Rehearing Granted and Rehearing En Banc Granted May 27, 1971.
GOLDBERG, Circuit Judge:
Our locale is Natchez, Mississippi, where the mood in the fall of A.D. 1965 was anything but irenic. Our story concerns the arrest and subsequent detention of participants in racial protest demonstrations. According to the undisputed facts those arrested were subjected to sub-human treatment which beggars justification and taxes credulity. Finding ourselves unable to sustain the verdict of the jury below, we reverse and render judgment as to liability of the defendants and remand for the assessment of damages due the plaintiffs.
While many peripheral matters in this case are hotly contested, the central and basic facts are largely uncontradicted. Relying solely on stipulations and undisputed testimony, we summarize the sordid details.
On October 2, 3, and 4, 1965, plaintiffs and many others paraded in Natchez to publicize their grievances, particularly discrimination on account of race. At the time a Natchez ordinance prohibited parades without the written permission of the Chief of Police. Natchez, Miss. Parade Ordinance of May 26, 1964, Ordinance Book F, at 395. The ordinance was later found unconstitutional, but at that time it had not been so declared.
Shortly after the march commenced on Saturday morning, October 2, defendant Robinson, Natchez Chief of Police, and defendants Rickard, Cowart and Beach,
Late that Saturday night approximately 150 of those held at the auditorium were transported by bus over 200 miles to the Mississippi State Penitentiary at Parchman. Mississippi Highway Safety Patrolmen provided the escort.
Prison personnel were directed by Breazeale to process the Natchez protesters under the "standard" treatment accorded prisoners in the maximum security unit. Though there is some dispute as to exactly what this treatment entailed, the undisputed evidence reveals the following.
On arrival all male prisoners were required to strip naked and all women prisoners were ordered to remove their shoes, stockings, sweaters, coats, jewelry, and wigs. All were compelled to consume a laxative and were deprived of all personal belongings, including sanitary napkins and medicines. The prisoners were then led to the cells. Up to eight persons were placed in each cell, which contained two steel bunks without mattresses or other bedding, a toilet without a seat, and a washbasin. There were no towels or soap and there was inadequate toilet paper. The temperature ranged from 60 to 70 degrees, the chill being aggravated by exhaust fans which blew intermittently on the occupants. Some
On Sunday morning, October 3, and Monday evening, October 4, more protest marchers were arrested and detained in Natchez. Nearly 100 were subsequently transported to Parchman and given similar treatment to that accorded the first group of prisoners. Plaintiffs, after individually posting $200 property bonds, were released on Monday, October 4, Tuesday, October 5, and on Wednesday, October 6.
On February 17, 1966, a complaint was filed on behalf of 68 adults and 84 minors, who had been detained in Parchman that October, against Chief of Police Robinson, Police Officers Rickard, Cowart, Beach, and Flowers, Fire Chief Cameron, Superintendent Breazeale, J. J. Nosser, Mayor of Natchez, and T. B. Birdsong, Commissioner of Public Safety. That complaint alleged that plaintiffs were falsely imprisoned and subjected to cruel and unusual punishment, and sought monetary damages under 42 U.S.C.A. § 1983. An identical complaint on behalf of 11 additional persons was filed on October 1, 1966. Amended complaints were filed in each action on December 6 and 9, 1966, alleging false imprisonment and other torts under Mississippi law. The actions were consolidated and eventually ordered to trial in June of 1969, solely on the issue of liability. A jury returned a verdict for defendants, and plaintiffs' subsequent motions for judgment notwithstanding the verdict or alternatively for a new trial were overruled. Plaintiffs now appeal from the district court's denial of those motions.
Plaintiffs rely on 42 U.S.C.A. § 1983 and Mississippi tort law joined under the doctrine of pendent jurisdiction to sustain their contention that defendants should be held liable as a matter of law.
Since Monroe v. Pape, 1961, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492, it has been clear that section 1983
Furthermore, the doctrine of pendent jurisdiction permits a consideration of the related state claims. The court below exercised its discretion to join the state claims, an action justified by the Supreme Court's decision in UMW v. Gibbs, 1966, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218:
See also Whirl v. Kern, 5 Cir. 1969, 407 F.2d 781, cert. denied, 396 U.S. 901, 90 S.Ct. 210, 24 L.Ed.2d 177. The federal claims here are substantial, and both the federal and state counts, grounded upon the incarceration and treatment of plaintiffs, arise out of "a common nucleus of operative fact." Jurisdiction being satisfied, we turn to the merits of the various allegations.
