On petition for writ of certiorari to the United States Court of
Appeals for the Second Circuit.
The motion of respondent for leave to proceed in forma pauperis
is granted. The petition for a writ of certiorari is denied.
Justice O'CONNOR, with whom THE CHIEF JUSTICE, and Justice
KENNEDY join, dissenting.
Because the judgment below rests upon a fundamental
misconception of this Court's decision in Whitley v. Albers,
475 U.S. 312
(1986), and conflicts with the approach taken by the vast majority
of the Courts of Appeals, including a prior decision of the Second
Circuit itself, I would grant the petition for certiorari. Under
the decision which the Court declines to review today, prison
officials are essentially held strictly liable under the Eighth
Amendment for split- second decisions made in the face of serious
threats to the security of the prison facility. This is precisely
the result that our decision in Whitley was designed to avoid.
I [ Dudley v. Stubbs
489
U.S. 1034 (1989) ][1034-Continued.]
On February 4, 1977, the Arthur Kill Correctional Facility was
the site of an institution-wide sitdown strike orchestrated and
controlled by a group of prisoners known as the "Muslims." That
evening, as respondent, John Stubbs, an inmate at the institution,
was walking down the main corridor of C control area of the prison
to make a telephone call, he was confronted by a gang of 20 to 30
Muslim prisoners. The gang was armed with homemade knives up to 16
inches in length as well as other weapons wrapped in sheets. The
mob began to chase respondent through the corridors of the prison,
throwing garbage cans and table legs down the hallways. As
respondent ran toward the telephone room, he noticed petitioner,
Robert Dudley, and another guard standing in front of a door
leading to the administrative control center of the prison. Neither
Officer Dudley nor the correctional officer with him had a firearm,
a baton, or a two-way radio. The prison arsenal, the offices of the
prison superintendent, and the prison hospital are all accessible
from the administration corridor.
When respondent approached the door to the administration area
with the armed mob directly behind him, Officer Dudley and the
other corrections officer entered the administration corridor and
secured the door from the other side. Officer Dudley refused
Page 489 U.S.
1034 , 1035
to open the door to the administration corridor, despite the
entreaties of respondent. Respondent then ran down another corridor
and jumped over the counter of the telephone room and cried for
help. The correctional officers in the telephone room, and one
inmate present there, immediately removed themselves to positions
of safety. At this point the angry mob caught up with respondent
and beat him severely.
Respondent brought this action under 42 U.S.C. 1983 against
petitioner and other corrections officials, alleging that the
failure to aid him during the disturbance constituted a violation
of his Eighth Amendment rights. The case was tried to a jury before
a Magistrate. Officer Dudley testified that he did not open the
administration door because he never had the chance to, but
indicated that he would not have done so in any event, given the
fact that the prison arsenal and the superintendent's office lay on
the other side. As he put it at trial, "[T] here is no way you are
to allow inmates to go up into that area, especially in that type
of situation." Pet. for Cert. 5. In addition, there was expert
testimony at trial that Officer Dudley had followed proper
procedure in securing the administration corridor door. At the
close of the evidence, petitioner asked for an instruction to the
jury that his conduct must have been "malicious and sadistic" to
support Eighth Amendment liability under this Court's decision in
Whitley v. Albers, supra. The trial court rejected petitioner's
proposed instruction and instead delivered a "deliberate
indifference" charge. The jury returned a verdict against Officer
Dudley in the amount of $26,000 for alleged violations of
respondent's Eighth Amendment rights.
The Magistrate subsequently granted petitioner's motion for a
judgment notwithstanding the verdict. The Magistrate found this
case " akin" to the situation presented in Whitley, and emphasized
that " 'prison administrators . . . should be accorded wide ranging
deference in the adoption and execution of policies and practices
that in their judgment are needed to preserve internal order and
discipline and to maintain institutional security.' " App. to Pet.
for Cert. 5b, quoting Whitley, supra, at 321-322, 106 S. t., at
1085 (citation omitted). The Magistrate cited three factors which
justified the entry of judgment for petitioner. First, "there was a
serious threat to prison security at the time Stubbs sought
Dudley's protection." App. to Pet. for Cert. 7b. Second, "Dudley
acted without ill will or malice"; and third, "prior to the attack
upon
Page 489 U.S.
