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February 21, 1968

Carlos MUNIZ, Plaintiff,
UNITED STATES of America, Defendant

Levet, District Judge.

The opinion of the court was delivered by: LEVET


LEVET, District Judge.

 The plaintiff, Carlos Muniz ("Muniz"), has sued the United States of America because of injuries by assaults by other inmates received by him on August 24, 1959 while an inmate at a Federal Correctional Institution at Danbury, Connecticut.

 The action is based upon the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346(b), 2671-2680, and 18 U.S.C.A. § 4042. United States v. Muniz, 374 U.S. 150, 83 S. Ct. 1850, 10 L. Ed. 2d 805 (1963), affirming Muniz v. United States of America, 305 F.2d 285 (2nd Cir. 1962).

 This court directed that the issue of liability be tried first pursuant to Rule 42(b) of the Federal Rules of Civil Procedure and the case was tried before the court without a jury.

 After hearing the testimony of the parties, examining the exhibits, the pleadings and the proposed findings of fact and conclusions of law submitted by counsel, this court makes the following Findings of Fact and Conclusions of Law:


 1. Some time in July 1959, plaintiff, who had been convicted and sentenced for mail theft, was transferred from Lexington, Kentucky, to the Danbury Correctional Institution, a federal institution, located at Danbury, Connecticut (38, 247). *fn1"

 2. On August 24, 1959, plaintiff was an inmate of the United States Correctional Institution at Danbury, Connecticut.

 3. The United States Federal Correctional Institution at Danbury Connecticut, is a medium custody, adult correctional institution (20, 108), which consists of two-story buildings surrounding a yard approximately 287 feet by 631 feet at the point of greatest length (156-157; Ex. 15). The institution is not surrounded by a wall or fence, but is self-enclosed (40, 128).

 4. The two-story dormitory buildings are on the east side of the yard. The barber shop is at the south end. The kitchen, officers' mess hall and inmate mess hall are along the west side (156-157; Ex. 15).

 5. The first floor dormitories along the west side of the compound are named, running from north to south, New Hampshire, Vermont, Massachusetts, Connecticut and Rhode Island. There are no dormitories over New Hampshire and Rhode Island houses. There are dormitories on the second floor above the other three dormitories which are named, running from north to south, Concord, Providence and Berkshire (157-158; Ex. 15).

 6. The Danbury inmates in 1959 had an average age of about 30 years, were not persons with long sentences (generally not over five years as of the time of commitment), and had been committed largely for the less serious type of offenses. The primary goal of incarceration at Danbury was rehabilitation (128, 129). Very few persons convicted of assault, burglary or homicide are present in federal prisons (131). Less than twenty-five of those in Danbury in 1959 were juvenile or youthful offenders who had had some difficulties elsewhere relating to their "peer" group type of competition and who were sent in small numbers to adult correctional institutions to be in a more stable environment (132-134).

 7. At supper time, about 5:00 o'clock, on August 24, 1959, another inmate, Nelson Sosa, complained to Muniz that certain other inmates, including Cottrell and Thompson, were bothering him up at the glove factory. Muniz volunteered: "I'm going to tell them to leave you alone." (63-66, 70).

 8. Muniz and Sosa left the dining room and entered the yard or compound. Sosa informed Muniz that Swann was trying to make a "sissy" or homosexual out of him (Ex. A). There Sosa pointed out a group of about eleven inmates, seated in front of Connecticut and Berkshire houses, as apparently the group to which he had previously referred (42-43). Among them were inmates Swann, Cottrell, Thompson, Brown and Cleveland (48-49). Muniz walked toward the group and thereupon told Swann to "lay off the kid," meaning Sosa (63-65; Ex. A). Swann, according to Muniz, hit him with a piece of pipe on the shoulder (51), or, if we take Muniz' written statement, on the arm with a mop handle (Ex. A). Bell, an inmate, hit Muniz on the head (Ex. A). Muniz hit Swann in the mouth with his fist (Ex. A).

 9. Thereupon Sosa ran away, while Muniz ran to his dormitory, Concord House, pursued by some of the inmates (52, 53; Ex. A). There, certain of the inmates following Muniz hit him with mop sticks and threw a chair at him, hitting his left hand (53, 54, 73-74). Muniz mentioned his hand and shoulder as the parts hit while in the dormitory (75, 76). Muniz became unconscious, apparently from loss of blood from the blow received in the yard (74, 75, 76). He was assisted and taken to the hospital where a craniotomy was performed on August 24, 1959; he remained hospitalized for nine months (153, 78).

