Appeal from an order of the District Court for the Southern District of New York, Knapp, D.J., dismissing a complaint seeking damages for alleged violations of 42 U.S.C. § 1983 after the plaintiffs had presented their case in a trial before a jury.
Moore, Feinberg and Gurfein, Circuit Judges.
This is an appeal from an order of the District Court for the Southern District of New York, Knapp, D.J., dismissing a complaint seeking damages for alleged violations of 42 U.S.C. § 1983 after the plaintiffs had presented their case in a trial before a jury.
The plaintiffs-appellants*fn1 were pretrial detainees in the Manhattan House of Detention for Men (the "Tombs") at the time of the incident alleged. The defendants-appellees are the former Deputy Warden, two Assistant Deputy Wardens, three Captains, two Correction Officers and a prison physician.*fn2 After plaintiffs filed their complaint pro se, the District Court appointed the Legal Aid Society Prisoners' Rights Project to represent them.
The basis of plaintiffs' § 1983 claim is an incident in the Tombs in September, 1972. It involved the efforts of prison authorities to return another detainee, Hughes, to his cell. The particulars of the incident were supplied by the testimony of the two appellants.
While the detainees were confined to their cells for a "lock-in" period, Hughes was mistakenly allowed to leave his cell. He was supposed to remain inside his cell throughout the day for punitive reasons. He had been moved from punitive segregation to appellants' section of the prison because he had made trouble for the other prisoners in punitive segregation. Appellant McCormack acknowledged that Hughes was a "trouble-maker," had a reputation "for getting tough" and was in the habit of throwing objects, especially broomsticks, at others in the prison.
Hughes refused the order of a correction officer to return to his cell, as he had refused to do in the past. A Captain came and talked to Hughes for five to ten minutes in an effort to persuade him to go back into his cell.
Other officers appeared in the area, some of whom had tear gas dispensers. When the detainees on the floor observed these other guards, Arroyo and McCormack testified that everyone asked to be let out to avoid the gas. Although McCormack testified that the inmates wanted to get out to help the guards put Hughes back into his cell, Arroyo testified that some detainees wanted to get out to help Hughes. In any case, "everyone was talking, making noise, and discussing" and "screaming trying to get out of the cells."
Hughes, in the meantime, "got together a few household utensils that he was going to use in his defense . . . [and] was prepared to make his stand . . ." A correction officer began to discharge tear gas dust at Hughes. Hughes dodged the dust and the officer in redirecting his aim dispensed a total of three bursts. With the aid of other officers Hughes was subdued.
The dispenser was equipped to discharge for a total of ten seconds, in one-second bursts if desired. McCormack testified that each of the three bursts lasted from three to five seconds and described the scene following the discharge of the dust as follows:
". . . we were choking and everyone was trying to get towels, and to, you know, trying to avoid all this discomfort and at the same time there was a lot of confusion. Everybody is panicking. We were asking to be let out ourselves. The officers and everything, they were going about dragging Mr. Hughes out."
After the incident the detainees testified that they had asked to be let out of their cells and removed from the area. Nevertheless, they remained in their cells for 45 minutes up to two hours after the incident. When they were permitted to leave their cells, they were not permitted to leave the immediate area. The shower in appellants' section was broken. Arroyo was told by an officer that they could not go ...