We are to decide whether there was sufficient evidence to sustain a non-jury finding of liability in a Civil Rights Act proceeding brought by a prisoner against the senior officer of the guard at a Pennsylvania correctional institution. The court adjudicated in favor of the plaintiff and awarded damages in the amount of $2,500.00. The officer has appealed. We reverse.

We immediately dispose of defendant's improper venue contention. Clearly in a Civil Rights Act case brought under 42 U.S.C. 1983, venue did not properly lie in the Eastern District of Pennsylvania. Under the provisions of 28 U.S.C. 1391(b), this action 'not founded solely on diversity of citizenship' could 'be brought only in the judicial district where all defendants reside, or in which the claim arose, except as otherwise provided by law.' Grenoble resides in the Middle District, and the claim arose in the Middle District. At the beginning of the trial, however, Michael Minkin, Assistant Attorney General, conceded to the court that the question of venue was waived.1

The trial record discloses that William L. Bracey, Jr., a prisoner at Camp Hill Institution, Pennsylvania, participated in an assault on a prison guard on November 18, 1968, for which he was convicted in a state court. His civil action encompassed events which occurred immediately after the events which led to his subsequent conviction. Two guards were assaulted on B-Block, one of whom was a Sergeant Bartlebaugh. The plaintiff candidly admitted that he 'was participating in the assault right then.'2 Knives and daggers were used by prisoners in the assault.3 The plaintiff testified that he left B-Block and 'went out in the hallway and . . . was sprayed again with the can of Mace.'4 When asked if he knew who sprayed him, he replied: 'I don't quite recall, but I remember Lieutenant Yucha then was out there in the hallway,' and that 'I did see Major-- he was acting as major, Grenoble then in the hallway, when I went out in the hallway.' He said that he was thrown to the floor but could not 'recall which one pushed . . . (him) to the floor,'5 and that while on the floor he was beaten with night sticks 'for about five minutes . . ..'

Asked how much time elapsed between the time when he saw the defendant and the beating he received, he responded: 'It was like, just like seconds. The time it took me to stand up and like the time it took them to Mace me, I would say about five or six seconds, that is all it took.'

There is evidence that Grenoble was present at the time plaintiff was brought into the hallway; there is no evidence he was present during or throughout the beatings. The defendant was seen by plaintiff only at this one time, and his voice was heard later when plaintiff was brought up the hallway:

Q. Mr. Bracey, from the time that you got through the door from B-Block into the corridor and the events that you have described took place, during that period of time do you know where the defendant Grenoble was?

A. When I entered the hallway he was standing behind the guards, he was standing right behind them, and like the guards with the Mace was along the wall and when I came out, I came out of B-Block like this way (indicating), and I turned this way (indicating), and like the guards came over and like two guards grabbed me and I was sprayed with the Mace then.

Q. And all during this period of time where was the defendant Grenoble; if you know?

A. When I came out like he was standing directly behind the guards, you know, like he was standing right in front of the door but directly behind the guards as I recall.

Q. Well, to clarify that, was that the only time you saw the defendant?

A. No. When I was being taken up the hallway I recall his voice, you know.

THE COURT: You recall his voice?

THE WITNESS: His voice.

THE COURT: Saying what? Do you know?

THE WITNESS: 'Get him up there; go check on the keys.'

The witness said that he was then taken through the hallway to the entrance of D-Block, about twenty-five feet further: 'I was put on the wall, I was told to put my hands on the wall until they brought the key from the control desk, the control desk where they keep all the keys at . . .. I was told to like stretch out, put my hands on the wall . . .. I was facing the wall.' He testified that some six guards brought him there. The group then waited for a key to arrive from the control clerk to open D-Block. He stated: 'While waiting for the key, Lieutenant Yucha then was the one that was hitting me with the night sticks. As soon as they got the key he went across my face and then after-- as soon as I was hit I was pushed in D-Block, I went in D-Block, and like they ripped my clothes off me and . . . Captain Wilkes started choking me . . ..' Significantly, plaintiff testified that he did not know where Major Grenoble was when he was struck by Lieutenant Yucha, when his clothes were ripped off, and when he was pushed down the steps.6

Plaintiff spent eight days in the Camp Hill Hospital. According to the nurses' and hospital records, his injuries consisted of a broken nose and a right eye injury.

