Loe v. Armistead, 582 F.2d 1291 (4th Cir. 08/16/1978)

[1] UNITED STATES COURT OF APPEALS, FOURTH CIRCUIT

[2] Nos. 77-2039, 77-2134, 77-2135

[3] 582 F.2d 1291

[4] decided: August 16, 1978.

[5] RICHARD C. LOE,
v.
LOUIS L. ARMISTEAD, SHERIFF, CITY OF ALEXANDRIA; MR. FOX, CAPTAIN, ALEXANDRIA CITY JAIL; LT. CHERRY, ALEXANDRIA CITY JAIL; MR. ISABELLE, OFFICER, ALEXANDRIA CITY JAIL; MR. HOLLOW, OFFICER, ALEXANDRIA CITY JAIL; LT. CHARITY, ALEXANDRIA CITY JAIL; MR. DREW, FORMER OFFICER OF ALEXANDRIA CITY JAIL; UNKNOWN NURSES, ALEXANDRIA CITY JAIL; DR. NOVAK, ALEXANDRIA CITY JAIL; MR. MOFFITT, U.S. MARSHAL; MR. MORROW, EMPLOYEE OF ALEXANDRIA CITY JAIL; WILLIAM D. FOX, U.S. MARSHAL, APPELLEES. RICHARD C. LOE, APPELLANT, V. MR. MOFFITT, UNITED STATES MARSHAL, WILLIAM D. FOX, UNITED STATES MARSHAL, UNKNOWN UNITED STATES MARSHALS, APPELLEES. RICHARD C. LOE, APPELLANT, V. SHERIFF ARMISTEAD, SHERIFF OF THE CITY OF ALEXANDRIA; MR. FOX, CAPTAIN AT THE ALEXANDRIA CITY JAIL; MISS OR MRS. DODSON, NURSE AT THE ALEXANDRIA CITY JAIL; UNKNOWN NURSE AT THE ALEXANDRIA CITY JAIL; MR. CHERRY, LIEUTENANT AT THE ALEXANDRIA CITY JAIL; MR. ISABELLE, DEPUTY AT THE ALEXANDRIA CITY JAIL; MR. HOLLOW, DEPUTY AT THE ALEXANDRIA CITY JAIL; MR. CHARITY, LIEUTENANT AT THE ALEXANDRIA CITY JAIL; AND MR. DREW, FORMER DEPUTY AT THE ALEXANDRIA CITY JAIL; APPELLEES.

[6] Appeals from the United States District Court for the Eastern District of Virginia, at Alexandria. Albert V. Bryan, Jr., District Judge.

[7] Robert S. Catz, Arlington, Va. (Carol Miller and Sandy Tichenor, The Urban Law Institute of the Antioch School of Law, Washington, D.C., on brief), for appellant.

[8] John E. Greenbacker, Jr., Asst. Commonwealth Atty., Lawrence W. Chamblee, Sp. Asst. U. S. Atty., Alexandria, Va. (William B. Cummings, U. S. Atty., Robert F. McDermott, Asst. U. S. Atty., William L. Cowhig, Commonwealth Atty., Alexandria, Va., on brief), for appellees.

[9] Before Winter, Butzner and Hall, Circuit Judges.

[10] Author: Winter

[11] The district court, without requiring an answer, summarily dismissed Richard Loe's Pro se suit against federal officers, state officers and state employees. The suit alleged that, while Loe was in pretrial custody, the defendants deliberately denied him adequate medical treatment for a broken arm and that, while transporting him to Springfield, Missouri, his medical needs arising from the broken arm were ignored by federal marshals. The district court's dismissal was under Rule 12(b)(6), F.R.Civ.P., for failure to state a claim upon which relief could be granted.*fn1 The questions before us are whether Loe alleged a cause of action against the state defendants, whether he has a cause of action against the federal defendants and, if so, whether he sufficiently alleged it.

[12] We affirm in part, reverse in part and remand for further proceedings.

[13] I.

[14] We state the facts alleged in Loe's Pro se complaint which we must accept as true for the purpose of deciding this appeal since the complaint was dismissed for failure to state a claim:

[15] At a time when he was a federal prisoner awaiting retrial on federal charges of bank robbery, Loe was detained in the Alexandria, Virginia local jail under a leasing agreement. On April 18, 1977, at approximately 10:00 a. m., he injured his right arm when he slipped and fell on the basketball court at the jail. Loe was immediately taken to the infirmary. A nurse, whose identity is unknown, examined his arm and gave him pills for the pain. She said that she would notify the jail doctor but cautioned Loe that if hospital care were necessary, the United States marshals would have to be summoned because only they were authorized to transport federal prisoners. Loe was returned to his cell.

