Polakoff v. Henderson

• Decision Date: 03 August 1973
• Docket Number: Civ. A. No. 16899.
• Citation: 370 F. Supp. 690
• Parties: Sheldon POLAKOFF and Gloria Polakoff v. J. D. HENDERSON, Warden United States Penitentiary, Atlanta, Georgia.
• Court: U.S. District Court — Northern District of Georgia

370 F. Supp. 690

Sheldon POLAKOFF and Gloria Polakoff v. J. D. HENDERSON, Warden United States Penitentiary, Atlanta, Georgia.

Civ. A. No. 16899.

United States District Court, N. D. Georgia, Atlanta Division.

August 3, 1973.

Sheldon Polakoff, Pro se.

Gloria Polakoff, Pro se.

John W. Stokes, Jr., U. S. Atty., William D. Mallard, Jr., Asst. U. S. Atty., Atlanta, Ga., for respondent.

ORDER

RICHARD C. FREEMAN, District Judge.

Plaintiff Sheldon Polakoff, an inmate at the Atlanta Federal Penitentiary, has brought this action for damages, based on alleged deprivations of his rights under the First, Eighth and Fourteenth Amendments by reason of defendant Henderson's denial, pursuant to prison regulations, of rights to marital visitations. Gloria Polakoff joins in this action on the same grounds. In their complaint the plaintiffs seek $100,000 damages. Presently before the court is plaintiffs' motion for summary judgment, in which they ask the court to order the defendant to allow them their rights of consortium and to transfer plaintiff Sheldon Polakoff to an institution where "Off Campus Visits" are implemented.

Also before the court are defendant's motion to dismiss and plaintiffs' motions to amend the complaint and for production of documents.

The defendant bases his motion to dismiss on two grounds: (1) lack of subject matter jurisdiction and (2) failure to state a claim upon which relief can be granted.

SUBJECT MATTER JURISDICTION

In their complaint the plaintiffs allege that the court has original jurisdiction of this action under 42 U.S. C. § 1983 and 28 U.S.C. § 1343(3). In connection with their damage claim they mention 28 U.S.C. § 1331. Plaintiffs' reliance on § 1983 is misplaced. As this action is brought against a federal officer, "state action", which is required for there to be a claim under § 1983, is lacking. Parker v. Graves, 479 F.2d 335 (5th Cir. 1973); Davis v. United States, 439 F.2d 1118 (8th Cir. 1971); Hall v. Garson, 430 F.2d 430 (5th Cir. 1970). While not expressly relied upon, the court notes that the plaintiffs also cannot base jurisdiction for this action on 42 U.S.C. § 1985(3). Plaintiffs have not alleged a conspiracy nor any overt acts in furtherance of a conspiracy in deprivation of equal protection of the laws or of equal privileges and immunities under the laws. Such allegations are requisite to a § 1985(3) claim. Kitchen v. Crawford, 326 F.Supp. 1255 (N.D.Ga.1970), aff'd per curiam, 442 F. 2d 1345 (5th Cir.), cert. denied, 404 U.S. 956, 92 S.Ct. 318, 30 L.Ed.2d 272 (1971). Further, as plaintiffs have failed to assert any racial or otherwise class-based discrimination, the complaint fails to state a cause of action under § 1985(3). Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971); Jacobson v. Industrial Foundation of Permian Basin, 456 F.2d 258 (5th Cir. 1972).

In their motion for summary judgment, the plaintiffs seem to rely on 28 U.S.C. § 1331 when they assert that jurisdiction is proper under Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). In Bivens the Court held to be sufficient a complaint against federal officers alleging naked Fourth Amendment deprivations and relying on the federal question jurisdiction statute, 28 U.S.C. § 1331. It may be that in certain cases a complaint resting upon § 1343(3) and averring an Eighth Amendment deprivation would also suffice against federal officers. See, Howell v. Cataldi, 464 F.2d 272, 274 (3rd Cir. 1972) (dictum). However, the court feels that the complaint sub judice does not suffice. Concurring in Bivens, Justice Harlan noted that the experience of judges in dealing with private trespass and false imprisonment claims supports the conclusion that courts of law are capable of making the types of judgment concerning causation and magnitude of injury necessary to accord meaningful compensation for invasion of Fourth Amendment rights. He added, "the same, of course, may not be true with respect to other types of constitutionally protected interests, and therefore the appropriateness of money damages may well vary with the nature of the personal interest asserted." 403 U.S. at 409 n. 9, 91 S.Ct. at 2011. The plaintiffs have not convinced the court of the appropriateness of money damages for the alleged deprivation of their rights. Accordingly, this court feels that jurisdiction to maintain this action has not been made out, and the motion to dismiss must be granted. However, even if there is jurisdiction under 28 U.S.C. § 1331, this action must be dismissed for failure to state a claim upon which relief can be granted. Infra.

