The opinion of the court was delivered by: Stiehl, District Judge:
This cause was heard by the Court sitting without a jury.
Pursuant to Fed.R.Civ.P. 52(a), the Court makes the following
findings of fact and conclusions of law:
The plaintiff, Thomas Blair-El, was an inmate at Menard
Correctional Center, and at all times in question was confined
to the segregation unit. This unit is limited to inmates who
have committed major infractions of the rules and regulations
of the correctional center, and is comprised of long galleries
of 44 single-inmate cells in two tiers. The plaintiff was
housed at the end of 6 gallery in cell 44, the cell farthest
from the guard station. Located in the cell next to the plaintiff
was Johnny Brown, who was known to suffer from asthma. The tier
of cells above 6 gallery is known as 8 gallery.
Plaintiff alleges that his Eighth Amendment right to be free
from cruel and unusual punishment was violated when he was
sprayed with C/S gas late on the morning of December 5, 1975 by
defendants Max Tinsman and Jerry Frieman, correctional officers
at Menard. Plaintiff asserts that around 9:00 A.M. on December
5, Brown suffered an asthma attack, and that Brown then asked
him to call the guard at the end of the gallery to bring Brown's
asthma medicine. Blair-El alleges that in response to his calling
for medical attention for Brown, defendants arrived at his cell
with a canister of C/S gas. Plaintiff in his complaint alleges
that he was sprayed without warning by defendants, resulting in
painful burns on his body, rendering him unconscious and causing
him to be taken from his cell and treated at the hospital.
The Court finds that the following events occurred:
The correctional officers determined that the chanting on the
morning of December 5th was being generated from 6 gallery. Lt.
Hartman went to the area of 6 gallery to check the nature of
the disturbance. Hartman did so as a member of the tactical
staff, in an attempt to resolve the problem. When he was half-way
down the gallery he realized that 8 gallery was also involved.
Hartman went up to 8 gallery to check the disturbance. He
approached the cell of Alfred Morgan-Bey, talked with him, told
him to quiet down, and then walked down 8 gallery.
Hartman then went to the Assistant Warden's office and advised
him of the occurrences. The Assistant Warden advised Hartman to
go to the armory and draw chemical agents. Hartman was trained in
the use of chemical agents and weapons. Hartman left the
canisters containing chemical agents at the front gallery, out of
the inmates' line of vision. By this time, at least 15-20 inmates
in 6 and 8 galleries were involved in the chanting. Hartman
returned to 8 gallery, and warned Morgan-Bey to stop the chanting
or chemical agents would be used against him. (Approximately
thirty minutes had elapsed by this point.) The chanting in both
galleries grew in volume and numbers, and in response, Hartman
returned to Morgan-Bey's cell carrying the chemical agent.
Hartman could hear Blair-El's voice from 6 gallery while he was
standing before Morgan-Bey's cell. He heard plaintiff repeatedly
yelling "Blackstone," the name of a prison gang.
When Hartman retrieved the canisters from the front of the
gallery, he sent defendants Tinsman and Frieman to 6 gallery to
stop the disturbance there. Lt. Tinsman started questioning the
inmates as to the nature of the problem, and soon realized that
plaintiff wanted to act as the spokesman. Tinsman talked with
Blair-El about the problem until he "lost contact with him."
Plaintiff then started hollering for other inmates on both 6
and 8 gallery. Blair-El was yelling that officers were on the
gallery with gas. Tinsman warned plaintiff that they were going
to spray him if he did not stop the disturbance. Immediately
thereafter, plaintiff threatened to get Tinsman "and his people."
Frieman was present throughout the conversation, and corroborated
that Blair-El had threatened Tinsman's family. Tinsman made it
clear to plaintiff what would happen to him if he did not stop
the chanting and yelling. Tinsman made several attempts to quiet
Blair-El, and in response to his refusal to stop his chanting,
Tinsman instructed Frieman to administer the gas to Blair-El.
Plaintiff was the only member of 6 gallery to be sprayed. The
spraying Blair-El received only lasted a few seconds. The C/S
gas canister empties its contents in 9 seconds and the canister
was not emptied when Blair-El was sprayed. Frieman was wearing
a gas mask, through which he could talk, during the incident.
Tinsman stood next to Frieman directly in front of the cell, but
was not masked. At the time of the incident, Tinsman had had more
than 20 years service as a correctional officer, and Blair-El was
the first inmate he ever found it necessary to spray.
Immediately after the gas was sprayed, Frieman assisted Tinsman
in ventilating the gallery by opening the window located directly
across from plaintiff's cell and turning on the 38" blade fan in
the gallery. Six more windows in the area of the gassing were
also opened. Plaintiff was then offered medical treatment by
Tinsman, but refused the treatment. Other inmates needing
treatment were taken to the hospital immediately after the
gassing. Tinsman authorized Blair-El to be taken from his cell