UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
June 7, 1979
NELSON HERNANDEZ, PLAINTIFF-APPELLANT,
C. LATTIMORE, NATHANIEL MITCHELL, HUGH HERBERT, N. AVIGNONE AND R. BROWN, CORRECTIONAL OFFICERS, METROPOLITAN CORRECTIONAL CENTER, DEFENDANTS-APPELLEES.
Relying upon the authority of Bivens v. Six Unknown Named Agents of Fed. Bur. of Narc., 403 U.S. 388 (1971), appellant, an incarcerated prisoner, alleging violation of his constitutional rights by defendants, sought damages for their alleged tortious acts allegedly injuring him. The court below, S.D.N.Y., Brieant, J., dismissed the complaint. On a somewhat different ground than the ground relied upon below, the judgment of dismissal is AFFIRMED.
Before: WATERMAN and TIMBERS, Circuit Judges, and NICKERSON, District Judge*fn*
WATERMAN, Circuit Judge :
Plaintiff appeals from a judgment entered in the United States District Court for the Southern District of New York dismissing his complaint for failure to state a claim upon which relief could be granted and for lack of subject matter jurisdiction. In his complaint plaintiff sought to recover damages for alleged injuries caused by excessive and unnecessary force applied to him by the defendants while he was an incarcerated prisoner. He relied upon the authority of Bivens v. Six Unknown Named Agents of Fed. Bur. of Narc., 403 U.S. 388 (1971), his claim being that he had suffered cruel and unusual punishment despite the protection guaranteed him by the eighth amendment. The court below decided that the constitutional remedy provided for in Bivens against the individual officers had been preempted by the amendment to the Tort Claims Act adopted later than the events in Bivens, by which, on March 16, 1974, 28 U.S.C. § 2680(h), the government had waived its sovereign immunity for assaults and batteries and that there was now a full and adequate remedy against the government itself available to the plaintiff under the Federal Tort Claims Act.
We concur in the result reached in the district court and affirm the judgment below entered on July 20, 1978, dismissing the action as to the appellees herein. In so doing, however, we expressly find that the existence of the Federal Tort Claims Act provision does not preempt a Bivens action. We predicate our affirmance on the appellant's failure to demonstrate that his alleged injury was consequent upon a violation of his constitutional rights by federal law enforcement officers who were then acting within the scope of their employment or were then acting under color of federal law.
This litigation is based on events that took place on the evening of October 4, 1976, at the Metropolitan Correctional Center (M.C.C.) in New York City, where Hernandez was incarcerated. On that evening Hernandez overturned a salad tray in the M.C.C. cafeteria during the evening meal. Although the complaint does not recite the events leading up to the initial altercation, statements made at argument on the motion to dismiss indicated that by overturning the salad tray Hernandez was protesting a correctional officer's failure, or refusal, to supply him with silverware to replace the plastic utensils that were available.*fn1 Shortly after dinner was served Hernandez returned to his cell. He alleges that soon after his return, defendants Lattimore, Mitchell, Herbert, Avignone, and Brown visited his cell, allegedly conducted a "strip-search," and later escorted him fully clothed into an elevator which deposited him at a third-floor holding area.*fn2
The complaint focuses on alleged attacks upon him which Hernandez alleges occurred while en route to the holding area. Hernandez charges that, while surrounded by defendants Mitchell, Herbert, Avignone, and Brown, he was punched about the face and body by defendant Lattimore and kicked by an unidentified defendant. Hernandez insists that these attacks occurred without provocation or because of any disobedience to orders. The complaint further alleged that while bleeding profusely he was deposited in the holding area where he received no medical attention.*fn3
As a result of the actions of the correctional officers, Hernandez asserts that he sustained injuries to his face, mouth, and body, as well as his psyche. Hernandez charges that the conduct of the defendant officers amounted to a violation of his eighth amendment right to be free from cruel and unusual punishment.*fn4 He seeks $60,000 in compensatory damages jointly and severally from the defendants and $120,000 in punitive damages as well.
