Preston v. Cowan

• Decision Date: 21 September 1973
• Docket Number: Civ. A. No. 2381.
• Citation: 369 F. Supp. 14
• Parties: John Brenton PRESTON, Plaintiff, v. Henry E. COWAN, Superintendent Kentucky State Penitentiary, et al., Defendants.
• Court: U.S. District Court — Western District of Kentucky

369 F. Supp. 14

John Brenton PRESTON, Plaintiff, v. Henry E. COWAN, Superintendent Kentucky State Penitentiary, et al., Defendants.

Civ. A. No. 2381.

United States District Court, W. D. Kentucky, Paducah Division.

September 21, 1973.

COPYRIGHT MATERIAL OMITTED

John Brenton Preston, pro se.

Robert A. Sedler, Lexington, Ky., for plaintiff.

Ed. W. Hancock, Atty. Gen. of Ky., Frankfort, Ky., for defendants.

FINDINGS OF FACT, CONCLUSIONS OF LAW

OPINION

ALLEN, District Judge.

The plaintiff, John Brenton Preston, presently an inmate at the Arizona State Penitentiary, formerly an inmate of the Kentucky State Penitentiary at Eddyville, Kentucky, filed his complaint under 42 U.S.C. §§ 1983 and 1985, setting up twenty alleged violations of his civil rights, and asking for injunctive relief and damages. Prior to trial, he filed a motion for a class action order as to certain of the injunctive relief requested. This motion was not formerly brought to the attention of the Court until the trial and, therefore, remains to be ruled upon.

After the filing of various pleadings by the defendants, the Court sustained summary judgment or motion to dismiss as to eight of the twenty counts of the complaint. A trial was then had, as to the remaining twelve counts, lasting two days. While evidence was introduced as to each of the counts at the trial, counsel for plaintiff now concedes that his claim for damages is ill-founded except with respect to the following items:

1. Refusal to mail a letter addressed by the inmate plaintiff to his attorney of record.

2. Motions for writs of habeas corpus addressed to the United States Supreme Court.

3. Mail addressed by the plaintiff inmate seeking to employ Raymond Schultz, Esquire, as attorney in a lawsuit to be filed.

4. Letters addressed by plaintiff to former Governor Louie Nunn, of the State of Kentucky, and the deceased Director of the Federal Bureau of Investigation, J. Edgar Hoover.

5. The placing of the plaintiff in administrative segregation on January 9, 1973.

In addition, plaintiff contends, on behalf of all inmates at Eddyville and LaGrange Penitentiaries in Kentucky, that the present mail censorship regulations in effect are unconstitutional and invalid and should be revised to meet constitutional standards. This contention includes a claim that the prison authorities acted wrongfully in opening a letter addressed to him by Mr. Rivkin, co-counsel for plaintiff in this action. Also, plaintiff contends on his own behalf that his transfer to Arizona without any prior notice or hearing fails to meet constitutional standards.

In view of these claims of censorship for counsel by plaintiff, the Court will address itself first to the demand for damages he contends are still available to him and to the claim made on behalf of the class of inmates who are affected by the censorship mail regulations of the Kentucky Department of Corrections.

Coming now to the specific allegations made by the plaintiff with respect to his mailing privileges, the first concerns a letter written by the plaintiff to Robert Sedler, Esquire, his attorney of record in a case then pending in the Eastern District of Kentucky, and his present attorney of record in this action. The letter in question was written on January 9, 1973, and it was unsealed. The letter contained the following paragraph:

"With a view in mind toward discussing with you the advisability of initiating further litigation for constitutional deprivations, I would request that you accord me a visit if you visit this area. There are other business matters I would discuss with you were censorship not so stringent. I would prefer, then, to talk with you in person."

The preceding paragraph of the letter referred to the federal case then pending in Pikeville, Kentucky.

This letter was brought to the attention of the Warden at Eddyville, defendant Henry Cowan, and he called the plaintiff into his office for a discussion concerning it. Cowan complained about Preston seeking to have special attention in regards to mail matters, and took the view that Preston was unduly harassing him and other members of the prison staff by asking that his mail be censored by the Warden. Following the conference, an Incident Report was filed by B. Hardy, an officer at Eddyville, against the plaintiff. The report charged the plaintiff with "utilizing the mails to intimidate and threaten the Superintendent of this institution, and seeking through harrassment (sic), thereby imposing undue hardship, to force the Superintendent to make him a special revolutiary (sic) case rather than follow the regulations which control and govern the other inmates of this institution." This report was filed January 8, 1973, and Preston waived the right to have someone present at the hearing to represent him, and on January 9th, the hearing was held before a three-man Adjustment Committee, consisting of defendants Reynolds, Epperson and Captain Johnson.