Plaintiffs' first contention is that as a matter of law the trial court should have granted judgment on their claim that their treatment at Parchman constituted cruel and unusual punishment, unlawful under federal and state law.
The cruel and unusual punishment clause of the Eighth Amendment is applicable to the states through the due process clause of the Fourteenth Amendment, Robinson v. California, 1962, 370 U.S. 660, 82 S.Ct. 1417, 8 L. Ed.2d 758, and thus a violation of its mandate may constitute a cause of action cognizable in federal court under section 1983. Wright v. McMann, 2 Cir. 1967, 387 F.2d 519; Jordan v. Fitzharris, N.D.Cal.1966, 257 F.Supp. 674.
Defendants' primary defense is that the matter of plaintiffs' treatment at Parchman was one of internal prison discipline, not reviewable by the courts. It is true that the federal courts entertain some reluctance to interfere with a prison's internal discipline. See Roy v. Wainwright, 5 Cir. 1969, 418 F.2d 231; Granville v. Hunt, 5 Cir. 1969, 411 F.2d 9, 12; Schack v. Florida, 5 Cir. 1968, 391 F.2d 593, cert. denied, 392 U.S. 916, 88 S.Ct. 2080, 20 L.Ed.2d 1376. This policy is based on the fear that judicial scrutiny of the decisions of prison officials would undermine the authority of those officials and is reinforced by the view that "lawful incarceration may properly operate to deprive the convict of certain rights which would otherwise be his to enjoy," Jackson v. Bishop, 8 Cir. 1968, 404 F.2d 571, 576. However, this chariness does not mean that prison officials have unfettered discretion in the treatment of their prisoners. As then Circuit Judge Blackmun phrased it in Jackson v. Bishop, supra, 404 F.2d at 577:
We should be even more alert where one of the basic underpinnings of the "hands off" policy is absent. Incarceration after conviction is imposed to punish, to deter, and to rehabilitate the convict. See Rudolph v. Alabama, 1963, 375 U.S. 889, 84 S.Ct. 155, 11 L.Ed.2d 119 (Goldberg, J., dissenting). Some freedom to accomplish these ends must of necessity be afforded prison personnel. Conversely, where incarceration is imposed prior to conviction, deterrence, punishment, and retribution are not legitimate functions of the incarcerating officials. Their role is but a temporary holding operation, and their necessary freedom of action is concomitantly diminished.
Plaintiffs here were unconvicted misdemeanants held for bond. The purpose of incarceration of them was simply detention in order to assure presence at trial. Punitive measures in such a context are out of harmony with the presumption of innocence. Despite their pigmentation or political beliefs the accused here cannot be treated as though convicted of heinous crimes. In Butler v. Crumlish, E.D.Pa.1964, 229 F.Supp. 565, 567, quoting Commonwealth v. Brines, 1920, 29 Pa.Dist. & Co.R. 1091, the court phrased the matter as follows:
We must therefore review the cruel and unusual punishment allegations with the thought in mind that the treatment involved was inflicted upon persons not convicted of any crime.
The cruel and unusual punishment clause is a nonstatic, moral precept designed to curb treatment which offends contemporary standards of decency. Until the early part of this century, the ban on cruel and unusual punishment had been interpreted to apply only to outrageous and barbarous practices. See generally Goldberg & Dershowitz, Declaring the Death Penalty Unconstitutional, 83 Harv.L.Rev. 1773 (1970); Note, The Cruel and Unusual Punishment Clause and the Substantive Criminal Law, 79 Harv.L.Rev. 635 (1966). The concept has now expanded, but its precise boundaries are still unclear. Wilkerson v. Utah, 1878, 99 U.S. 130, 135-136, 25 L.Ed. 345 ("Difficulty would attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishment shall not be inflicted. * * *"); Trop v. Dulles, 1958, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630. Courts have relied upon such imprecise
Despite the subjective content of such notions, it is clearly accepted that the amendment prohibits certain hard core inhuman treatment. Trop v. Dulles, supra, 356 U.S. at 101, 78 S.Ct. 590. And, since Cooper v. Pate, 1964, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (per curiam), it has been clear that inmates have recourse to the amendment's protections through section 1983. See generally Hirschkop & Millemann, The Unconstitutionality of Prison Life, 55 Va.L.Rev. 795 (1969).
