Petition for Writ of Certiorari — Logue v. United States

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SOP RRRg ORT REI IY OLOLT ISLE LAI BIRO FORGE RRNA RED: Fo 8.

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~ Supreme Goucf cf the United States

OCTOBER TERM 1972

No._ 2 2-656

ORVAL C. LOGUE, individually and as personal

representative of his deceased son, Reagan Logue,

and ALICE MARIE BLOUIN, Petitioners

UNITED STATES OF AMERICA, Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

. 2

Lm SS y

Alpha Law Brief Co., One Main Plasa, No.1 Main St., Houston, Texas 77002

PHILIP K. MAXWELL

JAMES.DEANDA

EDWARDS-& DEANDA

12th Floor, Wilson Building

Corpus Christi, Texas 78403

ED IDAR, JR.

Mexican-American Legal Defense Fund

319 Aztec Bldg.

211 East Commerce Street

San Antonio, Texas

MARIO OBLEDO

MICHAEL MENDELSON

Mexican-American Legal Defense Fund

145 Ninth Street

San Francisco, California 94102

Attorneys for Petitioners

Se Te ee ee

SUBJECT INDEX

Se ANN ss os L.

sane sary, Lntroyegt ee ee eee eg a

TO, es ce ae a os

Reasons for Granting the Writ—

I. Whether the United States may exempt itself from

liability under the Federal Tort Claims Act for injuries

negligently caused to a federal prisoner, by relinquish-

ing supervision over the prisoner to a local county jail

pursuant to a contract providing for housing of fed-

eral prisoners in the jail, is an important question of

federal law which has not been, but should be settled

OF CM 6G os scte irene eS.

II. The decision of the Court of Appeals for the Fifth

Circuit conflicts with decisions of this court, and with

decisions of the courts of appeal for the District of

Columbia, Second and Tenth a :;...........

wmtaaath Sel TTC eee

whew a hd EL TE SO ee

Appendix “A” (District Court’s Memorandum and Opinion)

Appendix “B” (Opinion of the Court of Repeal) oo...

Appendix “C” (Opinion Dissenting From Denial of Rehear-

MOR OED 556 Son is Bs acceso

Appendix “D” (Text of 28 U.S.C. §§1346(b) and 2671) ....

Appendix “E” (Text of 18 U.S.C. OND) aa

Appendix “F” (Text of 18 U.S.C. $4002) i. wn. cen.

Appendix “G” (Federal Prisoners Confined Week Ended

ri ig Ee Trae ee Oe es TN OD EE

Appendix “H” (Newspaper article: Nueces facility—trying

t.teryputa ll nocd scares He scence | EEC ies

TABLE OF AUTHORITIES

CASES

Barker v. City of Santa Fe, 47 N.M. 85, 136 P.2d 480

RMD, 55 PAU h ris enc banc back ok pc kheciv ones cht

Becker v. Beaudoin, 261 A.2d 896, (R.I. 1970) ..........

Brenneman v. Madigan, 343 F. Supp. 128 (N.D. Cal. 1972)

Brown v. City of Omaha, 183 Neb. 430, 160 N.W.2d 805

IRR 1 ee cid a age

Brown v. United States, 342 F. Supp. 987, (E.D. Ark. 1972)

Bryant v. Hendrick, (Phila. C.P.) af’d, 280 A.2d 110 (Pa.

5 I I EE se ohn ks bw 6 oc vec vecs owek.

Campbell v. State, 284 N.E.2d 733 (Ind. 1972) .........

Carroll v. Kittle, 203 Kan. 841, 457 P.2d 21 (1969) .....

Close v. United States, 387 F.2d 686 (D.C. Cir. 1968) ...

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

Hamilton v. Schiro, 338 F. Supp. 1016 (E.D. La. 1970) ...

Haney v. City of Lexington, 386 S.W.2d.738 (Ky. 1964) ...

Hargrove v. Town of Cocoa Beach, 96 So.2d 130 (Fla. 1947)

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

ee ee OP Ee TOPE) vik once vckc cance siececs

Holytz v. City of Milwaukee, 17 Wis. 2d 26, 115 N.W.2d

RE Cee GaN iven sdbsbenwan deed cn c Mews

Honaman v. City of Philadelphia, 322 Pa. 535, 185 A. 750

OO ee ee iids salen baud bo bowye neck diumel 6s is ci

Indian Towing Company v. United States, 1955, 350 US.

We Oo ove cdi deb ihc ceases.

eevee

11, 12

III

CASES Page

Stone v. Arizona Highway Commission, 93 Ariz. 384, 381

Ne ON AG in cen ween sVaieseb eee einen is 17

Taylor v. Sterrett, 344 F. Supp. 411 (N.D. Tex. ROTE) «0 7,8

United States v. Gavagan, 5 Cir., 1960, 280 F.2d 319, cert.

denied, 1961, 364 U.S. 933, 81 S.Ct. 379, 5 L.Ed.2d 365 12

United States v. Gray, 10 Cir., 1952, 199 F.2d 239, 242 ... 12

United States v. Muniz, 374 U.S. 150 CEPGS) oo. ooee ek 4,5, 13,17

United States v. Yellow Cab Company, 1951, 340 U.S. 543,

547, 71 S.Ct. 399, 95 L.Ed. | eI eae 16

Williams v. City of Detroit, 364 Mich. 231, 11 N.W.2d 1

SMD Ps 6s ned) Ponies hy hones se Phe Weeavn ect... 17

Williams v. United States, 405 F.2d 951 (9th Cir. 1969) ... 15

Williams v. United States, Civil No. 3241-SD-S, Southern

District of California, April ea eee 15

Witt v. United States, 462 F.2d 1261 (2d Cir. 1972) ..... 12,14

STATUTES

ee ELS SO peers en ee 14

DE eb eb arecerndeevisnsessdeesiecepeare 14

18 U.S.C. §4002 vidsben tess PE Oe Cn eee 2,4

PEE, i skye bs Sabnce ooveidcies. a ts 2,5, 6,10, 11,15

eis bv See X85 5ec Foi beicccese occ 2

ND hii nines varde cess vivvecssecescc,.,. 2

NE ME eI so nN s oc nner connor sey. 2,4, 12,13, 14

Tex. Rev. Civ. Stat. Ann. art. re a ne ane 8

MISCELLANEOUS

Note, Incarcerating the Innocent: Pretrial Detention in Our

Nation’s Jails, 21 Buff. L. Rev. 891 i.) Se 8

Note, Constitutional Limitations on Conditions of Pretrial De-

tention, 79 Yale L. J. 941 ume ee 8

McKinney, Nueces Facility—trying experience for jailed,

jailers, The Corpus Christi Caller-Times, October 1, 1972 8

IN THE

Supreme Court of the United States

OCTOBER TERM 1972

NO.

ORVAL C. LOGUE, individually and as personal

representative of his deceased son, Reagan Logue,

and ALICE MARIE BLOUIN, Petitioners

UNITED STATES OF AMERICA. Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

Orval C. Logue, individually and as personal repre-

sentative of his deceased son, Reagan Logue, and Alice

Marie Blouin, the natural mother of Reagan Logue, pray

that a writ of certiorari issue to review the judgment of

the United States Court of Appeals for the Fifth Circuit

dated May 1, 1972. Petitions for Rehearing and for Re-

hearing En Banc were denied on July 31, 1972, with

Brown, Chief Judge, and Wisdom and Goldberg, Cir-

cuit Judges, filing an opinion dissenting from the denial

of rehearing en banc.

Soe eae re

OPINIONS BELOW

The district court’s memorandum opinion ( Appendix A,

infra, p. 21), awarding Petitioners recovery under the

Federal Tort Claims Act, is reported at 334 F.Supp. 322.

The opinion of the court of appeals (Appendix B, infra,

p. 28) is reported at 459 F.2d 408. and the opinion dis-

senting from the denial of rehearing en banc (Appentix C,

infra, p. 36) is reported at 463 F.2d 1340.

JURISDICTION

The judgment of the court of appeals was entered on

July 31, 1972. The jurisdiction of the Court is invoked

under 28 U.S.C. § 1254(1).

QUESTION PRESENTED

This case presents the issue whether the United States

government may exempt itself from liability under the

Federal Tort Claims Act for injuries negligently caused

to a federal prisoner, by relinquishing supervision over

the prisoner to a local county jail pursuant to a contract

providing for housing federal prisoners in the jail.

STATUTES INVOLVED

The pertinent provisions of the Federal Tort Claims

Act (28 U.S.C. §§ 1346(b) and 2671) are set forth in

Appendix D, infra, p. 43). The statute imposing on the

United States the duty to safely keep, care for, and pro-

tect federal prisoners (18 U.S.C. § 4042) is reproduced

3 in Appendix E, infra, p. 45. The statute authorizing the

~ United States to contract with non-federal governmental

authorities for the detention of federal prisoners (18

U.S.C. § 4002) is set forth in Appendix F, infra, p. 47.

STATEMENT

The deceased, Reagan Logue, was arrested by a

Deputy United States Marshal on a bench warrant charg-

ing him with conspiracy to smuggle Marijuana into the

United States, and was placed by the Deputy Marshal in

the Nueces County jail as a federal prisoner. While so

incarcerated the prisoner attempted suicide by inflicting a

serious cut on his left arm. Thereafter, he was transported

from the jail to a local hospital, where he was treated for

the laceration and diagnosed as acutely psychotic.

