Opposition Brief — Knop v. McGinnis

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No. 92-1202 | Fa:

IN THE SUPREME COURT

OF THE UNITED STATES

October Term, 1992

GARY KNOP, et al,

Petitioners,

Vv.

KENNETH L. McGINNIS, et al,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR RESPONDENTS IN OPPOSITION

FRANK J. KELLEY

ATTORNEY GENERAL

THOMAS L. CASEY

Solicitor General

Counsel of Record

P. O. Box 30212

Lansing, Michigan 48909

(517) 373-1124

BARBARA A. SCHMIDT

Assistant Attorney General

Attorneys for Respondents

wad:

ad

QUESTION PRESENTED

DID THE COURT OF APPEALS APPLY AN

INCORRECT STANDARD IN DETERMINING

WHETHER THERE WAS EVIDENCE OF A

SUFFICIENT DEGREE OF FAULT BY SUPER-

VISORY. STATE PRISON OFFICIALS TO

IMPOSE LIABILITY ON THEM FOR AN

ALLEGED CONSTITUTIONAL VIOLATION

CAUSED BY LOWER LEVEL NON-PARTY

EMPLOYEES USING RACIAL SLURS AGAINST

PRISON INMATES?

wi Bu

TABLE OF CONTENTS

QUESTION PRESENTED ....-cccccccccs coe.

TABLE OF AUTHORITIES) ...ccwceceesece

COUNTERSTATEMENT OF THE CASE .......

SUMMARY OF ARGUMENT ......2e06- a

ARGUMENT .....-.eeee-. cece ccc ccccccces

I. THE COURT OF APPEALS DID NOT

APPLY AN INCORRECT STANDARD

IN DETERMINING WHAT DEGREE

OF FAULT MUST BE EVIDENCED

IN ORDER TO IMPOSE LIABILITY

ON SUPERVISORY STATE PRISON

OFFICIALS FOR A CONSTITUTIONAL

VIOLATION CAUSED BY LOWER

LEVEL NON-PARTY EMPLOYEES

USING RACIAL SLURS AGAINST

PRISON INMATES ..ccccccccccccece

CONCLUSION .ccccccncncesscessececeseons

-1iii-

TABLE OF AUTHORITIES

Cases

Bellamy v. Bradley, 729 F.2d 416

(6th Cir.), 4% den.,

Seems ME CEPOO) ses essiccese

ity of Canton v. Harris,

489 U.S. 103 SRE beeeesesecees

Collins v. City of Harker

Heights, Texas, 503 U.S. ’

ba? bs @Os oo 261 (2992) ......0-

Day v. Wayne County Board of

Auditors, 749 F.2d 1199

ES SEED cane cecccececes

Erebia v. Chrysler Plastic

Products Corp., 172 F.2a

Baew (eee Cars 1988) .cccccccces

Hays v. Jefferson County,

668 F.2d 869 (6th Cir. 1982) ...

Monell v. Dept. Soc. Serv.

of City of New York,

436 U.S. 658 CBPIO) coesevcssces

Paul v. Davis,

~ 424 U.S. 69 693 (2597S) aeccccccsece

Poe v. Haydon, 853 F.2d 418

8 ge ee

Powell v..Missouri State

Highway and Transportation

Department, 822 F.2d 798

PTS BOUTS vesccccsssccccce

Pages

-iv-

Pages

Rizzo v. Goode,

223 U.B. 36S (ISTE) cecvcevvesvessses 21

Statutes

42 U.S.C. § 1983 wcrc ereeresveves passim

Court Rules

COUNTERSTATEMENT OF THE CASE

This class action lawsuit was filed

in 1984 by several prison inmates alleg-

ing unconstitutional prison conditions at

the State Prison of Southern Michigan,

Michigan Reformatory, Marquette Branch

Prison, and Riverside Correctional

Facility. The Petitioner class consists

of those inmates confined in these insti-

tutions. Respondents are management

officials and do not include the State of

Michigan or the Michigan Department of

Corrections.