In this light we think that the undisputed treatment accorded plaintiffs in the maximum security unit at Parchman violated even those minimal "standards of decency" mandated in the treatment of convicted felons, Trop v. Dulles, supra, 356 U.S. at 100, 78 S.Ct. 590, much less the standards which must be afforded those as yet unconvicted of misdemeanor offenses. It would be well to quote in full that portion of the pre-trial stipulation relating to the treatment at Parchman:
These admitted facts standing alone come within the rationale of a number of cases which have found a violation of the Eighth Amendment. The situation becomes even more aggravated by additional undisputed facts, including forced nudity of some of plaintiffs for up to 36 hours, inadequate hygienic facilities, an absence of bedding, cramped, cold quarters and physical and mental abuse. On similar facts, but involving convicted inmates, the court in Knuckles v. Prasse, E.D.Pa.1969, 302 F.Supp. 1036, held cruel and unusual a period of detention of 2½ days in cramped quarters, without clothing or bedding, and without toilet articles:
In Wright v. McMann, supra, the court condemned the use of a "strip cell," once again utilized against convicted inmates:
See also Sostre v. Rockefeller, S.D.N.Y. 1970, 312 F.Supp. 863; Jordan v. Fitzharris, supra.
We think the language of the court in Hancock v. Avery, M.D.Tenn.1969, 301 F.Supp. 786, is particularly instructive:
Defendants have offered no real justification for the treatment imposed at Parchman other than to contend that the treatment was merely the standard operating procedure for the maximum security unit.
Similarly, liability should be imposed under the pendent state claims, for Mississippi recognizes that its prisoners must be afforded civilized treatment. Thus, the general common law duty of the custodian of a prisoner to take proper care of him is specifically imposed on the penitentiary superintendent in Mississippi by statute. Miss.Code Ann. § 7930 (Supp.1968).
Plaintiffs next allege that the course of events which transpired in October, 1965, constitute federal and state causes of action for false imprisonment. While such an action rests basically in tort, usually the province of state law, it is now clear that false imprisonment can be the type of "constitutional tort" cognizable under section 1983. See Whirl v. Kern, supra. We therefore turn to the various grounds which plaintiffs contend require a finding of false imprisonment as a matter of federal and state law.
A. False Arrest
Plaintiffs contend that their arrest for parading without a permit is actionable because the ordinance under which the arrests were made was unconstitutional. The Natchez parade ordinance made it "unlawful for any person or persons without the written permission of the Chief of Police of the City of Natchez * * * to conduct or participate in any parade or marching" on the city streets or sidewalks. Such an ordinance was plainly unconstitutional. See, e. g., Hague v. CIO, 1939, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423; Cox v. Louisiana, 1965, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471, but the particular Natchez enactment had not been considered judicially at the time the plaintiffs were arrested. See generally Guyot v. Pierce, 5 Cir. 1967, 372 F.2d 658.
Plaintiffs' claim that the police officers' conduct constituted false arrest as a matter of federal law is governed by the Supreme Court's decision in Pierson v. Ray, 1967, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288. There the Court held that a police officer could not be held liable under section 1983 for false arrest because of an unconstitutional statute if he acted with probable cause and with a good faith belief in the validity of the statute. The Court stated:
Plaintiffs argue that the police officers could not have reasonably believed the ordinance in question was constitutional. It is true that numerous judicial decisions prior to 1965 had made it clear that statutes which conferred unbridled discretion upon a public official to grant or deny the exercise of expressive activity were invalid. Simple unawareness of the names and dates of those relevant decisions would not confer immunity. We do not think, however, that the facts of this case warrant finding as a matter of law that Robinson knew of the unconstitutionality of the ordinance. The Pierson test is a subjective one, which of necessity raises questions of credibility, usually within the province of the jury. Here there was testimony from Robinson that he believed he was doing his duty as a peace officer in arresting plaintiffs. While the status of constitutional development is a relevant countervailing consideration, at the time of the occurrences at issue here, there was no judicial decision from either this court or the Mississippi state courts explicitly ruling on either the Natchez or identical ordinances. See Guyot v. Pierce, supra; King v. City of Clarksdale, Miss.1966, 186 So.2d 228. We therefore think that there was sufficient evidence to raise an issue of the Pierson defense. The court below submitted this issue under proper instructions, and we are thus bound by the jury determination of no liability.
