# Petition for Writ of Certiorari — McMann v. Wright

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1972
- **Citation:** 409 U.S. 885

## Text

In THE

Supreme Court of the United Baye 22c1

OCTOBER TERM, 1971

Danie McMann, Warden of Clinton Prison, Dannemora,

New York,
Petitioner,
agamst
Lawrence Wruiam Wricut,
Respondent.

PETITION FOR A WRIT OF CER. IORAF | TO THE
UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT

Louis J. LerKkow!Tz
Attorney General of the
State of New Cork
Attorney for Petitioner
Office & P.O. Address
80 Centre Street
New York, New York 10013

S
212-488-3289 Ss
<
Samue, A. HirsHowrrz ©
First Assistant Attorney General Ro

Hnoiz. Horrman SS
Assistant Attorney General gy
of Counsel

TABLE OF CONTENTS

PAGE
NE hak eih i oncav as ves.0n¥e bh ees 698 “ee
GUO aa wkd s kde wk uehsesaeee sand eae 2
Question Presented .......... Dee Rei EPs edad miele ts 2
PE ESTE LT Cee ET TTT ETE OE COTE 2
SE MPG oo ccc ccecccctsessesccvecees 3
A. Procedural Background ........... oeeesey 3
B. Factual Background ...................... 7
Reasons for Granting the Writ ................... 13
The affirmance of the damage award against peti-
tioner McMann by the Court of Appeals was
tantamount to holding him vicariously liable
under the Civil Rights Act si. ze there was no
evidence that petitioner personally imposed the
deprivations on respondent which the District
Court found to be unconstitutional. Such vicari-
ous liability is unsound and has been rejected by
ote Courts of Appeal 2.25.2... ccc ccc ccceee 13
ee Fi Was diblien das bkens 4 <ecebuwen sede 21
TABLE OF CASES
Adams-v. Pate, 445 F. 2d 105 (7th Cir. 1971) ...... 17
Carter v. Carlson, 447 F. 2d 358 (D.C. Cir. 1971) ... 19
Haines v. Kerner, 404 U.S. 519 (1972) ............ 20

Hesselgesser v. Reilly, 440 F. 2d 901 (7th Cir. 1971) 16

mma

ii TABLE OF CONTENTS

PAGE

Kish v. County of Milwaukee, 441 F. 2d 901 (7th
Cir. 1971)

Monroe v. Paper, 365 U.S. 167 (1961) ............. 19

Morgan v. Willingham, 424 F.2d 200, 201 (10th Cir.
BEE kt Sabene Perr rer rer Pee Te OT re eT

Roberts v. Williams, 456 F. 2d 819 (5th Cir. 1971),

cert. denied sub nom. Roberts v. Smith, 404 U.S.
ENED See uo thd rag bod aK 14s 2K mTEls Hos 18, 19

Salazar v. Dowd, 256 F. Supp. 220 (D. Colo. 1966)... 17

Sanberg v. Daley, 306 F. Supp. 277, 278 (N.D. Il.
RS FR 20S tiki ea 16, 17

Sostre v. McGinnis, 442 F.2d 178 (1971), cert. denied
sub nom. Sostre v. Oswald, 404 U.S. 1049 (1972) 5

21

Oswald v. Sostre, 405 U.S. 987 (1972) ............ 5
Wilwording v. Swenson, 404 U.S. 249 (1971) ....... 20
Statutes CrrEep

Former Section 24, New York Correction Law, re-
pealed L. 1971, c. 1104 ............ cee eee ee eee 17
28 U.S.C. §1254(1) «10... cece eee eee eee ence eee 2
eS re rrr ee ry ea 2, 3, 16, 17, 20, 21
Section 18, N.Y. Currection Law, McKinney’s Consol.
Laws c. 44 (1968), as amended L. 1970, c. 476,
$4 (1971 Sapp.) ...... ccc cc ccccccccccccccces 15
Section 114-a of the New York Correction Law ..... 15

MISCELLANEOUS

Employees Rule Book of the New York State De-
partment of Correction ..............eeeeeeeee 6, 16

wi

In THE

Supreme Court of the United States

OCTOBER TERM, 1971

DanreL McMann, Warden of Clinton Prison, Dannemora,

New York,
Petitioner,
against
Lawrence WiuuiaM Wnricat,
Respondent.

7%
v

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT

Petitioner prays that a writ of certiorari issue to re-
view a portion of the decision of the United States Court
of Appeals for the Second Circuit in the case of Lawrence
William Wright v. Daniel McMamn, which was decided on
March 16, 1972.

