Opinion for the Court filed by Circuit Judge WALD.
Opinion filed by Circuit Judge MacKINNON, concurring in part and dissenting in part.
WALD, Circuit Judge:
On November 28, 1976, during the afternoon dormitory count, a gang of inmates
Appellant now appeals from three of the trial court's rulings: its decision to direct a verdict in favor of the United States on the negligence count; its decision to direct a verdict in favor of the District on the constitutional count; and its grant of the judgment n. o. v. in favor of the District on the negligence count. We affirm the first two of these rulings, but reverse the third. We find that sufficient evidence did exist to go to the jury on the question of the District's negligence in allowing the attack to take place. However, because we find that a directed verdict was warranted with respect to one of the theories of liability presented
I. THE STANDARD OF REVIEW
The criteria for granting a motion for a directed verdict and for a judgment n. o. v. are identical.
Vander Zee v. Karabatsos, 589 F.2d 723, 726 (D.C.Cir.1978), cert. denied, 441 U.S. 962, 99 S.Ct. 2407, 60 L.Ed.2d 1066 (1979). When considering such a motion, all evidence must be "viewed in the light most favorable to the [non-moving party.]" Alden v. Providence Hospital, 382 F.2d 163, 165 (D.C.Cir.1967). See also Princemont Construction Corp. v. Smith, 433 F.2d 1217, 1220 (D.C.Cir.1970). Indeed, in any case "where fair-minded people might differ as to the conclusion appropriate," id., the court must submit the question to the jury. Thus, the question before us is whether reasonable persons could have concluded on the basis of the evidence presented at the trial that either the District or federal defendants were negligently responsible for the attack that resulted in plaintiff's injuries, or that the District had violated Murphy's constitutional rights.
II. THE CASE AGAINST THE UNITED STATES
The appellant sued the United States for damages under the Federal Tort Claims Act ("Act" or "FTCA"), 28 U.S.C. §§ 2671 et seq., which renders the United States liable for injuries "caused by the negligent or wrongful act or omission of any employee of the [United States] Government[.]" 28 U.S.C. § 1346(b). The appellant argues that the Attorney General and the Director of the Bureau of Prisons were negligent in two respects: first, in failing to ensure that Murphy was committed to a "reasonably safe" institution, and second, in failing to adequately supervise Murphy once he was placed in Lorton Reformatory.
A. Murphy's Placement in Lorton Youth Center
The appellant argues that the section of the Youth Corrections Act ("YCA" or "FYCA") under which he was sentenced, 18 U.S.C. § 5010(b),
The appellant first argues that under 18 U.S.C. §§ 5010-15 of the FYCA, the Attorney General was obligated to evaluate Murphy and commit him to the federal youth center best suited to his needs.
But second, even if the Attorney General retains a general obligation under this statutory scheme to assign Murphy to an "appropriate" institution,
B. The Attorney General's Duty to Supervise Murphy at Lorton
Appellant's second theory of federal liability, i. e., that the Attorney General or Director had a duty to supervise his care after commitment to Lorton Youth Center, likewise fails because that alleged duty too no longer exists. It was eliminated by the 1967 amendments to the FYCA. According to appellant, the Director had an obligation under the FYCA to "supervise youth offenders subsequent to their commitment and to insure that the objectives of the FYCA are met with regard to each youth offender."
The appellant also claims that the Director neglected his statutory duty under 18 U.S.C. § 5016 to periodically reexamine Murphy and report on his progress for purposes of granting a parole or transfer. Even a superficial reading of 18 U.S.C. § 5025, however, makes clear that the District now supervises the conditional release and discharge, as well as the treatment and rehabilitation, of District youth offenders committed to its facilities.
Id. See also H.R.Rep.No.387, 90th Cong., 1st Sess. 31, 39 (1967). District parole authorities, rather than the United States Parole Commission, are therefore responsible for making and evaluating the progress reports on which the conditional release and discharge decisions are made.
The 1967 amendment thus eliminates the Federal Government's responsibility for those very duties whose breach, according to the appellants, constituted negligence. The trial judge correctly concluded that "[a]ny attempt to read the District of Columbia Code in specific provisions with respect to the youth facilities here in the same fashion you read it with respect to the Youth Corrections Act nationally is incorrect.... There is no statutory responsibility[.]" Tr. 5/9/79 at 439. His direction of a verdict in favor of the Federal Government on this or any theory of liability argued below was therefore not in error.
