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Soto v. Dickey

September 20, 1984

CARLOS S. SOTO AND ROBERT DEMALLORY ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUTATED, PLAINTIFFS-APPELLEES,
v.
WALTER J. DICKEY, DONALD CLUSEN, AND GERALD HEERINGA, DEFENDANTS-APPELLANTS



Appeal from the United States District Court for the Eastern District of Wisconsin; Nos. 80-C-146 and 80-C-321 -- Terrance T. Evans, Judge.

Flaum, Circuit Judge, Pell, Senior Circuit Judge, and Kellam, Senior District Judge.*fn*

Author: Kellam

KELLAM, District Judge

Alleging violation of their constitutional rights under the Eighth and Fourteenth Amendments to the United States Constitution, and of Rules and Regulations of the Waupun Correctional Institution through the improper use of mace, a trade name for tear gas, and similar chemical agents, in the adjustment center at said institution in the State of Wisconsin, Carlos S. Soto and Robert DeMallory (Mallory) instituted a class action pursuant to 42 U.S.C. § 1983, Appeal No. 83-2380, for injunctive and declaratory relief. Carlos S. Soto, also instituted a separate action for damages, injunctive and other relief, Appeal No. 83-2381, pursuant to 42 U.S.C. § 1983, for an alleged unlawful macing on December 13, 1979. The incident complained of by Soto in his damage action is also one of the incidents forming a part of the complaint in the class action. The named defendants were the administrator of the Wisconsin Division of Corrections, Superintendent of the Waupun Correctional Institution (WCI) and Assistant Superintendent of Security at WCI, and their replacements. Tried to the court, it rendered its decision on June 29, 1983, granting declaratory and injunctive relief in each action, but denying damages to Soto. The trial court held that the defendants' policies and practices relating to the use of chemical agents in the Adjustment Center (AC) at WCI violated plaintiffs' constitutional rights under the Eighth and Fourteenth Amendments of the United States Constitution and were in violation of the Division of Corrections Administrative Regulations, Chapter HSS 306.08. The court issued an injunctive restricting the use of chemical agents against inmates, except in specific circumstances set forth in its order. In the action for damages, the trial court held that a good faith immunity defense was available to defendants and declined to award damages to Soto.

I.

WCI is a maximum security prison, designed for 810 inmates, but having a population of some 1100 or more during the period in question. The AC, the major segregation facility within the prison, contains 67 cells, 59 of which are arranged in two tiers on the main floor, with the remaining eight cells in the basement. Fifteen of the cells have a wooden outer door in addition to the iron bar doors, and are referred to as double door or wooden door cells. A wire mesh cage in the AC, approximately four feet square and 10 feet high, is used for conducting a strip search of inmates. Inmates are sent to the AC from the general population because of violation of prison rules, such as possession of contraband, theft, refusing to go to work, fighting with prisoners or staff, disobeying rules and refusing to obey orders. Because the average population in the AC during the course of this case numbered about 80, inmates were, at time, double-celled. The AC in this maximum security prison has been described as the "end of the line."

When mace is used, it is sprayed from a canister approximately two inches in diameter, about five and one-half inches high and contains approximately four and one-half ounces, the equivalent of approximately 35 one-second bursts. It vaporizes upon contact with the human body or other surfaces. From January 1979 until the middle of November 1982, about 130 macing incidents occurred in the AC, or about 2.7 macings per month. Whenever mace is used, a written report of its use must be made by the correctional officer, giving information regarding its use and the reasons therefor. These reports are reviewed by the Assistant Superintendent, or in his absence, by one designated by him. Only a supervisor may authorize the use of mace, and he is usually the one summoned from outside of the AC. He must be on the spot to authorize its use. While excessive or improper use of a chemical agent can cause some injury, during the four and one-half years of use in the AC there is no evidence in the record or documented at WCI or the AC showing any serious or permanent injury from the use of a chemical agent. Inmates will generally experience itching, irritation or discomfort for a period of time from its use, but washing with water will generally alleviate any discomfort. The procedure prescribed following the use of mace is to have the inmate shower, have his eyes rinsed out, and change his clothing. This usually gives immediate relief of any discomfort.

II.

Without exception, the institutional officials and officers were of the opinion that the use of mace was much more humane and effective than a flesh to flesh confrontation with an inmate. That is, whenever it is necessary to move an inmate from his cell or for an officer to enter the cell, the procedure used is to have the inmate come to the front of the cell and be handcuffed so that he can be better controlled if he is to be moved, or if the officer needs to enter the cell. If he refuses to come to the front of the cell to be handcuffed, there are few options open to the institution, one is that three of four guards, suited up in Emergency Response Unit gear (ERU), must enter the cell and physically overpower the inmate and place him in handcuffs. Experience at WCI established this often resulted in serious injury to staff or inmate, or both.

Gerald Heeringa, Assistant Superintendent in Charge of Security at WCI, was responsible for designing and implementing the chemical agency policy upon his return to WCI in 1977. During 11 months of 1977, there were forty one serious assaults on correctional officers, and numerous inmates and staff were injured. Heeringa, along with Superintendent Israel, Major Kahelski and others testified, without contradictions, that since the use of a chemical agent, rather than physical force, the number of assaults upon and injuries to staff and inmates had been drastically reduced. In fact, the threat of the use of mace, except in a few instances, brings about compliance and in most instances, avoids any necessity of physical force.

The district court found that the inmates see the use of mace as a serious form of force, while the institution sees it as a substitute for actual physical force and the most humane and least harmful method of dealing with obstinate and dangerous inmates. The fact is, that in most instances where mace was used, the inmate immediately complied with the order from the officer, whether it was to be handcuffed in order to remove him from his cell or for other action. The officer was thus permitted to perform his duty without physical confrontation between staff and inmate. In some of the instances complained of by the plaintiffs, they had told the officers they would not comply with the order unless they were maced, and when maced, they immediately complied.

The institution is well aware of the need for concern in dealing with the inmates in AC. Fortunately, as the trial court found, most of the inmates sent to AC serve their stay and are returned to the general population. A few create most of the problems. Over more than a four year period mace was used only 130 times or two and a fraction times a month, and without a single serious injury.

III.

The provisions of the Wisconsin Administrative Code, Chapter HSS 306, deals with security at its institutions of confinment. Subsection HSS 306.08 prescribes that chemical agents may be used only to subdue an inmate who poses an immediate threat of bodily injury or death to another or to regain control of the institution or a part of it. In confined or close areas only CN or CS chemical agents and canister dust chemical agent may be used, and the manufacturer's safety instructions must be followed. The use must be authorized by the Superintendent, and may only be discharged by a correctional officer, supervisor or by a trained staff member under the immediate supervision of such supervisor, who has been properly trained in its use. After use, the inmate shall be examined by the medical staff, have their eyes cleaned with water and be provided with a change of clothes. An incident report must be submitted to the director of the Bureau of Institutions.

The district court found that defendants had used mace in violation of the guidelines set out in the Wisconsin Administrative Code, HSS § 306.08, and that since its use did not comply with the above code, it constituted a ...


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