Evans v. Moseley, 701-70

• Decision Date: 08 February 1972
• Docket Number: No. 701-70,71-1057.,701-70
• Citation: 455 F.2d 1084
• Parties: Stephen Luther EVANS, Appellant, v. R. I. MOSELEY, Warden, United States Penitentiary, Leavenworth, Kansas, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

455 F.2d 1084 (1972)

Stephen Luther EVANS, Appellant, v. R. I. MOSELEY, Warden, United States Penitentiary, Leavenworth, Kansas, Appellee.

Nos. 701-70, 71-1057.

United States Court of Appeals, Tenth Circuit.

February 8, 1972.

Theodore M. Smith, of Myrick & Smith, Denver, Colo., for appellant.

Richard L. Meyer, Asst. U. S. Atty. (Robert J. Roth, U. S. Atty., on the brief), for appellee.

Before PHILLIPS, HOLLOWAY, and McWILLIAMS, Circuit Judges.

McWILLIAMS, Circuit Judge.

Stephen Luther Evans, an inmate in the United States Penitentiary at Leavenworth, Kansas, brought two separate actions in the United States District Court for the District of Kansas, each of which concerned the conditions of his incarceration. In each instance Evans suffered an adverse judgment and he now appeals. Although on appeal the two matters have been consolidated, each will be considered separately.

No. 71-1057 pertains to an action instituted by Evans in the district court in March 1970. This was a pro se petition and was labelled as one for habeas corpus and for ancillary relief in the nature of a declaratory judgment, an injunction and mandamus. The petition is difficult to follow, but it would appear that its main thrust is the allegation that Evans had been placed in so-called solitary confinement within the prison because he was a black. Minor complaint is also made about the fact that certain legal materials were allegedly taken from him.

On the basis of these several allegations, the trial court issued an order to show cause to the respondent, namely, the then warden of the penitentiary, the trial court noting that "some allegations, if true, are of constitutional magnitude." Thereafter, the warden filed an answer which generally denied the allegations contained in Evans' petition and affirmatively alleged that Evans had been placed in the "control unit" because of his continuing efforts to organize within the prison walls, over the objections of the prison authorities, a chapter of the Black United Front.

Upon trial, Evans, who was then represented by court appointed counsel, as well as several other prisoners who had also brought suit, testified at considerable length concerning the matters alleged in the pleadings. In opposition to such testimony, the trial court also received the testimony of numerous prison officials. In detailed findings and conclusions the trial court held, in essence, that Evans was not being subjected to cruel and unusual punishment and that none of his constitutional rights were in anywise being violated. In line with its findings the trial court entered a judgment and order dismissing the action and from such judgment and dismissal Evans now appeals.

No. 701-70 pertains to a proceeding subsequently brought by Evans, again pro se, in November 1970. This second action was labelled as one for an injunction and mandamus and the gist of this particular proceeding was that on August 25, 1970, the prison officials had allegedly taken from him all his law books and materials which he was then using to prepare legal papers whereby he proposed to seek judicial redress of his various grievances. The petition contains a suggestion that in so doing the prison officials were retaliating for his having brought the earlier proceeding. It is difficult to tell from the petition whether these confiscated books and materials were also being used to assist other inmates in securing a judicial redress of their grievances. In any event, the trial court summarily dismissed this petition "without prejudice," on the ground that Evans had failed to exhaust the administrative remedies said to have been provided by the prison authorities. Evans now appeals the judgment of dismissal.

In this court counsel frames the issues to be resolved as follows: (1) Is it constitutional for a prison inmate to be placed in solitary confinement solely because he is black? (2) Does a prison inmate have a constitutional right to communicate by letter with an attorney at law? And (3), does a prison inmate have a constitutional right to have in his possession legal books and papers which he is using to assist himself and others in seeking a redress of their grievances? We shall consider these matters severally.

The question as to the propriety of Evans' confinement in so-called solitary is raised in No. 71-1057. As indicated, in that particular proceeding the trial court held a full hearing into the matter of Evans' confinement and concluded that Evans was not being subjected to cruel and unusual punishment and that the prison officials had not acted arbitrarily or capriciously in transferring Evans to what they called the "control unit," as opposed to "solitary." We agree.

We find nothing in the record to support the claim that Evans was thus confined solely because he was black. On the contrary, the evidence was that Evans was transferred to the control unit because he (and others) was apparently bound and determined to establish within the prison a chapter of the Black United Front against the wishes of the prison authorities. Additionally, the evidence indicated that the group dedicated to forming the chapter of the Black United Front was becoming more and more belligerent in their attitude and the fact that Evans did not himself engage in the fights which did occur nor participate in a march on the warden's office does not absolve him. The evidence adduced upon hearing clearly establishes that Evans was a part of the group that apparently would establish the chapter of the Black United Front regardless of the desires of the prison authorities. In his petition, Evans alleged that though he initially was...