Kirby v. Thomas

• Citation: 336 F.2d 462
• Decision Date: 10 September 1964
• Docket Number: No. 15709.,15709.
• Parties: Eugene KIRBY, Petitioner-Appellant, v. Luther THOMAS, Warden Kentucky State Penitentiary, Eddyville, Kentucky, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

336 F.2d 462 (1964)

Eugene KIRBY, Petitioner-Appellant, v. Luther THOMAS, Warden Kentucky State Penitentiary, Eddyville, Kentucky, Respondent-Appellee.

No. 15709.

United States Court of Appeals Sixth Circuit.

September 10, 1964.

Eugene Kirby, in pro. per.

Robert Matthews, Atty. Gen., Martin Glazer, Asst. Atty. Gen., Frankfort, Ky., for appellee.

Before WEICK, Chief Judge, PHILLIPS, Circuit Judge, and BROWN, District Judge.

HARRY PHILLIPS, Circuit Judge.

This case involves the validity of a regulation adopted by the Kentucky Department of Corrections which forbids the mailing from state prisons of certain legal papers prepared by inmates. The regulation provides that papers or documents of a legal nature prepared by an inmate of a state prison shall not be permitted to be mailed or sent out by an inmate of a state penal institution, with certain exceptions.¹ Among the exceptions are habeas corpus, coram nobis or similar proceedings which test the validity of a judgment of conviction.

Kirby, a prisoner in the Kentucky State Penitentiary at Eddyville, Kentucky, filed a petition for writ of mandamus averring that respondent by authority of said regulation has refused him the privilege of mailing and filing in a Federal District Court "a civil rights punitive damage action." The pleadings to initiate such an action were prepared by Kirby on his own behalf. It is contended that application of the regulation to Kirby violates the due process and equal protection clauses of the Fourteenth Amendment.

District Judge Henry L. Brooks denied the application for writ of mandamus, setting forth his conclusions concisely in an unpublished order, from which we quote with approval the following:

"Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the consideration underlying our penal system, Price v. Johnston, 334 U.S. 266, 285 68 S.Ct. 1049, 92 L.Ed. 1356 (1948), and it appears well settled that it is not the function of the courts to superintend the treatment and discipline of prisoners in penitentiaries, but only to deliver from imprisonment those who are illegally confined. Kelly v. Dowd, 140 F.2d 81 (7th Cir. 1944). The enforcement of the regulation preventing the filing of ordinary civil actions by prisoners which do not relate to their personal liberty is a matter of prison discipline and is not in violation of any constitutional restriction. Tabor v. Hardwick, 224 F.2d 526 (5th Cir. 1955), cert. dismissed, 350 U.S. 890 76 S.Ct. 148, 100 L.Ed. 784, cert. denied, 350 U.S. 971 76 S.Ct. 445, 100 L.Ed. 843; United States ex rel Wagner v. Ragen, 213 F.2d 294 (7th Cir. 1954), cert. denied, 348 U.S. 846 75 S.Ct. 68, 99 L.Ed. 667; Hatfield v. Bailleaux, 290 F.2d 632 (9th Cir. 1961), cert. denied, 368 U.S. 862 82 S.Ct. 105, 7 L.Ed.2d 59."

The limitation placed on the above stated rule by Ex Parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034 and White v. Ragen, 324 U.S. 760, 65 S.Ct. 978, 89 L.Ed. 1348, regarding regulations restricting the right of prisoners to apply for habeas corpus to inquire into the validity of their restraint, is well recognized. We do not understand these cases to require an absolute and unrestricted right for a prisoner to file any civil action prepared by himself. Tabor v. Hardwick, supra, involved facts substantially similar to those here presented, except that the petitioner in that case was a federal prisoner.

In United States ex rel. Wagner v. Ragen, supra, a state prisoner filed a civil rights action against the warden, contending that the warden refused to permit him to draw inventions and send them to the United States Patent Office. In holding that federal courts do not have the power to regulate ordinary internal management and discipline of prisons operated by the states, the Court quoted from United States ex rel. Morris v. Radio Station WENR, 209 F.2d 105 (C.A. 7) as follows:

"Inmates of State penitentiaries should realize that prison officials are vested with wide discretion in safeguarding prisoners committed to their custody. Discipline reasonably maintained in State prisons is not under the supervisory direction of federal courts. Kelly v. Dowd, supra. 7 Cir., 140 F.2d 81 * * A prisoner may not approve of prison rules and regulations, but under all ordinary circumstances that is no basis for coming into

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