Appendix 6-b Sample Memorandum of Law[40]

• Library: A Jailhouse Lawyer's Manual (2020 Edition)

APPENDIX 6-B. Sample Memorandum of Law[40]

This Appendix contains an example of a memorandum of law, or a brief. This particular memorandum was submitted to a federal district court in opposition to the defendants' motion for summary judgment on a Section 1983 claim for excessive force in violation of the Eighth Amendment.⁴¹ We are including this in the JLM so that you may study the form and style of a brief. The names of all parties, witnesses, and facts have been changed. The footnotes have been added to clarify and explain things to you but should not go in your memorandum. In addition, you should not use the cases cited in this sample without verifying that they are still good law.⁴²

PLAINTIFF'S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Plaintiff Robert K. Simms ("Simms") respectfully submits this Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment.⁴⁵

PRELIMINARY STATEMENT

On January 17, 1990, defendant William D. Bennett ("Bennett"), a corrections officer at the New York State Penitentiary ("Penitentiary"), physically assaulted and threatened to beat and kill Robert Simms, an inmate awaiting processing. Defendant Paul J. Wright ("Wright"), Bennett's supervisor, knew of the attack and death threats, yet did nothing to intervene and protect Simms. Simms brings this lawsuit under 42 U.S.C. §1983 against Officer Bennett for his malicious and sadistic use of excessive force and against Sergeant Wright for his deliberate indifference to the attack and threats of beating and death.

Defendants have moved for summary judgment arguing (i) Simms suffered de minimis physical injuries and unactionable psychological pain; (ii) the force used by Bennett, if any, was reasonable and necessary; and (iii) Wright did not act with deliberate indifference because he did not witness the physical attack and threats of beating and death. Defendants are wrong on both the law and the facts.

First, the use of force here was more than de minimis.⁴⁶ Bennett shoved Simms, pushed him into a wall, swung him around the search room, and punched him in the arms, legs, and face, while simultaneously screaming that he should shoot, stab, and beat him. As a result of the attack, Simms suffered more than de minimis physical and mental pain, sustaining not only bruises to his arms, legs, and face, but also serious and extensive mental pain lasting to the present. The Eighth Amendment's prohibition on the unnecessary and wanton infliction of pain encompasses both physical and mental pain.

Second, the evidence demonstrates that there was no need for force. Simms provoked no attack. He was not violent. He did not refuse to follow Officer Bennett's instructions. As indicated by the content of Bennett's threats, the attack- fueled by Bennett's personal feelings of hatred and disgust-was malicious, sadistic, and for the very purpose of causing Simms harm.

Finally, the supervising officer, Sergeant Wright, was deliberately indifferent to Simms' plight.⁴⁷ Wright admits to hearing noise from the search room. Indeed, Wright was told by Simms what was going on. Yet, Wright chose to do nothing to stop the attack.

Defendants' motion for summary judgment should be denied.

1. STATEMENT OF FACTS

(a) Robert Simms' Child Pornography Convictions

Plaintiff Robert Simms, a black male in his late forties, is a convicted child pornographer. The last conviction took place on January 10, 1990. As a result of that conviction, Simms was sentenced to five years of imprisonment, which he served at the New York State Penitentiary from January 17, 1990, to January 16, 1995. (Simms Aff. ¶ 3).⁴⁸

(b) Officer Bennett Attacks Robert Simms and Sergeant Wright Does Nothing

Simms arrived at the Penitentiary at approximately 9:30 a.m. on January 17, 1990. He was led into the bullpen holding cell and sat on a bench as he waited to be processed. In addition to Simms, there was only one other person in the bullpen. (Simms Aff. & &¶ 5; Simms Dep. 20:12-13).

On the morning of January 17, 1990, defendant Officer Bennett and Officer Howard Lewis ("Lewis") worked the 8:00 a.m. to 2:00 p.m. shift in the search area of the Penitentiary. (Bennett Dep. 35:25-27; Lewis Dep. 24:8-10). Sergeant Wright, working the same shift, was the supervisor on duty. (Wright Dep. 22:36-24:5).

Corrections officers at the Penitentiary all have the opportunity to learn incoming inmates' charges. Not only do corrections officers discuss, on occasion, inmates' charges, but officers working in the booking and search areas also have access to that information. (Bennett Dep. 43:15-19, 52:9-55:12, 62:24-64:14; Lewis Dep. 27:7-15, 36:24-37:5). Simms sat on the bullpen bench for approximately one hour when he heard Officer Bennett shouting from inside the search room, located a few yards from the bullpen: "He's pond scum. That low-life piece of trash kiddie porn lover deserves to be killed. Someone should kill him." (Simms Aff. ¶ 12; Simms Dep. 21:15-24:7; Compl. Pt. II at 1).

