North Carolina Prisoners' Labor Union, Inc. v. Jones

Decision Date15 March 1976
Docket NumberNo. 75-0089-CRT.,75-0089-CRT.
Citation409 F. Supp. 937
CourtU.S. District Court — Eastern District of North Carolina
PartiesNORTH CAROLINA PRISONERS' LABOR UNION, INC., on behalf of itself and all its members, Plaintiff, v. David L. JONES, Secretary of North Carolina Department of Correction, Ralph Edwards, Commissioner of North Carolina Department of Correction, Defendants.

COPYRIGHT MATERIAL OMITTED

Norman B. Smith, Greensboro, N. C. (Smith, Patterson, Follin, Curtis & James, Greensboro, N. C.), and Deborah G. Mailman, Raleigh, N. C., for plaintiff.

Rufus L. Edmisten, Atty. Gen., Jacob L. Safron, Special Deputy Atty. Gen., Raleigh, N. C., for defendants.

Before CRAVEN, Circuit Judge, BUTLER, Senior District Judge, and DUPREE, District Judge.

MEMORANDUM DECISION

CRAVEN, Circuit Judge:

This is a suit brought pursuant to 42 U.S.C. § 1983 to redress the deprivation of constitutional rights by officers of the state acting under color of state law. The plaintiff's corporate name is said by its counsel to be a misnomer. Permission to operate as a true "labor union" is not sought. The labor-management relations laws of the United States are thus irrelevant and are not invoked. But it is duly incorporated as an eleemosynary institution under the laws of the State of North Carolina.1 Its members and officers are inmates of the North Carolina Department of Correction. Its stated purposes are to work legally and peacefully to alter or eliminate practices of the Department of Correction which are thought to be in conflict with the just, constitutional and social interests of all persons.

The defendants are sued in their official capacities, Mr. Jones as Secretary of the North Carolina Department of Correction, and Mr. Edwards as Commissioner of the North Carolina Department of Correction.

The complaint asks for a permanent injunction against all acts of the defendants declared to be unconstitutional, the award of $100,000 in damages, reasonable attorneys' fees, as well as the usual prayers for the taxation of costs and for such other and further relief as to the court may seem just and proper. We may put some of these prayers to one side.

Damages. Because they are not sued individually, see Burt v. Board of Trustees, 521 F.2d 1201 (4th Cir. 1975), any recovery obtained against these officers of the state would have to be paid out of the state treasury. The eleventh amendment bars such an award against the state, and a § 1983 action against officers of the state falls within the bar of the amendment whenever the monetary impact is upon the state treasury. Edelman v. Jordan, 415 U.S. 651, 662-663, 94 S.Ct. 1347, 1355-1356, 39 L.Ed.2d 662, 672 (1974).

Attorneys' Fees. 42 U.S.C. § 1983 contains no section authorizing the award of attorneys' fees to counsel. Nor does any other act of Congress authorize such an award on the facts of this case. As will appear below, the rights of the Union and its inmate members are so narrow and the resistance of the defendants so limited it cannot be said that defendants' conduct amounts to obdurate obstinancy. See Bradley v. School Board, 472 F.2d 318 (4th Cir. 1972), vacated on other grounds, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974). Since such an award is authorized neither by statute nor federal common law, it must be denied. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L. Ed.2d 141 (1975).

I.

Coming to the question of injunctive relief, what we do not decide in this case is far more important than what we do decide. The most important question is whether prisoners of the state have a constitutional right to join a corporate association of inmates. The Union insists that the first amendment right of the people peaceably to assemble, and to petition the government for redress of grievances, extends to prisoners and that application of that principle validates the Union and the right of inmates to join it.

The defendants do not counter with a flat denial. Instead they take the moderate position that the right of the prisoners to assemble under the first amendment must be balanced against the need of the state to maintain order, and that the state's need is great and that of the inmates relatively minor because there are already established procedures for the channeling of grievances, including the legislatively established Inmate Grievance Commission. If we understand the defendants' position correctly, it is that they fear the possibility of concerted group action but are not gravely concerned with mere association of inmates in the Union. Thus the plaintiff's contention that the Constitution protects the right of an inmate to join an inmate association is blunted by defendants' response that it may lawfully regulate such association as to time, manner and place. Instead of being asked by the defendants to hold that plaintiff has no right to exist in the prison system, we are asked instead "to arrive at a balance between the interest of the prisoners in associating together with a prison unit and the interest of the state in maintaining internal security within the prison." Page 3, Defendants' Memorandum.

