Fowler v. Graham

• Decision Date: 07 March 1979
• Docket Number: Civ. A. No. 78-1767.
• Citation: 478 F. Supp. 90
• Court: U.S. District Court — District of South Carolina
• Parties: Stanley W. FOWLER, Plaintiff, v. Camille G. GRAHAM, Warden, Maximum Security Center; Johnny E. Johnson, Chief of Security, Maximum Security Center; Mr. Arehart, Asst. Supervisor, Maximum Security Center, Defendants.

478 F. Supp. 90

Stanley W. FOWLER, Plaintiff, v. Camille G. GRAHAM, Warden, Maximum Security Center; Johnny E. Johnson, Chief of Security, Maximum Security Center; Mr. Arehart, Asst. Supervisor, Maximum Security Center, Defendants.

Civ. A. No. 78-1767.

United States District Court, D. South Carolina, Columbia Division.

March 7, 1979.

Stanley W. Fowler, pro se.

Emmet H. Clair, Asst. Atty. Gen. for the State of S. C., Columbia, S. C., for defendants.

ORDER

HEMPHILL, District Judge.

In this § 1983 case initiated by a state prisoner confined in the Maximum Security Center (MSC) of the South Carolina Department of Corrections (SCDC), two separate causes of action are alleged against three officials of the MSC. For a first cause of action, the plaintiff complains about the opening of a letter returned to him as unmailable during August of 1978 by defendant Ernest F. Arehart, an assistant correctional supervisor of the SCDC. For a second cause of action, he complains of body searches and daily shakedowns of his cell in MSC for the period commencing on July 19, 1978, and ending six days later.¹ The plaintiff requests damages from Arehart, the former Warden of MSC (Graham), and the chief correctional officer of MSC (Johnson), together with an injunction to restrain further incidents of the types he describes.²

The defendants have filed an answer and a motion for summary judgment. The motion is based on the pleadings and an affidavit by defendant Johnson, to which there are attached excerpts from the Inmate Guide, which states the correspondence policy affecting SCDC inmates, and a SCDC form 18-5, by use of which an inmate may request a change in his approved list of visitors or mail correspondents.

Johnson avers that the letter rejected for mailing was intended for a prisoner confined in a Georgia prison. The letter was inspected in accordance with established prison policy because it falls in a class of restricted correspondence which is subject to inspection, and because all communications intended for other inmates are read for security reasons at MSC. Johnson adds that plaintiff has not requested that the Georgia addressee of the letter be added to his list of approved correspondents, and that until this is done, and approval is entered on his record, the prison's policy prohibits the plaintiff from writing to the Georgia prisoner.

As for shakedowns and searches, Johnson avers that plaintiff's cell was shaken down in a routine, random shakedown at MSC on July 20, 1978, at 4:40 P.M. A second shakedown was called on July 25, 1978, on the basis of an informant's tip that plaintiff had a knife (shank) hidden in his cell. Although no shank was found, plaintiff flushed an unidentified object down the commode in his cell before officers entered, according to Johnson. The affiant categorically denies that "cavity" searches are made by correctional officers. According to Johnson, only medical personnel perform body cavity searches. During shakedowns at MSC, inmates are required to strip, and officers conduct skin searches to look for secreted contraband items, but no officer touches an inmate's body during these skin searches, which are described in the officer's affidavit.

The plaintiff has received an explanation of summary judgment procedure, and he has been given an opportunity to oppose the motion for summary judgment filed by the defendants. The explanation informed plaintiff of the pertinent provisions of Rule 12 and Rule 56, Federal Rules of Civil Procedure, and he has been alerted to the contingency of a dismissal of his action if the material filed by the defendants is not opposed adequately.³

The plaintiff's response, filed December 1, 1978, consists of his reply, an affidavit by inmate Albert D. Manley, and three affidavits by the plaintiff. Two of the plaintiff's affidavits, and Manley's, were sworn to on August 30, 1978, which date fell long before the complaint was filed, and obviously before the motion for summary judgment was served on the plaintiff. Therefore, these three affidavits cannot be considered as being responsive to the exhibits attached to the defendants' motion.⁴ The reply adds no factual averments that are material to any issue involved in this case. The lengthy affidavit of the plaintiff, verified on November 29, 1978, as is the reply, contradicts the affidavit of defendant Johnson as to the frequency of the shakedowns between July 19th and July 25th, but all other averments of the plaintiff concern issues that were not raised in his complaint. The new matters raised include plaintiff's claim that his trial transcript was taken from him (with other property) when he was placed in MSC after he was recaptured following an escape, and that defendant Arehart has refused to return the transcript which plaintiff states he needs for "my appeal."⁵ The remaining new matters raised in plaintiff's affidavit are his claim that officers at MSC grant other prisoners more favorable treatment than he receives, and a speculative claim that he and others who are required to wear handcuffs while out of their cells might be assaulted by other inmates who do not wear such restraints while doing cleaning work at MSC.⁶

