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Davidson v. O'Lone

December 27, 1984


Appeal from the United States District Court for the District of New Jersey (Camden). Reargued In Banc May 7, 1984.

Author: Sloviter

Before: GIBBONS and SLOVITER, Circuit Judges, and GREEN, District Judge*fn*



SLOVITER, Circuit Judge.

The principal issue presented by this appeal is whether 42 U.S.C. § 1983 encompasses a claim for personal injury to a state prisoner based on the negligence of prison officials when New Jersey state law provides no remedy.*fn1


Plaintiff Robert Davidson was an inmate at Leesburg State Prison when, on December 17, 1980, he intervened in a flight between two other inmates, Gibbs and McMillian. The three had disciplinary hearings on the morning of December 19, and immediately afterward McMillian threatened Davidson. Davidson returned to the hearing room to report the incident and, at the request of the guard on duty, wrote a note intended for Arthur Jones, the hearing officer. The note said:

When I went back to the unit after seeing you McMillian was on the steps outside the unit. When I was going past him he told me "I'll fuck you up you old mother-fucking fag." Go up to your cell, I be right there.

I ignored this and went to another person's cell and thought about it. Then I figured I should tell you so "if" anything develops you would be aware.

I'm quite content to let this matter drop but evidently McMillian isn't.

Thank you, R. Davidson


Jones, to whom the note was addressed, was a civilian and not part of the prison administration. He told the guard, Jose Garcia, to pass the note to the proper officials. At 11:40 a.m. Garcia delivered it to Joseph Cannon, assistant superintendent of the prison. Cannon read it and told Garcia to give it to Corrections Sergeant Robert James. Cannon testified later that he did not regard the situation as urgent because Davidson, whom he had known for years, did not contact him directly, as he had previously done in various situations.

Sergeant James was not in his office, and Garcia did not get the note to him until after 2:00 p.m. Garcia told him then that the note reported a threat by McMillian against Davidson. James attended to other matters, which he described as emergencies, leaving the note on his desk. At 4:00 he started a second shift, as Assistant Center Keeper, in another part of the prison. Between the time he received the note and the time he left the prison that night, James spent only about 10 minutes in his office. He forgot about the note, which he had not read.James acknowledged that in such a situation he would ordinarily interview the inmates. Though he was not able to attend to the matter that day, he testified that if he had remembered the note he would have posted it at the Center to alert officers on the morning shift.

Davidson, as the parties have stipulated, took no other steps to notify the authorities or request protective custody. He testified that he did not foresee the attack, but wrote the note to exonerate himself in the event that McMillian started another fight. Davidson also testified that he wanted officials to reprimand McMillian.

Neither Cannon nor James worked on December 20 or 21. On December 21, McMillian attacked Davidson with a fork, inflicting wounds to his face, neck, head and body, and breaking his nose. Though the stab wounds healed within several weeks, Davidson has undergone surgery to correct problems stemming from his broken nose, suffering continuing pain and residual effects.

Davidson was foreclosed from recovery from these defendants for his injuries under state law, for the New Jersey Tort Claims Act provides that "[n]either a public entity nor a public employee is liable for . . . any injury caused by . . . a prisoner to any other prisoner." N.J. Stat.Ann. § 59:5-2(b)(4) (West 1982). The parties agree that as a result of this provision, Davidson has no state law claim for his injuries against the defendants or against the state.

Davidson brought suit in the United States District Court for the District of New Jersey under 42 U.S.C. § 1983, naming as defendants Cannon, James, Jones, and Edward O'Lone, the prison superintendent. The court granted summary judgment in favor of O'Lone. The case against the other three was tried with Davidson appearing pro se.The court concluded that plaintiff did not establish an Eighth Amendment violation "because defendants did not act with deliberate or callous indifference to plaintiff's needs and because the incident complained of was a single attack." Da18. The court concluded, however, that Cannon and James, but not Jones, negligently failed to take reasonable steps to protect Davidson, that Davidson was injured as a result, and that their negligence deprived Davidson of a constitutionally protected liberty interest in freedom from assault while in prison. The court reasoned that because the New Jersey immunity provision denied Davidson a hearing, Davidson had been deprived of his liberty interest without due process. Davidson was awarded compensatory damages of $2,000.

