Burnham v. Oswald, Civ. No. 1971-132

• Decision Date: 16 May 1972
• Docket Number: 1971-336.,Civ. No. 1971-132
• Citation: 342 F. Supp. 880
• Parties: David BURNHAM et al., Plaintiffs, v. Russell G. OSWALD, New York State Commissioner of Correctional Services, and Vincent R. Mancusi, Superintendent, Attica Correctional Facility, Defendants. UNITED STATES ex rel. Irving C. WALSTON, Petitioner, v. Vincent R. MANCUSI, Superintendent, Attica Correctional Facility, Attica, New York, Respondent.
• Court: U.S. District Court — Western District of New York

342 F. Supp. 880

David BURNHAM et al., Plaintiffs, v. Russell G. OSWALD, New York State Commissioner of Correctional Services, and Vincent R. Mancusi, Superintendent, Attica Correctional Facility, Defendants.

UNITED STATES ex rel. Irving C. WALSTON, Petitioner, v. Vincent R. MANCUSI, Superintendent, Attica Correctional Facility, Attica, New York, Respondent.

Civ. Nos. 1971-132, 1971-336.

United States District Court, W. D. New York.

May 16, 1972.

COPYRIGHT MATERIAL OMITTED

Herman Schwartz and Edward I. Koren, Buffalo, N. Y., for plaintiffs in Civil No. 1971-132.

Irving C. Walston, pro se in Civil No. 1971-336.

Louis J. Lefkowitz, Atty. Gen. of State of New York (Joseph J. Ricotta, Dunkirk, N. Y., and John H. Stenger, Buffalo, N. Y., of counsel), for defendants in Civil Nos. 1971-132 and 1971-336.

CURTIN, District Judge.

These consolidated actions present questions relating to claims that inmates of New York State correctional institutions and representatives of the news media have the right under the First and Fourteenth Amendments to communicate with each other. The claims fall within 42 U.S.C. § 1983, and the court has jurisdiction under 28 U.S.C. § 1343. In addition, the court has jurisdiction under 28 U.S.C. § 2201 to render the declaratory judgment sought in Burnham v. Oswald, Civil No. 1971-132.

The proceeding in Burnham v. Oswald was commenced by a complaint filed on March 25, 1971. The named plaintiffs sued as representatives of two classes defined as "all news media representatives seeking to interview inmates of New York State correctional facilities and all inmates of New York State correctional facilities who wish to be interviewed."¹ The complaint alleged that it was the policy of the New York State Department of Correctional Services hereinafter referred to as "Department" to prohibit private interviews between newsmen and inmates, and it sought a declaration that this policy violated the rights guaranteed members of plaintiffs' classes by the First and Fourteenth Amendments.

Following the filing of the complaint, further proceedings in this court were postponed while representatives of the Department and counsel for plaintiffs voluntarily discussed the possible issuance of regulations permitting interviews of inmates by representatives of the news media. Counsel for plaintiffs received and commented upon proposed regulations. On July 15, 1971 the Department promulgated "Administrative Bulletin #9" entitled "Policy Statement and Guidelines on Release of Information to and Cooperative Effort with the News Media by Department of Correctional Services Personnel" hereinafter referred to as "Guidelines".^1a Thereafter defendants moved to dismiss the complaint, and plaintiffs moved for summary judgment, raising several issues relating to the sufficiency of the Guidelines.

Before the motions could be heard by the court, the riot of September 9 to 13, 1971 occurred at the Attica Correctional Facility. Following the reestablishment of control of the institution by state authorities, defendant Mancusi banned press interviews of inmates at Attica. The newsmen plaintiffs then sought and obtained from this court an order requiring defendants to show cause why an order should not be entered permitting "journalists the right to interview inmates of Attica Correctional Facility who wish to speak to them." On October 7, 1971, the court held a hearing at which six reporters and defendant Mancusi testified about the ban on interviews. On October 28, 1971, the court denied the newsmen plaintiffs' application for immediate access to Attica, concluding that under the circumstances then existing deference should be given to defendant Mancusi's judgment regarding press interviews. Burnham v. Oswald, 333 F. Supp. 1128 (W.D.N.Y.1971).

Thereafter defendants indicated their desire to present further evidence relating to the sufficiency of the Guidelines. On December 10, 1971, the court heard the testimony of Walter Dunbar, Executive Deputy Commissioner of the New York State Department of Corrections. Mr. Dunbar's testimony was directed toward the challenges to the sufficiency of the Guidelines made by plaintiffs in their brief supporting the motion for summary judgment. Thus the testimony at trial reflected the changed posture of the case resulting from the issuance of the Guidelines subsequent to the commencement of the action. See Morris v. Travisono, 310 F.Supp. 857 (D.R.I.1970).

