Munz v. Nix, 89-1030

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtBefore LAY, Chief Judge, HEANEY, Senior Circuit Judge, and JOHN R. GIBSON; HEANEY; JOHN R. GIBSON
Citation908 F.2d 267
PartiesThomas A. MUNZ, Appellant, v. Crispus C. NIX; Ronald G. Welder; Charles Harper; Kyle Bowden; David Babcock; and Charles W. Lee, Appellees.
Docket NumberNo. 89-1030,89-1030
Decision Date05 July 1990

Brian L. Wirt, Des Moines, Iowa, for appellant.

Kristin W. Ensign, Des Moines, Iowa, for appellees.

Before LAY, Chief Judge, HEANEY, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.

HEANEY, Senior Circuit Judge.

At issue on this appeal is whether a state prisoner may bring a section 1983 action in federal court to challenge a decision of prison officials prohibiting him from serving as a jailhouse lawyer without first exhausting state judicial relief under Offet v. Solem, 823 F.2d 1256 (8th Cir.1987). The district court held that exhaustion was required. We reverse.


Thomas Munz is a prisoner at the Iowa State Penitentiary (ISP), where he has functioned as a jailhouse lawyer. On April 20, 1988, he sent a letter to his brother, also an inmate at the same institution, marked "legal mail." The four-page letter discussed the law as related to prisoners' rights and remedies generally. The last page of the letter contained what has been construed as a threat against Thomas Munz's former lawyer. During a prison shakedown, a guard noticed an envelope in Munz's brother's cell containing matches and the letter. The guard opened the letter, read it, and turned it over to prison officials. A prison tribunal found Munz guilty of making physical threats in the letter. As punishment for writing the letter, he was sentenced to solitary confinement for fifteen days, confinement in administrative segregation for an additional six months, loss of 180 days of earned good-time credit, and loss of jailhouse lawyer rights for one year. 1

Munz simultaneously filed pro se complaints in state and federal court. His federal civil rights action under 42 U.S.C. Sec. 1983 sought injunctive relief and damages from the decision to suspend his right to function as a jailhouse lawyer. 2 The defendants are the warden and the prison administrative officials who imposed or upheld the sanctions. Munz claims that the restrictions placed on his doing legal work for other prisoners violates his and other prisoners' constitutional rights and is contrary to past settlement decrees governing the prison, 3 in particular the decree reached in Gavin v. Ray, No. 78-62-2 (S.D.Iowa The district court denied preliminary injunctive relief and stayed further consideration of Munz's complaint pending exhaustion of state post-conviction relief. It stated: "The decision in Offet v. Solem, 823 F.2d 1256 (8th Cir.1987), requires that these proceedings be stayed. There is available to plaintiff a state remedy; he may challenge his confinement under Iowa Code Sec. 663A.2(6)." Initial Review Orders at 2 (Dec. 2, 1988). Munz appealed and we directed that counsel be appointed. Counsel focuses only on Munz's right to act as a jailhouse lawyer and argues that the district court erred in staying the entire action because Offet does not apply to challenges to the conditions of confinement. We agree.

                May 3, 1984).  Gavin was a class action lawsuit for all prisoners at ISP raising numerous constitutional challenges to the disciplinary practices used at ISP during the late 1970s. 4   The consent decree carefully worked out a system by which prisoners in administrative segregation could have access to law books and to the courts so that their complaints of mistreatment might be quickly known.  The decree further provided that any prisoner in administrative segregation would have the right to receive or offer legal assistance to other prisoners. 5   To insure that the decree was enforceable, the parties agreed that "[t]he Court will retain jurisdiction to consider compliance with this Agreement and decree...."  Settlement Agreement at 3

Initially, the State argues that the district court's order is not appealable. We disagree. The stay is a collateral order and therefore appealable under Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949), and its progeny. The requirements of a collateral order are that (1) it conclusively determine the disputed question, (2) the issue must be separate and distinct from the merits, and (3) the decision must be effectively unreviewable on appeal. Nixon v. Fitzgerald, 457 U.S. 731, 742, 102 S.Ct. 2690, 2697, 73 L.Ed.2d 349 (1982); Johnson-El v. Schoemehl, 878 F.2d 1043, 1046 (8th Cir.1989). The district court's interpretation of Offet is separate from the merits of Munz's claims and conclusively determines the issue of the court's jurisdiction. Offet creates a limited exception to a citizen's right to have his or her civil rights claim heard in federal court. Forcing a prisoner to bring his claim in state court first can effectively sacrifice that right. See Idlewild Liquor Corp. v. Epstein, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962) (per curiam) (stay in favor of state proceedings to determine constitutionality of state statute is an appealable order); see also Moses H. Cone Hosp. v. Mercury Constr., 460 U.S. 1, 9-10, 103 S.Ct. 927, 933-34, 74 L.Ed.2d 765 (1983) (discussing Idlewild ). We thus consider whether the stay was appropriate. 6


