992 F.2d 601 (6th Cir. 1993), 91-6442, Lavado v. Keohane

Docket Nº:91-6442.
Citation:992 F.2d 601
Party Name:Henry LAVADO, Jr., Plaintiff-Appellant, v. Patrick W. KEOHANE, et al., Defendants-Appellees.
Case Date:April 22, 1993
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 601

992 F.2d 601 (6th Cir. 1993)

Henry LAVADO, Jr., Plaintiff-Appellant,

v.

Patrick W. KEOHANE, et al., Defendants-Appellees.

No. 91-6442.

United States Court of Appeals, Sixth Circuit

April 22, 1993

Page 602

[Copyrighted Material Omitted]

Submitted Nov. 20, 1992.

Page 603

Henry Lavado, Jr., pro se.

Ed Bryant, U.S. Atty., Tony R. Arvin, Asst. U.S. Atty. (briefed) Memphis, TN, for defendants-appellees.

Before: KEITH and JONES, Circuit Judges; and ALLEN, Senior District Judge. [*]

NATHANIEL R. JONES, Circuit Judge.

Plaintiff-Appellant Henry Lavado, Jr., a former federal prisoner, appeals from orders denying discovery and appointment of counsel, and from the district court's order granting Defendants-Appellees' motion for judgment on the pleadings or, in the alternative, for summary judgment. For the reasons set forth below, we affirm in part, reverse in part, and remand the case for further proceedings consistent with this opinion.

I

Lavado contends that, while incarcerated in a federal prison, some of his incoming mail was unconstitutionally opened outside his presence and read in his presence. His complaint encompasses several separate alleged violations listed below.

A

On April 21, 1987, Lavado received a letter from "A. James Connell, Attorney at Law." The envelope was marked "LEGAL MAIL--OPEN IN THE PRESENCE OF INMATE ONLY." Lavado claims that this letter was opened outside his presence by an unidentified mailroom officer.

On May 6, 1987, Lavado received a letter from "William Kuypers, Attorney At Law." The envelope was marked "SPECIAL MAIL." Lavado alleges that this letter was opened outside his presence by an unidentified mailroom officer.

On May 13 and 14, 1987, Lavado received a letter from the United States Department of Justice and a letter from the United States Department of the Treasury. Both envelopes were marked "SPECIAL MAIL." Lavado maintains that these letters were opened outside his presence by an unidentified mailroom officer.

On June 26, 1987, Lavado received a package from "Peter N. Macaluso, Attorney-at-Law." The package was marked "Special Mail--Open only in the presence of the inmate." Lavado asserts that this package was opened outside his presence by Defendant Roger M. Daughtrey.

On June 29, 1987, Lavado received a letter from the Florida Department of Law Enforcement whose envelope was marked "Special Mail--Open only in the presence of the inmate." It was allegedly read in Lavado's presence by Defendant Albert J. Langa.

On July 2, 1987, Lavado received a letter from the Florida Department of Law Enforcement whose envelope was marked "PRISONER HAS REQUESTED THAT THIS BE MARKED 'SPECIAL MAIL.' " This letter was allegedly opened by Defendant Queen E. Thomas outside Lavado's presence.

On October 28, 1987, Lavado received a letter from the United States District Court

Page 604

for the District of Columbia. The envelope was marked "OPEN ONLY IN PRESENCE OF INMATE." Lavado maintains that this letter was opened outside his presence by an unidentified mailroom officer.

On November 9, 1987, Lavado received a letter from the United States Court of Appeals for the Eleventh Circuit. The envelope was marked "Special Mail--Open Only in Presence of Inmate." Lavado claims that this letter was opened outside his presence by an unidentified mailroom officer.

Finally, on February 8, 1988, Lavado received a letter from the American Civil Liberties Union of Florida. The envelope was marked "SPECIAL MAIL--OPEN ONLY IN THE PRESENCE OF THE INMATE." No attorney's name was listed on the envelope as sender. Lavado alleges that the letter was opened outside his presence by an unidentified mailroom officer.

B

On November 18, 1988, after exhausting his administrative remedies, Lavado filed a complaint in the United States District Court for the Western District of Tennessee against Defendants Patrick W. Keohane, O.I. White, Patrick T. Casey, Thomas, Langa, and Daughtrey--all prison officials--in their individual and official capacities. Lavado's claim was brought under the authority of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 390-97, 91 S.Ct. 1999, 2001-05, 29 L.Ed.2d 619 (1971). Lavado claimed that opening his mail outside his presence and reading it in his presence violated his First, Fourth, Fifth and Sixth Amendment rights. He sought equitable relief in two forms--a declaration that Defendants' actions were unconstitutional and an injunction ordering Defendants to refrain from opening his mail out of his presence. He also sought compensatory and punitive damages from each Defendant.

