John v. Norris v. District of Columbia

737 F.2d 1148, 238 U.S. App. D.C. 1

• Court: Court of Appeals for the D.C. Circuit
• Decided: June 22, 1984
• Docket: 83-1368
• Status: Published

Opinions

GINSBURG, Circuit Judge:

Plaintiff-appellant Norris, a pretrial detainee at the District of Columbia Detention Facility (“D.C. Jail” or “the Jail”), brought suit for damages and injunctive relief against four correctional officers at the Jail, the acting Director of the District’s Department of Corrections, the May- or, and the District, alleging deprivation of his constitutional rights redressable under 42 U.S.C. § 1983.¹ Specifically, appellant alleged that on one occasion during his confinement in the D.C. Jail, appellee correctional officers, without provocation, maced, beat, and kicked him; the resulting injuries, Norris alleged, included temporary-blindness, a burning sensation in his face, immediate pain which subsided after several hours, lingering blurred vision, and a bruised and swollen left arm. Pursuant to appellees’ Fed.R.Civ.P. 56 motion, the District Court dismissed Norris’ complaint against the correctional officers on the ground that “[pjlaintiff received medical attention promptly and suffered no permanent injuries.”² Because the District Court erroneously stated and applied the legal standard governing section 1983 liability for prison officer batteries, we reverse its decision granting summary judgment to appellees and remand for further proceedings.

I.

The events giving rise to appellant’s complaint occurred either in the late evening of January 17, 1982, or in the early morning of January 18. As Norris described the incident, appellee correctional officers were

mov[ing] me from the dormitory area of [one] eellblock ... to a single cell in the same eellblock. I was following their directions and I was not resisting. As I stepped into the single cell, [one of the appellees] sprayed mace on the right side of my face. At about the same time, the officers grabbed my arms .from behind, handcuffed me, and began punching and kicking me and pushing me so that I banged into things in the cell. After this, they took me to the jail infirmary, where I was examined and treated.

Plaintiff’s Response to Defendants’ Interrogatories, No. 38 (“Plaintiff’s Response No. —”). Norris recounted that the pain he suffered as an immediate result of the beating subsided “after several hours.” Plaintiff’s Response No. 18. The mace spraying, he stated, produced burning in his “eyes, nose, throat and skin,” blinded him “for about twenty minutes,” and caused continuing “spells of blurred vision.” Plaintiff’s Response Nos. 11, 12. The residua] effect of the kicking and punching, Norris reported, was a bruise on his left arm. Plaintiff’s Response No. 11.

Norris’ in propria persona complaint sought compensatory and punitive damages from the correctional officers allegedly involved in his beating. Subsequently, appellant’s court-appointed counsel filed an amended complaint alleging, additionally, that the Mayor and the acting Director of the District of Columbia’s Department of Corrections “fail[ed] and neglect[ed] ... adequately to supervise, train, instruct and control correctional officers at the District of Columbia Detention Facility in the performance of their duties [including the use of mace].” Amended Complaint at 3, 4. Supplementing Norris’ initial prayer for relief, the complaint drawn by counsel sought to enjoin appellees from summarily punishing prisoners and to proscribe the issuance of mace to correctional officers at the Jail. Id. at 4, 5. Appellant then sought to discover from appellees, through interrogatories and a request for the production of documents, a description of all training given Jail personnel in the use of mace; all facility rules, regulations, and policies concerning the use of mace; and all complaints and reports related to the use of mace at the Jail. See Letter from St. John Barrett, Attorney for John V. Norris, to E. Huntington Deming, Assistant Corporation Counsel for the District of Columbia (Oct. 29, 1982).

Appellees did not answer Norris’ discovery requests. Instead, they moved to dismiss the amended complaint or, in the alternative, for summary judgment. Norris had failed to state a claim upon which relief could be granted, appellees contended, both because the force visited upon him was in response to his refusal to comply peacefully with prison officers’ directions and because “the alleged assault was of a minor nature resulting in pain for at most several hours and no permanent or significant injury.” .Memorandum in Support of Motion of Defendants to Dismiss Or, In the Alternative, For Summary Judgment, at 2, 4 (“Motion to Dismiss”). Further, the suit against the District and its officials must be dismissed, appellees argued, on the bases of Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), and of qualified immunity. Motion to Dismiss at 6, 8.

The District Court, acknowledging its Rule 56(c) obligation to view the facts in a light most favorable to appellant, held that Norris had failed to state a claim for violation of his due process rights. The “preferable test” for determining the sufficiency of a due process claim based upon prison officer batteries, that Court declared, was “whether or not the conduct alleged ‘shocks the conscience’ or is otherwise offensive to the ‘concept of ordered liberty.’ ” Memorandum Opinion, Civil Action No. 82-1806, at 3 (D.D.C. Mar. 1, 1983) (“Memorandum Opinion”) (quoting Baker v. McCollan, 443 U.S. 137, 147, 99 S.Ct. 2689, 2696, 61 L.Ed.2d 433 (1979) (Blackmun, J., concurring), quoting, in turn, Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952) and Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937)). Norris had not suffered “permanent injuries” in the “fracas,” thus indicating that “little force was actually used,” the District Judge stated. Memorandum Opinion at 3-5. The Court therefore ruled that appellant’s claim did not assume constitutional proportions. Norris’ section 1983 negligent supervision claim against the District and its officials fell along with the underlying due process claim. Id. at 5. The District Court also declined, on the basis of Norris’ isolated allegation of abuse, to consider his plea concerning the use of mace at the Jail. Id. at 6.