Opinions Below

The opinion of the Court of Appeals which petitioner
seeks to review is not yet reported. It is filed with this
petition as Appendix ‘‘A’’. The decision of the United
States District Court for the Northern District of New
York, dated July 31, 1970, which was reviewed by the
Court of Appeals is reported at 321 F. Supp. 127. This
opinion and the orders entered thereon are filed herewith
as Appendix ‘*B’’,

——
2

A previous opinion of the Court of Appeals for the
Second Circuit reversing a decision of the Northern Dis.
trict Court dismissing the complaint, is reported at 387
F. 2d 519 (1967). A copy of this decision is filed herewith
as Appendix ‘‘C’’. The decision of the District Court
dismissing the complaint is reported at 257 F. Supp. 739
(1966), and is filed herewith as Appendix ‘‘D’’,

Jurisdiction

The decision of the Court of Appeals was rendered on
March 16, 1972. The jurisdiction of this Court rests on
28 U.S.C. § 1254(1).

Question Presented

Whether the Court of Appeals properly affirmed an
award of compensatory damages against petitioner Mc-
Mann in a suit brought by respondent Wright pursuant
to Section 1983 of the Federal Civil Rights Act for alleged
unconstitutional treatment at a prison at which petitioner
was the warden?

Statutes Involved

42 U.S.C. § 1983
“Civil Action for Deprivation of Rights

Every person who under color of any statute, ordi-
nance, regulation, custom or usage, of any State or
Territory subjects, or causes to be subjected, any citi-
zen... or other person ... 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 proceeding
for redress.’’

Statement of the Case

A. Procedural Background

Respondent Lawrence Wright is an inmate of the New
York State correctional system who is serving a sentence
of one day to life imprisonment for the crime of sodomy.
Respondent instituted this Civil Rights Action pursuant
to 42 U.S.C. § 1983 in the Northern District of New York,
in March, 1966, while he was incarcerated at the Clinto.u
Correctional Facility. The gravamen of Wright’s com-
plaint was that his federal constitutional rights were vio-
lated by petitioner McMann and by other prison personnel
while he was confined for two periods in the segregation
wit of Clinton Correctional Facility, during 1965 and
1966. Wright alleged that he was beaten by the guards,
deprived of legal materials and forced to endure freezing
temperatures and filthy conditions while remaining nude
in a cell that was stripped of all furnishings.

The District Court (Brennan, D.J.) dismissed the com-
plaint on August 31, 1966. It held that Wright’s case did
not fall within the exception to the general rule that fed-
eral courts would not interfere in cases involving the inter-
nal management of state prisons. It further held that
Wright’s grievances concerning the conditions of his con-
finement and the procedures used to impose discipline on
him were properly the subject of a suit in the state courts
in the first instance. See 257 F. Supp. 739 (Appendix
“D)”),

The decision of the District Court was reversed bv the
Court of Appeals for the Second Circuit on December 19,
1967. The Court of Appeals held that the absence of in-
junctive relief in the New York courts, and the absence of
a complex scheme of state law, prevented the Court from
dismissing the action under the exhaustion of state reme-
dies doctrine or the absention doctrine. The Court further
noted that if the conditions alleged by Wright were true,

—

4

they would have constituted cruel and unusual punishment
in violation of the Eighth Amendment. Accordingly, the
Court reversed the dismissal of the complaint and re.
manded the case for further proceedings in the District
Court. See 387 F. 24 519 (Appendix “C”).

On August 29, 1968 the District Court (Fouey, ™J.),
consolidated Wright’s case with the case of another Clin-
ton inmate, Robert Mosher, who had filed a lawsuit raising
similar constitutional claims. The consolidated cases were
brought to trial in October, 1968, during which the District
Court (sitting without a jury), heard the testimony of 26
witnesses for a period of seven days.

On July 31, 1970 the District Court rendered a lengthy
decision in which it awarded respondent Wright $1500 in
compensatory damages against petitioner McMann, and
issued certain injunctive relief on Wright’s behalf. On
August 19, 1970 the District Court embodied this relief

in an unreported decree. The relief granted was as
follows:

(a) Petitioner and his co-defendant, Superintendent J.
Edwin LaVallee,* were enjoined from using segregated con-
finement until they promulgated rules and regulations en-
suring that segregation cell facilities were adequate to
safeguard the health of occupants, that heat and ventilation
were sufficient, that nudity could not be enforced solely as
a disciplinary measure, and that provisions be made for
surprise inspection visits by trained supervisory personnel ;

(b) Petitioner and Superintendent LaVallee were re-
quired to promulgate, and submit for the District Court’s
approval, rules and regulations governing procedures of
prison disciplinary hearings, and rules and regulations
governing the condition of psychiatric observation cells as

* J. Edwin LaVallee replaced Daniel McMann as the Superin-
tendent of Clinton Correctional Facility in January, 1968.

