Buie v. Jones

• Decision Date: 15 September 1983
• Docket Number: 82-6522,Nos. 82-6201,s. 82-6201
• Citation: 717 F.2d 925
• Parties: James Earl BUIE, Appellant, v. Otis JONES, Sheriff; Frank Armstrong, Chief Jailer; Robert L. Hubbard, Jailer; Cumberland County of N.C., Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 925

717 F.2d 925

James Earl BUIE, Appellant, v. Otis JONES, Sheriff; Frank Armstrong, Chief Jailer; Robert L. Hubbard, Jailer; Cumberland County of N.C., Appellees.

Nos. 82-6201, 82-6522.

United States Court of Appeals Fourth Circuit.

Argued Feb. 11, 1983.

Decided Sept. 15, 1983.

Kenneth A. Zick, II, Associate Professor of Law, Wake Forest University School of Law, Winston-Salem, N.C., Michele C. Bartoli, Third Year Law Student (Alexis C. Pearce, Third Year Law Student on brief) for appellant.

Larry J. McGlothlin and Garris Neil Yarborough, Fayetteville, N.C., for appellees.

Before RUSSELL and MURNAGHAN, Circuit Judges, and ROBERT R. MERHIGE, Jr., United States District Judge for the Eastern District of Virginia, sitting by designation.

DONALD RUSSELL, Circuit Judge:

James E. Buie, a State prisoner, appeals the grant of summary judgment in favor of the defendants in his civil rights actions under Section 1983, 42 U.S.C. against the sheriff, the deputy sheriff of Cumberland County (North Carolina) and the chief jailer of the Cumberland County Jail.

The action was first filed by the plaintiff pro se and an order was issued by the district court permitting the plaintiff to proceed pro forma pauperis. The actions were thereafter duly referred to the Magistrate. After a hearing the Magistrate dismissed the actions and granted summary judgment to the defendants on all the claims. This appeal by the plaintiff followed. We affirm.

Though the plaintiff asserted in his complaint some ten alleged constitutional violations, he has on this appeal confined his claims of error to three alleged deprivations. These are (1) a violation of his visitation rights with his minor children, (2) his subjection to a strip and body-cavity search in violation of his right to be free from unreasonable searches, and (3) an infringement of his right of free speech by reason of the opening of his mail by jail personnel, all while confined at the Cumberland County Jail. In pressing these claims, he sought both damages and injunctive and declaratory relief. The Magistrate dismissed his claim arising out of the strip search under the authority of Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). We affirm such dismissal. The plaintiff's claim that his mail was opened without his presence in violation of his First and Fourteenth Amendment rights involves a few isolated instances of plaintiff's mail being opened out of his presence. These isolated instances, however, did appear to have been contrary to the policy of the Jail and to have been either accidental or the result of unauthorized subordinate conduct and were not of constitutional magnitude. A pretrial detainee's visitation rights were not definitely established as a constitutional right during the time the plaintiff was incarcerated as a pretrial detainee at the Cumberland County Jail. For this reason damages are not recoverable. Accordingly declaratory and injunctive relief represented the only relief that would have been available to the plaintiff under his claim of a denial of visitation rights. Whether the plaintiff was entitled to such relief is the single issue for determination on this appeal.

To understand this issue of the plaintiff's right to visitation privileges, it is necessary to sketch the facts in this case. The plaintiff Buie is a convicted prisoner serving not a short sentence but a sentence of life imprisonment plus ten years imposed following his conviction of first degree burglary and felonious larceny. For purposes of service of his sentences, he has been committed by the North Carolina Department of Corrections to a State prison facility, the Odom Prison Unit, where, except for a short period in early 1980, he has been continuously confined since his conviction on October 7, 1977. His confinement in the Cumberland County Jail, about which he complains, ¹ is limited to two brief periods. Between his arrest in April, 1977 and his conviction on October 7, 1977, Buie had been confined as a pretrial detainee in the Cumberland County Jail for a period of about forty-odd days. ² In late March, 1980, Buie as a convicted prisoner was returned from Odom Prison Unit to the Cumberland County Jail for two temporary periods, one of about twenty-eight days and the other for about eight days, to enable him to participate in other litigation apparently in Cumberland County. It was on the last day of his presence at the Cumberland County Jail that Buie filed this Sec. 1983 action.

The plaintiff as a convicted prisoner under a life sentence plus a ten year additional sentence, is permanently assigned to a regular State prison installation under the control and supervision of the North Carolina Department of Corrections, the Odom Prison Unit. He has not been confined to the Cumberland County Jail since May, 1980 and, as a convicted prisoner under a life sentence plus, cannot reasonably be expected within the foreseeable future to be transferred back to the Cumberland County Jail which is primarily a place of confinement for pretrial detainees. Under those circumstances, any claim of Buie for injunctive or declaratory relief against the officials of the Cumberland County Jail would appear to be moot under the authorities of this Circuit. Inmates v. Owens, 561 F.2d 560 (4th Cir.1977), it would appear, is conclusive on this point.

In that case, the plaintiffs, like Buie, sought injunctive and declaratory relief with reference to conditions in the Portsmouth county jail while they were confined as pretrial detainees in such installation. The District Court dismissed "the suit because the complainants had not alleged that they, themselves, suffered from any of" the conditions of confinement complained of. An appeal followed. While that appeal was pending "all nine inmates who originally signed the complaint [were] released from the Portsmouth jail." In the interim between that release and the hearing on appeal, one of the original plaintiffs was rearrested and presumably was placed in the Portsmouth jail. We nonetheless dismissed the appeal as moot. In so doing, we were not deterred by the fact that one of the original plaintiffs had been rearrested from holding that, in the absence of proof that the rearrested plaintiff was "again being subjected to the alleged constitutional deprivations specified in the complaint since his rearrest," at the jail, the claim of "capable of repetition" was insufficient to provide a "safeharbor" against a finding of mootness. 501 F.2d at 562, n. 2. That case is accordingly direct authority for the dismissal of this action for mootness.

There is, however, a more compelling reason for the dismissal of Buie's claim to declaratory and injunctive relief than mootness. It is a reason grounded in constitutional principles as declared in City of Los Angeles v. Lyons, --- U.S. ----, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). In that case, the plaintiff sought damages and injunctive and declaratory relief because the city officers, stopping the plaintiff for a traffic violation, had allegedly, without provocation or justification subjected him to an...