Burke v. Levi

• Citation: 391 F. Supp. 186
• Decision Date: 14 March 1975
• Docket Number: Civ. A. No. 629-72-R.
• Parties: Brian Mark BURKE et al. v. Edward H. LEVI et al.
• Court: U.S. District Court — Eastern District of Virginia

391 F. Supp. 186

Brian Mark BURKE et al. v. Edward H. LEVI et al.

Civ. A. No. 629-72-R.

United States District Court, E. D. Virginia, Richmond Division.

March 14, 1975.

Brian Mark Burke and others, pro se.

Raymond A. Carpenter, Asst. U. S. Atty., Richmond, Va., for defendants.

MEMORANDUM

MERHIGE, District Judge.

Plaintiffs, appearing pro se, are federal prisoners incarcerated at the Petersburg Federal Reformatory, Petersburg, Virginia. They bring this class action against the Attorney General of the United States and the Director of the Bureau of Prisons, challenging certain Bureau regulations and regulations of the Petersburg Reformatory which allegedly violate their rights under the First, Fifth and Ninth Amendments to the Constitution of the United States. Plaintiffs seek declaratory and injunctive relief as well as relief in the nature of a writ of mandamus. Jurisdiction of the Court is attained pursuant to 28 U. S.C. §§ 1361, 2201 and 2202.

The matter is presently before the Court on defendants' motion to dismiss and motion for summary judgment. Plaintiffs, given an opportunity to respond, have failed to do so. The Court, therefore, deems this matter ready for disposition upon the pleadings before it.

The gravamen of plaintiffs' complaint is that the defendants, their officers, agents and employees, arbitrarily and capriciously regulate inmate correspondence, incoming publications, inmate visits and the inmate newspaper and that such regulation denies plaintiffs of their liberty without due process of law and is part of a consistent pattern and practice to do so on the part of the defendants. Plaintiffs further ask the Court to promulgate fair rules and policies which will be consistent with the constitutional guarantees to which they are entitled.

Plaintiffs' allegations are, for the most part, an attack on the prison regulations as written rather than as applied. With respect to the regulation of inmate correspondence,¹ plaintiffs contend that the inspection, review and censorship of outgoing and incoming mail has a "chilling effect" on the exercise of their First Amendment rights. Moreover, they question the stated underlying purpose of this regulation to the extent it is designed to maintain prison security and to learn about problems confronting the inmates in order to alert the staff to any manner in which they may help in evaluating the inmate's progress.

As to the control of incoming publications,² plaintiffs complain that the existing policy is not coherent and that, by allegedly limiting access to certain educational materials, it frustrates the inmates' efforts to attend school upon release. They suggest that such a policy violates the spirit, if not the letter, of the First Amendment and contravenes their rights to due process of law.

In terms of visitation privileges,³ plaintiffs allege that they are subject to the whim or caprice of the caseworkers and that the current procedure of close surveillance of inmates and visitors in a closed environment and subsequent strip searches of inmates after visits are sufficient to satisfy the need to maintain order and security within the institution. The only factual allegations presented in this regard are contained in a motion to intervene as party plaintiffs filed by Robert Schoonover and Thomas Clay. Schoonover contends that, after being placed in isolation on January 5, 1973, his visits with his fiancee and another friend were restricted in duration to one hour on January 6, 1973, and to forty minutes on January 7, 1973, whereas, ordinarily, inmates in isolation are permitted full visiting privileges. Clay, on the other hand, bases his complaint on the fact that his request that a "young lady friend" be placed on his list of approved visitors was denied without his being given a reason for the denial by his Caseworker. Plaintiffs allege that the regulations and their administration unduly interfere with their First Amendment rights to freedom of association.

Finally, plaintiffs question the procedures pursuant to which the inmate newspaper is subject to review by a prison official prior to publication.⁴ They suggest that the screening of material by the newspaper staff itself is sufficient to satisfy the need to maintain security and that the policy complained of chills the inmates' exercise of their rights to "free speech."

Defendants, in support of their motion for summary judgment, contend that the procedures and regulations to which the plaintiffs object are reasonable and necessary to control and maintain discipline and authority at the Petersburg Federal Reformatory. Defendants have also submitted the affidavit of Mr. Bruce Grant, Acting Warden of the Petersburg Reformatory, to which are attached copies of the Bureau of Prisons and Petersburg Reformatory policy statements about which plaintiffs complain.

