United States v. Mark A. Salazar , 505 F.2d 72 ( 1974 )

BRIGHT, Circuit Judge

(concurring):

I concur in the perceptive opinion of Judge Smith. However, I retain some reservations as to the sufficiency of the Government’s proof on the issue of intent. The testimony of various witnesses, including the two witnesses for the Government, conclusively establishes that Salazar ¹ experienced severe pain at the time of the incident. In my view of the record, Salazar’s tearing of his cast represented an attempt to alleviate the pain and swelling secondary to his surgery rather than an act of insubordination. The torture of unremitting and unrelieved pain can and often does produce bizarre reactions upon human behavior.

An inference of intent supporting the assault charge comes from the defendant’s utterance of the expletive “You bitch,” at approximately the same time Ms. Newby was struck. Yet, even the inference of intent to be drawn from this statement is tempered by Salazar’s ready concession of this statement and other evidence that Salazar repeatedly used profane language during the entire incident. We might note that peddler’s French rather than king’s English is the likely argot within prison walls. Cf. United States v. Barcley, 452 F.2d 930, 933-934 (8th Cir. 1971). An additional factor mitigating intent is the concession of a Government witness that patients are sometimes “very violent when you are trying to put restraints on them.”

If I were the factfinder in this case, I would acquit. The Government’s failure to present persuasive evidence relating to Salazar’s intent to harm Nurse New-by coupled with the extenuating circumstances recited above leads me to doubt whether the blow struck was intentional. But, the prerogative of determining credibility and drawing inferences from conflicting evidence rests with the trier of fact — judge or jury. In his evaluation of the evidence, Judge Collinson ruled for the Government. I am unable to say that this decision is so completely unsubstantiated by the evidence as to warrant reversal.

Although I agree to an affirmance, I deem very appropriate Judge Smith’s critical comments on the Medical Center’s procedures for responding to a patient’s request for relief from pain. If a surgeon is officer of the day (OD), a request by a surgical patient for an effective pain killer ² is routinely transmitted to the OD. However, if the OD happens to be a nonsurgeon medical officer, as was the case on the day in question, the surgical patient’s request is not forwarded to the OD. Thus, whether a prisoner-patient’s request for a more adequate pain killer comes to the attention of a doctor depends not on his medical condition, but on which type of physician has drawn OD duty. The logic of this procedure for the care of prisoner-patients at the Federal Medical Center escapes me. I am quite certain that such a procedure would not be tolerated in a hospital in a nonprison setting. I am unable to perceive why, merely because a sick person is a federal prisoner, he should be subject to unnecessary suffering for long periods of time without recourse merely because of a highly dubious hospital administrative procedure.

The trial court sentenced Salazar to serve an additional six months in prison, the maximum authorized under 18 U.S. C. § 113(d). In light of our comments above focusing upon Salazar’s unrelieved suffering at the time of the incident in question, in part related to a denial to him of the opportunity for medical attention, the trial court may wish to consider whether these circumstances justify mitigation of punishment or probation. Without intending any encroachment upon the sentencing prerogatives of the trial judge, I would suggest reconsideration of this sentence under Fed.R. Crim.P. 35.

Affirmed.

1 . Salazar is serving a three-year sentence for possession of heroin. He testified that he became addicted .to narcotics while in the Armed Forces.

2 . The record reflects that the medication which had been prescribed for Salazar on the day in question was Talwin, a drug slight-, ly more effective than aspirin.