Defendants appeal, contending that the district court erred in concluding that they were negligent, that the court erred in concluding that an inmate such as Davidson in a state prison has a liberty interest in being protected by prison officials from a single assault by another inmate, and that the court erred in concluding that 42 U.S.C. § 1983 encompasses a claim arising out of a negligent failure by prison officials to protect an inmate against a single assault by another inmate. We will consider these contentions seriatim.


After hearing all of the relevant evidence, the district court concluded, with respect to Cannon and James:

We find that these two defendants negligently failed to take reasonable steps to protect plaintiff, and that he was injured as a result. Both of these officials had the responsibility to care for plaintiff's safety, actual notice of the threat by an inmate with a known history of violence, and an opportunity to prevent harm to plaintiff.


Appellants concede that the applicable standard by which we must review the findings of the district court when sitting without a jury is the "clearly erroneous" standard contained in Rule 52(a) of the Federal Rules of Civil Procedure. See Pullman-Standard v. Swint, 456 U.S. 273, 287, 72 L. Ed. 2d 66, 102 S. Ct. 1781 (1982). Appellants thus bear the heavy burden of convincing us that the district court determination either "is completely devoid of minimum evidentiary support displaying some hue of credibility," or "bears no rational relationship to the supportive evidentiary data." Krasnov v. Dinan, 465 F.2d 1298, 1302 (3d Cir. 1972).

The appropriate standard of care owed by prison custodians in New Jersey with repest to the risk of inmate injury was set forth in Harris v. State, 61 N.J. 585, 297 A.2d 561 (1972). As the court stated there, a prisoner is owed "a duty of due care while in custody" and further, "in appropriate circumstances [the prisoner] would be entitled to a recovery on a showing that a prison official negligently failed to discharge his responsibility for the [prisoner's] care with resulting injuries to him." Id. at 590, 297 A.2d at 563. The Harris court denied recovery because the defendants had received no warning of a danger to the plaintiff. In this case, the district court found that the defendants had "actual notice of the threat by an inmate with a known history of violence." Da18, which we find satisfies the Harris notice requirement. See also Restatement (Second) of Torts § 320 (1965).

Appellants challenge the district court findings as clearly erroneous on several grounds. They contend that the district court erred in finding that they knew about McMillian's past, that they failed to exercise reasonable care to protect Davidson, and that their failure to follow the prison procedures proximately caused the injury. However, while we agree that on this record there would be room for the trier of fact to have reached a different conclusion as to negligence, we cannot hold that there was no negligence as a matter of law nor that we are "left with the definite and firm conviction that a mistake has been committed," by the district court in reaching its findings. United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 92 L. Ed. 746, 68 S. Ct. 525 (1948). Thus we accept the determination that defendants were negligent in failing to take steps to prevent McMillian's assault on Davidson.


Appellants argue that the district court erred as a matter of law when it identified a "liberty interest" protected by the Due Process Clause to be free from physical attack and injury. Since § 1983, by its own terms, provides redress only when state employees infringe those rights "secured by the Constitution and laws" of the United States, see e.g., Paul v. Davis, 424 U.S. 693, 700-01, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976); Smith v. Spina, 477 F.2d 1140, 1143 (3d Cir. 1973), plaintiff must satisfy this threshold requirement before we need reach the question whether simple negligence can give rise to § 1983 liability. See Baker v. McCollan, 443 U.S. 137, 140, 61 L. Ed. 2d 433, 99 S. Ct. 2689 (1979). We must, therefore, decide whether plaintiff as a state prisoner had a constitutionally protected "liberty interest" in security from physical assault by fellow prisoners.

