Novak v. Beto

• Decision Date: 15 October 1970
• Docket Number: 69-H-905.,Civ. A. No. 68-H-348
• Citation: 320 F. Supp. 1206
• Parties: Ronald NOVAK, individually and on behalf of all others similarly situated, v. Dr. George J. BETO, Director, Texas Department of Corrections, et al. Fred A. CRUZ, v. Dr. George J. BETO et al.
• Court: U.S. District Court — Southern District of Texas

320 F. Supp. 1206

Ronald NOVAK, individually and on behalf of all others similarly situated, v. Dr. George J. BETO, Director, Texas Department of Corrections, et al.

Fred A. CRUZ, v. Dr. George J. BETO et al.

Civ. A. Nos. 68-H-348, 69-H-905.

United States District Court, S. D. Texas, Houston Division.

October 15, 1970.

William Bennett Turner, San Francisco, Cal., Frances T. Freeman Jalet, Houston, Tex., for plaintiff.

Crawford Martin, Atty. Gen., Larry Craddock, Asst. Atty. Gen., Austin, Tex., for defendant.

MEMORANDUM OPINION

SEALS, District Judge.

Petitioners are inmates of the Texas Department of Corrections. In these actions they challenge the constitutionality, under 42 U.S.C. § 1983, of various aspects of the Texas prison system. Plaintiffs Novak and Cruz seek injunctive relief on behalf of themselves and all other inmates of the Texas Department of Corrections against enforcement of respondent's "jailhouse lawyer" rule that prohibits inmate legal assistance on behalf of other inmates. They assert that, inasmuch as respondents do not provide the "reasonable alternative" required by the United States Supreme Court in Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969), respondents' prohibition of inmate legal assistance deprives them of their constitutional right of access to the courts free from interference by prison officials. Because of the special circumstances peculiar to Death Row inmates, plaintiff Sellars, a member of that class, seeks on behalf of himself and others so confined, similar relief against the inmate assistance prohibition.

Novak and Cruz in addition challenge the validity of, and pray the court to enjoin, respondent's system of solitary confinement. They contend that the use of solitary confinement, as practiced by respondents violates the eighth amendment's prohibition of cruel and unusual punishments, both as administered and because it is wholly disproportionate to any possible offense committed. Finally, Novak seeks damages in the amount of $10,000 for injuries allegedly sustained as a result of those acts of respondent here challenged. Jurisdiction of this court is properly invoked under 28 U.S.C. § 1343.

I. Inmate Legal Assistance—in General

The Supreme Court confronted the problem of inmate legal assistance in Johnson v. Avery, supra. The Court held there that, unless the State provides a reasonable alternative to assist inmates in the preparation of petitions for post-conviction relief, it may not validly enforce a regulation prohibiting any form of legal assistance by one inmate to another. The Court was dealing with a Tennessee procedure that went no further than the warden's sometimes allowing prisoners to examine the listing of attorneys in the telephone directory, and occasionally contacting the public defender at the request of an inmate. The Court did not specify the minimum standards which a "reasonable alternative" must meet, but it was clear in condemning the Tennessee practice as "far short" of the constitutional requisite. Id., at 489, 89 S.Ct. 747.

The Court's reluctance to structure in precise terms the requirements of inmate legal assistance indicates something more than the Court's common inclination to confine its opinions to narrowly framed issues. There is little doubt that the Court meant to approve a wide variety of legal assistance plans, and to allow each State much freedom in devising a plan that best suits its particular needs and temperament:

"* * * in several States, the public defender system supplies trained attorneys, paid from public funds, who are available to consult with prisoners regarding their habeas corpus petitions. At least one State employs senior law students to interview and advise inmates in state prisons. Another State has a voluntary program whereby members of the local bar association make periodic visits to the prison to consult with prisoners concerning their cases. We express no judgment concerning these plans, but their existence indicates that techniques are available to provide alternatives if the State elects to prohibit mutual assistance among inmates." Id., at 489-490, 89 S.Ct., at 751.

Far from formulating exact standards, the Court held only that the Tennessee procedure failed to comply with minimum constitutional requirements.

The Fifth Circuit subsequently cast a pale light on the Johnson decision. By dictum in Beard v. Albama Board of Corrections, 413 F.2d 455 (5th Cir. 1969), that tribunal held that a regulation prohibiting inmate legal assistance altogether might be sustained only if the State were to make available a

"sufficient number of qualified attorneys or other persons capable and willing to render voluntary assistance in the preparation of petitions for habeas corpus." Id., at 457.

