Mann v. Reynolds
| Citation | 46 F.3d 1055 |
| Decision Date | 01 February 1995 |
| Docket Number | 94-6013,Nos. 93-6322,s. 93-6322 |
| Parties | Anthony MANN; Alvin J. Hale; John Duvall; Scotty L. Moore, Plaintiffs-Appellants, v. Dan M. REYNOLDS; Rita Andrews; Fred Cook; Gary D. Maynard; David Walters, Governor; Robert Sanders, Individually and in his Official Capacity as Coordinator, Substance Abuse/Mental Health Services, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Micheal Salem (D. Gregory Bledsoe, Tulsa, OK, with him on briefs), Norman, OK, for plaintiffs-appellants.
Guy L. Hurst, Asst. Atty. Gen. (Susan B. Loving, Atty. Gen. of Okl., with him on brief), Oklahoma City, OK, for defendants-appellees.
Before MOORE, McKAY, and LOGAN, Circuit Judges.
This is a class action civil rights suit filed under 42 U.S.C. Sec. 1983 on behalf of plaintiffs Anthony Mann, Alvin James Hale, John Duvall, and Scotty Lee Moore, representatives of a class of all present and future death row and high-maximum security inmates (Inmates) incarcerated in H-Unit at the Oklahoma State Penitentiary, McAlester, Oklahoma (OSP). Counsel challenged an OSP policy prohibiting barrier-free or contact visits between Inmates and examining psychologists, other health professionals, and legal counsel, alleging the policy violated Inmates' Sixth and Fourteenth Amendment rights.
The district court held the OSP policy violated Inmates' Sixth and Fourteenth Amendment rights but determined alterations of that policy unilaterally adopted by OSP during the course of the litigation by Dan Reynolds, the OSP warden, and other OSP personnel (the State) were "in compliance with constitutional requirements" and denied further relief. Mann v. Reynolds, 828 F.Supp. 894, 908 (W.D.Okl.1993). The court also dissolved stays of execution previously ordered. In a subsequent order, the court granted attorney fees under 42 U.S.C. Sec. 1988 but reduced the amount.
Both decisions are the subject of this appeal. First, Inmates contend the court's order concluding they "do not have a right of access to the courts and access to counsel which includes a meaningful right to 'barrier free' visitation and adequate telephone visitation" is error. Second, counsel contend the court's failure to award the full amount of fees they requested was an abuse of discretion. We conclude the district court properly analyzed the constitutional issues, but we reverse the conclusion the modified policy is constitutionally permissible. Given this result, we remand for further consideration of the attorney fee award.
After suit was filed and during pretrial proceedings, the State altered its policy to permit medical experts and psychologists to interact with Inmates while performing clinical or psychological testing. However, Inmates' attorneys, either private counsel or attorneys with the Oklahoma Indigent Defense System (OIDS), were required to continue meeting with their clients in a visitation booth separated by a wire mesh plexiglas partition while communicating by telephone and passing documents through a two-inch hole prison staff later drilled. The State had not accommodated double-celled Inmates' request for confidential telephone calls to their attorneys even though approximately 89% of Inmates are double-celled. By the start of trial, the State proposed a different barrier arrangement for counsel to meet with Inmates and promised to work on securing confidential telephone communications for double-celled Inmates.
Consequently, although the district court granted Inmates declaratory and injunctive relief, concluding "non-contact visitation between attorneys and death row inmates is violative of the Sixth and Fourteenth Amendments to the United States Constitution," id. at 907, it stopped short of declaring "full contact visitation without limitation between death row inmates and their attorneys is [ ] mandated by the Sixth or Fourteenth Amendments." Id. In this appeal, counsel urge we adopt unlimited contact between Inmates and their counsel as a constitutional requisite.
We begin our review from the district court's point of legal demarcation. The court stated:
[T]his Court concludes that plaintiffs are constitutionally entitled to contact visits with their attorneys. The level or nature of the contact is a different question.... The question thus becomes whether the present system, providing some contact, satisfies the requirement of providing adequate, effective, and meaningful access to the courts. If the present system infringes on the constitutionally required level of contact, it cannot be continued unless the defendants can offer a valid and rational connection between their visitation policy and legitimate security concerns, and that such policy complies with the four factor analysis established by Turner v. Safley, 482 U.S. at 89-90, 107 S.Ct. [2254] at 2261-62 [96 L.Ed.2d 64 (1987) ].