A similar result obtains under the pendent state claim for Mississippi follows the Pierson rule, which is itself grounded in the common law. See Golden v. Thompson, Miss.1943. 11 So.2d 906.
B. Failure to Take Plaintiffs Before a Magistrate
The record clearly reveals that defendants neither took any of plaintiffs before a judicial officer nor made any attempt to do so. Plaintiffs thus argue that even if the initial arrest was valid under Pierson, the subsequent incarceration is actionable. While the law does not exact constitutional erudition from those unschooled in jurisprudence, plaintiffs contend that we must compel respect for individual liberty to the extent
It is true that unreasonable or unnecessary delay in bringing a prisoner before a magistrate, despite good faith, may give rise to an action for false imprisonment. Cooley v. Stone, 1969, 134 U.S.App.D.C. 317, 414 F.2d 1213; Czap v. Marshall, 7 Cir. 1963, 315 F.2d 766, cert. denied, 375 U.S. 942, 84 S.Ct. 348, 11 L.Ed.2d 273; Moran v. City of Beckley, 4 Cir. 1933, 67 F.2d 161; Fulford v. O'Connor, 1954, 3 Ill. 490, 121 N.E.2d 767; 35 C.J.S. False Imprisonment § 30. The cause of action arises from the uniform requirement, both state and federal, of prompt presentation before a magistrate. See, e. g., Fed.R.Crim.P. 5(a), as construed in Mallory v. United States, 1957, 354 U.S. 449, 77 S.Ct. 1356, 1 L. Ed.2d 1479; Czap v. Marshall, supra, 315 F.2d at 770.
Nevertheless, we hold that plaintiffs have failed to state a cause of action under section 1983, for they have not demonstrated a violation of their constitutional rights. As we said in Kulyk v. United States, 5 Cir. 1969, 414 F.2d 139, 141-142, "[t]he right under the federal rules to be promptly taken before a magistrate has not been given constitutional status and has not been applied to persons in state custody." See also Edwards v. Holman, 5 Cir. 1965, 342 F.2d 679, cert. denied, 384 U.S. 1017, 86 S.Ct. 1934, 16 L.Ed.2d 1039. Similarly, even though the failure to take plaintiffs before a magistrate violates Mississippi law, it does not rise to the status of a denial of due process. Scarbrough v. Dutton, 5 Cir. 1968, 393 F.2d 6; Baxter v. Rhay, 9 Cir. 1959, 268 F.2d 40; United States ex rel. Weber v. Ragen, 7 Cir. 1949, 176 F.2d 579, cert. dismissed, 338 U.S. 809, 70 S.Ct. 49, 94 L.Ed. 489. But see Goodwin v. Page, E.D.Okl.1969, 296 F.Supp. 1205, aff'd on other grounds, 10 Cir., 418 F.2d 867. Plaintiffs' federal allegations therefore must fall.
The same result does not obtain, however, under plaintiffs' pendent state claim. Mississippi law clearly holds that delay in bringing a prisoner before a magistrate may give rise to an action for false imprisonment. Dunning v. State, 1965, 251 Miss. 766, 171 So.2d 315, cert. denied, 386 U.S. 993, 87 S.Ct. 1310, 18 L.Ed.2d 339; Sheffield v. Reece, 1947, 201 Miss. 133, 28 So.2d 745; Anderson v. Beck, 1886, 64 Miss. 113, 8 So. 167. By statute "every person making an arrest shall take the offender before the proper officer without unnecessary delay for examination of his case." Miss.Code Ann. § 2473. What constitutes unreasonable or unnecessary delay, of course, must be determined from the facts and circumstances of each case. See Czap v. Marshall, supra.
Defendants have attempted to meet their burden of justification by arguing that the failure was reasonable due to the large number of arrests, the weekend days on which the arrests were made, and the availability of a bonding procedure.
Plaintiffs have raised other claims which, they contend, also compel a finding of liability for false imprisonment.
We come now to the question of the responsibility of the individual defendants in light of our holding that plaintiffs should be granted judgment on liability (1) under state law for failure to bring them before a magistrate, and (2) under federal and state law for infliction of cruel and unusual punishment at Parchman.
