Roberts v. Pepersack (256 F. Supp. 415, 1966)

NORTHROP, District Judge.

Robert Roberts, an inmate at the Maryland House of Correction, has filed a complaint in this court seeking redress against prison authorities for the alleged denial of his civil rights while incarcerated. He has titled his complaint “Petition for a Declaratory Judgment & General Relief.” The State, acting through the Attorney General, has moved to dismiss the complaint for failure to state a claim upon which relief can be granted, and has filed with the court a memorandum in support of its position. Roberts responded with what he styles a “Cross Motion to Dissmiss [sic] Defendants’ Motion,” but which the court accepts as his answer to the Motion. Plaintiff is not represented by counsel and has paid the $15.00 filing fee.

The allegations of the complaint are based on action taken by prison authorities on October 15, 1965, when Roberts, then imprisoned at the Maryland Penitentiary, circulated material among the inmates informing them that on October 18 there would be a “collective protest against prisoners [sic] mistreatment, inequities, and criminal neglect by State correctional officials and civil personnel.” (Quoting from the complaint.) This protest was to take the form of a sit-down demonstration. Allegedly, notification was sent to Governor J. Millard Tawes, to prison officials, through the use of two inmate “informers,” and to the local newspapers in the form of an “Open Letter to the General Public.”

Roberts claims that in the afternoon of October 15, 1965, acting upon the orders of the supervising officers, he reported to the prison hospital. There he was seized by several officers and placed in a station wagon for transfer to the Maryland House of Correction. Upon arrival, he was placed in solitary confinement.

It is not clear from the complaint how much time was actually spent in isolation, but his “Motion” states that for twenty-seven hours, “he was forced to go naked and lie on a cold concrete floor without mattress or blankets * * * in a temperature of about 40°, and that he was held incommunicado from the assistence [sic] of his family among other things.” In the complaint, Roberts states that these conditions existed for the “first Twenty-six hours, out of a total of seven days.” Thus, although it is unclear to what extent Roberts’ stay in isolation exceeded twenty-six or twenty-seven hours, the court assumes that solitary confinement lasted a week, but its harsher aspects only slightly more than a full day.

After his stay in solitary confinement, Roberts was removed to a “semi-segregation section,” where he was denied “bathes [sic] and other toiletry for Sixteen days; denied correspondence with his family, friends, as well as visits, for Fourteen days after leaving the hole [prison term for solitary-confinement cell].” It is assumed that Roberts is no longer in semi-segregation, although, if he is, the severity of the restraint has been allayed. I find evidence of this relaxation in the numerous communications received by the court from Roberts and from the fact that the court has been contacted by his family with regard. to this action — all of which indicates that plaintiff has access to the mail and to the court, and has communicated with and/or seen members of his family.

In that part of the complaint which Roberts' terms “Questions Presented,” he enumerates four bases for relief. The court paraphrases them in the form of contentions:

1. Custody in the Maryland House of Correction is in violation of the Fourteenth Amendment, because he was originally sentenced to the Maryland Penitentiary.

2. The First Amendment of the Constitution protects the right to demonstrate or protest in the manner involved here.

3. The transfer to the Maryland House of Correction constituted both a denial of due process, because executed without a formal hearing, and denial of equal protection of the laws, since other prisoners are granted hearings prior to transfer.

4. Plaintiff was deprived of the rights, privileges, and immunities to which he is entitled under the Constitution.

On the basis of these contentions, plaintiff believes that the defendants have violated Title 18, United States Code, § 241, and prays that his rights be declared. These rights, according to the complaint, include the right to appointed counsel, the issuance of a writ of habeas corpus/and a declaration that the transfer waá unconstitutional.

Roberts’ choice of actions is incorrect. Title 18 is concerned with crimes and criminal procedures, and Section 241 imposes criminal penalties for the violation of an individual’s civil rights. Suit must therefore be brought by the United States. Actions of a civil nature cannot be brought under these provisions. E. g. Mattheis v. Hoyt, 136 F.Supp. 119 (W.D.Mich.1955). On the other hand, were the court to treat the complaint as a habeas corpus petition, it still would be forced to deny relief because Roberts has failed to meet the federal requirement that he exhaust his state remedies. 28 U.S.C. § 2254.

