Morales v. Schmidt

• Citation: 489 F.2d 1335
• Decision Date: 17 January 1973
• Docket Number: No. 72-1373.,72-1373.
• Parties: Juan G. MORALES, Plaintiff-Appellee, v. Wilbur J. SCHMIDT, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

489 F.2d 1335 (1973)

Juan G. MORALES, Plaintiff-Appellee, v. Wilbur J. SCHMIDT, Defendant-Appellant.

No. 72-1373.

United States Court of Appeals, Seventh Circuit.

Argued July 19, 1972.

Decided January 17, 1973.

As amended March 5, 1973.

Opinion on Rehearing March 22, 1974.

Robert W. Warren, Atty. Gen., Robert D. Repasky, Mary V. Bowman, Asst. Attys. Gen., Madison, Wis., for defendant-appellant.

Paul A. Hahn, Madison, Wis., for plaintiff-appellee.

Anthony J. Theodore, Corrections Legal Services Program, Madison, Wis., amicus curiae.

Before CUMMINGS, PELL, and STEVENS, Circuit Judges.

Opinion on Rehearing En Banc March 22, 1974. See 494 F.2d 85.

PELL, Circuit Judge.

This is an appeal from the entry of a preliminary injunction by the District Court for the Western District of Wisconsin enjoining Wilbur J. Schmidt, the Secretary of the Department of Health and Social Services of the State of Wisconsin, and his agents from restricting correspondence between Juan Morales and his wife's sister.¹ According to Morales's complaint, defendant-appellant Schmidt has general supervision over the rulemaking policies of the state prisons and is "directly liable for the conduct and actions of his agents therein." At the time of the filing of the complaint, Morales was an inmate of the Wisconsin State Prison at Waupun.

As an initial matter, we must dispose of a mootness question. Morales was convicted of having violated the Uniform Narcotics Drug Addiction Act and was sentenced to a term of not more than ten years. On March 27, 1972, before the district court entered its order in this case, Morales was released on parole. The petition of amicus curiae, Corrections Legal Services Program, suggests that the case is therefore moot. We agree with the appellant and appellee that we have before us a live controversy. The department which defendant Schmidt heads has responsibility for the entire correctional system of the State of Wisconsin, including the administration of parole and probation matters. Pursuant to the sentence imposed on Morales, Schmidt will have legal custody of the plaintiff, although a parolee, for six more years and has authority to impose restrictions upon him. In his response to the amicus curiae petition, Secretary Schmidt stated that he has refrained from preventing Morales from communicating with his sister-in-law solely because of the duty to comply with the district court's injunction. We further note that there is always the possibility that Morales during his period of parole will violate the terms of his conditional release and thus be returned to prison. In light of these circumstances, we find that the change in plaintiff's status does not alter the central issue.

I

The parties are in agreement about the facts. On November 28 or 29, 1970, Morales wrote a letter to his wife's sister, Kathleen Steffes, who was on the prison's list of approved correspondents. In the letter Morales mentioned that he was the father of a child by Steffes and stated that he hoped to continue his relationship with mother and son in the future. At the time the letter was written, the plaintiff's wife was apparently unaware of the relationship between her sister and Morales, including the fact that her husband had fathered Steffes's illegitimate child.

Prison administrators intercepted and read the letter and then routed it to Morales's prison social worker, who refused to mail it to Steffes. On December 22, 1970, he discussed with Morales the letter as well as Morales's continued correspondence with his sister-in-law. After consulting with prison officials, the social worker told Morales that Steffes was being placed on the list of denied correspondents-visitors and that she would be notified of this decision.

Both Morales and Steffes were advised that the decision would be re-evaluated if they could provide additional information.

The prison administrators based their actions on their opinion that it would be inappropriate to permit Morales to correspond with a woman with whom he had had an illicit sexual relationship, particularly since they had reason to believe that he intended to continue the relationship upon his release from prison although he also intended to live with his wife and their children.

