399 F.Supp. 271 (S.D.Ala. 1975), Civ. A. 5620-70, McCray v. Sullivan

Docket NºCiv. A. 5620-70
Citation399 F.Supp. 271
Party NameMcCray v. Sullivan
Case DateAugust 07, 1975
CourtUnited States District Courts, 11th Circuit, Southern District of Alabama

Page 271

399 F.Supp. 271 (S.D.Ala. 1975)

Robert G. McCRAY, Petitioner,

v.

L.B. SULLIVAN, as Commissioner, of the Alabama State Board of Corrections et al., Respondents (two cases).

Jerry WHITE and Alvin Claybrone, Petitioners,

v.

COMMISSIONER OF ALABAMA BOARD OF CORRECTION and Warden D.M. Van Cleve, Respondents.

Civ. A. Nos. 5620-70-H, 6091-70-H, 7094-72-H.

United States District Court, S.D. Alabama, Southern Division.

Aug. 7, 1975

Page 272

Robert G. McCray, pro se and William R. Lauten, Mobile, Ala., (Court-appointed), for petitioners.

Larry Newman, Asst. Atty. Gen., Montgomery, Ala., and Robert G. Kendall, Mobile, Ala., for respondents.

Jerry White, Alvin Claybrone, pro se.

WILLIAM BREVARD HAND, District Judge.

The above-styled cases, tried to the Court on the respective petitions filed in each, were appealed to the Court of Appeals where they were consolidated for disposition. On March 19, 1975, the Court of Appeals rendered its opinion affirming in part, reversing and remanding in part (McCray v. Sullivan, 509 F.2d 1332).

I. MAIL CENSORSHIP

The original petition by Jerry White and Alvin Claybrone against the Commissioner of the Alabama Board of Corrections dealt generally with the conditions in the penitentiary as it involved punitive isolation, deprivation of the basic elements of hygiene, access to the Courts, censorship of the mails and the

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like. The matter was remanded to the Trial Court for consideration of the mail issue in light of the decisions of the Supreme Court in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935, and in Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224. Since the Trial Court's original opinion involving the mail matters was entered, the prison mail policy was further amended so that mail is no longer censored or interfered with and this Court is of the opinion that the defendant is in compliance with the present policies of the Supreme Court. See Court's Exhibit 1.

II. PUNITIVE ISOLATION

The second point to which the Court of Appeals addressed itself was the potential violation of the 8th Amendment in regard to punitive isolation at the Fountain Correctional Institution, formerly known as the Atmore Prison Farm, and Holman Prison. Since the original trial of this issue and the rendering of the opinion by the Appellate Court, the prison officials have closed the isolation cells and are in the process of renovating them so as to provide two bunk beds, a toilet and a lavatory. Until this has been accomplished, inmates placed in isolation are now housed in the segregation units which have these accommodations. The Assistant Commissioner, a former warden, testified that the prison does not ordinarily assign more than two prisoners to an isolation cell and does not propose to do so in the future except in cases of unusual circumstances where it might be necessary to assign more, but even in this event they do not anticipate placing more than three inmates in any cell and should that occur a third inmate will be furnished a mattress. The prior decision of this Court in Beard limited the number that could be placed in these 6 X 8 ft. cells to seven. The testimony reflects that the assignment of this number occurred on only one occasion and that was following a prison riot. In any, event, the prison officials are content that the Beard and Lake injunctions be amended to provide that under ordinary circumstances no more than two will be assigned to any isolation cell except in cases of emergency where others might have to be housed in this facility, and then in that event, they will attempt to limit the number to not more than three. The Court finds that this is not unreasonable and it is so ordered.

The Court of Appeals questioned the restrictions by the institutions placed on inmates in isolation relative to prohibiting access to the Courts by denying them the availability to writ paper, etc. while in isolation. This question was been the subject of litigation in the Middle District in Case No. 3817-N, styled Jerry White v. L.B. Sullivan, et al., which was an action in the nature of a class action and in which an order was entered requiring that writ paper, etc., not be denied prisoners in isolation so that they might have access to the courts. The Court feels that this is dispositive of the issue; however, without strong opposition from the defendants, it is ORDERED that henceforth the prison officials will not deny to prisoners in punitive isolation writ paper, etc. for their use in petitioning the courts, and shall in no way or manner interfere with or restrict these prisoners from petitioning the court or communicating with their attorneys as they so desire.

III. INSTITUTIONAL SECURITY

In the McCray v. Sullivan petitions, the Appellate Court remanded the cause to the District Court for consideration of the claim by McCray that homosexuals frequently are the cause of violent assaults causing injury or death and that such occurrences are condoned by prison authorities. The District Court had refused to receive testimony on the point under the provisions of Young v. Wainwright, 5 Cir., 449 F.2d 338. Following remand, testimony was taken on this point.

Plaintiff McCray has, since this testimony was taken, moved the Court to

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allow his action to proceed as a class action. The Court finds that a class action is appropriate and that plaintiff's motion is due to be granted. An appropriate order will be entered at the conclusion of this Opinion and Order.

The testimony reflects that consenting and non-consenting homosexuality is a very real problem in all prisons in all States-- not just limited to the Fountain-Holman Complex or other Alabama prisons. Assistant Commissioner Capps testified that even though there are approximately only twenty-five known homosexuals in the Holman-Fountain Complex, at one time or another approximately engages in homosexual conduct. The twenty-five known homosexuals The twenty-five known homosexuals create no particular problem for the prisons because they are of a very passive nature. The evidence does indicate, however, that violence sometimes occurs, and has occurred on more than one occasion, when aggressive type homosexuals get into a fight over the passive type. The Court is reluctant to give much credence to the testimony offered by the prisoners themselves because they refused to give names, dates and specifics...

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