III. THE CASE AGAINST THE DISTRICT OF COLUMBIA
A. The Constitutional Count
Though the appellant's complaint alleged several violations of fifth and eighth amendment rights, the only argument he presses on this appeal is that the District violated his eighth amendment right to be free of cruel and unusual punishment. Specifically, appellant argues that placement in a dormitory at Lorton Youth Center "in which violent prisoner assaults frequently occurred," and the District's subsequent failure to take reasonable precautions to protect him from such assaults, violated his constitutional right to be free from an unreasonable risk of assault. Brief for the Appellant With Respect to Appellee D.C. at 20.
The Supreme Court has laid out the standard of proof necessary to establish an eighth amendment violation. The Court has held that "deliberate indifference" of prison authorities to a prisoner's "serious" medical needs may constitute such "wanton infliction of unnecessary pain" as to be "`repugnant to the conscience of mankind,'" or incompatible with "`the evolving standards of decency that mark the progress of a maturing society.'" Estelle v. Gamble, 429 U.S. 97, 102-05, 97 S.Ct. 285, 290-91, 50 L.Ed.2d 251 (1976). The Court took pains in that opinion to distinguish between "negligen[ce]" or "an inadvertent failure," which does not invoke constitutional protections, and "deliberate indifference," which does. Id. at 105-06, 97 S.Ct. at 291-92. The district court here correctly concluded, and the appellant does not now challenge, that
Tr. 5/9/79 at 428.
However, as appellant correctly points out, this conclusion does not end the constitutional inquiry because the existence of "deliberate indifference" can be inferred from evidence that assaults are sufficiently pervasive to reasonably apprise prison officials of the need for protective measures. Under these circumstances the failure to institute protective measures can rise to the level of a constitutional violation. While a prisoner has no right to demand the level of protection necessary to render an institution assault-free (he is only entitled to "reasonable protection" from assaults, see note 18 supra), commitment to an institution where "terror reigns," or even where the "risk of ... assault [is] a serious problem of substantial dimensions," may violate the eighth amendment. See Jones v. Diamond, 636 F.2d 1364 at 1373 (5th Cir. 1981); Withers v. Levine, 615 F.2d 158, 161 (4th Cir.), cert. denied, 449 U.S. 849, 101 S.Ct. 136, 66 L.Ed.2d 59 (1980). But to prevail under such a constitutional theory, the prisoner must show that
Id. Not all prisoners need be subject to this fear. "It is enough that an identifiable group of prisoners do, if the complainant is a member of that group." Id.
However, we must agree with the district court that no such showing was made here. The sole evidence proffered, again, was the raw number of assaults (twenty) that occurred in Lorton Youth Center I (population 344), and the number (six) in Dormitory # 3 (population 100) where Murphy was housed during the 1976 calendar year, numbers we have already found insufficient in this case to prove unreasonableness. See p. 642 supra. Furthermore, the appellant made no attempt to show that the rate of assaults in this facility exceeded the norm for like institutions or that one identifiable group of inmates was especially susceptible to attack. See notes 19 & 20 supra. Particularly in view of the appellant's stipulation that he did not fear for his safety prior to the attack,
B. The Negligence Count
The appellant's last argument was that the Lorton Youth Center staff's negligence in three areas proximately caused his injury, thereby rendering the District liable for that injury. He alleged: 1) the staff failed to follow applicable count regulations in ways that facilitated the movement of at least one of Murphy's attackers into his dormitory wing;
Murphy v. United States, Civ. No. 78-251 (D.D.C. Apr. 30, 1980) (order granting judgment n. o. v.); R. 92 at 2.
We disagree with the court's decision to grant the judgment n. o. v. on two of the three theories of liability. Though we would not characterize the appellant's case on any of the three theories of negligence as strong, he did present expert testimony as to the applicable standard of care and the staff's alleged deviation from that standard in two of the three alleged areas of negligence.
1. Deviations from the Count Regulations
Prison officials count inmates several times each day to ensure that no one has escaped.
No one disputed the fact that on November 28, 1976, the staff allowed the residents of Dormitory # 3 off their wings following the completion of the dormitory count,
There was also contradictory testimony over whether the officer who went out on the porch after calling in the count violated his duty to stay inside the dormitory and ensure that inmates also stayed on their wings. According to the appellant's expert, each officer should have been patrolling one wing of the dormitory to ensure that no inmate left his wing during the count.
