Cofone v. Manson

• Decision Date: 17 March 1976
• Docket Number: Civ. No. H-74-367.
• Citation: 409 F. Supp. 1033
• Court: U.S. District Court — District of Connecticut
• Parties: Louis COFONE v. John R. MANSON, Commissioner, Department of Correction, et al.

409 F. Supp. 1033

Louis COFONE v. John R. MANSON, Commissioner, Department of Correction, et al.

Civ. No. H-74-367.

United States District Court, D. Connecticut.

March 17, 1976.

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Martha Stone, West Hartford, Conn., for plaintiff.

Stephen J. O'Neill, Asst. Atty. Gen., Hartford, Conn., for defendants.

MEMORANDUM OF DECISION

BLUMENFELD, District Judge.

This civil rights action, brought by an inmate at the Connecticut Correctional Institution at Somers, Connecticut, challenges the procedures adopted by the Department of Correction for screening incoming mail.

The action is brought pursuant to 42 U.S.C. § 1983 (1970), and jurisdiction exists pursuant to 28 U.S.C. § 1343(3) (1970). The defendants, sued in both their individual and official capacities, are John Manson, the Commissioner of Correction for the State of Connecticut; Carl Robinson, the Warden at Somers; and James Singer, an Assistant Warden, also at Somers.

The plaintiff challenges four different practices of the Department of Correction. His first and broadest attack is a constitutional challenge to the procedure for screening incoming literature, including the present procedure for appealing from decisions which refuse entrance to certain publications.¹ His second challenge concerns the right of the prison to open privileged communications between attorneys and their inmate clients.² Third, he attacks the constitutionality of regulations which authorize the warden to single out an individual prisoner for a complete "screen" of all his incoming mail. Finally, he alleges that on several occasions his mail was delayed or opened out of his presence, in violation of the prison's own regulations which require that privileged mail be opened in the presence of the inmate.

Although the plaintiff originally sought injunctive as well as declaratory relief, his complaint was subsequently amended to remove all claims for injunctive relief and thereby avoid the necessity of convoking a three-judge court. See Steffel v. Thompson, 415 U.S. 452, 457 n. 7, 94 S.Ct. 1209, 1214, 39 L.Ed.2d 505, 513 (1974).

I. Exhaustion

The defendants' first claim is that this complaint should be dismissed because the plaintiff has failed to exhaust his administrative remedies.

In Steffel v. Thompson, 415 U.S. 452, 472-73, 94 S.Ct. 1209, 1222, 39 L.Ed.2d 505, 522 (1974), the Supreme Court stated:

"When federal claims are premised on 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3) — as they are here — we have not required exhaustion of state judicial or administrative remedies, recognizing the paramount role Congress has assigned to the federal courts to protect constitutional rights."

This statement was repeated in Ellis v. Dyson, 421 U.S. 426, 432-33, 95 S.Ct. 1691, 1695, 44 L.Ed.2d 274, 281 (1975).

The Court of Appeals for this circuit, although conceding on the issue of judicial exhaustion, has interpreted the statements regarding administrative remedies in both Steffel and Ellis as dicta, and has refused to alter the exhaustion requirement in the absence of a more direct statement by the Supreme Court.³ Fuentes v. Roher, 519 F.2d 379, 386 (2d Cir. 1975); Plano v. Baker, 504 F.2d 595, 597 (2d Cir. 1974).

The court's most recent discussion of this issue, occurring in the context of a similar literature case, Morgan v. LaVallee, 526 F.2d 221 (2d Cir. 1975), disputes the proposition that the Steffel statement was dictum. However, this discussion is itself dictum, since, rather than abandoning the exhaustion requirement, the panel found that on the facts before it the prisoner's administrative remedies had been exhausted. The holding of that case, however, serves as the basis of decision for the exhaustion argument here. There the court held that:

"Before the court below may relinquish its § 1983 jurisdiction it must, on the most narrow reading of the cases, be positively assured — it may not presume — that there are speedy, sufficient and readily available administrative remedies remaining open to pursue, an assurance certainly not attainable on this record."

