Bay v. Maggio

417 So. 2d 1386, 1982 La. App. LEXIS 7834
CourtLouisiana Court of Appeal
DecidedJuly 28, 1982
DocketNo. 14956
StatusPublished
Cited by2 cases

This text of 417 So. 2d 1386 (Bay v. Maggio) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bay v. Maggio, 417 So. 2d 1386, 1982 La. App. LEXIS 7834 (La. Ct. App. 1982).

Opinion

LEAR, Judge.

Clarion Bay, Jr., an inmate at the Louisiana State Penitentiary at Angola, sued defendants Ross Maggio, Warden, Louisiana State Penitentiary (LSP), the State of Louisiana, through the Department of Corrections, C. Paul Phelps, Director of the Department of Corrections, and fourteen individual employees of LSP. This suit was tried on the merits before a commissioner of the Nineteenth Judicial District Court, whose findings of fact and recommendations were adopted by the district court. Judgment was then rendered by the district court in favor of defendants and against plaintiff, dismissing plaintiff’s suit. From that dismissal, plaintiff has appealed.

The factual basis for this suit, the commissioner’s findings of fact and his conclusions of law, are set out in a well written report to the district court, which we adopt, in part, as follows:

“This is a suit for damages arising from alleged personal injuries received by the plaintiff, an inmate at Louisiana State Penitentiary at Angola. Three secondary issues are involved: damages due the plaintiff if his injuries amount to a violation of the plaintiff’s right to be free from cruel and unusual punishment; damages arising from improper medical attention received by the plaintiff subsequent to his injuries; and attorney fees due plaintiff in a claim arising under 42 U.S.C. 1983, 1988.

“This case centers on a reconstruction of events that took place on April 20, 1976, at the Louisiana State Penitentiary at Angola, Cellblock B. Certain facts are held in common by the plaintiff and the defendants and can be reviewed first.

“During a shakedown of the plaintiff’s cell, a dispute arose over some sheets being kept by the plaintiff, Mr. Bay. When it became apparent that the shakedown crew was going to take and not return the sheets, the plaintiff tore a 2 X 4 board from a window screen frame and began to menace the security officers, demanding the return of the property.

“Over the course of an hour or more, the plaintiff moved about the tier of the cell-block, all the while armed with his makeshift club. After several unsuccessful attempts to persuade the plaintiff to put the 2X4 down and return to his cell were made by different members of the prison staff, tear gas was used. This effort, too, was fruitless, as a breeze carried the gas back upon the officers who fired the cannis-ters.

“Finally, guards were sent out onto the tier to physically subdue the plaintiff. This was accomplished after a brief, but very violent, struggle. The plaintiff then was removed from the tier, searched, and ordered to change his clothes. He was taken from the cellblock to the prison hospital, where he was given medical attention for injuries received to his hands. Plaintiff was placed in isolation for fifteen days and then moved to Closed Cell Restriction (C.C. R.).

“The first problem facing this Court lies in deciding when and how the plaintiff’s hands and wrists were fractured in several places. According to the plaintiff, after he was subdued, searched, and in new clothing, he was brought to the lower tier lobby. There, while being held by defendants By-rageon, Mayeaux, and Rabalais, defendant Robert Brumfield hit the plaintiff’s hands, which were laid out on a step, with a baseball bat.

[1388]*1388“The testimony of the plaintiff was denied by the four above-named defendants, who all said they neither hit the plaintiff nor heard any order that such a beating was to take place. Also present in the downstairs lobby were Claude Bordelon, Bert Dixon, and Bruce Beck. These defendants also testified that the plaintiff was brought down from the upper tier, through the downstairs lobby, and out of the cellblock without incident.

“The Court is aware that it is not unusual for fellow defendants, after a lapse of time, to agree upon a single set of facts. The defendants in this case testified that they did not know for certain how the plaintiff was injured. They assumed the fractures were received in the confrontation on the tier. If these assumptions and denials were unsupported by the remainder of the evidence, I might have found the plaintiff’s version to be more reasonable.

“The Court, however, finds that the weight of the evidence shifted with the testimony of three other defendant witnesses. Both Michael Beaubouef and William Kerr testified that they heard the plaintiff complaining of hand injuries while he initially was being removed from the upper tier to the upstairs lobby.

“During the Court’s questioning of Mr. Beaubouef, the defendant was asked:

“ ‘Q. Did you observe Mr. Bay at the time of being removed into the upper lobby?
“ ‘A. Yes, I did.
“ ‘Q. Can you describe what his condition was at that time?
“ ‘A. He was being removed from the tier; both arms were secured. He was being pulled, partially dragged, partially walking. He got outside. He said “my hand hurts.” I remember that. I said, “well, you’re going to the hospital.” That’s all I remember. He didn’t say anything else that I recall then. He was taken out.’ (Tr. p. 192).

“Even more enlightening was the testimony of Mr. Kerr, who at the time of the incident was an associate warden for treatment at the institution. Counsel for the plaintiff asked Mr. Kerr about the period immediately after Mr. Bay was subdued.

“ ‘Q. Do you remember telling Mr. Sam-aha that Clarion Bay appeared to be injured?
“ ‘A. I may have made that statement. If you are asking me if he appeared to be injured, I would say “yes, he appeared to be injured.”
“ ‘Q. Okay. How did he appear to be injured?
“ ‘A. How did he appear to be injured? It appears to me that his hands were hurt when he came off of the tier because he was complaining.
“ ‘Q. What did you see that led you to that?
“ ‘A. I said he was complaining about his hands.
“ ‘Q. What did he say?
“ ‘A. Well, my hands hurt.
“ ‘Q. Did he say that when he came off the tier?
“ ‘A. Well, before he came off the tier when they were picking him up. See, I was near him when they picked him up. I came out ahead of them, walked to that tier.’ (Tr., p. 220).

“The most impressive testimony of all was that of Ross Maggio, who was Warden of Louisiana State Penitentiary at the time, and who has since left there to become Warden of Hunt Correctional Institute.

“On direct examination, this exchange took place between Mr. Maggio and counsel for the defense:

“ ‘Q. Did you see how Mr. Bay was subdued?
“ ‘A. You know, as best I could. With 7 or 8 men there, it was very, very fast. He slung; he swung his 2 by 4 and [sic] officer blocked it with a bat. Maybe the man behind struck Clarion with a blow and then maybe I could see 3; you know, a few blows being struck. I immediately told them to back off which they did.
“ ‘Q. At that time, was Mr. Bay down on the — on the tier floor?
“ ‘A.

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Bluebook (online)
417 So. 2d 1386, 1982 La. App. LEXIS 7834, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bay-v-maggio-lactapp-1982.