[16] By noon the condition of his arm had worsened and it was obvious that the arm was broken since it was swollen around the upper forearm and elbow and it was locked in an extraordinary position. Throughout the day, until approximately 6:00 p. m., Loe repeatedly requested that he be taken to the hospital. He was repeatedly told that only the marshals could take him to a hospital and that they had been notified of his injury. Finally, at approximately 9:00 p. m. the jail physician, Dr. Novak, examined the arm. Novak concluded that x-rays would be necessary to determine whether the arm was broken, and Novak told Loe that the marshals would take him to the hospital in a day or so. At 8:30 a. m. the next day, April 19, United States marshals took Loe to a hospital. X-rays showed a fracture of the right arm, so Dr. Novak, who was present in the hospital, placed it in a full cast. Loe was then returned to the Alexandria jail.

[17] About two and one-half weeks later, Loe began to experience considerable pain in the arm. After several days of this pain, the marshals returned Loe to the hospital. Dr. Novak examined him and took more x-rays. These showed that the fracture had not healed. Dr. Novak replaced the full cast with a half-cast and said that this should remain on for two weeks.

[18] On May 13, 1977, Loe was transferred to the Springfield, Missouri Medical Center for psychiatric observation because he had expressed an intention to defend the federal bank robbery charges against him on grounds of mental incompetency. The trip, which was made by van, required two days of 12 to 13 hours' driving. He was accompanied by two United States marshals. They insisted that he remain handcuffed to his waist throughout the trip, notwithstanding his protests that this restraint increased the pain in his injured arm, which was still in a half-cast. Loe was told that he would receive medical attention when he reached his destination.

[19] Loe alleged that while at Springfield he removed the half-cast as per the instructions of Dr. Novak. He does not allege, however, that prior to then the medical condition of his arm required special treatment or that he sought medical care upon his arrival in Springfield. He does claim that his arm has never properly healed, that it is painful and that normal motion has not returned. However, Dr. Novak, who examined him since he was returned to Alexandria, is of a contrary view since the arm is not causing serious pain.

[20] Based upon these factual allegations, Loe charged that the defendants, two known and one unknown United States marshals, and various officials, guards, nurses and the physician at the city jail, had violated the eighth amendment in failing to provide prompt and adequate medical care for the injury to his arm, both prior to his leaving the Alexandria City Jail and upon his return. A claim based on the eighth amendment was also made against the marshals who accompanied him to Springfield for their alleged disregard of his medical needs during the trip. Loe concluded with the general allegation that the defendants had "deliberately remained indifferent to the plaintiff's medical needs." His complaint sought damages, both compensatory and punitive, and equitable relief. In particular, it requested a declaration that existing procedures for transporting federal prisoners in state facilities to hospitals were unconstitutional and an order directing the adoption of procedures better suited to ensure adequate care.

[21] II.

[22] The claims against the officials and employees of the Alexandria City Jail, including Dr. Novak, may, of course, be brought under 42 U.S.C. § 1983. But their conduct in most part is inextricably linked with the alleged conduct of the federal marshals. Before we consider whether the facts alleged state a cause of action against the defendants, or any of them, we must first decide whether an action may be maintained against the United States marshals named in the complaint.

[23] At the outset, we note that Loe was not a prisoner detained under a judgment of conviction; rather, he was a pretrial detainee. Under such circumstances, the protections that apply to him are found in the due process clause of the fifth amendment, since he was a federal prisoner, rather than in the eighth amendment's prohibition against cruel and unusual punishment. Duran v. Elrod,542 F.2d 998, 999-1000 (7 Cir. 1976); Detainees of Brooklyn House of Det. for Men v. Malcolm, 520 F.2d 392, 397-98 (2 Cir. 1975); Rhem v. Malcolm, 507 F.2d 333, 337-38 (2 Cir. 1974); Fitzke v. Shappell, 468 F.2d 1072 (6 Cir. 1972). Indeed, in Duran it was held that state pretrial detainees were entitled to greater protection under the due process clause of the fourteenth amendment than that afforded them under the eighth amendment; since "they are convicted of no crime for which they may presently be punished, the state must justify any conditions of their confinement solely on the basis of ensuring their presence at trial."542 F.2d at 1000.