The defendants pleaded a general denial to all the allegations of the complaint and also asserted as affirmative defenses that they acted in good faith upon a reasonable belief that their conduct was lawful; that the court lacked subject matter jurisdiction; and that plaintiff failed to state a claim upon which relief could be granted. Additionally, defendant Lattimore affirmatively pleaded self-defense, and he counterclaimed for $5,000 compensatory damages and $10,000 in punitive damages for assault and battery by plaintiff upon him.*fn5
After so pleading, defendants moved to dismiss the federal claims for failure to state a claim upon which relief could be granted, and moved for dismissal of the pendent state claims for lack of federal court subject matter jurisdiction. Inasmuch as there was a consideration of matters outside the pleadings, the motion for dismissal was treated by the district court as a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.*fn6
The district court, although recognizing that a private damage remedy may be implied directly from the Constitution under Bivens, supra, and its progeny, concluded that the availability of a "full and adequate" remedy under the Federal Tort Claims Act (hereinafter "FTCA") precluded a Bivens remedy. Acknowledging that the FTCA did not set forth a full alternative to a Bivens remedy, the court found that, notwithstanding the alleged inadequacies of the statutory remedy,*fn7 it did not deprive Hernandez of an efficacious vehicle for the vindication of his federally secured rights under the eighth amendment. As stated by the district court, "[the] Federal Tort Claims Act,... provides the very remedy that Mr. Hernandez seeks, and which was not then available to Webster Bivens -- money damages." In reliance, therefore, on the existence of an alternative specific statutory remedy, the district court determined that, pursuant to the FTCA, Hernandez' federal rights could be fully redressed and so refused to imply a constitutional remedy under Bivens .
The preemptive analysis employed by the district court resulted in the dismissal of the complaint without a consideration of the dispositive issue of whether under the facts the plaintiff alleged occurred, he demonstrated he suffered an injury consequent upon the violation of his constitutional rights. Irrespective of the existence of the statutory remedy, a threshold consideration of this issue is necessary in order to ascertain whether a Bivens remedy is available to appellant, in that, implicit in Bivens was a finding that Webster Bivens' fourth amendment rights and been violated. Bivens v. Six Unknown Named Agents of Fed. Bur. of Narc., supra at 403 U.S. 397, 91 S. Ct. 2005. Therefore, in order properly to adjudicate Hernandez' claim we must evaluate the alleged conduct of the appellees and determine whether that alleged conduct constituted a violation of Hernandez' eighth amendment right to be free from cruel and unusual punishment or whether it was, in the alternative, merely an invasion of his state-created rights which are commonly redressed by actions in tort and are cognizable under the FTCA.*fn8 We are of the opinion that the allegations of the complaint sub judice do not rise to the level of a constitutional violation and find that the district court was correct in holding that "the Bivens doctrine does not extend to claims of the sort here pleaded..." We do so because of the paucity of factually essential eighth amendment allegations, which necessitates federal court dismissal.
Our analysis of the present case naturally begins with the Supreme Court's seminal decision in Bivens v. Six Unknown Named Agents of Fed. Bur. of Narc., 403 U.S. 388, 91 S. Ct. 1999 (1971), wherein the Court held that a cause of action for damages against federal law enforcement officers who violate the fourth amendment could be inferred directly from provisions of the U.S. Constitution.