Despite doctors’ recommendations that the prisoner re-

main in hospital until he could be transferred to another

medical facilitiy, the Deputy Marshal returned the prisoner

to the jail, where he was placed, at the Deputy Marshal’s

request, in a cell stripped of everything but a bunk bed,

commode and wash basin. The Deputy Marshal, however,

made no specific arrangements for constant surveillance of

the prisoner, although he knew the prisoner had serious

suicidal tendencies and should be protected against in-

juring or killing himself. The jail employees also knew

the prisoner had serious suicidal tendencies, but their sur-

veillance was mainly limited to checking on the prisoner

when they happened to be bringing another prisoner onto

the same floor of the jail. During one of the periods be-

tween these random checks, the prisoner removed the long

Kerlix bandage that bound the wound from his first suicide

attempt and hanged himself with it.

The district court held that the Deputy U.S. Marshal

was negligent in failing to make specific arrangements for

constant surveillance of the prisoner, that the jail em-

ployees were negligent in failing to keep the prisoner

under constant surveillance. and that the United States

government was liable for both these acts of negligence

under the Federal Tort Claims Act. The court of appeals

reversed, holding that (a) the Deputy Marshal had no

authority or power to control the internal functions of the

Nueces County jail and, therefore, had no duty to make

specific arrangements fdr the prisoner’s constant -surveil-

lance; and that (b) 18 U.S.C. § 4002, authorizing the

United States to contract with non-federal governmental

authorities for the detention of federal prisoners, fixed

the status of the Nueces County jail as that of a “con-

tractor”, thereby insulating the United States from lia-

bility for the negligence of the jail’s employees under the

Federal Tort Claims Act, 28 U.S.C. § 2671. Chief Judge

Brown, with whom Circuit Judges Goldberg and Wisdom

joined, filed an opinion dissenting from the denial of

rehearing en banc in which he questioned the reasoning

of the court of appeals on the merits and stated his belief

that the importance of the issues raised in the case war-

ranted en banc reconsideration by the court.

REASONS FOR GRANTING THE WRIT

I. Whether the United States may exempt itself

from liability under the Federal Tort Claims Act

for injuries negligently caused to a federal pris-

oner, by relinquishing supervision over the pris-

oner to a local county jail pursuant to a contract

providing for housing of federal prisoners in the

jail, is an important question of federal law

which has not been, but should be, settled by

this Court.

This Court held in United States v. Muniz, 374 US.

150 (1963) that federal prisoners were entitled to sue

under the Federal Tort Claims Act for personal injuries

sustained during confinement in prison by reason of the

negligence of government employees. Such suits could be

maintained, said the Court, even if the law of the state

in which the tort occurred immunized jailers from suit by

their prisoners, since the duty of care owed by the gov-

ernment to federal prisoners is fixed by 18 U.S.C. § 4042,

independent of an inconsistent state rule. United States v.

Muniz, supra, 374 U.S. at 163-165. The Court noted that

under the Act the government was not without defenses

to suits by federal prisoners, but expressly declined to

“. . . intimate any opinion upon their applicability to

these complaints, since no such issue is presented for our

review.” United States v. Muniz, supra, 374 U.S. at 163.

Thus the issue presented in the instant case—whether a

federal prisoner may bring a Federal Tort Claims action

against the United States government for negligently

caused injuries sustained while he is confined in a local

jail pursuant to a contract between the government and

the jail—was left undecided by Muniz. It is an issue of

_ national importance to the criminal justice system admin-

istered by the federal government. Like the fundamental

issue resolved in Muniz, it is an issue that must be decided

by this Honorable Court.

Published statistics are unavailable, but it is estimated

that the Bureau of Prisons has an average of 800 con-

tracts with state and local jails to provide housing for

federal prisoners.’ While these “contract jails” hold very

1. The statistics and estimates relating to federal prisoners and

to the number of federal contracts with local jails were given to

counsel for Petitioners by the Office of the General Counsel, Federal

Bureau of Prisons. According to that office, however, the information

was actually provided by the Bureau’s Division of Community

Services.

few of the federal prisoners who have been tried and sen-

tenced,” they hold the overwhelming majority of those who

are “pre-trial detainees”—-persons arrested and detained in

connection with federal offenses. Again, published data

is lacking, but the Bureau of Prisons estimates that on

any given day there is an average.of 4,000 unsentenced

federal prisoners in non-federal facilities. This figure stands

in sharp contrast to the number of unsentenced federal

prisoners in federal facilities: 652 for the week ending

August 10, 1972.° With the dockets of the federal courts

becoming increasingly more congested, there is little doubt

that the number of unsentenced federal prisoners in local

jails will steadily rise in the future. The point to be made,

of course, is that the United States government has made

the “contract jail” a necessary and apparently permanent

part of the federal criminal justice system, and that the

number of persons affected by the decision to deny federal

prisoners in those jails the right to the statutory duty of

care of 18 U.S.C. § 4042 and the FTCA remedy for its

breach is substantial. A decision of this magnitude must

‘be made by the highest court in the land.

But there is a deeper, fundamentally moral reason why

the Court should hear this case, and that is that the con-

ditions to which the federal government subjects its pris-

oners when it turns them over to local jails are, as a gen-

eral rule, abhorrent. In case after case, both federal and

state courts are finding that the treatment of prisoners in

2. The number of sentenced federal prisoners in non-federal

facilities in September, 1972, was reported to be only 246 (173

women, 33 men, and 40 juveniles).

3. See “Federal Prisoners Confined Week Ended 08/10/72”, pro-

vided by the Federal Bureau of Prisons’ Community Services Division

through the Bureau’s Office of General Counsel, Appendix G, infra,

p. 50.

local jails violates basic standards of human decency.‘

Overcrowding, inadequate supervision, no separation from

dangerous and contagiously ill prisoners, substandard med-

ical care, exposure to extreme temperatures, unsanitary

kitchen and bathing facilities, and the risk of loss of life

from fire are among the several outrages that the courts

have found to constitute cruel and unusual punishment

4. See e.g., Brenneman v. Madigan, 343 F. Supp. 128 (N.D. Cal.

1972) (Alameda County, California); Hamilton v. Love, 328 F.

Supp. 1182 (E.D. Ark. 1971) (Pulaski County, Arkansas); Jones

v. Wittenberg, 323 F. Supp. 93 (N.D. Ohio 1971), aff'd. sub. nom.,

Jones v. Metzger, 456 F.2d 854 (6th Cir. 1972) (Lucas County,

Ohio); Hamilton v. Schiro, 338 F. Supp. 1016 (E.D. La. 1970)

(Orleans Parish, Louisiana). Bryant v. Hendrick, (Phila. C.P.) aff'd.,

280 A.2d 110 (Pa. Sup. Ct. 1971). For a summary of the lower

court opinion in Bryant see 7 Crim. L/Rep. 2463. See also, Jackson

v. Hendrick, (Phila. C.P. 1972) surhmarized in 40 U.S.L.W. 2710

(May 2, 1972), on appeal, No. 576CD 1972, in the Commonwealth

Court of Pennsylvania.

Inquiries made of the attorneys for the plaintiffs in the foregoing

cases revealed that federal prisoners are presently housed in Pulaski

County Jail in Little Rock (Hamilton v. Love, supra), and in Orleans

Parish Jail in New Orleans (Hamilton vy. Schiro, supra), although

they have been removed to an annex in the latter instance. Appar-

ently as the result of the litigation in Jones v. Wittenberg, supra,

the Lucas County Sheriff is presently refusing to accept federal

prisoners in the Lucas County Jail, Toledo, Ohio. All federal prisoners

are now housed in nearby Adrian, Michigan and transported to

Toledo for federal court appearances. Despite the conditions found

to exist in the Dallas County Jail (Taylor v. Sterrett, infra, note 5),

federal prisoners are still kept in that facility. At the direction of the

district court in Brenneman v. Madigan in March, 1971, the U‘S.

| Marshal stopped placing federal prisoners in the Greystone section

| of Alameda County’s Santa Rita Rehabilitation Center. Improvements ©

) have been made in that facility, however, and federal prisoners are

again housed therein. Federal prisoners were withdrawn from Holmes-

berg jail, Philadelphia County, (Bryant v. Hendrick, Supra), after

the prisoner riot in July, 1970. Federal prisoners are still housed

in Philadelphia’s Detention Center and House of Correction (Jackson

oe is, supra), although nearby state penal institutions are also

aoe

and a denial of due process and equal protection of the

laws.° Such conditions are even more contemptible as they

apply to those merely charged with crime, since the gov-

ernmental interest in punishing criminal offenders, which

might arguably justify some of the conditions found in the

jails, is inapplicable to the treatment of persons whose

guilt has not been proved.* As has been seen, the great

bulk of the federal prisoners placed in these jails are in -

this category. According to the evidence developed in the

instant case, the federal government does not require that

its prisoners be separated from the state prisoners or that

5. Recently, a federal district court in Texas held that the con-

ditions in the Dallas County jail violated the Texas statute detailing

the minimum requirements for “safe and suitable jails” in the state.

Taylor v. Sterrett, 344 F. Supp. 411 (N.D. Tex. 1972). The plain-

tiffs also challenged the constitutionality of the conditions, but the

court chose to base its decision on Article 5115, Texas Revised Civil

Statutes. While the conditions of the Nueces County jail, where the

prisoner in the instant case was held, have not been the subject of

litigation, they are certainly no better than those in the Dallas County

jail. For a description of current conditions in the Nueces County

jail, see McKinney, Nueces Facility—trying experience for jailed,

jailers, The Corpus Christi Caller-Times, October 1, 1972, § A, at 6,

col. 5, noting, inter alia, the increased burden placed on the jail by

the rising number of illegal aliens detained there by the federal gov-

ernment. Appendix H, infra, p. 48.

6. In Hamilton v. Love, supra, note 4, 382 F. Supp. at 1191, the

court noted that the lot of those detained while awaiting trial ap-

peared to be worse than that of those convicted and serving their

sentences inthe Arkansas state penitentiaries. The full impact of this

observation cannot be felt until it is remembered that conditions in

the Arkansas state penitentiaries have been found to violate the

Eighth Amendment. Holt v. Sarver, 309 F. Supp. 362 (E.D. Ark.

