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Kost v. Kozakiewicz

submitted: May 3, 1993.


Appeal from the United States District Court for the Western District of Pennsylvania. D.C. No. 91-01199.

Before: Cowen, Roth, and Rosenn, Circuit Judges.

Author: Rosenn


ROSENN, Circuit Judge.

This appeal by two federal pretrial detainees housed under contract in the Allegheny County, Pennsylvania, jail raises the question whether an existing class action against the defendants provided the plaintiffs with all the relief afforded them for their claims arising from their confinement under the United States Constitution and the Civil Rights Act, 42 U.S.C.A. §§ 1983, 1985, and 1986 (West 1991). We also consider whether certain counts of the complaint regarding alleged intolerable conditions and treatment at the facility are barred by a two- or six-year statute of limitations. The district court entered summary judgment in favor of all defendants. The plaintiffs timely appealed. We affirm the court's grant of summary judgment as to some of their claims. We vacate the court's grant of summary judgment as to other claims and remand with instructions to dismiss. As to the remaining claims, we reverse and remand for further proceedings consistent with this opinion.


On July 18, 1991, the plaintiffs George Kost and Francis Ferri filed a lengthy complaint in the United States District Court for the Western District of Pennsylvania against the defendants Charles Kozakiewicz, warden of the Allegheny County Jail (ACJ), other jail officials, Allegheny County, and certain county officials (referred to hereinafter collectively as the ACJ defendants or appellees); Goldline Laboratories (Goldline), a distributor of medical supplies; and Gatti Services (Gatti), a pharmacy. The complaint alleged in five counts forty-five various violations of plaintiffs' rights under §§ 1983, 1985(2) and (3), and 1986, and the First, Fifth, Sixth, Eighth, and Fourteenth Amendments to the Constitution.

Goldline and the ACJ defendants filed separate motions to dismiss pursuant to various subsections of Federal Rule of Civil Procedure (Rule) 12(b). Gatti filed a similar motion to dismiss, and in the alternative, because it submitted with its filing an affidavit executed by its president, a motion for summary judgment. The district court referred the case to a magistrate Judge who submitted a report stating that "each defendant has filed either a Rule 56 motion for summary judgment or a Rule 12(b)(6) motion to dismiss. Review of the pleadings and case law reveals that defendants' motions should be granted." Plaintiffs filed objections to the magistrate Judge's report. After de novo review, the district court entered an order adopting the report as the opinion of the court and granting summary judgment in favor of all defendants. Appellants timely appealed.*fn1

Over the years, the ACJ has been the subject of considerable litigation regarding conditions at the facility, and some conditions have been adJudged unconstitutional. The ACJ was under court order to remedy these conditions by 1992.

All events relied upon by plaintiffs to establish their claims took place between February 20, 1987, and August 3, 1989. At some time during this period, each plaintiff was a federal pretrial detainee housed at the ACJ pursuant to a contract or some other arrangement between the United States and Allegheny County. Each plaintiff spent part of his time at the ACJ in the Disciplinary Housing Unit (DHU). Kost was housed in the DHU during the month of June 1988. Ferri was housed in the DHU from May 16, 1989, through August 1, 1989. They are currently inmates at the federal penitentiary in Leavenworth, Kansas.



Plaintiffs alleged in Count I of their complaint that 1) inadequate heating and ventilation in the ACJ, combined with inmate exposure to toxic chemicals, exhaust fumes from gasoline operated combustion engines, and other fumes have shortened their life expectancy; 2) unbearable noise pollution and poor lighting within the cells at the ACJ have cause them "to suffer degenerative hearing and eyesight"; 3) unsanitary food preparation and serving procedures, coupled with inadequate and unsanitary personal hygiene and general living conditions, have caused them to incur diseases and have shortened their life expectancy; and 4) they have been caused needless pain and suffering.


