O'Dell v. Netherland

• Decision Date: 05 May 1997
• Docket Number: No. 96-7564,96-7564
• Citation: 112 F.3d 773
• Parties: Joseph R. O'DELL, III, Plaintiff-Appellee, v. J.D. NETHERLAND, Sued in his official capacity as Warden at Mecklenburg Correctional Center, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 773

112 F.3d 773

Joseph R. O'DELL, III, Plaintiff-Appellee, v. J.D. NETHERLAND, Sued in his official capacity as Warden at

Mecklenburg Correctional Center, Defendant-Appellant.

No. 96-7564.

United States Court of Appeals, Fourth Circuit.

Argued April 10, 1997.

Decided May 5, 1997.

ARGUED: Mark Ralph Davis, Senior Assistant Attorney General, Criminal Law Division, Office of the Attorney General, Richmond, VA, for Defendant-Appellant. Steven David Rosenfield, Charlottesville, VA, for Plaintiff-Appellee. ON BRIEF: James S. Gilmore, III, Attorney General, Pamela A. Sargent, Assistant Attorney General, Criminal Law Division, Office of the Attorney General, Richmond, VA, for Defendant-Appellant. Mary C. Bauer, ACLU of Virginia Foundation, Richmond, VA, for Plaintiff-Appellee.

Before RUSSELL and LUTTIG, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

OPINION

PER CURIAM:

On October 11, 1996, the federal district court for the Eastern District of Virginia (Spencer, J.), enjoined the Commonwealth of Virginia to allow death row inmate Joseph Roger O'Dell to have contact visits with Lori Urs, a paralegal at a law firm representing O'Dell and O'Dell's wife, in her capacity as a paralegal. The district court's injunction was thereafter stayed pending the present appeal, in which O'Dell argues that the Commonwealth of Virginia has denied him his Sixth Amendment and Fourteenth Amendment right of access to courts by denying him contact visits with his paralegal/wife, in her capacity as his paralegal. On April 10, 1997, we heard oral argument from attorneys for the Commonwealth and counsel for O'Dell on this issue.

For the reasons recited in Judge Luttig's opinion of October 18, 1996, staying the district court's injunction in this matter pending appeal, which opinion we hereby adopt as our own, we conclude that O'Dell's Sixth Amendment and Fourteenth Amendment right of access to the courts is not abridged by the Commonwealth's refusal to allow him to have contact visits with his paralegal/wife, Lori Urs.

The judgment of the district court is reversed and the case is remanded with instructions to enter judgment for appellant Netherland. A copy of Judge Luttig's order of October 18, 1996, is attached.

REVERSED.

ORDER

On Friday, October 11, 1996, the district court for the Eastern District of Virginia entered a permanent injunction on behalf of inmate Joseph Roger O'Dell against the Commonwealth of Virginia, enjoining the Commonwealth to allow "legal contact visits" between O'Dell and Ms. Urs, a paralegal/investigator on O'Dell's legal defense team and purportedly O'Dell's wife "under the laws of the Cherokee nation." ^* According to the parties, a "contact visit" is one in which Urs is permitted to meet with O'Dell alone, in a room without any partitions separating the two from each other, and outside the immediate presence of prison officials. A "contact visit," in other words, is one in which the two persons are allowed physical contact, albeit within sight of prison officials. "Non-contact visits," on the other hand, as the name implies, are meetings in which the prisoner is allowed to communicate with another individual, but is not allowed physical contact with that person. "Non-contact visits" include face-to-face meetings in which the parties speak through a glass or screen partition, telephone conversations, and written communications by mail or hand-delivery.

Under the rules imposed by the Commonwealth's prison authorities, O'Dell is permitted the full range of "non-contact visits" with his counsel and their assistants, in addition to the full range of "contact visits" with his counsel and all of their assistants, except Urs. Thus, O'Dell is allowed to meet face-to-face with any of his six attorneys (four of whom live in Virginia) or paralegals--including Urs--and discuss through a glass or screen partition any matter he wishes. Additionally, he is allowed to discuss over the telephone any matter with any of his attorneys or paralegals, including Urs. And he is permitted any and all forms of written communications with any of his attorneys or paralegals, including Urs. None of these "non-contact visits" is currently monitored by prison officials. O'Dell, therefore, enjoys complete confidentiality in these communications.

The only limitation on O'Dell's access to his counsel or their assistants is that O'Dell is not permitted to meet face-to-face and in person, unseparated by partition, with Urs, when she is acting in her capacity as one of O'Dell's paralegals. (O'Dell is allowed periodic spousal visits with his wife, in accordance with prison custom and policy.). The prison's limitation on O'Dell's "contact visits" from Urs--a limitation that extends to the spouses of all death-row inmates--was imposed because, in the experienced judgment of the State's prison authorities and administrators, Urs, as O'Dell's wife, represents a security risk to O'Dell, herself, and third persons as a consequence of the circumstances in which O'Dell now finds himself.

Notwithstanding the array of contacts permitted O'Dell between his attorneys, his paralegals, and even Urs, the district court ordered the Commonwealth to allow O'Dell even the "legal contact visits" with Urs that had been prohibited him in the interests of prison security.

In anticipation of the first "legal contact visits" between Urs and O'Dell pursuant to the district court's injunction, which presumably occurred on Tuesday and Wednesday of this week, October 15-16, the Commonwealth on Tuesday morning filed papers with me as a single Circuit Judge pursuant to Fed. R.App. P. 8, applying for a stay of the district court's injunction. Thereafter, I directed O'Dell to file a responsive pleading and the Commonwealth to file a reply to O'Dell's response. Having carefully considered the submissions of both parties and the applicable authorities, I hereby grant the stay of injunction requested by the Commonwealth.

In enjoining the Commonwealth to allow O'Dell "contact visits" with Urs whenever "authorized by O'Dell's lawyers," the district court reasoned that O'Dell was constitutionally entitled under the Sixth Amendment to "contact visits" with a paralegal, and thus that O'Dell was not only likely, but certain, to succeed on...