United States ex rel. Walston v. Mancusi, Civil No. 1971-336, was instituted by an order to show cause dated July 19, 1971. The pro se plaintiff, an inmate of the Attica Correctional Facility, alleged that his rights under the First and Fourteenth Amendments were violated by the refusal of the Superintendent of the facility to allow him to correspond with, and be visited by, a certain reporter. By an order dated September 16, 1971, Walston was consolidated with Burnham.

In Walston, as in Burnham, a reassessment of existing policy followed the commencement of the lawsuit challenging the policy. Thus, on January 31, 1972 the Department issued "Administrative Bulletin #20" entitled "Revised Rules Governing the Correspondence Program for Inmates" hereinafter referred to as "Rules". As in Burnham, the parties have indicated that they wish the court to pass upon the sufficiency of the new regulations rather than upon the adequacy of the policy which they replaced.

In arriving at the decision in this case, the court has considered the testimony given October 7 and December 10, 1971 and the oral argument and written briefs presented by the attorneys for the parties.

Several aspects of the Rules and the Guidelines are at issue:

(1) The provision of the Rules governing content of inmates' letters to the news media "The Correspondence Issue".

(2) The provision in Paragraph 3 of the Guidelines which sets forth the standard to be used in determining whether an interview of an inmate by a newsman should be permitted "The Standards Issue".

(3) The procedures in Paragraph 3 of the Guidelines governing the granting of an interview and appeal by the inmate or newsman of a denial of an interview "The Procedure Issue".

(4) The failure of the Guidelines to provide for interviews between inmates and newsmen out of the presence of correctional personnel "The Confidentiality Issue".

Before turning to these specific issues, however, a discussion of the law governing the right of prisoners and newsmen to communicate with each other is appropriate.

It is only with reluctance that this court interjects itself into the complex and troublesome problems of prison administration. The day-to-day task of fashioning rules for the guidance and control of inmates must be left to the correctional authorities. Sostre v. McGinnis, 442 F.2d 178, 197, 205 (2d Cir. 1971). Nevertheless, the court must act to protect the constitutional rights of inmates. See Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964). The question presented is how far the constitutional rights and privileges enjoyed by members of the general community may be withdrawn from an inmate of a prison. Sostre v. McGinnis, supra, 442 F.2d at 188-189. The court must consider two somewhat conflicting principles in formulating answers to the question. The first is 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." Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356 (1948). Second is the rule that "a prisoner retains all the rights of an ordinary citizen except those expressly, or by necessary implication, taken from him by law." Coffin v. Reichard, 143 F.2d 443, 445 (6th Cir. 1944), cert. denied, 325 U.S. 887, 65 S.Ct. 1568, 89 L.Ed. 2001 (1945).

Applying these guides, the courts have held that various First Amendment rights survive incarceration. See Sostre v. McGinnis, supra (right to possess one's own writings); Nolan v. Fitzpatrick, 451 F.2d 545 (1st Cir. 1971) (right to send letters to news media); Brown v. Peyton, 437 F.2d 1228 (4th Cir. 1971) (right to receive religious literature); Walker v. Blackwell, 411 F.2d 23 (5th Cir. 1969) (right to receive religious literature and right to correspond with religious leader); Jackson v. Godwin, 400 F.2d 529 (5th Cir. 1968) (right to receive black publications); Payne v. Whitmore, 325 F.Supp. 1191 (N.D.Cal. 1971) (right to receive newspapers and magazines); Fortune Society v. McGinnis, 319 F.Supp. 901 (S.D.N.Y.1970) (right to receive a newsletter published by former inmates and often critical of prison authorities); Carothers v. Follette, 314 F.Supp. 1014 (S.D.N.Y.1970) (right to send to one's family a letter critical of prison officials and administration).

Although First Amendment rights of incarcerated persons may be restricted, nevertheless, because of the preferred status of these rights, a heavy burden is placed upon correctional authorities to justify restriction. In Carothers v. Follette, supra, the court held that "any prison regulation which restricts the right of free expression that a prisoner would have enjoyed if he had not been imprisoned must be related both reasonably . . . and necessarily . . . to the advancement of some justifiable purpose of imprisonment." 314 F.Supp. at 1024. In Fortune Society v. McGinnis, supra, the court wrote that "only a compelling state interest centering about prison security, or a clear and present danger of a breach of prison discipline, or some substantial interference with orderly institutional administration can justify curtailment of a prisoner's constitutional rights." 319 F. Supp. at 904. Other formulations of the same standard are stated in Nolan v. Fitzpatrick, supra, 451 F.2d at 548, and Jackson v. Godwin, supra, 400 F.2d at 541.

The question directly involved in the instant cases is whether the right to communicate with a...