II.

The District Court’s holding that permanent injury induced by conduct “shock[ing] the conscience” must be alleged to state a section 1983 claim based on prison officer battery misapprehends the governing law. The leading decision providing instruction for distinguishing a prison officer’s constitutional due process violation from a common law assault and battery is Johnson v. Glick, 481 F.2d 1028 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973). Judge Friendly there set out the following sensible guidelines, widely adopted by other courts confronting the issue.³

In determining whether the constitutional line has been crossed, a court must look to such factors as the need for the application of force, the relationship between the need and the amount of force that was used, the extent of injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.

Id. at 1033. While “the extent of injury inflicted” is one criterion for determining whether a constitutional violation has occurred, Judge Friendly stated no threshold requirement of “permanent injuries” for section 1983 liability. See Hodges v. Stanley, 712 F.2d 34, 36 (2d Cir.1983) (per cu-riam) (“complaint ... alleging] that the use of force was both gratuitous and excessive[,] under Glick, ... is enough to withstand dismissal”). Indeed, the plaintiff in Johnson v. Glick alleged no irremediable incapacitation.⁴

We have found no decisions supporting the District Court’s severely restrictive interpretation of deprivations interdicted by the Due Process Clause.⁵ Many courts have held that a claim is stated under section 1983 based on injuries no more debilitating than those alleged here. See, e.g., Freeman v. Franzen, 695 F.2d 485 (7th Cir.1982) (plaintiff kicked and hit many times by several guards; suffered no permanent injuries, but some lingering pain), cert. denied, — U.S.-, 103 S.Ct. 3553, 77 L.Ed.2d 1400 (1983); King v. Blankenship, 636 F.2d 70 (4th Cir.1980) (officer slapped plaintiff on head, knocked him down, ripped part of beard from his face, and kicked him); Meredith v. Arizona, 523 F.2d 481 (9th Cir.1975) (officer punched plaintiff in solar plexis rendering him “totally handicapped” momentarily and in need of four hours of oxygen therapy). Indeed, some courts have held macing in the face alone sufficiently severe to state a constitutional claim. See Stringer v. Rowe, 616 F.2d 993, 998-1000 (7th Cir.1980) (per curiam); cf. Smith v. Iron County, 692 F.2d 685, 686 (10th Cir.1982) (use of mace “constitute[s] excessive force under most circumstances,” but not those present in this case). In general, courts have indicated that when a prison officer uses force that is “excessive,” “undue,” or “unjustified,” plaintiff states a constitutional claim regardless of whether an injury of threshold severity and duration is alleged. See, e.g., Putman v. Gerloff 639 F.2d 415, 420 (8th Cir.1981); George v. Evans, 633 F.2d 413, 416 (5th Cir.1980) (per curiam); Bruce v. Wade, 537 F.2d 850, 853 (5th Cir.1976).

The District Court’s “preferred] test” for gauging constitutional violations apparently rested on Rochin v. California’s “shocks the conscience” standard. See Memorandum Opinion at 3 (quoting Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952)). We regard Rochin as entirely consistent with Johnson v. Glick’s guidelines for determining constitutional limitations on the use of force by prison officers; so did Judge Friendly— the author of Johnson — for in the very same paragraph in which he announced his widely-followed test, he stated that Rochin “points the way.” See 481 F.2d at 1033. Rochin, and succeeding High Court decisions explicating its meaning,⁶ all involved criminal defendant challenges to convictions obtained with the aid of arguably unconscionable evidence-gathering tactics. Rochin itself involved a defendant’s successful challenge to a narcotics conviction obtained through the use of evidence retrieved by forcibly “stomach-pumping” the defendant. Thus, Rochin and progeny stand only for the limited principle that government action, even if taken pursuant to legitimate objectives such as evidence gathering, may not proceed via means “that shock[] the conscience.” See Rochin, 342 U.S. at 172, 72 S.Ct. at 209.