1970), afd, 442 F.2d 304 (8th Cir. 1971). For a discussion of the

pretrial detainee problem see, Note, Incarcerating the Innocent:

Pretrial Detention in Our Nation’s Jails, 21 Buff. L. Rev. 891 (1972);

Note, Constitutional Limitations on Conditions of Pretrial Detention,

79 Yale L.J. 941 (1970).

e. 9

they be given any special treatment.’ In short, the federal

government each day relinquishes the supervision of thou-

sands of persons whose guilt of any crime has not been

established to local facilities which are woefully inadequate

even for the state prisoners they must house. And, accord-

ing to the Court of Appeals for the Fifth Circuit, once the

United States government surrenders physical custody of

a federal prisoner to such a facility it extinguishes its lia-

bility for whatever harm might befall that prisoner after-

wards. Whether, as a matter of public policy and good

conscience, this should be the law is a question that de-

mands the attention of this Honorable Court.

In his opinion dissenting from the denial of rehearing

en banc, in which Circuit Judges Goldberg and Wisdom

joined, Chief Judge Brown posed the fundamental ques-

tion in this case by way of analogy.

If a Deputy United States Marshal, after discov-

ering a tubercular prisoner’s critical physical condi-

tion, nevertheless decided to consign that individual

to the custody of State authorities in a county jail

without first determining whether the facilities pro-

vided adequate treatment for tuberculosis victims,

and without even attempting to find out whether the

conditions of confinement reasonably assured con-

tinued survival, I have difficulty believing that the

Government's liability under the Federal Tort Claims

Act for death resulting from lack of proper medical

attention or from an unsanitary environment could

7. Testimony of Gerald L. Jones, Supervisory Deputy U.S. Mar-

shal for the Southern District,of Texas. See printed appendix of the

record in this case, volume II, at 386-387.

[T]he Bureau of Prisons would frown very muchly [sic], very

muchly [sic] so, if he [a federal prisoner] received any better

treatment than any other prisoner in the jail, whether it be

federal, state, county.

App., Vol. II at 387.

be avoided with the bland assertion that the Marshal

had no authority to convert the jail into a hospital.

Since the facts of the present case are not materially

different, I suggest that this serious and previously

unresolved problem involving the care of Federal

prisoners temporarily confined under contract with

_ State officials is of sufficient importance to merit én

banc reconsideration by the Court.™

For the same reason, the decision of the court of appeals

should be reviewed by this Court.

II. The decision of the Court of Appeals for the Fifth

Circuit conflicts with decisions of this Court, and

with decisions of the courts of appeal for the

District of Columbia, Second and Tenth circuits.

A. The negligence of the Marshal.

‘Section 4042 of Title 18, United States Code, declares

that the Bureau of Prisons, under the direction of the

Attorney General, shall provide, inter alia, for the quar-

tering, safekeeping, care, and protection of all persons

charged.with or convicted of offenses against the United

States.° As Judge Brown pointed out in his opinion dis-

senting from the denial of rehearing en banc, no one dis-

puted that this statute explicitly charged the Marshal with

the affirmative duty to provide for the safekeeping, care

and protection of persons, like Reagan Logue, who were

accused of federal offenses.’ No one suggested that the

Marshal lacked knowledge of the prisoner’s serious sui-

cidal tendencies, or that the Marshal made any reasonably

7a. Appendix C, infra, at p. 36.

8. For the full text of 18 U.S.C., See 4042, Appendix E, infra,

p. 45.

9. See, Appendix C, infra, at p. 36.

diligent effort to assure proper supervision of the prisoner

while he was confined alone in his cell, or that the same

tragic result would have occurred even had the prisoner

remained in a hospital equipped to provide the necessary

surveillance. The only justification advanced by the court

of appeals for overturning the distrikt court’s finding of

negligence on the part of the Marshal is the conclusion

that the record provides no basis for Iding that he “had

any power or authority to control any of the internal

functions of the Nueces County jail.”!”

Judge Brown’s dissenting opinion. correctly points out

that the Marshal's ability to control the internal functions

of the jail is immaterial to his duty under 18 U.S.C. §4042

to care for and protect federal prisoners.

Without initiating an extensive discourse on the

state of the evidence—which seems to offer at least

some tangible support for the theory that the Sheriff

and his deputies were subject to the Marshal’s con-

trol because they frequently complied with his infor-

mal instructions or suggestions—I need only point

out that the question of the Marshal’s authority to

effect changes in the conditions of confinement is

actually irrelevant here. The breach of the statutory

duty of care occurred when Logue was confined un-

der circumstances which the Marshal knew were in-

herently dangerous in the absence of special precau-

tions, regardless of what he may or may not have

been empowered to do about the situation. Once the

Government undertakes performance of an act en-

tailing a duty of ordinary care it may not thereafter

avoid liability under the Federal Tort Claims Act

simply by abandoning the undertaking and attempt-

ing to attribute the responsibility to someone else.

Indian Towing Company v. United States, 1955, 350

10. See, Appendix B, infra, at page 34.

US. 61, 69, 76 S.Ct. 122, ___, 100 L.Ed. 48, 56;

United States v. Gavagan, 5 Cir., 1960, 280 F.2d

319, cert. denied, 1961, 364 U.S. 933, 81 S.Ct.379,

5 L.Ed.2d 365.

Rather than providing for Logue’s safety, the Mar-

shal simply abandoned him, thus breaching the duty

of care which, “in the case of a mental patient, * * *

must be reasonably adapted and proportioned to his

known suicidal, homicidal, or other like destructive

tendencies.” United States v. Gray, 10 Cir., 1952.

199 F.2d 239, 242."

The instant case presents a stronger argument for gov-

ernment liability than either Indian Towing or Gray, since

here the United States was under a specific, statutory duty

of care to all federal prisoners, regardless of their physical

location. If a judicial exception is to be read into 18

U.S.C. §4042 to exclude federal prisoners held in state

and local county jails, it should be done by this Court

only after careful consideration of the consequences of

such a decision.

B. The negligence of the Nueces County

jailers.

The court of appeals has also held that the negligence

of the state jailers in failing to keep Logue under constant

scrutiny cannot be attributed to the United States because

@ the Nueces County jail was a “contractor” within the

meaning of 18 U.S.C. 2671. This holding ignores the

remainder of the definition of “employee of the govern-

ment” in that section and conflicts with the Second Cir-

cuit’s decision in Witt v. United States, 462 F.2d 1261

(2d Cir. 1972) and District of Columbia Circuit’s decision

11. See, Appendix C, infra, at pages: 39-40.

eee

5 3 "yg Caley

ey EL PTE Tats ENS PES SE BI Fe IGP TON

in Close v. United States, 397 F.2d 686 (D.C. Cir. 1968).

Furthermore, since the decision of the court of appeals

creates a judicial exception to the Federal Tort Claims

Act—federal prisoners being held in non-federal facilities

—the decision is contrary to this Court’s decisions in

Rayonier, Inc. v. United States, 352 U.S. 315 (1957),

and in United States v. Muniz, 374 U.S. 150 (1963).

Even if it is assumed that the Nueces County jail is a

“contractor” under the FTCA, that it not determinative

of the United States liability for the negligence of the

jail’s employees. The Act’s definition of an “employee of

the government” includes not only “officers or employees

of any federal agency” (the definition of which excludes

“any contractor”), but also includes “persons acting on

behalf of a federal agency in an official capacity, tempo-

rarily or permanently in the service of the United States

whether with or without compensation.” 28 U.S.C. §2671

(1964) (emphasis added). It is difficult to conceive of

any situation more appropriate than that presented in the

instant case for the application of this latter portion of

the statutory definition of government employee. That the

Nueces County jailers were acting as federal jailers vis-a-

vis Reagan Logue is quite obvious. This was precisely the

reason why the District of Columbia Circuit held the

United States liable under the FTCA for an injury to a

federal prisoner temporarily being held in the D. C. jail

at the direction and. for the convenience of the United

States. Close v. United States, 397 F.2d 686 (D.C. Cir.

1968).

Since the Congress has clearly committed the custody

of and safekeeping of federal prisoners upon convic-

tion to the Attorney General, then it must be true

that in this instance the D. C. jailer was Serving as

—

the Attorney General's jailer; and it must also be

true, or at least it does not appear to the contrary

in the record before us, that as to this federal pris-

oner, the Attorney General had some degree of pow-

er, commensurate with his continuous responsibility

to supervise the D. C. jailer and his handling of this

particular prisoner. We note in this regard that, for

the purposes of the FTCA, Congress has defined

“Employee of the [federal] government” as including

“persons acting on behalf of a federal agency in an

official capacity, temporarily or permanently in the

services of the United States, whether with or without

compensation.” 28 U.S.C. §2671. 397 F.2d at 687.

(emphasis added).

Citing the Close case, the Second Circuit recently held

in Witt v. United States, supra, that the United States was

liable under the Federal Tort Claims Act\for breach of

its statutory duty of care to a federal military prisoner

under 10 U.S.C. 951(c),’* even though the injury to the

prisoner was caused solely by the negligence of a private

person who had physical custody of the prisoner for pur-

poses of having him perform work which the negligent

party had contracted to do for a private association of

military personnel.

The court rejected the government’s argument that

“{[w]hen Witt [the injured prisoner] climbed into the [ pri-

vate tortfeasor’s] trailer, the responsibility of the Disci-

plinary Barracks for him stood at the curbside.”

