FSM SUPREME COURT
TRIAL DIVISION
Cite as Plais v. Panuelo,
5 FSM Intrm. 179 (Pon. 1991)

[5 FSM Intrm. 179]

HARRY PLAIS,
Plaintiff,

 v.

WILLIAM PANUELO, PAULUS
HARTMAN, REMIKIO PRETRICK,
all individually and in
their official capacity,
POHNPEI STATE, and FEDERATED
STATES OF MICRONESIA,
Defendants.

CIVIL ACTION NO. 1990-088

OPINION

Edward C. King
Chief Justice
Trial:  June 17-22, 1991.
Decision: September 23, 1991

APPEARANCES:
For the Plaintiff:                          Roberta J. Lindberg
PLAIS                                          Stephen R. Skipton
                                                     Micronesian Legal Services Corp.
                                                     P.O. Box 129
                                                     Kolonia, Pohnpei  FM  96941

For Defendants:                         Joses R. Gallen
WILLIAM PANUELO                 Attorney General
PAULUS HARTMAN,               State of Pohnpei
REMIKIO PRETRICK and        Kolonia, Pohnpei  FM  96941
POHNPEI STATE

For Defendant:                           David Webster
FEDERATED STATES OF     Douglas Juergens
MICRONESIA                            Chief of Litigation
                                                     Office of the Attorney General
                                                     Federated States of Micronesia
                                                     Palikir, Pohnpei  FM 96941

*     *     *     *

[5 FSM Intrm. 180]

HEADNOTES
Civil Rights; Criminal Law and Procedure - Arrest and Custody; Constitutional Law - Due Process
      Constitutional provisions applicable to a prisoner may vary depending on his status.  A pre-trial detainee has a stronger right to liberty, which right is protected by the due process clause, FSM Const. Art. IV, Section 3.  A convicted prisoner's claims upon liberty have been diminished through due process so that person must rely primarily on article IV section 8 which protects him from cruel and unusual punishment.  Plais v. Panuelo, 5 FSM Intrm. 179, 190 (Pon. 1991).

Civil Rights; Criminal Law and Procedure - Arrest and Custody
     In a case where a convicted prisoner, who is also a pre-trial detainee, asserts civil rights claims arising out of ill-treatment after arrest, denial of access to family is a due process claim, and physical abuse involves due process as well as cruel and unusual punishment claims. Plais v. Panuelo, 5 FSM Intrm. 179, 190 (Pon. 1991).

Constitutional Law - Interpretation; Criminal Law and Procedure - Arrest and Custody
      In interpreting the provision against cruel and unusual punishment in the FSM Constitution, the court should consider the values and realities of Micronesia, but against a background of the law concerning cruel and unusual punishment and international standards concerning human rights.  Plais v. Panuelo, 5 FSM Intrm. 179, 196-97 (Pon. 1991).

Constitutional Law - Interpretation; Criminal Law and Procedure - Arrest and Custody
      Deliberate indifference to an inmate's medical needs can amount to cruel and unusual punishment. Plais v. Panuelo, 5 FSM Intrm. 179, 199-200 (Pon. 1991).

Torts - Respondeat Superior
      When force is employed by a police officer in an apparent use of official authority, the governmental employer should be held responsible for what is done. Plais v. Panuelo, 5 FSM Intrm. 179, 201 (Pon. 1991).

Torts - Respondeat Superior
      A state's ratification and acceptance of its employee's torts through its subsequent conduct is an independent ground for holding the state jointly and severally liable for those torts.  Plais v. Panuelo, 5 FSM Intrm. 179, 202-03 (Pon. 1991).

Statutes - Construction; Civil Rights
      Because the FSM statute is based upon the United States model, the FSM Supreme court should look to United States' court decisions under 42 U.S.C. 1983 for assistance in determining the liability of a governmental body under 11 F.S.M.C. 701(3).  Plais v. Panuelo, 5 FSM Intrm. 179, 204 (Pon. 1991).

[5 FSM Intrm. 181]

Civil Rights; Statutes - Construction
     In providing for civil liability under 11 F.S.M.C. 701(3), Congress intended that the word person would include governmental bodies.  Plais v. Panuelo, 5 FSM Intrm. 179, 204-05 (Pon. 1991).

Civil Rights; Torts - Respondeat Superior
     The doctrine of respondeat superior is not to be used to determine whether a governmental entity is liable under 11 F.S.M.C. 701(3) for civil rights violations inflicted by government employees.  The governmental entity may be held liable under 11 F.S.M.C. 701(3) when violations are caused by officials who are responsible for final policy making with respect to the subject matter in question and who make a deliberate choice to follow a course of action chosen from various alternatives.  Plais v. Panuelo, 5 FSM Intrm. 179, 205-06 (Pon. 1991).

Civil Rights; Criminal Law and Procedure - Arrest and Custody
     Where a prisoner is physically abused by an official with final policy-making authority, these acts are governmental and a statement of state policy concerning the prisoner.  Plais v. Panuelo, 5 FSM Intrm. 179, 206-07 (Pon. 1991).

Civil Rights; Criminal Law and Procedure - Arrest and Custody
      Refusing to permit the public defender or the prisoner's mother to see him are violations of civil rights guaranteed under 12 F.S.M.C. 218(1) and (2) and constitute official actions for which a state must be held responsible under 11 F.S.M.C. 701(3).  Plais v. Panuelo, 5 FSM Intrm. 179, 207 (Pon. 1991).

Civil Rights; Criminal Law and Procedure - Arrest and Custody
      Confining a prisoner in dangerously unsanitary conditions, which represent a broader government-wide policy of deliberate indifference to the dignity and well-being of prisoners, is a failure to provide civilized treatment or punishment in violation of prisoners' protection against cruel and unusual punishment, and renders the state liable under 11 F.S.M.C. 701(3). Plais v. Panuelo, 5 FSM Intrm. 179, 208 (Pon. 1991).

Criminal Law and Procedure - Arrest and Custody; Statutes - Construction; Civil Rights
     When a state government is acting on behalf of the national government by virtue of the joint administration of law enforcement act, the state's officers and employees are agents of the national government and are acting "under color of authority" within the meaning of 6 F.S.M.C. 702(5). Plais v. Panuelo, 5 FSM Intrm. 179, 209-10 (Pon. 1991).

Criminal Law and Procedure-Arrest and Custody; Civil Rights
      The national government is liable for violations of 6 F.S.M.C. 702(2) when it has abdicated its responsibility toward national prisoners. Plais v. Panuelo, 5 FSM Intrm. 179, 210-11 (Pon. 1991).

[5 FSM Intrm. 182]

Statutes - Construction; Civil Rights
     The national government is a person within the meaning of 11 F.S.M.C. 702(2) and will be held liable under that section when civil rights violations are in substantial part due to a governmental policy of deliberate indifference to the constitutional rights of national prisoners and failure to attempt to assure civilized treatment to prisoners.  Plais v. Panuelo, 5 FSM Intrm. 179, 211 (Pon. 1991).

Constitutional Law - Due Process; Civil Rights; Criminal Law and Procedure - Arrest and Custody
     A prisoner's rights to procedural due process have been violated when he received neither notice of the charges against him nor an opportunity to respond to those charges before or during confinement.  Plais v. Panuelo, 5 FSM Intrm. 179, 212 (Pon. 1991).

* * * *

COURT'S OPINION
EDWARD C. KING, Chief Justice:
     This is a civil rights action brought by plaintiff Harry Plais, a prisoner serving a sentence of imprisonment at the Pohnpei State Jail for the national crime of manslaughter, against the individuals and governments responsible.

     Mr. Plais asserts that on December 17, 1988, the day upon which he was recaptured after having escaped, he was burned with a cigarette, then kicked and beaten by his jailers.  He further alleges that for a period of several weeks thereafter, he was confined in unsanitary and inhumane conditions and unlawfully denied access to counsel, medical care and family.1  Plais also contends that he was confined in the same punitive detention cell during July 1989 and that the procedures leading up to his confinement did not comply with due process.  He contends too that the conditions of that July 1989 confinement were also so unsanitary and inhumane as to constitute cruel and unusual punishment, and that he was unlawfully denied access to medical care and family during that time.

     Mr. Plais alleges that the actions of the two jail guards, Paulus Hartman and Remikio Pretrick, and the jail supervisor, William Panuelo, who are named by him as individual defendants, constituted common law assault and battery and also violated his civil rights protected under 11 F.S.M.C. 701.  He also includes claims of civil rights violations against the State of

[5 FSM Intrm. 183]

Pohnpei and the Federated States of Micronesia national government based upon 11 F.S.M.C. 701(3).  In addition, he asserts that the national government is vicariously liable under 6 F.S.M.C. 702(5) for wrongful acts and omissions of the other defendants, and under 6 F.S.M.C. 702(2) because, by failing to provide training, supervision or any standards at all for the conditions of detention of national prisoners, the national government has directly violated its own administrative obligations under 12 F.S.M.C. 1201-03.

I.  Factual Background
     Although conceding a few of plaintiff's allegations, the defendants, especially the national government, have for the most part resisted every claim, forcing Plais to prove nearly all aspects of his charges, and to justify fully his requests for relief.  It is therefore necessary at the outset for the Court to make careful findings of fact to establish which, if any, of Mr. Plais' factual allegations were proven during the trial of this case, which took place from June 17 through June 21. Following are the Court's findings.

     Although incarcerated in the Pohnpei state jail, plaintiff Harry Plais is a national prisoner in the sense that he is confined pursuant to his conviction and sentencing by this Court, for the then national crime of manslaughter in violation of 11 F.S.M.C. 912.  His confinement under the supervision of state law enforcement officials is pursuant to a joint administration law enforcement agreement between the state and national governments.  These agreements are authorized by national law.  12 F.S.M.C. 1201-03.  The agreement in effect, when the events here under consideration occurred, provided for Pohnpei to receive $150,000 from the national government in payment for performing certain national law enforcement functions, including incarceration of national prisoners.

     Testimony has revealed that, aside from his affinity for escaping from jail, plaintiff Harry Plais is a reasonably cooperative, compliant prisoner.  The fact remains however that he is perhaps the most notorious and assiduous escapee that Pohnpei jail authorities have ever confronted.  Despite his relative youthfulness, Mr. Plais has already spent a substantial amount of time in first, the Trust Territory jails, and now the Pohnpei jail.  Through the years, he has caused his jailers a great deal of embarrassment by escaping on numerous occasions, seemingly almost at will.

