Martinez v. Aaron

• Citation: 570 F.2d 317
• Decision Date: 23 January 1978
• Docket Number: No. 77-1395,77-1395
• Parties: David L. MARTINEZ, Petitioner-Appellant, Gregory L. Sharpe, Braulio Rodriguez, Ronald Lancaster, Eldridge Green, Richard Maldarude, Clarence Whiteley, James Cochran, Sandy Scott, Reynaldo Madrid, William J. Rowland, Joseph Bell, James Ranson, James Chiaramonte, David Crawford, Mike Colby, Roy Preas, Charles Crismore, Ronald Lee McDonald, Jessie X. Clark, Defendants, v. Ralph L. AARON, Warden, Capt. Joe F. Martinez, Lt. Benito Gonzales, Adelaido Martinez (Superintendent of Security), Clyde Malley, warden, Mike Hanrahan, Secretary of Corrections, Dr. Mark Orner, Individually and in their official capacities as Warden of the Penitentiary of New Mexico and other employees of the New Mexico Department of Corrections, Respondents-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 317

570 F.2d 317

David L. MARTINEZ, Petitioner-Appellant Gregory L. Sharpe, Braulio Rodriguez, Ronald Lancaster Eldridge Green, Richard Maldarude, Clarence Whiteley, James Cochran, Sandy Scott, Reynaldo Madrid, William J. Rowland Joseph Bell, James Ranson, James Chiaramonte, David Crawford, Mike Colby, Roy Preas, Charles Crismore, Ronald Lee McDonald, Jessie X. Clark, Defendants, v. Ralph L. AARON, Warden, Capt. Joe F. Martinez, Lt. Benito Gonzales, Adelaido Martinez (Superintendent of Security) Clyde Malley, warden, Mike Hanrahan, Secretary of Corrections, Dr. Mark Orner, Individually and in their official capacities as Warden of the Penitentiary of New Mexico and other employees of the New Mexico Department of Corrections, Respondents-Appellees.

No. 77-1395.

United States Court of Appeals, Tenth Circuit.

Submitted Dec. 9, 1977.

Decided Jan. 23, 1978.

David L. Martinez pro se.

Toney Anaya, State Atty. Gen., Ralph W. Muxlow III, Asst. Atty. Gen., Santa Fe, N.M., on behalf of appellees.

Before SETH, Chief Judge, and HOLLOWAY, McWILLIAMS, BARRETT, DOYLE and McKAY, Circuit Judges, sitting en banc.

PER CURIAM:

This was commenced as an action under 42 U.S.C. § 1983, brought by twelve inmates of the New Mexico State Penitentiary. The complaint asserts the theft and confiscation of described personal property of the plaintiffs by the defendant correctional officers during the course of a routine shakedown. The shakedown or search was of a dormitory in the prison occupied by a considerable number of prisoners including the plaintiffs. The shakedown and stealing are also advanced as harassment of the prisoners. The section 1983 cause of action seems to be based on the theft confiscation of personal property. An injunction and damages are sought.

The trial court dismissed the complaint under section 1915(a) and (d) as frivolous in the preliminary proceedings. The basic requirement in these circumstances was set forth in Ragan v. Cox, 305 F.2d 58 (10th Cir.); see also Harbolt v. Alldredge, 464 F.2d 1243 (10th Cir.), and Bennett v. Passic, 545 F.2d 1260 (10th Cir.).

It is obvious that the routine shakedown was a disciplinary and security device to enforce the prison rules prohibiting the possession of contraband. The definitions of contraband are clear, and on appeal the petitioners appear to make no serious challenge as to definitions or even as to the determination by the officers as to what was contraband and what was not. The remaining items such as cigarettes, coffee, toothpaste, and underwear are asserted as having been stolen by the defendant officers. Weapons were found by the shakedown.

The determination as to what was contraband was made by the prison officers during the shakedown generally depending on whether the items were purchased from the prison store or not. As to the underwear reported stolen, the determination whether it was contraband apparently depended on its color. The toothpaste and hand towels were also sorted by the officers.

An explanation of the shakedown sorting was made by the prison officials during the course of an interrogation at the prison as ordered by the trial court. The prisoners were likewise interrogated at the prison under the same order as hereinafter described.

The plaintiffs can make no rational arguments on the law or the facts to support their claim. The tests for dismissal under the circumstances were the same as applied to persons not proceeding under affidavits of poverty. The action is in conformity with the standards and admonitions in the criminal cases such as Ellis v. United States, 356 U.S. 674, 78 S.Ct. 974, 2 L.Ed.2d 1060, and Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21.

As indicated above, the trial court ordered before answer that the prison officials conduct an investigation of the incident to include an interrogation of those concerned. The transcripts of the interrogations (not required to be under oath), and an explanation by the officials were to be attached to the answer of defendants. This was done, and an administrative record was thereby constructed to enable the trial court to decide the jurisdictional issues and make a determination under section 1915(a).

It is apparent that such a record was necessary to enable the trial court to decide the preliminary issues including those of jurisdiction, to be used with the affidavits and exhibits. This was especially so as to the allegations by plaintiffs as to color of state law. The plaintiffs had the burden of developing these matters to support at least the theft allegations in their complaint. It is necessary that some sort of record be produced to enable the court to go forward. The trial court's order in part is as follows:

"This matter coming before the Court upon a Complaint pursuant to 42 U.S.C. § 1983, claiming violation of civil rights by inmates at the New Mexico...