On the morning of November 26, 1965, Webster Bivens' apartment was entered by agents of the Federal Bureau of Narcotics, who, acting under the cloak of federal authority, and without probable cause or warrant, caused Bivens to be arrested for alleged narcotics violations. The complaint filed against Bivens was, however, subsequently dismissed by the United States Commissioner. Bivens brought an action against the individual officers seeking $15,000 jointly and severally in compensatory damages. The complaint alleged that the arrest and events preceding his arrest had caused Bivens great humiliation, embarrassment, and mental suffering. The district court dismissed the complaint for lack of federal jurisdiction. Bivens v. Six Unknown Named Agents of Fed. Bur. of Narc., 276 F.Supp. 12 (E.D.N.Y. 1967). We affirmed the district court and, despite recognition that an action for trespassory damages should be maintainable in federal courts,*fn9 determined that, in view of the availability of injunctive relief, the exclusionary rule, and state law tort actions for the vindication of Bivens' rights, another judicially created damage remedy was not indispensable to the effectuation of the fourth amendment protections. Bivens v. Six Unknown Named Agents of Fed. Bur. of Narc., 409 F.2d 718 (2d Cir. 1969). On certiorari, the Supreme Court reversed and held, inter alia : "The question is merely whether petitioner, if he can demonstrate an injury consequent upon the violation by federal agents of his Fourth Amendment rights, is entitled to redress his injury through a particular remedial mechanism normally available in the federal courts... Having concluded that petitioner's complaint states a cause of action under the Fourth Amendment, we hold that petitioner is entitled to recover money damages for any injuries he has suffered as a result of the agents' violation of the Amendment." (citations omitted) Bivens, supra, 403 U.S. 398, 91 S. Ct. 2005.
The holding in Bivens represented the first judicial recognition of a cause of action implied directly under a constitutional provision. Up until the Bivens decision litigants armed only with the general jurisdictional statute, 28 U.S.C. § 1331, were relatively unsuccessful in utilizing the positive law of the Constitution as a vehicle to force affirmative action. E.g., Bell v. Hood, 327 U.S. 678, 66 S. Ct. 773 (1946); cf. Jacobs v. United States, 290 U.S. 13 (1933) (fifth amendment: just compensation).
The keystone of the Bivens decision was the Court's recognition that the commands of the fourth amendment created an affirmative federal right to be free from unreasonable searches and seizures, a right which could be redressed in money damages even in the absence of explicit congressional action authorizing the remedy. In fashioning a remedy for Bivens directly under the fourth amendment with 28 U.S.C. § 1331 as a jurisdictional base, the Court reasoned that although the fourth amendment does not "in so many words provide for its enforcement by an award of money damages for the consequences of its violation," federal courts possess the power to use traditionally available judicial remedies when necessary for redress. Bivens, supra, 403 U.S. 396, 91 S. Ct. 2004, citing Bell v. Hood, 327 U.S. at 684. See also J. I. Case Co. v. Borak, 377 U.S. 426, 84 S. Ct. 1555 (1964).
Urging restraint in the exercise of this inherent remedial power, the government in Bivens argued that a federal damage remedy was unnecessary to enforce the affirmative commands of the fourth amendment. Relying primarily on the availability of state actions in tort, the government reasoned that, where Congress has not expressly authorized a particular remedy, federal courts should imply judicial relief only where the remedy is indispensable or essential for the vindication of the interest protected. The Supreme Court, however, rejected this argument, maintaining that state law remedies might be inadequate inasmuch as "[the] interests protected by state laws regulating trespass and invasion of privacy, and those protected by the Fourth Amendment's guarantee against unreasonable searches and seizures, may be inconsistent or even hostile." Bivens, supra, 403 U.S. at 394, 91 S. Ct. 2003.
In the case sub judice, the government argues that the converse of the position taken in Bivens is applicable because "where Congress has acted to establish a remedial scheme [FTCA], the more general remedies usually available to the courts are foreclosed." The government reasons that in view of the availability of a remedy under the FTCA, the case before us does not arise in the remedial void which caused the Supreme Court to imply a remedy in Bivens and the absence of this void, therefore, militates against an implied constitutional remedy.