     In a jail environment such as that of Pohnpei, where the jail is poorly lighted, and all is gray and dank, a primary device which may be relied upon by humane jailers is to permit the prisoners some freedoms, so that they may be in group work projects, visit a river to bathe and swim, or simply be permitted outside to walk about for awhile.

     Under these circumstances, a prisoner who cannot be trusted to remain, but who instead looks for every opportunity to depart, may have a profound impact on the conditions of confinement for all prisoners.  Jail guards too

[5 FSM Intrm. 184]

may find such proclivities on the part of a prisoner especially frustrating, for the guards may find it necessary to be more vigilant and distrustful of the prisoners than they would prefer, and may be prevented from permitting the prisoners the freedoms which guards and prisoners alike may enjoy.

     In any event, wholly aside from the spiritual subtleties of guard-prisoner relationships, escapes demand pursuit and few jailers or police officers relish the stress, anxiety and effort inherent in hunting down escaped prisoners.

     Thus, if it was not predictable, at least it is not surprising that the principal events at issue in this case occurred shortly after Mr. Plais was recaptured, having escaped with three other prisoners a few days before.

A.    Physical Abuse.
     Plais was recaptured on December 17, 1988.  The evidence establishes that he was at the time with Peter Thomsin, and that both were taken to the police station in Kolonia.  The atmosphere which greeted them was one of police revenge and intimidation.2  Plais and Peter Thomsin were taken into the police station with their hands handcuffed behind their backs.  There were numerous officers in the general area inside and outside the building, including the Pohnpei Director of Justice, Daro Weital.  Plais and Thomsin were under complete police control, and they were offering no resistance.  Nonetheless, Messrs. Plais and Thomsin testified, and the Court finds, that while they were in the police station, defendant William Panuelo, then the Pohnpei Chief of Corrections, stepped behind Plais and extinguished Panuelo's cigarette by grinding it against Plais' bare back.3

     The Court also accepts as true the testimony of Mr. Plais that Officer

[5 FSM Intrm. 185]

Panuelo displayed his can of mace and threatened to spray it in Plais' face at the jail.  The Court finds that these actions of the chief of corrections, and the attitude manifested by the actions, gave rise to, confirmed and encouraged a general view among the guards that the prisoners were now under their control, subject to whatever punishment the guards might choose to mete out.

     Harry Plais and Peter Thomsin were then taken to the jail, where they were stripped and placed together in one of three small cells segregated from the area where most of the prisoners are confined.  Some time thereafter, two officers, defendants Remikio Pretrick and Paulus Hartman, came to their cell.  Without provocation each officer kicked and hit both Plais and Thomsin several times in the face and body.  These were serious and substantial beatings, bloodying Plais' nose and mouth, and blackening his eye.  No bones were broken, but both Thomsin and Plais sustained several blows and kicks by officers wearing heavy steel-toed "safety shoes," to the body and ribs.  They suffered the effects of those beatings for several days thereafter.

     The beatings were entirely without justification in terms of jail order or discipline.  Until Officers Pretrick and Hartman arrived at their cell, Plais and Thomsin were simply sleeping on the floor of their darkened cell.

     Far from being a legitimate effort to maintain order, these beatings reflected and were part of the general atmosphere of police vengeance.  Later that night, after another recaptured escapee, Josper Hadley, had arrived and had been placed in the small cell with Plais and Thomsin, another officer, Crescensio Amor, entered the cell.  Amor began by kicking Harry Plais numerous times.  He then kicked Thomsin several times as well.  When leaving, Amor promised that he would return.  He did in fact return later that night.  This time he attacked and kicked Hadley as well as Plais and Thomsin.  During that same night, Amor also went into the other two cells in the segregated detention area and attacked the people in those cells, none of whom were escapees.

B.  Denial of Access.
     From the time that he was beaten on the night of December 17, 1988 until December 28, 1988, when the Governor of Pohnpei, Resio Moses, convened a "Task Force on Prison Reform," no person unaffiliated with the Pohnpei State Government was given the opportunity to see Harry Plais.4  As soon as Harry Plais's brother, Joel, was released on Monday, December 19, word began circulating that Harry Plais had been beaten at the jail.  Therefore Kerly Aracely, an investigator with the office of the public defender, went to

[5 FSM Intrm. 186]

the jail that day, and asked to see Mr. Plais.  He was denied access by defendant Pretrick and by Sergeant Costan Loyola on grounds that the Pohnpei Chief of Corrections, defendant William Panuelo, had ordered that nobody be permitted to see Plais.

     Harry Plais' mother, Rosie Plais, made numerous visits to leading Pohnpei State officials, including state attorney Randy Boyer, Director of Justice Daro Weital, Pohnpei Executive Officer Kikuo Apis and Governor Resio Moses in an effort to obtain permission to see her son.  Each of these officials told her to go to the jail and assured her that she would be permitted to see him.

     Yet, every time she did go to the jail, her attempts to see Harry Plais were unfailingly rebuffed by the supervisors at the jail.  Officers Costan Loyola and Remikio Pretrick told her in turns that she would not be able to see Harry Plais and that they "did not care" what the governor or the director of the Department of Justice or anybody else said about it since William Panuelo had instructed them that nobody was to see Plais.  This intransigence also greeted efforts of the office of the public defender and of the national justice ombudsman, both of whom were called by the governor's executive officer and were requested specifically to assist Mrs. Plais in her efforts to see her son.  Jail authorities maintained their adamant refusal even when the national justice ombudsman and the public defender told them that they were seeking access on behalf of Rosie Plais in response to a direct request from the governor's office.

     Moreover, when the efforts of these national officials to obtain access on behalf of Rosie Plais were thwarted, each requested to see Harry Plais in his official capacity.  Ignacio Soumwei, a trial counselor with the office of the public defender, asked, and was denied, an opportunity to see Plais as his client. National Justice Ombudsman Nickontro Johnny made his request as the national judiciary's official with primary responsibility for monitoring the implementation of penal sentencing.  This request too was denied despite Mr. Johnny's insistence that William Panuelo be notified directly of his wish to see Plais.

     The only non-jail staff persons permitted to see Harry Plais during the period between the December 17 beatings and December 28 were the Governor's Executive Officer, Kikuo Apis, State Attorney Randy Boyer, and Dr. Aminis David.

     Working through Director of Justice Daro Weital, Messrs. Apis and Boyer were able to see Harry Plais and Peter Thomsin at the jail on Wednesday, December 21.  Based upon that meeting and their observations, they left instructions that Plais and Thomsin, and one other inmate, were to be taken to the hospital for examination and treatment.  However, the next day they learned that these instructions had not been carried out.  Therefore Mr. Apis requested the Director of Health Services, Dr. Aminis David, to go to the jail

[5 FSM Intrm. 187]

to inspect them.  Dr. David did this on December 22.5  It is not clear how Dr. David obtained access to the prisoners.  However, former officer Ignacio Yanneris testified, and the Court finds, that when William Panuelo learned that Dr. David had been able to see Plais, Panuelo became angry and rebuked the guards.

C.  Conditions of Confinement
     There are three small cells, often used for punitive detention, in a separate area segregated from the place where other prisoners in the Pohnpei State jail are confined.  Each of these three cells is six feet wide by seven feet four inches long.  Each cell is entirely bare, with no furniture or mat, except for a toilet with a small wash basin built into the back of it.

     The plumbing and water system in the Pohnpei State Jail is woefully defective. Testimony, and the Court's inspection of the jail, established that of the 16 toilets in the entire jail, only one works.  Even that one leaks.  There is never, or almost never, any running water in any of the three segregated cells and the toilets in those cells have not flushed properly for many years, if ever.  Moreover, these toilets are of a design requiring higher than normal water pressure to flush properly.  The toilets therefore can not readily be flushed manually through the conventional methods of pouring a bucket of water into the front basin or through filling the back part of the unit with water.

     In response to a request made by counsel for plaintiff, the Court inspected the jail with all counsel on Friday, June 13.  At that time, the toilet in each of these three segregated cells was filled with excrement and urine.

     Jail officials testified that some efforts are made to clean out the toilets from time to time, but their testimony was quite hazy as to how, and how often, this actually is done.  The current Chief of Corrections, Wetson Pelep, indicated that some results can be obtained by pouring fresh water into the seat basin of the toilet.  However he also admitted that this is by no means a wholly satisfactory method.  There was other testimony to the effect that the materials inside the toilet must be dipped out manually from time to time.  The result, the Court finds, is that the commodes are practically never in fact entirely clear of human waste and quite often they are practically filled to the brim with defecated materials, often including worms as well.

[5 FSM Intrm. 188]

     Although plywood boards are often used as covers above the commode, the stench in each cell is nonetheless oppressive.  The foulness of the air is intensified by the absence of ventilation.  The Court also finds that the toilet basins in the solitary confinement cells leak and the filthy liquid seeps out of the basins onto the small floor area, where the prisoner must sleep.

     Despite these problems, no adequate provision has been made to provide access to alternative toilet facilities for persons confined in those segregated cells.  Some jail officials testified that if a person in one of these cells makes a request, he will be taken out of the cell and permitted to use a working toilet. However, those inmates who testified at the trial unanimously stated that they were not released from their cells at any time, or under any procedure, on a predictable basis, either to use toilet facilities or to bathe.  As a result, persons confined in the segregated cells routinely use the non-working toilets in those cells.

     Mr. Plais has testified, nobody has denied, and the Court finds, that he was kept in his cell at all times without being given an opportunity to leave to shower or even to wash his hands throughout the entire period of his confinement from December 17, 1988 until approximately 30 days later in January, 1989.  Nearly the same is true of his confinement in the same cell for almost 30 days in July, 1989, during which he was released from the cell and permitted to shower only one time.

     Several persons also testified, and the Court finds, that during Mr. Plais's confinement in the solitary cell during this period, December 1988 and January 1989, and again in July, 1989, grossly contaminated water was leaking on to the floor from the commode and often more than one person was being housed in the cell.

     This unsanitary situation is not just a product of current, or unavoidable events. Instead, the testimony in this case clearly establishes that the water and sewage systems themselves are defective and that the toilets in the solitary confinement cells have never worked properly.  The Court specifically finds that the unsanitary conditions described here have existed in the segregated cells for at least some five years.

