John B. Preston v. John L. Smith, David Bland and Donald Bordenkircher

750 F.2d 530, 1984 U.S. App. LEXIS 15777

• Court: Court of Appeals for the Sixth Circuit
• Decided: December 19, 1984
• Docket: 83-5116
• Status: Published

Opinions

GEORGE CLIFTON EDWARDS, Jr., Circuit Judge.

This is another appeal arising from Judge Edward Johnstone’s 1978 problems at the Eddyville Prison. See Kendrick v. Bland, 740 F.2d 432 (6th Cir.1984). In it appellants Bland and Bordenkircher, respectively, the Director of the Kentucky Department of Corrections and the Warden of the Kentucky State Penitentiary in Eddyville, appeal from a general verdict returned against them jointly in favor of plaintiff John B. Preston in the sum of $500 monetary damages and of $5,000 punitive damages.

Preston’s individual 42 U.S.C. § 1983 suit against these two high-ranking officials of the Kentucky Corrections System resulted from a prisoner work stoppage of October 30, 1978, which Warden Bordenkircher responded to by a prisonwide lock-in. A Screening Committee consisting of prison officers and officials subsequently recommended that disciplinary action be taken against eight inmate legal aide advisors, including Preston. The committee concluded that the legal aides were “the bonding element against various factions of the inmate population to band together in a demonstration for the purpose of demanding change.” The committee held that the legal aides had instigated the uprising by promising legal assistance if the inmates demanded changes at the prison. The facts indicate, as the Screening Committee reported, that the legal aides stood on the veranda of the legal office and kept notes of the situation in the yard. It is apparently undisputed that Preston was never in the yard or near any demonstration which took place.

On October 31, the day after the demonstration and lock-in, Preston was transferred to segregation/solitary confinement. He was told his personal property in his cell would be taken care of by prison guards. He was never told why he was being moved to segregation. He testified that the cell he was confined in was empty, except for a toilet fixture and a double bed-sized mattress, which had the springs removed from it. He was not allowed any personal possessions. Preston testified before Judge Johnstone: “I asked Captain Copeland why I was over there, and why I was placed in a cell that.had no bed and no springs, no mattress, and no sheets.” He said, “The Warden doesn’t want you to have a goddamn thing, and I am following his orders.”

Preston was continuously confined between October 31 and November 8 when he was summoned before the Disciplinary Adjustment Committee, without prior notice. He called an officer (Phelps) as a witness and was acquitted of the disciplinary charges by the Committee. He asserts that he had requested representation but that request had been denied.

Preston also testified before the jury that when he was released from segregation/solitary confinement, all of his personal property was missing and has never been returned.

Our inspection of this record does not disclose any evidence of acts or proof of ratification of acts which warrant an award of damages as to Defendant Bland. The judgment of the District Court as to Bland is therefore vacated and the case is remanded to the District Court for dismissal of the complaint as to him.

The record is, however, different as to Appellant Bordenkircher. He clearly was in charge of the prison staff and the jury had evidence before it from which it could have concluded that Defendant Bordenkircher was responsible for the deprivations complained about by Preston and found by the jury.

What we have said above might have required our affirmance of the jury award as to Bordenkircher absent the recent United States Supreme Court decision in Hudson v. Palmer, - U.S. -, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). In the Hudson case, however, the Supreme Court held that deprivation or destruction of a state prison inmate’s property cannot be considered by the federal courts if the state law in question provides an adequate post deprivation remedy for such damages.

The jury in this case was not instructed to separate Preston’s damages between those resulting from his claim of unconstitutional segregation/solitary confinement and his claim of illegal deprivation of property.

The judgment of the District Court is vacated and the case is remanded for retrial as to the segregation/solitary confinement issue. Any federal claim as to loss of property is barred by Hudson v. Palmer, supra, since Kentucky does provide a state court remedy for the damages in question. See Spillman v. Beauchamp, 362 S.W.2d 33 (Ky.1962). See also Kentucky Revised Statutes 44.070.

Of concern at retrial will also be two other Supreme Court decisions, Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) and Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983). Both of these cases were decided in the Supreme Court after our instant case was tried and decided in the District Court. Both, of course, will be before the District Court at retrial of this case.

We do not agree with the dissent that either (or both) of these cases should be read as summarily disposing of other issues in this appeal. In remanding Harlow v. Fitzgerald, supra, Justice Powell said:

In this case petitioners have asked us to hold that the respondent’s pretrial showings were insufficient to survive their motion for summary judgment. We think it appropriate, however, to remand the case to the District Court for its reconsideration of this issue in light of this opinion. The trial court is more familiar with the record so far developed and also is better situated to make any such further findings as may be necessary.

457 U.S. at 819-820, 102 S.Ct. at 2739-2740.

This case is remanded to the District Court for similar consideration and/or retrial of the remaining issue.