The persuasiveness of the government's argument is greatly diminished, however, by a reading of the legislative history of the amendment to the FTCA. 28 U.S.C. § 2680(h). Certainly, of course, the present case does not arise in the remedial void that handicapped Webster Bivens in pursuing a federal claim against the government, for the remedial void was indeed closed by congressional action in 1974 with an amendment to the FTCA. Nevertheless, it seems clear that Congress in closing that void did not intend to shut out damage actions against government officers who violate constitutionally secured rights. It is clear that the amendment was specifically designed to prevent abuses of the federal no-knock statute such as those which occurred in Collinsville, Illinois.*fn10 The Senate Committee which reported out the amendment viewed the abolition of sovereign immunity as creating in favor of "innocent individuals who are subjected to raids of the type conducted in Collinsville" a cause of action which would exist side by side with a Bivens action against the individual officers.
[This] provision should be viewed as a counterpart to the Bivens case and its progenty [sic ], in that it waives the defense of sovereign immunity so as to make the Government independently liable in damages for the same type of conduct that is alleged to have occurred in Bivens (and for which that case imposes liability upon the individual Government officials involved).
S.Rep. No. 93-588, 93d Cong., 2d Sess., reprinted in  U.S. Code Cong. & Admin. News, p. 2791. Therefore, even a cursory reading of the Senate Committee report demonstrates a congressional intent to provide a remedy against the federal government in addition to, but not wholly in the place of, the private cause of action created by Bivens, Norton v. United States, 581 F.2d 390, 395 (4th Cir.), cert. denied, 99 S. Ct. 613 (1978). Furthermore, it is important to note that whenever Congress intended to make the FTCA remedy the exclusive remedy it has done so explicitly. For example, Congress exempted federal employees acting in the course of their employment from damage suits arising out of the negligent operation of motor vehicles. 28 U.S.C. § 2679 (1970). See also 38 U.S.C. § 4116 (medical malpractice).
Yet though we find there to be the two remedies and that the FTCA remedy has not preempted the Bivens remedy, the two remedies do not stand in pari materia. As the FTCA provision provides a vehicle for the redress of certain common law torts, the scope of the FTCA remedy is broader than a Bivens action remedy. Bivens, on the other hand, requires that there have been a constitutional violation giving rise to federal question jurisdiction under 28 U.S.C. § 1331; and we recognize, as have other courts, that some common law torts and some statutory torts, although actionable in state forums, do not rise to the level of constitutional violations. Atkins v. Lanning, 556 F.2d 485, 489 (10th Cir. 1977); Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977); Smith v. Spina, 477 F.2d 1140, 1143 (3d Cir. 1973); Wells v. Ward, 470 F.2d 1185, 1187 (10th Cir. 1972); Corby v. Conboy, 457 F.2d 251, 254 (2d Cir. 1972). The converse is equally true insofar as some conduct is actionable under the Constitution that involves no force or violence and for which there exists no counterpart in the common law. E.g. Trop Dulles, 356 U.S. 86, 78 S. Ct. 590 (1958) (expatriation). Just as malpractice does not become a constitutional violation merely because the victim is a prisoner, Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 292 (1976), so, too, not every assault and battery gives rise to a cause of action under the eight amendment because the victim happens to be a prisoner. As recognized by Judge Friendly in Johnson v. Glick, 481 F.2d 1028 (2d Cir.), cert. denied, 414 U.S. 1033 (1973):
Certainly the constitutional protection is nowhere nearly so extensive as that afforded by the common law tort action for battery, which makes actionable any intentional and unpermitted contact with the plaintiff's person or anything attached to it and practically identified with it... still less is it as extensive as that afforded by the common law action for assault, redressing "Any act of such a nature as to excite an apprehension of battery"... (Citations omitted)
481 F.2d at 1033. Therefore, Hernandez must, in order to sustain a Bivens action, establish more than a common law tort violation. Arroyo v. Schaefer, 548 F.2d 47, 50 (2d Cir. 1977).
We now turn our attention to the alleged conduct of the appellees and evaluate it under the proscriptions of the eighth amendment in order to ascertain whether plaintiff has demonstrated any injury consequent upon the violation of his eighth amendment rights.
The eight amendment provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." (emphasis supplied).
