Metcalf v. Ogilvie

Decision Date28 December 1970
Docket NumberNo. 17996.,17996.
PartiesJames C. METCALF, Plaintiff-Appellant, v. Illinois Governor, OGILVIE, Illinois Attorney General, Scott, Illinois Director Department of Public Safety, Brown, Illinois State Penitentiary Warden, Pate, Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

James C. Metcalf, pro se.

William J. Scott, Atty. Gen., Joel M. Flaum, Warren K. Smoot, Robert E. Davison, Asst. Attys. Gen., Chicago, Ill., for defendants-appellees.

Before HASTINGS, Senior Circuit Judge, and KILEY and FAIRCHILD, Circuit Judges.

HASTINGS, Senior Circuit Judge.

Plaintiff James C. Metcalf is a prisoner of the State of Illinois and is presently incarcerated in the Illinois State Penitentiary, Joliet-Stateville Branch. He has acted pro se throughout these proceedings and on this appeal. He was granted leave to proceed in forma pauperis in the district court and has attempted to bring an action under the Federal Civil Rights Act, 42 U.S.C.A. § 1983.

On July 1, 1969, he filed a pleading in the district court1 in the nature of a complaint entitled "Petition For Three Judge Court Injunction". In broad conclusionary terms he alleged that he was subject to solitary confinement solely because of his religion and race. He sought to enjoin defendants2 from confining him in the segregation unit of the state penitentiary.

He further alleged in conclusionary terms that the Illinois enabling statute, Ill.Rev.Stat.1967, Ch. 108, § 10,3 delegating to the Department of Public Safety4 the authority to make and enforce general rules, regulations and orders for the government and discipline of the penitentiary, although not unconstitutional on its face, was unconstitutional as applied to him.

Plaintiff requested the district court to convene a three-judge court pursuant to 28 U.S.C.A. § 2281,5 to determine the merits of his complaint.

On August 19, 1969, in a memorandum opinion, the district court denied the request for a three-judge court for the reason that it found the claim of unconstitutional application of the enabling statute, supra, to be clearly without merit. The trial court went on to consider the substance of the claim of racial and religious discrimination and found it to be wholly conclusionary and without support in the documentary correspondence submitted. Finding that plaintiff was entitled to no relief, the court dismissed the complaint. Plaintiff appealed.

The sole question before us on this appeal is whether the district court erred in denying plaintiff's request for a three-judge district court. Plaintiff seeks a remand for the convening of such a court. There are a number of reasons why plaintiff's appeal must fail.

One of the prerequisites of § 2281, supra, requiring the convening of a three-judge district court is that a substantial federal constitutional question must be presented. The district court found and held the claim of unconstitutional application of the subject enabling statute to be "clearly without merit." The Supreme Court has held that essential to the jurisdiction of a three-judge court is the question of its jurisdiction; that essential to jurisdiction is a substantial claim of federal unconstitutionality; and that three judges are not required to pass upon this initial question. Ex parte Poresky, 290 U.S. 30, 31-32, 54 S.Ct. 3, 78 L.Ed. 152 (1933). The Court further held that the constitutional question may be plainly unsubstantial if it is "obviously without merit." Ibid.6

In order to state a cause of action under the Federal Civil Rights Act a complaint must set forth more than bare unsupported conclusionary allegations in support of constitutional deprivation. Ortega v. Ragen, 7 Cir., 216 F.2d 561, 563 (1954). In liberally construing a pro se pleading, as we do here, we conclude the district court was correct in finding that the complaint failed to state a cause of action. In so failing, plaintiff failed to present a substantial constitutional question. As Judge Kiley stated in an analogous situation: "It follows that * * * the district court did not err in refusing the request for a three-judge court * * *." Brown v. Dunne, 7 Cir., 409 F.2d 341, 344 (1969).

All parties agree that the instant enabling statute is constitutional on its face and thus properly vests control of the management of state penitentiaries in a state agency (State Department of Public Safety) with wide discretion to safeguard and discipline prisoners. See Cooper v. Pate, 7 Cir., 382 F.2d 518, 521 (1967). Here the specific challenge to the enabling statute is in reality to the alleged unconstitutional conduct of the prison officials in ordering plaintiff held in solitary confinement. Section 2281, supra, is not "a measure of broad social policy to be construed with great liberality, but as an enactment technical in the strict sense of the term and to be applied as such. * * * But an attack on lawless exercise of authority in a particular case is not an attack upon the constitutionality of a statute conferring the authority even though a misreading of the statute is invoked as justification." Phillips v. United States, 312 U.S. 246, 251-252, 61 S.Ct. 480, 484, 85 L.Ed. 800 (1941).

In the instant case, it would appear that the present distinction is between a challenge to a statute as applied and a challenge to the result of the use of a constitutional statute. The Court has said: "It is necessary to distinguish between a petition for injunction on the ground of the unconstitutionality of a statute as applied, which requires a three-judge court, and a petition which seeks an injunction on the ground of the unconstitutionality of the result obtained by the use of a statute which is not attacked as unconstitutional. The latter petition does not require a three-judge court." Ex parte Bransford, 310 U.S. 354, 361, 60 S.Ct. 947, 951, 84 L.Ed. 1249 (1940). Cf., Turner v. Fouche, 396 U.S. 346, 353-354, footnote 10, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970).

Finally, as best we can decipher plaintiff's claims in his complaint and attached exhibits of correspondence with state officials, he asserts he is a member of "Jehovah's Witnesses" and has been seeking certain religious materials by mail; that ...

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  • Comtronics, Inc. v. Puerto Rico Tel. Co.
    • United States
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    • June 17, 1975
    ...conclusionary allegations of constitutional deprivation. Serzysko v. Chase Manhattan Bank, 461 F.2d 699 (2 Cir. 1972); Metcalf v. Ogilvie, 436 F.2d 361 (7 Cir. 1970); Finley v. Rittenhouse, 416 F.2d 1186 (9 Cir. 1969); Negrich v. Hohn, 379 F.2d 213 (3 Cir. 1967); Pugliano v. Staziak, 231 F.......
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    ...rights complaint be specific in its factual assertions. The court of appeals for this circuit very recently stated in Metcalf v. Ogilvie, 436 F.2d 361 (7th Cir. 1970): "In order to state a cause of action under the Federal Civil Rights Act a complaint must set forth more than bare unsupport......
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    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • August 1, 1977
    ...to find inferences favorable to the plaintiffs which are not apparent on the face of this civil rights complaint. Metcalf v. Ogilvie,436 F.2d 361, 363 (7th Cir. 1970). Especially in the school desegregation area, conclusory pleading such as evidenced in this complaint is woefully inadequate......
  • Tucker v. Harley Davidson Motor Co.
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    ...must set forth more than bare unsupported conclusionary allegations in support of constitutional deprivation." Metcalf v. Ogilvie, 436 F.2d 361, 363 (7th Cir. 1970); Scott v. Larson, 58 F.R.D. 131 (E.D.Wis.1973). Therefore, I am persuaded that the plaintiff's claim under 42 U.S.C. § 1985(3)......
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