[24] In the instant case, we need not decide the exact scope of the protection that due process provides because we agree with Duran that due process is at least as co-extensive as the guarantees of the eighth amendment; and we think that, under the eighth amendment, Loe has alleged sufficient facts to render his complaint immune to summary dismissal under Rule 12(b)(6).

[25] We return therefore to the issue of Loe's rights, if any, against the federal marshals. In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971), the Supreme Court held that the victim of an unconstitutional search by federal officers could recover damages from the officers in an action based directly on the fourth amendment. We think that, on the authority of Bivens, damages may be recovered from federal agents on a fifth amendment violation.

[26] Although Bivens does not speak directly to the availability of damage remedies derived from other constitutional rights, there would seem to be no principled basis for limiting Bivens to the fourth amendment. Bivens teaches that, at least where there are no special factors counselling hesitation, federal courts may grant traditional damage remedies, as well as equitable relief, to persons whose constitutional rights have been violated.403 U.S. at 395-97, 29 L. Ed. 2d 619, 91 S. Ct. 1999. Bivens indicated that such special factors might be present where a remedy might implicate questions of federal fiscal policy or where there was an "explicit congressional declaration that persons injured by a federal officer's violation of the Fourth Amendment may not recover money damages from the agents, but must instead be remitted to another remedy, equally effective in the view of Congress."403 U.S. at 397, 91 S. Ct. at 2005. Another factor might be whether the injury caused by the constitutional deprivation is one for which monetary compensation would normally be appropriate.403 U.S. at 408-09, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (Harlan, J., concurring).

[27] We conclude that no special factors counsel hesitation in this case. Congress has provided no other remedy for the alleged denial of this fifth amendment right. The alleged denial does not raise a question of federal fiscal policy, and "historically, damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty." Bivens,403 U.S. at 395, 91 S. Ct. at 2004. We therefore hold that a damage action may be maintained against the marshals directly under the fifth amendment.

[28] This result accords with the preponderance of authority; other courts have readily extended Bivens to create damage remedies against federal officials for violations of constitutional violations other than the fourth amendment.*fn2 E. g. Dellums v. Powell, 184 U.S.App.D.C. 275, 566 F.2d 167 (1977) (first amendment); Paton v. La Prade, 524 F.2d 862, 869-70 (3 Cir. 1975) (first amendment); Wounded Knee Legal Defense/Offense Comm. v. FBI, 507 F.2d 1281, 1284 (8 Cir. 1974) (sixth amendment); Patmore v. Carlson, 392 F. Supp. 737, 739-40 (E.D.Ill.1975) (eighth amendment). More significantly, in States Marine Lines, Inc. v. Shultz, 498 F.2d 1146 (4 Cir. 1974), we have already held that customs officials who are alleged to have deprived the owner of a cargo of its property without due process of law, under the cloak of federal statutory authority vested in them, may be sued in a Bivens -type action. Thus, finding that both federal and state officers may be liable in damages for their violations of the fifth amendment, we turn to the specific allegations in this case.

[29] III.

[30] It is elementary that a complaint should not be dismissed under Rule 12(b)(6) for failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson,355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957). The standard of proof for dismissal under Rule 12(b)(6) is demanding because the Federal Rules of Civil Procedure are premised on the notion that disputes should be decided on their facts, as developed through discovery and at trial, rather than on the skill or ineptitude with which the pleadings are drawn. See Bolding v. Holshouser,575 F.2d 461 (4 Cir. 1978); C. Wright, Federal Courts § 68 (3d ed. 1976). And liberal construction of pleadings is particularly appropriate where, as here, there is a Pro se complaint raising civil rights issues. See Haines v. Kerner,404 U.S. 519, 521, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972); Gordon v. Leeke, 574 F.2d 1147, 1151 (4 Cir. 1978); Canty v. City of Richmond Police Dept., 383 F. Supp. 1396, 1399-1400 (E.D.Va.1974), Aff'd, 526 F.2d 587 (4 Cir. 1975), Cert. denied, 423 U.S. 1062, 96 S. Ct. 802, 46 L. Ed. 2d 654 (1976).

[31] Of course, whether a complaint states a cognizable claim depends ultimately on the applicable law. Analysis of the legal issues in this case is simplified by the Supreme Court's recent decision in Estelle v. Gamble,429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976), with regard to the right to medical treatment under the eighth amendment. Speaking to a state prisoner's claim that inadequate medical treatment had caused him to suffer cruel and unusual punishment, the Gamble Court stated: