409 F.Supp. 937 (E.D.N.C. 1976), 75-0089, North Carolina Prisoners' Labor Union, Inc. v. Jones

Docket Nº:75-0089
Citation:409 F.Supp. 937
Party Name:North Carolina Prisoners' Labor Union, Inc. v. Jones
Case Date:March 15, 1976
Court:United States District Courts, 4th Circuit, Eastern District of North Carolina
 
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Page 937

409 F.Supp. 937 (E.D.N.C. 1976)

NORTH CAROLINA PRISONERS' LABOR UNION, INC., on behalf of itself and all its members, Plaintiff,

v.

David L. JONES, Secretary of North Carolina Department of Correction, Ralph Edwards, Commissioner of North Carolina Department of Correction, Defendants.

No. 75--0089--CRT.

United States District Court, E.D. North Carolina, Raleigh Division.

March 15, 1976.

Heard Feb. 6, 1976

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[Copyrighted Material Omitted]

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Norman B. Smith, Greensboro, N.C. (Smith, Patterson, Follin, Curtis & James, Greensboro, N.C.), and Deborah G. Mailman, Raleigh, N.C., for plaintiff.

Rufus L. Edmisten, Atty. Gen., Jacob L. Safron, Special Deputy Atty. Gen., Raleigh, N.C., for defendants.

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MEMORANDUM DECISION

Before CRAVEN, Circuit Judge, BUTLER, Senior District Judge, and DUPREE, District Judge.

CRAVEN, Circuit Judge:

This is a suit brought pursuant to 42 U.S.C. s 1983 to redress the deprivation of constitutional rights by officers of the state acting under color of state law. The plaintiff's corporate name is said by its counsel to be a misnomer. Permission to operate as a true 'labor union' is not sought. The labor-management relations laws of the United States are thus irrelevant and are not invoked. But it is duly incorporated as an eleemosynary institution under the laws of the State of North Carolina. 1 Its members and officers are inmates of the North Carolina Department of Correction. Its stated purposes are to work legally and peacefully to alter or eliminate practices of the Department of Correction which are thought to be in conflict with the just, constitutional and social interests of all persons.

The defendants are sued in their official capacities, Mr. Jones as Secretary of the North Carolina Department of Correction, and Mr. Edwards as Commissioner of the North Carolina Department of Correction.

The complaint asks for a permanent injunction against all acts of the defendants declared to be unconstitutional, the award of $100,000 in damages, reasonable attorneys' fees, as well as the usual prayers for the taxation of costs and for such other and further relief as to the court may seem just and proper. We may put some of these prayers to one side.

Damages. Because they are not sued individually, see Burt v. Board of Trustees, 521 F.2d 1201 (4th Cir. 1975), any recovery obtained against these officers of the state would have to be paid out of the state treasury. The eleventh amendment bars such an award against the state, and a s 1983 action against officers of the state falls within the bar of the amendment whenever the monetary impact is upon the state treasury. Edelman v. Jordan, 415 U.S. 651, 662--663, 94 S.Ct. 1347, 1355--1356, 39 L.Ed.2d 662, 672 (1974).

Attorneys' Fees. 42 U.S.C. s 1983 contains no section authorizing the award of attorneys' fees to counsel. Nor does any other act of Congress authorize such an award on the facts of this case. As will appear below, the rights of the Union and its inmate members are so narrow and the resistance of the defendants so limited it cannot be said that defendants' conduct amounts to obdurate obstinancy. See Bradley v. School Board, 472 F.2d 318 (4th Cir. 1972), vacated on other grounds, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974). Since such an award is authorized neither by statute nor federal common law, it must be denied. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975).

I.

Coming to the question of injunctive relief, what we do not decide in this case is far more important than what we do decide. The most important question is whether prisoners of the state have a constitutional rights to join a corporate association of inmates. The Union insists that the first amendment right of

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the people peaceably to assemble, and to petition the government for redress of grievances, extends to prisoners and that application of that principle validates the Union and the right of inmates to join it.

The defendants do not counter with a flat denial. Instead they take the moderate position that the right of the prisoners to assemble under the first amendment must be balanced against the need of the state to maintain order, and that the state's need is great and that of the inmates relatively minor because there are already established procedures for the channeling of grievances, including the legislatively established Inmate Grievance Commission. If we understand the defendants' position correctly, it is that they fear the possibility of concerted group action but are not gravely concerned with mere association of inmates in the Union. Thus the plaintiff's contention that the Constitution protects the right of an inmate to join an inmate association is blunted by defendants' response that it may lawfully regulate such association as to time, manner and place. Instead of being asked by the defendants to hold that plaintiff has no right to exist in the prison system, we are asked instead 'to arrive at a balance between the interest of the prisoners in associating together with a prison unit and the interest of the state in maintaining internal security within the prison.' Page 3, Defendants' Memorandum.

We think the broader question urged by plaintiff is not so sharply presented that we should undertake to decide it. Since the parties agree that the defendants permit inmates to join the Union, our undertaking to decide whether they may do so would be advisory. Indeed, we would lack jurisdiction to do so, but for the peripheral, and much less important questions, that may be said to constitute a case or controversy. 1A See Muskrat v. United States, 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246 (1911).

II.

The lesser questions we do decide are presented us in the following fact context:

1. Inmates are permitted to join a union and have been and are being permitted to join the North Carolina Prisoners' Labor Union, Inc. Some 2,000 prisoners have already joined. 2 There are no membership dues although dues are authorized by the by-laws. The Union is an organization of inmates associated together for the purpose of working for prison reform.

2. Although permitting membership, the defendants oppose the solicitation of other inmates to join and have made solicitation an infraction of its general disciplinary rules.

3. Not only is personal solicitation by inmate to inmate forbidden but so also is solicitation by correspondence or by newsletter or magazine. Indeed, solicitation by anyone by any means is prohibited.

4. Some newsletters addressed to certain inmates have been returned as nondeliverable.

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Because of the apprehension that such publications may contain articles slanted to encourage membership the defendants enforce their general rule forbidding the receipt of bulk mail. They will not permit an inmate to receive a bundle to be redistributed by him to other inmates.

5. Union meetings are forbidden. Employees of...

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