The precise question that we address is whether Grenoble was responsible for the plaintiff's beating. We emphasize that we do not reach the question of whether the physical acts which led to the plaintiff's injuries were state torts only, or whether they amounted to constitutional deprivations. Smith v. Spina, 477 F.2d 1140 (3d Cir. 1973); Howell v. Cataldi, 464 F.2d 272 (3d Cir. 1972). Although at trial Grenoble's attorney took the position that the plaintiff failed to state the deprivation of a constitutional right, the district court specifically rejected that argument, and Grenoble has elected not to renew this contention before us.

That portion of the district court's opinion outlining the basis of defendant's responsibility is as follows:

We have no difficulty in concluding that the defendant Grenoble was in charge of the prison guards and had complete control over their actions. When a superior personally directs his subordinates to do acts or when he has actual knowledge of their acts and acquiesces in them, he is regarded as having been personally involved and is liable for his own conduct, not on the basis of respondeat superior but because of his direct personal involvement. Landman v. Royster, 354 F. Supp. 1302 (E.D.Va.1973); Wright v. McMann, 460 F.2d 126, 135 (C.A.2, 1972). We hold that Grenoble is liable for the injuries inflicted upon the plaintiff in violation of his constitutional rights.

In reaching the legal conclusion of Grenoble's liability, the district court relied on findings of fact 'based largely on the testimony of the plaintiff which was straightforward and consistent . . ., (rejecting) out of hand the testimony of the Commonwealth's witnesses.' We hold that the implicit findings of the trial court as to the adjudicative facts of 'direction' or 'actual knowledge and acquiescense' cannot survive under the clearly erroneous test. Krasnov v. Dinan, 465 F.2d 1298 (3d Cir. 1972).

Plaintiff frankly admits that he did not prove Grenoble's participation in the administration of the beatings. Incredibly, plaintiff did not sue the two officers of the guard whom he identified as beating him-- Lieutenant Yucha and Captain Wilkes. There was no evidence introduced at trial that Grenoble gave orders 'to do acts,' i.e., to administer the beatings.7 The court ruled out liability on the basis of respondeat superior, and the parties do not now contest this ruling. Therefore, if the district court's legal conclusion of liability is to be sustained it has to be, in the district court's words, on the theory: 'When he has actual knowledge of their acts and acquiesces in them, he is regarded as having been personally involved and is liable for his own conduct . . ..'

We exclude the acts of violence in the hallway at the entrance to D-Block. Although Grenoble was placed at the other end of the hallway, and at some intermediate point in the hallway, plaintiff testified that he did not know where Grenoble was when he was 'pushed in D-Block, like they was hitting me like for not-- they weren't minutes, and they just ripped my clothes off.'8 If then there is to be liability, it must generate from Grenoble's earlier presence in the hallway or corridor between B-Block and D-Block.

The mere fact of presence of a superior officer would not be sufficient to impose liability even under the district court's theory. Yet presence is evidentiary on the facts of actual knowledge of and acquiescence in the unlawful acts of the subordinates. Even if we were to adopt the rule of law as stated by the trial court (in view of our decision in Curtis v. Everette, 489 F.2d 516 (3d Cir. 1973)), the burden is on the plaintiff to prove the facts of actual knowledge and acquiescence.

In an attempt to establish Grenoble's presence during the beating plaintiff testified that when he came out of B-Block he saw the defendant directly behind twenty guards. The beating, according to plaintiff, began five or six seconds after he saw the defendant. However, there was not one iota of direct evidence that Grenoble was present during the crucial time period-- the five or six minute beating; nor was there evidence that Grenoble saw the plaintiff being beaten. Indeed, although there is evidence that plaintiff saw Grenoble at one time, there is no direct evidence that Grenoble ever saw plaintiff. Moreover, there is no proof that the defendant knew that the guards who participated in the beating had engaged in similar beatings in the past. The absence of this evidence is crucial to plaintiff's case, for in Curtis v. Everette, supra, we reversed the dismissal of a complaint which alleged, inter alia, that 'defendants had actual knowledge of the dangerous nature and propensity of (plaintiff's attacker) Everette.' In that same case we affirmed the court's dismissal of the complaint as to other defendants and stressed that 'there . . . (were) no allegations that . . . (the defendants) had reason to know . . . (that plaintiff's attacker) would commit such an assault or that similar assaults had taken place.' (489 F.2d at 521)9