The constitutional right on which Davidson relies is that of his liberty interest in personal security protected by the Fourteenth Amendment. That the amendment covers such a basic personal right was affirmed by the Supreme Court in Ingraham v. Wright, 430 U.S. 651, 673, 51 L. Ed. 2d 711, 97 S. Ct. 1401 (1977), where it stated, "Among the historic liberties [protected by the due process clause] was a right to be free from, and to obtain judicial relief for, unjustified intrusions on personal security."

Davidson's status as a prisoner does not deprive him of his right to rely on the Fourteenth Amendment. Because an inmate is not free to leave the confines which s/he is forced to share with other prisoners, the state bears the responsibility for the inmate's safety. Undoubtedly, a similar responsibility stemming from the state's control over the plaintiff underlay the Court's finding of a liberty interest in Ingraham, where the plaintiff was in a public school, in Youngberg v. Romeo, 457 U.S. 307, 73 L. Ed. 2d 28, 102 S. Ct. 2452 (1982), where the plaintiff was an inmate of a state institution for the mentally retarded, and in City of Revere v. Massachusetts General Hospital, 463 U.S. 239, 103 S. Ct. 2979, 2983, 77 L. Ed. 2d 605 (1983), where the plaintiff was injured while being apprehended by the police. The Supreme Court has "repeatedly held that prisons are not beyond the reach of the Constitution." Hudson v. Palmer, 468 U.S. 517, 82 L. Ed. 2d 393, 104 S. Ct. 3194, (1984). As it recently stated, "[W]e have insisted that prisoners be accorded those rights not fundamentally inconsistent with imprisonment itself or incompatible with the objectives of incarceration." Id.

This court held in Curtis v. Everette, 489 F.2d 516, 518 (1973), cert. denied, 416 U.S. 995, 40 L. Ed. 2d 774, 94 S. Ct. 2409 (1974), that the Due Process Clause is a valid basis for a prisoner's § 1983 action seeking relief for injuries inflicted by another prisoner.*fn2 In Curtis, the allegations that defendant prison officials stopped the plaintiff prisoner from defending himself from an attack by another prisoner were held to implicate the plaintiff's constitutional "right to be secure in his person" under the Fourteenth Amendment. Id.

Appellants argue that the substantive due process right to personal security does not protect a state prisoner from an isolated attack by another prisoner. In so arguing, appellants have contracted into one issue what are in fact two separate issues, whether the liberty interest in bodily integrity protected by the Fourteenth Amendment covers the state's failure to prevent attacks by other prisoners and the circumstances under which § 1983 provides a remedy for deprivation of that interest. Our focus in this section is directed only to the Fourteenth Amendment liberty interest.

As to that, we find no Supreme Court precedent that would limit the protected liberty interest in freedom from attack to those attacks inflicted by the state officials themselves. Certainly it would be absurd to argue that a state prisoner does not have a liberty interest that would be infringed were his or her state custodian deliberately to open the prison door knowing that a lynch mob converged outside. The state infringement would be as direct as if the prison guard had tied the rope around the prisoner's neck. The fact that there was only a single or isolated episode is irrelevant in determining whether a liberty interest was implicated.

That such a liberty interest covers attacks commited by persons other than state custodians has been recently affirmed in Youngberg v. Romeo, 457 U.S. 307, 73 L. Ed. 2d 28, 102 S. Ct. 2452 (1982). Romeo, an involuntarily committed resident of a state institution for the mentally retarded, claimed in his § 1983 suit against administrators of the institution that his substantive right, inter alia, safe conditions of confinement protected by the due process clause of the Fourteenth Amendment was violated because state officials were aware of and failed to take all reasonable steps to prevent his injury by other residents and by his own violence. the Court expressly recognized and reaffirmed the substantive liberty interest under the Fourteenth Amendment implicated by this claim. The Court stated:

In the past, this Court has noted that the right to personal security constitutes a "historic liberty interest" protected substantively by the Due Process Clause. Ingraham v. Wright, 430 U.S. 651, 673, [51 L. Ed. 2d 711, 97 S. Ct. 1401] (1977). And that right is not extinguished by lawful confinement, even for penal purposes. See Hutto v. Finney, 437 U.S. 678, [57 L. Ed. 2d 522, 98 S. Ct. 2565] (1978).