In their amended complaint, Peti-

tioners alleged that their constitutional

rights were violated due to inadequate

physical and mental health. services,

unsanitary conditions, lack of access to

the courts, and lack of protection from

harm. Within the claim of lack of pro-

ate

tection from harm, Petitioners alleged

that desirable jobs were disproportion-

ately assigned tc white inmates, that

cafeteria serving lines were segregated

by race, that black inmates were assigned

to punitive segregation in disproportion-

ate numbers; that white inmates were

assigned to protective custody in dispro-

portionate numbers; and that white staff

displayed attitudes of racially motivated

hostility toward black inmates. Peti-

tioners complained that racial tension

contributed to the atmosphere of vio-

lence, hence, is included in the claim of

protection from harm.

Following a trial on the merits and

dismissal of many of the claims, the

District Court issued an opinion and

order on the issues of legal mail; lack

ie

of adequate winter clothing; lack of in-

cell toilets and wash basins at the

Riverside facility; access to courts;

and, racial discrimination. App. to Pet.

at 42a-135a. Following the submission of

proposed remedial plans, the Court issued

a final opinion and order. App. to Pet.

at 136a-168a.

With respect to the racial claims

presented, Petitioners prevailed on none,

except the claim of racial harassment in

the form of racial slurs. The District

Court found that Respondents did not

intentionally discriminate against black

inmates in the administrative segregation

Or the punitive segregation process.

App. to Pet. at 118a-119a. There was

little or no evidence that the hearing

officers or the security classification

a

committees intentionally discriminated

against black inmates. Id. Petitioners

did not establish that racially motivated

misconduct ticketing practices existed.

Id.

The District Court also found that

Petitioners did not satisfy their burden

of proof relative to the claims of segre-

gation in the dining lines and the eating

areas. App. to Pet. at 125a-128a. Peti-

tioners were able to voluntarily choose a

dining line and eating area. Id. at

127a.

Petitioners also did not prevail on

their claim that Respondents intention-

ally discriminated against black inmates

by assigning the white inmates to the

higher level, more prestigious jobs.

App. to Pet. at 128a. In fact, the Court

alka

found that Petitioners' statistics showed

no overwhelming racial disparities and

that on many occasions, the disparity, if

any, was insignificant. Id. at 129a.

_—

The only allegation relative to a

racial issue upon which Petitioners pre-

vailed is that related to the use of

racial slurs. The District Court found

that although most correctional staff did

not use racial slurs, the number that did

was large enough to expose the inmates to

a "constitutionally intolerable atmos-

phere of racial harassment." App. to

Pet. at 122a. Although the named Respon-

dents, as individuals, did not condone

the use of racial slurs, the Court held

that the Department of Corrections (not a

Respondent) was liable for the racial

Slurs of certain non-party correctional

af$<

officers. Id. at 124a, 123a, respec-

tively.

The Court ordered that “JUDGMENT is

entered FOR defendants and AGAINST plain-

tiffs on plaintiffs' claim that black

inmates at the subject facilities are, as

a class, subjected to intentional racial

discrimination in violation of the equal

protection clause of the Fourteenth

Amendment; JUDGMENT, however, is entered

FOR plaintiffs and AGAINST defendants on

plaintiffs' claim that they are subject

to racial harassment in the form of

racial slurs." App. to Pet. at 135a.

The Court opined that "every governmental

entity is obligated, albeit not always

constitutionally required, to expend

every effort to eradicate it [racial

discrimination] completely from public

Mears + “ .

~ =

life." App. to Pet. at 135a. Disappointed

that the Department of Corrections was

not "completely meeting that obligation",

Id., the Court imposed an elaborate

grievance process coordinated by the

Legislative Ombudsman's Office. App. to

Pet. at 152a-158a. This process included

a detailed, progressive discipline system

for the guilty correctional officers and

maintenance of a record system to monitor

the incidences of racial slurs. Id.

Respondents appealed the orders of

the District Court on several issues,

including the issue of racial slurs. The

Court of Appeals held that although

racial harassment can form a basis for

liability on the part of individuals,

supervisory officials are not liable for

such conduct by their subordinates with-

~

out evidence that the officials encour-

aged or directly participated in the

conduct. App. to Pet. at 32a. The

appellate panel found that the failure to

investigate the racial harassment claims

did not rise to the level of conduct

required for the placement of liability

on Respondent officials. Id.

SUMMARY OF ARGUMENT

This Court's rules caution’ that

"review on writ of certiorari is not a

matter of right, but of judicial discre-

tion. A petition for a writ of certiorari

will be granted only when there are spe-

cial and important reasons therefor."

