Glenn v. Wilkinson, 1389.

• Decision Date: 26 February 1970
• Docket Number: No. 1389.,1389.
• Parties: Eddie GLENN, Plaintiff, v. Fred T. WILKINSON and Harold R. Swenson, Defendants.
• Court: U.S. District Court — Western District of Missouri

309 F. Supp. 411

Eddie GLENN, Plaintiff, v. Fred T. WILKINSON and Harold R. Swenson, Defendants.

No. 1389.

United States District Court, W. D. Missouri, Central Division.

February 26, 1970.

Joseph S. McDuffie, St. Louis, Mo., for plaintiff.

John C. Danforth, Atty. Gen., State of Missouri, Howard L. McFadden, Gen. Counsel, Dept. of Corrections, Jefferson City, Mo., for defendants.

MEMORANDUM OPINION AND ORDER

JOHN W. OLIVER, District Judge.

I.

This is a Section 1983, Title 42, United States Code, action brought by an inmate of the Missouri Penitentiary against the Director of the Missouri Department of Corrections and the Warden of that institution. Plaintiff was convicted of first degree murder in the Circuit Court of the City of St. Louis and was sentenced to death in that court on November 27, 1965. That conviction was affirmed on direct appeal by the Supreme Court of Missouri on May 13, 1968. See State v. Glenn (Sup.Ct. of Mo. en Banc, 1968) 429 S.W.2d 225.

When plaintiff filed this case, and at the time hearings in this case were held, he was confined in an eight by ten foot cell in the B-South unit, the punitive section of the Maximum Security Unit of the Missouri Penitentiary. Also housed in B-South were the most incorrigible of prisoners segregated from the general prison population and prisoners who had become insane. In short, B-South was the most restricted place in the entire penitentiary.

In various pleadings plaintiff alleged that the conditions of his confinement constituted cruel and unusual punishment and other violations of his federally protected constitutional rights. Most of plaintiff's specific complaints arose out of the fact that plaintiff was being kept in the punitive segregation area and therefore suffered all the disabilities of inmates in that unit.

Out of deference to the then pending postconviction proceeding in the State trial court,¹ we delayed the time within which the parties could file their respective suggested findings of fact and suggested conclusions of law. The last paragraph of our order fixing the time for the filing of the parties' suggestions provided that "if the defendants, in light of the testimony and evidence adduced at trial, have in fact or intend in the near future to make any changes in the conditions of plaintiff's confinement, defendants shall so state at the time defendants' suggested findings and conclusions are filed * * *."

On January 15, 1970 defendants filed a motion to dismiss for mootness. That motion set forth some of the circumstances which plaintiff claims violate his federally protected right not to be subjected to cruel and unusual punishment. Defendants' motion then alleged:

That all inmates of the Missouri State Penitentiary under the death sentence, including the petitioner, have been moved to new quarters in a separate facility with wholly different conditions from those described and complained of in the petition as more particularly described in the attached affidavit and exhibit.

The affidavit attached in support of that motion, in the form of a verified interoffice communication from Warden H. R. Swenson to Mr. Howard L. McFadden, General Counsel for the Department of Corrections, dated January 12, 1970 stated:

Subject: PRISONERS UNDER DEATH PENALTY

On January 7, 1970, the inmates confined in the Receiving Cells at MSP were transferred to Moberly. We then proceeded to prepare this unit for the housing of inmates under death penalty. On Saturday morning, January 10, 1970, the following inmates under the penalty of death were transferred to these cells:

Cell 1—Eddie Steve Glenn

Cell #2—John Scott and William Coleman

Cell #3—Terry Cobb

Cell #4—Louis Scott

Cell #5—Charles Beal

Cell #6—Theodore Duisen

You already have the Transcript of Serial Record, showing the offense for which the inmate was convicted, the date he was received, etc.

The six Receiving Cells are equipped with two beds in each and have running water and toilets. Each cell is also equipped with a portable television set in good operating condition. We have initiated a daily program for these inmates and we have some equipment to bolster the program, including a new pool table, medicine ball, etc. Two inmates will be permitted outside of the cell block each morning and afternoon which means that every inmate will have a recreation period of two hours or more out of every day and a half. One inmate has been selected as cleaner, so he will be out most of the time.

