Hall v. Asher, Civ. No. 72-917-K.

• Decision Date: 26 February 1973
• Docket Number: Civ. No. 72-917-K.
• Parties: Gilbert R. X. HALL v. Thomas R. ASHER, President of A. C. L. U., Md. et al.
• Court: U.S. District Court — District of Maryland

355 F. Supp. 808

Gilbert R. X. HALL v. Thomas R. ASHER, President of A. C. L. U., Md. et al.

Civ. No. 72-917-K.

United States District Court, D. Maryland.

February 26, 1973.

Gilbert R. X. Hall, pro. se.

John Henry Lewin, Jr., Baltimore, Md., for defendants other than defendant Elsbeth L. Bothe.

Francis B. Burch, Atty. Gen., of Maryland, John P. Stafford, Jr., and Emory Alvin Plitt, Jr., Asst. Attys. Gen., of Md., for defendant Elsbeth L. Bothe.

FRANK A. KAUFMAN, District Judge.

Plaintiff,¹ confined in the Patuxent Institution at the time of the institution of this proceeding and until December 22, 1972, has sued pro se Thomas R. Asher, President of the American Civil Liberties Union (Md.) (hereinafter A. C.L.U.), Jack L. Levin, Vice-President of A.C.L.U., Edgar L. Feingold, Vice President of A.C.L.U., Elsbeth L. Bothe, Counsel for A.C.L.U., and John C. Roemer, III, Executive Director of A.C.L.U., under 42 U.S.C. § 1983 seeking damages and other appropriate relief. Jurisdiction is alleged to exist under 28 U.S.C. § 1343(3).

Plaintiff has in substance alleged in his unverified complaint that as far back as March, 1969, when he requested legal assistance from the A.C.L.U., he was told to contact the Legal Aid Prison Project; that on March 13, 1969 and on January 6, 1972, he received letters signed, respectively, by Constance Tredwell,² Administrative Assistant, and by defendant Roemer, in which plaintiff was advised to contact the Legal Aid Prison Project; and that the reason the A.C.L.U. refused him legal assistance was because Elsbeth L. Bothe, an A.C. L.U. member, was a member of the Board of Patuxent Institution. Plaintiff contends that such arbitrary refusal of the A.C.L.U. to render legal aid to him and to other Patuxent inmates violated his constitutional rights under Section 1983. Plaintiff seeks millions of dollars of compensatory and punitive damages against defendants.

All of defendants have answered the complaint admitting that "plaintiff wrote to the A.C.L.U. of Maryland on two occasions; that Constance Tredwell responded to the first letter on or about March 13, 1969; that Defendant John Roemer, III responded to the second letter on or about January 6, 1972, and suggested that Plaintiff should seek the assistance of Legal Aid in connection with Plaintiff's complaint that he might be placed in isolation . . . ." Defendants, inter alia, have pled limitations to all or part of plaintiff's allegations. In addition, Defendant Bothe has moved to dismiss the complaint or in the alternative for summary judgment on a number of grounds, including inter alia, limitations. In support of her motion, defendant Bothe has submitted an affidavit stating that she was formerly a member of the Institutional Board of Review of the Patuxent Institution as well as of its Advisory Board for Defective Delinquents but that she resigned from both of these boards as of January 1, 1972; that she had no knowledge of any request of the plaintiff to the A.C. L.U. to assist him in any matter until the complaint in this case was served upon her; that she is not now and has never been a member of the staff of the Patuxent Institution; that she has never personally or in any other way attempted to prevent or interfere with any consideration being given by the A.C.L. U. to any cause being espoused by any patient or inmate of the Patuxent Institution by reason of her membership on the aforesaid boards; and that she at no time personally or in any other way attempted to influence, protect, or otherwise control the action of any of the staff members at Patuxent Institution by reason of her membership in the A. C.L.U.

All of the defendants including defendant Bothe have also filed a motion for summary judgment based upon the supporting affidavit of defendant Roemer. Therein, Roemer has stated that as Executive Director of the A.C.L.U. his office receives about 5,000 requests for legal assistance each year; that requests which appear to him to raise substantial constitutional issues are referred by him to A.C.L.U.'s legal panel for possible action; that he responds to all other requests but declines to offer assistance; that a letter from plaintiff dated December 18, 1971 came to his attention concerning a complaint that plaintiff had been incarcerated on the basis of perjured testimony; and that because in his opinion the complaint did not raise the kind of issue with which the A.C.L.U. should concern itself, but rather concerned an issue which the Legal Aid Prison Project might be willing to investigate, he wrote plaintiff on January 6, 1972 advising him to contact the Legal Aid Prison Project for assistance. Roemer has further affied that neither defendant Bothe nor any other named defendant was shown or consulted by him concerning either of said letters; that in writing the letter of January 6, 1972 to plaintiff he acted independently of any other person connected with the A.C.L.U.; and that his response declining assistance was made solely for the reasons alluded to hereinabove. Additionally, in his affidavit, Roemer has denied all of plaintiff's allegations which appear to imply that the A.C.L.U. avoided handling Patuxent complaints while providing assistance in connection with inmate complaints from other state prison institutions, and has stated that the A.C.L.U. unsuccessfully attempted to participate in a lawsuit against Patuxent and on several occasions offered assistance to the Legal Aid Bureau in the prosecution of constitutional challenges against Patuxent. Xerox copies of all correspondence between plaintiff and the A.C.L.U.³ are attached to and made a part of Roemer's affidavit. Roemer has affied that neither he nor any of defendants was ever aware of or was consulted in connection with any of the correspondence involving plaintiff and A. C.L.U., except for his own part with regard to the aforementioned plaintiff's December 18, 1971 letter and Roemer's January 6, 1972 reply.

Plaintiff has filed no response to any of the documents filed herein by defendants.

Construing plaintiff's pro se complaint with utmost liberality, it appears that, in addition to alleging a 1983 suit, plaintiff has possibly alleged a claim under 42 U.S.C. § 1985(3)⁴ on the theory that defendants conspired to deny to him and to other Patuxent inmates equal protection of the laws by their refusal to provide to plaintiff and to such other inmates legal assistance, which refusal was motivated by an invidious, discriminatory, class-based animus.⁵ Plaintiff's ostensible Section 1983 and Section 1985(3) claims arise from the A.C.L.U.'s alleged refusal to handle his complaints.

All of the letters written by Hall to the A.C.L.U., or by the latter to Hall, were written and mailed prior to September 11, 1969 except for Hall's December 18, 1971 letter and Roemer's January 6, 1972 response. This suit was instituted on ...