Id. at 315. Thus we reject appellant's contention that Davidson had no interest protected by the Constitution.


The reasoning by which the district court concluded that Davidson was entitled to recover in this § 1983 action against Cannon and James is as follows: Cannon and Jones were negligent; as a result of that negligence, Davidson was injured; freedom from bodily injury is a liberty interest which is protected by the Fourteenth Amendment of the Constitution; New Jersey does not provide prisoners, such as Davidson, with a remedy in state court because it immunizes its employees against claims for injuries to a prisoner caused by another prisoner; ergo Davidson can recover under § 1983. We have noted our agreement with the district court's reasoning up to the step at which it concluded that § 1983 liability extends to the negligent conduct of the prison officials in failing to investigate or take other action to protect Davidson.*fn3 We turn now to that question, denominated as "elusive" by the Supreme Court. Baker v. McCollan, 443 U.S. 137, 140, 61 L. Ed. 2d 433, 99 S. Ct. 2689 (1979).

There are literally hundreds of cases in the Courts of Appeals in which various aspects of this issue have arisen and no clearly discernible thread has evovled. As the Supreme Court has recognized, "The diversity in approaches [among the various federal courts] is legion." Parratt v. Taylor, 451 U.S. 527, 533, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981).*fn4 We begin, therefore, by examining the Supreme Court's own treatment of the issue.

Until the Court's decision in Monroe v. Pape, 365 U.S. 167, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961), there was little case law dealing with violations of § 1983 since most of the civil rights litigation against state officials before that time involved 18 U.S.C. § 242, the criminal counterpart to § 1983. In Monroe v. Pape, the Court held, inter alia, that because § 1983, unlike § 242, does not contain the word "willfully," proof of "willfullness" should not be required of a plaintiff seeking recovery under § 1983. The Court defined "willfully" as the doing of an act with a "specific intent to deprive a person of a federal right." Id. at 187. Justice Harlan, who concurred, addressed the realtionship between the state action encompassed in § 1983 and that covered under ordinary state tort law. He stated that one must attribute "to the enacting legislature the view that a deprivation of a constitutional right is significantly different from and more serious than a violation of a state right and therefore deserves a different remedy even though the same act may constitute both a remedy even though the same act may constitute both a state tort and the deprivation of a constitutional right." Id. at 196 (emphasis added).

The language and some of the holdings of the subsequent Supreme Court cases considering this issue reflect the Court's rejection of the notion that every state tort committed by a state officer acting under color of state law is ipso facto converted into a violation of § 1983. Thus, for example, in Estelle v. Gamble, 429 U.S. 97, [50 L. Ed. 2d 251, 97 S. Ct. 285] (1976), the Court held that a state prisoner subjected to medical malpractice does not automatically have a claim under § 1983. The Court stated, "Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Id. at 106.

In a case decided earlier that year, Paul v. Davis, 424 U.S. 693, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976), the Court, speaking through Justice Rehnquist, held that a citizen defamed by police through circulation of a flyer of "active shoplifters" on which his name and photograph appeared did not state a claim for relief under § 1983 and the Fourteenth Amendment. The Court expressly rejected the premis that "the Due Process Clause of the Fourteenth Amendment and § 1983 make actionable many wrongs inflicted by government employees which had therefore been thought to give rise only to state-law tort claims." Id. at 699.Justice Rehnquist stated that such a premise "would be contrary to pronouncements in our cases on more than one occasion with respect to the scope of § 1983 and of the Fourteenth Amendment." Id.

The authority on which Justice Rehnquist relied was Screws v. United States, 325 U.S. 91, 89 L. Ed. 1495, 65 S. Ct. 1031 (1945), where Justice Douglas had written for the plurality:

Violation of local law does not necessarily mean that federal rights have been invaded. The fact that a prisoner is assaulted, injured, or even murdered by state officials does not necessarily mean that he is deprived of any right protected or secured by the Constitution or laws of the United States.