Plaintiffs alleged in Count II of their complaint that the ACJ defendants: 1) impeded and obstructed their access to the courts and adequate law library facilities; 2) confiscated their legal documents; 3) provided no facilities within their individual cells for the retention of their legal documents; 4) allowed unbearable temperatures and overcrowding in the waiting area (bull-pen) where they were held for court appearances; and 5) caused them needless pain and suffering.


Count III of the complaint is based on two sets of events that allegedly occurred during Ferri's confinement in the DHU between May 16, 1989, and August 1, 1989. These events allegedly culminated in Ferri's suffering a lice infestation and a series of heatstrokes.

As to the lice infestation, plaintiffs alleged in their complaint that: 1) Goldline supplied the ACJ and/or Gatti with medical supplies for use in the treatment of inmates at the ACJ; 2) Gatti was under contract to provide medical services for the inmate population; 3) Goldline and Gatti bore a duty to them with respect to their medical care and welfare; 4) while in the DHU, the ACJ defendants inflicted upon Ferri unsanitary cells, shower facilities, bedding, and towels; 5) Ferri became infested with head and body lice because the ACJ defendants provided him with dirty bedding; 6) Goldline and Gatti supplied Ferri with inferior products and services in the treatment of the lice infestation; 7) the ACJ defendants failed to provide Ferri with the necessary medical care to cure the infestation; and 8) the infestation therefore remained with him until he was transferred out of the ACJ on August 4, 1989, causing him unbearable and needless pain and suffering for a 70-day period.

As to the series of heatstrokes, plaintiffs alleged in their complaint that: the ACJ defendants inflicted upon Ferri a total lack of ventilation coupled with cell temperatures "in excess of 90 to 100 degrees daily for 24 hours a day"; unbearable temperatures and lack of ventilation caused Ferri to suffer eight heatstrokes, which have had a degenerative effect upon his mental, physical, and "physicological" capacities; and his complaints to jail officials regarding the heatstrokes fell on deaf ears.


Count IV of the complaint is based on events that occurred during Kost's confinement in the DHU in June 1988. Plaintiffs alleged in their complaint that: 1) certain ACJ defendants beat Kost at various times, often while he was handcuffed; 2) he was told during one of the beatings that "unless he cooperated with information about an aborted escape attempt . . . he would received more beatings"; 3) when he denied knowledge of the escape attempt, Kozakiewicz informed four of the inmates accused of attempting escape that Kost had indeed informed on them and then placed him in the range of cells within the DHU where the four inmates were housed, thereby jeopardizing his life; 4) during a two-week period, an jail official made daily inspections of Kost's cell, throwing away all toiletry articles and legal documents; and 6) when Kost was called to trial in his criminal case in federal court, jail officials refused to let him shower or shave prior to his appearances and had discarded all his clothing, forcing him to appear in court "like a drunken derelict," which had a negative effect upon his ability to present a defense.


Plaintiffs alleged in Count V of their complaint that, beginning some time before the period in question in this case and shortly after Kozakiewicz became warden at the ACJ, various jail officials conspired to create a "goon squad" to inflict pain and suffering upon inmates to satisfy their "lust for brutality" and to instill fear in the general inmate population. Plaintiffs further alleged, as part of this conspiracy, that: 1) various jail officials committed attempted murder and murder; 2) an unusually high number of inmate beatings and injuries took place during the "goon squad" period as compared with prior periods; 3) an unusually high number of inmate deaths, attributable to unknown factors and ruled suicides, occurred during this period; 4) complaints made to jail officials and to members of the Prison Board about the beatings fell on deaf ears and that it was part of the conspiracy that such complaints would be ignored.

Plaintiffs also alleged that one object of the conspiracy was to disguise or mask acts of brutality by: performing them in isolated parts of the ACJ; writing an incident report against a beaten inmate falsely accusing him of attacking an officer or of other conduct requiring a physical response from the conspirators; causing internal medical reports to reflect retaliatory action by the conspirators whenever a gratuitously beaten inmate suffered physical injuries that required medical treatment within the ACJ; and having at least one conspirator claim personal injuries from a falsely alleged attack by a gratuitously beaten inmate whenever such an inmate suffered injuries requiring outside medical treatment.

