Mingo v. Patterson, Civ. A. No. 78-K-336.

• Decision Date: 12 September 1978
• Docket Number: Civ. A. No. 78-K-336.
• Citation: 455 F. Supp. 1358
• Parties: Henry MINGO, Plaintiff, v. Wayne K. PATTERSON, Arnold L. Miller, and Sergeant Harold S. Burgess, Defendants.
• Court: U.S. District Court — District of Colorado

455 F. Supp. 1358

Henry MINGO, Plaintiff, v. Wayne K. PATTERSON, Arnold L. Miller, and Sergeant Harold S. Burgess, Defendants.

Civ. A. No. 78-K-336.

United States District Court, D. Colorado.

September 12, 1978.

COPYRIGHT MATERIAL OMITTED

Henry Mingo, pro se.

Wesley H. Doan, Lakewood, Colo., Max P. Zall, Gerald Himelgrin, Denver, Colo., for defendants.

ORDER

KANE, District Judge.

This is a Civil Rights action under 42 U.S.C. § 1983 by an inmate at the Colorado State Penitentiary in Canon City, Colorado. The defendants are Wayne K. Patterson, Warden at the Denver County Jail; Arnold L. Miller, Sheriff of the Arapahoe County Sheriff's Department; and Sergeant Harold S. Burgess, employee of the Arapahoe County Sheriff's Department.

Plaintiff claims that, against his wishes, he was transferred back and forth several times between the Arapahoe County Jail and the Denver County Jail; that the conditions of confinement at the Arapahoe County Jail were preferable to those at the Denver County Jail; that he was not allowed to take his personal property with him when he was initially transferred from the Arapahoe County Jail to the Denver County Jail; that while confined at the Denver County Jail he was denied medication that he had taken prior to his arrest and throughout his confinement at the Arapahoe County Jail; and that much of his property was lost by the Arapahoe County Jail.

Defendant Harold S. Burgess filed a motion to dismiss on April 17, 1978 on the grounds that referring to him as "Sergeant Burgess" in the caption of the complaint was improper; and that such a designation does not comply with the Federal Rules of Civil Procedure. Defendant Burgess submits that the court cannot obtain jurisdiction over a party if the defendant is not fully named. This motion is denied since plaintiff, on May 16, 1978, filed a verified petition setting forth the full name and whereabouts of defendant Burgess.

Defendant Arnold L. Miller filed a motion to dismiss on April 17, 1978 on the ground that no personal participation on the part of defendant Miller was alleged in the complaint and that the theory of respondeat superior is still inapplicable to actions under Section 1983.

This circuit has consistently recognized that "personal participation is an essential allegation in a § 1983 claim." Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976); Battle v. Lawson, 352 F.Supp. 156 (W.D.Okl.1972), aff'd, 564 F.2d 388 (10th Cir. 1977). This requirement was recently reaffirmed by the United States Supreme Court in Monell v. Department of Social Services of the City of New York, ___ U.S. ___, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) which held "that a municipality cannot be held liable solely because it employs a tortfeasor . . .." Id. at ___, 98 S.Ct. at 2036 (emphasis in original).

Accordingly, the motion to dismiss filed by defendant Arnold L. Miller is granted.

Similarly, no allegation has been made that Sheriff Wayne K. Patterson, in his capacity as Warden of the Denver County Jail, directed or was personally involved in the acts alleged to have been committed by employes of the Denver County Jail. Accordingly, the claims for relief against Wayne K. Patterson are dismissed for failure to state a claim upon which relief can be granted.

Plaintiff filed a motion for access to a law library on May 16, 1978. See Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969). In Battle v. Anderson, 376 F.Supp. 402, aff'd, 564 F.2d 388 (10th Cir. 1977), the court recognized that

To be meaningful, the right of access to the courts must include the means to frame and present legal issues and relevant facts effectively for judicial consideration.

Because the state has substantial control over the activities of convicted prisoners and because many prisoners are indigent and poorly educated, prison officials have an affirmative constitutional duty to provide them with the necessary means for obtaining access to courts.

Prison law libraries are a basic means of assisting inmates to that end. . . . 376 F.Supp. at 426.

See Gilmore v. Lynch, 319 F.Supp. 105 (N.D.Cal.1970), aff'd, 404 U.S. 15, 92 S.Ct. 250, 30 L.Ed.2d 142 (1971). The district court, in Battle, concluded "that the requirement levied on the State of Oklahoma in this area of constitutional application extends to insuring adequate access to the courts regarding at least . . . civil rights actions under 42 U.S.C. § 1983 . .. Id. at 427.

