Stroud v. Swope, 12595.

Decision Date09 March 1951
Docket NumberNo. 12595.,12595.
Citation187 F.2d 850
PartiesSTROUD v. SWOPE, Warden.
CourtU.S. Court of Appeals — Ninth Circuit

Nathan Cohn, San Francisco, Cal., and Robert Stroud, in pro. per., for appellant.

Frank J. Hennessy, U. S. Atty., Joseph Karesh, Asst. U. S. Atty., San Francisco, Cal., for appellee.

Before BONE, ORR and POPE, Circuit Judges.

BONE, Circuit Judge.

Appellant, an inmate of the United States Penitentiary at Alcatraz, California, filed in the lower court a pleading which he entitled a petition for an injunction. He demanded an order restraining the warden of that institution from what he denominated an "unlawful interference with the lawful business interests of petitioner, or depriving the petitioner of property rights secured to him under the Constitution and laws of the United States."

The actions of the warden are said to result from a "conspiracy" organized in 1931 by officials of the Federal Bureau of Prisons and continued since 1931, this conspiracy operating under the guise of a general order issued in 1931 purporting to regulate the administration of prison operations, the order among other matters forbidding the transaction of business by inmates of federal prisons. It is charged that while the order purports to be of general application to all prisons and prisoners it was purposely directed at and against petitioner, and as a result it has damaged him "to the extent of many hundreds of thousands, if not millions of dollars."

Appellant's petition prays for judgment for the amount of his damages (without specifying the party or parties against whom the damages should be assessed), and that the 1931 order referred to be declared null and void as an invasion of his "constitutional rights."

The lower court denied the petition for an injunction. It also elected to treat the petition as one for the writ of habeas corpus, denied the writ and dismissed the proceeding. This action of the court was clearly justified.

The controlling issue is simple. Is appellant entitled (under the law and prison regulations) to carry on "business affairs" representing efforts to secure publication of a book, or books, which he claims to have been preparing while in prison, and freely to engage in general business correspondence with outside parties to promote and further this business enterprise. While his petition suggests no such limitations, his counsel in this court recognized that restraints are necessarily imposed upon the activities of such prisoners, and suggested to us that we order the warden to permit "a reasonable correspondence" to further appellant's outside business enterprise.

If we assumed the authority to make an order of the character here proposed, it would certainly impose upon the courts the future duty of deciding the issue of "reasonableness" in the event appellant and the prison warden were hereafter unable to agree as to various phases of "business activity" carried on by appellant and the scope of his correspondence relative thereto. We reject the argument that any such burden of supervision may lawfully be imposed upon, or assumed by, the courts.

Many years ago (1930) Congress saw fit to place many restrictions upon the activities of prisoners. In this connection reference is made to the provisions of Title 18 U.S.C.A. § 4042 relating to the duties of the Bureau of Prisons, the substance of these statutory provisions being carried over into new Title 18 from former Title 18, Section 753a. The "general order" which appellant says was aimed at him and which is part of the "conspiracy" of prison officials to which he refers, was issued under authority of the 1930 statute above referred to. See also directive to prison officials in Manual 96.1

To support his contention that his right freely to conduct outside business operations can not be curbed by laws or prison regulations except at the expense of his constitutional rights, appellant cites Price v. Johnston, 334 U.S. 266, 68 S.Ct. 1049, 92 L.Ed. 1356. It is to be noted that in that case the court was constrained to point out, on page 285, of 334 U.S. on page 1060 of 68 S.Ct. that "Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system." This view is wholly at odds with the sweeping contentions of appellant as to his unlimited right to engage in "outside" business activities.2

We think that it is well settled that it is not the function of the courts to superintend the treatment and discipline of prisoners in penitentiaries, but only to deliver from imprisonment those who are illegally confined.3

Some of appellant's correspondence set forth in the record carries acidulated comments of a character well calculated to arouse antagonism in the recipient. The warden may well have decided that a wise discretion called for a curb on this type of correspondence.

Appellee has suggested that appellant's right of action, if any, would properly lie against appellee's superiors in the District of Columbia. For the reasons above indicated we think...

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  • Negrich v. Hohn
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • October 7, 1965
    ...86, 90, 73 S.Ct. 139, 97 L.Ed. 114 (1952); Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948); Stroud v. Swope, 187 F.2d 850, 851-852 (C.A.9, 1951), cert. den. 342 U.S. 829, 72 S.Ct. 53, 96 L.Ed. 627; United States ex rel. Wagner v. Ragen, 213 F.2d 294, 295 (C.A.7, 19......
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    • United States
    • U.S. District Court — District of Colorado
    • February 21, 1980
    ...v. Looney, 213 F.2d 771, 771 (10th Cir. 1954), cert. denied, 348 U.S. 859, 75 S.Ct. 84, 99 L.Ed. 677 (1954). See Stroud v. Swope, 187 F.2d 850, 851 (9th Cir. 1951), cert. denied, 342 U.S. 829, 72 S.Ct. 53, 96 L.Ed. 627 (1951); Garcia v. Steele, 193 F.2d 276, 278 (8th Cir. 1951); and Dayton ......
  • Martin v. Rison, C-88-2570-CAL.
    • United States
    • U.S. District Court — Northern District of California
    • June 26, 1990
    ...U.S. 266, 285, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356 (1948). A decision of this circuit is particularly appropriate here; Stroud v. Swope, 187 F.2d 850, 851 (9th Cir.1951), cert. denied, 342 U.S. 829, 72 S.Ct. 53, 96 L.Ed. 627 (1951). The Ninth Circuit there held that an inmate had no right to......
  • State v. McCray
    • United States
    • Court of Appeals of Maryland
    • December 1, 1972
    ...discipline of prisoners in penitentiaries, but only to deliver from imprisonment those who are illegally confined.' Stroud v. Swope, 187 F.2d 850, 851-852 (9th cir. 1951), cert. denied, 342 U.S. 829, 72 S.Ct. 53, 96 L.Ed. 627 (1951). The doctrine was justified by reference to the principle ......
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4 books & journal articles
  • Prisoners, Punitive Damages, and Precedent, Oh My! the Eleventh Circuit in Hoever Overrules Prior Interpretation of the Prison Litigation Reform Act
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 73-4, June 2022
    • Invalid date
    ...of Prisoners § 1:4. The Demise of the Hands-Off Doctrine and the Beginning of Prisoners' Rights Law (5th ed. 2021).42. Stroud v. Swope, 187 F.2d 850, 851-52 (9th Cir. 1951).43. Michael Mushlin, 1 Rights of Prisoners § 1:4. The Demise of the Hands-Off Doctrine and the Beginning of Prisoners'......
  • Stroud's Specific
    • United States
    • Kansas Bar Association KBA Bar Journal No. 69-01, January 2000
    • Invalid date
    ...Stroud v. Edwin V. Swope, U. S. District Court for Northern District of California, Case No. 29579, (Goodman, J.); See Stroud v. Swope, 187 F. 2d 850 (9th Cir. 1951). 96. Stroud v. Swope, 187 F.2d 850, 851 (9th Cir. 1951). 97. Id. at 851-52. 98. See Letters of U.S. Attorney for Northern Dis......
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    • Carolina Academic Press Significant Prisoner Rights Cases (CAP)
    • Invalid date
    ...to any rights or redress because they were merely "slaves of the State" (see Ruffin v. Commonwealth, 62 Va. 790, 1871 and Stroud v. Swope, 187 F.2d 850, 9th Circuit, 1951). However, during the 1960s, America experienced a number of social and political changes that challenged institutions a......
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    • Prison Journal, The No. 48-1, April 1968
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    ...social purposes, his ability to send mail rests almost wholly within the dis-cretion of the prison authorities. Thus, in Stroud v. Swope, 187 F. 2d 850 (9th Cir. 1951 ) ing the &dquo;birdman of Alcatraz&dquo; the Court held it had no supervisory power over the internal administration of a f......

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