824 F.2d 1522 (7th Cir. 1987), 85-2272, Abel v. Miller

Docket Nº:85-2272, 85-2342 and 85-2683.
Citation:824 F.2d 1522
Party Name:Jacqueline ABEL, et al., Plaintiffs-Appellees, Cross-Appellants, v. Harold MILLER, et al., Defendants-Appellants, Cross-Appellees.
Case Date:July 21, 1987
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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824 F.2d 1522 (7th Cir. 1987)

Jacqueline ABEL, et al., Plaintiffs-Appellees, Cross-Appellants,


Harold MILLER, et al., Defendants-Appellants, Cross-Appellees.

Nos. 85-2272, 85-2342 and 85-2683.

United States Court of Appeals, Seventh Circuit

July 21, 1987

Argued Sept. 9, 1986.

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[Copyrighted Material Omitted]

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Martin C. Carlson, U.S. Dept. of Justice, Washington, D.C., for defendants-appellants, cross-appellees.

Jan Susler, Peoples Law Office, Chicago, Ill., for plaintiffs-appellees, cross-appellants.

Before EASTERBROOK and RIPPLE, Circuit Judges, and GRANT, Senior District Judge. [*]

RIPPLE, Circuit Judge.

In late 1980, after a series of inmate disturbances at the United States Penitentiary at Marion, Illinois (Marion), the Marion Prisoners' Rights Project (MPRP or Project) and four members of its staff--three attorneys and one paralegal--were banned from access to the prison and their inmate-clients. The MPRP, the individual attorneys and paralegal, and three Marion inmates brought an action for injunctive and monetary relief against three Marion administrators, claiming that the bans violated their constitutional rights. The jury found in favor of the attorneys and paralegal against the prison officials and in favor of the prison officials on the claims of the MPRP and the inmates.

The defendant prison officials appeal the judgments in favor of the attorney and paralegal plaintiffs. They contend that, as prison officials, they were entitled to qualified immunity and that the district court erred by denying their motion for a directed verdict on that basis. The MPRP and the inmate plaintiffs cross-appeal the judgments in favor of the defendant prison officials. They argue that the district court erred in denying their motion for judgment notwithstanding the verdict (judgment n.o.v.). 1

For the reasons set forth in this opinion, we affirm the judgment of the district court insofar as it finds the defendant prison officials not liable to the prisoners 2 and the MPRP. 3 In all other respects, we vacate the judgment of the district court and remand the case for proceedings consistent with this opinion.



  1. Facts

    1. Parties

    Defendants-appellants are individuals who, in the fall of 1980, were administrators of the United States Penitentiary in Marion, Illinois. 4 Harold Miller was the

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    warden at Marion; John Clark was the associate warden; and Richard Phillips was the executive assistant to the warden.

    Plaintiffs-appellees are three attorneys, Jacqueline Abel, Martha Easter-Wells and James Roberts, and a paralegal, Janet Mitchell Hinton. Plaintiffs-cross-appellants are the MPRP and three Marion inmates, Leonard Peltier, Tyrone Thomas-Bey and Sundiata Acoli (a/k/a Clark Squire). Appellees Ms. Abel, Ms. Easter-Wells, Mr. Roberts and Ms. Mitchell were employed by the MPRP. Cross-appellants, Mr. Peltier, Mr. Thomas-Bey and Mr. Acoli were clients of the MPRP, and inmate-members or alternate members of the MPRP board of directors.

    2. The MPRP

    The MPRP is an Illinois not-for-profit corporation whose purpose is to provide attorneys to assist Marion prisoners with legal problems and to educate the public about the conditions at the prison. It was founded in mid-1979. The Project's goal was the "immediate humane treatment of all prisoners, but ultimately it sought to eliminate Marion and other prisons where isolation, brutality and arbitrary treatment are regularly used." Appellees' Br. at 1-2. Beginning in the fall of 1979, MPRP employees made regular visits to Marion to meet with inmates. The visits were made both to discuss legal matters and to conduct board meetings with the MPRP's inmate-directors. These regular visits continued until mid-October of 1980.

    3. Marion Work Strikes

    Marion experienced three work strikes during 1980. The first of these occurred in January, the second in March, and the third in September. MPRP employees continued to meet with inmates during the January and March work strikes and during the third work strike until October 15. The MPRP also "continued [its] community education work, which involved responding to inquiries from various media about the work stoppage inside Marion ..., [and] describing the tension and frustration the prisoners felt at the [prison officials'] lack of responsiveness to their just grievances." Id. at 8. MPRP staff publicly criticized the prison administrators for their treatment of the prisoners.