“We take a different view. On the day of the acci-

dent, the Commandant of the Disciplinary Barracks

had “custody of all offenders sent there” and was

under a duty to “control and employ offenders as he

considers best for their health and reformation . . .”

12. Formerly 10 U.S.C. § 3661 (repealed in 1968).

PERE, EEG TTR TIO EINE CUI GRE RR TUNE QUE Same,

—

Such a duty may not be absolutely non-delegable, as

Witt asserts, but in our view, the duty is an important

and broad one. It should not be sidestepped simply

by having McQuirk [the private tortfeasor] rather

than a permanent employee or an enlisted man trans-

port the prisoners and similarly the duty should not

be affected because a particular work detail was “vol-

untarily” chosen in lieu of other regular work assign-

ments.” Witt v. United States, supra, 462 F.2d at

1265. (emphasis added).

As in Close and Witt, the United States was under. an

affirmative statutory duty in the instant case to care for

and protect their prisoners. Petitioners submit that 18

U.S.C. § 4042 is an absolutely nondelegable duty that

cannot be avoided by the relinquishment of supervision

over a federal prisoner, especially where the person or

governmental entity to which supervision is relinquished

is clearly acting on behalf of the United States in an

official capacity.’* Judge Brown pointed out that:

13. The Court should also note the decision of the Ninth Circuit

in Williams v. United States, 405 F.2d 951 (9th Cir. 1969) affirming

the dismissal of a federal prisoner’s cause of action based on 18

US.C. § 4042 against the county officials on the grounds that that

Statute created a cause of action only against the United States. On

remand the district court held, as did the court of appeals in the

instant case, that the United States could not be held liable for the

negligence of the county officials, since the county was a “contractor.”

Williams v. United States, Civil No. 3241-SD-S, Southern District of

California, April 1, 1971. Counsel for Petitioners herein has been

informed that the appeal of that decision has been dismissed. For a

case that questions the reasoning of the district court’s opinion in

Williams, see Brown v. United States, 342 F. Supp. 987, 997-998

(E.D. Ark. 1972), involving an injury to a federal prisoner while he

was held in the Pulaski County Jail in Little Rock, Arkansas. Recall

that the conditions in the Pulaski County Jail were held violative of

the Eighth and Fourteenth Amendments in Hamilton v. Love, 328

F. Supp. 1182 (E.D. Ark. 1971). See note 4, supra, and accompany-

ing text.

F St em

————

when the Government decides that a particular indi-

vidual should assume obligations and responsibilities

virtually identical to those of a salaried Federal em-

ployee, there may very well be some persuasive basis

for the suggestion that such an individual’s breach.

of a specific statutory duty owed by the salaried em-

ployee to a specific class of person should visit identi-

cal liability upon the United States. Obviously there

is more than a subtle distinction between a “contrac-

tor” who breaches a duty of reasonable care Owed to

the world at large and a “contractor” who performs

specific custodial functions that under a plain Con-

gressional mandate would ordinarily entail a definite

obligation of due care owed to a discrete (and par-

ticularly vulnerable) class of people. If only for the

sake of uniformity and the avoidance of formalistic

legal distinctions totally divorced from the realities of

the situation, further consideration of the problem

might inevitably lead to the conclusion that ~the

Sheriff and his deputies were “employees” within.the

meaning of the Act, particularly in light of the prin-

3 ciple that “the Government’s liability is no longer

restricted to circumstances in which government

bodies have traditionally been responsible for miscon-

3 duct of their employees. The Act extends to novel ®

‘ and unprecedented forms of liability as well.”

United States v. Muniz, 1963, 374 U.S. 150, 159,

83 S.Ct. 1850, ___, 10 L.Ed.2d 805, 813. As has

: long been recognized, “the Federal Tort Claims Act

F waives the Government’s immunity from suit in

sweeping language.” United States v. Yellow Cab

Company, 1951, 340 U.S. 543, 547, 71 S.Ct. 399,

——, 95 L.Ed. 523, 528 (emphasis added)."

In addition, the decision of the court of appeals deny-

ing the FTCA remedy to federal prisoners in state jails

is clearly offensive to the principle announced by this

14. Appendix C, infra, at p. 41.

—_—_

Court in Rayonier, Inc. v. United States and reaffirmed

in United States v. Muniz:

There is no justification for this Court to read ex-

emptions into the Act beyond those provided by Con-

gress. If the Act is to be altered that is a function

for the same body that adopted it. United States vy.

Muniz, 374 U.S. 150, 166 (1963).

It would truly be anomalous if the court of appeals de-

cision immunizing the United States from liability for

injuries to its Own prisoners to. whom it owes a statutory

duty of care is allowed to stand unreviewed at a time when

judicial impatience with the doctrine of sovereign im-

munity has led to its abrogation or dilution by judicial

decision in state after state.’

15. See e.g., Stone v. Arizona Highway Commission, 93 Ariz. 384,

381 P.2d 107 (1963); Parish v. Pitts, 244 Ark. 1239, 429 S.W.2d 45

(1968); Muskopf v. Corning Hospital District, 55 Cal. 2d 211, 11

Cal. Rptr. 89, 359 P.2d 457 (1961); Proffitt v. State of Colorado,

482 P.2d 965 (Colo. 1971); Hargrove v. Town of Cocoa Beach, 96

So.2d 130 (Fla. 1957); Smith v. Idaho, 93 Idaho 795, 473 P.2d 937

(1970); Molitor v. Kaneland Community Unit District No. 302, 18

Ill. 2d 11, 163 N.E.2d 89 (1959); Campbell v. State, 284 N.E.2d

733 (Ind. 1972); Carroll v. Kittle, 203 Kan. 841, 457 P.2d 21

(1969); Haney v. City of Lexington, 386 S.W.2d 738 (Ky. 1964);

Williams v. City of Detroit, 364 Mich. 231, 11 S.W.2d 1 (1961);

_ Spanel v. Mounds View School District, 264 Minn. 279, 118 N.W.2d

795 (1962); Brown v. City of Omaha, 183 Neb. 430, 160 N.W.2d

805 (1968); Rice v. Clark County, 79 Nev. 253, 382 P.2d 605

(1963); McAndrew v. Mularchuk, 33 N.J. 172, 162 A.2d 820 (1960):

Barker v. City of Santa Fe, 47 N.M. 85, 136 P.2d 480 (1943);

Becker v. Beaudoin, 261 A.2d 896 (R.I. 1970); Honaman vy. City

of Philadelphia, 322 Pa. 535, 185 A. 750 (1936); Holytz v. City of

Milwaukee, 17 Wis. 2d 26, 115 N.W.2d 618 (1962); see also, Krause

v. Ohio, 28 Ohio App. 2d 1, 274 N.E.2d 321 (1971) holding the

doctrine of sovereign immunity constitutionally infirm under the Equal

Protection Clause. The decision, however, was reversed by the Ohio

Supreme Court, 7/19/72. See summary of opinion in 41 U.S.L.W.

2073. (Aug. 8, 1972).

But again, it is the manifest unfairness of allowing the

United States to stand immune to liability for injuries to

federal prisoners in local lockups that compels that this case

be considered by the Court. And again, it is the language

of Judge Brown, with which Judges Goldberg and Wisdom

agreed, that best makes the point.

Apart from the difficulties posed by this case in iso-

lation, its implications within the broader context of

modern-day prison administration are even more dis-

turbing. Overcrowding and substandard physical fa-

cilities inevitably have a progressively detrimental

impact on the administrator’s ability to insure the

health, safety and welfare of those im his custody. In-

creasingly we are being forced to confront un-

deniable evidence that the inmates of many institu-

tions routinely subject other prisoners to varieties of

subhuman treatment that no citizen of a civilized na-

tion, whatever his transgression against society,

2 should be compelled to endure. That such outrages

are inflicted upon those serving sentences following

conviction is disgraceful. But when the victim

charged with a Federal offense is merely confined

temporarily in a State jail while awaiting transfer or

: release on bond, I hardly think we provide an ac-

3 ceptable answer when we tell him or his family that

; restitution for death or injury resulting from his cus-

todian’s culpable neglect is unavailable because the

responsible official was wearing a State rather than

a Federal badge. In such circumstances I cannot con-

cede that despite the constable’s blunder the Govern-

: ment must go free.’®

CONCLUSION

Because of the important questions of national policy

raised in this case regarding the United States’ responsi-

16. Appendix C, infra, at p. 42. |

—

bility to federal prisoners held in non-federal facilities,

because of the clear conflict between the circuits on this

issue, and because the Fifth Circuit’s narrow reading of

the Federal Tort Claims Act runs counter to this Court’s

previous interpretations of the Act, it is clear that this

Court should review the decision of the United States

| Court of Appeals for the Fifth Circuit.

PRAYER

Wherefore, premises considered, Petitioners respectfully

pray that a writ of certiorari issue to review the decision

of the United States Court of Appeals for the Fifth

Circuit.

Respectfully submitted,

OrVAL C. LOGUE, ET AL, Petitioners

By:

PHILIP WEL

JAMES DEANDA

Epwarps & DEANDA

12th Floor, Wilson Building

Corpus. Christi, Texas 78403

Ep Ipar, Jr.

Mexican-American Legal Defense

Fund

319 Aztec Bldg.

211 East Commerce Street

San Antonio, Texas

MarRI0O OBLEDO

MICHAEL MENDELSON

Mexican-American Legal Defense

Fund

145 Ninth Street

San Francisco, California 94102

Attorneys for Petitioners

SLs papi Str ae nel cata sean Me 7 Saad

CERTIFICATE OF SERVICE

A true and correct copy of the above and foregoing

- has been mailed on thi day of October, 1972, to

Mr. William L. Bowers, Jr., Assistant United States At-

torney, P. O. Box 61129, Houston, Texas 77061, and

Richard Kleindienst, United States Attorney General,

Department of Justice, Washington, D.C.

