Lee v. Crouse

• Decision Date: 24 July 1967
• Docket Number: Civ. A. No. KC-2248.
• Citation: 284 F. Supp. 541
• Court: U.S. District Court — District of Kansas
• Parties: Vincent LEE, Petitioner, v. Sherman H. CROUSE, Warden, Kansas State Penitentiary, Lansing, Kansas, Respondent.

284 F. Supp. 541

Vincent LEE, Petitioner, v. Sherman H. CROUSE, Warden, Kansas State Penitentiary, Lansing, Kansas, Respondent.

Civ. A. No. KC-2248.

United States District Court D. Kansas.

July 24, 1967.

Vincent Lee, pro se.

Robert C. Londerholm, Atty. Gen., and Richard H. Seaton, Asst. Atty. Gen., Topeka, Kan., for respondent.

MEMORANDUM FINDINGS OF FACT, CONCLUSIONS OF LAW

WESLEY E. BROWN, District Judge.

This action was originally filed before Chief Judge Arthur J. Stanley, Jr., of this District as a habeas corpus proceeding, wherein petitioner VINCENT LEE alleged that Kansas State Penitentiary authorities were unconstitutionally prohibiting the practice and worship of the Islam religion by Negro inmates. Leave to proceed without prepayment of fees was granted. A motion for appointment of counsel was denied.

Answering, the Warden denied any constitutional violations. He stated that Lee's religion advocated segregation of the races, inferiority of the white race, and hatred of white people. Fearing potential disciplinary problems inherent in Lee's beliefs, he prohibits Lee and his fellow believers from congregating in their own assemblies, or tabernacle, and does not permit Muslim ministers to conduct religious services. He stated that Lee is permitted to receive all outside religious publications mailed to him, to discuss his beliefs with others in small and orderly groups, to attend nonsectarian services at the prison, and to confer with visiting Muslim ministers, subject to ordinary penitentiary visiting rules.

Lee filed a traverse, challenging respondent's statement of Muslim beliefs, stating, inter alia, that they advocate separation, not segregation, of the races; he denied that they are permitted to discuss religion in small, orderly groups, and claimed religious harassment and persecution in the guise of disciplinary confinement.

Lee submitted a list of 37 witnesses he desired to call, including 24 inmates, four prison officials, and five authorities of the Nation of Islam. To avoid cumulative testimony and unnecessary expense and security problems, the court ordered Lee to submit a statement of the testimony he expected from each witness. From that statement and affidavit, the court found that the inmates' testimony would be cumulative, and ordered Lee to select three inmates, and submit their names to the Clerk. Lee moved to rescind that order, which was denied. He then moved that Judge Stanley disqualify himself, which motion was granted. The action was then transferred to Wichita before the undersigned Judge.

On November 28, 1966 at a pre-trial conference Lee moved that this Judge disqualify himself. As grounds therefor, Lee stated that an appeal was pending before the Tenth Circuit Court of Appeals from an order by Judge Templar dismissing a complaint filed by Lee against Judge Stanley, Lee v. Arthur J. Stanley, Jr., No. T-4133, in which Lee claimed $100,000,000 damages for violation of his constitutional rights. Lee asserted that not only Judge Stanley, but all judges of the District were made defendants by use of the words "et al" in the caption thereof; that all of the judges had directly or indirectly committed or condoned the same offenses charged against the Warden; that they were thus "interested" in the case, and had advised counsel for the state. The court found all these grounds totally baseless and denied the motion.

The court requested two attorneys to represent Lee, Mr. Robert Beall and Mr. John Tillotson, both of the Leavenworth Bar. Mr. Tillotson visited Lee at the penitentiary prior to the pre-trial, and he rejected his assistance, on the ground that he neither could nor would adequately represent him. Tr. 33 et seq. Mr. Beall's representation was also declined on the basis that as Assistant County Attorney of Leavenworth County he could not properly represent Lee. His duties as Assistant County Attorney would have terminated before the pre-trial or trial. Lee rejected both attorneys on the ground, apparently, that they had prejudicial preconceptions about the merits of his case, such that neither could adequately represent him. He has maintained since that he has been denied counsel. There is no absolute right to appointment of counsel in either habeas corpus or civil rights actions. See Ratley v. Crouse, 365 F.2d 320 (10th Cir. 1966). Lee was not denied counsel, however. The court, under 28 U.S.C. § 1915(d), requested two attorneys to represent Lee. Lee fails to appreciate that an attorney is often called upon to represent unpopular causes or persons, about the merits of which he may have strong personal reservations or doubts, and they regularly afford effective, highly meritorious representation. From even those allegations of petitioner which we can seriously credit, it appears only that Mr. Tillotson may have expressed his honest, professional opinion of the legal substance of petitioner's cause of action, an indication of professional integrity for which he is to be commended, not faulted. The court was, and remains, satisfied that either attorney could have adequately represented Lee. He is not entitled to select his counsel; having rejected two competent attorneys on nothing more than his private suspicion that they were not personally disposed toward Lee's cause, he may not claim denial of counsel even if he were entitled to demand counsel.