As this Court has previously recognized, the right of federal prison authorities to promulgate regulations necessary and proper to foster orderly prison administration is broad. Howard v. Warden, Petersburg Reformatory, 348 F.Supp. 1204 (E.D.Va.1972). Though federal courts clearly may inquire into a prison administrator's restriction of constitutional rights other than that of liberty itself, see e. g. Landman v. Royster, 333 F.Supp. 621 (E.D.Va.1971), the judgments of prison officials, while not binding on the Court, are entitled to considerable weight. Brown v. Peyton, 437 F.2d 1228 (4th Cir. 1971). Moreover, under the guise of protecting constitutional rights, federal courts do not have the power to, and must be careful not to, usurp the responsibility that rests with the executive branch for the management of prisons. It is only when the deprivations of prison confinement impose conditions of such onerous burdens as to be of constitutional dimensions that courts may intervene in prison management. Breeden v. Jackson, 457 F.2d 578, 580 (4th Cir. 1972).

Recent Supreme Court opinions have gone far in clarifying the extent to which the First Amendment rights of inmates in penal institutions may be limited. In terms of censorship of prisoner mail, the Court has recognized that the proper standard of review for any prison regulations restricting freedom of speech rests not upon certain assumptions about the legal status of prisoners but rather concerns but one aspect of the general problem of incidental restrictions on First Amendment liberties imposed in furtherance of legitimate governmental activities. Procunier v. Martinez, 416 U.S. 396, 409, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974). Applying the teachings of its prior decisions, such as Tinker v. Des Moines School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), and United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), to the context of prisons, the Court held in Procunier that the censorship of prisoner mail is justified if the following criteria are met:

First, the regulation or practice in question must further an important or substantial governmental interest unrelated to the suppression of expression. Prison officials may not censor inmate correspondence simply to eliminate unflattering or unwelcome opinions or factually inaccurate statements. Rather, they must show that a regulation authorizing mail censorship furthers one or more of the substantial governmental interests of security, order, and rehabilitation. Second, the limitations of First Amendment freedoms must be no greater than is necessary or essential to the protection of the particular governmental interest involved. Thus a restriction on inmate correspondence that furthers an important or substantial interest of penal administration will nevertheless be invalid if its sweep is unnecessarily broad. . . . 416 U.S. at 413-414, 94 S.Ct. at 1811.

With regard to the reformatory regulation on inmate correspondence under attack in the instant matter—Institution Policy Statement No. LEE-7300.14B—the Court finds that the criteria enumerated in Procunier v. Martinez, supra, 416 U.S. 396, 94 S.Ct. 1800 (1974), are met with the exception of that part of paragraph 5(e) of the Statement which permits the screening of incoming and outgoing mail for "(c)ontents which suggest . . . false, malicious, libelous or confidential information about individual inmates, government officials, and others." To the extent that this portion of the reformatory regulation exceeds the guidelines set down in paragraph 6(c)(1)-(5) of Policy Statement No. 7300.1A of the Federal Bureau of Prisons,⁵ it, in the words of Mr. Justice Powell, "fairly invite(s) prison officials and employees to apply their own personal prejudices and opinions as standards for prisoner mail censorship." Procunier v. Martinez, supra, 416 U.S. at 415, 94 S.Ct. at 1812. Moreover, defendants have failed to allege or prove that these broad restrictions on prisoner correspondence are necessary to further any governmental interest unrelated to the suppression of expression. Accordingly, as to plaintiffs' initial claim, the Court will grant defendants' motion for summary judgment in part. At the same time, the Court, finding no genuine issue of material fact, will, on its own motion, grant summary judgment for plaintiffs to the extent heretofore noted.

Turning to plaintiffs' second claim concerning the regulation of incoming publications, the Court finds the law is clear that "(t)he Constitution protects the right to receive information and ideas" and that "(t)his right to receive information and ideas, regardless of their social worth, . . . is fundamental to our free society." Stanley v. Georgia, 394 U.S. 557, 564, 89 S. Ct. 1243, 1247, 22 L.Ed.2d 542 (1969). Moreover, in recent years numerous courts have recognized that an inmate of a penal institution retains the right to read what he pleases and that "(o)nly a compelling state interest centering around prison security, or a clear and present danger of a breach of prison...