However, even though Roberts has not selected a statute under which relief could be granted, I feel that it is the court’s duty, under these circumstances, to frame his allegations in terms of an appropriate statute. Ample authority exists for the position that the mere fact that one seeks the wrong form of relief should not necessarily preclude the court from considering his claims. In the case of Roberts v. Pegelow, 313 F.2d 548 (4th Cir. 1963), the Fourth Circuit dismissed the appeal because the issues became moot, but, nevertheless, held:

“Unlearned inmates of penal institutions, however, are usually ignorant of the legal niceties of the procedural rules in the courts. If one presents in his own behalf a petition which clearly merits some relief, he ought not to fail entirely because he misconceives the nature of the proceeding or mislabels his petition. If the petition substantively is one for injunctive relief, the court most certainly has a discretionary right to treat it as such, despite the fact that the untutored petitioner has mistakenly designated it as a petition for a writ of habeas corpus.” Id. at 550.

Courts have acted similarly in Richey v. Wilkins, 335 F.2d 1 (2d Cir. 1964) (the court treated the complaint as one for damages even though plaintiff requested general relief); Kregger v. Posner, 248 F.Supp. 804, 806 (E.D.Mich.1966) (“the court should view the allegations in a complaint for damages under this section [42 U.S.C. § 1983] prepared by a prison inmate, without benefit of counsel, as liberally as possible”); Beckett v. Kearney, 247 F.Supp. 219 (N.D.Ga. 1965) (“[h]is petition does not bear a label, but it is the duty of this Court to give relief if demanded by pie facts regardless of the form of action”); United States ex rel. Henson v. Myers, 244 F.Supp. 826 (E.D.Pa.1965) (action under 18 U.S.C. § 241 treated as a request for a preliminary injunction under 42 U.S.C. § 1983).

Most cases containing allegations that relate to prison conditions have been brought under Title 42, U.S.C. § 1983, which provides that

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State * * * 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.”

Title 28, U.S.C. § 1343, bestows on the federal courts jurisdiction to enforce such claims. The case of Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed. 2d 492 (1961) brings section 1983 into the field of tort litigation. In so doing, Monroe affords recovery to citizens injured by the negligent and irresponsible conduct, as well as the willful actions, of state officers. Because liability may exist under section 1983 where a defendant has acted in a nonwillful manner, that section is the one best suited to compensate private citizens for damages arising from unconstitutional actions on the part of state authorities. Its main purpose is to create a federal right of action where a state official has deprived a citizen of a right secured under the Fourteenth Amendment. Monroe v. Pape, supra.

Numerous cases have incorrectly limited section 1983 to instances where denial of due process is alleged. E. g., Joyce v. Ferrazzi, 323 F.2d 931 (1st Cir. 1963); Hardy v. Kirchner, 232 F.Supp. 751 (E.D.Pa.1964); Bryant v. Harrelson, 187 F.Supp. 738 (S.D.Tex.1960). At the same time, these cases have limited section 1985(3), a conspiracy section requiring that violations thereunder be perpetrated by two or more persons, to claims of denial of equal protection of the laws. Were these cases correct interpretations of section 1983, there would exist a hiatus in the law whereby a citizen would have no recourse under the Civil Rights Act (42 U.S.C. §§ 1981-1995) against a state official acting alone and not in concert with another in depriving the citizen of equal protection of the laws. This loophole, favoring the illegal activity of a state official, has been removed by cases holding that section 1983 covers all rights protected by the Fourteenth Amendment, e. g., Powell v. Workmen’s Compensation Board of the State of New York, 327 F.2d 131 (2d Cir. 1964), and that it may be employed to encompass conspiracies. E. g., Cohen v. Norris, 300 F.2d 24 (9th Cir. 1962).

Since the instant case is being decided on defendant’s motion to dismiss, it is necessary that the court focus on the facts that must be alleged in order for plaintiff to state a claim under section 1983. Speaking generally of this type of motion, Professor Moore says that

“a motion to dismiss for failure to state a claim should not be granted unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim.” 2 Moore, Federal Practice ¶ 8.13, at 1706 (2d ed. 1962).

