Ault v. Holmes

• Decision Date: 20 August 1973
• Docket Number: Civ. A. No. 2399.
• Citation: 369 F. Supp. 288
• Parties: Donald E. AULT, Individually and on behalf of all others similarly situated, Plaintiff, v. Charles J. HOLMES et al., Defendants.
• Court: U.S. District Court — Western District of Kentucky

369 F. Supp. 288

Donald E. AULT, Individually and on behalf of all others similarly situated, Plaintiff, v. Charles J. HOLMES et al., Defendants.

Civ. A. No. 2399.

United States District Court, W. D. Kentucky, Paducah Division.

August 20, 1973.

Robert E. Delahanty, Louisville, Ky., Robert Plotkin, National, Legal Aid and Defender Ass'n, Washington, D. C., Elizabeth M. Freedman, Louisville, Ky., Allen M. Ressler, Ronald L. Roseman, Kansas City, Mo., for plaintiff.

Bruce K. Davis, Dept. of Corrections, Frankfort, Ky., for defendants.

FINDINGS OF FACT, CONCLUSIONS OF LAW

OPINION AND ORDER

ALLEN, District Judge.

Plaintiff, Donald E. Ault, brought this action seeking injunctive relief for himself and fellow prisoners who have been transferred from the Kentucky State Penitentiary to penitentiaries outside the State of Kentucky, and also asks the Court to award him compensatory damages, punitive damages and attorneys' fees for alleged violations of his constitutional rights. The suit is brought pursuant to 28 U.S.C. § 1343(3) and (4); 42 U.S.C. § 1983; and 28 U. S.C. § 1331(a). Jurisdiction is conferred on the Court by these statutes and by the facts alleged in the complaint.

Donald Ault was an inmate of the Kentucky State Penitentiary at Eddyville, Kentucky, on August 15, 1972. Shortly before this date, defendant, Henry E. Cowan, had been appointed Warden of that penitentiary. When Cowan came to Eddyville, he found conditions to be bad there and that there was considerable unrest. He felt that it would be desirable for the discipline of the penitentiary to transfer some of the inmates whom he felt were agitators or troublemakers. Among those whom he thought to be in this category was Donald Ault.

Donald Ault was assigned to the Legal Assistance Office of the penitentiary and was known as a "writ writer". On August 15, 1972, he had written a letter to his parents complaining about the new regime instituted by Warden Cowan and stating, in part, that he believed the other inmates to be "jellyfish" because they would not stand up for their rights against the prison administrators. When this letter was received by the Mailing Department of the prison, its contents were disclosed to William Lasley, Assistant Superintendent of Treatment. Lasley then took Ault with him to the office of defendant Cowan, and while Ault was in the office, prepared an Incident Report. The Incident Report stated that it had been observed for some time that the activities of Ault could possibly be stirring up trouble within the inmate population. The report further stated that this was pretty well verified in a letter he was sending out in which he criticized officials as well as inmates.

The report also stated that the letter contained much agitation and could possibly cause serious trouble if the inmates were knowledgeable of his comments. The report goes on to say that Ault was called to the Superintendent's office and that he displayed a very poor attitude and seemed very bitter. The report further stated that he admitted that what he had done could cause trouble, and he didn't want the other inmates to know about it. He related that he had been mistreated by the courts and it was his desire to get even.

The conference which took place between Ault, Cowan and Lasley on August 15th was then designated as an Adjustment Committee meeting and findings were made that Ault was guilty of agitating and using his influence to get other inmates involved. It was declared that he had placed himself in a position which was detrimental to his own welfare and to the security of the institution and that he admitted it but saw no wrong in it. He was then assigned to administrative segregation.

Ault remained in administrative segregation for some nine days. Administrative segregation resulted in Ault being denied the privilege of going to work in the Legal Assistance office, the privilege of associating with other inmates of the penitentiary and being denied the television and recreational privileges. There was no reduction in his food rations, nor was there any abusive treatment nor lack of any plumbing facilities, blankets nor the other necessities of life afforded to the other inmates.

On September 15, 1972, Ault and eight other inmates at Eddyville were brought to the office of the Warden and informed that they were being transferred to various other state penitentiaries outside the State of Kentucky. There was no hearing held, and a little more than one hour after the notification, Ault and the other eight men were placed in shackles and taken to the various other state penitentiaries to which they had been transferred.