PHILIP K LL

Epwarps & DEANDA

12th Floor, Wilson Building

Corpus Christi, Texas 78403

| 21

APPENDIX “A”

IN THE

DISTRICT COURT OF THE UNITED STATES

For The Southern District Of Texas

Corpus Christi Division

ORVAL C. LOGUE, IND. & AS PERSONAL

REPRESENTATIVE OF HIS DECEASED SON,

REAGAN EDWARD LOGUE

UNITED STATES OF AMERICA

C. A. NO. 69-C-106

MEMORANDUM AND OPINION’

| Reagan Edward Logue, a Federal prisoner, hanged

himself in the Nueces County jail. His adoptive father,

Orval C. Logue, has brought this suit under the pro-

visions of the Federal Tort Claims Act, 28 US.C., § 2671,

et seq, to recover damages from the government under

the Texas Wrongful Death Act, Article 4671, et seq,

Revised Civil Statutes of Texas ( 1925), as amended, for

himself and for Reagan Edward Logue’s mother, Alice

Maire Logue, now Mrs. Blouin, and on behalf of the

Estate of Reagan Edward Logue for the decedent’s pain

and suffering and for funeral expenses. This Court has

full and complete jurisdiction of the subject matter of

the parties and venue properly lies.

The Court finds the following facts surrounding the

death of Reagan Edward Logue:

1. On May 22, 1968, the deceased, then eighteen years

Del W. Bowers in Corpus Christi, Texas, on a bench

warrant charging the said Reagan Edward Logue with

conspiracy to smuggle 229 pounds of marijuana into the

United States, and he was placed in the Nueces County

jail as a Federal prisoner.

2. At about 3:00 p.m. the next day, the prisoner at-

tempted suicide by inflicting a serious cut upon his left

arm. Thereafter, he was transported from the jail to

Memorial Hospital, where he was treated for the lacera-

tion and admitted with a diagnosis that he was acutely

psychotic.

conferences with his superiors in the Marshal’s office and

with Shannon Gwin, M.D., the prisoner’s medical doctor,

decided to return the prisoner to the Nueces County jail.

Dr. Gwin recommended to the Deputy Marshal that the

prisoner remain in the hospital until he could be trans-

ferred to another medical facility. At this time, the prisoner

had serious suicidal tendencies and his condition was not

improved over what it had been when he was admitted to

the hospital the day before. ‘

4. At about 3:30 p.m. on the same day, Dr. Gwin, be-

cause he thought he had no choice, released the prisoner

from the hospital to Deputy Marshal Bowers, who re-

} turned him to the Nueces County jail, pending his transfer

to a Federal mental institution.

5. Deputy Bowers knew the prisoner had serious sui-

cidal tendencies and should be protected against injuring

5 or killing himself, and at Deputy Bowers’ request, the

of age, was arrested by Deputy United States Marshal:

3. On May 24, 1968, Deputy Marshal Bowers, after

——

———

prisoner was put in a cell which had been Stripped of

everything except the bunk with a mattress, the commode

and wash basin. The steel walls and ceiling of the cell were

symmetrically perforated with round holes about the size

of a half dollar. There was no ceiling light fixture. No

specific arrangements were made by the Deputy Marshal

for constant surveillance of the prisoner, and this was

negligence.

6. The Sheriff's employees in the jail knew the prisoner

had serious suicidal tendencies, and they did make pre-

cautionary surveillance checks after his return from the

hospital, but those surveillance checks were made usually

in connection with bringing some other prisoner onto the

floor where Reagan Edward Logue was incarcerated. This

was inadequate surveillance and was negligence.

7. When the prisoner was returned to the Nueces

County jail on May 24, 1968, he had a long Kerlix ban-

dage on his arm. At about 4:30 p.m. on the afternoon of

the next day he removed the. bandage and hanged himself

with it. Edch act of negligence above mentioned was a

proximate cause of his death.

8. During the above-mentioned times, there was a con-

tract for service in non-Federal institutions between De-

fendant United States of America and Nueces County,

Texas, whereby the Sheriff of Nueces County agreed,

among other things, to keep custody of Federal prisoners

in the Nueces County jail at Corpus Christi, Texas. At all

times material hereto, the Deputy United States Marshals

involved in the arrest and detention of Reagan Edward

Logue were acting within the scope of their employment

for the United States government; and the members of the

carry

Sheriff's Department were acting within the scope of their

employment.

The Court draws the following conclusions of law from

the facts heretofore set out:

1. The decision of Deputy United States Marshal

Bowers and his superiors to remove Reagan Edward

Logue from the hospital to the Nueces County jail was

a discretionary act within the purview of 28 U.S.C.,

§ 2680; but, that decision having been made, the Deputy

Marshal had a duty to see that reasonable care be taken

at the jail to protect the prisoner against another suicidal

attempt. Smart v. United States, 10 Cir., 207 F.2d 841:

Costley v. United States, 5 Cir.. 181 F.2d 723.

2. The government is not an insurer of the safety of

its prisoner; however, once it became aware, through the

1 knowledge of the Deputy Marshals involved, of the

psychotic condition and suicidal tendencies of this prison-

er, the reasonable care which the government was re-

quired to take was that care necessary to make certain

the prisoner did not commit suicide while in jail. Lange,

4 etal, v. United States, 179 F. Supp. 777; United States

v. Gray, 10 Cir., 199. F.2d 239. ;

3. The fact that there was a contract existing between

Defendant and Nueces County regarding the care and

custody of Federal prisoners in the status of Reagan

Edward Logue who are kept in the Nueces County jail.

did not relieve the Defendant of its responsibility of such

prisoners, and particularly to Reagan Edward Logue,

under 18 U.S.C., § 4042. Williams v. United States, et al.

9 Cir., 405 F.2d 951.

OIC TENCE Erne RIO NCNM i area eb tet pst j

4. Whether the Deputy United States Marshal failed

to adequately inform the Nueces County jailer as tothe

necessity for constant surveillance, or the jailer failed to

carry out the suggested constant surveillance needed for

the protection of the prisoner, makes no difference. |

Williams v. United States, supra; In Re Morgan, 80 F.

Supp. 810. The government was bound by those negligent

acts in either instance.

5. The pre-existing mental condition of the prisoner

and mistakes of the natural mother and the adoptive father’

in the guidance and medical attention provided for their

deceased son are not pertinent. The negligence of the

United States was the proximate cause of Reagan Edward

Logue’s death.

The Court must now determine the extent of the De-

fendant’s liability to the Plaintiffs, and this is not an easy

task. The adoptive father and the natural mother of the

deceased Reagan Edward Logue may recover only the

pecuniary benefits they might expect to receive. The

determination of their recovery cannot be left to mere

guess or conjecture, nor prompted by sympathy.

This young man was first arrested for possession of

marijuana in 1967 and thereafter he was extensively in-

volved in drug traffic, as a user and a pusher, in Corpus

Christi and Austin, Texas. He had already pleaded guilty

to possession of LSD for the purpose of sale in the United

States District Court in Austin, Texas, but was not yet

sentenced when he was arrested pursuant to an indictment

in the Federal Court in Laredo, Texas, for smuggling

marijuana into this,country. At the time of. this last

arrest,.on May 22, 1968, he was in a serious psychotic

sia

Shes hoes)

Lal tted: C2

BS so na te elit er Rta. ESATO APE

Med beh

state from the ingestion of LSD or some other toxic agent.

All conditions indicated it was extremely unlikely the

deceased, had he lived, would have rendered any valuable

services for the benefit of either Plaintiff, over and above

their expenses, including attorneys’ fees, during the re-

maining two and one half years of his minority.

Any pecuniary advantage to the Plaintiffs after that

would obviously depend upon his rehabilitation. Both Dr.

White, an intern who saw him only one time and then

briefly, and the probation officer felt he could be re-

habilitated. This evidence was not impressive. However,

medical science continues to progress and, if the young

man had lived, the Court cannot say he would not have

returned to reality, and earned his own way. He did work

as a boilermaker at sixteen and seventeen years of age

and was a Satisfactory employee. But, whether or not

he would have stayed out of trouble, or at some later

date accomplished his death, his past record makes the

future very uncertain.

It is also important to consider what pecuniary dam-

ages the Plaintiffs would have suffered. Hernandez v.

United States, 313 F. Supp. 349, 364. There is little in-

dication the adoptive father would need any appreciable

pecuniary assistance. It is more likely the natural mother

would someday need help. The Court finds both parents

are entitled to some damages.

Suit was also brought herein on behalf of the Estate

of Reagan Edward Logue, deceased, for his pain and

Suffering immediately prior to his death and for funeral

expenses. Plaintiffs admitted in open court that no proof

had been made regarding the claim for pain and suffering.

DRA Sat Ae RTI Ee ee”

—

However, the estate is entitled to recover the funeral

expenses.

It is, therefore, ORDERED that Orval C. Logue have

judgment against the United States of America in the

amount of $5,000.00, to be apportioned $3,500.00 to

Alice Maire Blouin and $1,500.00 to Orval C. Logue:

and the Estate of Reagan Edward Logue, deceased, takes

nothing by its suit, except that it shall recover from the

United States the funeral expenses in the amount of

$1,164.50.

DATED the 16th day of February, L971.

oe |

OWEN D. COX

United States District Judge

APPENDIX “B”

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 71-2426

ORVAL C. LOGUE, ETC., Plaintiff-Appellee,

versus

UNITED STATES OF AMERICA,

Defendant-Appellant.

i Appeal from the United States District Court for*the

Southern District of Texas

(May 1, 1972)

FEL” ee Tee)

Before GEWIN, AINSWORTH and SIMPSON,

Circuit Judges.

