on top of Duamutef taking him to the floor. Foster testified that Duamutef was struggling and screaming as he was being subdued and that Duamutef may have struck his head on the floor as he was taken down and subdued by the guards. Foster stated Duamutef was not unconsciousness and that he never saw anyone strike Duamutef as he was being cuffed and subdued.
After the incident, Foster was taken to the infirmary for medical attention. While in the infirmary Foster again saw Duamutef, describing him as still thrashing around and screaming. Foster was taken by ambulance to St. Joseph's Hospital where he was treated for both leg and head injuries. Foster's chin was split open requiring six stitches and resulting in permanent facial scarring. His leg injury was also severe and necessitated rebuilding the muscles in his left leg. Foster underwent extensive physical therapy and was unable to work for eleven weeks. Foster testified that he had no knowledge of Duamutef prior to this incident.
7. Lon Midkiff, Jr. : Lon Midkiff, Jr. testified that he was a 21 year employee of "DOCS" prior to his retirement in October 1992. MidKiff spent most of his 21 years with DOCS assigned to Attica, having been promoted to the rank of sergeant in 1983. Midkiff testified his duties on the morning of February 10, 1990 included assisting Thomas Fial in summoning "keeplock" inmates from the recreation yard back inside the prison. Midkiff recalled directing Fial to open the door and call for five inmates to come in. Midkiff testified after four inmates came into the "B" corridor, all of those who had entered "took off" towards the "B" block gate. After his order for them to stop was disobeyed, Midkiff testified that inmate Price attacked him, hitting him in the head, right shoulder and right rib cage. During the assault, Midkiff testified that his baton was taken from him.
After struggling with inmate Price, Midkiff stated he was able to disengage himself and pulled an emergency pin from his hand held radio thus sounding an alarm to other guards. Midkiff recalls help arrived on the scene almost immediately. Midkiff testified he never saw Duamutef being struck by guards. After the incident was over Midkiff was taken to the infirmary where three stitches were needed to close the wound in his head. Midkiff was out of work for ten days. Midkiff testified he knows Duamutef from his years at Attica and has seen Duamutef practicing martial arts skills while in his cell.
8. David Montgomery: Defendant David Montgomery, a "DOCS" employee since 1972, was assigned to Attica's second floor reception area on February 10, 1990. Montgomery recalled hearing a distress signal and immediately responded to the scene of the disturbance. Montgomery testified that he had to run over three hundred yards from his duty station to get to the "B" corridor.
When he entered the "B" corridor Montgomery observed a commotion involving inmates and staff and observed Duamutef on the floor struggling as guards tried to subdue him. Montgomery stated he went over to assist officers in subduing plaintiff and "grabbed [Duamutef's] head to try and subdue him". According to Montgomery, Duamutef turned and bit Montgomery's finger, breaking the skin and drawing blood. Montgomery stated that Duamutef was conscious as he was being subdued and that he never witnessed any guard strike Duamutef with a baton. As to his conduct, Montgomery testified that he did not strike, hit, kick or punch Duamutef at any time. Montgomery testified he was not even issued a baton that day.
After the situation was under control, Montgomery stated he saw Duamutef being placed on a gurney and sent to the Attica infirmary. Like most of the other defendants, Montgomery stated he did not know Duamutef prior to this incident.
9. David Spinks: Defendant David Spinks testified he had been a "DOCS" officer for twenty-one years and on February 10, 1990 was assigned to the Attica Correctional Facility as a transportation officer. As a transport officer, Spinks' duties included assuming responsibility for inmates if they needed to be taken out of the facility.
On the morning of February 10th, Spinks testified that he was ordered to report to the infirmary and, upon arrival, observed Duamutef on a stretcher being attended to by prison medical staff. Spinks testified he waited in the infirmary area until an ambulance arrived to take Duamutef to the hospital. When the ambulance arrived, Duamutef was placed in Spinks' custody for transport out the facility. Spinks testified that prison procedure required that any inmate leaving the prison be restrained by a waist belt, leg irons and handcuffs and, accordingly, those restraints were placed on Duamutef. Spinks rode in the ambulance with Duamutef to the Erie County Medical Center. Spinks denied striking Duamutef in the infirmary and stated he did not recall ever having any substantive contact with Duamutef prior to this incident.
