National Prisoners Reform Association v. Sharkey, Civ. A. No. 4884.

• Decision Date: 09 May 1972
• Docket Number: Civ. A. No. 4884.
• Citation: 347 F. Supp. 1234
• Parties: NATIONAL PRISONERS REFORM ASSOCIATION v. John SHARKEY.
• Court: U.S. District Court — District of Rhode Island

347 F. Supp. 1234

NATIONAL PRISONERS REFORM ASSOCIATION v. John SHARKEY.

Civ. A. No. 4884.

United States District Court, D. Rhode Island.

April 28, 1972.

Opinion on Motion for Preliminary Injunction May 9, 1972.

John Roney, R. I. Legal Services, Ralph Gonnella, Providence, R. I., Max Stern, Mass. Law Reform Institute, Boston, Mass., for plaintiffs.

W. Slater Allen, Jr., Asst. Atty. Gen., for State of Rhode Island, Providence, R. I., for defendants.

OPINION

PETTINE, Chief Judge.

Plaintiff, the National Prisoners Reform Association, on behalf of itself and its members, seeks a temporary restraining order from this Court. It seeks to restrain defendant, John Sharkey, who is Assistant Director for Corrections of the Rhode Island Department of Social and Rehabilitative Services from

"A. Banning, preventing, interfering or otherwise impeding, except by reasonable pre-existing regulation, meetings by members of the Association within the prison, at times and places approved by the defendant, for the purpose of planning prospective programs, discussing and directing the course of this action and any action filed against the corporate charter of the plaintiff.

B. From barring the outside members or the plaintiff Association, namely, Charles Fortes, Larry A. Schwartz, Wendy Sloan, Kathryn Duncle, Jane Fales, and Carol Kelly, from the Adult Correctional Institutions and from restricting them access thereto except by reasonable pre-existing regulations which are applied to all prison visitors."

The restraining order is sought pending hearing on preliminary injunction.

In light of the public interest involved in this law suit, this Court did not wish to enter an ex parte restraining order and required defendant to show cause why a restraining order should not issue. An evidentiary hearing having been held, the Court finds the following facts.

On April 5, 1972, the first formal meeting of the plaintiff organization was held. It was held at the Adult Correctional Institution, and was attended by 12 to 14 people, including six or more inmates, Warden Francis Howard, Larry Schwartz, and Carol Kelly. Warden Howard and others testified, and I so find, that at this April 5 meeting the goals of the organization, proposed by-laws and a proposed constitution were discussed. The goals of the organization, as defined by its members, are to improve prison conditions and to make people outside of the prison aware of conditions within. Specific goals may be to apply for a federal grant, to give prisoners a voice in the construction of any new penal institutions in Rhode Island, to beautify wings of the prison, to contact people outside the prison to provide jobs for released inmates, and to obtain funds to provide more money on release to inmates sent back into the community outside. The organization resulted from a series of informal meetings held in March 1972 at the A.C.I. and was incorporated. It seeks its membership from both inside and outside of the prison walls and anticipates having membership by ex-convicts. It is a dues paying organization.

Warden Howard gave permission for the group to meet again on April 13, 1972. This meeting was not held because defendant Sharkey ordered that the group was not allowed to meet. Witness Palmigiano, an inmate and president of the plaintiff organization, testified that he then asked to speak to the press and was told the press was not allowed to see them. At the time he left the April 5, 1972 meeting, Warden Howard did not consider the group to be an immediate threat to the security of the institution. At the time he testified, Warden Howard had made no decision "up or down" about the plaintiff organization.

Defendant Sharkey is Warden Howard's superior.

The Warden and others testified, and I so find, that there are organizations of inmates permitted at the A.C.I., including the Afro-American Society, the Jay-Cees, the Lifer's Association, the Challenge, the Inmate Advisory Board, and others. Like the plaintiff organization, the Inmate Advisory Board is incorporated. These several organizations are generally permitted to meet regularly, to announce meetings, to use meeting rooms, and to use the mimeograph machine. Persons from outside the prison are allowed to attend meetings of some of these organizations and some of these organizations are allowed to collect dues. The Jay-Cees is a group whose purpose is to better prison conditions and it is allowed outside members. It sponsors a legislative forum in which other prison organizations are invited to participate. These organizations are not, in the opinion of the Warden threats to the security of the A.C.I. There are no written A.C.I. rules or regulations about inmate organizations and access to them by the outside visitor, but there are unwritten regulations and policies.