Mann, 828 F.Supp. at 904. Neither party having questioned the court's characterization of its task, we are now called upon to review whether its ensuing determinations comport with Turner.
The district court found the new policy adopted in response to this suit provides an attorney-client visitation room which may be observed through a glass and barred window. Into this room, prison personnel escort an Inmate, wearing full restraints, to his designated half of the cubicle. The restraints are then removed except for leg-irons. The guard locks the Inmate into that space and escorts the lawyer to the other side of the cubicle. "The room is divided by a locking door and a metal grate with diamond-shaped interstices of approximately 3/4 inch which divides the room above a three-foot-wide counter." Id., 828 F.Supp. at 898-99. The court, citing testimony, stated this setting caused "headaches, dizziness, lack of focus, and general malaise," id. at 899, and noted prison officials "agreed that a clear Plexiglas or equivalent window at eye height should be placed in the grate to allow unimpeded vision." Id.
The court also found despite the no-contact policy, "there are a multitude of instances where inmates come in contact with others." Id. These included contact with other Inmates and law clerks who are also Inmates in the H-Unit law library; contact during religious services and at the barber shop staffed by Inmates; contact with medical, psychological, and other prison staff as well as visiting chaplains; contact with the public during tours of the facility; and contact with civilian female librarians and visiting law enforcement personnel.
Furthermore, the court determined virtually all Inmates have different counsel at each stage of their representation and thus would be expected to begin a new relationship with a third post-conviction attorney in this setting. At this stage of the attorney-client relationship, the district court observed, death row attorneys have "a particular need to establish trust and communication, and to explore all avenues of possible trial error or mitigation," in the process of habeas review. Id. at 901. To do so, counsel often has to probe "painful and emotional past acts or occurrences and certainly circumstances surrounding the inmate and his crime which are not easily divulged to strangers." Id. In the case of Inmates with special needs--those who are retarded, blind, deaf, or request a waiver of appeal--the district court found different accommodations might be necessary when meeting with their attorneys. The court noted, for example, "with the inmates with special problems, the attorney is often called upon to interpret documents or read them to the client, and full contact assists in this tandem review of documents, exhibits, transcripts, etc." Id. at 901.
The district court further noted the "significant evidence" that "[d]eath row inmates present no greater security risk than any other high-maximum security inmate ... [and] less of a management problem than many offenders convicted of less serious crimes." Id. at 901. In contrast, the court stated other convicted murderers under a life sentence are in full contact settings. The court acknowledged plaintiffs' exhibit reflecting that nine states allow full contact visits between death row inmates and their attorneys. Although noting the State's witnesses from Utah and Texas who testified OSP's policy was more liberal than those in their institutions, it found female inmates sentenced to death and housed at the Mabel Bassett Correctional Center in Oklahoma City are permitted full contact visits with their attorneys. Moreover, all Oklahoma county jails permit "full-contact visits between counsel and any defendant accused in a capital murder case." Id. at 902. Indeed, it stated, "Institutional behavior is generally better for death row inmates because such behavior may be used as evidence in mitigation or commutation proceedings." Id. at 901.
Finally, the district court cited unexplained incidents in which prison officials failed to permit Inmates scheduled to testify at this trial to be transported to Oklahoma City and refused to allow plaintiffs' experts to tour H-Unit and have access to information upon which to base their opinions despite the court's orders. These were, the court denominated, "important facts" when combined with:
(1) the total absence of any institutional planning to accommodate confidential attorney visitation in H-Unit, (2) the apparent hostility by prison employee to OIDS attorneys throughout the testimony, and (3) the inconsistent application of the non-contact policy. Together, these facts compel a finding that OSP maintains an institutionally sanctioned attitude of hostility and opposition to attorneys who attempt to represent death row inmates.... The blanket adversarial position taken against OIDS attorneys representing death row inmates is apparent on this record and is unjustified.
Id. at 902 (emphasis added).
The factual picture thus painted by the district court suggests the State...
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