342 F.Supp. 616 (D.Neb. 1972), Civ. 1722, McDonnell v. Wolff

Docket Nº:Civ. 1722
Citation:342 F.Supp. 616
Party Name:McDonnell v. Wolff
Case Date:April 21, 1972
Court:United States District Courts, 8th Circuit, District of Nebraska

Page 616

342 F.Supp. 616 (D.Neb. 1972)

Robert O. McDONNELL, etc., Plaintiff,

v.

Charles WOLFF, Jr., etc., et al., Defendants.

Civ. No. 1722L.

United States District Court, D. Nebraska.

April 21, 1972

Page 617

Douglas F. Duchek, Lincoln, Neb., for plaintiff.

Mel Kammerlohr, Lincoln, Neb., for defendants.

MEMORANDUM DECISION

DENNEY, District Judge.

This case is a civil rights action challenging many of the administrative procedures and practices at the Nebraska Penal and Correctional Complex (hereafter Complex). The plaintiff, who is incarcerated at that institution, has been allowed to prosecute the case as a class action on behalf of all inmates of the Complex. Counsel has been appointed for the plaintiff and both parties have furnished excellent briefs of the arguments to the Court.

Pursuant to the pre-trial order, the issues were narrowed, then the parties filed a stipulation of facts as to those issues

Page 618

and, as a result, some of them were resolved in the stipulation itself. Those issues that were handled in that manner are as follows:

1. Prior to October 28, 1970, there were three procedures followed in processing inmate letters to sentencing judges regarding the crediting of "dead time." ("Dead time" is time spent in jail prior to sentence, which would have no effect on the time the inmate must serve unless specially credited to the sentence by the sentencing judge.) The procedures revolved about whether the particular judge had or had not expressed a policy regarding such letters. In some instances, the procedures resulted in the letters being returned to the inmates without being sent to the judge. The parties have stipulated that since October 28, 1970, and in all future cases, all letters addressed to any judge will be mailed out by the Complex. It will be so ordered by the Court.

2. Postage has also been a problem at the Complex. Stamps, because they are negotiable, have by necessity been closely controlled. The parties have agreed that the inmate is given three free stamps per month and that, in addition, he may spend from his earnings up to $30.00 per month on postage, and that the Court should enter an order to that effect. It will be so ordered.

3. The law library at the Complex has also been a constant source of disagreement. It will be discussed in greater detail further in this opinion. The parties do agree that the procedure that allows inmates to check out books and take them to their cells is acceptable to the parties. The parties have also agreed as to general adequateness of the law library in terms of books available except for the Nebraska Statutes, which are not current. See Appendix A for a comprehensive cataloging of that library. Inmates may also purchase books for their own use.

4. Inmates desiring notary service submit an interview request to the Captain's office. Notary service is available at the Complex at 3:00 P.M. on Mondays and Fridays. Emergency notary service is done on a daily basis. The parties agree that this procedure is acceptable and the Court will so order.

To the remaining issues, the parties have made certain stipulations of facts but are not in agreement as to how the issues should be resolved. Evidence has also been taken at two hearings and by affidavit. The Court approaches these problems mindful that matters of internal prison administration should not be interfered with by the federal courts. Lee v. Tahash, 352 F.2d 970 [8th Cir. 1965]. The matters that can be examined by this court in a civil rights action such as this have been succinctly stated as:

The Court ... is limited in its inquiry to the question of whether or not the constitutional rights of inmates are being invaded and with whether the Penitentiary itself is unconstitutional. The Court is not judicially concerned with questions which in the last analysis are addressed to legislative and administrative judgment. A practice that may be bad from the standpoint of penology may not necessarily be forbidden by the Constitution. And a prison system that would be excellent from the point of view of a modern prison administrator may not be required by the provisions of the Constitution with which the Court is concerned. Holt v. Sarver, 309 F.Supp. 362 [E.D.Ark.1970].

