430 F.2d 771 (8th Cir. 1970), 19980, Burns v. Swenson

Docket Nº19980, 19981, 20003, 20004.
Citation430 F.2d 771
Party NameRobert E. BURNS, Appellant, v. H.R. SWENSON, Warden of the Missouri State Penitentiary, Appellee. Robert E. BURNS, Appellant, v. H.R. SWENSON, Warden, and F.T. Wilkinson, Director, Appellees. Robert E. BURNS, Appellee, v. H.R. SWENSON, Warden of the Missouri State Penitentiary, Appellant. Robert E. BURNS, Appellee, v. H.R. SWENSON, Warden, and F.T.
Case DateAugust 31, 1970
CourtUnited States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 771

430 F.2d 771 (8th Cir. 1970)

Robert E. BURNS, Appellant,

v.

H.R. SWENSON, Warden of the Missouri State Penitentiary, Appellee.

Robert E. BURNS, Appellant,

v.

H.R. SWENSON, Warden, and F.T. Wilkinson, Director, Appellees.

Robert E. BURNS, Appellee,

v.

H.R. SWENSON, Warden of the Missouri State Penitentiary, Appellant.

Robert E. BURNS, Appellee,

v.

H.R. SWENSON, Warden, and F.T. Wilkinson, Director, Appellants.

Nos. 19980, 19981, 20003, 20004.

United States Court of Appeals, Eighth Circuit.

Aug. 31, 1970

Rehearing Denied Sept. 22, 1970.

Page 772

Alex Bartlett, of Hendren & Andrae, Jefferson City, Mo., for Robert E. Burns.

Howard L. McFadden, Gen. Counsel, State of Missouri, Dept. of Corrections, Jefferson City, Mo., for Harold R. Swenson.

John C. Danforth, Atty. Gen., State of Mo., Jefferson City, Mo., for defendants-appellants.

Before MATTHES, Chief Judge, HEANEY and BRIGHT, Circuit Judges.

MATTHES, Chief J.

These appeals and cross-appeals are from a final order entered on July 25,

Page 773

1969, by the United States District Court for the Western District of Missouri, Honorable John W. Oliver, in two consolidated civil rights actions brought under 42 U.S.C. § 1983 on March 10 and August 2, 1966, by Robert E. Burns, an inmate at the Missouri State Penitentiary in Jefferson City. The two suits were later consolidated with similar civil rights actions separately lodged by eight other inmates of the Penitentiary. For reasons not here pertinent, all cases involving inmates other than Burns were dismissed or otherwise disposed of prior to entry of the court's opinion and order of June 26, 1969, reported at 300 F.Supp. 759 (W.D.Mo.1969). 1

This litigation centered on alleged deficiencies, constitutional and otherwise, in the administration of the Penitentiary's condition of the prisoners' quarters, and the disciplinary, medical, and religious treatment accorded the inmates, with particular emphasis on the Maximum Security Unit of the Penitentiary in which all plaintiffs-inmates were celled at the consolidation of these suits. The district court appointed competent counsel to represent jointly all plaintiffs-inmates, held extensive conferences and hearings, took voluminous testimony from almost all parties concerned, including a recognized expert in penology. The judge personally inspected the prison facilities and the living conditions in the Maximum Security Unit. During the 3-year course of the proceedings, a new prison administration, composed of Fred T. Wilkinson, Director of Corrections, and Harold R. Swenson, Warden, was installed. The new Director and Warden undertook to implement certain institutional and procedural reforms at the Penitentiary and voluntarily granted portions of the relief requested in the several suits. The court issued an interim opinion and order of July 16, 1968, reported at 288 F.Supp. 4 (W.D.Mo.1968).

Culminating the lengthy controversy is the district court's order of June 26, 1969, granting Burns the following equitable relief: (1) Defendant-prison officials were directed to make appropriate entries in the penitentiary records to indicate that the holding of Burns in Maximum Security Unit was "legally improper," and that such entries be made in a manner particularly to so advise the state Board of Probation and Parole, and (2) Burns was to be permitted to correspond with the American Civil Liberties Union (ACLU) concerning the instant or any other case in any court. 300 F.Supp. at pp. 764-765. All other claims for relief were denied. 2 Burns has appealed the denial of his request for additional equitable relief, while Director Wilkinson and Warden Swenson claim on cross-appeals that the relief actually granted is excessive and unwarranted.

