APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.
Seitz, Chief Judge, and Kalodner and Aldisert, Circuit Judges. Seitz, Chief Judge, concurring and dissenting.
We are to decide whether there was sufficient evidence to sustain a non-jury finding of liability in a Civil Rights Act proceeding brought by a prisoner against the senior officer of the guard at a Pennsylvania correctional institution. The court adjudicated in favor of the plaintiff and awarded damages in the amount of $2,500.00. The officer has appealed. We reverse.
We immediately dispose of defendant's improper venue contention. Clearly in a Civil Rights Act case brought under 42 U.S.C. § 1983, venue did not properly lie in the Eastern District of Pennsylvania. Under the provisions of 28 U.S.C. § 1391(b), this action "not founded solely on diversity of citizenship" could "be brought only in the judicial district where all defendants reside, or in which the claim arose, except as otherwise provided by law." Grenoble resides in the Middle District, and the claim arose in the Middle District. At the beginning of the trial, however, Michael Minkin, Assistant Attorney General, conceded to the court that the question of venue was waived.*fn1
The trial record discloses that William L. Bracey, Jr., a prisoner at Camp Hill Institution, Pennsylvania, participated in an assault on a prison guard on November 18, 1968, for which he was convicted in a state court. His civil action encompassed events which occurred immediately after the events which led to his subsequent conviction. Two guards were assaulted on B-Block, one of whom was a Sergeant Bartlebaugh. The plaintiff candidly admitted that he "was participating in the assault right then."*fn2 Knives and daggers were used by prisoners in the assault.*fn3 The plaintiff testified that he left B-Block and "went out in the hallway and . . . . was sprayed again with the can of Mace."*fn4 When asked if he knew who sprayed him, he replied: "I don't quite recall, but I remember Lieutenant Yucha then was out there in the hallway," and that "I did see Major--he was acting as major, Grenoble then in the hallway, when I went out in the hallway." He said that he was thrown to the floor but could not "recall which one pushed . . . . [him] to the floor,"*fn5 and that while on the floor he was beaten with night sticks "for about five minutes. . . . ."
Asked how much time elapsed between the time when he saw the defendant and the beating he received, he responded: "It was like, just like seconds. The time it took me to stand up and like the time it took them to Mace me, I would say about five or six seconds, that is all it took."
There is evidence that Grenoble was present at the time plaintiff was brought into the hallway; there is no evidence he was present during or throughout the beatings. The defendant was seen by plaintiff only at this one time, and his voice was heard later when plaintiff was brought up the hallway:
Q. Mr. Bracey, from the time that you got through the door from B-Block into the corridor and the events that you have described took place, during that period of time do you know where the defendant Grenoble was?
A. When I entered the hallway he was standing behind the guards, he was standing right behind them, and like the guards with the Mace was along the wall and when I came out, I came out of B-Block like this way (indicating), and I turned this way (indicating), and like the guards came ...