McChristion v. Duckworth

• Decision Date: 31 May 1985
• Docket Number: Civ. No. S 79-17.
• Parties: Boyd McCHRISTION, Plaintiff, v. Jack DUCKWORTH; Mr. Wagner; Mr. Bradly; Mr. Jasper; Gordon H. Faulkner; Cloid L. Shuler; Charles A. Penfold; Sergeant Wilke; Officer Skibanski, Defendants.
• Court: U.S. District Court — Northern District of Indiana

610 F. Supp. 791

Boyd McCHRISTION, Plaintiff, v. Jack DUCKWORTH; Mr. Wagner; Mr. Bradly; Mr. Jasper; Gordon H. Faulkner; Cloid L. Shuler; Charles A. Penfold; Sergeant Wilke; Officer Skibanski, Defendants.

Civ. No. S 79-17.

United States District Court, N.D. Indiana, Fort Wayne Division.

May 31, 1985.

Rick C. Gikas, Merrillville, for plaintiff.

Kermit Hilles, Deputy Atty. Gen., Indianapolis, for defendants.

ORDER

WILLIAM C. LEE, District Judge.

This matter is before the court on the Magistrate's Report and Recommendation on plaintiff's June 12, 1984 motion for temporary restraining order and preliminary injunction and plaintiff's objections thereto. Following the filing of plaintiff's written objections, on April 8, 1985, the court ordered the preparation of a transcript of the evidentiary hearing held by the Magistrate on plaintiff's motion on August 21, 1984. That transcript of the evidentiary hearing was filed May 2, 1985. Having examined the transcript, the exhibits submitted at the evidentiary hearing and the full record before this court on plaintiff's motion, for the following reasons, this court finds that the report and recommendation of the Magistrate is appropriate and correct in all respects and will be accepted by this court, with some additional comments. The plaintiff's motion for temporary restraining order and preliminary injunction will be denied.

Plaintiff, in his objections to the Magistrate's report and recommendation, raises three legal objections and three factual objections. The plaintiff disagrees with the Magistrate's conclusion that Indiana Code § 11-11-3-3 does not create a liberty interest in the receipt of unopened legal correspondence. The plaintiff also disagrees with the Magistrate's conclusion that Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), is dispositive of plaintiff's constitutional claims in that the Magistrate concluded that no constitutional violation occurred in this instance because the defendants complied with the Wolff dictate regarding the opening of legal mail. The plaintiff further objects to the legal determination of the Magistrate that no constitutional right exists authorizing an inmate to reject legal mail and have it returned to the sender unopened. The factual objections plaintiff make go to the question of the use of a fluoroscope at the Indiana State Prison, whether the plaintiff was involved in the postal money order scheme discovered to be operating at the Indiana State Prison and, whether plaintiff was responsible for the delay in receipt of three pieces of legal mail. These objections will be dealt with seriatim.

I.C. XX-XX-X-X reads:

If correspondence is to or from government officials, courts, attorneys, or representatives of the public news media, it may not be opened, read, censored, copied, or otherwise interfered with in regard to its prompt delivery or transmission. However, if the department has reasonable grounds to believe that a piece of correspondence may contain contraband or prohibited property, the department may open it in the presence of the confined person for the purpose of examining the contents for contraband or prohibited property. Upon conclusion of the inspection, the item of correspondence must be promptly delivered or transmitted without reading, censoring, copying, or further interfering with its deliverance or transmission.

The Indiana State Prison now follows a policy of opening all legal mail in the presence of inmates in order to examine the contents for contraband or prohibited property. This policy instituted by the defendants stems directly from the discovery of widespread involvement by inmates at the Indiana State Prison in a postal money order scheme which involved the altering of amounts on money orders sent into the prison and the discovery that contraband, including postal money orders, was being sent into the prison in legal mail. The evidence adduced at the evidentiary hearing clearly demonstrates that contraband was and is being sent into the Indiana State Prison through the vehicle of legal mail.

The plaintiff strongly objects to the Magistrate's conclusion that I.C. XX-XX-X-X does not create a liberty interest protected by the fourteenth amendment. Plaintiff argues that the Magistrate has taken "far too limited a view of the notion of `liberty' under our Constitution." Plaintiff's Objections at p. 3. This court disagrees.