SIMPSON, Circuit Judge: Reagan Edward Logue

(hereinafter Logue), on May 25, 1968, while confined

in the Nueces County, Texas, jail pursuant to a federal

bench warrant, hanged himself. Suit was brought against

the United States to recover damages under the Federal

Tort Claims Act, Title 28, U. S. Code, Chapter 171, and

the Texas Wrongful Death Act, Revised Civil Statutes

of Texas, Article 4671, et seq. by the deceased’s adoptive

CEOS, Feet es ees Pp oes SF

—

father, Orval C. Logue, his mother, Alice Marie Logue

Blouin, and by Orval C. Logue for the estate of Reagan

Edward Logue. The district court after an evidentiary

trial rendered judgment against the United States in the

following amounts: $3,500.00 to the deceased’s mother,

$1,500.00 to Orval C. Logue and $1,164.50 to the de-

ceased’s estate for funeral expenses.

On this appeal by the United States we find no basis

for holding it liable in damages for the prisoner’s death.

| We reverse the judgment of the district court and direct

entry of judgment for the appellant.

THE FACTS

| The 18 year old deceased was arrested on May 22,

1968, at Corpus Christi, Texas, by Deputy United States

Marshal Bowers on a federal bench warrant issued by the

Laredo Division of the Southern District of Texas charg-

ing conspiracy to smuggle 229 pounds of Marijuana into

the United States. Deputy Marshal Bowers placed the

deceased in the Nueces County jail, Corpus Christi, as a

federal prisoner. That facility was used as a contract jail

by the United States under the provisions of Title 18.

U. S. Code, Section 4002.'

1. “§4002. Federal prisoners in state institutions; employment

For the purpose of providing suitable quarters for the safe-

keeping, care, and subsistence of all persons held under authority

of any enactment of Congress, the Director of the Bureau of

Prisons may contract, for a period not exceeding three years, with

the proper authorities of any State, Territory, or political sub-

division thereof, for the imprisonment, subsistence, care and

proper employment of such persons.

“Such Federal prisoners shall be employed only in the manu-

facture of articles for, the production of supplies for, the con-

struction of public works for, and the maintenance and care of

PO RC CAT GN OT ee

a Shi het

About 3:00 P.M. May 23, Logue attempted suicide by

cutting veins in his left arm. The wound appeared suffi-

ciently serious for the County jailer to cause him to be

taken to Memorial Hospital. There he was treated for

the laceration and placed under guard in a bare room in

an area of the hospital reserved for mental patients. He

was seen by a psychiatrist, Dr. Shannon Gwin, and diag-

nosed as psychotic. There was testimony at trial that

Logue also was then under the influence of an hallucina-

tory drug, probably LSD. Deputy Marshal Bowers sought

advice from his superiors but was unable to produce a

satisfactory plan to keep Logue under guard at the hos-

pital. ; a

On May 24, 1968, after further conferring with his

superiors in the United States Marshal’s Office at Laredo

and at Houston and with Dr. Gwin, Deputy Marshal

Bowers decided to return Logue to the Nueces County

jail, despite Dr. Gwin’s recommendation that the prisoner

remain in the hospital until he could be transferred to

another medical facility equipped to deal with his suicidal

tendencies. At about 3:30 P.M. that same day, Dr. Gwin,

believing that he had no choice in the matter, released

Logue to Bowers, who returned him to the Nueces County

jail to await processing for transfer to a federal mental

institution. Bowers’ trial testimony was that the decision

re nee

the institutions of, the State or political subdivision in which they

are imprisoned.

“The rates to be paid for the care and custody of said persons

shall take into consideration the character of the quarters fur-

nished, sanitary conditions, and quality of subsistence and may

be such as will permit and encourage the proper authorities to

provide reasonably decent, sanitary, and healthful quarters and

subsistence for such persons.”

PRELIM ESTE NF ORE Cone ee eEY

—_—

to move the prisoner back to the county jail was made by

his superiors.

Deputy Marshal Bowers, aware of Logue’s suicidal im-

pulses, requested the Nueces County jail authorities to

provide a cell stripped of items likely to prove injurious.

In compliance with this request the Prisoner was placed

in a cell containing nothing except a bunk with a mat-

tress, a toilet and a wash basin. Deputy Marshal Bowers

made no arrangements for Logue’s cell to be under con-

stant surveillance. Neither did the jail employees under-

take continuous surveillance of the prisoner. They did

look in on him as they brought other prisoners to his

jail floor.

Logue was returned to the Nueces County jail on

May 24, wearing a long Kerlix bandage on his injured

left arm. About 4:30 P.M.., May 25, he removed the

bandage and hanged himself with it from his cell bars.

THE DECISION BELOW

The trial court found that Deputy Marshal Bowers

was negligent in failing to make arrangements for

constant surveillance of the deceased when he was re-

turned to the Nueces County jail on May 24, 1968. In

addition, the court below found that the employees of

the jail, having actual or constructive knowledge of

Logue’s suicidal tendencies, were negligent in failing

to place him under constant surveillance upon his re-

turn to the jail. The district court concluded that both

manifestations of negligence were attributable to the

United States, thereby rendering it liable in damages

for the death of Reagan Edward Logue under the Federal

Tort Claims Act.

GROUNDS ASSERTED ON APPEAL

The United States seeks reversal of the judgment below

on three grounds:

(1) The district court erred in finding that the negli-

gent acts and/or omissions of the employees of

the Sheriff's Office in Nueces County in their

handling of a federal prisoner were attributable

to the United States.

(2) The district court erred in holding that there was

a duty on the part of Deputy Marshal Bowers to

provide for constant surveillance of the deceased

in the jail, in that to require such surveillance

was patently beyond his power or authority.

(3) The district court’s finding as to the deceased’s

future potential and/or prospects to make a finan-

cial contribution to the individual plaintiffs is

legally insufficient to support the award of dam-

ages made.

Inasmuch as we reverse the findings below as to lia-

bility, no discussion of the adequacy of the proof as

to damages (ground 3 of appeal, supra) appears ap-

propriate. It is unnecessary to reach that contention.

LIABILITY

Relying upon the first paragraph of Title 18, U.S.C.,

Section 4002 (authority for the Director of the Bureau

of Prisons to contract with state and local prison officials),

the United States argues that the Nueces County jail was

a “contractor” within the meaning of Section 2671,

—_—N

Title 28, United States Code.* From this premise, it

reasons that the United States is not liable under the

Federal Tort Claims Act for the negligent acts and/or

omissions of the Nueces County jail’s employees. Addi-

tionally, the United States contends that Deputy Marshal

Bowers had no authority to require the provision of

constant surveillance of the deceased while the latter was

confined to the Nueces County jail.

In reply, the plaintiffs argue that Deputy Marshal

Bowers was under a duty imposed by Title 18, U.S.C.,

Section 4042,* to insure the safety and well-being of the

deceased and that a breach of that duty provides the

basis for a recovery from the United States under the

Federal Tort Claims Act. The claim is made that in

the circumstances of this case such a breach would be

2. Title 28, U.S.C., §2671:

“As used in this chapter and sections 1346(b) and 2401(b)

of this title, the term ‘Federal agency’ includes the executive

departments, the military departments, independent establish-

ments of the United States, and corporations primarily acting as

instrumentalities or agencies of the United States, but does not

include any contractor with the United States.”

3. Title 18, U.S.C., Section 4042:

“The Bureau of Prisons, under the direction of the Attorney

General, shall —

(1) have charge of the management and regulation of all

Federal penal and correctional institutions;

(2) provide suitable quarters and provide for the safekeep-

ing, care, and subsistence of all persons charged with or con-

victed of offenses against the United States, or held as wit-

nesses or otherwise;

(3) provide for the protection, instruction, and discipline of

all persons charged with or convicted of offenses against the

United States;

(4) provide technical assistance to State and local govern-

ment in the improvement of their correctional systems.

This section shall not apply to military or naval penal or

correctional institutions or the persons confined therein.”

actionable whether committed by the employees of the

Nueces County jail or by Deputy Marshal Bowers.

The United States is subject to suit under the Federal

Tort Claims Act for injuries suffered by federal prison-

ers confined in federal facilities. United States v. Muniz,

1963, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805. But

we agree with the United States that Muniz does not ex-

tend to the situation now before us, where a federal

prisoner is housed in a non-federal facility pursuant to

Title 18, U.S.C., Section 4002. We interpret this section

as fixing the status of the Nueces County jail as that

of a “contractor”. Title 18, U.S.C., Sec. 2671, footnote 2,

supra. This insulates the United States from liability

under the FTCA for the negligent acts or omissions of

the jail’s employees. We find no support in the. record

for holding that Deputy Marshal Bowers had any power

or authority to control any of the internal functions of

the Nueces County jail. The deputy marshal, accordingly,

violated no duty of safekeeping with respect to the de-

ceased.

Close v. United States, D.C. Cir. 1968, 397 F.2d 686,

relied upon by the appellees, is distinguishable from

the case at bar. Close was a suit to’ recover damages

under the FTCA for permanent disablement to the plain-

tiff caused by a fall in the District of Columbia jail

allegedly due to defective shoes. The plaintiff was housed

in the District jail (not under the jurisdiction of the

United States) pending the disposition of his appeal from

a conviction by the District of Columbia district court.

The Court of Appeals in Close reversed the district court’s

dismissal of the complaint, holding that Congress did not

intend to suspend the availability of the Federal Tort

_—

Claims Act to a federal prisoner incarcerated in the Dis-

trict of Columbia jail.

