Parnell v. Waldrep

• Decision Date: 21 April 1981
• Docket Number: No. C-C-79-136,C-C-79-365.,C-C-79-136
• Citation: 511 F. Supp. 764
• Court: U.S. District Court — Western District of North Carolina
• Parties: Larry Michael PARNELL, Plaintiff, v. C. L. WALDREP and Bob Dodgen, Defendants. Joseph L. SUTTON, Donald W. Bridges, James L. Thompson, Sr., Fred Tolliver, David Doby, James W. Crowe, Robert McDowell, Billy Roberts, John McGill and Charles Smith, Plaintiffs, v. C. L. WALDREP, Sheriff of Gaston County, Defendant.

511 F. Supp. 764

Larry Michael PARNELL, Plaintiff, v. C. L. WALDREP and Bob Dodgen, Defendants.

Joseph L. SUTTON, Donald W. Bridges, James L. Thompson, Sr., Fred Tolliver, David Doby, James W. Crowe, Robert McDowell, Billy Roberts, John McGill and Charles Smith, Plaintiffs, v. C. L. WALDREP, Sheriff of Gaston County, Defendant.

Nos. C-C-79-136, C-C-79-365.

United States District Court, W. D. North Carolina, Charlotte Division.

April 21, 1981.

COPYRIGHT MATERIAL OMITTED

Clare O'Neill, North Carolina Prisoner Legal Services, Durham, N. C., for plaintiffs.

Frank B. Aycock, III, Charlotte, N. C., for defendants.

ORDER OF PARTIAL SUMMARY JUDGMENT

McMILLAN, District Judge.

Plaintiff Larry Michael Parnell filed his original complaint pro se in this action on April 16, 1979. He brought suit under 42 U.S.C. § 1983 against C. L. Waldrep, sheriff of Gaston County, North Carolina, and Bob Dodgen, jail sergeant at the Gaston County Jail. The complaint alleged that while plaintiff was incarcerated at the Gaston County Jail, defendant Dodgen had refused to allow plaintiff to receive paperback books and magazines brought by plaintiff's mother to the jail. Subsequently, North Carolina Prisoner Legal Services sought and received permission to represent plaintiff in this action.

On August 22, 1979, plaintiff filed an amended complaint as a class action which alleged three constitutional violations: (1) that plaintiff and other inmates were not allowed to receive paperback books, magazines or newspapers, in violation of the First Amendment to the Constitution; (2) that plaintiff and other inmates were denied access to legal materials and thus denied adequate access to the courts; and (3) that plaintiff and other inmates were denied recreational opportunities, in violation of due process requirements and the Eighth Amendment. Plaintiff sought certification of a class of all persons who have been or will be incarcerated in the Gaston County Jail, and plaintiff requested declaratory, injunctive and monetary relief.

In an order filed March 12, 1980, the court set forth its rationale for ordering that the class represented by plaintiff be certified, but it inadvertently neglected to enter an order certifying the class. Thus the court now rules that the requested class be certified for the purposes of the relief granted in this order.

Plaintiffs Joseph L. Sutton, Donald W. Bridges, James L. Thompson, Sr., Fred Tolliver, David Doby, James W. Crowe, Robert McDowell, Billy Roberts, John McGill and Charles Smith, all inmates or former inmates of the Gaston County Jail, filed an action against Sheriff Waldrep on December 3, 1979. Their complaint makes several claims of constitutional violations, including claims that inmates are not allowed to receive newspapers and that they are denied access to legal materials. Those plaintiffs are also represented by North Carolina Prisoner Legal Services. In its March 12, 1980 order, the court stated that it would consolidate the cases of Parnell and Sutton et al. for determination on summary judgment motions unless plaintiffs' counsel objected. Counsel have not objected, and the court therefore orders that these cases be consolidated for motions for summary judgment in Parnell and partial summary judgment in Sutton et al.

The Parnell case was heard on April 11, 1980, on plaintiff's motion for summary judgment. Plaintiffs have submitted a memorandum, affidavits and a proposed order, along with depositions of the two defendants. On September 29, 1980, I visited the Gaston County Jail. The following undisputed facts are based on those documents, confirmed by my observations at the jail.

I. Facts

On March 2, 1979, the North Carolina Department of Correction transferred plaintiff Parnell to the Gaston County Jail to await a hearing in Gaston County Superior Court on the revocation of a suspended sentence he had received for larceny. He remained in the jail until March 29, 1979, but the hearing was never held. On March 25, 1979, his mother, Betty Parnell, brought various paperback books, magazines and newspapers to the Gaston County Jail, but defendant Dodgen refused to deliver the reading materials to Parnell.

