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May 7, 1980

RICHAD PICARIELLO, et al., Plaintiffs
CHARLES E. FENTON, Warden, et al., Defendants

The opinion of the court was delivered by: MUIR

I. Introduction.

Plaintiffs, 25 present and former inmates of the Federal Prison system, filed this action against 17 individual defendants pursuant to 28 U.S.C. § 1331 alleging violations of their constitutional rights. All the Plaintiffs except Plaintiff Ozgur *fn1" also asserted claims against the United States pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2672-2680, based on the alleged tortious conduct of the individual defendants in their capacities as employees of the United States. Plaintiffs' allegations relate to the reception afforded two busloads of prisoners at the United States Penitentiary at Lewisburg, Pennsylvania, on the evening of April 14, 1978, and, to some extent, the treatment of the Plaintiffs the following morning. Plaintiffs allege that their Eighth Amendment rights were violated by being subjected to cruel and unusual punishment, that their Fifth Amendment rights were violated in that they were subjected to summary punishment and that the United States is liable under the Federal Tort Claims Act for assaults, batteries, intentional infliction of emotional distress, negligence, and willful, wanton, or reckless conduct. The trial of the case was bifurcated as between liability and damages. The liability phase of the constitutional claims was tried between February 5, 1980 and March 13, 1980 to a jury which also acted as an advisory jury pursuant to Fed.R.Civ.P. 39(c) with respect to the claims under the Federal Tort Claims Act. The damages phase was tried April 29, 1980.

 The case as to liability was submitted to the jury on the basis of 393 special verdict questions pursuant to Fed.R.Civ.P. 49(a). The jury's answers to the special verdict questions resulted in findings that Defendants Fenton and Cassella inflicted cruel and unusual punishment and summary punishment on Plaintiff Glick and that Defendants Fenton and Hudson inflicted summary punishment and cruel and unusual punishment on Plaintiff Picariello. The jury also found, however, that the Defendants acted with a reasonable good faith belief that the actions they took were lawful. The jury made findings that plaintiff Montgomery was subjected to cruel and unusual and summary punishment but that none of the Defendants inflicted that punishment.

 Following the return of the jury's answers to the special verdict questions, the Plaintiffs moved for the entry of judgment on the issue of liability against Defendants Fenton, Hudson, and Cassella on the grounds that the Defendants were not entitled to a qualified immunity as a matter of law. On April 29, 1980, the issue of damages suffered by Plaintiff Glick was tried to the Court and the advisory jury. At the same time, evidence was presented on the damages suffered by Plaintiffs Picariello and Glick as the result of the constitutional violations. This was done before the Court ruled on Plaintiffs' motion for judgment notwithstanding the verdict on the theory that if the Court denied Plaintiffs' motion, which it subsequently did in opinion and order # 1 of this day. Picariello v. Fenton, 491 F. Supp. 1020, and if that decision is reversed on appeal, there will be no need for further proceedings. The jury awarded Picariello and Glick each $ 1.00 in damages.

 The following represent the Court's findings of fact, discussion, and conclusions of law with respect to the Plaintiffs' claims filed under the Federal Tort Claims Act.

 II. Findings of Fact.

 1. Each Plaintiff filed written tort claims with the Federal Bureau of Prisons. The claims filed by all the Plaintiffs except Plaintiff Ozgur were pending for more than six months when the second amended complaint was filed. Plaintiff Ozgur's claim filed August 8, 1979 was still pending when the second amended complaint was filed.

 2. On April 11, 1978, Lt. Joseph Humme was told by the acting Associate Warden at the Lewisburg Penitentiary to take the Lewisburg bus to Atlanta to pick up a load of prisoners.

 3. Lt. Humme knew before he left for Atlanta that the prisoners he was going to pick up in Atlanta were unusually dangerous.

 4. Humme and officers Bidelspach and Wagner arrived in Atlanta at 1:30 A.M. on April 13, 1978.

 5. Humme saw a list of the names of the inmates he was to transport.

 6. Humme recognized some of the prisoners on the list from his prior experience in Atlanta.

 7. On the morning of April 13, 1978, Humme placed restraints on the prisoners who were going to be transported on his bus after they had been strip searched.

 8. The prisoners were not inspected by a metal detector by Humme or anyone else before they boarded the bus.

 9. The bus with Humme in charge left Atlanta at around 10:00 A.M. on April 13, 1978 and proceeded to the federal prison in Petersburg, Virginia.

 10. When the bus arrived at Petersburg on the evening of April 13, 1978, Humme was told by Officer Wagner that inmates had been out of their restraints on the bus.

 11. On the evening of April 13, 1978, at Petersburg, Humme and other officers removed the prisoners' restraints with one exception.

 12. Humme had to have the handcuffs cut from one prisoner because a foreign object had become jammed in the keyhole.

 13. Humme learned on the following morning, April 14, 1978, that a security bar had been cut on another bus which on April 13, 1978 had been used to bring a group of prisoners from Atlanta to Petersburg.

 14. Because of the discovery of the cut bar on the bus and the discovery that prisoners had unlocked or attempted to unlock their restraints on April 13, 1978, the prisoners were inspected with a metal detector before they boarded the buses on April 14, 1978.

 15. Humme was told by officials at Petersburg that Wallace, a prisoner on one of the buses, concealed in his anal cavity a metal vial four inches long which contained an ice pick type instrument and file.

 17. From the rear cage of the bus, en route Humme observed Plaintiff Glick who had removed his leg irons.

 18. Humme also observed Glick in the process of "picking" his handcuffs.

 19. Humme also observed prisoner Crouch halfway out of his leg irons.

 20. Humme told the officers in the front of the bus via the bus's communication system that prisoners were out of their restraints and others were trying to get out of their restraints.