    4. The October 1980 Ban

    During the third work-strike, in mid-October 1980, without prior notice, MPRP attorneys, Ms. Abel and Ms. Easter-Wells, and an MPRP paralegal, Janet Mitchell, were barred by the prison administrators from entering Marion to meet with inmates for the duration of the work strike. Ms. Abel, Ms. Easter-Wells and Ms. Mitchell were permitted to communicate confidentially by telephone or by mail with Marion inmates. Other MPRP employees were allowed access to the prison.

    Marion officials claim to have barred Ms. Abel and Ms. Easter-Wells from access to the prison because the attorneys had encouraged Mr. Thomas-Bey, an inmate, to violate prison rules by assisting him to prepare strike demands during the third 1980 work strike. 5 Warden Miller consulted with his Bureau of Prisons superior, the United States Attorney, and Regional Counsel for the Bureau of Prisons before limiting the MPRP employees' access to Marion.

    Warden Miller stated in a letter to the MPRP that he had barred Ms. Mitchell from the prison because of public statements made by the paralegal which "repeated, amplified, ratified or condoned the strike." Plaintiffs' Ex. 6 R.1 at Ex. A. Prison officials stated that they believed "that Mitchell had used her visitation privileges to obtain inflammatory information regarding the progress of the work strike," Appellants' Br. at 16; Tr. at 380, 1429-31, and that they "feared that her remarks had dangerously heightened tensions within the prison." Appellants' Br. at 16; see Tr. at 1429-30.

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    5. The December 1980 Ban

    In late December 1980, the district court denied MPRP employees Ms. Abel, Ms. Mitchell and Ms. Easter-Wells a preliminary injunction against the October ban. Upon denial of the preliminary injunction, Marion officials extended the ban on access to the prison to all Project employees. Communication between Project employees and Marion inmates was limited to unsealed letters and monitored telephone calls. The duration of the ban was extended indefinitely. MPRP attorney, Mr. Roberts, was allowed, as part of his private, non-Project, practice to have access to Marion and to maintain confidential mail privileges. Marion officials justified the increased restrictions on the basis of information they had received suggesting that the Project encouraged prison disruptions. An inmate, Jack Abbot, discussed the activities of the MPRP at Marion with Associate Warden Clark. Mr. Abbot told Mr. Clark that Project employees actively encouraged inmates to strike and smuggled contraband into the prison. Mr. Abbot later executed a sworn statement alleging that MPRP employees encouraged Marion inmates to strike and to make false statements in lawsuits. Another Marion inmate, Leonard Huntsman, provided additional information. At about the same time that the prison officials received this information from Mr. Abbot and Mr. Huntsman, they learned that inmates served on the MPRP board of directors and that Project business was carried on during attorney-inmate meetings. Prison officials viewed the operation of a business by inmates and the use of attorney-client visits for purposes unrelated to litigation as infractions of prison regulations. These infractions were seen as particularly serious in light of the prison unrest then occurring.

  2. History of the Litigation

    1. Initial District Court Proceeding

    On October 22, 1980, immediately after the imposition of the first ban against MPRP staff, Ms. Abel, Ms. Easter-Wells, Ms. Mitchell and the MPRP filed suit in the United States District Court for the Southern District of Illinois. They alleged violations of 1) their first amendment right to free speech, 2) "their [fifth amendment] right to pursue their occupations as attorneys and paralegal assistant," R.1 at 4, and 3) "their [sixth amendment] right of access to incarcerated clients," R.1 at 5. They requested monetary damages, attorneys' fees and preliminary and permanent injunctive relief. The plaintiffs subsequently filed an amended complaint, R.4, adding two inmate plaintiffs, Mr. Peltier and Mr. Thomas-Bey, and adding a claim that the inmate plaintiffs and those similarly situated were denied "their right of access to the courts and counsel of their choice in violation of the Sixth Amendment...." R.4 at 5.

    The district court denied the plaintiff's request for preliminary injunctive relief. The court stated that the plaintiffs had failed to demonstrate a likelihood of success on the merits, especially because of the security concerns at Marion. The court noted that, at that time, other attorneys from the MPRP were allowed access to the prison. The district court concluded: "The action of the Warden here in refusing to allow plaintiffs Easter-Wells, Abel and Mitchell to visit inmates during the work stoppage is reasonable in light of evidence warranting [a] conclusion by prison authorities that the plaintiffs seek to instigate and prolong the inmate strike. The prison officials have reacted in good faith to what they perceive to be an emergency and judicial interference is not warranted at this time." Abel v. Carlson, Civ. No. 80-4493, order at 6 (S.D.Ill. Dec. 22, 1980); R.5 at 6. 6

    2. First Appeal

    On the same day that the preliminary...

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