Neither Morales nor Steffes made further efforts to justify to prison authorities their correspondence. In January 1971, Morales filed the present Section 1983 action, 42 U.S.C. § 1983, in the federal district court, alleging that the prison officials' actions in refusing to allow the letter of November 28, 1970, to be sent to Kathleen Steffes and in refusing to permit him to correspond with her violated his rights under the First, Fifth, Ninth, and Fourteenth Amendments. Condemning the administrators' actions as "arbitrary, capricious and unreasonable," he sought a permanent injunction against the defendant and his agents to bar them from depriving him of the use of the mails "to communicate with plaintiff's relatives and family." Morales also alleged irreparable injury and moved for a temporary restraining order.

The district court entered an order directing the Secretary of Health and Social Services to show cause why the requested order should not be granted. The Secretary then moved for summary judgment upon affidavits.

On April 6, 1972, the court dismissed the motion for summary judgment and entered the preliminary injunction challenged here. In reaching its decision, the court reasoned as follows: (1) freedom to use the mails is a First Amendment freedom; (2) someone not convicted of a crime would be free to correspond with his wife's sister whether or not he had been sexually intimate with her; (3) the interest of a non-convict in corresponding by mail is a "fundamental" interest; (4) "when the government undertakes to deny this freedom to a member of the class of persons who have been convicted of crime, while granting it to members of a class of persons who have not been convicted of crime, the burden is upon the State to show a compelling governmental interest in this differential in treatment," 340 F.Supp. at 554-555; and (5) the Government's interests in the maintenance of internal prison discipline and in the rehabilitation of Morales are not so compelling as to permit their vindication by interference with a right secured to plaintiff by the First and Fourteenth Amendments.

II

The Constitution provides no clear answer to federal courts seeking to determine the civil rights of state prisoners. The variety of views expressed by the courts when resolving challenges by prisoners to the constitutionality of prison rules reflects the ambiguous mandate of the Bill of Rights and the Thirteenth and Fourteenth Amendments when construed together.

The Thirteenth Amendment, if read literally, suggests that the States may treat their prisoners as slaves: "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."² However, by emphasizing the applicability to state prisoners of the Fourteenth Amendment, which now incorporates most of the Bill of Rights including the Eighth Amendment's prohibition of "cruel and unusual punishments,"³ courts in recent years have moderated the harsh implications of the Thirteenth Amendment. But the tension remains between the view that a prisoner enjoys many constitutional rights, which rights can be limited only to the extent necessary for the maintenance of a person's status as prisoner (or parolee), and the view that a prisoner has only a few rudimentary rights and must accept whatever regulations and restrictions prison administrators and State law deem essential to a correctional system. Even the most "liberal" opinions acknowledge that although a convicted person is not a slave neither is he a "freeman."

Thus, we agree with the district court that state prisoners' suits present exceedingly perplexing problems for the federal courts.⁴ We must not shirk our duty to protect an individual's rights, yet we must respect the rights and interests of the States. In a symposium on prison reform and "prisoners' rights," the Dean of the University of Virginia Law School articulated well the major questions:

"What is the proper function of the courts, the legislatures and executive? What are the limits of the wisdom and power of each? What must be left to administrators for determination? What are the opportunities of each of these institutions for information gathering, for enforcement, and for promulgation? . . . How much liberty is compatible with the order necessary in any kind of institutional confinement—a closed society—where the principal concern of each inmate is to get out? . . . What are the programs which in fact change the character of human beings? . . . What kinds of things does the Constitution require in a prison setting?"⁵

The Fourteenth Amendment states in part: "nor shall any State deprive any person of life, liberty, or property, without due process of law." Morales does not maintain that his conviction and sentence were accomplished without due process. But this does not establish what liberties remained to him once he was found guilty according to law. The relatively few cases in which prisoners have contested prison officials' refusal to permit correspondence or visiting rights with specific persons are of limited aid.⁶ Factually closest is Fussa v. Taylor, 168 F.Supp. 302 (M.D.Pa.1958), where the court upheld the warden's decision. However, there the forbidden female correspondent was deeply involved in narcotics, was herself an inmate, and was but the most recent in a series of paramours the petitioner had had. In Corby v. Conboy, 457 F.2d 251 (2d Cir. 1972), decided after the Second Circuit's seminal opinion in Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971), cert. denied, 404 U.S. 1049, 92 S.Ct....