As this court recently stated:

A state may create a liberty interest by its statutes and by non-statutory sources. Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976) at 229, 96 S.Ct. at 2540; Harris v. McDonald, 737 F.2d 662 (7th Cir.1984) at 664; Shango v. Jurich, 681 F.2d 1091 (7th Cir.1982) at 1099; Soto v. Cady, 566 F.Supp. 773, 777 (E.D.Wis.1983). However, "a state created procedural right is not itself a liberty interest within the meaning of the Fourteenth Amendment." Shango, 681 F.2d at 1101. "Process is not an end in itself. Its constitutional purpose is to protect a substantive interest to which the individual has a legitimate claim of entitlement." Olim v. Wakinekona, 461 U.S. 238, 103 S.Ct. 1741, 1748, 75 L.Ed.2d 813 (1983) citing with approval Shango, 681 F.2d at 1100-1101. See Olim, 461 U.S. at 250 n. 12, 103 S.Ct. at 1748 n. 12 ("An expectation of receiving process is not, without more, a liberty interest protected by the Due Process Clause."). Accord Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864 (1983), at 470, 103 S.Ct. at 871; Harris, 737 F.2d at 665.

Smith v. Stoner, 594 F.Supp. 1091, 1105 (N.D.Ind.1984). "`Property cannot be defined by the procedures provided for its deprivation any more than can life or liberty." Cleveland Bd. of Education v. Loudermill, ___ U.S. ___, ___ - ____, 105 S.Ct. 1487, 1492-1493, 84 L.Ed.2d 494 (1985).

Olim sets forth the test for determining whether an underlying and supporting parent substantive right exists which begets "yet other rights to procedures essential to the realization of the parent right," Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 463, 101 S.Ct. 2460, 2464, 69 L.Ed.2d 158 (1981). "A state creates a protected liberty interest by placing substantive limitations on official discretion." Olim, 461 U.S. at 249, 103 S.Ct. at 1747. A "crucial focus in determining whether an individual has a legitimate claim of entitlement to a protected liberty interest is the nature of the interest at stake, not the source of the purported liberty interest." Smith, 594 F.Supp. at 1105 citing Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103, 60 L.Ed.2d 668 (1979); Board of Regents v. Roth, 408 U.S. 564, 571, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972).

Here I.C. XX-XX-X-X does not place substantive limitations on official discretion regarding the opening of legal mail such that a protected liberty interest is created. The court's conclusion regarding XX-XX-X-X would likely be different if the statute forbade the opening of legal mail under any circumstances. But, I.C. XX-XX-X-X does not so forbid prison officials. It gives officials the discretion, pursuant to the terms of XX-XX-X-X, to open legal mail in the presence of an inmate for the purpose of examining the contents for contraband or prohibited property where the officials have reasonable grounds to believe that contraband or prohibited property may be contained within the legal mail. I.C. XX-XX-X-X is in exact accord with the procedure set forth by the United States Supreme Court regarding legal mail as being in compliance with minimum due process rights. I.C. XX-XX-X-X does not go beyond the insuring of minimum due process rights nor does it need to go beyond the dictates of Wolff. The limitation of "reasonable grounds" is not a limitation of any substance or weight upon prison officials' discretion in the State of Indiana to determine to open legal mail in the presence of the inmate. I.C. XX-XX-X-X is a state created procedural right and is not itself a liberty interest within the meaning of the fourteenth amendment.

Even assuming for the sake of discussion that I.C. XX-XX-X-X does create a substantive liberty interest protected by the fourteenth amendment, the evidence adduced at the evidentiary hearing clearly demonstrates that the policy instituted by the defendants does not violate the terms of I.C. XX-XX-X-X. The evidence shows that contraband is found with some frequency in legal mail. See Transcript at pp. 12, 16, 99-100. Among the items of contraband which have been discovered in legal mail are money, postal money orders, narcotic drugs, and marijuana. There was also evidence at the hearing that the presence of money or postal money orders could not be detected without opening the legal mail. See Transcript at pp. 21-22. Over one hundred instances have occurred in which contraband, including postal money orders, has been found in legal mail incoming to the Indiana State Prison at Michigan City, Indiana. Transcript at p. 100.

The defendants in this instance have more than reasonable grounds to believe that a piece of legal correspondence may contain contraband or prohibited property. Particularly, in the plaintiff's specific instance, there is evidence in the record that the plaintiff was apparently involved in the postal money order scheme discovered operating at the Indiana State Prison. Transcript at pp. 102-03, 108. The prison officials had reasonable grounds in the plaintiff's case to believe that a piece of legal correspondence might contain contraband or prohibited property such that the defendants could choose to open the legal mail in the presence of the plaintiff for the purpose of examining the contents for contraband or prohibited property. All of the testimony by the defendants and other prison officials, credited by the Magistrate, was that the legal mail of plaintiff was not tampered with or altered prior to its being opened in the...