5. The parties have stipulated that the inmates are denied the individual use of a typewriter. The inmate legal assistant is permitted to use a typewriter and all legal documents required by the Courts to be typewritten are typed by the inmate legal assistant at the request of the inmate. The Complex will not refuse a request for typing of such required documents. Plaintiff charges that this procedure effectively denies the inmates their rights to adequately prepare

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legal papers. The Court is not so persuaded. So long as the Courts will either accept hand-drafted petitions or the prison will have those required to be typed so done, no rights of the inmates are infringed. There is no right to the individual use of a typewriter. Williams v. United States Department of Justice, Bureau of Prisons, 433 F.2d 958 [5th Cir. 1970].

6. The plaintiff contends that because there are reprisals by the prison officials to those inmates who petition the Courts the plaintiff's rights to access to the Courts are infringed. The defendants contend that there are no such reprisals. It has been recognized that reasonable access to the Courts is a right guaranteed against state action by the due process clause of the Fourteenth Amendment. Stiltner v. Rhay, 322 F.2d 314 [9th Cir. 1963]. Were the defendants to exact reprisals for the exercise of that right, this Court would be of the opinion that such would tend to inhibit plaintiff's rights sufficiently to be actionable. Coonts v. Wainwright, 282 F.Supp. 893, 895 [M.D.Fla.1968]. The following is the evidence as it developed as to the existence of such reprisals.

Plaintiff McDonnell testified that he originally was given as a work assignment that of clerk-typist in the reception center but that in May of 1970, on the day after appearing in Federal Court, he was reassigned to the soap factory. Warden Wolff testified that McDonnell was moved to the soap factory for security reasons, there being at that time indications that an escape attempt might be made somewhere in the prison and that McDonnell had an escape record.

Inmate Nykeil stated that he believes that the refusal of the prison authorities to allow him to enroll in college courses at the institution is based on his involvement in this law suit.

Plaintiff also alleges in the petition, but no proof was offered, that Douglas L. Rhodes was transferred from his prison job of clerk-typist for the Associate Warden to the particular laundry room where the laundry is filled with human feces from various State hospitals solely because he complained to this Court and that William M. Pegram was placed in a death row confinement cell solely because Pegram requested Rhodes to assist him in complaining to the Courts. The Court does recognize that the officials at the Complex may well feel justified in taking some sort of administrative action against "writ writers" whom they view as harassing the officials and interfering with the orderly administration of the institution. McDonnell and Rhodes are both well known "writ writers" having many actions of various types pending in the Courts constantly. However, the Court is not convinced that plaintiff herein has met the burden of proving that a widespread procedure of reprisals exists. The allegations regarding Rhodes and Pegram were unproved. There was apparently good reason for McDonnell's transfer at the time it was accomplished and Nykeil's statement is too flimsy a foundation to support the entire verdict sought. The Court would caution the defendants that administrative reprisals against inmates who seek access to the Courts will not be tolerated, regardless of how justified they might appear.

7. The parties have raised and stipulated to several issues regarding legal assistance for inmates in the Complex. When the inmate first arrives at the Complex, he is housed in the Reception and Diagnostic Center for a short time. See Appendix B from the Inmate Handbook (Published March, 1970). During this time period, the inmate is not allowed access to the Complex's law library. However, the Complex does order the inmate legal assistant to visit the Center once each week, during which time the legal assistant will help the new inmate with any pending legal action he might have or to begin a new action, if desired. The inmate legal assistant is an inmate who has been appointed by the Complex

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to help other inmates in presenting their claims to the Courts. See Appendix C from the Inmate Handbook and Appendix D, affidavit of legal assistant, James Maddox. The inmate legal assistant is the only inmate specifically approved to assist other inmates in the preparation of legal documents without express approval of the Warden. The plaintiff is also not satisfied with the regulations surrounding visits to the inmate legal assistant and the law library itself. Any inmate who has indicated an interest in visiting the legal assistant may do so between the hours of 7:00 A.M. and 7:30 P.M. daily. The law library itself is open on Monday, Tuesday, Wednesday, Thursday and Friday evenings for independent research by an inmate unassisted by the legal assistant. The law library is open from 5:00 P.M. to 7:00 P.M. on Tuesdays and Thursday, and it is open from 6:00 P.M. to 7:00 P.M. on Monday, Wednesday and Friday. See Appendices E and F. An inmate is required to be back in his cell for the 7:30 P.M. lineup. For security reasons, the number of inmates that may be allowed in the library at any one time is six. Some days there are...

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