The court held that the action, in substance, was a civil action for injunctive relief, under the Civil Rights Act, 28 U.S.C. § 1343(3) and 42 U.S.C. § 1983, and that Lee's petition would be treated as a complaint under that Act. There was no showing that Lee's complaints here had been presented to the state courts, a prerequisite to federal habeas relief, absent a showing of inadequacy or ineffectiveness of state remedies, 28 U.S.C. § 2254.

In addition, even if Lee's contentions of constitutionally impermissible deprivations of religious freedom, and persecution therefor, were sustained he would not be entitled to release. Lee claimed that he had been denied a jury trial. The court held under Rule 39, F.R.Civ.P., that the essentially injunctive, equitable nature of the action precluded a jury. Lee's contention that he was entitled to a jury trial under the Sixth Amendment to the Constitution is not applicable in this case. His rights to a jury trial are afforded under the Seventh Amendment to the Constitution as implemented by Rule 38, F.R.Civ.P.

A threshold question is the extent of our jurisdiction to inquire and grant the relief sought. In Pierce v. LaVallee, 293 F.2d 233 (2nd Cir. 1961), the court noted that a "considerable body of authority, particularly from the Seventh and Ninth Circuits, holds that a state prisoner complaining of improper prison treatment must seek his relief in the state court. Citations omitted." The court continued: "Whatever may be the view with regard to ordinary problems of prison discipline, however, we think that a charge of religious persecution falls in quite a different category." 293 F.2d at 235. The court held that complaints similar to those herein were properly entertained under the Civil Rights Act. It is true that federal courts have no supervisory power over state prisons. See Krupnick v. Crouse, 366 F.2d 851 (10th Cir. 1966). The executive province of administration of prisons is not a shield against unwarranted deprivations of constitutional rights, however. The complaint construed in a most liberal manner states a cause of action, which we should not decline to entertain. See Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964). (For a review of cases dealing with Provisions of Religious Facilities for Prisoners, see 12 A.L.R.3d 1276).

The parties to this action require some description for a proper understanding of the views expressed herein.

Lee is currently an inmate of the Kansas State Penitentiary. He was charged and found guilty by a jury on three counts of robbery in the first degree. The convictions were affirmed (State v. Lee, 197 Kan. 463, 419 P.2d 927, 1966). He was raised in St. Louis where he encountered racial prejudice. He entered the Army at a young age, was sent to Europe. He was court-martialled and spent considerable time in various federal prisons, before being incarcerated at Lansing. He first learned of the Black Muslim movement while in the federal prisons. During the time between his federal and state incarceration he became a registered Black Muslim, was given the name of Vincent 2X, and continued his study of its concepts. He has also studied law in courses from LaSalle Extension University. He has used this "legal education" and filed numerous habeas petitions and damage suits against public officials. He was not considered by prison officials at the time of these hearings as a disciplinary problem.

The Warden is a career officer, in charge of Kansas State Penitentiary. The penitentiary is a maximum security institution for adult offenders. He is responsible for the institution, its properties, operation and monies for its operation. He has the responsibility for the welfare of the inmates, including housing, food, clothing, and their physical well-being. His duties include an effort to see that inmates are returned to civilian population better suited to meet the duties of citizenship than when they were incarcerated at the penitentiary.

The prison has a population of between 1500 to 1600 inmates, approximately 25% of whom are Negro. Two-thirds of this prison population are not native Kansans. The Warden with approximately 192 civilian employees is required to carry out prison policy. (See K.S.A. 76-2404 — Powers and Duties of the Director of Penal Institutions).

This prison policy as related to the Black Muslims may be summarized thus:

1. There is no policy to control or inhibit any individual prisoner's beliefs, religious or otherwise.

2. The Black Muslims, because of both their teachings of supremacy of one race

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