In order to determine the source of and reason for the threats, Simms stood up from the bullpen bench and approached the bullpen bars. Bennett approached the bullpen, stood very close to Simms, and screamed: "You revolting cradle robber. Get the hell out of my face, you pedophile. You nauseate me! Get the hell away from the bars before I beat you senseless." Simms was terrified and did not know how to respond. He had done nothing to provoke the threats. (Simms Aff. ¶ 12; Compl. Pt. II at 1).

Officer Bennett, becoming even more aggressive, continued his verbal attack for the next half hour. He screamed: "If I had a knife, I'd stab you in your chest right now. Get away from the bars you disgusting pond scum pervert!" Simms became very anxious. He thought he was going to be killed by Officer Bennett or by other inmates to whom Bennett would reveal his charges. (Simms Aff. &¶ 13; Simms Dep. 24:7-13; Compl. Pt. II at 1-2).

A few minutes later, Simms was retrieved from the bullpen and escorted to the search room where Officer Bennett stood, glaring at him. (Simms Aff. ¶ 14; Simms Dep. 26:14-25; Compl. Pt. II at 6). Officer Lewis and approximately four to six other corrections officers-including Officer Felding, who booked Simms that morning and prepared his booking sheet containing his child pornography charges-also stood in the room, all staring at Simms and Bennett with expressions of expectation. (Simms Aff. ¶ 15; Compl. Pt. II at 4).

Officer Bennett slammed shut the search room door and pushed Simms from behind with two hands, towards the wall where the other officers stood. He pushed Simms approximately ten times and swung him around the room. Bennett slapped Simms' face and body and again began to scream threats of beating and death at Simms. Bennett next shoved Simms into the wall next to the corrections officers while screaming: "You vile scumbag. I should kill you. If I had my knife, I'd carve you up. If I had my revolver, I'd blow you to shreds. You are a sick maggot." Simms was terrified and kept still. (Simms Aff. ¶ 16; Simms Dep. 28:12-30:25; Compl. Pt. II at 3-4).

Officer Bennett continued to push Simms into the wall while yelling that he could not stand the sight of Simms. Simms finally asked Bennett what he had done to deserve this attack and reminded Bennett he did not know the details of Simms' case. Bennett responded by yelling that he did not give "two hoots" about the circumstances of Simms' case; he was going to carve him up anyway. Bennett pushed Simms. Simms ricocheted off the wall, and Bennett continued to scream obscenities and threats of beating and death. Officer Lewis and the others in the search room looked on with amusement. (Simms Aff. ¶ 17; Simms Dep. 29:15-30:10; Compl. Pt. II at 6-7).

At some point, Officer Bennett demanded that Simms stand in a particular spot in the search room. Each time Simms moved to the requested spot, Bennett taunted him and screamed, "No, this way!," pointing to a different spot. He then swung Simms around the room, grabbing his arm and launching him off. Bennett repeated this several times. (Simms Aff. ¶ 18; Simms Dep. 28:7-29:6).

Eventually, Bennett screamed that Simms should strip. Simms complied and removed his shirt. He never refused or questioned Bennett's order. When Simms put his shirt on an empty chair in the room, however, Bennett flew into a rage. He whipped Simms' shirt around in the air above his head, screaming that Simms was a repulsive child pornographer. Bennett prepared to punch Simms again. Simms turned his body to avoid being hit and called out for the sergeant. (Simms Aff. ¶ 16; Simms Dep. 28:9-30:12, 33:14-20, 35:8-29).

Sergeant Wright heard "loud screaming" coming from the search room and went to investigate. (Wright Dep. 28:7-9, 30:22-25, 50:7-25). As Wright appeared at the door, Bennett acted as if nothing was wrong. Simms told Wright that he was glad Wright had arrived and that he needed Wright's help. Wright cut Simms off and told him to "shut the hell up and take off your clothes," to which Simms replied, "You're in this too? This is unbelievable!" Simms did not question Wright's order to strip. Rather, he took off his pants. Bennett strip-searched him. (Simms Aff. ¶ 20; Simms Dep. 30:21- 32:12, 39:8-40:2; Compl. Pt. II at 8; Wright Dep. 32:20-23, 52:19-21; Bennett Dep. 49:4-20).

Once the strip search was completed, Simms...