Petition for A Writ of Certiorari — Atterbury v. Ragen (No. 879)

| FILEO

APR 4

- om JOHN T. FEY, C

Supreme Court of the

United States

Ocroprr TeRM, 1956.

No. 879

UNITED STATES OF AMERICA ex rel GEORGE

ATTERBURY,

Petitioner,

vs.

JOSEPH E. RAGEN, Warden, Dlinois State Penitentiary, et al,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT.

Grorce N. Lzicuron,

WuuiuMm R. Mine, Jr.,

123 West Madison Street,

Chicago, Illinois,

Donatp P. Moore,

19 South LaSalle Street,

Chicago, Lllinois,

BErnarp WEISBERG,

231 South LaSalle Street,

Chicago, Illinois,

PAGE

BCitation to Opinion Below 2

Jurisdiction 2

Questions Presented 2

Statutes Involved 3

Statement 4

Reasons for Granting the Writ 6

Conclusion - ll

Appendix

4—Opinion below 13

B—Judgment below 25

Cases CiTep

Geach v. Moynahan, 207 F. 2d 714 (7th Cir. 1953) ... 7

Gordon v. Garsson, 77 F. Supp. 477 (E.D. Ill. 1948). 7

Griffin v. Illinois, 351 U.S. 12 (1956) 6, 10

Johnson v. Dye, 338 U.S. 864 (1950) 9

Louisiana ex rel. Francis v. Resweber, 329 U. S. 459

(1947) 9

McCollum vy. Mayfield, 130 F. Supp. 112 (N.D. Cal.

1955) 7

McNabb v. United States, 318 U.S. 332 (1945) 0... 11

Picking v. Pennsylvania Railroad, 151 F. 2d 240

(3d Cir. 1945) 7

ii

Price v. Johnson, 334 U.S.:266 €1948) occcecccceee nee 10

Reehin v. California, 342 U.S. 165 (1952) —...... 9

Romero v. Weakley, 226 F. 2d 399 (9th Cir. 1956) .... 6, 8

Screws v. United States, 325 U.S. 91 (1945) 2... 7

Siegel v. Ragen, 88 F. Supp. 996 (N.D. Ill. 1949) ...... 7

Sweeney v. Woodall, 344 U.S. 86 (1952) 9

United States v. Jackson, 235 F. 2d 925 (8th Cir.

1956) 6, 7

United States v. Jones, 207 F. 2d 785 (5th Cir. 1953) 6, 7, 8

United States v. Walker, 216 F. 2d 683 (5th Cir. 1954)

cert. den., 348 U.S. 959 (1955) ... ; 6, 7

Statutes CIrep.

Act of June 25, 1948, ¢. 645, 62 Stat. 696 (18 U.S.C.A.

§ 242) 7

Act of June 25, 1948, c. 646, 62 Stat. 932, as amended,

Sept. 3, 1954, ¢. 1263, § 42, 68 Stat. 1241. (28

U.S.C.A. § 1343) 3, 4, 8

Act of June 25, 1948, c. 646, 62 Stat. 944, as amended

May 24, 1949, ¢. 139, § 90, 63 Stat. 102. 63 Stat.

102. (28 U.S.C.A. § 1651) SP SIR ae 10

Act of June 25, 1948, ¢. 646, 62 Stat. 954, amended

May 24, 1949, c. 139, § 98, 63 Stat. 104, as amended

Oct. 31, 1951, ¢. 655, § 51 (b, ¢), 65 Stat. 727. (28 —

in i I Bibsbarceccniiedescintsteinsicchadisheseinentbcbitansaneiin 10

Revised Statutes, § 1979. .

(ge te Eee 2, 3, 4, 5, 6, 7, 8

Supreme Court of the United States

Ocroser Term, 1956.

No.

UNITED STATES OF AMERICA ex rel GEORGE

ATTERBURY,

Petitioner,

va.

JOSEPH E. RAGEN, Warden, Illinois State Penitentiary, et al;

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT.

George Atterbury, petitioner, prays that a writ of cer-

tiorari issue to review the judgment of the United States

Court of Appeals for the Seventh Circuit, entered in the

above-entitled cause on November 6, 1956.

CITATION TO OPINION BELOW.

The opinion of the Court of Appeals, reprinted in Ap-

pendix A hereto, is reported in 237 F. 2d 953 (7th Cir.

1956).

JURISDICTION.

The judgment of the Court of Appeals was entered

on November 6, 1956. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254 (1). By order of Mr.

Justice Burton, dated January 17, 1957, the time in

which to file this petition was extended to and including

April 5, 1957.

QUESTIONS PRESENTED.