     Finally, it bears noting as well, that the entire dreary and inhumane effect of all of this is compounded by inadequate lighting.  There is only one light bulb in each solitary confinement cell but police officers testified that the electrical system in the jail is also defective, that surges of power often occur, and that many lights are therefore blown out almost as soon as they are reinstalled.  As a result, it is almost impossible to keep the lights in the solitary confinement cells, and indeed throughout the jail, working.  As a practical matter, although a few lights are installed from time to time, jail officials seem to have given up and no longer seriously try to keep the lights working in the areas where inmates are confined. This too is a

[5 FSM Intrm. 189]

fundamental problem which has remained unaltered for years.

II.  Violations of Rights
A.    Tort Claims.
     1.  Battery - The appellate division of this Court has recognized the existence within the Federated States of Micronesia, and in Pohnpei, of the tort, battery.  In Paul v. Celestine, 4 FSM Intrm. 205, 207 (App. 1990), quoting W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on the Law of Torts 39 (5th ed. 1984), the appellate division defined battery as a "harmful or offensive contact with a person, resulting from an act intended to cause the plaintiff...to suffer such a contact."  In Paul, the Court remanded to the trial court the question of whether the police officer's act at issue in that case, punching an arrestee who refused to state his name, constituted a battery.  Thus, the Paul case also stands for the proposition that police officers may be held liable for a battery for inflicting a "harmful or offensive contact," without justification, on a person in the police officer's custody or control.

     Police officers do have authority to use such force as is reasonably necessary to carry out their law enforcement responsibilities, but they have no license or privilege to inflict pain on those under their custody simply for the satisfaction of doing so.  Physical aggression, unrelated to the specific needs of law enforcement, is forbidden even to police officers who honestly believe that the prisoner has done wrong and should be punished.  Loch v. FSM, 1 FSM Intrm. 566, 575 (App. 1984)("Punishment is no part of the police officer's assignment. A policeman who chooses to mete out punishment violates his office and does so at his peril."); Tolenoa v. Alokoa, 2 FSM Intrm. 247, 250 n.2 (Kos. 1986)("a police officer...may not use force or violence simply to punish people he dislikes or those he decides have done wrong.  The principal functions of the police officer are to preserve peace and order and to apprehend lawbreakers so that they may be tried by courts and handled justly.").  See also Moses v. Municipality of Polle, 2 FSM Intrm. 270 (Chk. 1986); Alaphen v. Municipality of Moen, 2 FSM Intrm. 279 (Chk. 1986); Meitou v. Uwera, 5 FSM Intrm. 139 (Chk. S. Ct. Tr. 1991).

     The actions of William Panuelo in burning Harry Plais with his cigarette and of Remikio Pretrick and Paulus Hartman in kicking and beating him while he was being held in the solitary confinement cell were without justification and constituted batteries for which the respective defendants are legally liable to Mr. Plais.

     2.  Assault - In addition, the plaintiff contends that the threat of Mr. Panuelo made at the police station that, upon their arrival at the jail, he would spray mace in the plaintiff's face, constituted an assault.  In Paul, this Court's appellate division, relying on Prosser and Keeton on Torts, defined assault as intentionally causing the "apprehension of imminent

[5 FSM Intrm. 190]

contact."  Paul, 4 FSM Intrm. at 207.  Applying that standard, this Court concludes that Panuelo's threat did not constitute the tort of assault because it did not place Mr. Plais in apprehension of such immediate contact as has been traditionally required for satisfaction of the elements of that tort. See Prosser and Keeton on Torts supra, at 43.  This is so because, by its own terms, the threat was to be carried out at another time, at another place.  Mr. Panuelo lacked the apparent intention, as well as the ability and opportunity, to carry out the threat immediately.
 
B.    Civil Rights Claims.
     Mr. Plais also contends that the beatings inflicted upon him, the conditions of his confinement, and the denials of access to family, counsel and medical care constituted violations of his civil rights.

     From December 17, 1988, until he was convicted of escape early in 1989, Plais was being held in two capacities.  He was a prisoner serving his sentence for the crime of manslaughter and he was also a pretrial detainee awaiting trial for the crime of escape.

     This is significant because the constitutional provisions applicable to a prisoner may vary, depending on his status.  As a general proposition, a pretrial detainee has a stronger right to liberty, which right is protected by the due process clause.  FSM Const. art IV, 3.  A convicted prisoner's claims upon liberty have been diminished through due process so that person must rely primarily on the constitutional protections from cruel and unusual punishment. FSM Const. art. IV, 8.

     Plais had been a convicted prisoner for many years.  Even the later charge against him, escape, arose out of his earlier imprisonment.  It therefore is appropriate that most of his civil rights claims in this case be tested against his protections from cruel and unusual punishments.  However, for reasons hereafter explained, the Court has concluded that the claims of denial to access, except access to medical care, are in the nature of due process claims, and that the physical abuse involved due process, as well as cruel and unusual punishment, issues.

     1.    Due Process
          a.  Denial of access - The statutory law of the Federated States of Micronesia enumerates certain civil rights which may not be denied in case of an arrest.

   Rights of persons arrested.  In any case of arrest,...it shall be unlawful to:

   (1) deny to counsel, whether such counsel is retained by the arrested person or a member of his family or is a Public Defender not yet appointed by


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the court, the right to see the arrested person once, at any time, for a reasonable period of time at the place of detention, and thereafter at reasonable intervals and for reasonable periods of time; or

     (2) deny to the arrested person the right to see at reasonable intervals, and for reasonable periods of time at the place of his detention, counsel, or members of his family, or his employer, or a representative of his employer....

12 F.S.M.C. 219.  The statute defines "arrest" broadly as "placing any person under any form of detention by legal authority."  12 F.S.M.C. 101(1).  Moreover, this Court has previously held that "one should be considered 'arrested' within the meaning of 12 F.S.M.C. 218 when one's freedom of movement is substantially restricted or controlled by a police officer exercising official authority based upon the officer's suspicion that the detained person may be, or may have been, involved in commission of a crime."  FSM v. Edward, 3 FSM Intrm. 224, 232 (Pon. 1987).

     Plais was charged with the crime of escape by an information filed with this Court on January 4, 1989.6  Thus while the police officers on December 17, 1988 and through the remainder of that month apparently viewed Plais simply as an escapee whose detention pursuant to the previous crime of manslaughter was being renewed upon recapture, the fact is that, as a person subject to prosecution for the additional crime of escape, he also was an "arrested person" within the meaning of 12 F.S.M.C. 218.

     As the events of this case dramatically reveal, the civil rights confirmed by 12 F.S.M.C. 218 are perhaps even more essential in the case of a captured escapee than for a newly arrested person.  The underlying and abiding purpose of these statutory provisions is to assure that the person who is arrested will not be entirely under the control of police officers.  FSM v. Edward, 3 FSM Intrm. at 224.  An incidental effect, if not indeed a direct goal of the notice requirement, is to remind police officers as well that the prisoner may not be subjected to abuse.

     The individual defendants not only violated the letter of the law by failing to provide the required notice and access to the prisoner but they also ignored his right to be free from physical attacks.  The Court finds that the actions of William Panuelo, as Pohnpei chief of corrections, in ordering

[5 FSM Intrm. 192]

those under his command to prevent representatives of the office of the public defender and Harry Plais's mother, Rosie Plais, from seeing Harry Plais, were in direct violation of Plais' statutory protections under 12 F.S.M.C. 218(1) and (2).

     The refusal of the chief of corrections to permit the national justice ombudsman to meet with Mr. Plais demands special comment.  Jail authorities are authorized to confine Harry Plais within the Pohnpei state jail by virtue of a sentencing order issued by this Court.  It is within the Court's inherent powers to confirm that its orders are being properly carried out.  Soares v. FSM, 4 FSM Intrm. 78 (App. 1989).  The national justice ombudsman and those other justice ombudsmen in the various states who work under his supervision, are the national judiciary officials primarily responsible for monitoring implementation of this Court's sentencing orders in criminal cases.

     This is the first instance to come to the attention of this Court, of jail officials denying a request by a national judiciary justice ombudsman to see a particular national prisoner.  The Court need not here decide whether this specific denial of a request of the justice ombudsman was a violation of the rights of Harry Plais. However, it is difficult to imagine any acceptable basis for such a denial and certainly none has been put forward in this litigation.  Thus the denial by jailers of the national justice ombudsman's request to see Harry Plais is strong evidence that the beatings inflicted upon Harry Plais were severe, that the chief of corrections was aware that the beatings had taken place, and that in denying the national justice ombudsman the opportunity to see Plais, Panuelo was attempting to protect himself, and the jailers and guards who had carried out the beatings.

     b.  Physical Abuse - Plais' status as an arrested person, confined in anticipation of prosecution for the crime of escape, is pertinent also to analysis of the beatings inflicted upon him.  The constitutional prohibition against the deprivation of liberty without due process of law, FSM Const. art. IV, 3, is designed to prevent, among other things, punishment for a crime before the accused has had an opportunity to defend against the charges.  Paul v. Celestine, 4 FSM Intrm. 205 (App. 1990); Tammed v. FSM, 4 FSM Intrm. 266, 282-83 (App. 1990).

     There can be no question that the actions of Panuelo, in burning Plais with his cigarette, and of Pretrick and Hartman in beating Plais, were intended to punish him for escaping, a crime for which he had not yet been convicted.  Applying the standards prescribed in Paul v. Celestine, the Court finds that all of those actions were unrelated to legitimate law enforcement purposes, and were inflicted for the purpose of causing pain and degradation to Plais.
 
     Nor can the injuries the defendants inflicted be dismissed as insignificant. The kickings and beatings by Pretrick and Hartman caused bleeding, swelling and bruises, and obviously were of sufficient gravity to constitute a due process violation.

[5 FSM Intrm. 193]

     Even the cigarette burn administered by William Panuelo constituted a significant threat to the plaintiff's well being.  Aside from the pain inflicted directly by such an act, this burn would undoubtedly have left Plais with a sore or lesion. Generally, an open sore poses a risk of infection in the tropics.  The risk inherent from such a burn is greatly increased for one confined in the dark, unventilated, unsanitary conditions of a punitive detention cell in the Pohnpei state jail.  The injuries inflicted were substantial.  The Court concludes that all the forms of physical abuse inflicted by Panuelo, Pretrick and Hartman were in violation of the plaintiff's rights of due process.

