied.

Respectfully submitted,

LAWRENCE D. ROSS

Hofstra University School of Law

Hempstead, New York 11550

BERNARD JOLLES

Franklin, Bennett,

Des Brisay & Jolles

333 American Bank Building

Portland, Oregon 97205

GEORGE PEACH TAYLOR

Lawyers’ Committee for

Civil Rights Under Law

233 North Farish Street

Jackson, Mississippi 39201

Attorneys for Respondents

STAR SERA RT Sete rey

pie aceh ths a Shae

Add. |

EXCERPTS FROM PRE-TRIAL ORDER

(R. 201-08, 1229-42)

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF MISSISSIPPI

KATIE RUTH ANDERSON, et ai.,

Plaintiffs,

v. No. GC669-K

J.J. NOSSER, ef al,

Defendanis.

JAMES BRADLEY, er al.,

Plaintiffs,

v. No. GC 6654

J.J. NOSSER, et al.,

Defendants.

PRE-TRIAL ORDER

1. A pre-trial conference was held in this matter on

the 23rd day of December, 1968, at 2:00 P.M.

7. The facts established by the pleadings or by

stipulation or admission of counsel are as follows:

On or about October 2, 3, 4, 1965 plaintiffs and others

engaged in Civil Rights demonstrations and marches in

Natchez. Sometime between 10 A.M. and noon on

Saturday, October 2, 1965, a large number of marchers,

including some of plaintiffs were placed under arrest after

marching half a block from Beulah Baptist Church and

charged with violating Natchez Parade Ordinance of May

26, 1964, Ordinance Book F. p. 395. The arrested

marchers, including plaintiffs were transported in buses

Add. 2

to the Natchez Municipal Auditorium. At the Audi-

torium, the arrested marchers were asked their names,

addresses and ages, but they were not brought before any

judicial officer for examination of their case. No written

Youth Court order was obtained respecting any of the

arrested marchers.

Late Saturday night those of the plaintiffs arrested

that day, among others, were lined up in the auditorium

and told that they were being taken someplace that had

facilities to put them up comfortably, since the city did

not have adequate facilities. Some of the children under

16 were released in the custody of their parents. A large

number of marchers, including all of the plaintiffs

arrested on Saturday, were put on three Trailways buses

and driven to Mississippi State Penitentiary at Parchman.

Defendant Breazeale, Superintendent of Parchman was

called and notified of arriving prisoners, but no court

order was obtained for their transfer.

The buses to Parchman were guarded by Natchez

firemen, acting as ex-officio police officers. Eight mem-

bers of the Mississippi Highway Safety Patrol travelling in

four patrol cars met the buses in the vicinity of Natchez

and escorted them to Parchman.

The buses arrived at Parchman early Sunday morning

October 3, 1965 and proceeded to the compound

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, contained a total of 39

cells, had been vacated to receive the Natchez prisoners.

Add. 3

The men prisoners, including all the male plaintiffs

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 then placed in

cells. The female prisoners, including all the female

plaintiffs that had been arrested on Saturday were

required to remove their shoes, stockings, 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.

On Sunday, Oviober 3, 1965, about 10:30 A.M. a large

number of marchers, including some of the plaintiffs,

were placed under arrest shortly after the march began at

Beulah Baptist Church and charged with a violation of

the same ordinance. They also were taken to the

Auditorium. Children under 13 were released later that

day in the custody of their parents. Other arrested

marchers, including all of the plaintiffs arrested that day,

were sent to Parchman on two buses. The treatment of

the prisoners at Parchman was similar to the treatment of

the earlier group.

On Monday, October 4, 1965, about 9 P.M., a large

number of marchers were placed under arrest after

marching about 60 yards from China Grove Baptist

Church. They were taken to the Auditorium and later

that evening some of them, including all the plaintiffs

arrested that day, were sent to Parchman on a single bus.

The treatment of the prisoners was similar to the

treatment of the first group of prisoners.

Add. 4

Prior to release of the prisoners, many, including many

of the plaintiffs, had blood samples taken from them.

Plaintiffs were released on Monday, October 4, 1965,

Tuesday, October 5, 1965 and Wednesday, October 6,

1965.

At all times relevant to the amended complaints

defendant Nosser was Mayor of Natchez, Mississippi;

defendant Robinson was City Marshall and Chief of

Police; defendant Cameron was Fire Chief, and defend-

ants Richard, Cowart, Beach and Flowers were members

of the police force.

At all times relevant to the amended complaints

defendant Birdsong was Commissioner of Public Safety

of the State of Mississippi charged by law with the duty

of supervision and control of all Mississippi Highway

Safety Patrolmen.

At all times relevant to the amended complaints ...

defendant Breazeale was Superintendent of Parchman

At all times relevant to the amended complaints, New

Hampshire Insurance Company was surety for defendants

... Breazeale, pursuant to Mississippi Code, 1942, Sec-

tion 7924, as amended.

18. This pre-trial order has been formulated after a

conference at which counsel for the respective parties

appeared. Reasonable opportunity has been afforded

counsel for corrections or additions prior to signing.

However, this order will control the course of the trial,

and it may not be amended except by consent of the

ce nee kee A MT Te “4 x

Add. 5

parties and the court, or by order of the court to prevent

manifest injustice.

This, 3rd day of March, 1969.

/s/ William C. Keady

UNITED STATES DISTRICT

JUDGE

/s/ L. A. Aschenbrenner

Attorney for Plaintiff

/s/ Joseph L. Zuccaro °

Attorney for Defendant

/s/ Edwin E. Benoist, Jr.

/s/ C. A. Marx

/s/ William A. Allain

CERTIFICATE OF SERVICE

I certify that I have this day mailed, air mail postage

prepaid, three copies of the foregoing to William Allain,

Esq., P.O. Box 220, Jackson, Mississippi 39205, attorney

of record for petitioners.

This the 30th day of June, 1972.