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Qualified Immunity Appeal Deemed Frivolous; California Pays Beaten Prisoner $149,500

( In a prisoner 42 U.S.C. § 1983 suit alleging the brutal beating of a San Quentin prisoner by six guards, United States District Judge Charles Breyer (N.D. Cal.) threatened sanctions against California's State Attorney General Bill Lockyer if the state stooped to appeal Breyer's ruling denying its request for qualified immunity. Judge Breyer stated that if the deputy attorney general assigned to the case wished to appeal the decision, he wanted Attorney General Bill Lockyer to personally make it. Noting that the prisoner's complaint was corroborated by 27 witnesses, Judge Breyer told Deputy Attorney General Michael German that the court deemed the state's request for qualified immunity to be so frivolous as to warrant sanctions. The state backed down and settled quickly with the prisoner for $149,500.

Gary Thelen, a former San Quentin prisoner, suffers from post-traumatic stress syndrome from his Berlin-wall era military service in Germany, for which he receives psychiatric medication. He experiences frequent claustrophobic reactions and flashbacks. In August 1998, after having been moved from dormitory housing to a fifth tier cell in North block, Thelen suffered a severe claustrophobic reaction at 1 a.m. To reduce the reaction, he curled up on the floor next to the door, where he wept uncontrollably and was overwhelmed with anxiety.

A crew of five guards, headed by South Block Sergeant Shadeed Hasan, visited Thelen's cell at that time and prodded him with a broomstick under the door. They then dragged him from his cell and lifted him by the throat. At that point, Thelen alleged Hasan repeatedly struck Thelen's right ear with his rubber-gloved hand, rupturing Thelen's eardrum. Hasan and the others then dragged Thelen, who offered no resistance, down the five flights of stairs. The ear injury required two surgeries, but Thelen still suffers hearing and balance problems.

Thelen's attorney, Sara Norman of the Prison Law Office, adduced 27 sworn statements from prisoners and guards in support of Thelen's allegations, although a San Quentin internal affairs investigation found no improper conduct. The state Office of the Inspector General found that required use-of-force forms had not been filed. But that report went on to say it found evidence that Hasan and the guards had lied to investigators in describing the removal of Thelen from his cell," Judge Breyer noted, adding that the guards' behavior, if true, is brutal.

Outraged by the years of delay in Thelen's trial, Judge Breyer deemed the latest request for qualified immunity to be solely for the purpose of delay, and set the trial for February 22, 2004. In January, the state settled with Thelen for $149,500. The figure includes attorney fees and costs. However, this does not foreclose the possibility of federal criminal proceedings against Hasan, who stuck by his story after the five guards recanted their original self-serving versions. See: Thelen v. Hasan, USDC ND CA, Case No. C-01-1314 CRB. g

Source: San Francisco Daily Journal.

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Related legal case

Thelen v. Hasan