With specific reference to section 1983, it has been held:

“All that is necessary to prevent the dismissal of a complaint brought under 42 U.S.C.A. § 1983 is that it allege facts constituting a deprivation under color of state authority of a right guaranteed by the Fourteenth Amendment.” Roberts v. Trapnell, 213 F.Supp. 49, 50-51 (E.D.Pa.l962).

In determining the merits of defendant’s motion, the court s attention is first directed to the meaning of the phrase under color of any statute [etc.] * * ! . ofTTany ?tat+e’/ whlcb wa.s fl™¡ U Sn299^lf Ct lotf 85 LEd'iSs ']941^"’ 61 S Ct’ 1081’ 85 L’Ed’ 1368 ' as

“Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with authority ofstetel,™ • « ».” Id. S18 U.S at 826, 61 S.Ct. at 1048.

This definition has since been reaffirmed as correctly defining the phrase. E. g., Screws v. United States, 325 U.S. 91, 112-113, 65 S.Ct. 1031, 1040-1041, 89 L.Ed. 1495 (1945), defining it under 18 U.S.C. § 242; Monroe v. Pape, supra, 365 U.S. at 184-187, 81 S.Ct. 482-484, defining it under 42 U.S. C. § 1983. That the State Commissioner of Correction and the wardens, defendants in the present case, were acting under color of state law is not disputed..

The second element of section 1983, a denial of the “rights, privileges, or immunities secured by the Constitution and laws” poses more difficult problems, These include not only the question of what rights exist, but also, assuming that the rights are defined, who then may be liable, and on what basis liability is determined. Monroe and later cases are directed to the solution of these problems.

Monroe indicates that section 1983, as a basis for civil suits, is to be “read against the background of tort liability that makes a man responsible for the natural consequences of his actions.” Id. 365 U.S. at 187, 81 S.Ct. at 484. In that case, the deprivations alleged by the plaintiffs were illegal arrest, illegal search and seizure,, and severe mistreatment — all inflicted by Chicago police officers, who, in the middle of the night, ransacked plaintiffs> house, supposedly’ -n gearch o£ evidence relating to a tw0_ ¿ murder. The District Court for ^ Northern District of Illinois dis. missed the complaint and was affirmed by the SeVentb C“ Monroe v. Pape, 272 F.2d 365 (7th Cir. 1959). The Su' preme Court reversed. Upon remand, plaintiffs were awarded $13,000. Monroe v. pape, 221 F.Supp. 635 (N.D.Ill. 1963)

Much confusion ha, stemmed from the b„ad lm8uage (qaoted above) regarding the relation between tort liability and section 1983. Compare Hardwick v. Hurley, 289 F.2d 529 (7th Cir. 1961) with Cohen v. Norris, supra. Undisputed, however, has been the interpretation given to section 1983 that jn order to state a claim under the section, one must allege a Fourteenth Amendment violation. (The section, when enacted, was entitled “An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, and for other Purposes.” Act of April 20, 1871, ch. 22 § 1, 17 Stat. 13.) Plaintiffs have been held to have asserted claims under the Fourteenth Amendment when they have alleged illegal search and seizure and physical mistreatment incident thereto (Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473 (1961), 221 F.Supp. 635 (N.D.Ill.1963), Basista v. Weir, 340 F.2d 74 (3rd Cir. 1965), Cohen v. Norris, supra, Hughes v. Noble, 295 F.2d 495 (5th Cir. 1961), Cohen v. Cahill, 281 F.2d 879 (9th Cir. 1960), Selico v. Jackson, 201 F.Supp. 475 (S.D.Cal.1962)); imprisonment without a hearing (Johnson v. Crumlish, 224 F. Supp. 22 (E.D.Pa.1963)); illegal arrest and physical abuse (Bargainer v. Michal, 233 F.Supp. 270 (N.D.Ohio 1964)); cruel and unusual punishment while in prison (Jobson v. Henne, 355 F.2d 129 (2d Cir. 1966), Talley v. Stephens, 247 F. Supp. 683 (E.D.Ark.1965), United States ex rel. Hancock v. Pate, 223 F.Supp. 202 (N.D.Ill.1963), Fulwood v. Clemmer, 206 F.Supp. 370 (D.D.C.1962)); series of vexatious arrests without warrants issued and without charges being placed (Marland v. Heyse, 315 F.2d 312 (10th Cir. 1963)); denial of equal protection of the laws (Rivers v. Royster, 360 F.2d 592 (4th Cir. 1966), Bolden v. Pegelow, 329 F.2d 95 (4th Cir. 1964)); invasion of privacy (York v. Story, 324 F.2d 450 (9th Cir. 1963)); failure to provide a trial transcript after court order so directing (Washington v. Official Court Stenographer, 251 F.Supp. 945 (E.D.Pa. 1966)).