We think the broader question urged by plaintiff is not so sharply presented that we should undertake to decide it. Since the parties agree that the defendants permit inmates to join the Union, our undertaking to decide whether they may do so would be advisory. Indeed, we would lack jurisdiction to do so, but for the peripheral, and much less important questions, that may be said to constitute a case or controversy.1A See Muskrat v. United States, 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246 (1911).

II.

The lesser questions we do decide are presented us in the following fact context:

1. Inmates are permitted to join a union and have been and are being permitted to join the North Carolina Prisoners' Labor Union, Inc. Some 2,000 prisoners have already joined.2 There are no membership dues although dues are authorized by the by-laws. The Union is an organization of inmates associated together for the purpose of working for prison reform.

2. Although permitting membership, the defendants oppose the solicitation of other inmates to join and have made solicitation an infraction of its general disciplinary rules.

3. Not only is personal solicitation by inmate to inmate forbidden but so also is solicitation by correspondence or by newsletter or magazine. Indeed, solicitation by anyone by any means is prohibited.

4. Some newsletters addressed to certain inmates have been returned as nondeliverable. Because of the apprehension that such publications may contain articles slanted to encourage membership the defendants enforce their general rule forbidding the receipt of bulk mail. They will not permit an inmate to receive a bundle to be redistributed by him to other inmates.

5. Union meetings are forbidden. Employees of the Department of Correction are forbidden to negotiate with any person acting as a representative of any union, and no outsider will be admitted into a prison unit for the purpose of soliciting union membership.

6. Disparate treatment is accorded other organizations. Bundles of newsletters are allowed to be received from the Junior Chamber of Commerce, and redistribution to individual inmates is permitted.

7. Inmate members of the JC's are allowed to hold meetings in the prison units, and those meetings may be attended by outside speakers, outside JC members and friends from free society. The same is true of Alcoholics Anonymous, and in one institution a troop of the Boy Scouts of America has been permitted to operate. Prisoners are permitted to assemble for religious services.

8. Due sometimes to mistake, sometimes to gaps in the formulation of policy and its execution, and especially due to the very nature of this lawsuit, there have been a number of recent incidents amounting to a denial of the sixth amendment right of a prisoner to legal representation. Most of the incidents have involved the utilization of paralegals and the suspicion of lower echelon prison administrators that the paralegals were engaged in soliciting membership rather than in the implementation of this lawsuit or other court proceedings. At no time have the defendants themselves countenanced the denial of legal representation, and it is established policy that the use of paralegals is permitted.

Both plaintiff and defendants propose detailed findings of fact that would enable us to infer whether, as a matter of penology, an inmate union is good or bad. The state has offered in evidence a book by Peter Remick titled In Constant Fear3 as related to James B. Schuman, a freelance writer. Mr. Remick is an inmate at a Massachusetts prison located at Walpole. His conclusion is that attempts to liberalize traditional prison regulations and to reform Walpole have resulted in chaos and increasing violence. The plaintiff counters with a book, also received in evidence, by Paul W. Keve entitled Prison Life and Human Worth.4 Mr. Keve has far better credentials than does Mr. Remick, but conversely, he is not so deeply immersed in the subject matter. He has served as Commissioner of Corrections for Minnesota and is now Director of Adult Corrections for the State of Delaware. Generally, he seems to favor more lines of communication between inmate and correctional officer, and to achieve it, favors permitting what he calls inmate councils or organizations of prisoners such as the Union in this case. We have also been furnished depositions and affidavits of other experts and persons experienced in penology including those of the defendants.

There is no consensus. The defendants sincerely believe that the very existence of the Union will increase the burdens of administration and constitute a threat of essential discipline and control. They are apprehensive that inmates may use the Union to establish a power bloc within...

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