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December 7, 1992



The opinion of the court was delivered by: BY THE COURT; STEWART DALZELL


Dalzell, J.

 December 7, 1992

 William C. Giroux, an inmate at Graterford state prison in eastern Pennsylvania, has brought this action under 42 U.S.C. § 1983 against eight correctional officers at the institution. *fn1" He claims that, on four separate occasions, certain of the defendants beat and tormented him without provocation.

 We held a trial without a jury on December 1, 2, and 3. The following will constitute our findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a).

 We have jurisdiction under 28 U.S.C. §§ 1331 and 1343(a)(3).

 Factual and Legal Background

 The State Correctional Institution at Graterford, Pennsylvania, is a very large prison with a population of approximately 2,600 inmates during the times relevant to this action. According to the testimony of Deputy Superintendent William R. Winder, there are three duty shifts for correction officers, with the 6:00 a.m. to 2:00 p.m. shift having the most officers on duty, approximately 220 of them during the years in question here.

 The inmates at Graterford vary from murderers on death row to much more pacific individuals. The prison is therefore divided into several blocks and units, of varying degrees of restrictiveness. "A-Block", for example, is, according to Deputy Superintendent Winder, reserved for well-behaved inmates. Inmates in A-Block have far more privileges, and typically serve in the prison jobs requiring the most trustworthiness.

 In order to maintain discipline at the institution, there is a restricted housing unit, which all of the witnesses referred to as the "RHU". Inmates held in the RHU spend 23 out of 24 hours in their cells, and are essentially deprived of all privileges.

 It was quite apparent from the testimony that maintaining order and discipline at Graterford is, as one would expect, not an easy or pleasant task. The correctional officers and management of the institution are constantly presented with the harsh realities of coping with a town-size population of convicted criminals.

 Given the grim realities of prison life, the Supreme Court of the United States has in recent years affirmed the rule that federal courts are not to engage in the micro-management of prison discipline. Thus, " 'prison administrators . . . should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.'" Whitley v. Albers, 475 U.S. 312, 321-322, 89 L. Ed. 2d 251, 106 S. Ct. 1078 (1986), quoting Bell v. Wolfish, 441 U.S. 520, 547, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979).

  Where, as here, the suit alleges excessive physical force against a prisoner, Eighth Amendment concerns are implicated: " 'the unnecessary and wanton infliction of pain . . . constitutes cruel and unusual punishment forbidden by the Eighth Amendment.'" Whitley, 475 U.S. at 319, quoting Ingraham v. Wright, 430 U.S. 651, 670, 51 L. Ed. 2d 711, 97 S. Ct. 1401 (1977). This year the Supreme Court reaffirmed as the standard in such cases that "the core judicial inquiry" is "whether force was applied in a good faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson v. McMillian, 117 L. Ed. 2d 156, U.S. , 112 S. Ct. 995, 999 (1992). *fn2" Or, as Justice O'Connor, the author of the Court's opinion in Hudson, put it for the Court in Whitley, "The question whether the measure taken inflicted unnecessary and wanton pain and suffering ultimately turns on 'whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.'" Whitley, 475 U.S. at 320-321, quoting Johnson v. Glick, cited in n. 2 hereof.

 The resolution of our inquiry under the standards the Supreme Court has set for us necessarily involves the finder of fact in making often difficult credibility determinations. Put another way, these cases typically evolve, as this one has, into a swearing contest between the inmate and his putative antagonists.

 As noted, Mr. Giroux claims to have been the victim of unprovoked beatings on four occasions. The first took place early on August 31, 1989, and largely involved Corrections Officer Edward Sherman, though Mr. Giroux claims that he was roughly treated after the primary incident that day by defendant Correctional Officers Wilson and Ligon.

 Mr. Giroux asserts that, late on September 13, 1989, he was wantonly beaten by defendant David Sherman, the brother of Edward Sherman, who was also a corrections officer at the time at Graterford. *fn3" Mr. Giroux also avers that David Sherman forced a long walk back to Mr. Giroux's cell immediately after Mr. Giroux was taken to the infirmary late at night on a stretcher because of possible cardiac trouble. Toward the end of the ordeal, Mr. Giroux asserts that at least three other correctional officers ganged up and beat him, among them defendant David Springer.