There was thus no question, and the trial judge did not conclude otherwise, that sufficient evidence existed to go to the jury on the issue of whether it was a negligent deviation from the prevailing standard of care
However, we do not find this reasoning satisfactory as a justification for overturning the jury's finding of negligent liability. There was testimony that the placement of both the officers
2. Tool Control
Murphy's attackers stabbed him 16 times and beat him; a doctor testified that the beating may have been administered with a blunt instrument. Tr. 5/8/79 at 333. There is no question but that the inmates should not have had access to such weapons; there is also no question that prison inmates typically strive and often manage to find, steal, or create many such weapons.
The Youth Center had detailed regulations governing tool access, tool return, and tool inventories to prevent inmates from utilizing tools as weapons.
The expert witness also testified that regular searches and shakedowns of the institution were essential for adequate tool control.
The attack on Murphy was perpetrated by armed inmates; without weapons of some sort, his attackers could not have inflicted the multiple stab wounds. Evidence existed from which a reasonable jury could have concluded that Lorton Youth Center's tool control program, designed to keep weapons out of inmates' hands precisely to forestall this type of attack, had been ignored by several guards in Murphy's dormitory. Where evidence of the failure to adhere to a reasonable standard of care exists, and the "injury which has in fact occurred is precisely the sort of thing that proper care on the part of the defendant would be intended to prevent," not only is the existence of proximate cause a jury question, but "the court can ... allow a certain liberality to the jury in drawing its conclusion." W. Prosser, Law of Torts 243 (4th ed. 1971).
3. The Classification of Pugh
The third and final allegation of negligence resulted from the Center's decision to release one of Murphy's attackers, Vaughn Pugh, from the Center's Adjustment Unit.
In contrast to his testimony regarding appellant's other allegations of negligence, appellant's expert did not state that anything about the decision to mainstream Pugh violated a "penological concept."
We are unwilling to hold under the circumstances here that evidence of a difference in judgment between experts as to the assaultive possibilities of an inmate constitutes evidence of negligence. When a decision requiring a difficult prediction of future behavior is shown to have been made in accordance with proper procedural safeguards and is substantively within a range of reasonableness, the burden of proving negligence cannot be said to have been met.
A party moving for a directed verdict or judgment n. o. v. bears a very heavy burden. He must prove that no reasonable person, after viewing all evidence in the light most favorable to the other side, could decide for that other side. The appellees successfully carried that burden with respect to most of appellant's allegations of liability. However, we must agree with the district judge's initial, rather than his post-verdict,
Reversed and remanded.
MacKINNON, Circuit Judge (concurring in part and dissenting in part):
I concur in the majority opinion insofar as it affirms the judgment of the district court but dissent from the ordered retrial of the case on the claim that the guard, in being on the porch after he announced his count, might be sufficiently negligent to constitute the proximate cause of the assault upon appellant by fellow inmates. Assault on inmates was not part of the risk that the procedure implementing the Count System
The majority opinion holds that the District of Columbia might be responsible for an assault upon one inmate by others at Lorton Reformatory because an "officer ... went out on the porch after calling in the [prisoner] count [thereby] violat[ing] his duty [under the "Count System"] to stay inside the dormitory and assure that inmates also stayed on their wings" during the count. Maj. op. at 647. According to appellant's theory "each officer should have been patrolling one wing of the dormitory to ensure that no inmate left his wing during the count." Id. (emphasis added).
However, as the majority opinion recognizes, id. at 646, the object of the counting procedure, upon which appellant bases his claim of negligence, was to obtain an accurate count of inmates. This objective was not in any way related to protecting inmates from assaults by other inmates. Thus, in my opinion, the district court properly granted judgment in favor of the District.
Even if it is assumed that the officer for a few moments was not positioned at the most advantageous location to implement the "Count System," he did not thereby breach any duty to the plaintiff that the "Count System" placed upon him. Whether the count was correct or not, and there is no showing that it was incorrect, the procedures for obtaining an accurate count were not directed at protecting plaintiff or other inmates from inmate assaults. Such facts created an issue of law for the court, which properly held that the negligence allegedly resulting from the claimed violation of the Count System was not the proximate cause of plaintiff's assault by a number of inmates which included one inmate from another wing.
Professor Prosser noted in an article which was a forerunner to his famous treatise on Torts:
Prosser, The Minnesota Court on Proximate Cause, 21 Minn.L.Rev. 19, 21 (1937). Prosser points to several cases in support of the rule that proximate cause is lacking "where harm results from a violation of a statute ... which was not designed to afford the plaintiff any protection." W. Prosser, Law of Torts 245 n.70 (4th ed. 1971).