Each of Judge Oliver's opinions, previously referred to, contain some of the background and detail relevant to Burns' separate suit. A more thorough exposition of the particular and undisputed facts underlying his claims for relief is, however, essential to our opinion.

Robert E. Burns commenced serving a 75-year prison sentence on July 15, 1959, at the Penitentiary for conviction on a charge of assault with intent to kill with malice aforethought. His conviction had been affirmed on direct state appeal. State v. Burns, 328 S.W.2d 711 (Mo. 1959)

Page 774

. Until June 12, 1964, he was confined in the general prison community and was accorded normal and routine treatment and privileges. He was, on occasion, reported and charged with prison disciplinary infractions. On June 8, 1964, three premeditated, violent assaults and a stabbing-murder took place in the F and G Hall tunnel at the Penitentiary. The incident involved several inmates and manifested obvious racial tension. The four victims were Negro while the suspected perpetrators were White. Four days later Burns and five other inmates were taken to and confined in maximum security cells in the Identification and Reception Center. On August 4, Burns was transferred to "C Basement," one of the two main wings of the Maximum Security Unit, in which he was continually confined until his release to the general prison community on August 16, 1967. It was stipulated by the parties that Burns was placed in Maximum Security without formal action by the prison's Classification or Disciplinary Committee. 3 Judge Oliver found further that no formal action by Warden Nash (since deceased and the predecessor to Warden Swenson, who took office on July 1, 1965) preceded Burns' segregative assignment. Burns testified that he was first advised of the reasons for his detention about 3 or 4 days following his initial segregation when Warden Nash, in response to inquiry from Burns, stated that he was being held as a suspect in the June 8, assaults pending further investigation.

In late September and early October of 1964, Sergeant Maddox, evidence technician with the Missouri State Highway Patrol, investigated the June 8 incident at the request of the Penitentiary officials. The fruits of that investigation were reduced to several reports and were admitted into evidence and sealed in camera, to prevent any feedback of the names of those prisoners interviewed who might otherwise possibly suffer some recrimination at the hands of their fellow inmates. By order of this court, we have independently examined the investigative report. One eyewitness, but none of the three surviving assault victims, positively identified Burns as an assailant. Apparently, the attackers wore face masks to conceal their identities. A copy of Sergeant Maddox's report was forwarded to the Prosecuting Attorney of the county in which the Penitentiary is located. No further investigations were conducted.

The first record of any formal action on Burns' assignment is the review of his case on January 15, 1965, by an ad hoc "Policy Committee," specially convened in the absence of any established regulation or procedure by direction of Colonel Carter, acting Warden at the time, to review all maximum security cases. Burns appeared in person before this Committee. The entry on the Chronological Data Sheet in Burns' Classification File states: "It is the decision of the Policy Committee that Burns remain in segregation indefinitely." No record of transcript of this meeting was preserved.

The status of Burns' detention did not receive any formal review again until December 9, 1966. At that time, the Penitentiary's Classification Committee considered his case, but Burns did not appear in person nor was he notified of the review. His status and assignment remained unchanged.

After the present suit was initiated and plenary hearings were held, Burns' assignment was again reviewed in his presence and with his knowledge. A memorandum dated June 20, 1967, and signed by a ranking prison official states:

"Inmate Burns appeared before the Classification Committee on this date

Page 775

for a routine review and it was felt by the committee that he should remain on Maximum Security Status. Release at this time from maximum security would not be in the best interest of the inmate or the institution. His case will be reviewed again some-time in September, 1967."

On August 16, Burns was discharged from maximum security and returned to the...