Sheriff Waldrep ratified and approved of Dodgen's actions. In his deposition, Waldrep testified that he told Parnell the jail did not allow magazines and newspapers because inmates used them to stop up the plumbing and start fires. Waldrep said that the prohibition of paperback books, magazines and newspapers applied to all inmates, although inmates were permitted to receive Bibles and "little Christian tracts" distributed at the jail.

After he was denied access to the reading material, Parnell sought to file a complaint under 42 U.S.C. § 1983 in federal court and requested access to legal materials. Waldrep, however, advised him that the jail did not have a law library for his or any other inmate's use, but inmates could telephone their lawyers, who were usually public defenders. No legal counsel was available to help Parnell or other inmates in filing petitions for post-conviction relief in state or federal courts or actions under 42 U.S.C. § 1983. On March 29, 1979, Parnell was transferred to the Stanly County unit of the Department of Correction, where he prepared his pro se complaint in this action.

While Parnell was confined in the Gaston County Jail, he was given no opportunity for physical exercise or non-sedentary recreation. Sheriff Waldrep has testified that the jail has no area suitable for physical exercise or outdoor recreation. He said in his deposition, "I don't think there is recreation as you and I or the average citizen looks at it.... We have no exercise equipment."

Pretrial detainees are confined for up to ninety days and convicted inmates are confined for up to one hundred and eighty days at the Gaston County Jail. The jail is a self-contained unit with no windows or fresh air. The cells are illuminated by bright lights outside the cells and diffused lights inside the cells, which are used as night lights. A ventilation shaft is the only source of air.

The jail contains two types of cell blocks. There are four blocks with cells providing access to a small common area which runs the length of the cell block, called the "runaround." Inmates in the "runaround" blocks can eat their meals in the common area at a bench and table. Those inmates can engage in very limited activity in the "runaround" area, but not activity that requires much room to move around. Waldrep has seen inmates in the "runaround" doing exercises, playing checkers or cards, watching television or reading. There are also four cell blocks which contain only individual cells in which inmates are confined day and night. Inmates in the individual cells eat in their cells and may leave them only to shower, confer with their attorneys or go to court.

Inmates in both types of cells have no access to physical exercise facilities, outdoor recreation or fresh air. The jail has very limited space for the possible construction of exercise facilities. Anthony S. Kuharich, an expert in corrections and pretrial detention, has submitted an affidavit which states that the Gaston County Jail provides no meaningful opportunity for exercise to its inmates. He testified that physical exercise is essential for the physical and mental well-being of detainees and also for efficient jail administration. He said:

"Where inmates are confined in closed and cramped quarters twenty-four hours a day, which seems to be the condition of all the inmates at the Gaston County Jail, they will frequently complain of the inability to sleep at night. They will seek out the jail doctor or nurse, and request sleeping pills. This, in turn, creates other physical and mental problems."

Based on these facts, the court now makes the following rulings of law.

II. Reading Materials

Defendants' refusal to allow inmates to receive paperback books, magazines and newspapers is unconstitutional. The prohibition of virtually all reading materials deprives the inmates of their First Amendment right to receive information and ideas. Payne v. Whitmore, 325 F.Supp. 1191 (N.D.Cal.1971). See Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390, 89 S.Ct. 1794, 1806-1807, 23 L.Ed.2d 371 (1969); Stanley v. Georgia, 394 U.S. 557, 565, 89 S.Ct. 1243, 1248, 22 L.Ed.2d 542 (1969). Moreover, the jail, while prohibiting receipt of most other reading materials, established an exception for Bibles and "little Christian tracts," a practice which constitutes governmental encouragement or establishment of a particular religious doctrine. The First Amendment prohibits such establishment by Congress, and the establishment clause has long been applied to state action as well. Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947).

Defendant Waldrep initially attempted to justify the ban on reading material by saying that jail inmates used paperback books, magazines and newspapers to plug the toilets and start fires. Sheriff Waldrep's decision to ban such reading materials was an exaggerated response to those problems, if in fact they existed, in light of recent developments at the jail. In response to this action, Waldrep in May, 1980, began to allow newspapers and magazines into the cell areas. Waldrep later reported that no incidents of plugging toilets or starting fires had occurred after he implemented the changes. The court understands that inmates are now allowed to receive newspapers and magazines.

The absence of any incidents in the cells due to the relaxed policy regarding reading materials demonstrates that the jail's original policy was not a reasonable "time, place and manner" regulation to further a legitimate governmental interest. Grayned v. City of Rockford, 408 U.S. 104, 115, 92 S.Ct. 2294, 2202-03, 33 L.Ed.2d 222 (1972). The jail's prohibition of paperback books, newspapers and magazines was not a "limited restriction...