Sup. Ct. R. 10.1. This petition clearly

fails to meet this threshold requirement.

Petitioners attempt to bring their argu-

ments before this Court on the premise

LA OO NR Aa eT nt tl AR EC RI aT AN 2 seit A et Do ROT ENA RN OM ied tos

_

that the Court of Appeals opinion is

"sharply at odds with other Circuits".

In fact, the Sixth Circuit applied the

applicable standard of liability to the

facts at hand.

Petitioners argue that the Sixth

Circuit should have adopted the "delib-

erate indifference" standard as articu-

lated in City of Canton v. Harris, 489

U.S. 103 (1989), a case decided one month

prior to the submission of Petitioners'

final appellate brief. The holding in

City of Canton clearly sets forth a stan-

dard to be applied when a local govern-

ment's failure to properly train its

employees causes a constitutional viola-

tion. City of Canton is distinguishable

from this case in that there is no local

government defendant, and there is no

=2i~

allegation of failure to train employees.

The issue is to what extent supervisory

officials of a state government can be

held liable for the actions of their

subordinates. The Court of Appeals

reviewed the findings of the District

Court and concluded, on the specific

facts of this case, that the Respondent

state supervisory officials are not

liable for the actions of their sub-

ordinates since they did not encourage or

participate in the misconduct.

The Sixth Circuit made no ruling at

odds with other circuits since, on the

facts of this case, the "encourage and

participate" standard it applied is not

substantively different than the "delib-

erate indifference" standard discussed in

City of Canton.

“| on

Moreover, 42 U.S.C. § 1983 does not

provide a remedy for every wrong, includ-

ing negligence, defamation, or other

state law tort. It is intended to pro-

vide relief for constitutional viola-

tions. On the facts of the instant case

the verbal harassment, including the use

of racial slurs by a few non-party prison

employees, however repugnant, does not

form the basis of a constitutional viola-

tion by the Respondent Supervisory state

officials under this statute.

The District Court specifically did

not find a constitutional violation on

any race discrimination claim. The Court

did, however, attempt to weave a claim of

racial slurs used by a minority of cor-

rectional officers, who were not named as

defendants, into a pattern of behavior,

at tin

then attributed this conduct to a "policy

practice or custom" of the Michigan

Department of Corrections which is also

not a defendant. Following this analy-

sis, the District Court imputed a consti-

tutional violation to Respondent

supervisory officials. This approach is

incorrect as a matter of law and is

unsupported by the record and the Court

of Appeals was correct in rejecting it.

d

:

‘

THE COURT OF APPEALS DID NOT APPLY AN

INCORRECT STANDARD IN DETERMINING

WHAT DEGREE OF FAULT MUST BE EVI-

DENCED IN ORDER TO IMPOSE LIABILITY

ON SUPERVISORY STATE PRISON OFFICIALS

FOR A CONSTITUTIONAL VIOLATION CAUSED

BY LOWER LEVEL NON-PARTY EMPLOYEES

USING RACIAL SLURS AGAINST PRISON

INMATES.

The petition is based upon the asser-

tion that the Court of Appeals used an

improper standard in evaluating the

degree of fault which must be shown to

impose liability on these individual

Supervisory Respondents for the conduct

of other non-party employees. Peti-

tioners' contentions are based upon the

fact that the Court of Appeals opinion

does not recite the phrase "deliberate

indifference" and does not cite the case

upon which Petitioners now heavily rely.

alge

Respondents submit that when the Court of

Appeals opinion is properly viewed in the

context of the facts of this case, it

becomes apparent that the standard used

by the Court of Appeals is not substan-

tively different than the standard Peti-

tioners espouse and that because the

outcome of this case depends solely upon

its own unique facts, this decision is

not in conflict with decisions of this

Court or other courts of appeal.

The District Court found that the

Respondents do not condone the use of

racial slurs, that the “vast majority" of

prison employees do not engage in such

conduct, App. to Pet. at 124a, but that

the use of such language by a minority of

prison employees (who were never named as

defendants) constitutes racial harassment

ni Ba

which is a "policy, practice or custom of

the Department of Corrections" (which

also was never named as a defendant).

