Noble v. Wilkinson, Civ. Misc. No. 5-68.

• Decision Date: 12 September 1968
• Docket Number: Civ. Misc. No. 5-68.
• Parties: Jack Lee NOBLE, Plaintiff, v. Fred T. WILKINSON, Harold R. Swenson, and Lt. Wyrick, Defendants.
• Court: U.S. District Court — Western District of Missouri

289 F. Supp. 773

Jack Lee NOBLE, Plaintiff, v. Fred T. WILKINSON, Harold R. Swenson, and Lt. Wyrick, Defendants.

Civ. Misc. No. 5-68.

United States District Court W. D. Missouri, Central Division.

September 12, 1968.

Jack Lee Noble, pro se.

MEMORANDUM AND ORDER

JOHN W. OLIVER, District Judge.

I.

On June 17, 1968 we denied plaintiff's application for federal habeas corpus on the merits. See Noble v. Swenson (W.D. Mo.1968), 285 F.Supp. 385. On August 19, 1968 plaintiff presented for later filing a pleading labeled "Civil Rights Suit and Motion for Restraining Order." In his letter of transmittal plaintiff instructed the Clerk to hold that document for filing until August 29, 1968. On August 28, 1968 plaintiff forwarded to the Clerk a second pleading entitled an "Amendment to the Original Suit."

The usual application to proceed in forma pauperis is attached only to the first pleading. We shall consider that application broad enough to cover both pleadings presented but leave to proceed in forma pauperis will be denied for reasons we now state.

Plaintiff's first pleading alleges that his "present confinement in the maximum security unit of the Missouri penitentiary is detrimental to his health" and allegedly "in violation of the `cruel and unusual punishment' clause of the Constitution of the United States."¹ Plaintiff alleged that he "suffers from an incurable disease; chronic bronchitis" and that confinement in the maximum security unit could aggravate that allegedly chronic condition so that it might become acute and thereby "result in the plaintiff's demise."

Plaintiff's first prayer for relief is for an order "restraining the defendants from confining this plaintiff in any manner or way which is detrimental to his health." That prayer must and will be treated as an application for habeas corpus relief.

Plaintiff's second prayer for relief is that this Court "make and issue its proper order in the premises awarding plaintiff $50,000 actual damages to plaintiff's health and $50,000 punitive damages." That prayer must and will be treated as an effort to plead an action for damages.

II.

We deal first with plaintiff's effort to invoke our habeas corpus jurisdiction. In Winford v. Wilkinson (W.D.Mo.1968), 288 F.Supp. 916, this day decided, we dealt with a complaint tendered by another inmate of the Missouri penitentiary in which that inmate, as does this plaintiff, in part sought to obtain his removal from the maximum security unit to the general population of that institution. We treated that portion of the complaint in Winford, as we treat a portion of plaintiff's complaint in this case, as an effort to invoke the habeas corpus jurisdiction of this Court. In that case, as in this, the plaintiff did not allege that he had unsuccessfully attempted to exhaust his apparently available state court remedy of habeas corpus. In both cases it is obvious from the allegations of both complaints that neither plaintiff would have had time to have exhausted available state court remedies if he had in fact attempted to do so.

The principles stated in Winford concerning the exercise of our habeas corpus jurisdiction are applicable to that portion of the plaintiff's complaint in this case that seeks federal habeas corpus relief. For the reasons stated in Winford, which we incorporate as a part of our memorandum opinion in this case by this reference, we refuse to grant plaintiff leave to proceed in forma pauperis in regard to that portion of his claim. We shall continue to do so until it is appropriately demonstrated, preliminarily by the pleadings and thereafter by appropriate pretrial procedures, that plaintiff has exhausted his apparently available state court remedy of habeas corpus.

III.

We turn now to plaintiff's effort to have this Court exercise its discretion to permit him to proceed in forma pauperis in regard to his alleged claim for damages. The rationale of what we said in Winford in regard to plaintiff's attempt in that case to obtain leave to proceed in forma pauperis for the purpose of invoking jurisdiction conferred by Sections 1983 and 1985 of Title 42, United States Code, and Section 1343 of Title 28, United States Code, is generally applicable to plaintiff's similar effort in this case.²

Winford presented a more narrow question than that presented by this case. The question presented in Winford was whether the plaintiff in that case had complied with an interlocutory order entered in an earlier case in which he sought leave to proceed in forma pauperis. The pleadings presented by plaintiff in this case represent his first attempt to obtain leave to proceed in forma pauperis. Because it is not unlikely that the situation presented in this case may be presented in later cases it is therefore appropriate for that and other reasons to add to what we said in Winford.

