×
You have 1 more free article available this month. Subscribe today.
California Prisoner Wins Judgment Against Guard in Shooting
Herbert Green, a 51 year old African-American prisoner, filed a pro se §1983 action against Robert Konkel, a prison guard at Calipatria State Prison, alleging that Konkel violated his eighth amendment rights by shooting him. The case proceeded to trial where a jury awarded Greene $1 in compensatory damages and $10,000 in punitive damages.
Green, who is now in Pelican Bay State Prison, wrote PLN about the case and provided the federal district court's ruling denying Konkel's motion for a new trial.
In that ruling, the court reviewed the law and the findings of the jury. The evidence established that Konkel had been angry with Greene and during a "heated exchange" witnessed by other prisoners who testified at trial, Konkel was heard to tell Greene, 'You'll get yours." Konkel denied he made such a statement.
Later, during a fight between two other prisoners on the Calipatria unit where Greene was housed, Konkel, armed with a rifle, ordered everyone down, a command with which no one complied. Konkel testified that Greene was moving toward the prisoners involved in the disturbance. Konkel shot at Greene. The bullet ricocheted off the wall and some bullet fragments embedded in Greene's left arm and back.
Konkel wrote a violation report accusing Greene of being involved in the fight. The prison administration, however, determined that Greene was not involved.
"Key to Konkel's defense," writes judge Barry Ted Moskowitz, 'was his testimony, which the jury evidently found not credible. The jury found that Konkel selected Greene as his target maliciously and sadistically to cause him pain and not for a legitimate penological purpose, such as stopping a disturbance."
Konkel testified that he aimed for Greene's leg after he yelled at Greene to stop. The bullet, however, struck the wall five feet, one inch off the floor. The court found that circumstantial evidence supports the inference that Konkel was shooting at Greene's head.
"In my victory was defeat," Greene said in his letter to PLN. "I clearly proved a case of attempted murder to the jury and they gave me $1 in compensatory damages and $10,000 in punitive damages, which is a mockery to justice."
Green says there were no African-Americans in his jury pool. "I was weakly told all Blacks were sent to other court rooms," he said. The jury pool, he says, was comprised of people who had all been victims of crime or had family members who were victims of crime. Half the jury pool stated they had a "peace officer" as a friend or family member.
"The jury was rigged," observes Greene, "but the overwhelming evidence I had against the prison guard forced the jury to give me the verdict."
Greene reports that "from the very beginning of filing this lawsuit, I have suffered much in the form of duress and harassment as well as physical threats from the brotherhood of prison guards." He claims that Calipatria guards "planted a weapon in my legal envelopes to stop me from having access to the law library."
From Calipatria, Greene was shipped to the notorious Corcoran SHU (where it's a wonder he was not killed in the infamous Corcoran SHU yard "shooting gallery") and then to Pelican Bay.
"Please let me know," writes Greene, "if you can recommend to 60-Minutes news program to look at my case. Hopefully we can save the lives of other prisoners in the future by waking up the public."
The case is: Greene v. K.W. Prunty, et al. No. 94CV1516 BTM(LSP). The editors of PLN have forwarded Herbert Greene's letter and a copy of the court ruling to the producers of 60 Minutes.
Green, who is now in Pelican Bay State Prison, wrote PLN about the case and provided the federal district court's ruling denying Konkel's motion for a new trial.
In that ruling, the court reviewed the law and the findings of the jury. The evidence established that Konkel had been angry with Greene and during a "heated exchange" witnessed by other prisoners who testified at trial, Konkel was heard to tell Greene, 'You'll get yours." Konkel denied he made such a statement.
Later, during a fight between two other prisoners on the Calipatria unit where Greene was housed, Konkel, armed with a rifle, ordered everyone down, a command with which no one complied. Konkel testified that Greene was moving toward the prisoners involved in the disturbance. Konkel shot at Greene. The bullet ricocheted off the wall and some bullet fragments embedded in Greene's left arm and back.
Konkel wrote a violation report accusing Greene of being involved in the fight. The prison administration, however, determined that Greene was not involved.
"Key to Konkel's defense," writes judge Barry Ted Moskowitz, 'was his testimony, which the jury evidently found not credible. The jury found that Konkel selected Greene as his target maliciously and sadistically to cause him pain and not for a legitimate penological purpose, such as stopping a disturbance."
Konkel testified that he aimed for Greene's leg after he yelled at Greene to stop. The bullet, however, struck the wall five feet, one inch off the floor. The court found that circumstantial evidence supports the inference that Konkel was shooting at Greene's head.
"In my victory was defeat," Greene said in his letter to PLN. "I clearly proved a case of attempted murder to the jury and they gave me $1 in compensatory damages and $10,000 in punitive damages, which is a mockery to justice."
Green says there were no African-Americans in his jury pool. "I was weakly told all Blacks were sent to other court rooms," he said. The jury pool, he says, was comprised of people who had all been victims of crime or had family members who were victims of crime. Half the jury pool stated they had a "peace officer" as a friend or family member.
"The jury was rigged," observes Greene, "but the overwhelming evidence I had against the prison guard forced the jury to give me the verdict."
Greene reports that "from the very beginning of filing this lawsuit, I have suffered much in the form of duress and harassment as well as physical threats from the brotherhood of prison guards." He claims that Calipatria guards "planted a weapon in my legal envelopes to stop me from having access to the law library."
From Calipatria, Greene was shipped to the notorious Corcoran SHU (where it's a wonder he was not killed in the infamous Corcoran SHU yard "shooting gallery") and then to Pelican Bay.
"Please let me know," writes Greene, "if you can recommend to 60-Minutes news program to look at my case. Hopefully we can save the lives of other prisoners in the future by waking up the public."
The case is: Greene v. K.W. Prunty, et al. No. 94CV1516 BTM(LSP). The editors of PLN have forwarded Herbert Greene's letter and a copy of the court ruling to the producers of 60 Minutes.
As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.
Already a subscriber? Login
Related legal case
Greene v. K.W. Prunty, et al.
| Year | 1994 |
|---|---|
| Cite | No. 94CV1516BTM (LSP) |
| Level | District Court |
| Conclusion | Jury Verdict |
| Damages | 10001 |
| Injunction Status | N/A |