restraints on an inmate, of course, would be privileged if that conduct was reasonably necessary in the circumstances. See Restatement (Second) of Torts § 132, Comment b (1965). It is the Court's view, however, that the decision to place Glick in his restraints and keep him in that condition in a cell for an extended period, was unreasonable.
In making that determination, the Court is mindful that it is inappropriate to utilize hindsight to reach its decision. The determination of reasonableness must be made at the time Glick was placed in restraints and on the basis of the information available to officials at that time.
Defendants Hudson and Cassella testified as to the reasons Glick was placed in restraints. Glick had been identified by Lt. Humme as the potential ringleader of the disruptive prisoners. This was consistent with Cassella's appraisal of Glick as a natural leader. In addition, both Hudson and Cassella were aware of Glick's great strength and violent tendencies as evidenced by an assault by Glick on correctional officers in 1967. At that time, Hudson with a complement of officers had great difficulty in confining Glick in a cell. Further, Cassella and Hudson were concerned that Glick and two others could batter down the wooden door of a cell on the second or third floor of the special housing unit. They were also concerned that Glick had the ability to compromise restraining equipment.
If Hudson and Cassella were concerned about Glick and two others being able to batter down a wooden door in the segregation unit, the appropriate response would be to place Glick in a basement cell which had metal doors, which was in fact done, and to place him in such a cell alone. There is no evidence which would indicate that Glick and two others would be able to batter down one of the metal cell doors in the basement.
Hudson's and Cassella's concerns of Glick's strength and history of violent behavior likewise are insufficient to support their decision. There is no evidence to indicate that Glick was violent or disruptive once at Lewisburg. There is no testimony that even on the bus when out of his restraints he had taken any other affirmative action to escape. Further, Glick's great strength would not pose any security problem when locked in a cell.
The fact that on April 16, 1978, after having been in his cell in restraints for over 36 hours, Glick threatened to kill an officer if his restraints were removed does not serve to justify the initial decision. Once again, there is no evidence to indicate that Glick was violent at any time from Atlanta to Lewisburg or at Lewisburg. The seriousness of the April 16, 1978 incident was also undermined by the fact that on April 17, 1978, Hudson ordered Glick's restraints removed upon receiving Glick's assurance that there would be no trouble. Hudson testified that having known Glick for 12 years he could accept Glick's word. There is no explanation, however, why Hudson was unwilling to seek Glick's assurance on April 14, 1978 when the decision was made to place him in restraints.
Glick's surly appearance does not justify the decision. Glick's appearance, in the absence of a belief on Hudson's or Cassella's part that he was going to become violent, is not relevant. Many prisoners, no doubt, look surly, but the appearance of an inmate cannot justify a decision to place restraints on him and keep him so restrained for 36 hours before re-evaluating the situation.
In the absence of any evidence that Hudson or Cassella feared an outburst by Glick, the fact that he was a strong individual does not warrant the treatment he received. Similarly, his natural leadership abilities when added to his strength and violent history do not support the decision. Since Glick could be securely locked in a cell, his leadership abilities would be limited to yelling on the tier. His placement in handcuffs and leg irons, however, did nothing to prevent that from occurring.
Glick's ability to compromise restraints is also irrelevant. There was no evidence that Glick was capable of opening the locked door of his basement cell. Since Glick could be securely locked in a cell, he would have no opportunity to use his skill to compromise restraints. In any event, it is not at all clear how his ability to compromise restraining equipment would be of any use to Glick if he was not wearing any and if no one in his cell was.
It is the Court's view that Glick was kept in restraints in his cell for 36 hours without a reevaluation of the situation because Hudson and Cassella believed Glick had the ability to cause problems on the tier if he chose to do so and they determined that the use of restraints would dissuade him from doing so. At that time, however, they did not believe that Glick was intending to cause trouble once he reached his cell. While their fears might have justified a decision to keep Glick in restraints over night, those fears did not justify keeping Glick in that condition until Sunday when Cozza delivered to Glick an incident report relating to tampering with his handcuffs and leg irons on the bus. Once Glick made the threat to kill an officer if the restraints were removed, it was reasonable to keep him restrained until the prison officials were convinced Glick would behave. The Court has searched the record for evidence to support the decision to place Glick in restraints for the initial 36-hour period and finding none must conclude that that action was unreasonable and tortious.