The Court of Appeals in Close was careful to note

that the United States did not claim that the District of

Columbia jail was a contractor of the Federal Govern-

ment within the meaning of the contractor exception of

the Federal Tort Claims Act, Title 28, U.S.C., Sec. 2671,

footnote 2, supra. As noted above, such a claim is made

with respect to the county jail here involved. The D. Of

Circuit also observed the special relationship existing be-

tween the Federal Government and the Government of

the District of Columbia:

“We note in this regard that, for purposes of the

FTCA, Congress has defined ‘Employee of the

[federal] government’ as including ‘persons acting

on behalf of a federal agency in an official Capacity,

temporarily or permanently in the service of the

United States, whether with or without compensa-

tion’. 28 U.S.C. § 2671. The cases have, on occasion,

regarded D. C. Governmental agencies as ‘federal

agencies’ for purposes of the FTCA, depending upon

the amenability of such agencies to federal control.

We are not persuaded by anything appearing in this

record that the Attorney General was, in a matter

of this kind, wholly lacking in any Capacity to assure

the proper care of a prisoner for whose custody he

was primarily and permanently responsible.” 397

F.2d at 687.

The judgment of the district court is reversed and the

Cause is remanded with ditections to enter judgment for

the United States.

APPENDIX “C”

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 71-2426

ORVAL C. LOGUE, ETC., Plaintiff-Appellee,

versus

UNITED STATES OF AMERICA,

Defendant-Appellant.

Appeal from the United States District Court for the

Southern District of Texas

) ON PETITION FOR REHEARING AND PETITION

: FOR REHEARING EN BANC

(Opinion May 1, 1972, 5 Cir., 1972, __. F.2d ___).

(July 31, 1972)

Before GEWIN, AINSWORTH and SIMPSON,

5 Circuit Judges.

PER CURIAM: The Petition for Rehearing is DE-

NIED and the Court having been polled at the request

of one of the members of the Court and a majority of the

Circuit Judges who are in regular active service not hav-

ing voted in favor of it, (Rule 35 ‘Federal Rules of

Appellate Procedure; Local Fifth Circuit Rule 12) the

Petition for Rehearing En Banc is also DENIED.

Before BROWN, Chief Judge, WISDOM, GEWIN,

BELL, THORNBERRY, COLEMAN, GOLDBERG,

AINSWORTH, GODBOLD, DYER, SIMPSON

MORGAN, CLARK, INGRAHAM and RONEY,

Circuit Judges.

BROWN, Chief Judge, with whom, WISDOM and

GOLDBERG, Circuit Judges, join dissenting from the

denial of rehearing en banc:

If a Deputy United States Marshal, after discovering

a tubercular prisoner’s critical physical condition, never-

theless decided to consign that individual to the custody

of State authorities in a county jail without first deter-

mining whether the facilities provided adequate treatment

for tuberculosis victims, and without even attempting to

find out whether the conditions of confinement reasonably

assured continued survival, I have difficulty believing that

the Government's liability under the Federal Tort Claims

Act for death resulting from lack of proper medical at-

tention or from an unsanitary environment could ‘be

avoided with the bland assertion that the Marshal had

no authority to convert the jail into a hospital. Since the

facts of the present case are not materially different, |

Suggest that this serious and previously unresolved prob-

lem involving the care of Federal prisoners temporarily

confined under contract with State officials is of sufficient

importance to merit en banc reconsideration by the Court.

No one disputes that the Marshal was explicitly charged

by law with an affirmative duty to provide for the safe-

keeping, care and protection of persons in his custody

accused of Federal offenses. 18 U.S.C.A. § 4042. No one

suggests that the Marshal was not given more than fair

warning of his prisoner’s unmistakably suicidal tendencies

as a result of his initially unsuccessful but obviously seri-

ous attempt to take his own life. No one asserts that the

Marshal made any reasonably diligent effort to assure

proper supervision of the prisoner while he was confined

alone in his cell or that the same tragic result would have

transpired if Logue had remained in a hospital equipped

to provide the necessary surveillance. The only justifica-

tion advanced for overturning the District Court’s finding

of negligence on the part of the Marshal is the conclusion

that the record provides no basis for holding that he

“had any power or authority to control any of the internal

functions of the Nueces County jail.”

Without initiating an extensive discourse on the state

of the evidence—which seems to offer at least some

tangible support for the theory that the Sheriff and his

deputies were subject to the Marshal’s control because

they frequently complied with his informal instructions

or suggestions'—I need only point out that the question

of the Marshal’s authority to effect changes in the condi-

tions of confinement is actually irrelevant here. The breach

of the statutory duty of care occurred when Logue was

confined under circumstances which the Marshal knew

were inherently dangerous in the absence of special pre-

cautions, regardless of what he may or may not have been

empowered to do about the situation. Once the Govern-

ment undertakes performance of an act entailing a duty

1. The panel’s opinion supports this position by stating that the

Nueces County authorities complied with the Marshal’s request that

Logue be placed in a cell stripped of all items likely to prove injurious.

naa Jad eter Oe FET HES OE OO LTTE GLORY ALTE AIS ab 8 NI eg AT Ty Me Bote A)

of ordinary care it may not thereafter avoid liability under

the Federal Tort Claims Act simply by abandoning the

undertaking and attempting to attribute the responsibility

to someone else. Indian Towing Company vy. United States,

1955, 350 U.S. 61, 69, 76 S.Ct. 122, ___, 100 L.Ed.

48, 56; United States v. Gavagan, 5 Cir., 1960, 280 F.2d

319, cert. denied, 1961, 364 U.S. 933, 81 S.Ct. 379,

5 L.Ed.2d 365.

Rather than providing for Logue’s safety, the Marshal

simply abandoned him, thus breaching the duty of care

which, “in the case of a mental patient, * * * must be

reasonably adapted and proportioned to his known sui-

cidal, homicidal, or other like destructive tendencies.”

United States v. Gray, 10 Cir., 1952, 199 F.2d 239, 242.

In this respect the present case is equivalent to Underwood

v. United States, 5 Cir., 1966, 356 F.2d 92, in which

liability under the Act resulted from the Air Force’s

negligence in permitting a mentally deranged Airman to

return to unrestricted duty and to draw from the armory

a pistol he subsequently used to kill his wife. There was

no suggestion that liability was contingent upon the ex-

ercise of “authority” or “control” by the Government at

the time of the shooting, since liability arose only from

the initial failure to utilize ordinary care. The same is true

here—the Marshal’s purported inability to arrange for the

continuous observation of the prisoner does not excuse

the earlier breach of the duty to provide a reasonably

safe place of confinement.”

2. The Government attempts to distinguish Underwood by imply-

ing that here its statutory responsibilities were somehow “delegated

to the Sheriff and his deputies. Neither the statutes nor the case law

sanctions such a “delegation.” Indian Towing Company v. United

States, supra; United States v. Gavagan, supra.

The Court also reasons that the negligence of the State

authorities in failing to keep Logue under constant scru-

tiny cannot be attributed to the United States because the

Nueces County jail was a “contractor” within the meaning

of 18 U.S.C.A. § 2671. Of course I do not dispute the

axiomatic proposition that ordinarily such a “contractor”

is not an “employee” for whose negligence the Govern-

ment is liable under the Act. Emelwon, Inc. v. United

States, 5 Cir., 1968, 391 F.2d 9, cert. denied sub nom.

Florida v. Emelwon, Inc., 393 U.S. 841, 89 S.Ct. 119.

21 L.Ed.2d 111. Howevef here the plaintiffs rely primarily

upon that portion of the Act defining “employees” as

“* * * persons acting on behalf of a federal agency in

an Official capacity, temporarily or permanently in the

service of the United States ‘whether with or without com-

pensation.” 28 U.S.C.A. § 2671. Since under the contract

arrangement State authorities perform all functions inci-

dental to the confinement of Federal prisoners that would

otherwise be performed by the United States Marshal, the

theory is that the Marshal’s office is a “federal agency”

on behalf of which State jailers act “in an official capacity,

temporarily * * * in the service of the United States.”

In effect, the Nueces County Sheriff and his deputies be-

come surrogate Marshals for purposes of Federal tort

liability.

While passing no final judgment at this stage, I do point

out that this argument was barely mentioned in the panel’s

opinion, much less refuted by it. The Government con-

tends that a Marshal has no authority to appoint a State

law enforcement officer to act on behalf of or in the serv-

ice of the United States, yet under the literal wording of

the statute the absence of such authority would appear

to be irrelevant. Moreover, when the Government decides

EOE RIO PAI PELL LINE ELD Ry SNARE EOE RNS

—

that a particular individual should assume obligations and

responsibilities virtually identical to those of a salaried

Federal employee, there may very well be some persuasive

basis for the suggestion that such an individual’s breach

of a specific statutory duty owed by the salaried employee

to a specific class of persons should visit identical liability

upon the United States. Obviously there is more than a

subtle distinction between a “contractor” who breaches a

duty of reasonable care owed to the world at large and

a “contractor” who performs specific custodial functions

that under a plain Congressional mandate would ordinar-

ily entail a definite obligation of due care owed to a dis-

crete (and particularly vulnerable) class of people. If only

for the sake of uniformity and the avoidance of formal-

istic legal distinctions totally divorced from the realities

of the situation, further consideration of the problem

might inevitably lead to the conclusion that the Sheriff

and his deputies were “employees” within the meaning of

the Act, particularly in light of the principle that “the

Government’s liability is no longer restricted to circum-

stances in which government bodies have traditionally

been responsible for misconduct of their employees. The

Act extends to novel and unprecedented forms of liability

as well.” United States v. Muniz, 1963, 374 USS. 150,

159, 83 S.Ct. 1850, ___, 10 L.Ed.2d 805, 813: As has

long been recognized, “the Federal Tort Claims Act waives

the Government’s immunity from suit in sweeping lan-

guage.” United States v. Yellow Cab Company, 1951, 340

U.S. 643, 547, 71 S.Ct. 399, ___, 95 L.Ed. 523, 528.