5

well as the procedures used to determine whether an in-
mate should be confined to such a cell;

(c) As to Wright and his co-plaintiff Mosher, petitioner
and Superintendent LaVallee were enjoined from placing
them in segregation or depriving them of good behavior
allowances without affording them prior notice of charges,
the right to “appropriate” representation at a disciplinary
hearing, the right to call witnesses and to have decisions
reviewed administratively and the right to have definite
sentences imposed for segregated confinement.

(d) As to plaintiff Mosher, Superintendent LaVallee
was ordered not to “censor or interfere in any way with
any correspondence” between Mosher and his attorney,
and ordered to restore 616 days of good behavior allow-
ance which Mosher lost while in segregation.

(e) Petitioner and Superintendent LaVallee were also
enjoined from placing: Wright or Mosher in psychiatric
observation cells for disciplinary purposes or without
psychiatric justification, and from prohibiting inmates to
give legal advice or assistance to each other subject to
reasonable regulations. (See decrees of August 19, 1970 in
Appendix ‘‘B’’).

On March 16, 1972 the decision of the District Court was
affirmed in part, reversed in part and modified in part by
the Court of Appeals for the Second Circuit. The Court
of Appeals, following its own decision in Sostre v. Mc-
Ginnis, 442 F’. 2d 178 (1971), cert. denied sub nom. Sostre
v. Oswald, 404 U.S. 1049 (1972), and Oswald v. Sostre, 405
US. 978 (1972), reversed the requirement that prison offi-
dials use trial-type procedures in sending inmates to segre-
gation units or psychiatric observation cells, and reversed
the requirement that petitioner and Superintendent La-
Vallee submit rules and regulations for the District Court’s
approval. The Court of Appeals modified the portion of
the District Court’s decision which prohiibted the prison
officials from censoring Mosher’s correspondence with his

—

6

attorney, and held that the prison officials could open and
read such correspondence but could not interfere with it
absent a clear abuse of access to the mails.

With respect to the damage award, which is the subject
of the instant petition, the Court of Appeals affirmed the
award to Wright of $1500 compensatory damages against
petitioner McMann. The Court of Appeals noted that
although the District Court did not make specific findings
that the Warden had imposed the deprivations which the
District Court found to be unconstitutional or had actual
knowledge of them, there was evidence in the record for
the Court of Appeals to conclude that petitioner actually
knew of the conditions in the Clinton segregation unit when
Wright was confined there. In addition the Court held that
petitioner was charged with such knowledge because the
New York Correction Law and the Employees Rule Book
of the New York State Department of Correctional Serv-
ices, entrusted the Warden with the management and super-
vision of the prison and required him to keep daily records
of the punishments inflicted on prisoners.

In a concurring opinion, Circuit Judge Oakes stated that
he would favor judicial intervention to establish minimal
correctional standards, but he did not believe that the in-
stant case was an appropriate vehicle for such action. He
also expressed the view that a re-examination of the
Court’s position on mail censorship would be appropriate
in a later case, but not the instant case.

Cireuit Judge Hays, dissenting in part, stated that he
opposed the restoration of good behavior allowance to
plaintiff Mosher because Mosher was not subjected to
extreme physical abuse and was not punished for engaging
in constitutionally protected activities. With respect to
the damage award against petitioner McMann, Judge Hays
disagreed with the affirmance of that award by the major-
ity of the Court. Judge Hays stated that the argument
that petitioner was charged with knowledge because of his

7

statutory duties, advanced a theory of vicarious liability
which was inappropriate in civil rights cases.

B. Factual Background

At his trial in the Northern District of New York in
1968, respondent Wright gave the following testimony
concerning the periods of segregated confinement for
which the District Court awarded compensatory damages.
On February 18, 1965 Wright was charged with violating
prison rules by distributing information about inmates
which he had obtained from hospital files. Wright ad-
mitted to the Deputy Warden that he was guilty of the
charge, and was sent to the segregation unit until further
orders.

Wright testified that he was placed nude in a cell in the
segregation unit, and that the cell was stripped of fur-
nishings. He said that the cell was dusty and dirty, and
reeked with the stench of urine and excrement. He said
that there was one toilet, which was encrusted with filth
and slime, one sink with cold running water, and no furni-
ture or bed or mattress or cleaning implements. He said
the cell was seven feet wide, eight or nine feet long, nine
feet high, and was fronted with bars, but did not have a
light. He said he was able to talk to other inmates if they
were housed next door.

Wright stated that he was forced to sleep on the con-
erete floor, and that his body became numb from cold air
coming through the windows and from the absence of heat
in the radiator. He said he was awakened at 7:30 A.M.
and forced to stand at attention at the bars of his cell
every time an officer passed by, until 10 P.M.