It is in the dim light of Beard that we must test the validity of the inmate legal assistance program constructed by the Texas Department of Corrections.

The Department provides at each of its units a "writ room," available each week during specified hours and in which an inmate must perform all his legal work. A small "library" is available there and respondents have recently directed that prisoners be allowed to utilize the law books of fellow inmates as well as those maintained by the State. An extensive legal manual, composed in layman's language, will soon be available in the writ rooms and prison libraries to assist inmates in the preparation of petitions. In addition, prisoners may freely correspond with legal service organizations. Respondents prohibit, however, any other kind of legal assistance among inmates, including one prisoner's advising another or in any way aiding a fellow inmate in preparation of a writ.

But the major step undertaken by the Department to comply with the Johnson ruling indicates that Texas is not offering mere token compliance. In September, 1969, the prison system employed an attorney, Mr. Harry Walsh, whose sole responsibility is the provision of legal assistance to inmates. Mr. Walsh testified that another full time attorney is now on the prison staff; that three senior law students were employed at the prison during the summer of 1970; and that law students may soon be available for inmate assistance throughout the year.

Mr. Walsh reported that, in less than a year as the inmate attorney, he has worked with 1371 prisoners. He is authorized even to represent an inmate in a judicial hearing for post-conviction relief and has done so on one occasion. Although he is not permitted to represent inmates in actions against prison officials, he refers complainants to the American Civil Liberties Union.

Mr. Walsh was most impressive in response to questions from the court about how he viewed his role as inmate attorney. He testified that he did not believe it his responsibility to advise prisoners to "take their punishment." Rather, his duty is to furnish legal counsel whenever desired:

"Q. by the court: What if you determine a man has no case and he says I want to file it anyway and he has no case?

"A. by Mr. Walsh: We will tell him where to file it. We will assist him in completing the forms. We will do all that we can under the circumstances. We will see that it does go to the right people. Of course, we can't make a good case out of a bad one."

Plaintiffs have asserted that one or a few attorneys cannot meet the needs of more than 13,000 inmates. But as respondent correctly points out, not all inmates will wish to take advantage of Mr. Walsh's services, and certainly, not all will want them at the same time. Furthermore, since most courts appoint attorneys to represent indigent habeas corpus petitioners, Mr. Walsh's role is generally limited to giving advice and assisting prisoners in filing complaints.

When this suit was filed, many of those services which respondent now provides were not available to inmates. In view of the State's subsequent efforts to comply with the constitutional mandate, however, we adjudge as moot the question of past failures. There has been no showing that respondents will not continue diligently to conform to the spirit of Johnson v. Avery. Until presented with evidence to the contrary, we cannot assume that any party, especially an agency of the State, will choose deliberately to ignore the United States Constitution.

The record shows clearly that the petitioners in this action seek to protect their asserted right to render legal assistance, not to receive it. Dr. George Beto, Director of the Texas Department of Corrections, explained the probable motivation of the inmates:

"Q. by the court: Is there any particular reason why you do not want Fred Cruz assisting other prisoners in the preparation of writs?

"A. by Dr. Beto: He could develop an unconscionable control over other inmates by setting himself up as a lawyer. I would like to amplify, your honor. I live in mortal fear of a convictrun prison. Earlier some attention was called to the article in the New York Times which described a classic example of a convict-run operation.

"Q. by the court: Is that the one in reference to the Kansas penitentiary?

"A. by Dr. Beto: Yes, sir. We constantly strive against permitting that to happen. One way in which inmates can develop control of an institution is by aiding other inmates in the writing of writs."

It is the "prisoner client's rights, not the jailhouse lawyer's, which are most in need of protection." Johnson v. Avery, supra, 393 U.S. at 501, 89 S.Ct. at 757 (White, J., dissenting). The Constitution confers no right upon the non-lawyer to practice law. And the fact of his incarceration cannot augment this non-existent right. Courts are under no duty to protect

"* * * the assumed prerogatives of those inmates who have, for one reason or another, set themselves up as legal consultants." In re Harrell, 2 Cal.3d 675, at 688, 87 Cal.Rptr. 504, at 512, 470 P.2d 640, at 648. (June 18, 1970)

Finally, we must take note of the great...