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FOWLER v. VINCENT

June 7, 1978

JAMES FOWLER, Plaintiff,
v.
LEON J. VINCENT, Superintendent of Green Haven Correctional Facility, and JOSEPH POWERS, Correctional Officer of Green Haven Correctional Facility, Defendants



The opinion of the court was delivered by: LASKER

LASKER, D.J.

 In 1972, James Fowler, then an inmate at the Green Haven Correctional Facility, filed this suit under 42 U.S.C. § 1983, alleging that his constitutional rights had been violated by Joseph Powers, a guard at Green Haven, and by Leon Vincent, the facility's warden. He claimed that he was the victim of an unprovoked assault by Officer Powers, in violation of his Fourteenth Amendment right to due process, and that he was denied certain procedural rights by Warden Vincent "and his agents" at the disciplinary hearings which followed the assault in violation of the Fifth, Sixth and Fourteenth Amendments.

 Six years after the filing of the complaint, the State moves under Rule 12(c), F.R.Civ.P., for judgment on the pleadings. For the reasons which follow, the motion is granted in part and denied in part.

 I.

 Failure to State a Constitutional Claim Against Joseph Powers

 In 1973, the State made an earlier motion to dismiss the suit as to Powers arguing that, while the facts alleged in the complaint might constitute a state court action for tort against Vincent, they did not establish a § 1983 action for violation of Fowler's constitutional rights. Judge Bauman, who acted on the motion, rejected the argument, holding that the facts alleged in the complaint were substantially similar to those in Johnson v. Glick, 481 F.2d 1028 (2d Cir. 1973), in which the Court of Appeals held that an assault by a prison guard on an inmate could so "shock the conscience" as to deprive the inmate of his right to liberty under the Due Process Clause.

 In its present motion, the State again argues that the complaint alleges a tort claim and not a constitutional violation. In support of its argument, it relies both on new law, the Supreme Court's decision in Paul v. Davis, 424 U.S. 693, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976), and an attempt to convince this court that Judge Bauman erred in finding the facts in Fowler essentially the same as those in Johnson v. Glick.

 In Paul v. Davis, the plaintiff sued for libel various police officers who had included his name in a flyer of "active shoplifters" which was distributed to local shopowners. The Supreme Court held that such a claim could not be brought under § 1983 because a person's interest in reputation alone did not implicate any liberty or property interest sufficient to invoke the procedural protections of the Due Process Clause. The State asserts that Paul represents a reduction in the remedial scope of § 1983 to situations in which "there is a clear constitutional deprivation and firm basis for federal intervention." (Memorandum, p. 9)

 We agree with the State that Paul is an emphatic reminder that not every tort rises to the level of a constitutional violation. However, that determination does not affect our analysis of this case. Even the State acknowledges that in certain circumstances an assault by a prison guard can amount to a deprivation of constitutional rights. Therefore the real question is whether the facts alleged in the complaint are such as to establish a violation of Fowler's right to due process within the meaning of Johnson v. Glick, supra, 481 F.2d 1028, or only that a common law tort occurred.

 In determining when the "constitutional line" has been crossed in an action for assault, Judge Friendly's majority opinion in Johnson directed a court to look to the following factors:

 
". . . 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." 481 F.2d 1028, 1033.

 We agree with Judge Bauman that Johnson is applicable here since the facts alleged indicate that Powers' assault was unprovoked and unnecessary to maintain order, that Powers acted out of malice, and that Fowler, who claims to have lost his senses of taste and smell as a result of the attack, was severely injured. Accordingly, we find that Fowler has alleged a claim for relief under § 1983.

 II.

 Procedural Requirements of the ...


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