1) Whether petitioner, an Illinois State Penitentiary

inmate, stated a cause of action under the Civil Rights

Act, 42 U.S.C. § 1983, when he alleged that the respondent

prison officials, acting under color of law, brutally beat

him, thereby depriving him of his right not to be sub-

jected to cruel and unusual punishments or deprived

of life or liberty without due process of law as guaranteed

by the Eighth and Fourteenth Amendments to the Con-

stitution.

2) Whether the complaint of petitioner, an indigent

state prisoner who was unable because of his confinement,

to appear pro-se when his case was called for trial and

who was denied court-appointe counsel, was properly

dismissed ‘‘for want of prosecution.”’

STATUTES INVOLVED.

Revised Statutes, § 1979 (42 U.S.C.A. § 1983):

Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State or Ter-

ritory, subjects or causes to be subjected, any citizen of

the United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be

liable to the party injured in an action at law, suit in

equity, or other proper proceeding for redress.

Act of June 25, 1948, c. 646, 62 Stat. 932, As Amended,

Sept. 3, 1954, c. 1263, § 42, 68 Stat. 1241 (28 U.S.C.A.

$1343):

The district courts shall have original jurisdiction of

eny civil action authorized by law to be commenced by

any person:

s e .

(3) To redress the deprivation, under color of any

State law, statute, ordinance, regulation, custom or usage,

of any right, privilege or immunity secured by the Con-

stitution of the United States or by any Act of Congress

providing for equal rights of citizens or of all persons

within the jurisdiction of the United States.

—+— .

STATEMENT.

Throughout the proceedings below, petitioner, George

Atterbury, was confined in the Illinois State Penitentiary.

At all times he was a pauper, unable to pay costs or re-

tain counsel. At no time was he represented by counsel

until after the decision of the Court of Appeals.

Petitioner brought this action in the U.S. District Court

for the Northern District of Illinois against the warden,

assistant warden and two guards of the pentitentiary.

The complaint charged that the defendants were liable in

damages under the Federal Civil Rights Act, 42 U.S.C.

§ 1983. it asserted that on two occasions defendants had

“unlawfully, knowingly and willfully entered into a con-

spiracy wherein, while acting under color of State’s law

and under the guise of discipline, the defendants * * *

violently made an assault * * * upon the plaintiff with a

dangerous weapon wherein, the plaintiff were inhumanly

and viciously beaten upon his personal body for which

serious physical injuries were inflicted.” (R. 12, 13).

The complaint set out 42 U.S.C. § 1983 in full, (R. 15)

and invoked the jurisdiction of the District Court under

28 U.S.C. §1343. (R. 11-12). It cited the Fourteenth Amend-

ment’s due process clause and stated that the beatings

constituted ‘‘cruel and inhuman punishment.” (R. 14).

It alleged damages (R. 15) and demanded a jury. (R. 16).

District Judge John P. Barnes, under the impression

that the complaint was a petition for a writ of habeas

corpus, appointed counsel to represent petitioner, and set

the case for ‘‘hearing” on March 27, 1956. (R. 30). When

appointed counsel discovered that the action was for dam-

ages, he requested permission to withdraw, stating that

“it is not the policy of this Court to appoint attorneys”

in such cases. (R. 33). Judge Barnes granted conusel’s

motion on March 21, 1956. (R. 36). The certified transcript

—Sa= -

subsequently filed in the Court of Appeals does not dis-

close whether notice of this order was ever served on

petitioner. (’)

On March 27, 1956, the case was called. Petitioner, still

confined, was unable to appear. Judge Barnes thereupon

entered the following order: ‘‘This cause this day being

called for trial and the parties failing to respond thereto

on the Court’s own motion it is Ordered that the complaint

herein be and the same hereby is dismissed for want of

prosecution. * * * ”’ (R. 38). No appearance had ever been

filed by respondents.

On November 6, 1956, the Court of Appeals affirmed

the judgment of dismissal below. The court held that

petitioner’s complaint stated no cause of action under 42

U.S.C. § 1983.

In January, present counsel entered the case. (Supp. R.

1) Prior to this time petitioner had not been represented

by counsel in either the District Court or the Court of

Appeals.

On March 7, 1957, a motion for recall of the mandate

was filed by counsel for petitioner. (Supp. R. 6) The affida-

vit accompanying this motion pointed out that in dismiss-

ing the complaint, the District Court had ignored Rule 15

(a) of the Federal Rlues of Civil Procedure which provides

that a plaintiff may amend his complaint once, as of

course, prior to the filing of a responsive pleading. (Supp.