Wright testified that he could not receive his Bible or
attend religious services for the 33-day period that he was
confined in a strip cell. He said that he did not receive
any legal materials until he had been in the strip cell for
six days, and then received some law books and some legal

—

8

pads and pens and pencils. He said that on March 26,
1965 petitioner McMann permitted him to have the re.
mainder of his legal materials when he left the strip cell.

Wright stated that while he was in the strip cell he suf-
fered from dizziness, nausea, blackouts and vomiting, and
experienced swelling in his legs and feet. He said that
one of the prison physicians denied his request for med-
ical care, and another prison physician merely gave him
two aspirins. He said he was not taken to see a dentist
until he was removed from the strip cell, and that a phy-
sician did not make daily rounds in segregation in 1965.

Wright testified that he was not permitted to have his
glasses when he was placed in the strip cell, and that he
had to do without them for one and a half weeks, although
he was still able to write. He said petitioner McMann
granted him permission to have his glasses on request.

Wright stated that he was kept nude in the strip cell
for the first eleven days, and remained there until March
26, 1965, when he was transferred to another section of
the segregation unit where he received more privileges.
He said he was sent to a psychiatric observation cell in
April, 1965 because of some difficulties he was having
with another inmate, and remained there for three and
one half days. He described the cell as having a solid
door with a six inch by six inch panel cut out of it toen-
able outsiders to look in. He said the cell was a regular —
room with a window in the back and the window was cov-
ered by a metal sereen, and could be opened by an officer
who had a key to the sereen. A recessed light was in the
ceiling.

The dimensions of the psychiatric observation cell were
approximately nine or ten feet in length and eight or nine
feet in width. Wright said that the cell had no furnish-
ings or toilet or sink, and that he was given a two inch
mat to sleep on at night and had to ask the officers to es-

—

cort him to the bathroom. He said that he was not given
a toothbrush or toothpaste or anything for his sanitary
needs, and that he suffered from the cold when the windows
were left open and experienced blackouts and dizzy spells.
He said a ceiling light was kept on during the night but
not during the day.

Wright said that he saw the prison psychiatrist and
other doctors on a daily basis while he was in the observa-
tion cell, and then was returned to the segregation unit.

In February, 1966 Wright was brought up on charges
again, as a result of an altercation with the guards. He
said that the Deputy Warden sentenced him to segrega-
tion until further orders, and that the guards who brought
him to segregation threatened and abused him. He said
that when he arrived at the segregation unit, he was
forced to remove all of his clothing and placed in a strip
cell.

Wright said that the cell was barren and contained no
lighting facility or cleaning implements or anything to
sleep on. He said that there was debris on the floor, in-
cluding hair and particles of clothing, and that the toilet
and sink were encrusted with slime and other residue.
The cell was the same size as the strip cell he had previ-
ously been placed in. ‘

Wright stated that he was given all of his legal mate-
rials two and a half days after he arrived in segregation
but his request for a Bible and prayer book were denied.
He said his clothing was not returned to him and he was
not given underwear or a covering. He said he remained
in the strip cell for 21 days from February 10, 1966 to
March 3, 1966, when he was released to the general popu-
lation after filing the complaint in the instant case. He
said that during his confinement he was threatened by the
officers for instituting a legal action.

Wright testified that he was sent to segregation for a
third time in 1967, and that conditions there had vastly

9

—

10

improved. He said he was given cleaning implements,
clothing and bedding, and some hygienic implements, but
that there were some insects present and his mattress and
pillow were dirty. He said he remained in segregation in
1967 for 30 days.

With regard to his three periods of segregated confine-
ment, Wright testified to the following loss of privileges.
He said there were no exercise privileges, no earphones,
no movies, no opportunity to earn money or to earn good
time credit, no commissary purchases, except legal mate-
rials, and no personal letters except a Sunday letterhead.
He said he was also denied therapeutic and educational
programs and religious services. He said that the food
was wholesome, but the proportions were too small and
he received desserts only occasionally and rarely received
fresh fruits. He said he lost sixteen or seventeen pounds,
although he acknowledged he never complained about the
food.

Wright also stated that there was no counselling pro-
gram or psychiatric care in the segregation unit. He said
the segregation unit was in a separate box-type building
surrounded by a ten foot steel fence, and had no connection
with the observation cells in the prison hospital. The in-
terior of the building contained an exercise yard, and the
individual cells opened into small exercise patios behind
them.

Wright further testified that during his 1965 confine-
ment in the strip cell he was given cotton underwear and
toilet paper after eleven days, but that prior to that he
suffered from the cold and had to use his hands to clean
himself. He acknowledged that the radiator in his ceil
gave off some warmth and that during the day the tem-
perature would be between 80 and 85 degrees, but that the
temperature would drop in the late afternoon when the
officers opened the windows to allow ventilation.

