Morris v. Affleck, 7710.

• Decision Date: 06 January 1971
• Docket Number: No. 7710.,7710.
• Citation: 437 F.2d 82
• Parties: Joseph MORRIS et al., Plaintiffs, Appellees, v. John R. AFFLECK, Director, etc., et al., Defendants, Herbert F. DeSimone, Appellant.
• Court: U.S. Court of Appeals — First Circuit

437 F.2d 82 (1971)

Joseph MORRIS et al., Plaintiffs, Appellees, v. John R. AFFLECK, Director, etc., et al., Defendants Herbert F. DeSimone, Appellant.

No. 7710.

United States Court of Appeals, First Circuit.

January 6, 1971.

Donald P. Ryan, Asst. Atty. Gen., with whom Herbert F. DeSimone, Atty. Gen., was on the brief, for appellant.

Robert L. Barton, Jr., Providence, R. I., with whom Cary J. Coen, Providence, R. I., and Stanley A. Bass, New York City, were on the brief, for Raymond Wilbur, appellees.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

COFFIN, Circuit Judge.

The plaintiff below, an inmate in a Rhode Island prison, claimed the state was prosecuting him because he had exercised certain rights guaranteed prisoners by an earlier consent decree issued by the District Court of the District of Rhode Island. The district court held no evidentiary hearing, but did hear arguments from counsel before entering a preliminary injunction against the state proceedings. Before defendants could obtain review of that order in this court, the district court dissolved the preliminary injunction. Plaintiff now moves to dismiss the appeal as moot.

Defendants urge that the appeal is not moot because there is involved a continuing controversy between state officials and the prisoners over the rights of prisoners. If any of these prisoners are prosecuted, say defendants, they will seek a similar injunction, which the defendants believe the district court has no power to grant.

We recognize the "recurring controversy" exception to the normal rule against hearing cases no longer in dispute. See Marchand v. Director, U. S. Probation Office, 421 F.2d 331, 333-334 (1st Cir.1970). We do not think, however, that the possibly continuing controversy between state officials and prisoners means that there is also the likelihood of continuing controversy over whether the district court has power to temporarily enjoin any state prosecutions against prisoners. The court has done so in only one instance; this is not like a situation where an agency continually issues short term orders on the basis of questionable authority. Southern Pacific Terminal Co. v. I.C.C., 219 U.S. 498, 31 S.Ct. 279, 55 L.Ed. 310 (1911). Moreover, in some limited circumstances the district court clearly has authority to enjoin state prosecutions of prisoners. 28 U.S.C. § 2283; Drombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L. Ed.2d 22 (1965). Whether this preliminary...