R. 9). This motion was denied, the Court of Appeals ruling

that petitioner had waived his right to assert non-com-

(:) In their motion to recall the mandate of the Court

of Appeals, filed on March 7, 1957, counsel for peti-

tioner informed the Court of Appeals that the docket

sheet in ‘the District Court revealed that notice of

this order was mailed to petitioner one day prior to

the date set for ‘‘hearing” by Judge Barnes. (Supp.

R. 7)

aonilielie

pliance with Rule 15 (a) by failing to attempt to file an

amended complaint after his original complaint had been

dismissed. (Supp. R. 10).

REASONS FOR GRANTING THE WRIT.

1) The holding of the Court of Appeals that the com-

plaint of a prisoner alleging a brutal beating by prison

officials fails to state a cause of action under 42 U.S.C.

§ 1983, conflicts with decisions of the Fifth Circuit in

U.S. v. Jones, 207 F. 2d 785 (1953) and U.S. v. Walker,

216 F. 2d 683 (1954), cert. den. 348 U.S. 959 (1955) ;

and with the decision of the Eighth Circuit in U.S. v.

Jackson, 235 F. 2d 925 (1956).

2) The holding of the Court of Appeals that 42 U.S.C.

§ 1983 does not apply to acts which violate state law, con-

flicts with the interpretation of § 1983 by the Fifth Circuit

in U.S. v. Jones, 207 F. 2d 785 (1953) and the Ninth

Circuit in Romero v. Weakley, 226 F. 2d 399 (1956).

3) This case presents an important constitutional ques-

tion which has not been, but should be, decided by this

court: whether the due process clause of the Fourteenth

Amendment affords the same protection against state-

inflicted cruel and unusual punishments which the Eighth

Amendment affords against similar action by the Federal

Government.

4) The dismissal of petitioner’s complaint “for want of

prosecution” conflicts in principle with Griffin v. Illinois,

351 U.S. 12 (1956).

5) The sanction by the Court of Appeals of the dis-

missal ‘‘for want of prosecution” calls for correction by

this court in the exercise of its supervisory jurisdiction

over the administration of justice in the federal courts.

a

—(—

1. The Court of Appeals affirmed the dismissal of

petitioner’s complaint on the ground that petitioner failed

to state a cause of action under 42 U.S.C. § 1983.

Two circuits have reached conclusions opposite to that

reached below. U.S. v. Jackson, 235 F. 2d (8th Cir. 1956) ;

U.S. v. Walker, 216 F. 2d 683 (5th Cir. 1954), cert. den.

348 U.S. 959 (1955); U.S. v. Jones, 207 F. 2d 785 (5th Cir.

1953). In each of these cases, a state prisoner was al-

leged to have been beaten by his keepers. In each, the

Civil Rights Act was held applicable and the right to

invoke federal jurisdiction upheld.

Jackson, Walker and Jones involved criminal prosecu-

tions under the Civil Rights Act; the instant case involves

a civil suit under the Act. However, the civil and criminal

provisions of the Act are im pari materia. Picking v.

Pennsylvania Railroad, 151 F. 2d 240, 248 (3d Cir. 1945) ;

Screws v. U.S., 325 U.S. 91, 99 at note 8 (1945). The

Seventh Circuit itself recognizes this principle. Geach v.

Moynahan, 207 F. 2d 714, 717 (7th Cir. 1953). Title 42,

§ 1983, invoked in the instant case, is in substance the

same as 18 U.S.C. § 242, involved in Jackson, Walker

and Jones, except for the difference in the sanction pro-

vided. Therefore, the decision below has created a square

conflict between the Circuits. (*)

29. The court below avoided the constitutional issue

presented in this case by reading an unwarranted excep-

tion into the Civil Rights Act. Thus, the court stated

(?) Three district court decisions also conflict with the

decision below: McCollum v. Mayfield, 130 F. Supp.

112 (N.D. Cal. 1955); Siegel v. Ragen, 88 F. Supp.

996 (N.D. Til. 1949) (decision as to plaintiff Harp) ;

Gordon v. Garsson, 77 F. Supp. 477 (E.D. Til. 1948).

jail eas

that petitioner’s charges “do not state a claim * * * under

the * * * Act” because ‘‘ ‘The common law provides ade-

quate action against errant law enforcement officials.’ ”

237 F. 2d 953 at 955, Appendix A, p. 15.

Jurisdiction to entertain Civil Rights complaints is vested

in the District Courts by 28 U.S.C. § 1343. Neither this see-

tion nor 42 U.S.C. § 1983 makes any exception for acts

which also violate state law. Other Courts of Appeal have

refused to read such an exception into the Act. U.S. v.