 Mr. Giroux also claims that in January of 1990, defendant Robert Weikel, a corrections officer, entered his cell and struck him repeatedly in the kidney area. No other corrections officers are implicated in this incident.

 Finally, Mr. Giroux asserts that in December of 1990, he was punched in the throat and head by Corrections Officer Krieg and possibly in the presence of Corrections Officer Harris, who is not a defendant in this action.

 We will consider each of these incidents in turn, after noting that the parties have stipulated that "at all times, each of the defendants were acting under color of state law." *fn4"

 August 31, 1989 Incident

 Mr. Giroux testified that in August of 1989 he was an inmate in the A-Block at Graterford. He was then a "truck pusher", that is, an inmate whose duty it was to push a large handtruck to deliver breakfasts to locked-in, transient inmates. *fn5" Mr. Giroux stated that the deliveries of breakfasts started around 6:00 a.m. and, since this was to be his first day on his own on the job (i.e., without a trainer escort), he awakened early, got out of his cell at approximately 5:20 a.m. (his cell door having been earlier "cracked" by Officer Sankey), and finished showering and dressing in about ten minutes.

 In order to get to the kitchen, it is necessary for a corrections officer to "key-up", which is prison argot for the corrections officer to come to a door and unlock it for an inmate. Mr. Giroux testified that he asked Corrections Officer Sankey to "key-up" but was told that he had to ask Officer Edward Sherman. Mr. Giroux testified that Officer Edward Sherman replied, "I'll let you back when I fucking feel like it." In response, Mr. Giroux sat down on the steps and waited for another ten minutes. He then asked another inmate to intercede, but he heard Officer Sherman say to the inmate, "Fuck him."

 It is worth pausing here to note that this refusal to allow Mr. Giroux into the kitchen at this time represents telling evidence of the officers' malice toward Mr. Giroux. It is undisputed that "culinary workers" from A-Block routinely were allowed into the kitchen even well before the time of Mr. Giroux's first request. While he was not a cook, it is quite apparent that, to be ready to start deliveries by 6:00 a.m. to the transient prisoners, it is necessary for the truck pusher to get to the kitchen well before the stroke of the hour. Given Mr. Giroux's manifest reliability, as well as his natural desire to show up for work promptly on the first day of his solo activity, Edward Sherman's refusal of Mr. Giroux's request could under these circumstances only have been motivated by spite, at best.

 At about 5:50 a.m., Mr. Giroux went to the bridge that straddles the fifty-foot middle of the 692-foot long cavern of A-Block. He pleaded with Officer Sherman, "What do you want. I don't want to be fired", but was told, "If you bother me one more time, I'll write you up." In this context, a "write-up" would mean a lock-up under restrictive conditions. Mr. Giroux testified that he said, "What for? Why? What did I do?"

 After repeating "lock up" to the exasperated Mr. Giroux, Officer Sherman pushed Mr. Giroux up against the wall between cells 100 and 102, as a result of which Mr. Giroux said, "Keep your hands off me. I want to see your supervisor." Mr. Giroux then retreated toward the front of the block and started to pound on the door to the main outside corridor where the office of the Day Captain is. The Day Captain is the senior corrections officer in charge of the facility for each shift. Officer Sherman followed Mr. Giroux and, perhaps infuriated at an attempt to go over his head, shoved Mr. Giroux backward and down the steps. Mr. Giroux shouted "Assistance!", but Officer Sherman again shoved and pushed him and kicked him in various parts of the body. Mr. Giroux immediately curled up in agony from this, and Officer Sherman continued to pummel him. Mr. Giroux claims that Officer Sherman stomped on him and continuously struck his kidneys for "what seemed like forever".

 Lt. John Gysen arrived a few minutes after he first heard the banging on the door, and said, "What the hell is going on?" Other guards arrived. Mr. Giroux stated, "He assaulted me" and Officer Sherman claimed the opposite. Sherman's accusation was credited on the spot, and, according to Mr. Giroux, he was then ...

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