We have issued good eating utensils and the zone lieutenant is transporting each meal from the main kitchen in thermos containers and the food is then served in cafeteria style. We will make changes from time to time in order to give these inmates as much variety as possible. We have established medical and security procedures (copy of security procedures attached).

A number of us have been down to the receiving section after the inmates were moved (Director, Warden, AWC, AWT, etc.) and we all found that these inmates were exceedingly pleased with the new program. They were especially grateful for the fact that the unit is quiet and that they can read, sleep or whatever without distraction.

I think I should add that we did a lot of work in the two days that this unit was empty—we installed new mattresses, pillows, sheets and blankets. We installed new furniture in each cell consisting of new metal locker, table and chair. A refrigerator has been provided to store a few essential items. A refrigerated water cooler is being installed today. Eating utensils consist of new plastic trays, bowls, cups, knives, forks and spoons. An exercise bicycle is being repaired and will be issued in a few days. A table and typewriter have been issued for inmates' use in preparing legal material.

The newly promulgated regulations applicable to the new unit, in addition to providing for appropriate security maintenance of the new unit, provided that:

5. The inmates housed in this unit will be fed from the main kitchen under the supervision of the Zone I Lieutenant. The Zone Lieutenant will personally transport the food to this unit.

6. The inmates will come to the serving window to get their trays, then return to their cells to eat.

7. The doctor will visit this unit weekly and provide call service from the hospital.

8. Incoming mail will be picked up by the evening watch officer. Outgoing mail will be handled by the Receiving Unit Sergeant.

9. One inmate from this group will be selected by the Zone Lieutenant and approved by the Associate Warden of Custody as unit cleaner. Individual cells will be cleaned by the occupants.

10. Bathing and shaving will be done during exercise periods. Haircuts on Saturdays only and will be supervised by the Zone Lieutenant.

11. The security cage doors and the cell doors will be locked at all times except for necessary movement. The cell doors may be left open during mealtime but locked immediately after.

12. Daily recreation periods outside the cage will be allowed. There will be no more than two inmates (plus the cleaner) at a time outside their cells. Recreation and television privileges will be forfeited for infraction of rules.

Counsel for plaintiff was requested to confer with plaintiff and to file an appropriate response to defendants' motion. Such response stated "that the facts stated in defendants' affidavit and exhibit are substantially true according to Eddie Glenn as related to this counsel on the 27th day of January, 1970," with certain variances which will be noted and discussed later.

It is obvious that changes voluntarily made by the defendants on January 10, 1970 have a profound effect upon a number of questions presented in the pending litigation. But not all the questions presented and litigated were mooted by the changes made in accordance with the Warden's memorandum. It is therefore necessary that we deny defendants' motion to dismiss.

II.

The defendants' voluntary and highly commendable action of moving all death sentence prisoners, including plaintiff, to a facility entirely separate from incorrigible prisoners leaves for determination the question of whether any of plaintiff's federally protected rights are violated under the new situation.

It is not necessary to make any findings or to state any conclusions concerning plaintiff's allegations concerning the conditions of plaintiff's former confinement in the punitive portion of the maximum security unit because plaintiff's removal therefrom and the changes reflected in the Warden's memorandum of January 12, 1970 have in fact mooted many of the questions presented. Plaintiff's response to defendants' pending motion concedes that "the facts stated in defendants' affidavit and exhibit are substantially true."² All of the questions presented by plaintiff's complaint and others which were litigated under Rule 15(b) of the Rules of Civil Procedure, however, were not mooted by the recent establishment of new quarters for death sentence inmates. It is therefore necessary that such questions be decided.

III.

The record requires a finding that the only major difference in the present treatment of death sentence inmates in comparison to that given other prisoners is that the death sentence inmate cannot commingle with the general prison population. We expressly find that under the new situation all rights and privileges accorded inmates in the general prison population are now being accorded death sentence inmates except the right to be commingled with the general prison population. We conclude that plaintiff's confinement as a death sentence prisoner in an entirely separate facility within the penitentiary under the circumstances stated in the Warden's memorandum of January 12, 1970 separate both from a maximum security unit within which incorrigible and insane inmates are housed, and also separate from the general prison population, does not, under applicable principles of law, violate any of plaintiff's...