Accordingly, plaintiff's motion for access to a law library in order to prepare his § 1983 action is granted.

Plaintiff has also filed a motion requesting the appointment of counsel. The appointment of counsel, under 28 U.S.C. § 1915(d), is discretionary with the court. See Kennedy v. Meacham, 540 F.2d 1057 (10th Cir. 1976); Harbolt v. Alldredge, 464 F.2d 1243 (10th Cir. 1972), cert. den., 409 U.S. 1025, 93 S.Ct. 473, 34 L.Ed.2d 319. Although the presence of factual issues in a particular case may justify the appointment of counsel, I am not persuaded that such is the case here. This is especially true since it has been ordered that plaintiff is to be given access to the prison law library. There is no constitutional violation if effective access to the courts is assured through some available means. See Evans v. Moseley, 455 F.2d 1084 (10th Cir. 1972); Johnson v. Anderson, 370 F.Supp. 1373 (D.Del.1974).

Accordingly, plaintiff's motion requesting the appointment of counsel is denied.

Plaintiff has set forth nine separate claims for relief wherein he alleges that his constitutional rights were violated. They shall be addressed individually.

I

Plaintiff claims that his constitutional right to be free from cruel and unusual punishment was violated by the Denver County Jail due to the unsanitary living conditions, the denial of personal items and reading material, and the denial of medication which he had been receiving up to the time of his confinement at the jail. Since plaintiff has failed to sue the proper defendant in this case, i. e., the particular employee who directly and personally participated in this conduct under color of state law, this claim is dismissed without prejudice. See Monell v. Department of Social Services of the City of New York, ___ U.S. ___, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

II

Plaintiff claims that by transferring him back and forth between Arapahoe County Jail and Denver County Jail against his wishes, the law enforcement authorities denied him his first, fifth and fourteenth amendment rights to the United States Constitution. He further claims that his ability to communicate with his attorney in preparation and defense of his case was impeded.

The Supreme Court of the United States, in Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976), settled the question of whether the transfer of a prisoner from more favorable conditions of confinement to more disagreeable surroundings ipso facto violates any constitutional rights. The court held that "we cannot agree that any change in the conditions of confinement having a substantial adverse impact on the prisoner involved is sufficient to invoke the protections of the Due Process Clause." Id. at 224, 96 S.Ct. at 2538. A transfer was deemed to be permissible "so long as the conditions of the confinement do not otherwise violate the Constitution." Id.

Similarly, there are no claims that either of the jails involved closed their doors to plaintiff's attorney. Although these transfers may have caused some inconvenience, they did not amount to a denial of the right to counsel as that right is recognized by the United States Constitution.

Accordingly, the second claim for relief is dismissed for failure to state a claim upon which relief can be granted.

III

Plaintiff claims that the process of transferring him back and forth between jails effectively denied him first amendment rights to freedom of association, speech and expression. People with whom plaintiff wished to visit apparently were discouraged and caused additional expense in traveling to either of the two detention facilities. Any confinement necessarily restricts one's freedom to associate, but otherwise legal pre-trial confinement does not violate the first amendment. There is no allegation that plaintiff was held incommunicado nor is there any allegation of a conspiratorial scheme to deprive plaintiff of human contact or communication. Even the Prisoner of Zenda had acceptable moments of solitude.

Accordingly, plaintiff's third claim for relief is dismissed for failure to state a claim upon which relief can be granted.

IV

Plaintiff also claims that by denying him contact visiting with his psychologist at Denver County Jail his fourteenth amendment rights were violated. Plaintiff urges that this action was arbitrary and capricious. He alleges the absence of any compelling governmental interest and any relevance to the purposes of imprisonment. He further claims that this denial of contact visiting violated his psychologist's right to freely associate and express himself with people of his own choosing.

A complaint should not be dismissed for failure to state a claim unless it clearly appears that the complainant can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Kennedy v. Meacham, 540 F.2d 1057 (10th Cir. 1976); Gregory v. Wyse, 512 F.2d 378 (10th Cir. 1975). Motions to dismiss pro se civil rights actions are rightfully held in disfavor. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).

Federal court deference to administrative officials in the management of penal institutions has been recognized in the absence of deprivations which represent constitutional abuses. Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974). Marchesani v. McCune, 531 F.2d 459 (10th Cir. 1976); Bethea v. Crouse, 417 F.2d 504 (10th Cir. 1969). This...