Baldwin v. Stalder

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

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No. 96-30225
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CARNELL KENT BALDWIN,

Plaintiff-Appellant/Cross-Appellee,

versus

RICHARD L. STALDER; ET AL.,

Defendants,

RICHARD L. STALDER; JAMES W. HERRON,

Defendants-Appellees/Cross-Appellants.

Appeals from the United States District Court
for the Eastern District of Louisiana

March 17, 1998

Before POLITZ, Chief Judge, GARWOOD, and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge.

Primarily at issue is whether the district court erred in

finding that, through excessive force, prison official James W.
Herron violated the Eighth Amendment rights of inmate Carnell Kent

Baldwin. We REVERSE that portion of the judgment and RENDER.

I.

Late in 1993, Baldwin, an inmate at Washington Correctional

Institute (WCI), filed a 42 U.S.C. § 1983 action, claiming that, as

a result of two incidents on two successive days, numerous prison

officials, inter alia, through use of excessive force violated his

Eighth Amendment rights. Two of the named defendants were Richard
L. Stalder, Secretary of the Louisiana Department of Public Safety

and Corrections, and WCI prison official Lieutenant Colonel Herron.

Baldwin’s action began with an incident at WCI on 3 August

1993, in which he and approximately 100 other inmates witnessed a

confrontation between a guard and an inmate (prison-yard incident).

After order was restored, Baldwin continued to protest verbally.

While being removed from the area by a guard, Baldwin began to

struggle, at which point other guards were called to subdue him.

(Baldwin testified that he struggled due to a sore shoulder, not

out of resistance; and that, as a result, he suffered serious

injuries.)

The next day, 4 August, due to their participation in the

prison-yard incident on 3 August and a resulting work stoppage on

4 August, Baldwin and 18 other inmates were transferred by prison

bus to a more restrictive facility. All of the inmates were in

four point restraints, consisting of shackles around the legs and

waist with handcuffs. After the inmates were loaded onto the bus,

and while it was parked in an unfenced area of the prison next to

the armory, some of the inmates (the number was in dispute at

trial) began jumping on the seats, spitting at the officers outside

the bus, rocking the bus, and otherwise causing a disturbance.

After those inmates ignored three orders to stop, Colonel

Herron, the senior ranking official then on duty, in an effort to

restore order, fired a two second burst of pepper mace down the

middle of the bus. The inmates were not allowed to wash the mace

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off and were kept on the bus until they reached their destination

approximately three hours later.

The parties consented to proceed before a magistrate judge

pursuant to 28 U.S.C. § 636(c). Two days after a less than one and

one-half day bench trial in early 1996, the magistrate judge made

oral findings of fact and conclusions of law upon hearing very

brief closing arguments.

The magistrate judge held against Baldwin on his prison-yard

incident claim; the vast portion of the trial had pertained to that

claim. But, as for the bus incident, the magistrate judge held

that Herron had used excessive force. The trial court also held

against Baldwin on his other claims. The other defendants,

including Secretary Stalder, were dismissed either voluntarily or

by the court.

Finding that Baldwin’s injury, if any, from being maced was

“minor” and his resulting damages de minimis, the magistrate judge

did not award monetary damages. Instead, Herron was ordered to

attend excessive force training; and Secretary Stalder, who, as

noted, had been dismissed from the action, was ordered to place a

letter of reprimand in Herron’s personnel file and to ensure Herron

received the training.

Herron and Stalder moved for a new trial, contending that

placing a reprimand letter in Herron’s personnel file would violate

state law. The magistrate judge amended the judgment, ordering

Stalder instead to so place a copy of the amended judgment.

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 II.

For starters, it is well to remember that the pertinent Eight

Amendment proscription is only against “punishments” that are

“cruel and unusual”. Accordingly, “[w]henever prison officials

stand accused of using excessive physical force in violation of the

Cruel and Unusual Punishments Clause, 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, 503 U.S. 1, 7 (1992) (emphasis added). On

remand to our court in Hudson, we repeated the type considerations

listed by the Supreme Court in Hudson, 503 U.S. at 7, that come

into play for this “core judicial inquiry”:

Several factors are relevant in the
inquiry whether unnecessary and wanton
infliction of pain was used in violation of a
prisoner’s eighth amendment right to be free
from cruel and unusual punishment. These
include:

1. the extent of the injury suffered;

2. the need for the application of
force;

3. the relationship between the
need and the amount of force used;

4. the threat reasonably perceived
by the responsible officials; and

5. any efforts made to temper the
severity of a forceful response.

Hudson v. McMillian, 962 F.2d 522, 523 (5th Cir. 1992); see also,

Rankin v. Klevenhagen, 5 F.3d 103, 107 (5th Cir. 1993); Valencia v.