The American draftsmen who adopted the text of the eighth amendment from the English Bill of Rights of 1689 were primarily concerned with proscribing tortures and other barbarous methods of punishment imposed not only by judges acting beyond the scope of their judicial authority, but also by the legislature in defining what is criminal.*fn11 "The primary purpose of [the Cruel and Unusual Punishments Clause] has always been considered, and properly so, to be directed at the method or kind of punishment imposed for the violation of criminal statutes..." Powell v. Texas, 392 U.S. 514, 531-32, 88 S. Ct. 2145, 2154 rehearing denied, 89 S. Ct. 65 (1968).
The earliest cases raising eighth amendment claims dealt with particular methods of execution and the Court's analysis focused on whether the punishment was so cruel as to violate constitutional mandates. These early cases established that the eighth amendment prohibited punishments that were unnecessarily cruel, Wilkerson v. Utah, 99 U.S. 130, 136 (1878), as well as those that were excessive, Weems v. United States, 217 U.S. 349 (1910); O'Neil v. Vermont, 144 U.S. 323, 340 (1892) (dissenting opinion, Field, J.), in the same fashion that it prohibited torture. An unusual punishment, however, was not necessarily cruel, so long as the legislative selection of it evidenced some humane purpose. Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464, 67 S. Ct. 374, 376, rehearing denied, 330 U.S. 853, 67 S. Ct. 673 (1947); In re Kemmler, 136 U.S. 436, 447 (1890). Therefore, conduct to be violative of the amendment's prohibition must do more than "offend some fastidious squeamishness or private sentimentalism about combating crime too energetically." The conduct that the amendment proscribes is conduct that shocks the conscience. Rochin v. California, 342 U.S. 165, 172, 72 S. Ct. 205, 209 (1952). The amendment draws its meaning from the evolving standards of decency which are the hallmarks of a maturing and civilized society. Trop v. Dulles, supra; Robinson v. California, 370 U.S. 660, 668, 82 S. Ct. 1417, 1421 (1962) (concurring opinion, Douglas, J.). Penalties at one time permissible become impermissible under evolving societal standards, and the dynamic character of the eighth amendment, Weems v. United States, supra, requires that it be continually re-examined in light of the conscience of contemporary society. The Supreme Court's holding in Estelle v. Gamble, 429 U.S. 97, 102-03, 97 S. Ct. 285, 290-92 (1976), is illustrative of the dynamic character of the eighth amendment. The Court in Gamble recognized that, embodied within the amendment's prohibition of physically barbarous punishments, were the broad and idealistic concepts of dignity, civilized standards, humanity, and decency. These principles established a governmental obligation to provide prisoners with medical care, and in turn supported the Court's conclusion that "deliberate indifference to serious medical needs of prisoners constitutes the 'unnecessary and wanton infliction of pain,' proscribed by the Eighth Amendment." (citation omitted) 429 U.S. at 104, 97 S. Ct. at 291.
The protection afforded by the eighth amendment is limited, and the Court has cautioned against the hazards of expanding its coverage by overbroad interpretations of its proscriptions. E.g., Ingraham v. Wright, 430 U.S. 651, 97 S. Ct. 1401 (1977). The applicability of the amendment has always turned on its historical derivation, which was to proscribe unnecessary cruelty and pain as part of the criminal process. 430 U.S. 670 n.39, 97 S. Ct. 1412 n.39. The touchstone of the amendment is the prevention of punishments that the inherently excessive or cruel.
The thread common to all these cases is that "punishment" has been deliberately administered for a penal or disciplinary purpose, with the apparent authorization of high prison officials charged by the state with responsibility for care, control, and discipline of prisoners. In contrast, although a spontaneous attack by a guard is "cruel" and, we hope, "unusual" it does not fit any ordinary concept of "punishment."