Apart from the difficulties posed by this case in isola-

tion, its implications within the broader context of mod-

ern-day prison administration are even more disturbing.

Overcrowding and substandard physical facilities inevita-

bly have a progressively detrimental impact on the ad-

ministrator’s ability to insure the health, safety and welfare

of those in his custody. Increasingly we are being forced

to confront undeniable evidence that the inmates of many

institutions routinely subject other prisoners to varieties

of subhuman treatment that no citizen of a civilized na-

tion, whatever his transgression against society, should be

compelled to endure. That such outrages are inflicted

upon those serving sentences following conviction is dis-

graceful. But when the victim charged with a Federal

offense is merely confined temporarily in a State jail while

awaiting transfer or release on bond, I hardly think we

provide an acceptable answer when we tell him or his

family that restitution for death or injury resulting from

his custodian’s culpable neglect is unavailable because the

responsible official was wearing a State rather than a

Federal badge. In such circumstances I cannot concede

that despite the constable’s blunder the Government must

go free.

I dissent from the denial of rehearing en banc.

APPENDIX “D”

Section 1346(b) of Title 28, United States Code, pro-

vides as follows:

Subject to the provisions of chapter 171 of this

title, the district courts, together with the United

States District Court for the District of the Canal

Zone and the District Court of the Virgin Islands,

shall have exclusive jurisdiction of civil actions on

claims against the United States, for money dam-

ages, accruing on and after January 1, 1945, for in-

jury or loss of property, or personal injury or death

caused by the negligent or wrongful act or omis-

sion of any employee of the Government while act-

ing within the scope of his office or employment

under circumstances where the United States, if a

private person, would be liable to the claimant in

accordance with the law of the place where the act

or omission occurred. June 25, 1948, c. 646, 62

Stat. 933; Apr. 25, 1949, c. 92, §2 (a), 63 Stat.

62; May 24, 1949, c. 139, § 80(a), (b), 63 Stat.

101; Oct. 31, 1951, c. 655, § 50(b), 65 Stat. 727;

July 30, 1954, c. 648, § 1, 68 Stat. 589; July 7,

1958, Pub. L. 85-508, § 12(e), 72 Stat. 348.

Section 2671 of Title 28, United States Code, pro-

vides as follows:

As used in this chapter and sections 1346(b) and

2401(b) of this title, the temm—

“Federal agency” includes the executive departments,

the military departments, independent establishments

of the United States, and corporations primarily act-

ing as instrumentalities or agencies of the United

States, but does not include any contractor with the

United States. As amended July 18, 1966, Pub. L.

89-506, § 8, 80 Stat. 307.

“Employee of the government” includes officers

or employees of any federal agency, members of

the military or naval forces of the United States,

and persons acting on behalf of a federal agency in

an official capacity, temporarily or permanently in

the service of the United States, whether with or with-

out compensation.

“Acting within the scope of his office or employ-

ment”, in the case of a member of the military or

naval forces of the United States, means acting

in line of duty. June 25, 1948, c. 646, 62 Stat. 982:

May 24, 1949, c. 139, § 124, 63 Stat. 106.

a SE eT FLORA OREN EERIE Ae ON tS ETT eg ertelS

APPENDIX “E”

Section 4042 of Title 18, United States Code, provides

as follows:

The Bureau of Prisons, under the direction of the

Attorney General, shall—

(1) have charge of the management and regu-

lation of all Federal penal and correctional insti-

tutions;

(2) provide suitable quarters and provide for

the safekeeping, care, and subsistence of all per-

sons charged with or convicted of offenses against

the United States, or held as witnesses or otherwise;

(3) provide for the protection, instruction, and

discipline of all persons charged with or convicted

of offenses against the United States;

(4) provide technical assistance to State and

local government in the improvement of their cor-

rectional systems.

This section shall not apply to military or naval

penal or correctional institutions or the persons con-

fined therein.

June 25, 1948, c. 645, 62 Stat. 849: July 1, 1968,

Pub.L. 90-371, 82 Stat. 280.

APPENDIX “F”

Section 4002 of Title 18, United States Code, provides

as follows:

For the purpose of providing suitable quarters for

the safekeeping, care, and subsistence of all persons

held under authority of any enactment of Congress,

the Director of the Bureau of Prisons many contract,

for a period not exceeding three years, with the

proper.authorities of any State, Territory, or political

subdivision thereof, for the imprisonment, subsistence,

care, and proper employment of such persons.

Such Federal prisoners shall be employed only in

the manufacture of articles for, the production of

supplies for, the construction of public works for,

and the maintenance and care of the institutions of,

the State or political subdivision in which they are

imprisoned. :

The rates to be paid for the care and custody of

said persons shall take into consideration the char-

acter of the quarters furnished, sanitary conditions,

and quality of subsistence and may be such as will

permit and encourage the proper authorities to pro-

vide reasonably decent, sanitary, and healthful quar-

ters and subsistence for such persons.

June 25, 1948, c. 645, 62 Stat. 847.

B60 St a he tad haa Stik Bias

Sere RAE IIIS tL LOGS BELG IID PY RE ven Oy

APPENDIX “G”

FEOCRAL PRISONERS CONFINED WEEK ENDED 3/10/72

Owr en @Onown

POPULATION PLANNED CAPACITY SELECTED Trers

TEM PRESENT UN-

PRESENT PREVIOUS BASE PORARY ¢/-TEM- SEN- SFr-

INSTITUTION YEAR OPTIMUM PLAN PORARY TENCFO Tere rt

TOTAL, ALL INSTITUTIONS... 224393 214338 20,698 214553 #840 24,741 652

JUVENILES & YOUTHS 1,089 1,024 1e136 Let -?? 1,953 w

ASHLAND ccc cccccccccccve 531 477 450 415 +56 519 12

ENGLEWNND. coce ees cr ceee 333 331 325 325 +8 316 17

MORGANTON (MALE) ccceee 183 199 325 275 -92 179 4

POSGANTOWN (F) 7-11-71. 42 17 36 36 +6 39 3

YOUNG ADULTS 4,355 3,907 34900 4,025 +330 4,258 97

EL RENDeccevecccccccece 1,07] 901 900 925 +4146 1,059 1

LOMPOS occ eccccccccccce 1,067 899 14050 14100 -33 16052 1

NILANs ccccccccecoveceed 601 579 550 550 +51 551 5

PETERSBU°G ce ccccccccccce 616 612 500 525 +91 604 1

SEAGOVILLE eeccccccccccs 409 394 400 400 +9 409

TALLAHASSFE ccc cccccccce 591 622 500 525 +66 583

LONS TERM ADULTS 9,139 9,478 81590 9,040 +99 9,117 2

ATLANTA ccccccccccccccee 24158 7,328 2.100 2,200 -42 24152

LEAVENWORTH... cc cceceee 19966 2,208 14900 2,000 -56 1,943

LEWISBURG. cccccccccccee 19485 1,514 15350 1375 ¢110 14472 1

ALLENAO0D. ccc cccccccces 336 330 325 350 “14 336

MARION sc:ccccceececesose 524 508 525 525 -1 524 0

MARKON (CASP) 10-18-71. 92 0 90 90 +2 92 0

MCNEIL ISLAND (PEN.)... 905 955 820 900 +5 905 )

MCNEIL ISLAND (CAMP)... 249 257 280 300 -51 249 ft)

TERRE HAUTE. sc ccecccees 19446 1,378 11200 19300 +4146 14444 2

INTERMEDIATE TERM ADULTS 3,728 3,321 34370 3,550 ¢178 39623 105

DANBURY. coc ccccccccccce 722 164 650 700 +22 686 36

UA TUNR occcccscesvecece 732 697 600 625 +107 730 2

SANDSTONE... cecccccccces 528 507 470 475 +53 528 Ce)

TERMINAL ISLANO (MALE). 760 762 650 675 +85 730 30

TEXARKANA cc ccccccccccce 568 591 500 525 +43 566 2

FT. WORTH (4) 10-20-71. 361 0 450 500 -139 327 34

FT. WORTH (F) 11-26-71. 57 0 50 50 47 56 1

SHORT TERM ADULTS 14965 1,660 16660 14785 +4180 1.799 166

EGL IN ccccccccccccccccs 455 426 350 400 +55 455 0

FLORENCE DET. JAIL..... 105 97. 60 125 -20 86 19

LEAVENWORTH (CAMP)...., 203 ° 200 200 +3 203 0

LOMPOC CAMP-0P 4/15/70. 346 332 350 350 4 346 0

MONTGOMERY... ccccccccce 273 263 225 225 +48 273 t)

NEW YORK DET. JAIL... 275 245 225 225 +50 128 1467

FEMALE OFFENDERS 714 770 655 655 +59 672 4?

ALDERSON. ccccccccccccce 552 589 475 4675 +77. $21 3

TERMINAL ISLAND. ccceee 162 181 180 180 -18 tol 1

INTENSIVE MED. TREATMENT 1,042 884 1,050 1-050 -8 eer 165

SPRINGFIELD HOSPITAL... 665 595 750 750 -85 $20 1465

SPRINGFIELD CAMP. ...... 377 289 300 300 77 377 0

COMMUNITY TREATMENT CTRS.. 361 296 337 337 +26 322 39

30 25 28 28 +2 26 2

54 47 52 $2 +2 69 5

42 346 30 30 #12 29 13

26 25 36 36 -10 24 2

22 19 15 15 +7 16 6

52 51 50 50 +2 “9 3

83 43 70 70 43 61 2

24 23 26 26 -2 21 3

28 27 30 30 -2 27 1

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.