11

Wright stated that he wrote interview slips to prison
personnel complaining about conditions in segregation, and
also wrote to the Commissioner of Correction, the FBI
and the state courts. He said he did not hear from peti-
tioner McMann, but two FBI agents interviewed him in
1965 and 1966, and he told them about the conditions he
endured. He said that both times the Department of Jus-
tice informed him that no action would be taken.

Wright said that many officers made rounds in segrega-
tion and saw him in the nude, and he complained to them.
He said that the Deputy Warden told him he would do
something about his complaints, but also told him the
nudity was part of the punishment and that his length of
stay in segregation was up to him.

Wright stated that the Catholic Chaplain visited him
in segregation in 1965, and visited him again in 1966 and
administered ashes. He also said that in 1965 and 1966
he was able to obtain legal materials from the commissary.

Wright also testified that in the strip cell his body devel-
oped a stench because he could not wash himself, and that
he had to use his hands after using the toilet. He said
he would place his food on the floor, and sometimes had to
eat after going to the bathroom.

In addition to Wright, ten other Clinton inmates testified
about the conditions in the segregation unit, claiming that
the cells were dirty and that they did not contain cleaning
implements and other necessary articles.

On behalf of the defendant prison officials, two Deputy
Wardens, who were in charge of the segregation unit from
1960 to 1965, and from 1965 to the present, testified about
the practices in segregation. They denied that the cells
were in the condition stated by Wright and the other in-
mates, and said that many implements and furnishings
were removed from the cells for safety reasons. One
Deputy Warden stated that petitioner McMann had dele-

12

gated to him the power of imposing disciplinary punish-
ments, and had informed him in no uncertain terms that
officers were not to use profanity or to lay hands on in-
mates. The other Deputy Warden stated that in 1966 he
ordered Wright to be kept nude for a week, and then re-
scinded the order.

In addition to the Deputy Wardens, six segregation off-
cers testified that the inmates in segregation were given
clothing and cleaning implements, and were able to keep
their cells in clean conditions. Another officer testified
that the prison physicians made daily rounds in segrega-
tion.

Petitioner McMann testified that he was the Warden of
Clinton Correctional Facility from January, 1964 to Janu-
ary, 1968. He said he delegated responsibility to his
Deputy Wardens for disciplinary matters, and that in
March, 1965 he directed the Deputy Warden to give segre-
gation inmates trousers and shirts, in addition to long
underwear. He said that in 1966 he directed the Deputy
Warden not to place inmates in strip cells in the nude, but
to give them long underwear and socks, and a mattress
and blanket at night. He said that prior to this time he
had believed to the best of his knowledge that inmates
were receiving a mattress or a blanket.

McMann stated that he never saw filthy conditions at
Clinton, and did not permit them. He said it would have
violated the customary rules of the institution if officers
failed to give inmates implements to clean themselves or
toilet articles. McMann said that early in 1966 he dis-
covered that Wright had been placed nude in a strip cell
for a period of time, and he directed the Deputy Warden
that in the future no man would be placed nude in the
strip cell.

Subsequent to the trial in 1968 and the District Court's
decision in 1970, but prior to the decision of the Court of

_—

13

Appeals in 1972, the New York State Department of Cor-
rectional Services promulgated extensive regulations to
prevent any cell from being maintained in a degrading or
unhealthy condition, and to insure that all inmates received
adequate clothing, furnishings and hygienic implements.
In addition the New York Legislature amended the Correc-
tion Law to provide that segregation inmates were to re-
ceive suitable clothing, sufficient quantities of wholesome
food, adequate sanitary and other conditions required for
health, and access to a physician on a daily basis after the
first 24 hours. These changes were noted by the Court of
Appeals in reversing the portion of the District Court's
order which required the defendant prison officials to sub-
mit rules and regulations for the District Court’s approval.

Reasons for Granting the Writ

The affirmance of the damage award against peti-
tioner McMann by the Court of Appeals was tanta-
mount to holding him vicariously liable under the
Civil Rights Act since there was no evidence that peti-
tioner personally imposed the deprivations on respond-
ent which the District Court found to be unconstitu-
tional. Such vicarious liability is unsound and has
been rejected by other Courts of Appeal.

In its decision awarding compensatory damages to re-
spondent Wright, the District Court made specific findings
that Wright was kept nude in a strip cell for disciplinary
purposes, in 1965 and in 1966. The District Court also
found that Wright was deprived of hygienic implements,
and that these things were kept on the window sills outside
the strip cells, only to be handed to the inmates by the
guards on request. The District Court further found that
part of the strip cell treatment was to keep the cells in not
too clean a condition, and that at times the temperature
was cold to an inhumane degree, and caused extreme dis-
comfort to the inmates.