Id. at 108-09, quoted in Paul v. Davis, 424 U.S. at 700. Justice Douglas' opinion in Screws continued with the caution that Congress should not be understood to have attempted

to make all torts of state officials federal crimes. It brought within [the criminal provision] only specified acts done "under color" of law and then only those acts which deprived a person of some right secured by the Constitution of laws of the United States.

325 U.S. at 109, also quoted in Paul v. Davis, 424 U.S. at 700. Although Justice Douglas in Screws was construing the criminal analogue to § 1983, these passages of the Screws opinion were used as applicable authority by the majority in Paul v. Davis in its interpretation of § 1983. Indeed, Justice Rehnquist then proceeded to apply the analaysis from Screws to reject the claim that defamation by the police fell within the scope of § 1983 and of the Fourteenth Amendment. Justice Rehnquist wrote:

[Plaintiff] apparently believes that the Fourteenth Amendment's Due Process Clause should ex proprio vigore extend to him a right to be free of injury wherever the State may be characterized as the tortfeasor. But such a reading would make of the Fourteenth Amendment of a font of tort law to be superimposed upon whatever systems may already be administered by the States. We have noted the "constitutional shoals" that confront any attempt to derive from congressional civil rights statutes a body of general federal tort law, Griffin v. Breckenridge, 403 U.S. 88, 101-102, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (1971); a fortiori, the procedural guarantees of the Due Process Clause cannot be the source for such law.

Paul v. Davis, 424 U.S. at 701.

Shortly thereafter, in Procunier v. Navarette, 434 U.S. 555, 55 L. Ed. 2d 24, 98 S. Ct. 855 (1978), the Supreme Court appeared ready to decide directly the issue before us since it granted certiorari to consider "[w]hether negligent failure to mail certain of a prisoner's outgoing letters states a cause of action under section 1983." Id. at 559 n.6. Because the Court decided that the defendants were entitled to prevail on the defense of qualified immunity as a matter of law, it did not reach the question on which certiorari was granted.

Thereafter, in Baker v. McCollan, 443 U.S. 137, 61 L. Ed. 2d 433, 99 S. Ct. 2689 (1979), the Court again confronted this question. Again, the Court disposed of the case on other grounds since it held that no constitutional right was implicated because the defendant police officer charged with false imprisonment under § 1983 had acted on the basis of a valid arrest warrant. However, in his discussion concerning whether negligent conduct can form the basis of an award of damages under 42 U.S.C. § 1983, Justice Rehnquist, once more writing for the Court, stated:

Having been around this track once before in Procunier, supra, we have come to the conclusion that the question whether an allegation of simple negligence is sufficient to state a cause of action under § 1983 is more elusive than it appears at first blush. It may well not be susceptible of a uniform answer across the entire spectrum of conceivable constitutional violations which might be the subject of a § 1983 action.

Id. at 139-40.

The duty upon which liability was sought to be predicated in Baker v. McCollan was closely akin to that Davidson relies on here. Plaintiff McCollan had been falsely imprisoned because his brother, the real culprit, had used plaintiff's driver's license as his identification. The Court of Appeals held that plaintiff's complaint stated a claim for relief under § 1983 because under tort law "the sheriff or arresting officer has a duty to exercise due diligence in making sure that the person arrested and detained is actually the person sought under the warrant and not merely someone of the same or a similar name. See Restatement (2d) Torts § 125, comment (d) (1965)." McCollan v. Tate, 575 F.2d 509, 513 (5th Cir. 1978). Thus in McCollan, as in this case, plaintiff's claim was based on obligations under tort law of those state officials who have custody of prisoners.