The Government takes the position that more is required to impose liability upon the Government under the Federal Tort Claims Act than a finding that a tort was committed by a governmental employee in the course of his duties. The Government argues that a recovery against the United States is appropriate only if the individuals who committed the tortious acts could be found liable for monetary damages because of their failure to establish the qualified immunity recognized by the Supreme Court in Wood v. Strickland, 420 U.S. 308, 313-22, 95 S. Ct. 992, 996-1000, 43 L. Ed. 2d 214 (1975); Scheuer v. Rhodes, 416 U.S. 232, 238-49, 94 S. Ct. 1683, 1687-92, 40 L. Ed. 2d 90 (1974) and Procunier v. Navarette, 434 U.S. 555, 561-62, 98 S. Ct. 855, 859, 55 L. Ed. 2d 24 (1978) which extended the qualified immunity to prison officials. The Government points to Norton v. United States, 581 F.2d 390 (4th Cir.) cert. denied, 439 U.S. 1003, 99 S. Ct. 613, 58 L. Ed. 2d 678 (1978), in support of this argument. It is the Court's view, however, that in certain respects Norton is distinguishable and, to the extent that it is not, the Court finds more persuasive the district court's decision in Norton v. Turner, 427 F. Supp. 138 (E.D.Va.1977), rev'd sub nom. Norton v. United States, 581 F.2d 390 (4th Cir.), cert. denied, 439 U.S. 1003, 99 S. Ct. 613, 58 L. Ed. 2d 678 (1978).
Norton involved the United States's liability for actions which were found by the District Court to have violated the Fourth Amendment. In that context, the United States Supreme Court has held that officials enjoy qualified immunity from liability for monetary damages for actions taken in violation of the Constitution. See Wood v. Strickland, 420 U.S. 308, 3113-22, 95 S. Ct. 992, 996-1000, 43 L. Ed. 2d 214 (1975); Scheuer v. Rhodes, 416 U.S. 232, 238-49, 94 S. Ct. 1683, 1687-92, 40 L. Ed. 2d 90 (1974). This immunity, which is a matter of federal law, is required in order to insure that officials charged with executing the laws and performing public functions do so vigorously without being unduly concerned that their good faith actions will subject them to liability. Scheuer v. Rhodes, 416 U.S. 232, 240, 94 S. Ct. 1683, 1688, 40 L. Ed. 2d 90 (1974).
Plaintiffs in this phase of the case seek compensation from the United States not for constitutional deprivations but for common law deprivations. Under the common law, a principal may not rely upon an agent's immunity from civil liability to escape his own responsibility. Restatement (Second) of Agency § 217(b)(ii)(1958). In addition, the policy reasons underlying the qualified immunity doctrine the decision that it is better for officials to make good faith errors then unduly to chill them in the execution of their duties does not apply in this case. No individual faces monetary liability if the individual's good faith defense does not inure to the benefit of the Government.
The Supreme court's decision in Owen v. City of Independence, Missouri, 445 U.S. 622, 100 S. Ct. 1398, 63 L. Ed. 2d 673 (1980) concluded that the Government cannot rely on an employee's good faith immunity to escape liability in an analogous situation. In that case, the City of Independence argued that it could not be liable for damages in a § 1983 action if its agents acted in good faith. The Court rejected this argument for a number of reasons. The Court noted that the imposition of liability on the city would not chill officials in the exercise of their duties because the officials are not exposed to personal liability if they act in good faith. Owen v. City of Independence, Missouri, 445 U.S. 622, & n. 37, 100 S. Ct. 1398, 1416 & n. 37, 63 L. Ed. 2d 673 (1980).
The Court rejected the argument that the city's sovereign immunity was a ground for immunity in a § 1983 action. Because sovereign immunity protects a city from all suits except those to which it consents, the "presence or absence of good faith is simply irrelevant." Owen v. City of Independence, Missouri, 445 U.S. 622, 100 S. Ct. 1398, 1413, 63 L. Ed. 2d 673 (1980). The enactment of § 1983 stripped the city of whatever sovereign immunity it might have enjoyed. Similarly, the enactment of the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2680(h) waived the sovereign immunity of the United States in this case.
The Supreme Court in Owen also noted that policy considerations warranted its holding that a municipality does not enjoy a good faith immunity in § 1983 actions. Among them was that "the threat that damages might be levied against the city may encourage those in a policymaking position to institute internal rules and programs designed to minimize the likelihood of unintentional infringements on constitutional rights." Owen v. City of Independence, Missouri, 445 U.S. 622, 100 S. Ct. 1398, 1416, 63 L. Ed. 2d 673 (1980), (footnote omitted). The imposition of liability on the United States in this case may likewise encourage policymakers to take steps to reduce the chances that activities like those of Fenton, Hudson, and Cassella in placing and keeping Glick in his cell while in restraints will occur in the future.
The distinction must be drawn, however, between the personal immunity of correctional officials in some cases and the privilege they have to commit acts which would otherwise amount to batteries. The Restatement (Second) of Torts, § 10(2) provides that a privilege may be based upon:
(b) the fact that its exercise is necessary for the protection of some interest . . . of the public which is of such importance as to justify the harm caused or threatened by its exercise, or
(c) the fact that the act is performing a function for the proper performance of which freedom of action is essential.
If a defendant successfully establishes a privilege, a plaintiff's claim for relief has failed. That is because in the circumstances of the case that which the actor did was in the view of the law necessary and outweighs the harm caused to the plaintiff. In such a circumstance, it is reasonable for someone derivatively liable for an actor's actions to enjoy the privilege. That is because the law determines that the activity conducted by the actor was lawful. Thus, in this case, a correctional officer is privileged to use reasonable force necessary to carry out his duties and that amount of force when applied to a prisoner is not tortious.
That is not the case when an immunity is involved. Unlike a privilege, which looks at the action taken by the actor, the question of immunity focuses on the actor's responsibility for the action. The finding that an actor is immune from payment of damages does not in any sense justify the action taken. Rather, such a finding for reasons of policy excuses that actor from having to compensate the injured party. The fact that a particular actor is immune does not, as in the case of privileged action, represent a determination that the conduct committed was appropriate. On the contrary, it recognizes that the conduct was inappropriate but shields that particular actor from immunity. The Court, therefore, concludes that the United States may not avail itself of the good faith immunity of the individual defendants. See Owen v. City of Independence, Missouri, 445 U.S. 622, 100 S. Ct. 1398, 1409, 63 L. Ed. 2d 673 (1980); Norton v. United States, 581 F.2d 390, 397-98 (4th Cir.) (Butzner, J., dissenting); cert. denied, 439 U.S. 1003, 99 S. Ct. 613, 58 L. Ed. 2d 678 (1978); Downs v. United States, 522 F.2d 990, 998 (6th Cir. 1975) (dicta); Norton v. Turner, 427 F. Supp. 138, 151-52 (E.D.Va.1977), rev'd sub nom., Norton v. United States, 581 F.2d 390 (4th Cir.), cert. denied, 439 U.S. 1003, 99 S. Ct. 613, 58 L. Ed. 2d 678 (1978).
Plaintiffs also claim they are entitled to damages pursuant to 18 U.S.C. § 4042(2) which requires the Bureau of Prisons to "provide suitable quarters and provide for the safekeeping, care, and sustenance of all persons . . . convicted of offenses against the United States . . ." and 18 U.S.C. § 4042(3) which provides that the Bureau of Prisons shall provide inmates with protection. These sections have supported an award of damages against the United States when one inmate was injured by another inmate in circumstances in which negligence on the part of Bureau of Prisons employees has been established. Brown v. United States, 342 F. Supp. 987 (E.D.Ark.1972), aff'd. in part and rev'd. in part on other grounds, 486 F.2d 284 (8th Cir. 1973). On the other hand, liability is not appropriate unless the negligence of officials is proven. Crump v. United States, 534 F.2d 72 (5th Cir. 1976); Jones v. United States, 534 F.2d 53 (5th Cir.), cert. denied, 429 U.S. 978, 97 S. Ct. 487, 50 L. Ed. 2d 586 (1976). Plaintiffs have cited no case, however, in which liability has been imposed when the harm was inflicted intentionally by employees of the United States. There is no reason to assume, however, that the United States would not be liable in such a situation. Liability will not attach to the United States on the basis of 18 U.S.C. § 4042 because it is the Court's view that the agents of the United States were not negligent on April 14 and April 15, 1978.
The fact that Defendants Hudson and Cassella put restraints on Glick while he was in his cell for three days does not indicate that the agents of the Bureau of Prisons did not exercise ordinary care to provide for the safekeeping of Glick. While his placement in confinement in restraints had the approval of the Warden, the lack of any actual physical injury to Glick precludes recovery against the United States for negligence. In any event, Glick is entitled to recover only damages to compensate him for his confinement in a cell while in restraints. The measure of damages is the same regardless of the theory supporting liability. Therefore, a finding of liability under 18 U.S.C. § 4042 would not increase the amount of damages to which Glick is entitled.
Plaintiffs also claim they are entitled to damages because of intentional infliction of emotional distress. Pennsylvania recognizes this tort, See Forster v. Manchester, 410 Pa. 192, 199, 189 A.2d 147 (1963) and has adopted the definition of the tort set forth in the Restatement (Second) of Torts § 46 (1965) which provides:
(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability . . . .