Burns v. Swenson

Decision Date16 July 1968
Docket NumberNo. 1072-1113,1080,1102,1111.,1106,1089,1072-1113
Citation288 F. Supp. 4
PartiesRobert E. BURNS v. Harold R. SWENSON, Warden. Rollie LASTER v. Harold R. SWENSON, Warden. Ronald WESTBERG v. Harold R. SWENSON, Warden. Dempsey OWENS, Jr., v. Harold R. SWENSON, Warden. Sylvester FAULKNER v. W. P. STEINHAUSER et al. William POLITTE v. Harold R. SWENSON, Warden.
CourtU.S. District Court — Western District of Missouri

COPYRIGHT MATERIAL OMITTED

Alex Bartlett, Jefferson City, Mo., for plaintiffs.

Norman A. Anderson, Atty. Gen., Howard L. McFadden, Asst. Atty. Gen., State of Mo., Jefferson City, Mo., for defendants.

MEMORANDUM OPINION AND ORDER

JOHN W. OLIVER, District Judge.

Plaintiffs in these consolidated cases are all inmates at the Missouri State Penitentiary at Jefferson City. At the time the complaints were filed, all plaintiffs were housed in the Maximum Security Unit, a separate security section or unit within the Missouri State Penitentiary. Both equitable relief and damages were sought pursuant to Sections 1981 et seq., Title 42, United States Code. These cases now pend on defendants' motion for summary judgment. Appropriate relief will be granted for reasons we now state.

Plaintiffs alleged that the administrative procedures under which each had been placed in the Maximum Security Unit and that certain administrative practices to which they were subjected after being placed there constituted action taken under color of state law which allegedly violated certain federal constitutional rights retained by them as inmates. Those actions included alleged violations of their freedom of religion,1 interference with their rights of freedom of speech and expression through correspondence,2 violations of access to the courts,3 violation of their right to be free from cruel and unusual punishment,4 and denial of adequate medical care and treatment.5

The Court requested Alex Bartlett, Esq., of Jefferson City, Missouri, a member of the Bar of this Court, to serve as counsel for the plaintiffs. Mr. Bartlett's service to his clients and to this Court, without remuneration and at great personal sacrifice, is not only in the highest tradition of the Bar, it stands as a prime example of professional responsibility.

It was decided at pretrial conference that the most convenient way to proceed would be to sever the equitable issues in all the cases for trial to the Court before trying the separate damage claims alleged in some of the cases before juries. Accordingly, and pursuant to Rule 42, Federal Rules of Civil Procedure, the equitable issues in each case were first severed and then all equitable issues were consolidated for trial before the Court. During the weeks of April 10, 1967 and May 22, 1967, the Court heard evidence from both sides concerning those consolidated equitable issues.

Following those hearings, additional conferences were held with counsel for both sides. Those conferences included reports to the Court by counsel of their work with officials of the Department of Corrections for the State of Missouri. The Honorable Howard McFadden, Assistant Attorney General of Missouri, Director Fred T. Wilkinson, and Warden Harold R. Swenson are to be highly commended for their exemplary cooperation with Mr. Bartlett and with this Court throughout this pending litigation. During the course of this litigation, the Department of Corrections promulgated and put in effect a completely revised set of rules and regulations regulating inmate conduct at the Missouri State Penitentiary.

Many portions of the new revised rules and regulations relate specifically to areas of contention in this litigation. It is on the basis of changes in the conditions and locale of plaintiffs' present confinement and changes in the rules and regulations governing the Missouri Penitentiary that affect plaintiffs' status within the penitentiary that defendants have moved for summary judgment.

The affidavit of Warden Swenson, filed subsequent to the evidentiary hearings, establishes that all plaintiffs have now been reclassified in accordance with the new rules and released from the Maximum Security Unit. Medical attention has in fact been given plaintiff Laster. It is apparent that the allegations concerning the original placement of these plaintiffs in the Maximum Security Unit are now moot insofar as they may raise presently justiciable equitable issues. The evidence also shows that two additional factors are important regarding the issue of plaintiffs' original placement in the Maximum Security Unit. Both factors are relevant in regard to further proceedings in these cases.

