Durkin v. Taylor

Citation444 F. Supp. 879
Decision Date10 November 1977
Docket NumberCiv. A. No. 77-0007-R.
CourtU.S. District Court — Eastern District of Virginia
PartiesThomas H. DURKIN v. John V. TAYLOR et al.

Leonard S. Rubenstein, Alexandria, Va., for plaintiff.

Patrick A. O'Hare, Asst. Atty. Gen., Richmond, Va., for defendants.


WARRINER, District Judge.

Thomas H. Durkin, a prisoner of the Commonwealth of Virginia confined at the Pre-Release Center in Chesterfield, brought this civil rights action pursuant to 42 U.S.C. § 1983. Jurisdiction of this Court is invoked under 28 U.S.C. § 1343(3) (1970). Plaintiff and defendants have each moved for summary judgment. For reasons given below defendants' motion will be granted and plaintiff's motion will be denied. The facts are as follows.1

Plaintiff had been approved for a weekend furlough beginning at 5:00 p. m. on 22 October 1976. At approximately 2:10 p. m. on that date plaintiff requested of a Center official that he be given his furlough pass immediately. Plaintiff was at this time participating in a work-release program and at 2:10 p. m. he was about to leave the Center for his place of employment. Plaintiff requested an early pass so that he could begin his furlough promptly at 5:00 p. m. rather than having to return to the Center after work for his pass. Making the trip from his place of employment back to the Center to secure his pass would have meant that plaintiff could not actually commence his furlough, approved for 5:00 p. m., until about 8:00 p. m. The Center official refused plaintiff's request for the early pass.

His request having been initially denied, plaintiff telephoned, successively, the offices of Robert M. Landon, Director of the Division of Adult Services, Virginia Department of Corrections, and of A. T. Robinson, Regional Superintendent of the Southern Correctional Units, attempting to obtain permission for the early pass. Plaintiff was unable to reach Landon or Robinson, but defendant Jordan, the Regional Superintendent of Work Release for the Southern Correctional Units, did return plaintiff's call. Plaintiff explained his request to Jordan, who stated that if plaintiff had not previously made special arrangements for leaving early his request would be denied. Plaintiff thereupon responded, "I am tired of chickenshit rules and will do my future communicating to the newspapers and TV." Jordan then asked plaintiff if he was aware of the identity of the person to whom he was speaking and warned him to weigh his actions in terms of his future participation in the work-release program. According to plaintiff's affidavit, Jordan further stated that "you (plaintiff) can be removed from the program." (Plaintiff's Affidavit, at 2). Plaintiff then asked whether Jordan was threatening him and, before Jordan could answer, plaintiff hung up the phone.

Jordan immediately called one Caudill, an officer at the Pre-Release Center, and instructed him to prevent plaintiff from leaving on his furlough. Jordan told Officer Caudill that he (Jordan) was proceeding to the Center to charge plaintiff with an institutional offense on account of plaintiff's behavior on the telephone. Jordan arrived at the Center at approximately 6:00 p. m. and met with plaintiff and defendant John V. Taylor. Taylor was Superintendent of the Center. Jordan questioned plaintiff and informed him that he was charging him with the institutional offense of "Using Vulgar or Insolent Language Toward an Employee or Non-Inmate." This conversation took place in Taylor's presence. The offense is classified in the prison regulations as a "Category C" infraction — a minor violation. Jordan also informed plaintiff that he was placing him on "administrative hold," which meant that plaintiff was confined to the Center (but not to his dorm or cell) pending disposition of the charges. Jordan also officially cancelled plaintiff's furlough. The institutional charge was officially served upon plaintiff at approximately 7:00 p. m. the same night by Officer S. E. Harrison, who was on duty that night at the Center.