 10. At the time the affray began, there was two or three hundred inmates in the court yard, but there was only one guard in the yard (167). Officer Robert Karin was on guard duty in the upper dormitories, Concord, Providence and Berkshire Houses (242), Officer Mannion was on guard duty in the lower dormitories, Vermont, Massachusetts and Connecticut Houses (194, 252), and only Officer Robert Boyden was on guard duty in the yard (155, 157; Ex. 15).

 11. Boyden, now a Connecticut State Trooper (153), was stationed at the southern end of the court yard between the Chaplain's office and the barber shop at the time of the affray (155, 157; see "X" on diagram, Ex. 15). He saw some inmates chasing an individual toward and enter Concord House (161). From the barber shop Boyden immediately telephoned the control room and ordered them "to clear the yard" (162). Before he hung up, the Klaxon started (188). Thereupon, Boyden saw a guard locking the Concord House door (172). Boyden locked the doors of Rhode Island, Berkshire and Connecticut Houses (173). Shortly after, Boyden found some inmates outside each dormitory and let them in (185).

 12. At about 5:00 P.M. on August 24, 1959, Steven Noone, employed as a correctional officer at Danbury on that date (193) and a correctional supervisor at the present time, saw certain inmates running down the sidewalk in front of Berkshire (201); he dialed "emergency" (203) and then ran to Concord House (204). When he arrived at the Concord dormitory he saw a dormitory officer (Karin) coming down the stairs with a large group of men behind him (205). Of these men he remembered Swann, Thompson, Cleveland and Cottrell (207). Noone told Karin, "Come out and we'll lock the door" (208, 209). Officers Karin and Noone attempted to lock the door but a number of inmates hit the door, knocking it open, and six or seven inmates came out before the door could be locked. The group got out, but not Swann (210). Within a minute after the door was locked four or five other guards had arrived (211) and Muniz was brought down by another inmate before Swann came down (213-214).

 13. At approximately 5:00 P.M. on August 24, 1959, Officer Karin was in the officers' corridor giving out mail at Berkshire House when he heard yelling and screaming coming from Concord House. Karin ran down to Concord House and saw fighting in the dormitory from his position on the other side of the screen in the officers' corridor. Karin then opened the door from the officers' corridor to the recreation room, ran through the recreation room, down the staircase and attempted to lock the door (243-246). This staircase was the only exit from Concord House (246). As Officer Karin ran through the recreation room, the inmates who had chased Muniz into the Concord dormitory came running out and ran after Officer Karin down the staircase (244, 245).

 14. I find that the instructions to inmates at Danbury in August 1959 were as follows: (1) not to fight; (2) not to run in the yard; (3) when the Klaxon sounds to go to the quarters (the dormitories) (230-231); and (4) by regulation, no inter-house visiting (i.e., no visits to other dormitories were permitted) (207-208).

 15. In case of trouble in the yard, the instructions to the guards at Danbury in August 1959 were that the guard discovering it would call 222 and have the Klaxon rung to clear the yard (234) and then lock the doors (of the dormitories) to clear the area of any troublemakers and to put the people in where they belonged (235). In the Connecticut State Prison at Wethersfield in August 1959, similar instructions to guards were given by the Wethersfield warden with respect to inmates in a compound comparable to the Danbury compound (107, 96, 100, 101, 111, 114).

 16. Two inmates concerned in the affray involving plaintiff, one Henre and one Bell, had each previously incurred forfeiture of good time for a homosexual act, but the record in neither case indicated whether the act was with consent or lack of consent. No other inmates involved had any record of offenses of serious nature; the reports as to Henre and Bell were limited to the foregoing (137, 138, 139). Nothing more indicating a history of serious misconduct in prison was shown to have made available to defendant's wardens or employees concerning the assaulting inmates. For instance the gist of Boyden's information from superiors about any of the inmates concerned was that Cleveland "wouldn't conform" and "wouldn't go along with any of the program" (179, 180-184). Defendant had no notice or knowledge of any fact requiring special precautions (Heaney, 3, 4, 124, 127, 128). There was no reason to anticipate any hazard such as that which developed.

 17. The said instructions previously given to the guards at Danbury were faithfully executed on August 24, 1959, when the affray concerning plaintiff occurred. The plaintiff has failed to prove any negligence under the facts and circumstances of this case in either defendant's instructions or defendant's acts. The defendant acted as a reasonable man would act under all the facts and circumstances then present. No facts ...

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