We would be more constrained to find actual knowledge and acquiescence if plaintiff had proved defendant's presence throughout the entire five or six minute beating. Likewise, if plaintiff had proved that Grenoble saw him being beaten, or if there were evidence of a history of such episodes by the participating guards, we would be hard put to hold that a trial court's finding of actual knowledge was clearly erroneous. Had this interlude been an isolated incident that day, we could invoke the laws of probability to conclude that the defendant remained in one spot to deal with the solitary troublemaker. But that is not this case. Putting plaintiff's incident in its proper perspective, his beating took place immediately after a major disturbance in B-Block in which knives and daggers were used to assault two prison guards. By his own admission, plaintiff's participation in the assault was minimal; he attacked the bleeding Sergeant Bartlebaugh with physical force only. Other prisoners used knives and daggers. Therefore, it is just as reasonable to conclude that Grenoble was looking after other facets of the prison disturbance, i.e., apprehending the prisoners who used knives and daggers, as it is to conclude that he remained at the scene of plaintiff's beating.10 Assuming without conceding the correctness of the district court's statement of the law, the brute fact remains that the district court's findings of actual knowledge and acquiescence are completely devoid of minimum evidentiary support and are, therefore, clearly erroneous. Krasnov v. Dinan, supra, 465 F.2d at 1302.

The judgment of the district court will be reversed and the proceedings remanded with a direction to enter judgment in favor of the defendant Grenoble.

SEITZ, Chief Judge (concurring and dissenting).

I believe that we should remand this case for reconsideration by the district judge, rather than entering judgment for the defendant.

I am willing to accept as applicable to Section 1983 actions the legal principle followed by the district court that 'when a superior personally directs his subordinates to do acts, or when he has actual knowledge of their acts and acquiesces in them, he is regarded as having been personally involved and is liable for his own conduct, not on the basis of respondeat superior but because of his direct personal involvemant.'

It is not entirely clear, however, which of the two alternative tests contained in this statement the district court applied. The court's statement that it had 'no difficulty in concluding that the defendant Grenoble was in charge of the prison guards and had complete control over their actions . . .' is ambiguous at best. It provides no indication whether the court found that the defendant actually ordered the beating or that the defendant ahd actual knowledge of the acts of his subordinates and merely acquiesced in them.

The court's emphasis on the answers to plaintiff's interrogatories seems to indicate that the court found that defendant actually ordered the guards to beat plaintiff.1 The district judge in his memorandum and order, however, points to nothing, other than the answers to the interrogatories, to support his conclusion that plaintiff was beaten by prison guards acting on specific directions from the defendant. Nor can I find in the record any other basis for such a conclusion.

Do the answers to interrogatories executed by defendant's counsel, and of which the district court took judicial notice, supply the missing ingredient? I am satisfied that they do not because, as Judge Aldisert says, they were not signed by the defendant, were not under oath, and, of critical importance, were not introduced into evidence. Nor do the answers constitute matter which is the proper subject of judicial notice.

Thus, the district court had not permissible basis for inferring that the defendant gave orders to beat plaintiff. Similarly, the answers to the interrogatories cannot be used as the basis for a finding that defendant had knowledge of and acquiesced in the beatings. It does not, however, inexorably follow that judgment should be entered for defendant.

Had the district court judge confined himself to the evidence, I cannot say whether he would have found knowledge and acquiescence on the part of the defendant to the beating after plaintiff had been effectively subdued. While I do not intimate that such a finding would be mandated by the record, I cannot say that the record could not support such a finding.

There was evidence placing the defendant at the scene both immediately before and immediately after the first incident in which the plaintiff was beaten. Possibly, because of its erroneous reliance on the answers to the interrogatories, the district court did not focus on this evidence. I would therefore remand and direct the district court to make properly based findings and draw conclusions concerning defendant's knowledge of and acquiescence in the beatings at the critical time.