Plaintiffs assert in their complaint that a diversity of citizenship exists between the parties. This bare allegation is not sufficient for a finding that jurisdiction exists under 28 U.S.C. § 1332. A prisoner does not acquire a new domicile in the place of his imprisonment, but retains the domicile he had prior to incarceration. 1 Moore, Federal Practice, ¶ 0.746.-5. Plaintiff Sheldon Polakoff has not alleged that his domicile prior to incarceration was not in the State of Georgia, the domicile of the defendant. Thus, diveristy jurisdiction has not been made out.

The court does not, however, agree with defendant's assertion that the present action is barred by the doctrine of official immunity. While in Norton v. McShane, 332 F.2d 885 (5th Cir. 1964), cert. denied, 380 U.S. 981, 85 S.Ct. 1345, 14 L.Ed.2d 274 (1965), it was held that various federal executive officials were immune from tort liability under the federal common law, where they were acting within the scope of their duties or in the discharge of their functions, there has been a reluctance to stretch the doctrine too far. Anderson v. Nosser, 438 F.2d 183 (5th Cir. 1971). Anderson involved claims under 42 U.S. C. § 1983 and rejected the defendants defense of official immunity. While this court has found that plaintiffs do not state a claim under § 1983, they do assert deprivations of their civil rights under the First, Eighth and Fourteenth Amendments. The defense of official immunity in the instant case would seem to fall within the rationale relied upon in Anderson to deny the defense.

FAILURE TO STATE A CLAIM

For purposes of considering the motion to dismiss, plaintiffs' well pleaded allegations are assumed to be true. Campbell v. Beto, 460 F.2d 765 (5th Cir. 1972). Plaintiffs allege that defendant's denial of their rights of consortium constitutes a prohibition against free exercise of religion. They further allege that they are subjected to cruel and unusual punishments by the defendant in that both are suffering physically and mentally due to the denial of their rights of consortium. Gloria Polakoff alleges that she is denied equal protection of the law in that other women are not deprived of their rights inherent in the marriage contract. Sheldon Polakoff alleges that he is denied equal protection of the law in that other similarly situated prisoners are afforded the opportunity for conjugal visits.

As more fully explained below, the court finds that plaintiffs' claim does not come up to the level of a federal constitutional right, so as to be cognizable as a basis for relief in federal court. Tarlton v. Clark, 441 F.2d 384 (5th Cir. 1971). Further, the court feels that restriction of the rights of consortium is justified by considerations asserted by the prison authorities. As stated in Sostre v. McGinnis, 442 F.2d 178, 188 (2d Cir. 1971), cert. denied 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740 (1972), with reference to state prisoners:

It is clear that in many respects the constitutionally protected freedoms enjoyed by citizens-at-large may be withdrawn or constricted as to state prisoners, so far as "justified by the considerations underlying our penal system." Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356 (1948).

See also, Jackson v. Bishop, 404 F.2d 571, 576 (8th Cir. 1968).

FIRST AMENDMENT CLAIMS

Plaintiffs' First Amendment claims concern only the denial of the rights of consortium. They do not allege that plaintiff Sheldon Polakoff has been prohibited from attending religious services or from receiving religious literature. They do not allege punishment in any ordinary sense stemming from the practice of their religion. While they stress that conjugal communication under the vows and contract of marriage is an inherent aspect of the Jewish faith, the same can be said of many other religions. Allowance of the requested relief would go far beyond the religious practices which are permitted for other denominations and faiths within the prison. As held by the Supreme Court, "The State must be steadfastly neutral in all matters of faith, and neither favor nor inhibit religion." Abington School District v. Schempp, 374 U.S. 203, 299, 83 S.Ct. 1560, 1612, 10 L.Ed.2d 844 (1963) (concurring opinion). Respondent cannot favor one religious group over another without running afoul of the neutrality required by the First Amendment. Theriault v. Carlson, 339 F.Supp. 375 (N.D.Ga.1972). Further, the court finds that defendant's reason for refusing to uniformly permit conjugal visits, i.e. the practical problems involved in providing proper facilities for such visits, justifies the denial of relief.

EIGHTH AMENDMENT CLAIMS

Plaintiffs allege that the denial of their rights of consortium constitutes cruel and unusual punishment prohibited by the Eighth Amendment. They do not allege any other acts as cruel and unusual punishment.

"The cruel and unusual punishment clause is a nonstatic, moral precept designed to curb treatment which offends contemporary standards of decency." Anderson v. Nosser, 438 F.2d 183, 190 (5th Cir. 1971). The approach of a federal court to a claim of cruel and unusual punishment is set out in Novak v. Beto, 453 F.2d 661, 670-671 (5th Cir. 1971):

Our role as judges is not to determine which of these treatments is more

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