The only thing which seems to be unique to the plaintiff organization out of all of these groups is its interracial character. In the testimony of witness Palmigiano, this is the first group at the A.C.I. to have black and white members working together. The present members of plaintiff National Prisoners Reform Association includes the president and vice-president of the Afro-American Society, the editor and assistant editor of the Challenge, and the president and vice-president of the Jay-Cees. Thus it appears to be an interracial centralized organization interested in improving prison conditions. The plaintiff organization has engaged in no activities other than holding non-disruptive meetings. In the opinion of its president, if the organization is not allowed to meet it is in danger of disbanding due to loss of interest and loss of momentum. The mere fact that mixed racial membership has managed to meet has reduced racial tension, in his opinion, and this effect would be lost.

I note that the membership of the organization drawn from outside the prison includes several young women, members of the Rhode Island Junior League.

The Warden testified that it is the policy of the A.C.I. not to allow visits by ex-convicts. In his opinion, it is necessary for the institution to have ultimate control of visitors, both receiving notice and giving consent for visits in his best judgment. Defendant Sharkey testified that although Warden Howard knew of plaintiff organization, neither he nor the Director of the Department of Social and Rehabilitative Services knew of the establishment of this organization prior to April 12, 1972. He testified that inmate organizations cause supervisory problems in that correctional officers must be assigned to attend meetings rather than other duty posts, that the financial records of the organizations must be supervised, that it additionally burdens mail personnel, and it increases evening work and overtime pay.

Conclusions of Law

In order to prevail in its motion for temporary restraining order, plaintiff must show (1) immediate and irreparable injury, (2) probability of success on the merits, and (3) that the harm to movant outweighs the harm to the opposing party and to the public. North Smithfield Drive-In Theatre v. Town Council of North Smithfield, C.A. 4787 (D.R.I. Nov. 30, 1971).

Irreparable Injury

Deprivation of the First Amendment rights of the members of plaintiff organization is in and of itself irreparable injury. Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L. Ed.2d 22 (1965); Unemployed Workers Union v. Hackett, 332 F.Supp. 1372 (D. R.I.1971). Were this not enough, plaintiff suffers the danger that it will not be able to survive the duration of defendant's ban on its meetings, surely an irreparable existential injury; or that its attempts at racial harmony will not survive the ban, perhaps an injury fatal to its raison d'etre. Thus the danger is raised of a threat to this Court's continuing jurisdiction of this matter in that any relief which may be afforded later may be meaningless. I find sufficient injury to support issuance of a restraining order.

Probability of Success

Recognizing that the freedom to exercise First Amendment rights may be less absolute behind prison walls than on the outside, I also recognize the proposition that

"A prisoner retains all the rights of an ordinary citizen except those expressly, or by necessary implication, taken from him by law."

Coffin v. Reichard, 143 F.2d 443 (6th Cir. 1944), cert. denied 325 U.S. 887, 65 S.Ct. 1568, 89 L.Ed. 2001 (1945).

The asserted violations of constitutional rights by defendant are here manifold. Violated are the rights of the members to associate and the rights of the association and its members to equal protection of the laws, according to plaintiff's allegations. To this may be added further First Amendment considerations, including the right to associate and engage counsel for vindication of member's rights, see NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963), and the correlative right to meet with counsel. Nolan v. Scafati, 430 F.2d 548 (1st Cir. 1970). There is also the right to associate for more effective utilization of the right to petition for redress of grievances, see Unemployed Workers Union v. Hackett, 332 F.Supp. 1372 (D.R.I.1971). And, finally the right of the inmates to speak and of the public to hear:

We rely primarily on the fact that the condition of our prisons is an important matter of public policy as to which prisoners are, with their wardens, peculiarly interested and peculiarly knowledgeable. The argument that the prisoner has the right to communicate his grievances to the press and, through the press, to the public is thus buttressed by the invisibility of prisons to the press and the public: the prisoners' right to speak is enhanced by the right of the public to hear."

Nolan v. Fitzpatrick, 451 F.2d 545 (1st Cir. 1971).

There is a high probability that, on the merits, it will be found that there is a First Amendment right to associate as and for the reasons that plaintiff has organized....