The importance of vindicating these violations, however, must be tempered by a reluctance to subject police officers and other officials to fear of reprisal for their activities. In order for law-enforcement officers to carry out their functions with the efficiency and thoroughness required, they must be protected from “tort actions based upon honest misunderstandings of statutory authority and mere errors of judgment.” Selico v. Jackson, supra, 201 F.Supp. at 478. “No one has a constitutional right to be free from a law officer’s honest misunderstanding of the law or facts in making an arrest.” Agnew v. City of Compton, 239 F.2d 226, 231 (9th Cir. 1956). As a corollary to these two principles, it is stated that while section 1983 was enacted to “protect the civil rights of individuals, it was not enacted to discipline local law enforcement officers.” Basista v. Weir, 225 F.Supp. 619, 625 (W.D.Pa.1964), affirmed in part, reversed in part on other grounds, Basista v. Weir, 340 F.2d 74 (3rd Cir. 1965).

With this reluctance in mind and with the Supreme Court directive in Monroe that section 1983 “should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions,” the court turns to examine the nature of tort liability that arises under the Act. In the case of Bowens v. Knazze, 237 F. Supp. 826 (N.D.Ill.1965), the Northern District of Illinois, which has the somewhat dubious distinction of being quite familiar with this type of civil rights suit, expresses its insight into tort liability under this section:

“In order for the Civil Rights Act to apply, the acts complained of must result in a deprivation of rights secured by the Constitution. Under the general principles of tort liability, it is sufficient that a reasonable man would have foreseen this result. However, a subsequent determination that the officer’s conduct resulted in a deprivation of constitutional rights does not mean that the result was foreseeable and that the officer’s conduct was therefore tortious.

“The Civil Rights Act created a new type of tort: the invasion, under color ■ of law, of a citizen’s constitutional rights. The test of tortious conduct in an ordinary tort case is, as a general rule, whether at the time of the incident the defendant was negligent, whether he failed to act as a reasonably prudent man. In such cases the judgment of negligence is based on a standard of behavior left to the determination of the community. The reasonable man is ‘a personification of a community ideal of reasonable behavior, determined by the jury’s social judgment’. * * *

“In ordinary tort litigation, we allow a jury to find that a defendant committed a tort when, looking back to the event, it finds that the defendant acted unreasonably. A defendant may be found negligent on the basis of a determination that the conduct questioned in the civil suit violated a statute or ordinance (e. g., that the defendant was exceeding the speed limit). These judgments pose no problem because they are merely the application of general standards which, by definition, the defendant should have been able to apply at the time the acts complained of occurred.

“The tort created by the Civil Rights Act, however, is not amenable to such treatment in at least one respect. The measure of a citizen’s constitutional rights is not left to the determination of the community-at-large. It is determined by the courts. If that standard has not yet been enunciated by a court in a manner which makes its applicability to the incident at hand clear, the potential defendant cannot be expected to conform his conduct to it. Unlike the requirements of a statute or the judgment of the community which can be applied retroactively, the retroactive application of the judgment of a court as to the requirements of the Constitution — based not on community standards but on legal reasoning— would place a defendant in an impossible position.

“It would require law enforcement officers to respond in damages every time they miscalculated in regard to what a court of last resort would determine constituted an invasion of constitutional rights, even where, as here, a trial judge — more learned in the law than a police officer — held that no such violation occurred.” Id. 237 F.Supp. at 828-829. (See also Selico v. Jackson, supra, 300 F.2d at 478.)