The management by a few guards of large numbers of prisoners, not usually the most gentle or tractable of men and women, may require and justify the occasional use of a degree of intentional force. Not every push or shove, even if it may later seem unnecessary in the peace of ajudge's chambers, violates a prisoner's constitutional rights. Johnson v. Glick, supra
at 1032-33, cited with approval in Ingraham v. Wright, supra. (emphasis supplied).
Evaluating Hernandez' complaint under the principles previously discussed, we find that the complaint clearly fails to establish a constitutional violation arising under the eighth amendment. As stated previously, the Bivens doctrine assumes a demonstrable constitutional violation, and in the absence of such a violation, as in the case sub judice, the only remaining federal remedy for a plaintiff in Hernandez' position arises under the FTCA.
Order of district court dismissing complaint, for the reasons herein stated, is AFFIRMED.
NICKERSON, District Judge, dissenting:
Plaintiff brought this action for compensatory and punitive damages alleging that defendants violated his Eighth Amendment right to be free from the infliction of cruel and unusual punishment "by subjecting him to a brutal, unlawful beating and by denying him medical care" for the resulting injuries.
Plaintiff, a sentenced Federal prisoner, was in custody at the Metropolitan Correctional Center ("M.C.C.") in New York City in October 1976. The complaint names as defendants five correctional officers and a paramedical employee at the M.C.C.
In substance the complaint asserts that on October 4, 1976, shortly after dinner was served on the floor to which plaintiff was assigned, he returned to his cell. Several minutes later the five officers came to the cell and ordered him to accompany them to the elevator. He did so, and there one of them punched him about the face and body while the other four surrounded him. One of them kicked him. During the incident he disobeyed no order and did not strike or attempt to strike anyone.
As a result of the beating he suffered severe injuries to his face, mouth, and body. He was then taken to a "holding area" on a different floor. Later that night the paramedical employee came into the area but did nothing to aid or treat plaintiff though he was bleeding profusely. For a substantial period of time plaintiff was left bleeding and unattended and finally was taken to Bellevue Hospital where he was treated.
The complaint asserts that the officers by beating him and the paramedical employee by his deliberate indifference to plaintiff's serious medical needs deprived him of his right to be free from "cruel and unusual" punishment "as guaranteed by the Eighth Amendment." The complaint also alleges a claim of assault and battery and negligence under New York law.
The answer denies the critical allegations of the complaint and sets forth as affirmative defenses that the court lacks jurisdiction, that the complaint fails to state a claim, and that the defendants acted in good faith. The officer who allegedly struck plaintiff served an amended answer alleging as a fourth affirmative defense that plaintiff struck first and had to be restrained, and as a fifth affirmative defense and counterclaim that plaintiff without warning struck the officer "on the chest in an offensive manner", thereby tearing his clothes and subjecting him to "great pain and discomfort of body and mind." The amended answer seeks compensatory and punitive damages.
The claim against the paramedical employee is not before the court, having been dismissed on consent.
The officers moved to dismiss the constitutional claim for insufficiency and the pendent state law claim for lack of jurisdiction.
In the course of oral argument of the motion plaintiff's attorney made clear to the District Court that the complaint did not allege a claim under the Fifth Amendment but that if the court ruled adversely as to the Eighth Amendment plaintiff would ask leave to amend to assert the Fifth Amendment. The court said it would grant such leave.
The attorney for plaintiff also stated that the beating occurred because plaintiff, while dinner was being served, overturned a salad tray in protest for one of the defendants' failure to respond to plaintiff's complaint about lack of silverware.
Because the District Court had ruled that it would permit the complaint to be amended at trial to include a Fifth Amendment claim and because such a claim had been asserted in the pretrial memorandum and answers to interrogatories, the court's memorandum and order dismissing the complaint stated that plaintiff had alleged both a Fifth and an Eighth Amendment claim. The court also treated the allegations as including plaintiff's overturning of he salad tray and assumed that the beating was "punishment" for his doing so. Without determining whether the alleged facts showed a violation of the Fifth or Eighth Amendment the court held that a person may not "bring an action for money damages based directly on a claim that his or her Eighth and/or Fifth Amendment rights have been violated" since the Federal Tort Claims Act provides a sufficient remedy.