=

While it rejected a defense of good faith or probable
cause, and noted that there was a design to avoid written
rule-making and to put the inmates in the hands of guards
under unsanitary conditions, to make the inmates subser-
vient, the District Court made no specific findings that
petitioner McMann had personally imposed the depriva-
tions on respondent Wright which were the basis of the
damage award. Indeed, the District Court noted that
Warden McMann had changed certain customs of nudity
and cell conditions after he found out about Wright, and
had made major corrections in the segregation unit when
certain conditions came to his attention. In addition, the ~
District Judge declined to award punitive damages against
petitioner McMann because there was not enough evidence
to find deliberateness or recklessness on McMann’s part.
Wright’s testimony also showed that McMann granted him
permission to have his eyeglasses, while he was in the strip
cell in 1965, and granted him permission to have the re-
mainder of his legal materials when he left the strip cell
in March, 1965.

In affirming the damage award, the Court of Appeals
stated that although the District Court had made no find-
ings with respect to petitioner’s actual knowledge of
Wright’s situation, and that a remand to the District Court
for more specific findings would not be inappropriate, there
was ‘‘abundant”’ evidence in the record from which the
Court of Appeals could conclude that McMann actually
knew of the conditions which Wright endured. This evi-
dence consisted of MeMann’s answer to Wright’s com-
plaint, which admitted that strip cells were used in segre-
gation and contained only bare necessities; Wright’s testi-
mony that during an interview with FBI agents, one of
the agents said he had spoken to the warden; MeMann’s
having returned Wright’s eyeglasses and legal materials
on Wright’s complaint; and MeMann’s having read and
initialed a memorandum to the Commissioner in which
Wright described the conditions he endured in the strip
cell.

14

nm

15

The Court of Appeals did not base its decision solely on
this ground, however, but went on to hold that McMann
was chargeable with knowledge as a result of his statutory
and administrative responsibilities in running the insti-
tation ;

‘‘Furthermore, [McMann] was charged with having
such knowledge. Ultimate responsibility for the opera-
tion of the segregation cells was his, as is made clear
from trial testimony, the Employees Rule Book of the
New York State Department of Correction then in
effect, and section 18, N.Y. Correction Law, McKin-
ney’s Consol. Laws ¢. 44 (1968), as amended L. 1970,
e. 476, § 4 (1971 Supp.). Furthermore, section 114a
of the New York Correction Law required that the
warden

shall cause to be kept a daily record of the proceed-
ings of the prison, in which shall he entered a note

. of every punishment inflicted on a prisoner, the
nature and amount thereof and by whom it was in-
flicted, and also a memorandum of every well-founded
complaint made by any prisoner of bad or insufficient
food, want of clothing, or cruel or unjust treatment
by a guard; .. .’’ (Appendix ‘‘A’’ at 17a-18a.)
at 107).

The Court of Appeals concluded that because petitioner
knew or should have known of the conditions in the segre-
gation cells, and was ultimately responsible for permitting
such conditions to exist, petitioner should be liable in dam-
ages to respondent Wright and should not be permitted to
shift his responsibility to subordinate employees.

While we understand the reluctance of the Court of
Appeals to deny damages to a prisoner who has suffered
what the District Court found to be violation of his rights
under the Eighth Amendment, we submit that this affirm-
ance of the damage award by the Court of Appeals was
tantamount to holding petitioner vicariously liable for the
acts of subordinate employees. We believe that this hold-
ing represents an unwarranted extension of liability under

a
16

the Civil Rights Act, and presents an issue which should be
resolved by this Court in view of a conflict in the decisions
of other Circuit Courts of Appeal.

In Hesselgesser v. Reilly, 440 F. 2d 901 (7th Cir. 1971),
the Court of Appeals for the Ninth Circuit held that a
sheriff was liable under 42 U.S.C. § 1983 for the actions
of his deputy because of state statutes which specifically
imposed liability on the sheriff for the negligence and mis-
conduct of his subordinates. However, in discussing the
general principles of liability under the Civil Rights Act
the Court said:

‘<The Civil Rights Act does not itself specifically estab-
lish a basis for liability, vicarious or otherwise, against
persons who do not participate in a civil rights vio-
lation. The applicable section, 42 U.S.C. § 1983, speaks
only of ‘{e]very person who * * * subjects, or causes
to be subjected, any citizen * * * to the deprivation
of any rights * * *.’ Thus if one who did not partici-
pate in such violation is to be held liable for such civil
rights violation of another on principles of vicarious
liability, or by reason of statutory responsibility, it
must be because: (1) the Civil Rights Act gives recog-
nition to the laws of the states pertaining to such lia-
bility and, (2) the laws of the particular state where
the action arose create such liability.’’ (440 F. 2d at
902-03; emphasis added.)

