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NORRIS v. DISTRICT OF COLUMBIA

July 26, 1985

JOHN V. NORRIS, Plaintiff,
v.
THE DISTRICT OF COLUMBIA, ET AL., Defendants



The opinion of the court was delivered by: GESELL

 Plaintiff sues the District of Columbia and three correction officers under 42 U.S.C. § 1983 (1982) claiming he was maced and beaten by the officers while at the D.C. Jail, without cause, in violation of his rights under the Fifth Amendment. Following dismissal by another Judge of this Court the case was remanded, *fn1" 238 U.S. App. D.C. 1, 737 F.2d 1148 (D.C. Cir. 1984), and eventually was transferred to the undersigned. Pending defense motions to dismiss or for summary judgment were denied except as to defendants Barry and Palmer, who were dismissed, and all issues were considered in a full bench trial. The Court states below its findings of fact and conclusions of law.

 Plaintiff, Norris, came to the D.C. Jail to await trial on January 14, 1982, and was assigned to the North Three area, awaiting classification. This area holds intake prisoners in a crowded dormitory section associated with a block of single cells one floor below. Norris was entitled to make a telephone call to his family. He wanted to do this but was never allowed to call, in spite of several requests of various guards and supervising custodians made over a three-day period. He became increasingly agitated and angry, felt he was being harassed by jail personnel and asked to be transferred to another section or to administrative segregation, also known as "the hole."

 Around midnight on January 17, 1982, when a dormitory count was being taken, he refused to be present for the count and stood with his personal effects on the landing outside the dormitory. When the count was completed and he refused to return to the dormitory the two guards on foot duty, defendants Frizzel and Byrd, asked for the shift supervisor, Lt. Green, also a defendant, to come to deal with the situation. Green explained to Norris that he could only be transferred if he was willing to sign a request for protective custody, which Norris refused to do. After making inquiries, Green informed Norris that there were no cells available in other sections and suggested he proceed to cell 12, below, which was vacant. Norris was verbally aggressive, calling Green the usual litany of names but finally went down to the cell with Green and the two guards. No force was used. Norris went voluntarily.

 At cell 12 there was no one in the corridor. The automatic opener for the cell door stuck and Green had to spend some time and effort to open it manually. Norris became more agitated. He refused to enter the cell when directed because the door would not work. Lt. Green shot a single, short burst of CS gas, commonly known as mace, *fn2" into Norris's lower face. The CS gas was shot from an aerosol canister held near Norris's chest to avoid shooting it directly into his eyes. The other two guards shoved Norris into the cell, he was handcuffed and then taken promptly to the infirmary following the routine practice in such cases to permit showering, washing of eyes and face and changing of clothing. All of the guards on duty at the time of the incident and Lt. Green filed formal reports on the incident. Norris was subsequently disciplined for his conduct after a prison disciplinary hearing.

 None of the three officers involved beat or physically abused Norris. He received only the immediate temporary injury of irritation and burning sensation around his eyes. Norris hit an elbow on the wash bowl sink of the cell, presumably when shoved into the cell. The elbow was treated with Ben-Gay and the injury promptly subsided.

 The Court cannot credit plaintiff's version of the incident. His claims of brutal physical force are inconsistent with his testimony on trial and infirmary records. The mace had no permanent effect. His eyes were not injured in any organic way. His glaucoma and other eye problems well preceded the incident. He is claim-minded and has brought several suits on other matters against the District.

 Green had had no prior contact with Norris. He used mace to control Norris when Norris resisted entering the cell. He did not use mace to punish Norris because of anything Norris had said or done previously. In Green's view it was proper to use mace in the circumstances under the rules, regulations and training he had received. Green was an experienced, highly trained officer, now promoted to Major. He has had extensive training in correctional matters, including the use of mace, wide correctional experience, and had taken advanced courses to supplement his practical experience. The two guards assisting him acted at his direction and did not even have mace to use since mace was only distributed to certain supervisors in the cell block.

 Plaintiff seeks damages and injunctive relief. He alleges that the supervision and training of officers by the District of Columbia relating to the use of mace establishes an unconstitutional policy or practice sufficient to trigger its liability under § 1983. See City of Oklahoma v. Tuttle, 471 U.S. 808, 105 S. Ct. 2427, 85 L. Ed. 2d 791 (1985); Monell v. Department of Social Services, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). He also alleges that the three correctional officers involved in this incident are individually liable for depriving him of his due process rights under the Fifth Amendment in violation of 42 U.S.C. § 1983.

 The policy and practice of the District of Columbia with respect to the use of mace at the time of the incident must be determined from a variety of proofs: the formal but necessarily general statements of policy, the precise procedures taught in regularly training, and the actual use as disclosed by mandatory incident reports obtained from the jail files. While this case concerns use of mace to control inmates in individual cell block situations, the formal policy is more broadly stated inasmuch as it covers a variety of circumstances that may arise throughout various facilities of the District's entire correctional complex.

 The general policy was stated as follows:

 
. . . mace will be employed only after all other reasonable efforts, excluding physical force, to control individuals or situations have failed. *fn3"

 Officers were regularly trained that non-deadly force, in the form of physical force or chemical weapons, may be used to prevent escape, to prevent an act which might result in death or serious bodily injury, to prevent serious damage to property, to prevent or quell a riot, to prevent the commission of a misdemeanor, and to prevent or defend against a physical assault. They were also advised that non-deadly force could be used to enforce institutional regulations. The training materials emphasize, however, that "in EVERY case only the amount of force necessary to accomplish the task will be used." *fn4" The use of physical force or chemical agents as a form of punishment was expressly forbidden and nondeadly force was authorized only if oral or other nonforceful methods of persuasion were not effective.

 Thus physical force and chemical agents are treated as equally acceptable alternatives when persuasion or minor laying on of hands, such as a guiding arm, proves unsuccessful. But the use of chemical agents was subject to special conditions which restricted and tended to inhibit their routine use. Only supervisors were authorized to carry and use mace. Supervisors carried a canister of CS gas which they were trained to use by firing the gas once, for a short interval (about one second), aimed below the eyes at chest level to avoid shooting the chemical directly into the eyes. Repeated use within a short period of time was prohibited unless there was substantial justification. Clear-cut guidelines required that persons exposed to the chemical agents receive immediate first aid. Inmates and guards exposed to the chemical were to be removed from the area and immediately referred to the medical staff. The medical staff provides a shower, water to flush the eyes and a complete ...


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