The majority opinion of this court expressly finds, and I agree, that the existence of a remedy under the Federal Tort Claims Act does not preempt an action directly under the Eighth Amendment. In a footnote the majority declines to address the merits of the Fifth Amendment claim "[inasmuch] as the complaint was not amended and no claim arising under the Fifth Amendment is asserted." The footnote adds by way of dictum "[we] do, however, in spite of the broad interests encompassed by the Fifth amendment, find it difficult to discern upon what grounds the plaintiff could base such a claim."
With respect to the Eighth Amendment claim the majority holds that the asserted conduct of the defendants did not constitute "cruel and unusual punishment". It is not clear from the majority opinion whether or not it regard the alleged treatment of defendant as "cruel and unusual". By quoting and italicizing a statement made in an entirely different context in Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973), that "[not] every push or shove" violates a prisoner's rights, the majority implies that defendants' alleged conduct was not sufficiently serious to be "cruel and unusual".
To the extent that the majority holds that a beating leaving the passive victim bleeding profusely is neither "cruel" nor "unusual", the holding is inconsistent with those elementary standards of decency which the Eighth Amendment embodies. See, e.g., Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285 (1976). This was no mere "push or shove". The complaint alleges an unjustified beating and kicking which left the prisoner bloody and severely injured. If this is not "cruel and unusual" it is hard to imagine what is.
Whatever the views of the majority as to what is "cruel and unusual", it clearly holds that the attack by the officers on a sentenced prisoner in retaliation for overturning a salad tray does not constitute "punishment". The majority quotes dictum from Johnson v. Glick, supra, that to fit the ordinary concept of "punishment" a beating must have been "deliberately administered for a penal or disciplinary purpose, with the apparent authorization of high prison officials charged by the state with responsibility for care, control, and discipline of prisoners." 481 F.2d at 1032.
In my view even assuming that this language formulates the correct standard for this case, plaintiff's assertions state an Eighth Amendment claim. The knowing infliction of grievous bodily harm as a reprisal for upsetting a salad tray is plainly something "deliberately administered for a penal or disciplinary purpose." Deterrence and retribution are traditional aims of punishment. Kennedy v. Mendosa-Martinez, 372 U.S. 144, 168-69, 83 S. Ct. 554, 567-68 (1963). Under the alleged facts before this court the motive of the officers in beating plaintiff was to retaliate for his actions or to discourage him or others from repeating them. In other words, it was to punish him.
While the complaint does not explicitly state that the conduct of the officers was "with the apparent authorization of high prison officials", the allegations are sufficiently broad to permit proof on that issue. Moreover, the amended answer of the officer who allegedly struck plaintiff admits that the officers were acting under orders when they took him to another floor.
In any event the dictum in Johnson v. Glick, supra, is not applicable to sentenced prisoners. That case involved not a sentenced prisoner but a pretrial detainee. Such a detainee may be incarcerated not to "punish" him but only to detain him for trial. Bell v. Wolfish, U.S. (decided May 16, 1979). Indeed, the Eighth Amendment does not apply to detainees but solely to convicted prisoners.Id., fn. 16; Ingraham v. Wright, 430 U.S. 651, 671-72, fn. 40, 97 S. Ct. 1401, 1412-13, fn. 40 (1977). A detainee is thus protected from the shocking conduct of prison officials not by the Eighth Amendment but by the due process clause of the Fifth Amendment. Bell v. Wolfish, supra.