151 N.W. at 544. The Vermont Supreme Court in Dervin v. Frenier, 91 Vt. 398, 100 A. 760 (1917), held that it was error to charge a jury that it was evidence of negligence to operate an automobile without a required operators license.
100 A. at 761 (emphasis added). Finally, in Falk v. Finkelman, 268 Mass. 524, 168 N.E. 89 (1929), the defendant left his car on a city street in excess of the 20 minutes allowed by ordinance. While it was so parked it was struck by a fire engine that drove it into plaintiff, injuring him. The court held that
168 N.E. at 90.
In the absence of expert testimony showing that the guards did not "act reasonably
The majority opinion also suggests that plaintiff submitted sufficient evidence to raise a jury question on the issue of tool control. This will no doubt come as some surprise to plaintiff, not to mention the District, since plaintiff did not argue in his brief on appeal that the district court erred in taking the case away from the jury on this issue.
All the reasons stated above illustrate the principle that the violation of any governmentally imposed rule of conduct that was not intended to protect the plaintiff against the harm he suffered cannot constitute the basis of a claim of negligence against any alleged violator. That principle applies to the instant Count System. It did not create any duty that the officer owed to Murphy sufficient for a violation thereof to constitute the probable cause of the assault upon him by another inmate. I therefore cannot agree with the reasoning or the result of the court's opinion and dissent therefrom.
Because I believe the district court properly granted judgment n. o. v. for the District of Columbia, I would affirm its judgment in all respects.
The commentary accompanying 18 U.S.C. § 5025 states that Pub.L. 90-226 (the 1967 amendment)
The legislative reports accompanying the bill stated its purpose as to "transfer the authority to provide for the treatment, rehabilitation, and conditional release of Federal youth offenders who are in institutions of the District of Columbia" from Federal to District officials. See S.Rep.No.912, 90th Cong., 1st Sess. 24 (1967); H.R.Rep.No.387, 90th Cong., 1st Sess. 31 (1967). See also pp. 11-13 infra.
Record on Appeal ("R.") 29 (Exhibit A).
Spar v. Obwoya, 369 A.2d 173, 178 (D.C.1977). That an injury was directly caused by an intentional tort or crime of a third person does not preclude a finding of proximate causation of the first actor if "the danger of an intervening negligent or criminal act should have reasonably been anticipated and protected against[.]" St. Paul Fire & Marine Ins. Co. v. James G. Davis Constr. Corp., 350 A.2d 751, 752 (D.C.1976); see also Spar v. Obwoya, supra, 369 A.2d at 778. Further, an act need not be the sole cause of an injury for it to be considered a proximate cause; it need only be a substantial factor in bringing that injury about. Washington v. District of Columbia, No. 13095, slip op. at 16 (D.C. Apr. 6, 1981) (reversal of directed verdict against plaintiff who claimed fall down stairs and injury accrued therefrom caused by District's failure to maintain handrail by staircase despite weaknesses in evidence that presence of handrail would have prevented fall because "`[if] there was a handrail, you would have a chance to grab something to steady yourself but without a handrail you don't even have that last chance.'"); Lacy v. District of Columbia, No. 12858 (D.C. Dec. 5, 1980) (upholding substantial factor as proximate cause).
Id. at 284. The court then ruled this line of questioning improper.
Tr. 5/9/79 at 438-39.
Clearly, the presence of an inmate on a wing other than his own indicates a violation of the regulation against wing-crossing. It does not, however, demonstrate negligence. As the District of Columbia argued: "[T]he mere occurrence of a fellow-inmate assault in violation of prison regulations does not ipso facto establish the jailer's negligence. If the law were otherwise, the jailer would be an insurer of inmate safety." District of Columbia's Brief at 14.
The majority submits that the guard's presence on the porch necessarily resulted in the breach of the institutional duty to stop cross-overs because the guards were required to be in particular places during the count procedure. But, as the majority recognizes, the officer who went onto the porch did so only after the dormitory count had cleared — the actual counting in the dormitory had ended. This fact foils the majority's attempt to turn the guard's presence on the porch into an act of negligence based on a claim that the guard should have been elsewhere during the actual conduct of the count.
Absent testimony that the guard's presence on the porch violated his duty to exercise reasonable care to prevent inmate cross-overs, appellant's case must fail on this theory. It is also worth noting that although appellant claimed he was attacked by four to six persons, only one of the two he identified, Pugh, lived in a different wing. Thus, even if the guards negligently permitted Pugh to enter Murphy's wing, Murphy's case might still fail in the absence of testimony indicating that Pugh's participation was essential to the attack.