Offet requires that section 1983 actions must be stayed pending state exhaustion if the 1983 action would necessarily have a preclusive effect in subsequent state proceedings considering the duration of a prisoner's sentence. 823 F.2d at 1258. Offet does not require that challenges to confinement conditions be stayed. Bressman v. Farrier, 900 F.2d 1305, 1307 (8th Cir.1990). 7

Munz's complaint sought a determination of whether his right to communicate with other prisoners regarding legal problems could be restricted. The district court erred in not deciding this claim. Accordingly, the district court should have assumed that Munz violated prison rules and decided whether the prison authorities had a right to deprive Munz of his jailhouse lawyer rights. It also should have considered whether it had jurisdiction under

the consent decree of Gavin v. Ray and decided whether any part of the decree was violated.


Munz's state post-conviction petition challenged the search of his brother's cell, the disciplinary procedures, and the sanctions imposed. In one sentence of his state petition, Munz challenged the loss of his jailhouse lawyer rights. Munz v. Iowa, No. PCR 1833(N)0288, Petition at 6 (Lee Co. Dist. Ct. Sept. 7, 1988). He also asked for the nullification of all sanctions imposed. The state court did not mention the suspension of his jailhouse lawyer rights in listing Munz's contentions, in listing the sanctions Munz had received, or in rejecting Munz's petition. The state court indicated, however, that it had reviewed all his claims. Munz timely appealed to the Iowa Supreme Court. He failed to file a brief, however, and his appeal was dismissed on October 3, 1989 for failure to prosecute. Munz v. Iowa, No. 89-721 (Iowa Oct. 3, 1989) (dismissed pursuant to Iowa Appellate Procedure Rule 19(a)).

If the district court's jurisdiction is triggered under Gavin v. Ray, then res judicata may not be available for allegations relating to the Gavin decree to any defendant in privity with the defendants in Gavin. 8 By bestowing continuing jurisdiction on the district court, the defendants in Gavin may have waived the right to use estoppel as a device for defeating the district court's independent review and interpretation of the agreement. They agreed that:

The Court will retain jurisdiction to consider compliance with this Agreement and decree, as well as to consider modifications deemed necessary by the parties but not otherwise provided for herein.

It is the express intent of the parties that the Court will have authority to consider the purposes of the Agreement, recommendations of the parties, the security and order needs of the institution, and prisoner rights in reviewing disputes as to the Agreement and its development and implementation as well as subsequent modifications.

The Court shall require the parties to attempt to work out any differences of opinion in the interpretation of the Agreement and decree or in the development and implementation of such or in efforts to modify the Agreement prior to filing requests for modification or applications for an order to show cause on a class-wide basis.

Settlement Agreement at 3. Were it otherwise, Offet would deprive the district court of jurisdiction in clear conflict with the parties' agreement. Res judicata is an affirmative defense which can be waived by state authorities.

If the district court does not have independent jurisdiction under Gavin or does not interpret the decree as waiving any rights, and if Munz has received a full and fair hearing, then the district court must give the same preclusive effect to state court judgments as a court in the same state would. 28 U.S.C. Sec. 1738 (1966); Allen v. McCurry, 449 U.S. 90, 99, 101, 101 S.Ct. 411, 417, 418, 66 L.Ed.2d 308 (1980).


Accordingly, we reverse and remand to the district court. On remand, the district court must review all the issues raised in the complaint to determine the scope of the action in light of this opinion and any changes in Munz's condition. Next, the district court should consider whether this matter implicates the consent decree of Gavin v. Ray, and may transfer this case to the judge who presided over Gavin v. Ray for proceedings consistent with this opinion.

JOHN R. GIBSON, Circuit Judge, dissenting.

I respectfully dissent. Thomas A. Munz has presented to the district court a miscellaneous group of claims based upon his loss of eight days of earned good-time credit as well as his loss of the right...

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