Hisel v. Upchurch, CIV 89-1666-PHX-EHC (MM).

• Decision Date: 16 April 1992
• Docket Number: No. CIV 89-1666-PHX-EHC (MM).,CIV 89-1666-PHX-EHC (MM).
• Citation: 797 F. Supp. 1509
• Parties: Ricky Lee HISEL, S. James Cello-Whitney, Jr., and James M. Shuff, Plaintiffs, v. James R. UPCHURCH, et al., Defendants.
• Court: U.S. District Court — District of Arizona

797 F. Supp. 1509

Ricky Lee HISEL, S. James Cello-Whitney, Jr., and James M. Shuff, Plaintiffs, v. James R. UPCHURCH, et al., Defendants.

No. CIV 89-1666-PHX-EHC (MM).

United States District Court, D. Arizona.

April 16, 1992.

COPYRIGHT MATERIAL OMITTED

Ricky L. Hisel, pro se.

S. James Cello-Whitney, pro se.

James M. Shuff, pro se.

Atty. Gen.'s Office, Asst. Atty. Gen. Phoenix, Ariz., for defendant Robert J. Sorce.

ORDER

CARROLL, District Judge.

On March 16, 1990, Plaintiff, S. James Cello-Whitney, (Cello-Whitney) signed a "General Release" whereby he agreed to dismiss with prejudice each of his cases pending in Arizona and Washington, concerning matters arising from his incarceration in Arizona, in exchange for his immediate transfer to the custody of the State of Washington. (Exhibit B to Doc. 92.)

On March 19, 1990, an Order of Transfer was issued transferring Cello-Whitney to a correctional facility in Washington. He was transferred on March 20, 1990. (Exhibit 7 to Doc. 135.)

On March 21, 1990, Cello-Whitney filed a "Motion for Order of sic Show Cause and Vacating of sic Plaintiffs sic Signature." (Doc. 60.) He filed virtually the same motion in each of his active cases pending before this Court.¹ Cello-Whitney alleges, inter alia, that though he signed the release, he did so under duress, fraud, and misrepresentation, and therefore did not give his consent freely. The motion was signed on March 16, 1990, the same day Cello-Whitney signed the release.

Cello-Whitney's motion is denied.

BACKGROUND

In July of 1988, Cello-Whitney was transferred from the custody of the Washington Department of Corrections (WDOC) to the custody of the Arizona Department of Corrections (ADOC), pursuant to the Western Interstate Corrections Compact Act, A.R.S. § 31-471 et seq., and the Interstate Corrections Compact, A.R.S. § 31-491 et seq. (Complaint in Cello-Whitney v. Lewis, CIV 88-1317 PHX EHC (MM)). The record demonstrates convincingly that he regarded the transfer as retaliatory for his litigiousness in Washington. (See e.g., Id.) As a result, his demands to be returned to Washington have been adamant since arriving in Arizona.

ADOC held Cello-Whitney in the Special Management Unit (SMU) at the Arizona State Prison Complex in Florence. SMU allows inmates fewer privileges, and demands much more isolation than the general population is accustomed to. Nevertheless, Cello-Whitney frequently availed himself of the institution's law library and library staff for the purpose of pursuing litigation on his own behalf, as well as other inmates. Indeed, this Court and the Magistrate Judges have admonished Cello-Whitney a number of times that, because he is not an attorney, he could not represent other inmates.

Between July of 1988 and March of 1990, when he was transferred back to the custody of Washington, Cello-Whitney succeeded in wielding the processes of this Court in such a way as to convince his Arizona custodians to return him to Washington. (See e.g. Exhibit 2 to Doc. 162, in which James R. Upchurch (Upchurch), Deputy Warden of the Special Management Unit at the Arizona State Prison Complex in Florence states "it has become apparent to me that inmate Cello-Whitney poses too great an expense to the taxpayers of Arizona to maintain him at SMU ... I have stubbornly felt that we could effectively deal with inmate Whitney's behavior, but failed to recognize the serious implications of his `manic states' relative to the manner in which he has chosen to strike out, that being through the courts"; Exhibit A to Doc. 71, in which Cello-Whitney informs June Ava Florescue (Florescue), Assistant Attorney General, on March 13, 1990, "it is no big secret ADOC is extremely anxious to have me depart. Likewise, I am very well aware of the fact ADOC no longer wants the burden of me, the costs or the continuing flow of litigation. Unfortunately, that is too bad. You people insult my intellect and good faith. As it sits for the immediate moment I am prepared to continue proceeding in every case and remaining right here in Arizona and at this point do not particularly care whether or not anyone likes it. The bottom line is you people and WA/DOC deliver unto myself and Mr. Shuff the terms requested and ADOC WA/DOC and the AG's involved may have EVERY PENDING CASE. In fact I want out of the litigation business period on every case and you people have my requests and specifications ... If need be I'll bring ADOC to its knee's sic in my time.") Cello-Whitney's exercise of his right to prosecute alleged violations of his constitutional rights, pursuant to 42 U.S.C. § 1983, has spawned numerous actions in this Court as well as the courts of Washington.²