There has been some disagreement with the ruling that a police officer is immunized from liability when he is acting reasonably in enforcing a statute which later is held unconstitutional or otherwise invalid. Of course, unreasonable and reckless action “under color of any statute” subjects the official to liability under section 1983 regardless of the validity of the state statute.

In Pierson v. Ray, 352 F.2d 213 (5th Cir. 1965), the court remarked that, “[i]nherent in the Monroe holding is the principle that good faith and reliance upon a state statute subsequently declared invalid are not available as defenses” to a suit brought under section 1983. Id. at 218. I find no such inference in Monroe. I assume that the Fifth Circuit is basing this statement on the holding in Monroe that an individual is “responsible for the natural consequences of his actions.” The context in which the Court arrived at this conclusion, however, was a discussion of scienter as a possible requirement of tort liability. It concluded that the liability may be present without “willfulness.” The Court did not go so far as to imply that among the “natural consequences” may be a future court decision invalidating a statute, which was believed to be valid when the officer acted. Again, to so hold would seriously impair the activities of of law-enforcement officials.

Also, the facts of the Monroe case do not support the conclusion in Pierson. In Pierson, the defendants acted in good faith reliance upon a disorderly conduct statute which they believed to be valid. In Monroe, the conduct of police officers was in flagrant violation both of the Illinois constitution (Art. II, § 6, S.H. A.) (set forth in Monroe v. Pape, 365 U.S. at 172, 81 S.Ct. at 476 (n. 6)), and of the Supreme Court decisions applying the Fourth Amendment to the states through the Fourteenth Amendment. Elkins v. United States, 364 U.S. 206, 213, 80 S.Ct. 1431, 1442, 4 L.Ed.2d 1669 (1960); Wolf v. People of State of Colorado, 338 U.S. 25, 27-28, 69 S.Ct. 1359, 1361, 93 L.Ed. 1782 (1949). (It is to be noted that Monroe v. Pape preceded Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).)

The solution to this problem will be forthcoming from the Supreme Court, , . , , ,, , , .. . . which has recently granted certiorari m the Pierson case. Petition for cert, filed, 86 S.Ct. 1457 (U.S. May 17, 1966) (No. 1155). The issue confronting the Court in that petition will be whether “state police officers who make allegedly unlawful arrests in good faith attempt to enforce state statute [are] immune from liability for damages under Civil Rights Act.” Ibid. For reasons already stated by the court and by the Bowens case, supra, I think it would be highly inequitable, as well as immeasurably harmful to the public, to subject state officials to liability for “honest misunderstandings.” Selico v. Jackson, supra, 300 F.2d at 478.

In any event, the problem in Pierson does not exist in the instant case, since the enabling statutes under which the commissioner (Md Code Ann art. 27 §§ 673-678 (Supp.1965)) and wardens (Md.Code Ann. art. 27, §§ 682-683 (Supp.1965)) operate, setting out broad powers and duties, have not been questioned on constitutional grounds. They are unlike statutes such as the Mississippi statute in Pierson which limit the activities of members of the public and may or may not have built-in provisions relating to enforcement.

The issue of immunity, when enabling-type legislation is involved, is relevant to the instant case. Whereas it has been stated as an “unvarying rule” that “jailers, institutional superintendents and keepers of almost all varieties enjoy a sweeping immunity under the Civil Rights Act,” Delaney v. Shobe, 235 F.Supp. 662, 666 (D.Or.1964), the better view, I believe, is that immunity exists when the plaintiff fails to set forth a denial of rights cognizable under the Constitution and section 1983. In other ™rds; th® priacipal tioa is whe+thf defendant s acts were of such magnitude that plaintiff was deprived of a constij tutl?nal right If so’ Cendant may be SUed-

recen^ case J°bson v. Henne, ^55 F.2d 129 (2d Cir. 1966), best ex-Passes the reason for deciding against f sweeping immunity. There, a mental institution inmate sought damages against the director of the institution, ^wo assistants, and the school s supervispsychiatrist alleging that the work program imposed upon him was oppress*ve an<^ n°t reasonably related, as it should have been, to a therapeutic and/or cost-saving purpose. ^ The lower court held against the plaintiff on a motion for summary judgment, grounding -¡¿g decision on official immunity. The Second Circuit reversed and remanded, stating-

(