Collins v. Cundy, 79-1015
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
| Writing for the Court | Before SETH, Chief Judge, and BARRETT and LOGAN; PER CURIAM |
| Citation | 603 F.2d 825 |
| Parties | Jessie W. COLLINS, Plaintiff-Appellant, v. Cecil CUNDY, Campbell County Attorney and Sheriff Hladky, Sheriff of Campbell County, Defendants-Appellees. |
| Docket Number | No. 79-1015,79-1015 |
| Decision Date | 17 August 1979 |
Page 825
v.
Cecil CUNDY, Campbell County Attorney and Sheriff Hladky,
Sheriff of Campbell County, Defendants-Appellees.
Tenth Circuit.
Decided Aug. 17, 1979.
Page 826
Jessie W. Collins, pro se.
Jeremy D. Michaels, Atty., Gillette, Wyo., for Sheriff Hladky, filed a memorandum for defendants-appellees.
Page 827
Before SETH, Chief Judge, and BARRETT and LOGAN, Circuit Judges.
PER CURIAM.
Jessie W. Collins has appealed the dismissal of his civil rights action brought pursuant to 42 U.S.C. § 1983.
In his complaint, Collins stated that he was incarcerated in the Campbell County Jail in Wyoming during August of 1977. While he was there, the sheriff (Hladky) and the county attorney (Cundy) allegedly refused to mail certain legal correspondence for him. Collins claimed the sheriff laughed at him and threatened to hang him. By way of damages, Collins sought $350,000 from each defendant.
The district court directed that affidavits be filed. After affidavits, motions, and other pleadings were filed, the judge entered findings of fact, conclusions of law, and dismissed the complaint as frivolous and without merit.
If resolution of crucial, disputed issues of fact had been required, trial by affidavit would have been procedurally improper. Collins v. Hladky, 603 F.2d 824 (10th Cir.) decided this day; Martinez v. Chavez,574 F.2d 1043, 1045 n.1; Taylor v. Gibson, 529 F.2d 709 (5th Cir. 1976). However, even if we accept all of the allegations in Collins's complaint as true, he can prove no set of facts to support his claim which would entitle him to relief.
The county attorney, on whom service of process was apparently not effected, is in any event immune. Atkins v. Lanning, 556 F.2d 485 (10th Cir. 1977); Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). Verbal harassment or abuse of the sort alleged in this case is not sufficient to state a constitutional deprivation under 42 U.S.C. § 1983. Boston v. Stanton, 450 F.Supp. 1049 (W.D.Mo.1978); Cf., Ellingburg v. Lucas, 518 F.2d 1196 (8th Cir. 1975).
As for the legal mail itself, we have read the letter in question and are not convinced that it falls within the scope of privileged mail entitled to constitutional protection under Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974). Although purportedly addressed to an attorney in Sundance, Wyoming, the letter concerns Collins's trouble with past due payments on a Sears freezer and might as easily have been written to the store's credit department. There is no claim made by Collins that, other than this one instance, he was denied the opportunity to mail the letter, nor can Collins make a substantive argument that he was denied access to the courts. See Twyman v. Crisp, 584 F.2d 352, 359 (10th...
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Recent Legal Developments
...32, 441-460. Cohen, F. (2008). Correctional health care: A retrospective. Correctional Law Reporter, 20(1), 5-6, 9, 12.Collins v. Cundy, 603 F.2d 825 (10th Cir. 1979).Collins, W. (2004). Jail and prison legal issues: An administrator’s guide. Hagerstown, MD: American Jail Collins, W. (2009a......