In contrast to a pretrial detainee a sentenced inmate is incarcerated and deprived of his liberty for the very purpose of "punishment". The government is "punishing by incarceration". Estelle v. Gamble, supra, 429 U.S. at 103, 97 S. Ct. at 290. Every minute that he spends in prison he is being punished, and the only Eighth Amendment question is whether that "punishment" is "cruel and unusual". As the Supreme Court said in Ingraham v. Wright, supra, 430 U.S. at 669, 97 S. Ct. at 1411 (1977), "[prison] brutality is 'part of the total punishment to which the individual is subjected for his crime and, as such, is a proper subject for Eighth Amendment scrutiny'." The Supreme Court has thus recognized that the conditions of incarceration of a sentenced prisoner are inevitably part of the punishment and that brutality inflicted on him is "cruel and unusual". Moreover, the treatment of the prisoner may be cruel and unusual whether it persists over a period of time or consists merely of a single blow. Where, as here, the alleged beating of a sentenced prisoner "shocks the conscience" it is part of the total punishment and is "cruel and unusual". Arroyo v. Schaefer, 548 F.2d 47, 49 (2d Cir. 1977).
Since the very imprisonment of the sentenced prisoner constitutes "punishment" from the moment he is taken into custody after sentence, "cruel and unusual" treatment by the prison employees is prohibited by the Eighth Amendment even though that treatment was not intended by them to be administered for the purpose of additional punishment. The Supreme Court made this clear in Estelle v. Gamble, supra, where it held that mere "deliberate indifference to serious medical needs" of a sentenced prisoner was "cruel and unusual" and proscribed by the Eighth Amendment since the government had an obligation to provide medical care "for those whom it is punishing by incarceration." 429 U.S. at 103, 104, 97 S. Ct. at 290, 291. While the Supreme Court held that the indifference to the consequences must be "deliberate", there is not the slightest suggestion in the opinion that in order to violate the Eighth Amendment a failure to provide care must be intended by the prison employees as additional punishment.
Estelle v. Gamble, supra, also shows that the individuals inflicting the injuries on the prisoner cannot escape liability by showing that their conduct was without "apparent authorization of high prison officials". That case held that conduct, such as indifference to medical needs, on the part of mere prison guards was prohibited by the Eighth Amendment. 429 U.S. at 104-05, 97 S. Ct. at 291, fns. 10, 11, 12. There is no hint in the opinion that such conduct, to be proscribed by the Eighth Amendment, must be authorized by other and higher officials.
Under the recent Supreme Court decisions, therefore, plaintiff has in my opinion asserted an Eighth Amendment claim.
But even if plaintiff has not stated an adequate Eighth Amendment claim I believe this court should consider his Fifth Amendment claim or at least remand with leave to amend. It is hardly fair to dismiss the complaint entirely and to decline to consider a claim which the District Court held could be asserted at trial by amendment, which had been alleged in plaintiff's pretrial memorandum and answers to interrogatories in the District Court, and which was ruled on by the District Court. The dismissal of the complaint without giving leave to amend would perhaps delight Baron Parke, but it scarcely comports with present perceptions of the purpose of pleadings or with elementary fairness to litigants.
The majority does not make clear why "in spite of the broad interests encompassed by the fifth amendment" it finds it "difficult to discern upon what grounds" the plaintiff could base a claim under that amendment. In my opinion plaintiff has alleged a clear violation of the due process clause. The very case whose dictum the majority relies on to dismiss the Eighth Amendment claim, Johnson v. Glick, supra, sustained the complaint of a pretrial detainee that he was denied due process where the circumstances and seriousness of the injuries allegedly sustained as a consequence of an officer's unprovoked assault were not significantly different from those claimed here. In that case Johnson alleged that he had been reprimanded for a supposed failure to follow instructions and that when he tried to explain a correction officer rushed into the cell, grabbed him by the collar, struck him, and then detained him in the cell two hours, not permitting him to see a doctor. For purposes of the due process clause I cannot perceive any principled distinction between those allegations and the assertions by plaintiff in this case.
I dissent from the majority's view, extraordinary and shocking to me, that the United States Constitution does not protect a sentenced prisoner from a bloody beating at the hands of prison officials. I would reverse the order of the District Court.
May 31, 1979