Lavado filed a motion for an order compelling discovery on June 9, 1989. On July 13, 1989, Defendants filed a motion to stay discovery, and a motion for judgment on the pleadings or, in the alternative, for summary judgment. Discovery was stayed by order of the district court on July 20, 1989. On August 2, 1989, Lavado filed a motion for appointment of counsel. On November 15, 1989, the district court dismissed, on the grounds of qualified immunity, all of Lavado's claims except for his claim for equitable relief against Defendants Keohane, Casey, and White, who were supervisory officials.

At some point thereafter, Lavado was released from prison. He renewed his motion for an order compelling discovery on September 9, 1991, which was referred to a magistrate judge. On September 18, 1991, the remaining prison officials moved the district court to dismiss Lavado's claims for equitable relief as moot because Lavado had been released from federal custody. The magistrate judge issued a Memorandum and Order denying Lavado's motion for an order compelling discovery on September 19, 1991. On September 20, 1991, the district court entered an order denying Lavado's motion for appointment of counsel. The district court granted the prison officials' motion to dismiss on September 26, 1991, and a Judgment in a Civil Case was entered the next day. Lavado timely appealed to this court.

II

A

"[I]t is well established that the scope of discovery is within the sound discretion of the trial court." Chrysler Corp. v. Fedders Corp., 643 F.2d 1229, 1240 (6th Cir.), cert. denied, 454 U.S. 893, 102 S.Ct. 388, 70 L.Ed.2d 207 (1981). Accordingly, denials of motions to compel discovery are reviewed only for an abuse of discretion. See id.; S. Rosenthal & Co. v. Hantscho, No. 91-3702, 1992 WL 102501 (6th Cir. Apr. 29, 1992).

B

A district court has discretion to appoint counsel for an indigent civil litigant. 28 U.S.C. § 1915(d) (1988) ("The court may request an attorney to represent any such person unable to employ counsel...."); Reneer v. Sewell, 975 F.2d 258, 261 (6th Cir.1992) ("The appointment of counsel to civil litigants is a decision left to the sound discretion of the district court, and this decision will be

Page 605

overturned only when the denial of counsel results in ' "fundamental unfairness impinging on due process rights." ' ") (citations omitted). Accordingly, review of a district court's order denying appointment of counsel is for abuse of discretion. Henry v. City of Detroit Manpower Dep't, 763 F.2d 757, 760 (6th Cir.), cert. denied, 474 U.S. 1036, 106 S.Ct. 604, 88 L.Ed.2d 582 (1985).

C

The district court granted Defendants' motion for judgment on the pleadings or, in the alternative, for summary judgment. Though the district court did not specify whether it granted judgment on the pleadings or summary judgment, our review of the matter is essentially the same either way. See Kubicek v. J. Walter Thompson U.S.A., Inc., No. 89-1731, 1990 WL 57234 (6th Cir. May 2, 1990); Murphy v. Gibson, No. 84-1342, 1985 WL 13285 (6th Cir. May 24, 1985). We review the judgment de novo to determine if there is a genuine issue of any material fact, and whether the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Canderm Pharmacal, Ltd. v. Elder Pharmaceuticals, Inc., 862 F.2d 597, 601 (6th Cir.1988). In making these determinations, we draw all reasonable inferences from the relevant record in favor of the non-movant, see National Solid Wastes Management Ass'n v. Voinovich, 959 F.2d 590, 592 (6th Cir.1992), and, "[f]or purposes of a motion for judgment on the pleadings, all well-pleaded material allegations of the pleadings of the [non-movant] must be taken as true." Southern Ohio Bank v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 479 F.2d 478, 480 (6th Cir.1973). We note that, since Lavado filed a verified complaint, see J.A. at 25, his allegations "have the same force and effect as an affidavit" for purposes of responding to a motion for summary judgment. Williams v. Browman, 981 F.2d 901, 905 (6th Cir.1992); see 28 U.S.C. § 1746 (1988).

III

A

Lavado's first motion to compel discovery was denied before the issue of qualified immunity was decided by the district court. Given the Supreme Court's directive that "[u]ntil this threshold immunity question is resolved, discovery should not be allowed," Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982), the district court's denial of this motion was clearly not an abuse of discretion. See Criss v. City of Kent, 867 F.2d 259, 261 (6th Cir.1988) ("The Supreme Court has clearly stated that discovery in litigation against government officials should be halted until the threshold question of immunity is resolved.").

Lavado's renewed motion to compel discovery was denied by a magistrate judge on the basis that Lavado's motion was mooted along with his action for equitable relief when he was released from prison. Lavado claims that such denial was an abuse of discretion because he was unable to argue his case without the discovery he requested. At the time the renewed motion to compel discovery was filed, Lavado had two equitable requests outstanding: (1) a declaration that the prison officials violated the United States...

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