The plaintiff avers that his cell was shaken down four times between July 19th and July 25th, not twice as defendant Johnson avers. Plaintiff avers that Arehart and two other officers not named searched his cell on July 19th, and left it in a state of disarray. Officer Taylor checked it on July 20th with a metal detector. Officers Arehart, Jones and Finkley again shook his cell down on July 21st, and officers Sanders, Coleman and Miller followed up with another shakedown on July 23rd.⁷

According to the plaintiff, he attributes the shakedowns to an effort by officers to harass him so as to incite him to "trouble" he is "trying to avoid."

The plaintiff's belated claim about the transcript will have to be asserted in a new complaint. It is inappropriate to inject new matter into a case after issues are joined.⁸ If, therefore, the plaintiff means to allege that his access to the courts is being denied by the withholding of his transcript, he is at liberty to submit a new complaint.⁹ The remaining new matters set out in the November 29th affidavit do not involve matters which represent violations of the plaintiff's constitutional rights, considering his classification as an admitted escapee. A prisoner in maximum security has no right to unlimited telephone use, and plaintiff's allegation that other prisoners receive more favorable treatment than he receives does not present a constitutional issue.¹⁰ As already observed, the wholly speculative allegation that the plaintiff could be assaulted by another inmate is not sufficient to state a claim under such authorities as Woodhous v. Virginia, 487 F.2d 889 (4th Cir. 1973), and Gathercole v. Edwards, No. 75-1615 (4th Cir., June 25, 1975).¹¹ If the plaintiff is apprehensive for his own personal safety when placed in contact with other prisoners, he should initiate a request through proper prison channels to be placed under protective custody. If, on the other hand, he knows of a specific inmate who has expressly threatened to harm him if given an opportunity to do so, plaintiff should inform the Warden of MSC of the identity of such person. In that event, the prison official may have an obligation to isolate the prisoner who has expressed the threat, if upon proper investigation the official determines that the threat appears to be more than an idle one.¹²

Reverting to the plaintiff's original claims about the single letter returned to him after being opened, cell shakedowns, and body searches, only the last mentioned claim requires more than a summary rejection. Mail to and from prisoners, sent or received by other prisoners, does not have the same strong protection from scrutiny under the First Amendment that other mail receives. Prison authorities may execute the compelling state interest in security by screening inmate to inmate correspondence. O'Connor v. Dixon, 588 F.2d 1350 (4th Cir., 1978); Williams v. Ward, 404 F.Supp. 170 (S.D.N.Y.1975).¹³ As to the requirement for the plaintiff to seek the addition of his alleged Georgia prisoner-correspondent to his approved list of correspondents, such requirement is reasonable, and no constitutional issue is raised by the procedure. The plaintiff's claim about the shakedowns of his cell in MSC is also lacking in merit. Numerous decisions in this district affirm the right of prison officials to conduct random shakedowns of cells in the South Carolina Department of Corrections. For example, in Clay v. Martin, Civil Action No. 77-338, Judge Simons wrote, in an Order filed on May 19, 1977:

"* * * The claim of these two prisoners that they have a right to be free of a shakedown of their cells for contraband is unfounded. Shakedowns are a sine qua non of prison security and discipline, and the Fourth Amendment stops short of protecting a convicted felon's cell. United States v. Robinson, 506 F.2d 1398 (4th Cir. 1974); United States v. Hitchcock, 467 F.2d 1107 (9th Cir. 1972), certiorari denied 410 U.S. 916 93 S.Ct. 973, 35 L.Ed.2d 279 (1973); Hoitt v. Vitek, 361 F.Supp. 1238, 1254-55 (N.H.1973), aff'd sub nom. Laaman v. Vitek, 502 F.2d 1158 (1st Cir. 1973) . . .."¹⁴

The Court of Appeals affirmed Judge Simons' conclusion on September 15, 1977, in Clay and Samuels v. Martin, et al., No. 77-1897.

The large number of cases submitted to this Court by prisoners confined in the SCDC who complain of administrative punishment for possession of contraband attests the need for frequent shakedowns of cells at MSC, and other institutions in the system. These cases have revealed that prisoners will resort to numerous means to secrete contraband, and to traffic illegally in drugs, weapons, and other items of contraband. Frequent shakedowns to eliminate as much contraband as officers can discover do not offend...