Allegations of unprovoked, brutal beatings by correctional officers implicate a different prime concern. The application of force “maliciously and sadistically for the very purpose of causing harm,” Johnson v. Glick, 481 F.2d at 1033, can serve no legitimate governmental objective. Heeding Judge Friendly’s instruction to “look to ... the relationship between the need and the amount of force ... used,” id., courts have implicitly concluded that official force directed towards illicit ends may offend the Constitution even though the same amount of force invoked in aid of legitimate official purposes would not. The gratuitous brutalization of prisoners is a proscribed governmental purpose; thus, less force oriented towards that end is needed to shock the judicial conscience than when a valid purpose, e.g., maintaining prison order, is present.⁷

In accord with numerous other courts, we hold that the amount of force required to state a constitutional claim for prison officer battery varies with the justification for that force.⁸ We also agree with Judge Friendly, however, that minor “push[es] or shove[s]” in the prison setting, even if completely unprovoked, are not actionable under the Constitution. See 481 F.2d at 1033. But Norris has alleged far more: He claims, in essence, that four correctional officers, without cause and for malicious purposes, maced, beat, and kicked him, thereby causing substantial immediate pain as well as lingering ill effects. Such behavior by government officials, if proved, offends the Constitution regardless of whether permanent injuries result.

Because the District Court ruled that Norris had failed to state a constitutional claim against the correctional officers, it also dismissed his dependent negligent supervision claim against the District and its officials. Since we hold that appellant has stated a valid constitutional claim against the individual officers, we must reverse the District Court’s dismissal of the negligent supervision claim as well.⁹ The District Judge also refused to investigate the use of mace at the Jail “[a]bsent allegations of other incidents involving mace or a shocking and offensive use of the substance.” Memorandum Opinion at 6. However, Norris was stymied in his attempt to discover information bearing precisely on that point; the District Court’s March 1, 1983, order granted, nunc pro tunc, defendants’ motion to stay discovery. See Order, Civil Action No. 82-1806 (D.D.C. Mar. 1, 1983). Norris should be afforded an opportunity on remand to engage in reasonable discovery directed towards proving his allegations that the District has “failed adequately to supervise, train, instruct and control correctional officers at the [Jail] in the use of mace.” Amended Complaint at 3.

For the reasons stated, the judgment of the District Court is reversed and the case is remanded with instructions to reinstate the complaint and for further proceedings consistent with this opinion.

It is so ordered.

1 . That section provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, 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.

42 U.S.C. § 1983 (Supp. V 1981).

2 . Memorandum Opinion, Civil Action No. 82-1806, at 4 (D.D.C. Mar. 1, 1983). The District Court also dismissed Norris' claims against the District and its officials. See infra p. 1152.

3 . E.g., Sampley v. Ruettgers, 704 F.2d 491, 495-96 (10th Cir.1983); Freeman v. Franzen, 695 F.2d 485, 492 (7th Cir.1982), cert. denied, — U.S. -, 103 S.Ct. 3553, 77 L.Ed.2d 1400 (1983); Putman v. Gerloff, 639 F.2d 415, 420 (8th Cir.1981); King v. Blankenship, 636 F.2d 70, 73 (4th Cir.1980); Meredith v. Arizona, 523 F.2d 481, 483 (9th Cir.1975).

4 . The plaintiff in Johnson v. Glick alleged that he had "been having terrible pains in the head” since the beating. 481 F.2d at 1030. If this is what the District Court meant by "permanent injuries,” Norris has alleged similar discomfort; he complains of lingering "spells of blurred vision." Plaintiffs Response No. 11.

5 . But cf. Sampley v. Ruettgers, 704 F.2d 491, 495 (10th Cir.1983) (plaintiff must allege pain of “more than momentary discomfort; the attack must have resulted in either severe pain or a lasting injury") (emphasis added) (footnote omitted).

6 . See Irvine v. California, 347 U.S. 128, 74 S.Ct. 381, 98 L.Ed. 561 (1954) (electronic eavesdropping); Breithaupt v. Abrams, 352 U.S.- 432, 77 S.Ct. 408, 1 L.Ed.2d 448 (1957) (extracted blood sample); Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (same); Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966) (informant infiltration).

7 . Appellees dispute Norris’ assertion that he was peacefully obeying the guards' instructions when beaten. See.Brief for Appellees at 5 n. 7. The District Court made no finding regarding provocation; at this stage of the proceedings, it was not positioned to do so. Cases of allegedly unprovoked attacks by prison guards often produce widely disparate factual accounts, requiring courts to make credibility determinations rarely susceptible to summary judgment. See, e.g., Freeman v. Franzen, 695 F.2d 485 (7th Cir.1982), cert. denied, — U.S.-, 103 S.Ct. 3553, 77 L.Ed.2d 1400 (1983); Stringer v. Rowe, 616 F.2d 993 (7th Cir.1980) (per curiam); Aulds v. Foster, 484 F.2d 945 (5th Cir.1973) (per curiam).

8 . Thus, even when some force is justified, the Constitution may be offended if the force used grossly exceeds that warranted by the circumstances. See, e.g., King v. Blankenship, 636 F.2d 70 (4th Cir.1980).

9 . The District Court did not address appellees’ qualified immunity argument in rendering its decision, see Memorandum Opinion at 8; we leave that issue for the District Court’s initial determination on remand. Similarly, we do not reach appellees’ contention that municipal liability is precluded by Monell v. Department of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).