     2.  Cruel and Unusual Punishment - Plais also contends that the physical abuse inflicted upon him by the individual defendants, and the conditions of his confinement in solitary confinement cells from December 17, 1988 until sometime in January 1989, and again in July, 1989, constituted cruel and unusual punishment in violation of his protections under article IV, section 8 of the Constitution.  That provision says, "Excessive bail may not be required, excessive fines imposed, or cruel and unusual punishments inflicted."  FSM Const. art. IV, 8.7

     The meaning of the words, "cruel and unusual punishments," is not self-evident and the FSM Supreme Court has not previously had occasion to interpret that clause.  Thus, we look first to constitutional history for guidance.  Alaphonso v. FSM, 1 FSM Intrm. 209, 214 (App. 1982).  In proposing the cruel and unusual punishments clause, the Committee on Civil Liberties said:

     The underlying concept of this Section is the protection of the dignity of man.  The protection guarantees the principle of civilized treatment.  The content of this Section is not static, but must draw

[5 FSM Intrm. 194]

its meaning from the evolving standard of decency that marks the progress of a maturing society....Cruel punishment includes punishments of torture and all unnecessary cruelty.  Unusual punishment covers penalties which shock the sense of justice and fairness by their excessive length or severity.

It rests with the court to determine what constitutes...cruel and unusual punishment on the merit of each case.

SCREP No. 23, II J. of Micro. Con. Con. 799-800.

     This explanation, while helpful, is not conclusive.  The search for guidance must proceed further.

     The Constitution's Declaration of Rights is modeled in great part upon the Bill of Rights of the United States Constitution.  Alaphonso, 1 FSM Intrm. at 214-15. Comparison of the two "cruel and unusual punishment" clauses confirms that the framers of the Constitution of the Federated States of Micronesia used language almost identical to that of the eighth amendment of the United States Constitution, which says, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."  The report of the Committee on Civil Liberties also confirms that the framers in adopting the cruel and unusual punishment clause, consciously were drawing on the experience of the United States.  A key phrase in the committee's explanation quoted above, "the evolving standard of decency that marks the progress of a maturing society," is drawn almost verbatim from a leading United States case interpreting the cruel and unusual punishments clause in the United States Constitution.  See Trop v. Dulles, 356 U.S. 86, 101, 78 S. Ct. 590, 598, 2 L. Ed. 2d 630, 642 (1958)("The [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark a maturing society.").  For all of these reasons, we too look to United States court interpretations of that Constitution to assist in establishing the intended meaning of article IV, section 8.

     The United States courts have not found the task of definition an easy one, but have determined that the words "cruel" and "unusual" do not prohibit harsh punishments.  Even the taking of life itself, a form of punishment expressly prohibited by article IV, section 9 of the FSM Constitution, has been held not to be a "cruel and unusual punishment" within the meaning of the United States Constitution.  Gregg v. Georgia, 428 U.S. 153, 168-87, 96 S. Ct. 2909, 2922-32, 49 L. Ed. 2d 859, 871-82 (1976).  Similarly, long terms of imprisonment, even life imprisonment, have been accepted by United States courts as falling outside the prohibitions against cruel and unusual punishments, so long as there is proportionality between the sentence term and the type of offense.  Cf. Robinson v. California, 370 U.S. 660, 667 82 S. Ct. 1417, 1421 8 L. Ed. 2d 758, 763 (1962).

[5 FSM Intrm. 195]

     Yet methods of punishment which involve torture, the intentional infliction of physical pain or personal degradation have been held to violate the cruel and unusual punishment clause in the United States Constitution.  In re Kemmler, 136 U.S. 436, 446-47, 10 S. Ct. 930, 933, 34 L. Ed. 519 (1890) (methods of inflicting death which subject the convicted person to extreme pain, or a lingering death, such "as burning at the stake, crucifixion, breaking on the wheel, or the like" are cruel and unusual); Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968)(whipping prisoners with a strap is prohibited as "cruel and unusual punishment" because this kind of punishment is degrading to punisher and punished alike, and is easily subject to abuse in the hands of the sadistic and the unscrupulous); Inmates of Attica Correctional Facility v. Rockefeller, 453 F.2d 12, 22-23 (2d Cir. 1971)(three-day period during which prison guards and police officers beat, burned with matches and spat upon prisoners, and forced some to run naked through gauntlets of guards armed with clubs used to strike them as they passed, constituted cruel and unusual punishment because "wholly beyond any force needed to maintain order" and far exceeding "what our society will tolerate on the part of officers of the law in custody of defenseless prisoners.")  The law in the United States has now evolved to the point where it may be said that fines, imprisonment and even execution may be imposed consistent with the prohibitions against cruel and unusual punishments "but any technique outside the bounds of these traditional penalties is constitutionally suspect."  Trop v. Dulles, 356 U.S. 86, 100, 78 S. Ct. 590, 598, 2 L. Ed. 2d 630, 642 (1958).

     While it is apparent that the members of the Micronesian Constitutional Convention looked to the United States Constitution and interpretations thereunder in adopting the prohibition against cruel and unusual punishment, and expected those precedents to be considered by this Court, a word of caution is in order as to the use of those authorities in the Federated States of Micronesia.

     The standards articulated both by the United States courts and by the Micronesian Constitutional Convention's Committee on Civil Liberties indicate a general recognition that the clause has been susceptible of different meanings at different times and places.  The ban on cruel and unusual punishments now found in the eighth amendment of the United States Constitution was drawn from the English Declaration of Rights of 1688.  Note, 79 Harv. L. Rev. 635, 636 (1966). That English version was intended primarily to prevent punishments unauthorized by statute and beyond the jurisdiction of the sentencing court.  Gregg v. Georgia, 428 U.S. 165, 169, 96 S. Ct. 2909, 2923, 49 L. Ed. 2d 859, 872 (1976).

     The draftsmen of the United States Constitution adopted the English phrasing in the eighth amendment but their primary concerns were different from those that prompted the English version.  Id.  The American draftsmen did not consider it sufficient to prevent punishments that were not authorized by statute.  They thought it equally important to proscribe "tortures" and other "barbarous" methods of punishment without regard to whether a statute had attempted to authorize such punishments.  Gregg v. Georgia, 428 U.S. at 170-71, 96 S. Ct. at 2923, 49 L. Ed. 2d at 873.

[5 FSM Intrm. 196]

     Still, by the 19th century, the prohibition against cruel and unusual punishment was considered by some to be obsolete since most of the original forms of punishments which had given rise to the clause, such as pillorying, disemboweling, decapitation, and drawing and quartering, had been abandoned. 79 Harv. L. Rev. at 637.  Subsequently, however, and long before the clause was incorporated within the Federated States of Micronesia Constitution, it came to be recognized in the United States that the clause forbidding cruel and unusual punishments "is not fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened by a humane justice."  Weems v. United States, 217 U.S. 349, 378, 30 S. Ct. 544, 553, 54 L. Ed. 793 (1910).

     The clause is not interpreted today in the United States as being limited to the specific sentencing practices employed in England in 1688, nor to the kinds of tortures and barbarous methods of punishment which the first Federal Congress had in mind in considering the United States bill of rights in 1789.  The reach of the clause has now been extended to protect against punishments which are disproportionately harsh in relation to the offense, Weems v. United States, and other forms of excessive punishment.8  Thus the protection against cruel and unusual punishment is not regarded in the United States as a static concept, but draws its meaning from the evolving standards of decency that mark the progress of a maturing society.  Trop v. Dulles, 356 U.S. at 101, 78 S. Ct. at 598, 2 L. Ed. 2d at 642.

     It is this essence which the Committee on Civil Liberties identified as key to an understanding of the protection against cruel and unusual punishment in the FSM Constitution.  The Committee's recognition in SCREP No. 23 that the content of the section must be drawn from an "evolving standard of decency" suggests that the focus should be influenced by current thought and standards, rather than determined exclusively through reference to specific applications of the clause of the United States Constitution to particular forms of punishment. The "maturing society" whose "evolving standard of decency" we should look to for these purposes is that of the Federated States of Micronesia, not the society of the United States.  In determining whether a specific form of punishment is prohibited by the FSM Constitution, we may look to United States decisions, but we must also attempt to measure the sense of justice and fairness which prevails within the Federated States of Micronesia.

     That having been said however the task remains a complex and challenging one.  Surely, consideration of the "social and geographical configuration" of the Federated States of Micronesia, as required by the judicial guidance clause, FSM Const. art. XI, 11, will produce some decisions at variance

[5 FSM Intrm. 197]

with those of United States courts as to what is cruel and unusual punishment. As a hypothetical example, a prison's policy of denying prisoners use of a cot or a mattress might be seen as an unacceptable form of punishment in the United States, while it is conceivable that relegation of prisoners to a sleeping mat or even perhaps a bare floor might be permissible in Micronesia.  Such a difference arguably would reflect the different "social configurations" of the two countries, that is, different societal notions concerning minimal normal bedding requirements.

     Similarly, during many times of the year in most places in the United States, it might be cruel and unusual punishment to deny prisoners access to heated water for bathing purposes.  The realities of geography may obviate the necessity of providing hot water for prisoners here.

     Yet, courts must proceed with caution in efforts to identify societal differences concerning what is cruel or unusual punishment, lest this constitutional protection be dissolved.  Plainly, for example, it would not be appropriate to poll the citizens of a nation to determine whether a particular punishment of a specific person would be "cruel and unusual".  If it were clear that the majority of a society would always support all of the protections enumerated in the Constitution, there would be little or no reason for declaring those protections in the Constitution.  The fact is that societies erect constitutional safeguards for the very reason that, if the safeguards did not exist, the prohibited acts probably would occur, sometimes with the support of the majority of the citizenry.

     It follows that the parameters of protection against cruel and unusual punishment are not to be determined through exclusive reference to the views or sensibilities of a majority of the citizens in the society governed by the Constitution.

     The goal then is to develop concrete, cognizable standards which would be upheld regardless of the will of the majority of the people at a particular moment. While the standards should be influenced by the "evolving standard of decency" of the Federated States of Micronesia, the protection against cruel and unusual punishment is to have its own discrete reality.