App. to Pet. at 123a. The Court found

that the individual supervisory Respon-

dents "have failed to implement policies

that would prevent this situation from

occurring, and affirmatively encourage

its continuation." App. to Pet. at 124a.

The District Court did not cite any evi-

dence of specific affirmative conduct by

Respondents to support this conclusion

and Respondents deny that there is any

such evidence in the record. The Court

of Appeals examined the record and con-

cluded, App. to Pet. at 32a: "The defen-

dants' failure adequately to investigate

claims of racial harassment in this case

did not, in our view, rise to the level

of 'encouragement.'"

atB—

Respondents do not agree that the use

of racial slurs by a minority of prison

employees who are not named as parties

constitutes a basis for imposing liabil-

ity on the individual supervisory Respon-

dents under 42 U.S.C. § 1983. This Court

has recognized the difference between the

question whether a plaintiff's harm was

caused by a constitutional violation and

the question whether another entity has a

sufficient degree of fault to be deemed

responsible for that violation. City of

Canton, supra, 489 U.S. at 388, n. 8;

Collins v. City of Harker Heights, Texas,

503 U.S. , 117 L. Ed. 2d 261 (1992).

Nevertheless, assuming argquendo that the

use of racial slurs can constitute a con-

stitutional violation, it is apparent

that the District Court and Court of

Appeals both applied the same substantive

elf

standard to evaluate whether the individ-

ual Respondents evidence a_ sufficient

degree of fault to subject them to

liability. The outcome of this case sim-

ply depends on the fact that the District

Court and Court of Appeals disagree

whether Respondents' actions encouraged a

constitutional violation.

Petitioners attempt to superimpose

case law applicable to the imposition of

liability on municipalities for improper

training of employees onto the realm of

the standards applicable to imposing lia-

bility on individual state officials. In

Monell v. Dept. Soc. Serv. of City of

New York, 436 U.S. 658, 694 (1978), this

Court held that, unlike state governments

which are protected by Eleventh Amendment

immunity, local governments may them-

«ie

selves be liable under 42 U.S.C. § 1983

when the execution of a governmental pol-

icy or custom causes a constitutional

violation. In the instant case, there is

neither a local government defendant nor

a documented injury. There is not even a

state government defendant. The Respon-

dents here are individual state govern-

ment officials, primarily the Director of

the Michigan Department of Corrections

and several prison wardens.

Petitioners improperly rely on prin-

ciples of municipal liability which were

reiterated by this Court in City of

Canton v. Harris, supra. The issue in

City of Canton was whether a municipality

can ever be held liable under 42 U.S.C.

§ 1983 for constitutional violations

resulting from its failure to train

«1 9—

municipal employees. Id. at 380. fThis

Court held that "[rJjespondent superior or

vicarious liability will not attach under

§ 1983", but that "the inadequacy of

police training may serve as the basis

for § 1983 liability only where the fail-

ure to train amounts to deliberate indif-

ference to the rights of persons with

whom the police come into contact." Id.

at 385, 388. The Court cited from ear-

lier decisions and elaborated upon the

meaning of the phrase "deliberate

{

indifference," Id. at 388-389:

---@ municipality can be liable under

§ 1983 only where its policies are

the "moving force [behind] the con-

stitutional violation". *** "(mMjuni-

cipal liability under § 1983 attaches

where--and only where--a deliberate

choice to follow a course of action

is made from among various alterna-

tives" by city policymakers. *** Only

where a failure to train reflects a

"deliberate" or "conscious" choice by

@ municipality--a policy as defined

by our prior cases--can a city be

liable for such a failure under

§ 1983.

ERT Ne I ee Ee

=20-

Monell and its progeny, including

City of Canton, have no direct applica-

tion in the context of state governmental

entities or officers since those cases

deal only with imposition of liability on

a local governmental entity for the

entity's own actions. The Monell princi-

ples simply do not control in the instant

case, which deals only with allegations

of liability of individual state govern-

mental supervisory officials for’ the

conduct of lower level state employees

who were never named as defendants. The

issue of failure to train state correc-

tions officers or any state employees was

never alleged or litigated in the instant

case.