Plaintiffs argue that each defendant is liable for the entire wrong. Robinson, assisted by Rickard, Cowart, Beach, Flowers, and Cameron, was in charge of the detention in Natchez and was responsible for the failure to attempt to secure a magistrate. These defendants also were responsible for the delivery of the
Defendants, on the other hand, would have us attentuate responsibility. But to follow defendants' logic to its extreme would result in the total exculpation of defendants despite their participation in a chain of events which we have found to be illegal and unjustified.
We instead begin by emphasizing that section 1983 "should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions." Monroe v. Pape, supra, 365 U.S. at 187, 81 S.Ct. at 484, 5 L.Ed.2d 492; Whirl v. Kern, supra. The pendent state grounds incorporate the similar rule of Mississippi. See Smith v. Patterson, Miss.1952, 214 Miss. 87, 58 So.2d 64; Bacon v. Bacon, Miss.1899, 76 Miss. 458, 24 So. 968. This general rule of liability provides that "all those who, in pursuance of a common plan or design to commit a tortious act, actively take part in it, or further it by cooperation or request, or who lend aid or encouragement to the wrongdoer, or ratify and adopt his acts done for their benefit, are equally liable with him." W. Prosser, Law of Torts 59 (3d ed. 1964). So long as there is "an intent to bring about a result which will invade the interests of another in a way that the law will not sanction" good faith is no defense. Id. at 31; see Whirl v. Kern, supra; State for Use of Powell v. Moore, 1965, 252 Miss. 471, 174 So.2d 352.
In view of these principles we think that the conduct involved here must be viewed as a continuum, beginning with the illegal incarceration for failure to bring plaintiffs before a magistrate and ending with the inhuman treatment at Parchman. Each incident flowed proximately and naturally into the other so that each defendant who played "a substantial role in bringing about the results" is liable jointly and severally for the entire injury and wrong. See Nesmith v. Alford, 5 Cir. 1963, 318 F.2d 110, 119, cert. denied, 375 U.S. 975, 84 S.Ct. 489, 11 L.Ed.2d 420. Thus, Chief Robinson and police officers Rickard, Cowart, Beach, and Flowers
On the other hand, we must sustain the findings of no liability on the part of Mayor Nosser and Commissioner of Public Safety Birdsong. Plaintiffs argue that Mayor Nosser, upon learning of the occurrences in Natchez, either should have called a special meeting of the Board of Aldermen in order to try to persuade them to rescind the transferral to Parchman or should have attempted to persuade Breazeale to release the prisoners. However, we do not think that Mayor Nosser's failure to act renders him liable. The record reveals that Nosser learned of what was happening only on Sunday, October 5, and at that time made it clear that he opposed the conduct of the defendants. There is no evidence that he could have called together a quorum of the Board of Aldermen speedily or that, once called, his point of view would have prevailed. Indeed, the evidence is to the contrary. Three of the six aldermen, in addition to the named defendants, directly or indirectly participated in the events at the heart of this case. Without the support of the Board, the Mayor was powerless to halt the course of events since his municipal powers were circumscribed. In such a situation, we do not find that Nosser had a duty to act under penalty of damages. See W. Prosser, supra, at 338-39. He cannot be required to do an act which would have been useless or ineffective.
It was stipulated that Commissioner Birdsong was charged by law with the duty of supervision and control of all Mississippi Highway Safety Patrolmen.
Accord, Burnett v. Short, S.D.Tex.1970, 311 F.Supp. 586; Sanberg v. Daley, N. D.Ill.1969, 306 F.Supp. 277; Mack v. Lewis, S.D.Ga.1969, 298 F.Supp. 1351; Patrum v. Martin, W.D.Ky.1968, 292 F.Supp. 370; Pritchard v. Downie, E.D. Ark.1963, 216 F.Supp. 621, aff'd on other grounds, 8 Cir., 326 F.2d 323; cf. Robertson v. Sichel, 1888, 127 U.S. 507, 8 S.Ct. 1286, 32 L.Ed. 203. We think that on the facts of this case this rule is equally applicable to defendant Birdsong and requires a finding of no liability on his part.