     It is no doubt for these reasons that the Committee on Civil Liberties pointed out that "it rests with the Court" in "each case" to determine what constitutes cruel and unusual punishment.  Id. at 800.  I conclude that in attempting to make these determinations, the Court should consider the values and realities of Micronesia, but against a background of the law concerning cruel and unusual punishment in the United States, and international standards concerning human rights, in order to "guarantee the principle of civilized treatment."  SCREP No. 23, supra, at 799.

     a.  Physical abuse - No deep reflection or extended discussion is necessary to reach the conclusion that the actions of Panuelo, in burning Plais with his cigarette, and of Hartman and Pretrick, in kicking and beating Plais, were unnecessary and wanton infliction of pain upon a person under their control because he had been convicted of a crime.  As already discussed

[5 FSM Intrm. 198]

concerning Plais' due process claims, these actions were unrelated to any legitimate law enforcement purposes and were too substantial to escape constitutional notice.  Those actions were in violation of his protections against cruel and unusual punishment as well as of his due process rights.

     b.  Conditions of Confinement - On two occasions, first during December 1988 and January 1989, and then again in July, 1989, Harry Plais was confined for approximately 30 consecutive days, in a tiny punitive detention cell which had no running water or working toilet.  These cells, and their unsanitary conditions, have already been fully described in the findings of fact.  Throughout the periods of confinement Plais was never allowed out of the cells to wash or shower.  He contends that this confinement amounted to cruel and unusual punishment.

     Confinement in a prison is by its nature restrictive of liberties and normally is lacking in amenities.  Surely a certain harshness of environment is commonly considered inherent in penal confinement.

     Plaintiff here however is not seeking brighter paint on the walls, a better light to read by, a fan to stir the air, or even furniture or bedding for his room.

     The primary condition portrayed by the evidence in this case, an unflushable toilet typically filled with urine and excrement, leaking on the small floor area when the prisoner must stand, sit and sleep is, at best, highly distasteful.  When to this are added the facts that there is no running water in the cell; that the prisoner is not permitted to leave the cell at any time to bathe or wash his hands; and that the prisoner is served his food in this same small cell, it is clear that the conditions are dangerously unsanitary.

     Prisoners may often be exposed to additional health risks by virtue of their confinement and not all unsanitary conditions in jails or prisons always constitute cruel and unusual punishment.  For example, if one prisoner contracts a contagious disease others may be exposed to, and contract, the same disease. Difficulties in the jail's plumbing or sewage system may sometimes temporarily create unsanitary conditions while repairs are being made.  Flies, lice or other vermin may temporarily infest quarters where people are closely confined and it may take some time or effort to expel them.  All of these conditions may be constitutionally tolerable for a limited time if jail authorities are making a good faith effort to correct the problems.

     That has not been the situation in the Pohnpei jail however.  Testimony in this case establishes that the water has not run, and the toilets have not flushed, in the segregated cell area for many years.  The Pohnpei state government is making no efforts to fix the water and toilet systems in the segregated cells but nevertheless continues to confine prisoners in those cells without regard to the unsanitary conditions and without even assuring

[5 FSM Intrm. 199]

that persons in those cells are permitted an opportunity to bathe or wash their hands.

     This mode of confinement is not only inhumane and degrading but also unjustifiably exposes the prisoner to a greatly increased risk of infections and disease.  In so far as this Court is aware, such treatment of human beings is without parallel or precedent anywhere in society within the Federated States of Micronesia.  The Court need not here determine whether the use of these cells, without water and working toilets, coupled with a failure or refusal to permit prisoners to bathe, or even to consume food in sanitary conditions, reflects a conscious governmental decision to inflict pain and suffering upon prisoners.  At a minimum, the evidence establishes that relevant state authorities have been deliberately indifferent to the conditions and procedures under which Plais and many other prisoners have been confined.

     In having accepted responsibility to confine national prisoners, a state must ensure that the conditions in its prisons comport with the "contemporary standard of decency" of the Federated States of Micronesia.9

     The Court concludes that confinement of Harry Plais in the unsanitary conditions of his solitary confinement cell from December 17, 1988 to approximately 30 days later, and again for several weeks in July, 1989, was in violation of his constitutional protection against cruel and unusual punishment.

     c.  Access to medical care - Plais also contends that he was denied access to medical care in violation of his protection against cruel and unusual punishment.

     Confinement to jail makes a prisoner dependent upon jail officials to assure that his medical needs are treated.  For the same reasons that confining a prisoner to unsanitary conditions is unconstitutional, deliberate indifference to an inmate's medical needs can also amount to cruel and unusual

[5 FSM Intrm. 200]

punishment.10

     In this case however, plaintiff Plais has failed to produce evidence sufficient to support a finding that he has been denied access to medical care.  While defendant Panuelo apparently intended to deprive Plais of medical care during his confinement in the segregated cell area from December 17, 1988 until mid-January 1989, that plan was thwarted when the governor's executive officer, Kikuo Apis, directly requested Dr. David to go to the jail and to examine Plais. Dr. David complied with that request and pronounced Plais in good condition. There is no evidence indicating that Plais needed medical care at any other times during that period.

     Apparently, the Pohnpei Hospital has been unable to locate all of Plais's medical records.  However, the records that could be located show that Plais did in fact receive medical care at the hospital on numerous occasions between the times of his release from the segregated confinement area, approximately in mid-January, 1989 and his reconfinement in July, 1989.  Specifically, the records indicate that he was examined and treated during this six-month period on January 27, February 24, March 6, March 9, March 20, March 27, March 30, April 4, April 18, April 21, April 25, May 9, May 16 and July 20, 1989.  There is no showing that he had a serious health problem of any kind.

     Against this background, plaintiff's unexplained complaint that one request of his was denied by one officer does not merit serious consideration.

III.  Liability
     The next step is to determine which of the defendants in this litigation are legally liable to the plaintiff for the violations of his rights.

[5 FSM Intrm. 201]

A.  Individual Defendants
     Of course, the individual defendants, Panuelo, Pretrick and Hartman, are liable to Plais for the batteries each inflicted upon him.  These attacks also constituted violations of Plais' civil rights, that is, his rights of due process and his protections against cruel and unusual punishment, so that the defendants are also liable to him under 11 F.S.M.C. 701(3).

     Panuelo too is liable to Plais under 11 F.S.M.C. 701(3) for establishing and overseeing a policy of denying Plais the access to family and legal counsel which is guaranteed by 12 F.S.M.C. 218(1) and (2).

B.  State of Pohnpei.
     1.  Tort liability - Previous decisions of this Court, applying Pohnpei law, have recognized that the State of Pohnpei may be subjected to tort liability to its citizens.  Panuelo v. Pohnpei, 2 FSM Intrm. 150 (Pon. 1986).  It has also been recognized that the doctrine of respondeat superior may be applied to impose liability upon the state government for negligent wrongdoing of its agents.  Amor v. Pohnpei, 3 FSM Intrm. 519, 529 (Pon. 1988).  See also Koike v. Ponape Rock Products, Inc., 3 FSM Intrm. 57 (Pon. S. Ct. Tr. 1986) and Suka v. Truk, 4 FSM Intrm. 123 (Chk. S. Ct. Tr. 1989).

     Historically, a few common law jurisdictions have been reluctant to employ the respondeat superior doctrine to impose liability on an employer for intentional torts, such as a battery, inflicted upon another by the defendant's  employee.  Prosser and Keeton on Torts, supra, at 505.

     That earlier reluctance of some courts need not give pause in this case however, for two reasons.  First, the hesitancy traditionally has arisen with respect to work which does not normally call for the use of physical force.  As to that kind of work, the use of force typically is wholly outside the work instructions and is not foreseeable by the employer.  Id.  These factors also often lead to a conclusion that a particular battery was inflicted solely for the employee's own purposes rather than to serve the interests of the employees, and therefore was outside the scope of employment.  Id.

     The considerations concerning intentional misconduct of police officers acting in the line of duty are quite different.  It is to be expected that a police officer will sometimes find it necessary to employ physical force as part of the job.  Thus, courts generally agree that when force is employed by a police officer in an apparent use of official authority, the governmental employer should be held responsible for what is done.  I. Silver, Police Civil Liability 6.07 (1991).

     In the case now before this Court, indications are strong that the officers' actions were carried out within the scope of their employment rather than simply for their own personal purposes.  The acts complained of were perpetrated in government buildings devoted to law enforcement purposes.  Panuelo, the Pohnpei chief of corrections, burned Plais with a lighted

[5 FSM Intrm. 202]

cigarette at the Pohnpei State police headquarters, while the Pohnpei director of justice was in the vicinity.  The beatings were inflicted by jail guards while he was confined in the Pohnpei jail.

     The record in this case dramatically shows that Pohnpei corrections officers were in such unfettered control of the jail in December, 1988, that even the highest state officials found it difficult to meet with Harry Plais.  Other persons, including such officials as public defenders and the FSM National Justice Ombudsman, were flatly denied access to the jail.  Thus, the mere presence of defendants Paulus Hartman and Remikio Hartman in the solitary confinement cell is powerful evidence that they were acting within the scope of their employment.

     A second factor calling for imposition of liability upon the state for the intentional misconduct of these officers is the state's subsequent conduct in reaction to the misconduct.  An employer who is shocked by employees' wrongdoing and takes prompt steps to disavow that activity may stand a chance of persuading a trier of fact that the conduct was not of a sort which could have been anticipated and was outside the scope of the employees' employment.

     Here, no disavowal took place.  The highest officials of the State of Pohnpei were aware within days of December 17, of the physical abuse that had been inflicted upon him and that Plais was being denied access to his family and to legal counsel.  See Plaintiff's Exhibits 1, 2, and 4.  No effective immediate action was taken to assure that the officers would observe Plais' rights in the future.

     Moreover, even after the state had time to consider the matter fully and to determine an appropriate response, that response was to ratify rather than to disavow the actions of the individual defendants.

     Although investigations ostensibly were conducted, no punishment or disciplinary action of any kind resulted.  Defendant Panuelo was originally placed on administrative leave but eventually was reinstated to a new position in the Department of Justice without suffering any loss of pay at any time.  Indeed the state paid the attorney's fees incurred by Panuelo in connection with the investigation of the charges against him.  Panuelo received a satisfactory evaluation within months of the incident and each year since then has received normal within-grade salary increases.  Plaintiff's Exhibits 10 and 11.

     In pretrial discovery, the state originally claimed that it had suspended Officer Pretrick, but even this does not seem to have been the case.  The state has not produced any records whatever documenting disciplinary action against any of the three defendants.  Moreover, defendant Pretrick in his deposition flatly denied that he was disciplined for his part in the December event.  Defendant Pretrick too has received satisfactory evaluations and pay increases each year following the December 1988 incidents.  Similarly, there is no showing that Officer Hartman was ever punished or penalized in any way for his part in the beatings of December 1988.

[5 FSM Intrm. 203]

     Thus, the state through its subsequent conduct, effectively accepted and ratified the torts of the individual defendants.  This is an independent ground for holding the state jointly and severally liable for those torts.  M. Reuschlein and W. Gregory, Agency and Partnership, 32 (1979).