Additionally, plaintiffs alleged that: various jail officials used a parabolic microphone to intercept conversations between Ferri and another inmate; in May 1989, Kozakiewicz had all windows and other means and methods of air ventilation in the DHU sealed off, as a result of which from June 1989 through August 1, 1989, Ferri suffered eight heatstrokes in the DHU for which neither jail officials nor Gatti attempted to provide him with any medical care.

Plaintiffs also listed overt acts related to the alleged conspiracy. This list primarily sets forth acts involving inmates other than plaintiffs that took place before June 1989. Any acts involving the plaintiffs and/or taking place after July 18, 1989, are those already set forth in Counts III and IV.

Plaintiffs requested compensatory and punitive damages in each count.



Before discussing the appellants' contentions on appeal, we note first that under Federal Rule of Appellate Procedure 28(a)(3) and (5) and Third Circuit Local Appellate Rule 28.1(a), appellants are required to set forth the issues raised on appeal and to present an argument in support of those issues in their opening brief. Simmons v. City of Philadelphia, 947 F.2d 1042, 1065 (3d Cir. 1991) ("absent extraordinary circumstances, briefs must contain statements of all issues presented for appeal, together with supporting arguments and citations"), cert. denied, 118 L. Ed. 2d 391, 112 S. Ct. 1671 (1992); 16 Charles A. Wright et al., Federal Practice and Procedure § 3974, at 421 (1977 and Supp. 1993, at 690) ("to assure consideration of an issue by the court, the appellant must both raise it in [the] Statement of the Issues and pursue it in the Argument section of the brief"). It is well settled that if an appellant fails to comply with these requirements on a particular issue, the appellant normally has abandoned and waived that issue on appeal and it need not be addressed by the court of appeals. Institute for Scientific Info., Inc. v. Gordon & Breach, Science Publishers, Inc., 931 F.2d 1002, 1011 (3d Cir. 1991); Roberts v. N.C. Sawyer, 252 F.2d 286, 287 (10th Cir. 1958).

In the present case, the appellants have not set forth any issues related to §§ 1985 and 1986 in their issue statement; additionally, there are no arguments or citations relevant to these statutory sections in the remainder of their brief. Moreover, in their reply brief, they acknowledge the argument advanced by all appellees that the complaint failed to allege a set of facts to support the §§ 1985 and 1986 claims, and they concede that they have not argued this issue on appeal.*fn2 Appellants therefore have not preserved any §§ 1985 and 1986 issues on appeal against any appellee, and thus we decline to address these statutory sections on review.

Additionally, appellants seem to suggest on appeal that Goldline and Gatti are liable for injury caused by the allegedly ineffective lice medication prescribed for Ferri under Pennsylvania products liability law. It is also well settled, however, that casual mention of an issue in a brief is cursory treatment insufficient to preserve the issue on appeal. Simmons, 947 F.2d at 1066. The appellants only suggest the existence of these claims in passing in a short footnote in their opening brief, without argument or relevant citation. They never articulate or argue anywhere in that brief the necessary contention that the district court erred in failing to recognize such claims in their complaint.*fn3 We therefore conclude that appellants have abandoned and waived this issue on appeal.

In summary, as to Goldline, we conclude that appellants have not appealed any products liability issue or any § 1985 or 1986 issue. Further, insofar as appellants concede in their reply brief that no § 1983 claim was ever brought against Goldline, they obviously do not now appeal the district court's Disposition of this claim. Therefore, there are no issues whatsoever before us as to Goldline.

As to Gatti, we conclude that appellants have not appealed any products liability issue or any § 1985 or 1986 issue. As to the ACJ appellees, we conclude that appellants have not appealed any § 1985 or 1986 issue. Therefore, the only issues remaining before this court on appeal relate ...

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