10. Louis J. Lang: Louis Lang, an investigator with the New York State police for over 25 years, testified that in February, 1990 he was assigned to the Batavia office of the State Police. After hearing on the State Police radio of a prison disturbance at Attica, Lang called Attica and was requested to report to the Prison immediately. Lang testified that he and fellow trooper Jack Tuttle drove to Attica together.
Upon their arrival, Tuttle and Lang checked in at the main administrative building and were directed to report to the "B" corridor. By the time they arrived, the corridor had been cleared. Lang and Tuttle proceeded to the infirmary. When they arrived, Duamutef was in the infirmary. After identifying themselves, Lang testified he asked Duamutef if he could speak to him about what had happened. Duamutef declined to speak to Lang. Lang testified that during the time he was in the prison infirmary, Duamutef's eyes were open and he was looking around. Lang also testified he took Duamutef's photograph in the infirmary (plaintiff's exhibit 4 and 5) but described Duamutef as extremely uncooperative during the photographic session, deliberately holding his eyes closed as his picture was being taken.
11. Thomas Edwards: Thomas Edwards testified he had been a "DOCS" employee for fourteen years and in February 1990 was working as a physicians assistant at the Attica Correctional Facility. Edwards was in the Attica infirmary at the time both inmates and guards were being treated on February 10th. Edwards testified he did not see any inmate being struck, punched or kicked by any Attica staff member while they were in the infirmary.
Edwards testified he also reviewed plaintiff's medical records documenting the treatment plaintiff received in the Attica infirmary on February 10, 1990. According to Edwards, there was no notation on the medical records that would suggest that plaintiff suffered any loss or consciousness. Without objection, Edwards opined that if there were any indication of loss of consciousness, such a condition would have been noted on the inmate's medical record by infirmary staff as loss of consciousness has a profound impact on a patient's diagnosis and treatment.
The Eighth Amendment prohibits the infliction "cruel and unusual punishments." U.S. Const. amend. VIII. "After incarceration, only the unnecessary and wanton infliction of pain . . . constitutes cruel and unusual punishment forbidden by the Eighth Amendment." Whitley v. Albers, 475 U.S. 312, 319, 89 L. Ed. 2d 251, 106 S. Ct. 1078 (1986) (internal quotations and citations omitted). In considering whether an Eighth Amendment violation has occurred, the Court must examine both the objective and subjective components of the claim.
The objective component of the alleged violation relates to the seriousness of the injury. The Eighth Amendment excluded from constitutional recognition de minimis uses of physical force, provided that the use of the force is not of a sort repugnant to the conscience of mankind. The subjective component relates to whether the defendant possessed a "wanton" state of mind when engaging in the alleged misconduct.
Branham v. Meachum, 77 F.3d 626, 630 (2d Cir. 1996) quoting Hudson v. McMillian, 503 U.S. 1, 117 L. Ed. 2d 156, 112 S. Ct. 995 (1992) (internal citations and quotations omitted). What must be established with respect to each component "varies according to the nature of the alleged constitutional violation." Hudson, 503 U.S. at 5.
The objective component of an Eighth Amendment claim arising from allegations of excessive use of force requires only that the plaintiff establish he suffered more than de minimis pain or injury. Hudson, 503 U.S. at 8. Duamutef has established the objective component of an Eighth Amendment claim. His injuries were more than de minimis and far more significant than those found sufficient by the Supreme Court to establish the objective component in Hudson.
The subjective component of an Eighth Amendment claim requires that the offending conduct be "wanton". "Wantonness does not have a fixed meaning, but rather must be determined in relation to the type of conduct on which the suit is based." Robins v. Meecham, 60 F.3d 1436, 1440 (9th Cir. 1995). In the context of force used to quell a prison disturbance, prison officials must often act "in haste, under pressure and frequently without the benefit of a second chance." Whitley v. Albers, 475 U.S. at 320. Accordingly, in these circumstances, in order to prevail on an Eighth Amendment claim, Duamutef must prove that force was not applied in a "good faith effort to maintain or restore discipline" but instead was applied "maliciously and sadistically for the very purpose of causing harm." Id. at 320-321 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied, 414 U.S. 1033 (1973)). Several factors must be examined in determining whether prison officials acted maliciously and sadistically. These factors include:
 the need for application of force,  the relationship between that need and the amount of force used,  the threat "reasonably perceived by the responsible officials," and  "any efforts made to temper the severity of the forceful response."
Hudson, 503 U.S. at 7. (citations omitted).