Wiggins, 981 F.2d 1440, 1446-47 (5th Cir.), cert. denied, 509 U.S.

905 (1993). Of course, these identified factors are not exclusive;

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each case must be judged on its own facts. Rankin, 5 F.3d at 107

n.6.

As noted, the magistrate judge found that “[a]ny injury that

was suffered ... was minor.” Obviously, the absence of serious

injury is quite relevant to an excessive force inquiry, but does

not alone preclude relief. Hudson, 503 U.S. at 7. On the other

hand, “the Eighth Amendment’s prohibition of cruel and unusual

punishment excludes from constitutional recognition de minimis uses

of physical force, provided that the use of force is not of a sort

‘repugnant to the conscience of mankind.’” Siglar v. Hightower, 112

F.3d 191, 193 (5th Cir. 1997) (quoting Hudson, 503 U.S. at 7). In

this regard, the Court reminded in Hudson that an Eighth Amendment

violation does not occur with “every malevolent touch by a prison

guard”. Hudson, 503 U.S. at 9.

In maintaining that the magistrate judge erred in finding that

Herron violated Baldwin’s Eighth Amendment rights, Herron and

Stalder point to several of the Hudson factors concerning whether

“force was applied in a good-faith effort to maintain or restore

discipline, or maliciously and sadistically to cause harm.” Id. at

7. They assert that the trial court failed to find that Herron

acted with the requisite culpable state of mind (restated, failed

to find that he acted maliciously or sadistically for the very

purpose of causing harm); that, because the trial court found any

injury was minor, and damages de minimis, it should have found that

only de minimis force was used and, therefore, no Eighth Amendment

violation could occur; and that it failed to defer to Herron’s

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judgment as to the appropriate use of force. (They also contend

that the magistrate judge exceeded her authority by ordering

Stalder, although dismissed from the action, to implement Herron’s

excessive force training. And, although Baldwin does not challenge

the no-liability holdings for the prison-yard and other non-bus

incident claims, he does challenge the denial of monetary damages

for the bus incident. Because we reverse and render on the

excessive force ruling, we do not reach these issues.)

Of course, we review bench trial findings of fact for clear

error; conclusions of law, de novo. E.g., Seal v. Knorpp, 957 F.2d

1230, 1234 (5th Cir. 1992). In this regard, we review for clear

error a trial court’s ruling on excessive use of force. See

Valencia, 981 F.2d at 1447 (“district court was not clearly

erroneous in finding [] use of force grossly disproportionate to

the need for action”); Robinson v. Stovall, 646 F.2d 1087, 1090

(5th Cir. Unit A June 1981) (determination by trial judge of no

excessive use of force was not clearly erroneous); accord Quezada

v. County of Bernalillo, 944 F.2d 710, 715 (10th Cir. 1991)

(“whether the police used excessive force in a § 1983 case has

always been seen as a factual inquiry best answered by the fact

finder”). In this regard, as is quite well-known, for a finding to

be clearly erroneous, we must have a firm conviction, based on a

review of the entire record, that a mistake has been made. See,

e.g., Justiss Oil Co., Inc. v. Kerr-McGee Refining Corp., 75 F.3d

1057, 1067 (5th Cir. 1996).

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 Immediately after closing arguments, made two days after the

close of evidence for the very brief trial to the court, the

magistrate judge ruled from the bench as to Herron:

The Court has considered the motivation of
Lieutenant Colonel Herron in taking the action
which he took. He was temporarily in command
that day, the warden and other ranking
individuals being away on business. He had an
unusual occurrence to handle, but he should
have been trained in the handling of that
situation. The bus was a new piece of state
property. The Court can understand that he
felt aggravated and apprehensive that he was
being called upon to deal with the situation,
so he took the path of least resistance rather
than the one of least force in dealing with
the problem.

(Emphasis added.) Based on the foregoing, it is quite arguable, as

urged by Stalder and Herron, that the magistrate judge failed to

find that Herron acted with the requisite culpable state of mind.

On the other hand, the trial court next applied the five

above-quoted factors identified both in Hudson and in our court’s

Hudson-remand opinion, and found that, as noted, “any injury ...

suffered ... was minor”; that there was a need to apply force as to

only one or two of the prisoners on the bus; that the amount of

force used was excessive in the light of the situation; that a

reasonable person could not have believed that the prisoners “were

going to cause massive damage” or overturn the bus; and that

“[t]here were no efforts made to temper this continuing response”.

(Emphasis added.)