Upon arriving at the Missouri State Penitentiary at Jefferson City, Missouri on the same day, Ault was placed in administrative segregation for five or six days before he was admitted to the general prison population. This is apparently standard procedure when new inmates are received at the Missouri State Penitentiary. No complaint was made by Ault as to the facilities at Jefferson City during his confinement to administrative segregation.

Ault does complain that there is no Legal Assistance office at Jefferson City and no law library, and that he has, therefore, suffered in his attempts to adequately prepare a case which he has pending in the Eastern District of Kentucky, and one that a fellow prisoner named Jenkins has pending in the Western District of Kentucky.

Ault's parents live in Utah, and his former wife has remarried and did not make any attempt to visit him while he was in Eddyville. He seems to be doing fairly well in the Missouri State Penitentiary, and in fact wrote the Warden a letter stating that things were "beautiful in Missouri". Other prisoners who were transferred were sent not only to Missouri but as far distant as Arizona, some 2,000 miles from Kentucky. In all cases, including Ault's, the written reason given for the transfers was stated as "interstate compact". This refers to the statutory provisions whereby Kentucky has agreed with other states such as Missouri and Arizona to the transfer between the states of prisoners, where it is found to be for the prisoner's rehabilitation, treatment and protection. See K.R.S. 196.610, Article IV(a), which states as follows:

"Whenever the duly constituted authorities in a state party to this compact, and which has entered into a contract pursuant to Article III, shall decide that confinement in, or transfer of an inmate to, an institution within the territory of another party state is necessary or desirable in order to provide adequate quarters and care or an appropriate program of rehabilitation or treatment, said official may direct that the confinement be within an institution within the territory of said other party state, the receiving state to act in that regard solely as agent for the sending state."

With reference to the actual reasons for the transfer of Ault and the other prisoners, the Warden stated that primarily the transfers were to improve the discipline at Eddyville and for the protection of the inmates. In each case, rational reasons were given to this Court for their transfers, but no reasons were given to the inmates at the time of the transfers, nor were they allowed any opportunity to state why they should not be transferred.

The Court has previously held that, as to the claim for injunctive and declaratory relief filed by Ault as to the transfer, as citizens of Kentucky from Eddyville and LaGrange to out-of-state penitentiaries, the action should be considered as a class action. This is consistent with many decisions holding that, in actions involving the civil rights of inmates, class action determination should be made where those actions involve also procedures or practices of the prison administration that are challenged on constitutional bases. See Gomes v. Travisono, 353 F.Supp. 457 (D.C.R.I.1973); Jones v. Metzger, 456 F.2d 854 (6th Cir. 1972); Anderson v. Nosser, 438 F.2d 183 (5th Cir. 1971); Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968).

The Court is of the opinion that while Ault and his fellow transferees had caused difficulties to the prison authorities in Kentucky on some occasions prior to their mass transfer, that there was no compelling reason for the transfer on September 15, 1972. The Court does not believe that the defendants presented persuasive evidence that violence had been indulged in by these transferees during the period immediately predating their transfer, or that they had planned a mass escape from the institution, or the taking of hostages, or that they had planned a riot or other similar disturbances.

In light of this finding and the rapidly evolving constitutional doctrines set out in Gomes v. Travisono, supra; Capitan v. Cupp, 356 F.Supp. 302 (D.C.Ore. 1972); Clutchette v. Procunier, 328 F. Supp. 767 (D.C.Cal.1971); and Sostre v. McGinnis, 442 F.2d 178 (2nd Cir. 1971), cert. denied, 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740, 405 U.S. 978, 92 S.Ct. 1190, 31 L.Ed.2d 254 (1972), the Court concludes that transfer procedures such as took place with regards to Ault and his fellow transferees must comport with at least the most basic elements of procedural due process. The rationale of these cases is to the effect that where there is a serious change in a prisoner's confinement, procedures relating thereto must comport with basic due process. In both Gomes and Capitan it was held that the transfer of prisoners to a penitentiary removed from their native state is a serious change in confinement status.

The various cases which have affirmed this principle are at some variance as to what are the basic minimal elements of procedural due process. For example, in Sostre v. McGinnis, supra, the Second Circuit refused to follow the district judge's holding setting out specifically procedural due process in prison proceedings, particularly those requiring confrontation and cross-examination, calling of...