Jones, 207 F. 2d 785 5th Cir. 1953) passed upon the precise

point and squarely opposes the holding below. And in

Romero v. Weakley, 226 F. 2d 399, 401 (1956), the Ninth

Circuit held that, in dismissing a Civil Rights complaint,

a district court had acted ‘‘from a viewpoint exactly con-

trary to this obvious purpose of the civil rights legislation

to give the litigant his choice of a federal forum rather

than that of a state.”

The question is basic to the application of the Act and

the conflict should be resolved by this court.

3. To state a cause of action under 42 U.S.C. § 1983,

three things are necessary: the plaintiff must be within

the jurisdiction of the United States; he must show that

the defendants acted under color,of law; and he must show

that the acts alleged deprived him of a right, privilege,

or immunity secured by the Constitution.

The first two requirements are clearly met by peti-

tioner’s complaint. (R. 12) The only remaining ques-

tior is whether petitioner properly alleged the violation of

a Constitutional right.

The complant alleged a brutal beating by prison officials

(R. 12) which infringed petitioner’s rights under the

Fourteenth Amendment’s due process clause. (R. 14).

ind

Whether the Fourteenth Amendment affords protection

against cruel and unusual punishments has been con-

sidered but never decided by this Court.

In Louisiana ex rel. Francis vy. Resweber, 329 U.S. 459,

462 (1947), this court said: ‘‘* * * we shall examine the

cireumstances under the assumption, but without so de-

ciding, that violation of the principles of the Eighth

Amendment * * * as to * * * cruel and unusual punish-

ment would be violative of the due process clause of the

Fourteenth Amendment.”

In both Johnson v. Dye, 338 U.S. 864 (1950) and

Sweeney v. Woodall, 344 U.S. 86 (1952), the same ques-

tion was presented but not decided.

It is hard to imagine a right more fundamental than

the right to be free from cruel and unusual punishments.

Such conduct as charged here on the part of prison func-

tionaries is indeed ‘‘calculated to discredit law and there-

by to brutalize the temper of a society * * * ” Rochin v.

California, 342 U.S. 165, 174 (1952). This court should

set at rest any doubt that the Fourteenth Amendment

affords protection against such conduct.

4. Even though the Court of Appeals erred in holding

that petitioner stated no cause of action, the result below

may be correct if the District Court properly dismissed

the complaint ‘‘for want of prosecution.’’ The propriety of

that actior is therefore an additional issue before this

Court.

In the instant case petitioner was indigent (R. 5-9, 20)

and appeared pro-se. District Judge Barnes denied him

court-appointed counsel. (R. 36). The case was dismissed

Ss

‘*for want of prosecution’? when petitioner failed to ap-

pear in court on the appointed day because of his con-

finement. (R. 38).

This ruling discriminated against petitioner because

of his poverty. It conflicts in principle with the decision

of this court in Griffin v. Illinois, 351 U.S. 12 (1956). In

Griffin, this court denounced an Illinois procedure which,

in effect, discriminated between rich and poor in makng

appellate review available to those convicted of crime;

the court held that the Fourteenth Amendment prohibited

such a discrimination.

The District Court below will not appoint counsel in

suits under the Civil Rights Act. Because he is confined,

the poor prisoner cannot appear pro-se when his case is

called. Thus, the petitioner and others who cannot afford

to hire counsel are effectively denied their rights under

the statute. A far less shocking condition was condemned

in Griffin.

5. Under the ‘‘all writs’’ section of the Judicial Code,

28 U.S.C. § 1651, the District Court might have issued

an ancillary writ of habeas corpus comanding the pro-

duction of the petitioner so that he might argue his own

ease. Price v. Johnson, 334 U.S. 266 (1948). In the al-

ternative, the court had power to appoint counsel for

petitioner, even though petitioner’s case was an action

for damages. 28 U.S.C. § 1915 (d). Either way, the

unreasonable result reached by a dismissal for want of

prosecution—refusal to hear a prisoner’s proof of un-

constitutional violence—is avoided.

=~7—"

|

This court has the power and responsibility to super-

vise lower federal courts so as to insure maintenance of

‘‘eivilized standards of procedure.” McNabb v. United

States, 318 U.S. 332, 340 (1945). A dismissal for want of

prosecution as the necessary result of a plaintiff’s poverty,

is such a departure from the accepted and usual standards

of judicial proceedings as to call for the exercise of this

Court’s supervisory power.

Conclusion.

For the foregoing reasons this Petition for a Writ of

Certiorari should be granted.

Respectfully submitted,

Grorce N. LEIGHTON,

WnuiuMm R. Mie, JR,

DonaLtp P. Moore,

Bernarp WEISBERG,

Counsel for Petitioner.