Guajardo v. McAdams, Civ. A. No. 71-H-570

• Citation: 349 F. Supp. 211
• Decision Date: 25 September 1972
• Docket Number: 72-H-64.,Civ. A. No. 71-H-570
• Parties: Guadalupe GUAJARDO, Jr. v. Warden McADAMS, Wynne Unit, and Assistant Warden Shannon, Wynne Unit, Texas Department of Corrections. Guadalupe GUAJARDO, and others similarly situated v. Dr. George J. BETO, Director, W. D. Kutach, Asst. Director, D. J. McKackle, Director Classifications.
• Court: U.S. District Court — Southern District of Texas

349 F. Supp. 211

Guadalupe GUAJARDO, Jr. v. Warden McADAMS, Wynne Unit, and Assistant Warden Shannon, Wynne Unit, Texas Department of Corrections.

Guadalupe GUAJARDO, and others similarly situated v. Dr. George J. BETO, Director, W. D. Kutach, Asst. Director, D. J. McKackle, Director Classifications.

Civ. A. Nos. 71-H-570, 72-H-64.

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

September 25, 1972.

Richard Trabulsi, Jr., Houston, Tex., for petitioner.

Gilbert J. Pena, Asst. Atty. Gen., Austin, Tex., for respondents.

SINGLETON, District Judge.

Memorandum and Order:

Guadalupe Guajardo, Jr., the named petitioner herein, has filed three suits which in the interest of justice have been consolidated and an evidentiary hearing lasting several days was held. In one action (C.A. 72-H-64), petitioner sued in a 42 U.S.C. § 1983 class action on behalf of all Texas Department of Corrections (hereinafter TDC) inmates, alleging that defendants have arbitrarily and without due process denied under color of state law the class the right to receive and read books, magazines, newspapers, instructional material, public documents e. g. Papel Chicano La Verbal (a Spanish language paper directed towards the Mexican-American community) and other Chicano papers, the La Salle and Blackstone Law Course, The Fortune Society Newsletter, Ten Bow, Playboy, Evergreen, The Democrat, the United States Constitution annotated, the U. S. Reports, Federal Reporter, Federal Supplement, and Space City (a local newspaper). The class also alleges that the defendants have abridged their freedom of speech, press, expression, religion, and access to the courts inconsistent with due process of law by denying them the right of correspondence with anyone not "approved" by the defendants e. g., friends, newspapers, persons assisting them in the prosecution of appeals and collateral matters, public figures, and religious leaders. Petitioners also complain that by censoring all incoming and outgoing mail, and on occasions making copies thereof, is inconsistent with their First Amendment rights.

Petitioner Guajardo filed a 42 U.S.C. § 1983 suit (C.A. 71-H-570) against Warden McAdams of the Texas Department of Corrections, alleging that he was not allowed access to legal materials as other inmates were and, therefore, was denied his constitutional right to redress of his grievances. Petitioner has also put into issue the administrative process whereby he was put in a form of segregation (i. e., administrative segregation) from the remaining prison population.

The third suit (C.A. 72-H-9) is also a cause filed under 42 U.S.C. § 1983. There, petitioner Guajardo individually alleged that W. Dee Kutach, Assistant Director for treatment of inmates at the TDC denied him the privilege of taking a law correspondence course because he could not pay for the course in full before enrolling therein. Because the financial responsibilities for the expense of such a course should reasonably fall on the inmate and because the administrative burden of handling suits and letters for nonpayment from schools falls on the prison, the prison rule requiring payment in full is reasonable and does not deny petitioner any constitutional right. This cause in the consolidated cases was therefore dismissed on February 25, 1972.

The evidence given at trial did show that the above-mentioned magazines and newspapers were excluded from the prisoners' reading material whether privately paid for or not. Testimony also established that Spanish language publications were not on the whole allowed into any of the prisoners' reading materials. Spanish speaking inmates form a sizable minority in the Texas Department of Corrections. This court made the finding at trial that both incoming and outgoing mail regardless of sender or addressee was read and censored. If censored or rejected by a mail-room clerk there was no established written procedure whereby a prisoner could appeal such censorship. Dr. Beto, Director of the Texas Department of Corrections, testified that all prisoners know they can write him a letter complaining of any action or treatment in any unit of the system, but the formal redress of prison grievances evidently stopped there. This court further finds that prisoners were not allowed to keep any of their own law books in their cell even though they were allowed to keep their private books of similar size and shape on other subjects in their cells. The prisoners were allowed to use legal materials in a writ room three times a week two hours each session. In petitioner Guajardo's case, the writ room also had a television playing at this time.