526 F.2d at 224.

A description of Mr. Cofone's attempts to seek relief within the prison system leaves no room for arguing that such an administrative remedy was either speedy or readily available. After learning that the publications in question had been rejected, Mr. Cofone attempted to appeal to the Central Office Library Committee on several occasions. In one attempt, he wrote directly to the Committee in Hartford. After a delay of almost a month, he received a letter from the Commissioner telling him that he should have written in care of the Commissioner or his assistant and suggesting that he begin again at the institution level.⁴

The final position of the defendant has been that the plaintiff has the duty to provide the Library Committee with a selection of three or four recent issues before a specific publication can be approved.⁵ Since I hold that requirement is in itself an unconstitutional burden, and since the facts as presented at the hearing in this matter demonstrate that the Department of Correction has not presented the plaintiff with a "speedy, sufficient and readily available administrative remedy," I find that the plaintiff's efforts to appeal the exclusions have relieved him of any further duty to exhaust the remedies available within the correctional system, if, in fact, such a duty does exist.⁶

II. Censorship of Incoming Publications

All publications mailed to inmates in the Connecticut correctional system are, upon their arrival at the prison, screened by the librarian.⁷ If he finds there to be a serious possibility that the publication might meet one of the "Criteria for Rejection"⁸ promulgated by the Commissioner, he refers the offending publication to a body euphemistically called the prison "Library Committee."⁹ If the committee decides to reject the publication, the inmate-addressee is notified of the decision, the reason, and his avenue of appeal.¹⁰ If the inmate chooses to appeal the decision he can obtain another review by supplying the committee with three to four issues of the periodical.¹¹ If the Library Committee again decides against him, he can appeal that decision to the Central Office Library Review Committee, with overall responsibility for the Connecticut prison system, whose decision is final.¹² Once a publication has been approved, a higher burden is placed on the individual institutions if they desire to reject a specific issue.¹³

An assessment of the validity of the plaintiff's challenges to both the rejection criteria and the appeals process must begin with Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974). In that decision the Supreme Court, after examining a series of earlier lower court decisions held that

". . . 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 limitation 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 413-14, 94 S.Ct. at 1811, 40 L.Ed.2d at 240.

But Procunier does not explicitly govern the decision of this suit for two reasons. First, Procunier was based on the first amendment rights of the prisoners' correspondents; the question of the prisoners' rights was specifically reserved. 416 U.S. 408, 94 S.Ct. 1808-09, 40 L.Ed.2d 237. Second, Procunier dealt with individual letters addressed to prisoners; the question of mass mailings was also explicitly left open. 416 U.S. 408 n. 11, 94 S.Ct. 1809, 40 L.Ed.2d 237.

The existence of prisoners' first amendment rights, which had been recognized earlier in this circuit, Goodwin v. Oswald, 462 F.2d 1237 (2d Cir. 1972); Fortune Society v. McGinnis, 319 F.Supp. 901 (S.D.N.Y.1970); was confirmed by the Supreme Court in Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495, 501 (1974).

This leaves for examination the "different considerations which come into play in the case of mass mailings." The first consideration is that in this case, as in Procunier, the regulations in question affect more than just the inmates. By censoring incoming publications the state has also placed a burden on freedom of the press. Grosjean v. American Press Co., 297 U.S. 233, 248-50, 56 S.Ct. 444, 448-49, 80 L.Ed. 660, 667-68 (1936). Cf. Pell v. Procunier, 417 U.S. at 829-35, 94 S.Ct. at 2807-10, 41 L.Ed.2d at 505-09. Furthermore, the nature of the material being censored, impersonal publications of general circulation, open to inspection and even subscription by the prison administration, necessarily poses much less of a security risk to the institution than does regular mail, in closed envelopes, intended to communicate a particular, personal message from the sender to the addressee.¹⁴ For these reasons I concur with those courts which have held that in order to censor incoming publications, prison administrators must at least comply with the standards set out in Procunier v. Martinez. Hopkins v. Collins, 411 F.Supp. 831 (D.Md.1975); Aikens v. Lash, 390 F.Supp. 663, 667 (N.D.Ind. 1975); Gray v. Creamer, 376 F.Supp. 675, 678 (W.D.Pa.1974); McCleary v. Kelly, 376 F.Supp. 1186, 1192 (M.D.Pa.1974). See also Paka v. Manson, 387 F.Supp. 111 (D.Conn...