First, the evidence conclusively established that plaintiffs were placed in maximum security during the period before the defendants named in these cases were responsible for the administration of the Missouri Department of Corrections. If the particular circumstances under which plaintiffs were placed in maximum security could be considered actionable, a question we find is unnecessary to determine, the particular defendants before us in these cases could not be held responsible for those placements.

Second, the Department of Corrections is presently operating under the new revised set of regulations governing the classification and assignment of inmates to the Maximum Security Unit. Those revised rules and regulations are, in our judgment, fair and well above any presently legally defined threshhold of administrative due process.6

The establishment of a Maximum Security Unit and regulations governing the classification and assignment of particular inmates to that unit are both matters ordinarily within the discretion of a penitentiary administration. Administrative rules and regulations that are a necessary concomitant of the type of security necessary to be maintained in a Maximum Security Unit are ordinarily matters within the discretion of the administration.7 Questions of whether past practices may have exceeded the discretion legally vested in the correctional authorities who formerly were responsible for the Missouri Department of Corrections are not before this Court under the present posture of these cases.

Those presently responsible for the administration of the Missouri Department of Corrections have, with commendable foresight, revised regulations that relate specifically to permitted religious practice, to correspondence of inmates, to prisoner access to the courts, and to medical treatment of inmates in the Maximum Security Unit. We specifically find those particular regulations to be fair and that, if fairly administered, are calculated to reasonably protect the broadest construction that could be placed on the federally protected constitutional rights of inmates. Restrictions placed on the rights of inmates properly assigned to the Maximum Security Unit must, in our opinion, be viewed in light of the custody requirements of that unit and must therefore be more stringent than restrictions applicable to inmates in the general population of the prison.

Plaintiffs' contentions relating to cruel and unusual punishment fall into two categories: first, alleged acts of corporally and psychologically abusive treatment of inmates in the Maximum Security Unit, and, second, physical living conditions allegedly so heinous as to violate the minimum federal constitutional standard.

The testimony we heard in these cases regarding abusive treatment of inmates all took place before the present defendants were responsible for the administration of the penitentiary. In addition, these abusive acts were the acts of individual guards, and the testimony plaintiffs presented did not establish a continuing or approved pattern of conduct or policy directed by the named defendants upon which a court of equity could act.8

The Court personally viewed the physical facilities of the Maximum Security Unit and, although we found the living areas to be in need of improvement, we do not believe the conditions to be such as to constitute cruel and unusual punishment,9 within the meaning of the Constitution of the United States. We are convinced that those presently in charge of the Missouri Department of Corrections do the best they can with the money made available to maintain and operate an antiquated physical facility. Indeed, the Honorable James V. Bennett, retired Director of the United States Bureau of Prisons and internationally famous criminologist, testified that he had recommended to a Missouri General Assembly long years ago that the Jefferson City Penitentiary, a part of which has been in continuous use since the Nineteenth century, should be torn down and a new facility constructed so that modern methods of penology could be followed in this State. See also the fourth report of the Joint Committee on Correctional and Institutional Problems of the Missouri General Assembly made in 1965.

Counsel for the plaintiffs has indicated that this Court should state in broad terms the rights retained by incarcerated convicted persons. Counsel states that the plaintiffs believe such a statement necessary to prevent possible future abusive treatment of them and other inmates. Plaintiffs urge that such a statement would avoid possible future breaches of federally protected constitutional rights.

We do not believe it appropriate for this Court to attempt to redelineate a Bill of Rights for prisoners incarcerated in the Missouri Penitentiary. The Manual of Correctional Standards, setting forth policy standards for the governing of correctional institutions adequately emphasizes the importance of orderly and fair process in a penal institution:

1. Rules or conditions governing the conduct of offenders and the consequences which may follow from violation shall be printed and furnished them together with any explanations that may be necessary for their guidance.
2. Such rules or conditions shall be corrective, not abusive, or punitive, in purpose. They shall be no more
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    ...ex rel. Marcial v. Fay, 247 F.2d 662, 669 (2d Cir. 1957), cert. denied, 355 U.S. 915, 78 S.Ct. 342, 2 L.Ed.2d 274 (1958); Burns v. Swenson, 288 F.Supp. 4 (W.D.Mo.1968), modified, 300 F.Supp. 759 (W.D.Mo.1969). See President's Commission on Law Enforcement and Administration of Justice, Task......
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