The Committee found the plaintiff was guilty of writing the letter and returned the letter to him. It was then found that he was guilty, and recommended that he be placed in administrative segregation for proper control. Plaintiff was then placed in administrative segregation on the 9th of January, 1973, and transferred to Arizona on the 10th of January.

At the time that the letter to Mr. Sedler was written, the Kentucky State Penitentiary was still operating under the provisions of a memorandum dated October 15, 1971, providing that letters addressed to attorneys and court officials should be taken to the caseworker to be mailed. No letters of this sort were to be returned to the inmate without the approval of the Assistant Warden of Treatment. However, the only uncensored mail was correspondence addressed to the Governor of Kentucky or the Commissioner of Corrections.

On October 26, 1972, the Department of Corrections revised its directives concerning mailing privileges and provided that an inmate's letter to employed or appointed counsel was to be considered as privileged correspondence and was to be sealed by the inmate before being forwarded to the Mail Room. However, this regulation was not in force on January 9, 1973, but was put into effect on February 26th, of that year.

Defendant Cowan, in defense of his action as to the refusal to mail this letter to Mr. Sedler, took the viewpoint that it was intimidating and harassing, and should not be sent out. The Court is unable to agree with the defendant's characterization of this letter, and under the holding of the Supreme Court in the case of Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969), and cases such as Palmigiano v. Travisono, 317 F.Supp. 776 (D.C.R.I.1970), the refusal to mail the letter was unauthorized and amounted to a denial of the Sixth Amendment rights of the plaintiff. In light of the fact that Johnson v. Avery, supra, had been tried three years prior to the attempted mailing of the letter to Mr. Sedler, and in view of such decisions as Burns v. Swenson, 300 F.Supp. 759 (D.C.W.D.Mo.1969), modified 430 F.2d 771 (8th Cir. 1970); Sostre v. McGinnis, 442 F.2d 178 (2nd Cir. 1971), cert. denied, 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740; Palmigiano v. Travisono, supra, defendant Cowan did not meet the burden of proving that his belief that his conduct was constitutionally permissible was a reasonable belief, given the state of the law at the time that his decision was made, to prohibit the sending of the letter. See Pierson v. Ray, 386 U.S. 547, 555-558, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967) and Landman v. Royster, 354 F.Supp. 1302 (D.C. E.D.Va.1973).

The Court, therefore, holds that the plaintiff is entitled to nominal damages in the amount of $25, see United States ex. rel. Motley v. Rundle, 340 F. Supp. 807 (D.C.E.D.Pa.1972). No award of compensatory damages is made in light of plaintiff's failure to prove any deprivation of liberty or monetary damages arising as a result of the failure to allow the letter to be mailed.

With respect to the mailing matters concerning writs of habeas corpus, the plaintiff's proof tends to show that he had prepared a motion for a writ of habeas corpus and a motion under Rule 4901 to be mailed to the United States Supreme Court in 1968. The weight of the evidence is to the effect that, although the penitentiary was operating under DC-Rg-2 Regulation, which allowed inmates to send out papers constituting a part of habeas corpus or coram nobis proceedings, they refused on this occasion to allow their mailing. While none of the defendants or anyone testifying for them admitted any direct knowledge of the refusal, defendant Wingo, who was Warden of Eddyville at the time of the refusal, stated that if the papers were refused, it was because of their abusive, profane or insulting language or unnecessary statements tending to cast aspersions on the acts, character, or conduct of any public officials. This exception to the rule allowing habeas corpus papers to be filed is also found in Regulation DC-Rg-2. Defendant Wingo did not point to any particular portion of the papers addressed to the Supreme Court as being of an insulting or abusive nature, but even if he had, the refusal to mail out such papers pertaining to legal rights of the plaintiff would be in violation of the Sixth Amendment of the Constitution and of the principles laid down in Ex Parte Hull, 312 U.S. 546, 549, 61 S.Ct. 640, 642, 85 L.Ed. 1034 (1941). There the Supreme Court said:

"The regulation is invalid. The considerations that prompted its formulation are not without merit, but the state and its officers may not abridge or impair petitioner's right to apply to a federal court for a writ of habeas corpus. Whether a petition for writ of habeas corpus addressed to a federal court is properly drawn and what allegations it must contain are questions for that court alone to determine. Compare, First National Bank v. Anderson, 269 U.S. 341, 346,

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