     2.  Civil rights liability - Plaintiff also contends that the state is liable to him pursuant to the provisions of 11 F.S.M.C. 701(3), which provides as follows:

Civil liability.  A person who deprives another of  any right or privilege protected under this section shall be civilly liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, without regard to whether a criminal case has been brought or conviction  obtained.  In an action brought under this section, the Court may award costs and reasonable attorney's fees to the prevailing party.

     a.  Is the state a "person"? - The State of Pohnpei has not filed any documents or made any serious oral argument to the effect that a governmental entity may not be a person within the meaning of section 701(3).  However the national government makes this argument, contending that neither it nor the State of Pohnpei, are persons within the meaning of 11 F.S.M.C. 701(3).

     In approaching this issue, it is noted that this Court's trial division has on several occasions imposed liability upon governmental bodies under 11 F.S.M.C. 701(3).  Moses v. Municipality of Polle, 2 FSM Intrm. 270 (Chk. 1986); Alaphen v. Municipality of Moen, 2 FSM Intrm. 279 (Chk. 1986); see also Meitou v. Uwera, 5 FSM Intrm. 139 (Chk. S. Ct. Tr. 1991).  Indeed, a state has been held liable under the section.  Tolenoa v. Kosrae, 2 FSM Intrm. 247 (Kos. 1986), rev'd in part on other grounds, 3 FSM Intrm. 167 (App. 1987).  However, the precise point here urged by the national government apparently was not considered in any of those cases.  It is therefore appropriate for this Court now to give full consideration to the government's contention.  Semens v. Continental Air Lines, Inc., 2 FSM Intrm. 200, 204 (Pon. 1986).

     The government's primary assertion is that since 11 F.S.M.C. 701(3) was enacted as part of the National Criminal Code, the meaning of the term "person" in that section must be determined by reference to the general National Criminal Code definitions.  The National Criminal Code defines "persons" as follows:

      104.  Definitions. - The definitions in this section shall apply throughout this code, unless otherwise specified or a different meaning is plainly required.... (10)  Persons.  The terms "person," "he," "accused," and "defendant," include any natural person and, where relevant, a corporation or an unincorporated association.

[5 FSM Intrm. 204]

11 F.S.M.C. 104(10).  This definition obviously does not include governments and presumably was intended to shield governments against claims of criminal liability under the National Criminal Code.  However, for the following reasons, the Court concludes that Congress intended the section 104(10) definition to apply only to the criminal sections of the National Criminal Code and that "a different meaning is plainly required" for civil liability claims authorized by that act.  11 F.S.M.C. 104.

     First, the appellate division, reviewing 11 F.S.M.C. 701(3) carefully, pronounced it "fair to assume" that section 701(3) derives from comparable United States statutory provisions, 42 U.S.C. 1983 and 1988, which impose civil liability upon persons who violate the civil rights of others.  Tolenoa v. Kosrae, 3 FSM Intrm. 167, 170 (App. 1987).  The appellate division in that case instructed that we "should consider the decisions of the United States" courts under those United States statutes in arriving at a decision as to the intended meaning of 11 F.S.M.C. 701(3).

     It is therefore quite significant that the United States Supreme Court has ruled that the word "person" in 42 U.S.C. 1983 includes governmental entities. Monell v. Department of Social Servs., 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978).  Especially noteworthy is the fact that Monell, a landmark case, was decided in 1978, approximately two years before the civil rights provisions were enacted by the Congress of the Federated States of Micronesia on November 15, 1980.

     If the appellate division in Tolenoa was correct in believing that the Congress used 42 U.S.C. 1983 "as a source" for section 701(3), the inference is quite strong that Congress was aware of the Monell decision and intended to include governments within the word "person" in 11 F.S.M.C. 701(3).

     Other aspects of the National Criminal Code also point to a conclusion that the section 104(10) definition of person is to apply only to the criminal provisions and that "a different meaning is plainly required" for civil liability claims.

     In adopting the section 104(10) definition, Congress was focusing on criminal, not civil, liability.  This is apparent because the definition was drawn almost verbatim from the 1962 Model Penal Code, which also defines a person as "any natural person and, where relevant, a corporation or an unincorporated association."  Model Penal Code 1.13(8), at 209 (Proposed Official Draft 1962).  There is no indication in either the Model Penal Code or the legislative history of the National Criminal Code that the American Law Institute or the FSM Congress thought this definition, tailored for the criminal law, would also be suitable for determining civil liability in civil rights cases.

     A close look at the other civil rights,  civil liability section in the National Criminal Code, 11 F.S.M.C. 702, supports the view that the section 104(10) definition is to be applied only to criminal, and not to civil, claims.  Section 702 assures equal access to "any department, agency, or

[5 FSM Intrm. 205]

institution of...the Federated States of Micronesia," 11 F.S.M.C. 702(1)(a), and imposes civil liability upon any "person who deprives another of any right or privilege protected under this section..."  11 F.S.M.C. 702(8).  Of course, criminal liability under 11 F.S.M.C. 702(8) for violation of section 702 would be limited to persons as defined in 11 F.S.M.C. 104(10).  However, since a specific purpose of section 702 is to provide access to governmental agencies, it appears most unlikely that Congress, in using the word "person" in section 702(8), intended to exclude those agencies from possible civil liability for denying access.

     It is noteworthy as well that both civil liability sections in the National Criminal Code, 701(3) and 702(8), specifically authorize civil actions "without regard to whether a criminal case has been brought or a conviction obtained."  This demonstrates still further that Congress did not consider the civil and criminal provisions in Public Law No. 1-134 to be parallel, or necessarily linked, and did not intend to limit the reach of the civil liability provisions to that of the provisions for criminal liability.  Thus, the 11 F.S.M.C. 104 exception applies.  "[A] different meaning" than that described in section 104(10) "is plainly required" for the word person in section 701(3).

     For all of these reasons, the Court concludes that in providing for civil liability in 11 F.S.M.C. 701(3), Congress intended that the word person would include governmental bodies, just as it does under 42 U.S.C. 1983 by virtue of the Monell interpretation.  The word "person" in 11 F.S.M.C. 701(3) therefore embraces governmental organizations, including the State of Pohnpei.

     b.  Official policy - It follows from what has already been said that the Court should look to United States' court decisions under 42 U.S.C. 1983 for assistance in determining liability of a governmental body under 11 F.S.M.C. 701(3).

     The United States Supreme Court in Monell concluded that 42 U.S.C. 1983 was not intended to impose liability vicariously, through the doctrine of respondeat superior, on government bodies solely on the basis that an employee of that government has violated the civil rights of another person.

[A] local government may not be sued under section 1983 for an injury inflicted solely by its employees or agents.  Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under 1983.

Monell, 436 U.S. at 694, 98 S. Ct. at 2037-38, 56 L. Ed. 2d at 638.  Although the operative language of 11 F.S.M.C. 701(3) is slightly different in form than that of 42 U.S.C. 1983, the two sections are parallel in that both condition liability upon some

[5 FSM Intrm. 206]

form of causation by the person to be held liable.  The Monell official policy requirement is based upon the language of section 1983, which says that a "person" who "subjects, or causes to be subjected," any other individual to a deprivation of federal rights is "liable to the party injured."  436 U.S. at 692, 98 S. Ct. at 2036, 56 L. Ed. 2d at 636.  Similarly, Section 701(3) imposes liability upon one "who deprives another of any right or privilege."  This too, like section 1983, requires that the person liable must somehow have actually caused the deprivation of rights.  There is no indication that Congress was attempting to distance itself from the Monell interpretation of the meaning of 42 U.S.C. 1983.

     This Court therefore holds that the doctrine of respondeat superior is not to be used to determine whether a governmental entity is liable under 11 F.S.M.C. 701(3) for civil rights violations inflicted by government employees.

     This is not to say however that a governmental body is shielded entirely from liability for civil rights violations perpetrated by its employees or officials.  In Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S. Ct. 1292, 89 L. Ed. 2d 452 (1986), the United States Supreme Court held that a decision made by Cincinnati's assistant prosecutor was a sufficient basis for holding that city liable under 42 U.S.C. 1983.

     The assistant prosecutor, in a telephone call, had instructed police officers who had no search warrant to press on with their illegal efforts to break into the office of a physician to seize persons in that office.  The court held that governmental liability under 42 U.S.C. 1983 may attach "where--and only where--a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question."  475 U.S. at 483-84, 106 S. Ct. at 1300, 89 L. Ed. 2d at 465.  In Pembaur, the assistant prosecutor was held to have final policymaking authority as to the decision to break into the physician's office because the sheriff's office had told the deputy sheriffs at the scene to seek instructions from the prosecutor's office.  Id.  The court was not deterred by the fact that the civil rights violation at issue flowed from a single decision by one official in response to a particular situation which had arisen in the field, and was not reflected in a written statute or regulation.  The court said, "it is plain that municipal liability may be imposed for a single decision by municipal policymakers under appropriate circumstances."  475 U.S. at 480, 106 S. Ct. at 1298, 89 L. Ed. 2d at 463.

     (1)  Physical abuse - In this case, all indications are that the Pohnpei chief of corrections has authority to make final policy for the state concerning handling of prisoners.11  The title itself implies as much.
 
[5 FSM Intrm. 207]

Moreover, especially in denying access to Plais, Panuelo was acting, and was being permitted to act, as though his power over prisoners was final, unreviewable by any other person within the state government, including the director of justice and the governor.

     Thus, the Court concludes that the cigarette burn inflicted by the Pohnpei chief of corrections in the police station, in the general presence of the director of justice and of numerous police officers, was a governmental act and a statement of official Pohnpei state "policy" concerning Mr. Plais.

     Similarly, the Court concludes that the beatings administered to Plais in his solitary confinement cell by defendants Pretrick and Hartman were products of decisions and actions of persons with the final policymaking power concerning prisoners in that place and time.

     This latter conclusion in part is based upon an inference that the actions of the chief of corrections in burning Plais with his cigarettes in presence of numerous of police officers at the police station set and reflected a tone.  All officers who were aware of this action must have believed that anything they might do to Plais short of inflicting major injury upon him would be in accord with the "official policy" toward Plais.

     It is significant also that these beatings were not simply isolated events but instead were part of a general pattern of beatings occurring in the Pohnpei jail at about that time.  It appears quite unlikely that these beatings could have occurred without the approval of the person in charge of the Pohnpei jail at that time.