Next, the magistrate judge stated that “[t]he Court cannot

condone the fact that mace was used under this set of circumstances

and then people were not allowed, according to the [Department of

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Corrections] policy, to either wash off [or otherwise] mitigate the

effects of this mace.” Consequently, the magistrate judge found a

constitutional violation from Herron’s actions.

Based upon our review of the record, and as shown by these

findings, it is, again, quite arguable that the magistrate judge

failed to find that Herron’s actions were not a good faith effort

to maintain or restore discipline, and instead were intended to

maliciously and sadistically cause harm. But, even assuming that

the trial court so found by implication, that finding is clearly

erroneous for the following reasons. (As noted, Herron and Stalder

urge that the de minimis damages finding compels a de minimis

injury finding, that compels a de minimis force finding, that

compels a no excessive force finding. But, for starters, the

magistrate judge found that “any” injury was “minor”, not de

minimis. In any event, because the excessive force finding was

otherwise clearly erroneous, we need not reach this subissue.)

Needless to say, “[t]he amount of force that is

constitutionally permissible ... must be judged by the context in

which that force is deployed.” Ikerd v. Blair, 101 F.3d 430, 434

(5th Cir. 1996). To this end, when evaluating Hudson factors, the

finder of fact must keep in mind that prison officials “may have

had to act quickly and decisively.” Valencia, 981 F.2d at 1446.

Accordingly, they are entitled to wide-ranging deference. (This is

so well known that no authority need be cited.) Pursuant to our

review of the record, it was clearly erroneous to find that

Herron’s actions were not a good faith effort to maintain or

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restore discipline in what he perceived to be a highly volatile and

potentially dangerous situation.

As did other prison officials, Herron testified about the

prison-yard incident which had occurred the day before and the

resulting tension among the inmates. (No doubt, the tension was in

part due to a warning shot being required during the prison-yard

incident.) The prisoners on the bus had been involved in that

incident and the ensuing work stoppage, and were being transferred

to a more secure facility due to their involvement. Moreover, and

perhaps most significant, Herron testified that, at the time of the

disturbance on the bus, it was parked in an unfenced area near the

armory and he was concerned about possible escape attempts. Along

this line, the bus driver testified that, during the disturbance,

he was concerned that the inmates could break through the gate that

separated him from them.

It appears that the linchpin to the excessive force finding is

the finding that only “one or two inmates -- not 19 ... were acting

up” on the bus. (This finding was in line with a similar statement

made by Baldwin’s attorney during the just completed closing

argument; defendants’ counsel did not respond to it.) In this

regard, one prisoner testified that no one was “misbehaving or

jumping up and down” on the bus; Baldwin, as well as one other

prisoner, testified that only one or two were.

Of course, this was totally at odds with the testimony of the

bus driver, Herron, and another prison official on the scene. But,

Herron and Stalder do not challenge this only-one-or-two-inmates

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finding. Although we, of course, defer to credibility rulings,

e.g., United States v. Bass, 10 F.3d 256, 258 (5th Cir. 1993), this

finding appears to be clearly erroneous. We need not so decide,

however, because, in any event, even with this low number, in

conjunction with the surrounding circumstances, the excessive force

finding was clearly erroneous.

Moreover, the reasons given by Herron for not allowing the

inmates to leave the bus to wash off the mace were more than

reasonable. He was concerned that this procedure would simply

result in further disruptions and continuation of the disturbance,

and he testified that no one requested medical assistance in

response to his post-macing inquiry. (Of course, the testifying

prisoners denied the inquiry was made.) Moreover, air movement is

one approved method to ameliorate the effect of mace; the bus

windows were open; and it was soon moving, increasing air flow in

the bus. Finally, and perhaps most importantly, the finding that

Baldwin had only minor injury, if any, with resulting de minimis

damages, confirms the reasonableness of Herron’s decision to not

allow washing off the mace.

In the light of the situation Herron encountered, and based on

our review of the record, the trial court clearly erred in finding

that a two second use of mace, including not allowing immediate

washing, was not a good faith effort to maintain or restore

discipline. See Hudson, 503 U.S. at 9 (“not every push or shove,

even if it may later seem unnecessary in the peace of a judge’s

chambers, violates a prisoner’s constitutional rights”) (quoting

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Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.) cert. denied sub

nom. John v. Johnson, 414 U.S. 1033 (1973)). In this regard, we

find absolutely no evidence to support finding that Herron acted

with a malicious and sadistic intent to cause harm.

III.

In sum, the magistrate judge clearly erred in finding that

Herron violated Baldwin’s Eighth Amendment rights. Therefore, the

related portions of the judgment are REVERSED and judgment is

RENDERED for Richard L. Stalder and James W. Herron.

REVERSED in PART and RENDERED

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