 21. Humme told the other officers to call the U.S. Marshal on the bus's radio as soon as they were within range of the Marshal's Office in Harrisburg, Pennsylvania.

 22. Humme requested vehicles from the Marshal's Service and a state police vehicle to escort the bus through Harrisburg.

 23. During the time Humme was seeking assistance many of the prisoners were cursing him and the other officers, moving about, and otherwise misbehaving.

 24. The bus was later met near Harrisburg by a car with officers from the Marshal's Service and a state police car.

 25. Humme heard the sound of handcuffs being relocked when the state policemen appeared.

 26. Between Petersburg and Lewisburg Humme was seriously concerned that there would be an escape attempt. Humme thought 90% of the prisoners on his bus were out of their restraints and he told this to Warden Fenton upon his arrival at Lewisburg.

 27. Vernon Crouch, a prisoner in Humme's bus, was able while testifying at trial to open his handcuffs with a key fashioned from a match book cover once the cuffs were taken off deadlock.

 28. The inmates on bus 1 had at least one picking device which enabled them to take the cuffs off deadlock.

 29. Warden Fenton listened to the radio communications intermittently that afternoon and evening on the radio in his office.

 30. Radio communications can be picked up at least 3 miles from the Lewisburg institution.

 31. Fenton heard that there was trouble on the first bus.

 32. Fenton and other prison officials received no word of trouble aboard the second bus before it arrived in Lewisburg.

 33. After Fenton heard the report about the first bus he ordered some of the day shift to stay overtime to assist in the processing of the prisoners that night.

 34. The day shift normally terminates at about 4:15 P.M.

 35. On April 14, 1978, Lt. Wicka was on duty as the day shift correctional supervisor.

 36. Fenton instructed Wicka to take some correctional officers and a vehicle to meet the first incoming bus, to render any assistance thought to be necessary and to escort the bus to Lewisburg.

 37. This was the first time Fenton ever heard of an officer on a prison bus requesting custodial assistance in the 25 years Fenton had been with the Bureau of Prisons.

 38. Fenton sent a cameraman from the penitentiary with video equipment with Wicka.

 39. Wicka left Lewisburg just after 4:00 P.M., and met the bus near Harrisburg on U.S. Route 15.

 40. The bus was hailed by radio by Wicka and pulled over to the side of the road. Wicka deployed officers around the bus who were armed with shotguns and pistols.

 41. None of the weapons was pointed at the passengers on the bus.

 42. Wicka told Humme that he understood that the inmates were removing their restraints and asked Humme whether he wanted Wicka to go with him into the bus to put the restraints back on the inmates.

 43. While this discussion was going on Wicka could hear the clicking of the cuffs onto the inmates' wrists.

 44. Humme decided that the bus could make it to the penitentiary.

 46. Fenton knew that some of the prisoners on the buses destined for the Lewisburg Penitentiary were dangerous prisoners who had been transferred from the Atlanta Penitentiary.

 47. On the afternoon of April 14, 1978, Fenton read a telegram which listed the names of prisoners who were on the buses destined for the Lewisburg Penitentiary.

 48. Fenton and Capt. Roland Cassella knew most of the prisoners listed in the telegram from their prior service with the Bureau of Prisons.

 49. After being informed that there were problems with the prisoners on the incoming bus Fenton began formulating plans for responding to the situation.

 50. Fenton had prisoners in the Special Housing Unit placed two and three to a cell to make room for the incoming prisoners.

 51. The plans formulated by Fenton for receiving the buses at the Lewisburg Penitentiary took into account the attitude and appearance of the prisoners when they arrived at the penitentiary.

 52. If when the prisoners arrived at the penitentiary they appeared to be obedient, the buses were to proceed to the normal receiving area, the prisoners were to be permitted to leave the bus in the normal manner, and they were to be processed into the institution and assigned to cells.

 53. If when the prisoners arrived at the penitentiary they appeared to be violent, the plan called for correctional officers to board the buses outside the wall of the penitentiary to prevent prisoners inside from rioting in sympathy with those on the bus.

 54. The plan put in effect was the one based on the prisoners arriving in an apparent obedient frame of mind.

 55. The plan required the creation of three squads totalling approximately 35 officers.

 56. Fenton appointed Cassella, then a captain at Lewisburg, as the leader of the first squad.

 57. The first squad was given the assignment by Fenton of lining both sides of the steps which lead into the receiving room.

 58. Many members of the first squad wore jump suits and helmets and carried riot batons or pick handles.

 59. The squad outside on the steps, at times, consisted of at least the following persons:

Warden Fenton
Captain Cassella
John Kilkeary (Undisputed fact, hereinafter U)

 60. At about 6:30 P.M. on April 14, 1978 Humme's bus carrying thirty federal prisoners (Bus 1) arrived at the U.S. Penitentiary at Lewisburg, Pennsylvania. (U)

 61. Among the thirty prisoners on the first bus, the following are plaintiffs in this action:

Leslie Atkinson
William Brown
Mark Cook
Raymond Esquer
Joseph Gerald
Casson Glick
Donald Hallock
John Honore
John Kurtz
Haskell Martin
Robert Larry Mayes
James Morrell
Richard Picariello
Patrick Shanahan
Ron Sheperd
Paul Solina.

 62. Lt. Humme told prison officials when the bus was inside the prison and before the prisoners left the bus that all prisoners appeared to be in their restraints, and there was no problem on the bus at that time. (U)

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