1034 , 1036
Stubbs, Dudley had no knowledge of either a threat to Stubbs'
life, or the possibility that Stubbs would be attacked." Ibid. The
Magistrate concluded that, "[g]iven the exigent circumstances, it
is obvious that Dudley acted quickly to respond to the dangerous
situation with which he was confronted. His failure to take into
account Stubbs' welfare may have been unfortunate but it cannot
fairly be characterized as deliberately indifferent." Id., at
9b.
The Court of Appeals for the Second Circuit reversed the
judgment for petitioner and reinstated the jury's verdict.
849 F.2d
83 (1988). The crux of the lower court's holding in this case
is contained in the following passage:
"Whitley involved a full-blown prison
riot. In the present case the condition creating the 'prison
disturbance' was the Stubbs incident itself: twenty or more angry
prisoners wanted to hurt one prisoner. The issue put to the jury
was whether the defendant corrections officers acted
unconstitutionally in allowing them to do so. The only 'competing
institutional concern[ ]' in this context was whether the
defendants, by aiding Stubbs, might plausibly put prison security (
or their own safety) at risk. This was for the jury to decide under
the 'deliberate indifference' standard." Id., at 86 (footnote
omitted).
The Court of Appeals noted that there was evidence that the
prison's Muslim population had engaged in a "sit down strike" on
the day of the incident, but found that "the situation apparently
created no unusual threat to prison security." Id., at 86, n.
3.
In Whitley this Court analyzed the dictates of the Eighth
Amendment in the context of a prison disturbance that involved the
taking of a correctional officer as a hostage. In response to the
hostage taking, prison officials determined that forceful
intervention was necessary to protect the life of the hostage and
the safety of the prisoners not connected with the riot. During the
assault on a barricade erected by the prisoners holding the
hostage, a prisoner was hit in the knee by a shotgun blast. The
prisoner brought a 1983 action against prison officials, claiming
violation of his Eighth Amendment rights. The District Court
directed a verdict for the prison officials, finding that the use
of deadly force was justified " 'under the unique circumstances of
this case.' " 475 U.S., at 317. The Court of Appeals reversed,
find-
Page 489 U.S.
1034 , 1037
ing that because the prison riot was subsiding at the time the
rescue plan was carried out, a reasonable jury could find that the
use of force entailed a " ' "deliberate indifference" ' " to the
injured prisoner's Eighth Amendment rights. Id., at 318.
This Court reversed, noting that the "deliberate indifference"
standard of Estelle v. Gamble,
429 U.S. 97 ( 1976), "was
appropriate in the context presented in that case because the
State's responsibility to attend to the medical needs of prisoners
does not ordinarily clash with other equally important governmental
responsibilities." Whitley, 475 U.S., at 320. The Court found that
the balance must be struck differently where prison security and
the safety of both prison officials and inmates is threatened . "In
this setting, a deliberate indifference standard does not
adequately capture the importance of such competing obligations, or
convey the appropriate hesitancy to critique in hindsight decisions
necessarily made in haste, under pressure, and frequently without
the luxury of a second chance." Ibid. Accordingly, the Court set
out the following test o be applied in such cases:
"Where a prison security measure is
undertaken to resolve a disturbance, such as occurred in this case,
that indisputably poses significant risks to the safety of inmates
and prison staff, we think the question whether the measure taken
inflicted unnecessary and wanton pain and suffering ultimately
turns on '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 320-321 (citation
omitted).
The Court indicated that the standard it enunciated applied to "
prophylactic or preventive measures intended to reduce the
incidence of these or any other breaches of prison discipline."
Id., at 322. Decisions made "in bad faith or for no legitimate
purpose" are not insulated from review, but judge and jury may not
substitute their judgment as to the reasonableness of the action
taken by prison officials. Unless an inference of wanton and
sadistic infliction of pain arises from the facts as pled, "the
case should not go to the jury." Ibid.
The Court of Appeals' determination that "deliberate
indifference" was the correct Eighth Amendment standard under which
to assess the correctional officer's action in this case is
directly contrary to our decision in Whitley. The court's opinion
acknowl-
Page 489 U.S.
1034 , 1038
edges that the very kind of "competing institutional concerns"
present in Whitley were present here, but then goes on to find that
the deliberate indifference standard was appropriate. The situation
here was arguably more dangerous than in Whitley, where, although a
hostage had been taken, the situation had stabilized and the
correction officials had time to plan a course of action. Here a
split-second decision had to be made. A single door stood between
armed prisoners, who had engaged in a sit-in earlier in the day,
and the prison arsenal and the office of the prison superintendent.
Application of the deliberate indifference standard in a setting
like this one essentially renders prison officials strictly liable
for putting the security of the prison and the lives of all its
inhabitants before the physical security of one inmate. In this
case, if Officer Dudley had attempted to aid respondent by opening
the door, and tragedy had ensued, he would no doubt have been
subject to disciplinary action by his superiors, not to mention
state law tort liability for any ensuing injuries caused by his
decision.
The judgment here also conflicts with the decision of another
panel of the Second Circuit which held that the Whitley standard
applied to a correctional officer's use of force in the face of an
explosive situation created by a prisoner's use of racial slurs in
a crowded cafeteria and his subsequent resistance to orders to
leave the scene. See Corselli v. Coughlin,
842
F.2d 23, 26 (1988) ("Whitley is distinguishable on the facts,
since that case involved a full-scale prison riot and the incident
here was far from that. Nevertheless, the test under Whitley
applies . . ."). Moreover, no other Court of Appeals has
interpreted Whitley as limited to " full-blown prison riots," and
it is clear that this case would have been decided differently in
other Circuits in the country. See, e.g., Hines v. Boothe,
841 F.2d
623, 625 (CA5 1988) (applying Whitley where single prisoner
resisted order to return to his cell); Holloway v. Lockhart,
813 F.2d
874, 879 (CA8 1987) (applying Whitley standard to use of tear
gas to end occupation of prison day room); Ort v. White,
813 F.2d
318, 323 (CA11 1987) ("Although Whitley was decided in the the
extremely volatile context of a prison riot, its reasoning may be
applied to other prison situations requiring immediate coercive
action").
Page 489 U.S.
1034 , 1039
II
While the resources of this Court are scarce, and the judgment
the Court declines to review today is aberrational enough that
correction wi hin the Second Circuit appears likely, in my view the
great potential for disruption of prison security engendered by the
judgment of the Court of Appeals in this case merits the strong
medicine of summary reversal. There are 64 state run correctional
institutions within the jurisdiction of the Second Circuit with a
total prison population of over 40,000 inmates. U.S. Dept. of
Justice, Sourcebook of Criminal Justice Statistics- 1987, pp. 449,
493 (1988). The Federal Government runs five correctional
institutions within the same geographic region, housing almost
4,000 federal detainees. U.S. Dept. of Justice, Federal Prison
System, Monday Morning Highlights, Jan. 23, 1989. In all of these
institutions, prison officials and correctional officers must now
choose between their sworn duty to maintain the security of the
institution and the dictates of the Eighth Amendment as interpreted
by the Second Circuit. Because nothing in the Constitution creates
such a Hobson's choice, and because this Court has explicitly so
held in Whitley, I would grant the petition for certiorari and
reverse the judgment below. I respectfully dissent.
Comments
Be the first to comment
Leave a Comment