The tenor and process in the case at hand are representative, generally, of those in each of Cello-Whitney's other sixteen cases currently pending before this Court.³

FACTS

The undisputed facts are as follows:

Cello-Whitney, James M. Shuff (Shuff), and Ricky L. Hisel (Hisel) filed an Amended Complaint in this action on February 1, 1990.⁴ Plaintiffs allege "unsanitary conditions and mental cruelty and abuse of administrative discretion amounting to cruel and unusual punishment, aggravated retaliation and harassment, legal interference, denial of due process, assault and conspiracy."⁵ (Doc. 31 at 2-3.) Plaintiffs complain primarily of the conditions of confinement. The Amended Complaint names eighteen Defendants; all are employees of ADOC save three. Defendants filed an Answer on March 2, 1990.

Cello-Whitney conveyed several offers of settlement to the Arizona Attorney General's Office shortly after this action was filed. (See letters dated October 16, 1989, and November 22, 1989, from Florescue to Cello-Whitney attached to Doc. 60.) Specifically, he offered to settle this case and his other Arizona cases in exchange for his transfer back to Washington. As of November of 1989, Defendants were unwilling to agree to these terms.

On February 23, 1990, Cello-Whitney sent a letter to Douglas W. Carr (Carr), an Assistant Attorney General for the State of Washington. (Exhibit B to Doc. 92.) Cello-Whitney urged an immediate response to his proposal to settle all his cases in exchange for a transfer back to Washington.⁶ He also indicated that Carr could "deal" with Catherine Cruikshank, Cello-Whitney's advisor-counsel in Washington, if he preferred.⁷

Carr contacted Cello-Whitney, on March 5, 1990, by telephone to discuss the proposed settlement. (Id.; Exhibits 1 and 3 to Doc. 60; Letter of March 5, 1990 from Cello-Whitney to Upchurch attached to Doc. 135.) The two discussed dismissing the Arizona cases in exchange for Cello-Whitney's transfer to Washington. (Id.)

Shortly thereafter, on March 12, 1990, Carr again contacted Cello-Whitney by telephone and conveyed his clients' agreement to the foregoing settlement terms. (Exhibit B to Doc. 92; Exhibit 2 to Doc. 60.) Cello-Whitney wrote Michele Geiger, Assistant Attorney General for the State of Arizona, that same day seeking to expedite the execution of the agreement. He expressed a firm desire to have the matter resolved by March 30, 1990. (Id.) Carr contacted Florescue concerning the agreement and she agreed to draft the settlement documents. (Exhibit B to Doc. 92.)

The settlement documents (Exhibit B to Doc. 92) were delivered to SMU on March 15, 1990. After reviewing the documents, Upchurch had them forwarded to Cello-Whitney on March 16, 1990. (Docs. 71, 92, and Cello-Whitney's Affidavit attached to Doc. 175.) Prior to receiving the documents, Cello-Whitney prepared a letter, on March 15, 1990, to Florescue. (Exhibit G to Doc. 92.) He expressed his dissatisfaction with Upchurch reviewing the settlement documents; his demand that Plaintiff Shuff be transferred to Washington in exchange for a release of liability; and his desire to communicate with counsel in Washington concerning the settlement documents. (Id.) Cello-Whitney ended the letter stating:

Again I state my distaste and disgust with Upchurch opening and pouring over the agreements before I'd even had a chance to review them. I do not anticipate that matters will be delayed too long, however, there is going to be a delay until matters are made right. Naturally, it was assumed I'd simply sign off and go into this without a second thought but this is not to be the case. I intend to review every word and take my time doing so. If need be I'll bring ADOC to its knees in my time.

(Id.)

On March 16, 1990, after reviewing the settlement documents — cover letter and General Release — and discussing several matters with Shuff and Florescue, Cello-Whitney signed the General Release. The release states in part:

That for and in consideration of the transfer of James Cello-Whitney, Jr., Inmate No. 68512, from the Special Management Unit of the Arizona State Prison Complex at Florence, Arizona, to the custody of the State of Washington, Department of Corrections, within ten (10) days of the execution of this Release, James Cello-Whitney, Jr., his heirs, representatives and assigns, do hereby release and forever discharge the State of Arizona, the Arizona Department of Corrections, and all other departments, agencies, boards and commissions, and all past and present officers, agents and employees thereof, including, but not limited to, all of the State of Arizona defendants named by said James Cello-Whitney, in any case, in any court, and in any appeal therefrom, and all State of Washington defendants named in any case in the United States District Court for the District of Arizona and any appeal therefrom; ... as well as their past, present and future spouses, in any and all claims, demands, actions, and causes of action, and all liability whatsoever, in any matter concerning his incarceration, and terms and conditions thereof, or any other matters, while in the physical custody of the Arizona Department of Corrections.

The execution of this instrument by the undersigned releases all

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