Respondents in this case include the

Director of the Michigan Department of

Dia

Corrections, the Deputy Director of

Correctional Facilities Administration,

Regional Prison Administrator, and four

prison wardens. Liability of these offi-

cials cannot be established absent a

clear showing that they had a sufficient

degree of fault to be deemed responsible

for a constitutional violation arising

from the activity that forms the basis of

the complaint.

A pervasive pattern of unconstitu-

tional conduct flowing from a deliberate

plan by the named defendants must be

Shown. Rizzo v. Goode, 423 U.S. 362, 375

(1976). A failure to act is insufficient

to prove liability. Id. at 375-76. The

Supervisor must be shown to have

"encouraged the specific incident of mis-

conduct or in some other way directly

«32~

participated in it." Bellamy v. Bradley,

729 F.2d 416, 421 (6th Cir.), cert. den.,

469 U.S. 845 (1984). Without more, fail-

ure to supervise, control, or train gov-

ernment employees is insufficient. Hays

v. Jefferson County, 668 F.2d 869, 874

(6th Cir. 1982). It is the above princi-

ples that were relied upon by the Court

of Appeals in deciding the merits of

Petitioners' claim. App. to Pet. at

31a-32a. Under the facts of the instant

case, the standard applied by the Court

of Appeals is not substantively different

than the standard Petitioners espouse in

the petition.

Citing Hays, the trial court found in

a conclusory fashion that the Department

of Corrections, not the Respondents,

"explicitly or implicitly authorizes,

at%—q

approves, or knowingly acquiesces in the

unconstitutional harassment oof black

inmates by certain staff officers." App.

to Pet. at 123a. None of the named

Respondents were specifically cited for

any conduct indicating encouragement or

participation in the offensive conduct of

correctional officers. Under the guise

of a purported failure to act, the

District Court improperly imputed the

acts of non-party correctional officers

to Respondents and improperly imposed

vicarious liability. App. to Pet. at

122a-125a.

The Court of Appeals properly

rejected this approach and held that

Respondents' failure to adequately inves-

tigate reports of racial slurs did not

rise to the level of encouragement

«<%Q-

required to impute liability to these

Supervisory personnel. Id. at 32a.

The use of racially derogatory lan-

guage may support hostile work environ-

ment claims under Title VII. Erebia v.

Chrysler Plastic Products Corp., 772 F.2d

1250 (6th Cir. 1985). See Powell v.

Missouri State Highway and Transportation

Department, 822 F.2d 798 (8th Cir.

1987). A claim based upon Title VII,

however, will not support an action pur-

Suant to 42 U.S.C. § 1983 unless there is

also an infringement of rights guaranteed

by the Constitution. Day v. Wayne County

Board of Auditors, 749 F.2d 1199,

1204-1205 (6th Cir. 1984); see also, Poe

Vv. Haydon, 853 F.2d 418, 428 (6th Cir.

1988). Thus, although the use of racial

Slurs may give rise to relief in other

=28-

causes of action, a constitutional viola-

tion is necessary to prevail under 42

U.S.C. § 1983. Paul v. Davis, 424 U.S.

693 (1976).

In the instant case, the District

Court specifically found that the named

Respondents individually did not condone

the use of racial slurs. App. to Pet. at

124a. Instead, the court concluded that

the Department of Cotrections, not a

named defendant, was liable for the

unconstitutional harassment of black

inmates by "certain staff officers." Id.

at 123a. An attempt was then made to

impute this liability to Respondents in

their official capacities. Id. at 124a.

Ironically, in the judgment and Order,

the Court specifically ruled against

Petitioners on the claim that black

aS£u

inmates were subjected to intentional

racial discrimination -in violation of the

Equal Protection Clause of the Fourteenth

Amendment. App. to Pet. at 135a. The

court ruled for Petitioners on the claim

"that they are subject to racial harass-

ment in the form of racial slurs", Id.,

without a finding of a constitutional

violation.

| =

CONCLUSION

For the reasons set forth herein,

Respondents respectfully request that

this Court deny the Petition for writ of

Certiorari.

Respectfully submitted,

FRANK J. KELLEY

Attorney General

Thomas L. Casey

Solicitor General

Counsel of Record

P. O. Box 30212

Lansing, Michigan 48909

(517) 373-1124

Barbara A. Schmidt

Assistant Attorney General

Corrections Division

Attorneys for Respondents

February 18, 1993