Viewing the trial evidence in the light of these established legal principles, I find that the plaintiff has failed to demonstrate that the application of force used on the morning of February 10, 1990 was applied "maliciously and sadistically" and therefore his Eighth Amendment claim must fail. Indeed, if anything, the evidence demonstrated that the only malicious and sadistic use of force used that morning was not meted out by the defendants, but by the plaintiff.
Initially I note that Duamutef's testimony that he was subjected to an unprovoked and savage physical beating at the hands of numerous correctional officers both in the "B" corridor and again in the prison infirmary was implausible and unconvincing. According to Duamutef, the motive for the defendants to beat him arises only from his intention to file a class action lawsuit against Attica officials in relation to the living conditions imposed on "keeplock" inmates. Yet, on cross-examination, Duamutef conceded that he never informed any of the defendants of his plan to file a class action lawsuit, none of the defendants were in a position to change institutional policy regarding "keeplock" inmates, none of the defendants had ever filed an incident report against him in prison, none of the defendants had ever been a defendant in a previous lawsuit filed by him and, indeed, none of the defendants had ever even had any prior substantive contact with him. To suggest that these seven defendants, who were working in different areas of the prison, with different responsibilities and duties, somehow planned to beat the plaintiff unconscious in front of other inmates and prison staff was simply not credible.
Plaintiff's claim that he never struck a single blow to any correction officer that morning was similarly unconvincing. The injuries suffered by the defendants and others indicate an infliction of brutality on a scale far greater than suffered by plaintiff. Defense witnesses identified Duamutef as striking repeated blows against prison guards and their first hand observations, when viewed in conjunction with the injuries sustained by the guards, convinces me that their testimony was credible. Duamutef himself testified that he has a black belt in three different forms of martial arts. The injuries sustained by the guards, including many of the defendants, pay tribute to the fighting skills possessed by Duamutef. The testimony of the injured defendants as to how Duamutef used a baton to skillfully attack each of them until he was finally subdued was detailed and convincing. While there were some differences among the defendants accounts, those differences were not substantive and indeed were not unexpected given the tact that the events in the "B" block corridor were "occurring rapidly and in a highly charged atmosphere." Haywood v. Koehler, 78 F.3d 101, 105 (2d Cir. 1996). Duamutef's claim that he lost consciousness after being beaten by the defendants in the corridor and again in the infirmary was not credible given the strength of the opposing testimony. Even if the Court discounts the testimony of the defendants who observed Duamutef yelling and struggling after being subdued, several non-party witnesses (Louis Lang, Thomas Edwards and Robert Kilpatrick) also observed Duamutef fully conscious in both the "B" corridor and in the infirmary.
Based on the evidence adduced at trial and my determinations as to the credibility of the witnesses presented, it is my view that what happened in the "B" corridor on the morning of February 10, 1990 was nothing short of a prison riot instigated and implemented by Duamutef and fellow inmate Price. While inmate Price was subdued within seconds, Duamutef's skills in the martial arts permitted him to wreak havoc and cause serious injuries to numerous guards responding to the disturbance.
The conduct of each of the defendants was reasonable and appropriate given the obvious need for the application of force to quell the melee and subdue the plaintiff. "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." Bell v. Wolfish, 441 U.S. 520, 547, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979). When the "ever present potential for violent confrontation and conflagration ripens into actual unrest and conflict, the admonition that a prisons's internal security is peculiarly a matter normally left to the discretion of prison administrators carries special weight." Whitley v. Albers 475 U.S. 312, 321, 89 L. Ed. 2d 251, 106 S. Ct. 1078 (1986) (emphasis in original)(internal quotations and citations omitted.) It must be remembered that guards confronted with a prison disturbance, and, as here, an inmate using a prison issued lethal weapon, must make their decisions how to diffuse the situation "in haste, under pressure and frequently without the luxury of a second chance." Whitley v. Albers, 475 U.S. at 320. It is without hesitation that I find that the plaintiff failed to meet his burden of proof on the claimed violation of the Eighth Amendment.1a
The core judicial inquiry which this Court must make is "whether force was applied in a good faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Whitley, 475 U.S. at 320-321. Based on the evidence presented at trial, I find that the force used by the defendants towards plaintiff on February 10, 1990 was applied in order to protect the safety of other inmates as well as the staff of the correctional facility and was not performed maliciously and sadistically to cause harm. I therefore determine and direct that plaintiff's complaint be and hereby is dismissed.
Jonathan W. Feldman
United States Magistrate Judge
DATED: Rochester, New York
April 26, 1996