Defendants would have us extend this finding of nonliability by arguing that they are protected by the doctrine of official immunity from damages. See generally Jaffe, Suits Against Governments and Officers: Damage Actions, 77 Harv.L.Rev. 209 (1963); Note, The Doctrine of Official Immunity Under the Civil Rights Act, 68 Harv.L.Rev. 1229 (1955). In Norton v. McShane, 5 Cir. 1964, 332 F.2d 855, cert. denied, 380 U.S. 981, 85 S.Ct. 1345, 14 L.Ed.2d 274, we found that various federal executive
While official immunity has been extended under section 1983 to legislative and judicial officers, Pierson v. Ray, supra; Tenney v. Brandhove, 1951, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019; Martone v. McKeithen, 5 Cir. 1969, 413 F.2d 1373, there has been a reluctance to stretch the doctrine too far, as was well expressed in Jobson v. Henne, 2 Cir. 1966, 355 F.2d 129, 133-134 (Footnotes omitted):
In the present case there can be no question of official immunity. The Mississippi common law recognizes no immunity for sheriffs, wardens, police officers, or firemen charged with false imprisonment or tortious treatment of prisoners. See, e. g., Sheffield v. Reece, supra; Farmer v. State, supra; State for Use of Powell v. Moore, supra; Vice v. Holley, 1906, 88 Miss. 572, 41 So. 7. Likewise, there is no immunity for these officials under section 1983. E. g., Whirl v. Kern, supra (sheriff); Joseph v. Rowlen, 7 Cir. 1968, 402 F.2d 367 (police officers); Cohen v. Norris, 9 Cir. 1962, 300 F.2d 24 (same); Wright v. McMann, supra (warden); Sostre v. Rockefeller, supra (same); Roberts v. Williams, supra (same); Beauregard v. Wingard, S.D. Cal.1964, 230 F.Supp. 167, 174 (same); see Monroe v. Pape, supra; Nesmith v. Alford, supra.
In conclusion, we have found that plaintiffs should be granted judgment as to liability (1) under section 1983 for cruel and unusual punishment and (2) under Mississippi state law for false imprisonment and mistreatment at Parchman. We hold that under the federal section 1983 claim defendants Robinson, Rickard, Cowart, Beach, Flowers, Cameron, and Breazeale are liable jointly and severally for the damages flowing from the illegal treatment at Parchman. Under the pendent state claims these defendants are liable jointly and severally for the damages flowing from the illegal incarceration following the arrests and the resulting treatment at Parchman. Judgment is reversed and rendered as to liability, leaving open for trial the question of damages, compensatory and punitive.
Plaintiffs finally urge us to reverse the trial court's dismissal of the action prior to trial, with prejudice, as to 26 of the initial plaintiffs. This dismissal was ordered because of failure to answer written interrogatories propounded by defendants under Fed.R.Civ.P. 33.
Fed.R.Civ.P. 37, as it read in 1969,
See also Bon Air Hotel, Inc. v. Time, Inc., 5 Cir. 1967, 376 F.2d 118, 121, cert. denied, 393 U.S. 815, 89 S.Ct. 225, 21 L. Ed.2d 179 ("The dismissal of an action with prejudice is a drastic remedy and should be applied only in extreme circumstances").
We hold that the trial court erred in dismissing the action as to the 26 plaintiffs. The court made no finding of "willful disobedience," "gross indifference," or "deliberate callousness," and we can find no evidence of such. The record shows that while this action was commenced in 1966 by over 150 plaintiffs, the defendants took no discovery whatsoever until April 7, 1969, less than two months prior to trial. Defendants then submitted to each plaintiff 37 interrogatories and numerous subquestions, including several irrelevant questions which were stricken by the court after the plaintiffs moved for a protective order. Plaintiffs were ordered to answer the remaining interrogatories by May 22, which date was extended 24 hours. The record reveals that counsel made a good faith effort to secure the required answers, but simply ran out of time. Plaintiffs' counsel were able to compile over 300 pages of discovery, but simply were unable to contact all plaintiffs in such a short time, especially since many of plaintiffs had moved from Natchez after the passage of 3 years. Some milder sanction might have been appropriate for failure to answer, see Societe Internationale Pour Participations Industrielles et Commerciales, S. A. v. Rogers, supra, 357 U.S. at 208, 78 S.Ct. 1087. However, considering the large number of plaintiffs, the length of the interrogatories, and the dilatoriness on the part of defendants, cf. B. F. Goodrich Tire Co. v. Lyster, supra, we think the drastic remedy applied here was unjustified.