     Of course, the Court's conclusion that the beatings reflected, and were part of, official Pohnpei policy toward Plais is supported by the subsequent efforts of the chief of corrections and those under his command to prevent other persons from seeing Plais.  As already noted, the Court interprets the refusal of the chief of corrections to permit the National Justice Ombudsman and other persons to see Plais as an attempt to prevent detection of the beatings and to protect those who had inflicted the beatings upon Plais.

     (2)  Denial of access - Finally, there can be no question that the refusals to permit representatives of the office of public defender and Plais' mother to see him, violations of civil rights guaranteed to Plais by 12 F.S.M.C. 218(1) and (2), constituted official actions for which the State of Pohnpei must be held responsible under 11 F.S.M.C. 701(3).

     Not only was this policy of nonaccess promulgated by the chief of corrections, who had policymaking authority for the State, it is also clear that the minister of justice and other high government leaders were aware of the policy.  Although these other leaders repeatedly told Mrs. Plais that she would be permitted to see her son, it is in fact obvious that they were acquiescing in, if not indeed supporting, the policy of denying her, the Public Defender, and the National Justice Ombudsman access to Harry Plais.

[5 FSM Intrm. 208]

     (3)  Conditions of confinement - The dangerously unsanitary conditions in which Plais was confined have existed in the Pohnpei state jail for many years now.  These conditions are not attributable to the acts or decisions of any particular jailer or chief of corrections but instead represent a broader, government-wide, policy of deliberate indifference to the dignity and well-being of persons placed in those cells.  The conditions represent official policy and the state is liable to Plais for confining him in those conditions.

C.  National Government
     Analysis now turns to the question of whether the Federated States of Micronesia is also liable to Harry Plais for these violations.  The national government emphasizes that no national officials, and no persons on the payroll of the national government, played any active role in the events which have given rise to this litigation.  Nonetheless, the plaintiff points to three separate statutory provisions under which he maintains the national government should be held liable.

     1.  6 F.S.M.C. 702(5) -  The national government has by statute said that it will not assert the defense of sovereign immunity against certain kinds of claims, including the following:

Claims for any injuries suffered consequent upon conduct of a National Government employee or agent acting under color of authority which violates those individual rights secured under article IV of the Constitution of the Federated States of Micronesia.  Compensatory relief granted for damages incurred from such violations shall not exceed $20,000.

6 F.S.M.C. 702(5).  The national government contends that this provision has no application to this case because none of the parties directly involved in the violations of Plais' rights under article IV of the Constitution were employees or agents of the national government.

     None of the individual defendants was a paid employee of the national government, so the question is whether they were agents.  The national government says they were not agents because the FSM National Government has delegated its authority to incarcerate prisoners in Pohnpei to the Pohnpei State Government and has no power to control how this function is actually carried out.

     The delegation of authority to which the national government refers is authorized by 12 F.S.M.C. 1202, which says, "The President of the Federated States of Micronesia may authorize appropriate State government officials to act on behalf of the National Government in performing . . . [certain] law enforcement functions . . . [including] (5) incarceration of
 
[5 FSM Intrm. 209]

persons convicted of a National offense and under a sentence of imprisonment."

     The Court cannot agree that this statute represents an effort to divest the national government of its responsibilities to national prisoners.  The joint administration of law enforcement act specifically recognizes the existence of a national duty concerning the incarceration of national prisoners.  The act defines law enforcement functions as follows:

"Law enforcement function" means any duty, responsibility, authority, or discretion in connection with enforcement of the criminal laws of the Federated States of Micronesia which under the Constitution of the Federated States of Micronesia and the national laws is vested in the executive branch of the National Government.

12 F.S.M.C. 1201(1) (emphasis added).  As already indicated, the incarceration of national prisoners is identified as one of those functions.  12 F.S.M.C. 1202(5).

     While 12 F.S.M.C. 1202 permits the national government to authorize state officials to perform law enforcement functions, the act expressly confirms that, in so doing, those officials will be acting "on behalf of" the national government.12

     Lest there have been doubt about the power of the national government to control the performance of the law enforcement functions assigned to a state law, the statute also provides that each such joint administration of law enforcement agreement "shall expressly reserve to the President final legal and administrative authority for the proper and lawful performance of national law enforcement functions."  12 F.S.M.C. 1203.

     The "joint administration of law enforcement agreement" in effect between the FSM National Government and the State of Pohnpei at the time of the activities did in fact expressly reserve to the President the "final legal and administrative authority for the proper and lawful performance of national

[5 FSM Intrm. 210]

law enforcement functions."  Plaintiff's Exhibit 20A.

     The Court therefore concludes that the national government retained direct responsibilities to Harry Plais as a national prisoner; that the state, and its officers and employees, were acting on behalf of the national government in their dealings with Plais; and that the national government retained the power to direct and control the actions of the State of Pohnpei toward Plais.  In short, the state, and the state's officers and employees, were agents of the national government.
 
     Of course, the state officers were also acting under "color of authority" within the meaning of 6 F.S.M.C. 702(5).  The national government therefore is liable to Plais under that section for their violations of his article IV rights.

     2.  6 F.S.M.C. 702(2) - Plaintiff also asserts, and the Court agrees, that the national government is liable to him under 6 F.S.M.C. 702(2), which authorizes claims against the national government "for damages...arising out of alleged improper administration of statutory laws of the Federated States of Micronesia, or any regulations issued pursuant to such statutory laws."

     As already discussed the joint administration of law enforcement act recognizes that responsibility for the incarceration of national prisoners "is vested" in the national government and requires that government to reserve to itself "final legal and administrative authority for the proper and lawful performance" of that function.  12 F.S.M.C. 1201-03.

     There can be no question then that the national government has certain responsibilities toward national prisoners.  These must include, at a minimum, administrative steps aimed at assuring that those who guard national prisoners are sufficiently trained so that they will not violate the constitutional rights of the prisoners, and efforts to assure that the conditions in which national prisoners are confined will meet minimal constitutional standards.

     The national government has not attempted to fulfill these responsibilities but instead has adopted a policy of deliberate indifference to the incarceration functions and those national prisoners to whom the government is responsible. Indeed, even after the events of December 1988 and January 1989, and after the Office of the Attorney General of the Federated States of Micronesia had conducted a full investigation and had concluded that "several prisoners" had been "deprived of their constitutional rights in that they were denied access to counsel...and were subjected to cruel and unusual punishment,"13 the national government still failed to take any action

[5 FSM Intrm. 211]

whatever.  The national government failed to prosecute the parties who had shown "a complete disregard for the civil rights of these prisoners."  Plaintiff's Exhibit 3, at 3.  There also is no showing that steps of any kind were taken to provide additional training, to monitor state activities, or even to ameliorate the conditions of confinement.  The national government has offered no explanation for these failures, but has contented itself with insisting that it has no powers and no responsibilities concerning the incarceration of national prisoners.

     The Court rejects that contention.  The national government has abdicated its responsibilities toward national prisoners.  That abdication was improper administration and helped bring about the violations of civil rights discussed in this opinion.  Therefore the national government is liable for those violations under 6 F.S.M.C. 702(2).

     3.  11 F.S.M.C. 701(3) - For essentially the same reasons as those already discussed in this opinion, supra, at 203-05, concerning the State of Pohnpei, the FSM National Government also is a "person" as that word is used in section 701(3).

     This represents a departure from United States' practice, but the variance is mandated by differences in the statutory language.  The United States federal government would rarely, if ever, be a defendant in a civil rights action under 42 U.S.C. 1983 for that statute applies only to persons who violate rights while acting "under color of any statute, regulation, custom, or usage, of any State or Territory or the District of Columbia..." (emphasis added).  However, 11 F.S.M.C. 701(3) applies, without limitation, any "person who deprives another of any right or privilege protected" under 11 F.S.M.C. 701.  Therefore all persons, including the national government, are within the reach of 11 F.S.M.C. 701(3).

     As a person under 11 F.S.M.C. 701(3), the national government is jointly and severally liable to Plais for the various violations of his civil rights.  This is so because those violations are in substantial part due to the fact that rather than attempting to assure "civilized treatment" to the prisoners, SCREP No. 23 at 799, the national government has adopted a policy of deliberate indifference to the constitutional rights of national prisoners.  The national government has failed to concern itself with the training or qualifications of the guards who are given control over national prisoners and has ignored the conditions of the prisoners' confinement.  Even when violations of prisoners' rights have been brought to the attention of the national officials the national government has declined to take any action to remove, to punish, or to train and improve the wrongdoers.  This deliberate lack of concern has played a substantial role in causing the violations of the rights of Harry Plais and the national government is therefore liable.

IV.  Procedural Due Process
     Plaintiff also contends that the decision to place him in the punitive detention area of the jail was violative of his rights to procedural due process.

[5 FSM Intrm. 212]

     As already noted, a sentencing order providing for the confinement of a prisoner by its nature places enormous restrictions on the prisoner's liberty rights. Accordingly, the procedural protections to which a prisoner is entitled in the name of protecting his rights of liberty are similarly diminished.

     It is apparent from the evidence however that no thought whatever has been given to procedural protections of prisoners in the Pohnpei state jail against arbitrary disciplinary actions.  No regulations setting out the procedures or standards for disciplinary decisions have been brought to the Court's attention. Plais contends, and the Court finds, that he received neither notice of the charges against him nor an opportunity to respond to those charges before or during the times he was punished by confinement in the punitive detention area. Of course, there was also no effort to provide a neutral decisionmaker as to the disciplinary decision.

     The current disciplinary procedures employed in the Pohnpei State Jail are lacking in fairness and fall short of even those minimal constitutional safeguards available to prisoners.  The confinements without procedural due process constitute violations of Plais' civil rights for which the State of Pohnpei is liable under 11 F.S.M.C. 701(3), and the national government is liable under 6 F.S.M.C. 702(2) and (5) as well as under 11 F.S.M.C. 701(3).

     The Court is unable to find from the evidence presented that the procedural safeguards would have spared Plais his confinement in the punitive detention cells.  Since the Court has already found that the two periods of detention in question were unconstitutional because of the conditions of confinement, and damages are being awarded on that basis, no additional monetary damages are required in response to the violations of procedural due process.

     However, it is important that steps be taken to assure that proper procedures are followed in the future.  Therefore the governmental defendants, state and national, will be required to prepare a plan setting out appropriate disciplinary procedures and explaining training to be provided to assure that the procedures shall be implemented in the Pohnpei State jail.

V.  Damages And Other Relief
     Based upon the above findings and conclusions the Court awards monetary damages and other relief as follows.