Winford (No. 1333) was one of twenty-five separate cases included in the group of cases involving prisoners in the Missouri penitentiary reported as Burns et al. v. Swenson (W.D.Mo.1968), 288 F. Supp. 4; Cupp et al. v. Swenson (W.D. Mo.1968), 288 F.Supp. 1, and Griffin v. Turner et al. (W.D.Mo.1968), 288 F. Supp. 12. Our opinion in those cases took note of the fact that the Missouri Department of Corrections has recently promulgated and put into effect a completely revised set of rules and regulations regulating inmate conduct at the Missouri State Penitentiary.

In those cases we found and determined that confinement in the maximum security unit of that institution standing alone, did not constitute cruel and unusual punishment, within the meaning of the Constitution of the United States. We judicially approved the new rules and regulations, finding and determining that they were consistent with all applicable due process requirements of the Constitution of the United States.

We there stated that questions of whether defendants were in fact following the new administrative rules and regulations as they might be applicable to a particular inmate must be treated with very specific and individual judicial scrutiny. We stated in Cupp that:

It is clear that no court has jurisdictional power, inclination, time, or expertize to administer the normal disciplinary problems of the Missouri State Penitentiary. Such is clearly the ordinary business of the administration and employees of the Department of Corrections, subject only, so far as this Court is concerned, to the standards required by the Constitution of the United States.

We also stated in that case that:

The only legitimate forma pauperis invocation of this Court's jurisdiction can be made pursuant to the exercise of its discretion under Section 1915, Title 28, United States Code, in a case in which an inmate alleges that a federally protected constitutional right has been or is presently being violated by an employee of the Department of Corrections acting under color of state law. If an inmate has not given those responsible for the administration of the institution an opportunity to correct an alleged violation by a subordinate employee, it is indeed difficult to see how those in charge of the institution can be said to have deprived the particular inmate of some right. Certainly this factor is one that should be taken into account in regard to the exercise of discretion vested by Section 1915.

We refused to grant leave to proceed in forma pauperis in Cupp et al. until the plaintiffs there involved had first exhausted the administrative remedy provided in the Grievance Procedures recently established by the Department of Corrections. Specifically, we ordered that any new or amended complaint that might be presented for filing by any of those plaintiffs shall state with particularity the steps taken by the particular plaintiff to obtain appropriate administrative review and that leave to file any new or amended complaint in forma pauperis would not be granted unless the complaint appropriately contained such a statement.

Those orders were entered in light of the extensive proceedings had in the Burns group of cases and in light of the controlling principles stated by our Court of Appeals in regard to considerations that control the exercise of the broad discretion vested in the district courts by Section 1915 of Title 28, United States Code. Those principles are stated in Carey v. Settle (8th Cir. 1965), 351 F.2d 483 at 484:

Prisoners will not lightly be permitted to use 28 U.S.C.A. § 1915 (a) to institute suits for damages or injunction against the officials in whose custody they have been placed for confinement. Taylor v. Steele, 8 Cir., 191 F.2d 852, 853. Such actions are too frequently mere outlets for general discontent in having to undergo penal restraint or of personal satisfaction in attempting to harass prison officials. A court therefore should be satisfied that there exists substantiality as to such a claim, of justiciable basis and of impressing reality before it permits a prisoner to maintain an action therefor on informa-pauperis privilege. Weller v. Dickson, 9 Cir., 314 F.2d 598, 601-602 (concurring opinion).

Plaintiff in this case demonstrated a familiarity with our findings and orders entered in Burns, Cupp and Griffin. In his first pleading he stated: "Plaintiff urges the Court to forego the five step grievance procedure" for the alleged reason that "plaintiff has tried, unsuccessfully, to obtain adequate relief from the respondents since June 10, 1968." He also alleged in his first pleading that he had furnished his caseworker a carbon copy of the complaint he now seeks to file in this Court but that he had not heard anything further from him at the time he forwarded that first pleading to this Court.

Plaintiff's second pleading makes clear that plaintiff's caseworker treated the copy of plaintiff's first pleading as the first step in the Grievance Procedure and that he properly commenced processing plaintiff's complaint in accordance with the new...