We do not intend that plaintiffs should profit from failure to respond to discovery. Our determinations as to liability, however, would not be affected by the unanswered interrogatories, the information which was sought being largely stipulated or irrelevant to our decision. On remand for a determination of
Reversed and remanded in part.
BELL, Circuit Judge (concurring specially):
I concur specially to indicate my agreement with the result reached by the majority, and also to record a continuing belief that all police and ancillary personnel in this nation, whether state or federal, should be subject to the same accountability under law for their conduct. In a sense, this is a resurrection of the dissenting opinion of Judge Gewin in Norton v. McShane, 5 Cir., 1964, 332 F.2d 855, 863.
Here we properly hold defendants responsible for cruel and unusual punishment in violation of the Civil Rights Statute, 42 U.S.C.A. § 1983. They were acting under color of state law but in Norton v. McShane, we held the same law inapplicable to federal officers charged with conduct equally reprehensible. We went further and found the federal officers immune from accountability under the common law cause of action. I agreed then with Judge Gewin's strong dissent to the effect that the federal officers should not have been treated with impunity. It is regrettable that we have one law for Athens and another for Rome.
Such a condition is difficult for the average citizen to understand and makes an already complex system of federalism needlessly more complex. In a case involving federal officers, I would terminate this anomaly by seeking to overrule Norton v. McShane to the end of making all police and jailers subject to the same standard of accountability in their treatment of the citizen.
ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC
Before JOHN R. BROWN, Chief Judge, and TUTTLE, WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, INGRAHAM and RONEY, Circuit Judges.
BY THE COURT:
A member of the Court in active service having requested a poll on the application for rehearing en banc and a majority of the judges in active service having voted in favor of granting a rehearing en banc,
It is ordered that the cause shall be reheard by the Court en banc on briefs without oral argument. The Clerk will specify a briefing schedule for the filing of supplemental briefs.
Similarly, in Schack v. Florida, supra, 391 F.2d at 594, we emphasized:
See also Miss.Code Ann. §§ 7921, 7932 (Supp.1968); cf. Miss.Code Ann. § 7915 (Supp.1968).
(b) Failure to Comply With Order.
(1) Contempt. If a party or other witness refuses to be sworn or refuses to answer any question after being directed to do so by the court in the district in which the deposition is being taken, the refusal may be considered a contempt of that court.
(2) Other Consequences. If any party or an officer or managing agent of a party refuses to obey an order made under subdivision (a) of this rule requiring him to answer designated questions, or an order made under Rule 34 to produce any document or other thing for inspection, copying, or photographing or to permit it to be done, or to permit entry upon land or other property, or an order made under Rule 35 requiring him to submit to a physical or mental examination, the court may make such orders in regard to the refusal as are just, and among others the following:
If a party or an officer or managing agent of a party wilfully fails to appear before the officer who is to take his deposition, after being served with a proper notice, or fails to serve answers to interrogatories submitted under Rule 33, after proper service of such interrogatories, the court on motion and notice may strike out all or any part of any pleading of that party, or dismiss the action or proceeding or any part thereof, or enter a judgment by default against that party.
Rule 37 was revised in 1970 to read in relevant particulars as follows:
(b) Failure to comply with order.
(1) Sanctions by court in district where deposition is taken. If a deponent fails to be sworn or to answer a question after being directed to do so by the court in the district in which the deposition is being taken, the failure may be considered a contempt of that court.
(2) Sanctions by court in which action is pending. If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b) (6) or 31(a) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this rule or Rule 35, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence;
(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;
(D) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination;
(E) Where a party has failed to comply with an order under Rule 35(a) requiring him to produce another for examination, such orders as are listed in paragraphs (A), (B), and (C) of this subdivision, unless the party failing to comply shows that he is unable to produce such person for examination.
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(d) Failure of party to attend at own deposition or serve answers to interrogatories or respond to request for inspection. If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b) (6) or 31(a) to testify on behalf of a party fails (1) to appear before the officer who is to take his deposition, after being served with a proper notice, or (2) to serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories, or (3) to serve a written response to a request for inspection submitted under Rule 34, after proper service of the request, the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under paragraphs (A), (B), and (C) of subdivision (b) (2) of this rule. In lieu of any order or in addition thereto, the court shall require the party failing to act or the attorney advising him or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
The failure to act described in this subdivision may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided by Rule 26(c).