Huffman v. Nebraska Bureau of Vital Statistics, Civ. No. 1675 L.

• Decision Date: 16 November 1970
• Docket Number: Civ. No. 1675 L.
• Citation: 320 F. Supp. 154
• Parties: Harold Eugene HUFFMAN, pro se and on behalf of Faye I. Huffman and Donald Lee Boersen, infant, Petitioner, v. NEBRASKA BUREAU OF VITAL STATISTICS, Maurice H. Sigler, Warden, Nebraska Penal Complex, Joe Bosler, District Probation Officer, and the State of Nebraska, Respondents.
• Court: U.S. District Court — District of Nebraska

320 F. Supp. 154

Harold Eugene HUFFMAN, pro se and on behalf of Faye I. Huffman and Donald Lee Boersen, infant, Petitioner, v. NEBRASKA BUREAU OF VITAL STATISTICS, Maurice H. Sigler, Warden, Nebraska Penal Complex, Joe Bosler, District Probation Officer, and the State of Nebraska, Respondents.

Civ. No. 1675 L.

United States District Court, D. Nebraska.

November 16, 1970.

MEMORANDUM RE MOTION TO STRIKE OR DISMISS

URBOM, District Judge.

The petitioner Harold Eugene Huffman presently is incarcerated in the Nebraska Penal and Correctional Complex, pursuant to a conviction on April 28, 1969, by the District Court of Hall County, Nebraska. On April 14, 1970, an order of this court permitted the filing of documents without prepayment of costs in accordance with 28 U.S.C. § 1915. On April 27, 1970, the respondents filed a motion to dismiss on the grounds that Rule 11 of the Federal Rules of Civil Procedure had not been complied with and that the application had failed to allege facts upon which relief could be granted.

The matters raised by the pleadings can be adjudicated without the appointment of counsel or the formality of an evidentiary hearing, because resolution of the legal issues disposes of the case.

Both habeas corpus relief and civil rights relief are sought. The term "petition", while technically applicable only to habeas corpus cases, will be used in this memorandum to describe the pleading referable both to the habeas corpus relief and to the civil rights relief requested. In somewhat roving fashion the petition seeks to raise six issues, which will be discussed herein separately, except that the first and second will be jointly treated.

I AND II. CONVICTION AND PROBATION OF FAYE I. HUFFMAN (FAYE I. BOERSEN)

The petition contends that the criminal conviction of Faye I. Huffman, alternatively referred to as Faye I. Boersen, in the District Court of Hamilton County, Nebraska, was the product of an involuntary guilty plea and challenges the validity of that conviction. Additionally, the petition attacks the order of probation relating to Faye I. Huffman which has been interpreted by the probation officer and the District Court of Hamilton County as prohibiting the visitation by Faye I. Huffman of Harold Eugene Huffman while he is imprisoned.

The action is brought in the name of "Harold Eugene Huffman, pro se, and on behalf of Faye I. Huffman and Donald Lee Boersen, infant." Only the name of Harold Eugene Huffman is signed to the petition. One of the requirements of Rule 11 of the Federal Rules of Civil Procedure is that "A party who is not represented by an attorney shall sign his pleading and state his address." No valid reason appears for not requiring that Faye I. Huffman or Faye I. Boersen sign the pleading if she in fact desires to challenge either her conviction or the order of her probation. Undoubtedly, one of the justifications for the quoted provision of Rule 11 is to make certain that the persons who are named as parties are actually in assent to the filing of an action on their behalf. Nothing is indicated in the pleadings to suggest that Harold Eugene Huffman has any standing to contest the conviction or probation order of Faye I. Huffman. Furthermore, the petition does not show that Faye I. Huffman has exhausted her state remedies under the Nebraska Post-Conviction Act, and such exhaustion is a prerequisite to any challenge of a conviction. For all the foregoing reasons, this court does not have jurisdiction to resolve issues of the propriety of the conviction or probation order of Faye I. Huffman or Faye I. Boersen.

III. REMOVAL OF NAME FROM MAILING LIST

It is alleged that the prison warden removed the name of Faye I. Huffman or Faye I. Boersen from Harold Eugene Huffman's approved mailing list, because of a letter from the judge of the District Court of Hall County, Nebraska, which stated that the marriage between Harold Eugene Huffman and Faye I. Huffman was not recognized by the State of Nebraska. It further is claimed that the warden has requested that Faye I. Huffman terminate correspondence with Harold Eugene Huffman. She evidently has honored that request. The precise legal question is whether the prison's mail restriction, which removed Faye I. Huffman from the approved mailing list and the warden's request to Faye I. Huffman that she refrain from corresponding with Harold Eugene Huffman rise to the dignity of a deprivation of constitutional rights.

Generally, the constitutional right which may be violated by certain types of mail restrictions is the proscription of cruel and unusual punishment within the Eighth Amendment of the Constitution of the United States. The test is whether the restriction shocks the general conscience. Lee v. Tahash, 352 F.2d 970 (C.A. 8th Cir. 1965). The primary thrust by the petitioner Harold Eugene Huffman is that Faye I. Huffman is his lawful wife and therefore...