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100 practice notes
  • 354 F.Supp. 505 (N.D.Cal. 1973), C-72-928, Allen v. Nelson
    • United States
    • Federal Cases United States District Courts 9th Circuit
    • February 15, 1973
    ...device. E. g., Sostre v. McGinnis, 442 F.2d 178, 192 (2d Cir. 1971); Krist v. Smith, 439 F.2d 146 (5th Cir. 1971); Burns v. Swenson, 430 F.2d 771 (8th Cir. 1970); Graham v. Willingham, 384 F.2d 367 (10th Cir. 1967). It has not gone unquestioned, however, when the courts have been faced with......
  • 453 F.2d 661 (5th Cir. 1971), 31116, Novak v. Beto
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • December 9, 1971
    ...confinement per se is not "cruel and unusual." Sostre v. McGinnis, 2d Cir. 1971, 442 F.2d 178; Burns v. Swenson, 8th Cir. 1970, 430 F.2d 771; Courtney v. Bishop, 8th Cir., 409 F.2d 1185, cert. denied, 396 U.S. 915, 90 S.Ct. 235, 24 L.Ed.2d 192 (1969); Graham v. Willingham, 10th Ci......
  • 639 F.2d 415 (8th Cir. 1981), 80-1202, Putman v. Gerloff
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Eighth Circuit
    • January 28, 1981
    ...are improper. Similarly, insofar as the standards stated in Instruction 6A are drawn from Eighth Amendment cases such as Burns v. Swenson, 430 F.2d 771 (8th Cir. 1970), cert. denied, 404 U.S. 1062, 92 S.Ct. 743, 30 L.Ed.2d 751 (1972), and Holt v. Sarver, 442 F.2d 304 (8th Cir. 1971), they a......
  • 357 F.Supp. 443 (D.Kan. 1973), Civ. L-1325, Poindexter v. Woodson
    • United States
    • Federal Cases United States District Courts 10th Circuit District of Kansas
    • January 24, 1973
    ...cruel and unusual punishment. In any event, such a contention does not rise to constitutional proportions, see Burns v. Swenson, 430 F.2d 771 (CA 8, 1971), cert. den. 404 U.S. 1062, 92 S.Ct. 743, 30 L.Ed.2d 751 (1972). Finally, and though it is not specifically raised herein, the fact that ......
  • Free signup to view additional results
99 cases
  • 354 F.Supp. 505 (N.D.Cal. 1973), C-72-928, Allen v. Nelson
    • United States
    • Federal Cases United States District Courts 9th Circuit
    • February 15, 1973
    ...device. E. g., Sostre v. McGinnis, 442 F.2d 178, 192 (2d Cir. 1971); Krist v. Smith, 439 F.2d 146 (5th Cir. 1971); Burns v. Swenson, 430 F.2d 771 (8th Cir. 1970); Graham v. Willingham, 384 F.2d 367 (10th Cir. 1967). It has not gone unquestioned, however, when the courts have been faced with......
  • 453 F.2d 661 (5th Cir. 1971), 31116, Novak v. Beto
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • December 9, 1971
    ...confinement per se is not "cruel and unusual." Sostre v. McGinnis, 2d Cir. 1971, 442 F.2d 178; Burns v. Swenson, 8th Cir. 1970, 430 F.2d 771; Courtney v. Bishop, 8th Cir., 409 F.2d 1185, cert. denied, 396 U.S. 915, 90 S.Ct. 235, 24 L.Ed.2d 192 (1969); Graham v. Willingham, 10th Ci......
  • 639 F.2d 415 (8th Cir. 1981), 80-1202, Putman v. Gerloff
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Eighth Circuit
    • January 28, 1981
    ...are improper. Similarly, insofar as the standards stated in Instruction 6A are drawn from Eighth Amendment cases such as Burns v. Swenson, 430 F.2d 771 (8th Cir. 1970), cert. denied, 404 U.S. 1062, 92 S.Ct. 743, 30 L.Ed.2d 751 (1972), and Holt v. Sarver, 442 F.2d 304 (8th Cir. 1971), they a......
  • 357 F.Supp. 443 (D.Kan. 1973), Civ. L-1325, Poindexter v. Woodson
    • United States
    • Federal Cases United States District Courts 10th Circuit District of Kansas
    • January 24, 1973
    ...cruel and unusual punishment. In any event, such a contention does not rise to constitutional proportions, see Burns v. Swenson, 430 F.2d 771 (CA 8, 1971), cert. den. 404 U.S. 1062, 92 S.Ct. 743, 30 L.Ed.2d 751 (1972). Finally, and though it is not specifically raised herein, the fact that ......
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1 books & journal articles
  • Constitutional rights of prisoners
    • United States
    • Military Law Review Nbr. 55, January 1972
    • January 1, 1972
    ...Cir. 19711, reveraing the iowm eourt'a holding that aditary eonflnement for over 16 days is cruel and unuaud punishment .Burns Y. Swenaon. 430 F.2d 771 (8th Cir. 19701. mE.~., Dabney 2). Cunningham, 317 F. Supp. 57 (E.D. VI. 1810). " C m i and unwd puniahnrennla prohibited. "Punis......