Kersh v. Bounds

• Decision Date: 30 March 1973
• Docket Number: Civ. No. 2966.
• Citation: 364 F. Supp. 590
• Court: U.S. District Court — Western District of North Carolina
• Parties: Grady D. KERSH et al., Plaintiffs, v. V. Lee BOUNDS, Commissioner of the North Carolina Department of Correction, et al., Defendants.

364 F. Supp. 590

Grady D. KERSH et al., Plaintiffs, v. V. Lee BOUNDS, Commissioner of the North Carolina Department of Correction, et al., Defendants.

Civ. No. 2966.

United States District Court, W. D. North Carolina, Charlotte Division.

March 30, 1973.

Norman B. Smith and J. David James, Smith, Patterson, Follin & Curtis, Greensboro, N. C., for plaintiffs.

Jacob L. Safron, Asst. Atty. Gen., N. C. Dept. of Justice, Raleigh, N. C., James M. Bowen, Hamrick & Bowen, Rutherfordton, N. C., Harley B. Gaston, Jr., Belmont, N. C., Frank B. Aycock, III, Mraz, Aycock & Casstevens, Charlotte, N. C., for defendants.

OPINION AND JUDGMENT

McMILLAN, District Judge.

Plaintiffs, three inmates of the North Carolina Department of Correction, seek damages and equitable relief from alleged cruel and unusual punishment and from alleged discrimination on the part of the defendants, officers and agents of the North Carolina Department of Correction, of Gaston County, and of Polk County, North Carolina.

Each of the three plaintiffs was convicted of a crime in a Superior Court. Plaintiff Kersh was convicted in Polk County; plaintiffs Price and Rogers were convicted in Gaston County.

In 1971, at the times relevant to this case, each of the plaintiffs was being held in Central Prison or some other unit of the Department of Correction as a "safekeeper." A "safekeeper" is a person who has been convicted of a crime in Superior Court (or in some instances who may be awaiting trial) and who is ordered by a judge to be transferred to the Central Prison or some other unit of the Department of Correction under the appropriate statutes (North Carolina General Statutes § 15-183 and § 153-189.1) in the interests of the safety of the prisoner or the safety of others.

Although if a conviction is affirmed on appeal the time spent in custody before final affirmance of the conviction does count as part of the sentence to be served, prisoners are not, while in this "safekeeping" status, considered to be "serving a sentence" with the North Carolina Department of Correction. Under G.S. § 153-189.1 the state provides their custody and maintenance but the counties pay for it. The average number of "safekeepers" in state custody at any time is about 140.

The average time served by a convicted felon in the North Carolina prison system is about four and one-half years; the average time served by a convicted misdemeanant is a little over ten months; the average period of time that a person remains in the prison system in a "safekeeping" status is about five months.

While in a "safekeeping" status the plaintiff Kersh was examined on May 5, 1971, and was found to have 20-25 vision but did not have any immediate need for eyeglasses (a re-examination some months later revealed that his vision was 20-20 and he did not need eye-glasses).

While plaintiff Max V. Rogers was considered to be a safekeeper he was found to be in need of corrective eyeglasses and false teeth (he apparently came to prison without either). He requested the Department of Correction and his "home" county of Gaston to supply him with corrective eyeglasses and false teeth and the requests were denied. These appliances would have been provided him if he had been a regular member of the prison population. In fact, after he became a member of the regular prison population he was fitted with dentures and eyeglasses in the fall of 1971.

While the plaintiff Jimmy A. Price was considered a safekeeper he was found to have a small umbilical hernia (a chronic loose inguinal ring). The Department of Correction declined to provide surgery to correct the hernia. (Some months later, after he became a member of the regular prison population, he was re-examined and found in the opinion of the then examining doctors not to have a hernia.)

Under the administration of the medical program in the North Carolina Department of Correction, medical services for safekeepers are dispensed differently than for the rest of the prison population.

In order to insure that the counties which send safekeepers to the Department of Correction meet their financial responsibility under North Carolina General Statutes § 153-189.1, medical services to safekeepers are screened.

Those types of medical services designated as emergency or routine are administered without questioning the county's credit. However, those medical services designated as "elective" are not dispensed until the Department of Correction obtains notice that the county from which the safekeeper came accepts financial responsibility for these services.

The stipulated evidence shows that at least one of the plaintiffs (Rogers) requested medical services designated elective both from the Department of Correction and through them from the forwarding county. The services were not supplied. Defendants admit that the medical treatment sought would have been provided had he been confined as a prisoner within the regular prison population. No evidence was offered to show whether, if Rogers had remained in the county facility, these services would or would not have been provided.

Contrary to the suggestions of the Attorney General, courts do have the authority and the duty to require prison authorities to observe the guaranties of the federal Constitution in the operation of state prisons. It can well be said of North Carolina as it was said of Arkansas in Holt v. Sarver, 309 F.Supp. 362, 385 (E.D.Ark.1970), affirmed, 442 F.2d 304 (8th Cir. 1971):

"If Arkansas is going to operate a Penitentiary System, it is going to have to be a system that is countenanced by the Constitution of the United States."

North Carolina has adopted and those in charge of the Central Prison administration appear to accept the duty to operate prisons within the limitations and under the requirements of the Constitution:

"A prisoner retains all the rights of an ordinary citizen except those expressly, or by

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