The evidence established that the procedure whereby a prisoner was placed in administrative segregation was extremely indefinite or totally undefined; sometimes a warden would have a prisoner separated from the prison population at his own discretion, sometimes a subordinate would use his own discretion. But most important is the fact that no Texas Department of Corrections official who testified was precisely sure how a prisoner could get out of administrative segregation once put there. There was no procedure whereby a prisoner could determine or discover why he had been segregated or any administrative procedure providing a means whereby a prisoner could change his segregation status. This is of very vital concern to inmates; for while in segregation they can rarely accumulate "points" which is the merit system in the Texas Department of Corrections whereby prisoners are given certain privileges such as permission to take correspondence courses. Apparently, a prisoner could stay in the limbo of administrative segregation for an undefined period of time (which the Texas Department of Corrections says is not a punitive status) with no procedural safeguards.

After the first few days of the hearing, the court recessed in order that the Texas Department of Corrections could review its rules and regulations. At the second hearing, Dr. Beto testified that the Texas Department of Corrections had abolished its approved reading materials list. The materials in question here had not been on the list. Whether this action does in fact resolve the issue of limiting or censoring the reading materials of prisoners is questionable. Under the new Rules and Regulations 60.88 of the Texas Department of Corrections (July 10, 1972) when any publication is rejected by the Texas Department of Corrections, the inmate who was the intended receiver is to be promptly notified that the reason for its rejection is that the material is believed to pose a clear and present danger to the security of the facility (this can be the only reason for rejection under the Texas Department of Corrections' new rule). The rule commendably requires that after notification of rejection the prisoner may argue to a Review Committee for acceptance of such material. Unfortunately, Rule 60.88 contains no provision whereby a prisoner may view the rejected publication. The Texas Department of Corrections is the only party to the Committee hearing that has full knowledge of the "charges" against the prisoner and the publication he seeks to receive. This falls short of traditional due process requirements in the Fourteenth Amendment and even short of the requirements of due process for persons in prison custody recently enumerated by the Supreme Court in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). See also Urbano v. McCorkle, 334 F.Supp. 161 (1971). A prisoner should be allowed to view the material at least once before having to "defend" its exclusion. The new Rules allow for a prisoner to review certain withheld mail in front of a prison officer. It appears that the burden of letting the prisoner view the rejected material in front of an officer before the hearing would not be an insurmountable burden. This viewing is necessary in order to bring Rule 60.88 into line with constitutional criteria.

New Rule 60.85 allows inmates to have publications in languages other than English and, obviously, therefore, publications that are directed towards the Chicano community. Accordingly, any of petitioner's complaints in that regard are moot.

New Rule 60.87 allows an inmate to have a maximum of four (4) personal law books in his cell during any one period. All other personal law books are kept in the prison writ room and may be taken out or exchanged at writ room hours to constitute the four law books allowed in the cell. This rule represents a reasonable balancing of the physical requirements at the prison and the rights of inmates to prepare legal documents for the redress of grievances. Konigsberg v. Ciccone, 285 F.Supp. 585 (W.D.Mo.1968), aff'd 417 F.2d 161 (8th Cir. 1968), cert. denied, 397 U.S. 963, 90 S.Ct. 996, 25 L.Ed.2d 255 (1970). See the related case In re Harrell, 2 Cal. 3d 675, 87 Cal.Rptr. 504, 470 P.2d 640, cert. denied Harrell v. California, 401 U.S. 914, 91 S.Ct. 890, 27 L.Ed.2d 814 (1970). See also McKinney v. DeBord, 324 F.Supp. 928 (D.Cal.1970) (no more than 16 hardback volumes in cell held to be reasonable rule). The Texas four book limit relates only to personal law books. The rules are silent as to the use of four law books in an inmate's cell if he is in a segregated status (as distinguished from a punitive status). This court cannot accept the Texas Department of Corrections' argument that somehow a convicted prisoner's constitutional rights of judicial appeal are "diminished" and that accordingly they do not need the use of legal materials or law books while in a so-called nonpunitive status of administrative segregation. Being unable to accept this line of reasoning, this court finds that it would be a denial of the equal protection clause of the Fourteenth Amendment to allow prisoners in the general population the use of law books in their cells and not to allow those in administrative segregation such usage in their...