A.   Monetary Damages
     1.  Physical abuse
     a.  Burn - The cigarette burn was an act calculated to degrade and intimidate Plais.  This act also caused him immediate pain and suffering and exposed him to risk of infection.  Compensatory damages of $300 are awarded against William Panuelo.  The State of Pohnpei and the FSM National Government

[5 FSM Intrm. 213]

are also jointly and severally liable for those compensatory damages.

     The Court can understand Panuelo's frustration with Plais and his escapes from the jail.  Even so, however, this action of Panuelo, taken in the presence of other officers, was a gross and willful violation of his duties as chief corrections officer.  In venting his own anger at Plais in such a blatant and unjustifiable way, Panuelo recklessly manifested his own lack of regard for the legal restraints upon corrections personnel in their dealings with prisoners.  Punitive damages in the amount of $2,000 are assessed against Panuelo, individually, for burning Plais with his cigarette.

     b.  Beatings - Compensatory damages in the amount of $3,500 are awarded against defendants Pretrick and Hartman for the injuries they inflicted upon Plais.  The State of Pohnpei and the FSM National Government are also jointly and severally liable, along with the individual defendants, for these damages.

     These beatings too were gross, willful and wanton violations of the officers' duties, and demonstrated callous indifference to Plais' civil rights.  Separate punitive damages awards, each in the amount of $1,500, are assessed against defendants Pretrick and Hartman, respectively, as individuals.

     2.  Conditions of Confinement - The Court finds that Plais was confined in unconstitutional conditions of confinement for an aggregate of some 50 days.  A substantial award of damages is essential, for this form of confinement reflected governmental lack of respect for the dignity, humanity and well-being of prisoners, and undoubtedly played a key role in causing Panuelo, Pretrick and Hartman, and other Pohnpei State corrections officers, to believe they could abuse and maltreat prisoners with impunity.  Damages are assessed at the rate of $5.00 per hour, for a total of $6,000.  The governmental defendants are jointly and severally liable for those damages.

     The individual defendants are not held liable for the conditions of confinement, for the punitive detention cells, with their defective plumbing, were provided by the governments.  The individual defendants appear to have been using the cells in good faith, unaware of the unconstitutionality of this practice.  In the future, of course, officers may confine prisoners in similar conditions only at the risk of subjecting themselves to personal liability.

     3.  Denial of Access - The practice of denying citizens and counsel access to prisoners typically is employed, as it was here, to isolate citizens who are prisoners, and to permit prison authorities to violate the rights of those persons without detection and without hindrance.  Such actions, often the indicia of prison torture and brutality, may not be tolerated in the Federated States of Micronesia.

     The State of Pohnpei, the FSM National Government and William Panuelo are jointly and severally liable to the plaintiff in the amount of $5,000 for those unlawful denials of access.

[5 FSM Intrm. 214]

B.    Procedural Due Process.
     To insure that disciplinary procedures at the Pohnpei state jail will be in accordance with due process in the future, the State of Pohnpei and the FSM National Government, in consultation and cooperation with counsel for plaintiff, shall, within sixty (60) days, produce a plan, spelling out procedures to be employed by the Pohnpei state jail authorities in disciplining prisoners.  This plan shall be filed with the Court, and shall be subject to Court approval.  If the parties can not reach agreement within 60 days, a hearing will be held and the Court shall issue an order setting out procedures.

C.     Attorney's Fees.
     Plaintiff is the prevailing party in this action and may submit a motion for an award of attorney's fees pursuant to the provisions of 11 F.S.M.C. 701(3).  This motion shall state in detail the time devoted to the case, what was done, and the amount requested, and shall be filed with the Court within 45 days of the date of this opinion.

* * * *
 
Footnotes:
 
1.  The plaintiff's claims and the issues in the case are described in the Court's pretrial order, dated June 13, 1991, as supplemented by plaintiff's second amended complaint which the Court permitted to be filed on June 17.

2.  Even before Plais was captured, another escapee, Rodney Edwin, had been attacked by Officer Crescensio Amor, another jailer guard, while Edwin was sleeping in his solitary confinement cell.  Amor kicked Edwin several times in the back, stomach, and mouth, and when Edwin tried to resist, kicked Edwin in the hand, injuring his finger.  While doing this, Amor was demanding to know why Edwin had escaped.
 
     At various times, both before and after the capture of Plais, other prisoners, some who had nothing to do with the escape, were also beaten in what amounted to a law enforcement riot.

3.  William Panuelo denies having intentionally extinguished his cigarette in this manner.  Instead, he says that when he saw Plais at the police station he was frustrated, tired and angry and merely flipped his cigarette butt toward Plais' back.  Panuelo testified that the cigarette must accidentally have fallen inside Plais' shirt.  Panuelo's testimony was laced with internal contradictions on key points.  The Court finds the version provided by Plais and Thomsin more believable.

4.  There is no indication that the task force took effective action of any kind concerning the jail.  The state of affairs described in this opinion, including the lack of water and working toilets, the general unsanitary conditions, the defective wiring, and the failure to provide training, all still remained extant at the time of trial.

5.  Apparently no record was made of the examination and Dr. David did not testify at the trial.  Peter Thomsin testified that Dr. David said Thomsin and Plais were in good enough shape to "run a marathon."  The Court interprets this not as an attempt by Dr. David accurately to portray their conditions, but as a jocular and exaggerated way of telling Thomsin that they had no major injuries.

6.  The case went to trial on February 9 and 10, 1989.  Plais was convicted and, on March 7, 1989, he was sentenced to "an additional 4 months" in jail, to begin immediately after completion of his sentence for manslaughter.  Plais appealed, challenging the Court's power to impose consecutive sentences.  The sentence was affirmed on October 18, 1989.  Plais v. FSM, 4 FSM Intrm. 153 (App. 1989).

7.  Once the thought prevailed that people accused or convicted of crime nonetheless retained their standing as human beings and were entitled to certain basic rights it was perhaps inevitable that limitations would be placed upon the forms of punishment which could be inflicted in the name of law and justice.  This is so in great part because of the harsh and degrading forms of punishment typically employed by enforcers of the law in absence of such protections.
 
     In the earlier days, many kinds of offenders were simply killed, but they were not necessarily killed simply.  Some were boiled alive.  Others were drawn and quartered, still others were "gibbeted," that is, hung in chains slowly to perish, and a substantial number were burned to death, hung, beheaded or executed in some other way as the highlight of a public spectacle.     Corporal punishment also was popular.  Convicted persons routinely were whipped, flagellated or pilloried.  "Mutilation too was often emphasized, directed against the erring limb - the thief's hand, the rapist's sex organ."  Kittrie, The Right to be Different (1971), as reprinted in F. Miller R. Davison, G. Dix. R. Pernns, Sentencing and the Correctional Process, 15-16 n.1 (1976).

8.  Whitley v. Albers, 475 U.S. 312, 319, 106 S. Ct. 1078, 1084, 89 L. Ed. 2d 251, 260 (1986) ("after incarceration,...unnecessary and wanton infliction of pain...constitutes cruel and unusual punishment forbidden by the Eighth Amendment."); Miller v. Leathers, 913 F.2d 1085 (4th Cir. 1990)(en banc) (Inmate's allegation that guard struck him three times with a baton, breaking his arm, in response to racial taunts, is sufficient to state a prima facie case of cruel and unusual punishment.).

9.  This is in accord with holdings of courts in the United States.  See, e.g., Rhodes v. Chapman, 452 U.S. 337, 101 S. Ct. 2392, 69 L. Ed. 2d 59 (1981); see also DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 198-200, 109 S. Ct. 998, 1005-06, 103 L. Ed. 2d 249, 260-62 (1989).  The Court notes, but does not follow, the recently decided case of Wilson v. Seiter, 111 S. Ct. 2321, 115 L. Ed. 2d 288 (1991) for that decision emphasizes the state of mind of particular defendants, while the framers viewed article IV, section 8 of the FSM Constitution as guaranteeing "the principle of civilized treatment."  SCREP No. 23, supra, at 799.

10.  The United States Supreme Court has frequently said that the prohibition in the United States Constitution against cruel and unusual punishment requires the government whose authority has been used to incarcerate a person to assume some responsibility for that person's safety and general well-being.  See Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976) (the prohibition against cruel and unusual punishments requires the government to provide adequate medical care to incarcerated prisoners); Youngberg v. Romero, 457 U.S. 307, 317, 102 S. Ct. 2452, 2459, 73 L. Ed. 2d 28 (1982) ("When a person is institutionalized -- and wholly dependent on the State[,] ...a duty to provide certain services and care does exist"); DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 189, 198-202, 109 S. Ct. 998, 1005-06, 103 L. Ed. 2d at 261-62 (1989) ("when the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs - e.g., food, clothing, shelter, medical care, and reasonable safety - it transgresses the substantive limits on state actions set by the Eighth Amendment....").

11.  No statute, regulation or even guideline or statement of policy concerning the authority of the chief of corrections under Pohnpei law has been brought to the attention of the Court.

12.  Nor was the phrase "on behalf of" accidental, or even merely incidental.  The bill originally was entitled "a bill for an act to authorize the delegation of law enforcement functions from the national government to state government, and for other purposes."  SCREP No. 1-298, J. of 1st Cong., 4th Reg. Sess. 279-81 (1980).  The Committee on Judiciary and Governmental Operations, concerned that an attempt to delegate national law enforcement functions from the national government to a state government "may not be permissible under the Constitution," amended the bill to remove the reference to delegation, substituting authorization for state officials to act "on behalf of the national government."  Id.

13.  Plaintiff Exhibit 3, letter, dated March 16, 1989 from Steven P. Pixley, Chief, Division of Litigation of the FSM Office of the Attorney General, to Randy Boyer, Pohnpei State Attorney.
 
                                                                                                                                                                                                                                                                                                           
the offense. One form of statute proscribes the offense in terms of driving "while under the influence of intoxicating liquor". Another proscribes it in terms of driving "while in an intoxicated condition", and still another in terms of driving "while intoxicated or in any degree under the influence of intoxicating liquor ."scContUnit=====================scContUnit===================== It has been generally held that the phrases "under the influence of intoxicating liquor" and "in an intoxicated condition are synonymous. Moral v . Wyoming Highway Department, 203 P2d 954. There is authority , however , that while all persons intoxicated are "under the influence of intoxicating liquor", the reverse is not true. Shorter v . State, 52 ALR 2d 1329. There is a distinction between dru