UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
decided: August 3, 1972.
LARRY BRACEY, JR., PLAINTIFF-APPELLANT,
CAPTAIN HERRINGA AND SERGEANT GADE, DEFENDANTS-APPELLEES
Clark, Associate Justice,*fn* Sprecher, Circuit Judge, and Campbell, District Judge.*fn**
SPRECHER, Circuit Judge.
This appeal raises the apparently novel question of whether a prisoner's civil rights complaint is subject to a summary judgment dismissal based upon prison records consisting primarily of reports filed by defendant prison guards.
The plaintiff, Larry Bracey, Jr., brought an action pro se for damages and injunctive relief pursuant to 28 U.S.C. § 1343(3) and 42 U.S.C. § 1983. He alleged that on July 28, 1971, while confined in the detention area of the segregation building at Wisconsin State Prison at Waupun, one of the defendants, prison guard Sergeant Gade, closed the outer wooden door of plaintiff's cell because plaintiff was talking in a normal tone to another inmate. Plaintiff in protest started a small fire in his cell; Gade then threw a bucket of water on the fire and on plaintiff. Plaintiff in return threw a cup of water on Gade, who returned with the other defendant, Captain Herringa, and other guards characterized as the "goon squad."
Plaintiff alleged that he was beaten by the guards, dragged out of his cell and thrown into an empty cell. There he was handcuffed and strapped to a metal bunk, a procedure known as "chaining down a prisoner." He alleged that as a result of the beating he suffered multiple injuries. Although not alleged precisely, it appears from the complaint that the plaintiff was "chained down" for more than 40 hours, during which time he was "left to urinate upon his own person and made to lie in said urine."
The defendants, represented by the Attorney General of Wisconsin, filed a motion for summary judgment. Attached to the motion were six "conduct reports," all dated July 29, 1971, two written by defendant Gade, two written by defendant Herringa and two written by two other guards. Also attached was a log kept by the guards during the period that the plaintiff was "placed in restraints." The log purported to consist of notes on the plaintiff's behavior and condition written from time to time as various guards visited his cell. There was also an "inter-office memo" written by a captain of the guards noting that the plaintiff was removed from restraints at 7:45 p.m. on July 30, 1971. Finally, attached to the motion for summary judgment was an affidavit executed by an associate warden, in which he swore that the accompanying documents were taken from prison files and were made in the course of regular prison business.
The gist of the "prison records" was that the plaintiff went "completely out of control" when the fire was extinguished in his cell and that he took the offensive in attacking the guards, who reacted to subdue him and to protect themselves.
Although the district court in its opinion referred to "plaintiff's unverified brief in opposition," neither the record on appeal nor the district court docket sheet indicate that any response was filed by the plaintiff to the motion for summary judgment. On November 30, 1971, the district court granted defendants' motion for summary judgment and dismissed the action. The court in its opinion said, "Plaintiff having shown nothing that would impair the trustworthiness of the first-hand accounts of the persons involved in the incidents there reflected the records furnish probative evidence admissible under the business entry statute, § 1732(a), Title 28 U.S.C.A."
This circuit's policy is to construe liberally the pleadings and papers filed by a prison inmate without funds who represents himself. Sigafus v. Brown, 416 F.2d 105, 106 (7th Cir. 1969). We therefore note the relevance of a question in plaintiff's reply brief: "How can appellant obtain an affidavit to this truth when he was kept in a closet like cell, in chains, unable to gather information as to who may have witnessed the beating, injuries, or the doctor's actions or denial of a proper examination, and plaintiff suffers under a twenty-four hour silent system and not permitted to talk to any other inmate; appellant is forced to live completely alone in his present segregation status."
There obviously exists a serious initial question of whether the summary judgment procedure should ever be employed against an incarcerated party, particularly against one held in solitary confinement, in view of the language of Fed.R.Civ.P. 56(f).*fn1 We have previously held in Harris v. Pate, 440 F.2d 315 (7th Cir. 1971), that a district court abused its discretion in refusing to grant a prisoner an extension of time to file affidavits in opposition to a motion for summary judgment.*fn2
We need not reach any broad conclusions, however, unless we determine that the prison records were properly accepted in support of the motion for summary judgment.
The policy permitting the admission into evidence of records made in the regular course of business*fn3 is based on the trustworthiness and reliability of that kind of records.*fn4
In Hoffman v. Palmer, 129 F.2d 976 (2d Cir. 1942), the court of appeals excluded an accident report made by a since-deceased railroad engineer, offered by the defendant railroad trustees in the defense of a grade-crossing collision case. The court said at 991: "By its very nature, [the report] is dripping with motivations to misrepresent." The Supreme Court affirmed, 318 U.S. 109, 63 S. Ct. 477, 87 L. Ed. 645 (1943). Mr. Justice Douglas stated at 113, 63 S. Ct. at 480:
"The conduct of a business commonly entails the payment of tort claims incurred by the negligence of its employees. But the fact that a company makes a business out of recording its employees' versions of their accidents does not put those statements in the class of records made 'in the regular course' of the business within the meaning of the Act."*fn5
That prison guards may be held accountable under 42 U.S.C. § 1983 for physical beatings of prisoners,*fn6 deprivation of medical care,*fn7 or deprivation of hygienic conditions,*fn8 has been established for enough years that it can safely be assumed at least some guards write their reports on such occurrences with that possibility in mind.
In United States v. Ware, 247 F.2d 698, 700 (7th Cir. 1957), Judge Swaim excluded under section 1732 memoranda made by federal narcotics agents detailing the circumstances of heroin purchases. He said: "Even if memoranda such as the ones in question are regularly prepared by law enforcement officers, they lack the necessary earmarks of reliability and trustworthiness."
We conclude that it was error for the district court to accept in support of the defendants' motion for summary judgment prison records which included the self-serving statements of the defendants themselves as well as statements of other prison guards who were subject to possible Civil Rights Act liability.*fn9 This kind of record lacks reliability and trustworthiness.*fn10
In Haines v. Kerner, 404 U.S. 519, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972), the Supreme Court reversed this court's affirmance of the dismissal for failure to state a cause of action of an inmate's civil rights suit alleging physical injuries suffered while in disciplinary confinement. The Court said at 520-521, 92 S. Ct. at 596:
"Whatever may be the limits on the scope of inquiry of courts into the internal administration of prisons, allegations such as those asserted by petitioner, however inartfully pleaded, are sufficient to call for the opportunity to offer supporting evidence. We cannot say with assurance that under the allegations of the pro se complaint, which we hold to less stringent standards than formal pleadings drafted by lawyers, it appears 'beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'"
As the Supreme Court declined to do in Haines, we intimate no view whatever on the merits of plaintiff's allegations but conclude that he is entitled to an opportunity to offer proof.
The judgment is vacated and the case is remanded for further proceedings consistent with this opinion.