Shortly after Officer Harrison had served plaintiff, Taylor instructed Harrison to refer the charge to him (Taylor) for disposition. A hearing on the charge was held before Taylor on 26 October, and Taylor listened as Jordan and plaintiff gave their versions of the 22 October telephone conversation. Plaintiff was allowed to question Jordan. Taylor found plaintiff guilty of the offense charged and sentenced him to ten days quarters restriction, suspended upon the condition of thirty days good behavior. Plaintiff appealed Taylor's decision to G. A. Reynolds, Superintendent of the Southern Correctional Units, who affirmed the decision. Plaintiff never served the ten days quarters restriction, but between 22 October and 26 October he lost two days of employment and he lost his weekend furlough. Had plaintiff been able to work the two days he missed, he would have earned a total of $112.00. Plaintiff requested of defendants that his 22 October furlough be re-instated but this request was denied, although plaintiff did apply for and receive weekend furloughs in November and December, 1976 and in January, 1977.

Plaintiff claims that the above facts describe three violations of his constitutional rights. First, he claims that the cancellation of his furlough, the two days suspension from participation in the work-release program and the disciplinary action which was imposed directly on account of the language he used on the phone to Jordan violated his rights to free speech as guaranteed by the First and Fourteenth Amendments to the Constitution. Second, plaintiff claims that the cancellation of his furlough and placement on administrative hold which deprived him of two days work, without prior notice and a hearing, denied him of his right to Due Process of Law under the Fourteenth Amendment to the Constitution. Third, plaintiff claims that he was denied a hearing before the "Officer in Charge," as guaranteed for minor violations by Division Guideline 861, § VI(B)(4)(b), and that this also constituted a denial of Due Process of Law. For these alleged wrongs plaintiff seeks damages and declaratory and injunctive relief.


In considering plaintiff's free speech claim this Court resorts to pronouncements of the Supreme Court which establish the perspective for analysis of claims of inmates under the Constitution. Recognition of the fact that prisoners, by virtue of their confinement, do not and cannot enjoy to the full extent the rights and privileges accorded free citizens has been longstanding. Thus, in Price v. Johnston, 334 U.S. 266, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948) the Court declared that "lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system." Id. at 285, 68 S.Ct. at 1060. More recently, in Jones v. North Carolina Prisoner's Union, 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977), the Court stated that:

Prisons, it is obvious, differ in numerous respects from free society. They, to begin with, are populated, involuntarily, by people who have been found to have violated one or more of the criminal laws established by society for its orderly governance. In seeking a mutual accommodation between institutional needs and objectives of prisons and the provisions of the Constitution that are of general application, this Court has repeatedly recognized the need for major restrictions on a prisoner's rights. These restrictions have applied as well where First Amendment values were implicated. (quotation marks and citations omitted).
Id., at 129, 97 S.Ct. at 2540.

More particularly, the validity of the restrictions which are to be imposed is to be determined in light of the objectives of the penal system:

In the First Amendment context . . a prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system. Thus, challenges to prison restrictions that are asserted to inhibit First Amendment interests must be analyzed in terms of the legitimate policies and goals of the corrections system, to whose custody and care the prisoner has been committed in accordance with due process of law.
An important function of the corrections system is the deterrence of crime. The premise is that by confining criminal offenders in a facility where they are isolated from the rest of society, a condition that most people presumably find undesirable, they and others will be deterred from committing additional criminal offenses. This isolation, of course, also serves a protective function by quarantining criminal offenders for a given period of time while, it is hoped, the rehabilitative processes of the corrections system work to correct the offender's demonstrated criminal proclivity. Thus, since most offenders will eventually return to society, another paramount objective of the corrections system is the rehabilitation of those committed to its custody. Finally, central to all other corrections goals is the institutional consideration of internal security within the corrections facilities themselves. It is in light of these legitimate penal objectives that a court must assess challenges to prison regulations based on asserted constitutional rights of prisoners.
Pell v. Procunier, 417 U.S. 817, 822-23, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974).

Additionally, Courts are to accord prison officials a measure of deference in assessing the constitutionality of an alleged interference with prisoner's First Amendment rights. This is no more than a recognition that courts are inexpert in and ill equipped to deal with matters of prison administration. Jones, 97 S.Ct. 2532; Pell, 417 U.S. at 826-28, 94 S.Ct. 2800; Procunier v. Martinez, 416 U.S. 396, 405-6, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974).

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