The Supreme Court, in reversing the Court of Appeals decision, rejected the contention that the duty imposed by tort law would be automatically transmuted into a duty protected by the Constitution. Justice Rehnquist stated:

Section 1983 imposes liability for violations of rights protected by the Constitution, not for violations of duties of care arising out of tort law. Remedy for the latter type of injury must be sought in state court under traditional tort-law principles. Just as "[m]edical malpractice does not become a constitutional violation merely because the victim is a prisoner," Estelle v. Gamble, 429 U.S. 97, 106, [50 L. Ed. 2d 251, 97 S. Ct. 285] (1976), false imprisonment does not become a violation of the Fourteenth Amendment merely because the defendant is a state official.

Id. 443 U.S. at 146.

Thus, nothing in the Court's cases through 1979 provides any support for the principle that negligent conduct by a state official causing injury to the person constitutes a deprivation of a Fourteenth Amendment right which can be redressed in a § 1983 suit. As authority for that position, the district court read the Supreme Court's opinion in Parratt v. Taylor, 451 U.S. 527, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981), as holding "that a state official's negligence is sufficient to constitute a "deprivation" for due process purposes." Da20. We turn to Parratt to determine if it supports the broad construction given it by the district court.

In Parratt the plaintiff prisoner brought an action claiming that his now famous hobby materials valued at $23.50 were negligently lost by prison officials in violation of his right under the Fourteenth Amendment not to have his property taken without due process of law.Plaintiff's claim was ultimately rejected by the Supreme Court, which held that because there were state remedies that could have fully compensated plaintiff for the property loss he suffered, the requirements of due process had been satisfied. 451 U.S. at 537-44. Recently, in Hudson v. Palmer, 468 U.S. 517, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984), the Court extended the Parratt holding to apply as well to certain intentional deprivations of a prisoner's property. It stated,

[W]e hold that an unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy is available. For intentional, as for negligent deprivations of property by state employees, the State's action is not complete until and unless it provides or refused to provide a suitable postdeprivation remedy.

Id. 104 S. Ct. at 3204. (emphasis added).

The holdings of Parratt and Hudson that the available state postdeprivation remedies provide adequate procedural due process do not meet the substantive due process issue presented in this case. However, in Parratt, before reaching the procedural due process issue Justice Rehnquist, writing for the Court, considered the scope of § 1983, and wrote:

Nothing in the language of § 1983 or its legislative history limits the statute solely to intentional deprivations of constitutional rights. In Baker v. McCollan [443 U.S. 137, 61 L. Ed. 2d 433, 99 S. Ct. 2689 (1979)], we suggested that simply because a wrong was negligently as opposed to intentionally committed did not foreclose the possibility that such action could be brought under § 1983. . . . Section 1983, unlike its criminal counterpart, 18 U.S.C. § 242, has never been found by this Court to contain a state-of-mind requirement. The Court recognized as much in Monroe v. Pape, 365 U.S. 167, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961). . . .

Both Baker v. McCollan and Monroe v. Pape suggest that § 1983 affords a "civil remedy" for deprivations of federally protected rights caused by persons acting under color of state law without any express requirements of a particular state of mind.

451 U.S. at 534-35 (footnote omitted).

Admittedly, this language standing alone is susceptible of the interpretation placed upon it by the district court that mere negligence can constitute a deprivation that can be redressed by a § 1983 action.However, in the context of the development of the law set forth above, we conclude Parratt does not so hold.

Most significant is that in the two earlier cases also authored by Justice Rehnquist, Baker v. McCollan, decided only two years before Parratt, and Paul v. Davis, the Court vigorously rejected the suggestion that traditional torts became constitutional violations when committed by state officials. It is implausible that the Court would make a major pronouncement that constituted a 180 degree turnabout as to the scope of substantive due process or § 1983 without discussion or analysis. This is particulary so because early in the Parratt opinion the Court specifically noted that it had "twice granted certiorari in cases to decide whether mere negligence will support a claim for relief under § 1983," 451 U.S. at 532 (citing procunier v. Navarette, 434 U.S. 555, 55 L. Ed. 2d 24, 98 S. Ct. 855 (1978) and Baker v. McCollan, 443 U.S. 137, 61 L. Ed. 2d 433, 99 S. Ct. ...

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