In the instant case the Correction Law and the Employ-
ees Rule Book of the then Department of Correction em-
powered the warden of a state prison to direct and define
the work of subordinate personnel, to discipline errant em-
ployees and to promote the rehabilitation and safety of
inmates. However, none of these statutory or administra-
tive directives established any personal liability on the
part of the warden for the misconduct of subordinate per-
sonnel, who are civil service employees of the state and not
the employees of the warden. Cf. Sanberg v. Daley, 306

17

F. Supp. 277, 278 (N.D. Ill. 1969); Salazar v. Dowd, 256
F, Supp. 220 (D. Colo. 1966). Indeed, under the then ap-
plicable state statutes, respondent’s claims for mistreat-
ment in the state courts would have had to have been
brought in the Court of Claims as a claim against the State
of New York, and not against the Warden personally. See
former Section 24, New York Correction Law, repealed L.
1971, ¢. 1104.

In Adams v. Pate, 445 F. 2d 105 (7th Cir. 1971), the
Court of Appeals affirmed the dismissal of a complaint
brought by an inmate against the warden, pursuant to
42 U.S.C. § 1983, where the inmate alleged that he had
been beaten by guards and had been confined in segrega-
tion in violation of the Eighth Amendment and the Due
Process Clause. In denying relief the Court noted:
‘Where monetary damages, as distinguished from equi-
table relief, is sought under the provisions of the Civil
Rights Act the doctrine of respondeat superior does not
apply; personal involvement of the defendant is required.
Cf. Schnell v. City of Chicago, 7 Cir. 407 F. 2d 1084, 1086.’’
(445 F. 2d at 107, n. 2). The Court further stated, in
terms relevant to the facts in the instant case:

‘‘Insofar as Adams’ complaint seeks recovery for the
alleged beatings it is wholly insufficient to state a
claim against the defendant [warden]. It totally fails
to allege overt acts on the part of Warden Pate or
that the alleged beatings were administered at the
direction of the Warden or with his knowledge and
consent. All the complaint alleges in this respect is
that the plaintiff’s mother, after a visit to him at the
prison, informed Warden Pate of the beatings at the
prison but he did nothing to stop them.’’ (445 F. 2d
at 107).

In Kish v. County of Milwaukee, 441 F. 2d 901 (7th Cir.
1971), two inmates of a county jail brought suit under
the Civil Rights Act against the county itself, the County
Board of Supervisors and the sheriff of the county, al-

—

18

leging that these officials had failed to insure plaintiffs’
safety from physical and homosexual assaults. In affirm-
ing the denial of relief by the District Court, the Court of
Appeals rejected numerous contentions of what the de-
fendant sheriff could have done to prevent homosexual as-
saults, and noted that’ the sheriff had made some efforts
to relieve overcrowding, which was found by the District
Court to be the true cause of the plaintiffs’ difficulties.
Similarly, in the instant case, the District Court made a
specific finding that petitioner McMann, to his credit, had
made corrections in the segregation unit when certain
conditions came to his attention, and had changed certain
customs of nudity and cell conditions when he found out
about Wright.

While the Court of Appeals for the Seventh Circuit
appears to be entirely opposed to the imposition of vicari-
ous liability under the Civil Rights Act, and the Court of
Appeals for the Ninth Circuit appears to be opposed to
such liability unless it is found in local law, two other
Courts of Appeal appear to have taken a different view
of this issue.

In Roberts v. Williams, 456 F. 2d 819 (5th Cir. 1971),
cert. denied sub nom. Roberts v. Smith, 404 U.S. 866
(1971), the Court of Appeals affirmed a damage award
under the Civil Rights Act against a prison superintend-
ent who had failed to give proper instruction to a trusty
in the handling of deadly weapons. The District Court
had found that because of the superintendent’s failure to
give such instruction in the use of a firearm, and because
of the trusty’s negligence in handling a firearm, the plain-
tiff was needlessly and permanently injured when the
trusty accidently discharged a shotgun in plaintiff’s face.
While the Court of Appeals noted that callous indiffer-
ence to suffering at the management level, through sus-
tained knowing maintenance of bad practices and customs,
could result in a violation of the Eighth Amendment, it
declined to rule on the issue of respondeat superior be-
cause it believed that the Superintendent was personally

19

liable for his own negligence and for his failure to abide
by his state law duty to provide proper care for the pris-
oners in his custody. However, the Court intimated that
the rejection of respondeat superior by the District Court
may not have been a correct interpretation of Mississippi
law or of the Court of Appeals decision relied upon by the
District Judge. (See 456 F. 2d at 822).

In Carter v. Carlson, 447 F. 2d 358 (D.C. Cir. 1971), the
Court of Appeals grappled .with the difficult issue of
whether supervisory police officers and the District of
Columbia itself could be held liable for the misconduct of
a police officer who had beaten the plaintiff with brass
knuckles. In reversing the decision of the District Court
which had dismissed the complaint, the Court of Appeals
stated that under Roberts v. Williams, supra, the super-
visory police officers could be held liable for damages under
the Civil Rights Act if they had been negligent in training
the policeman who injured plaintiff, and if this negligence
had resulted in a deprivation of plaintiff’s constitutional
rights. In addition, the Court held that the District of
Columbia could be directly or vicariously liable for the
misconduct of its employees, under 42 U.S.C. § 1983, in
spite of the decision in Monroe v. Pape, 365 U.S. 167
(1961), exempting the City of Chicago from such liability.
The Court reasoned that Monroe was distinguishable be-
cause it involved a municipality that was exempted from
liability by state law.

These decisions in four other Circuit Courts of Appeal
indicate the need for a resolution of the issues raised in
the instant case. While the Court below initially predi-
cated its affirmance of the damage award against peti-
tioner on the ground of petitioner’s supposed ‘‘knowl-
edge’? of Wright’s mistreatment, it then broadened its
ruling to hold petitioner liable on the ground of his statu-
tory and administrative duties as warden of the prison.
In so doing the Court below has brought into focus two
issues under the Civil Rights Act which require clarifica-
tion by this Court: (1) the extent to which supervisory

20

personnel by virtue of their statutory and administrative
duties, should be held vicariously liable for the misconduct
of subordinate employees; (2) the extent to which super-
visory personnel, by virtue of their alleged failure to give
adequate supervision or training, should be held person-
ally liable for the misconduct of subordinate personnel.
We believe that such elaboration would be particularly
appropriate in view of this Court’s recent decisions con-
cerning jurisdiction under 42 U.S.C. § 1983 in Wilwording
vy. Swenson, 404 U.S. 249 (1971), and Haines v. Kerner,
404 U.S. 519 (1972).

In addition, petitioner contends that the Court below did
not correctly decide the issues of personal and vicarious
liability on the record in this case. As we noted before,
the District Court made no findings of fact concerning peti-
tioner’s actual knowledge of the deprivations respondent
endured, and the Court of Appeals made such a determina-
tion based on its own reading of the record. However, of
the items in the record which the Court of Appeals relied
upon to find actual knowledge, only one (Wright’s letter to
the Commissioner in 1966, which petitioner read and ini-
tialed) provided direct proof that petitioner knew the de-
tails of the treatment Wright was receiving from the segre-
gation officers. It was after this letter, and Wright’s com-
plaint in the District Court, that petitioner issued a direc-
tive to the Deputy Warden to end nudity in the strip cells.

Similarly, although the Court below charged petitioner
with knowledge of Wright’s situation because of petition-
er’s statutory and administrative duty to supervise the
prison in which Wright was confined, the Court ignored
the fact that New York law (unlike the state laws noted in
the cases above) did not impose on petitioner any personal
liability for the acts of subordinate civil service employees.
In addition, departmental rules and policies provided that
the Deputy Warden was in charge of disciplinary matters
and in charge of supervising the operation of segregation
units. One Deputy Warden testified at trial that in 1966
Wright was kept nude in a strip cell at his specific order.

21

In sum, petitioner prays that this Court will review both
the broad issues and the specific issues raised by the deci-
sion below, and raised by the apparent conflict in the deci-
sions of other Courts of Appeal concerning liability under
42 U.S.C. § 1983. Petitioner believes that the imposition
of vicarious liability or “supervisory” liability under the
Civil Rights Act, where no such liability exists under state
law, will impede public officials in their work by subjecting
them to heavy personal damages for acts of subordinate
personnel who are not their employees, and cannot be hired
or fired by them. Cf. Morgan v. Willingham, 424 F. 2d 200,
21 (10th Cir. 1970). In the instant case, petitioner, who
did not direct any of the deprivations that were imposed on
respondent by the segregation guards, and who took some
steps to correct them, is being required solely to pay the
damage award out of his own pocket.

CONCLUSION.

The instant petition for certiorari should be granted
to review the decision of the Court of Appeals for the
Second Circuit affirming the award of compensatory
damages against petitioner.

Dated: New York, New York, June 12, 1972
Respectfully submitted, ’

Louis J. LerKow!Tz
Attorney General of the
State of New York
Attorney for Petitioner

SamueL A. HirsHow!tTz
First Assistant Attorney General

Hite, Horrman
Assistant Attorney General
of Counsel

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1083%3A1. Public record. Not legal advice.