Ramsey v. Ciccone, Civ. A. No. 17784-3.

• Decision Date: 02 March 1970
• Docket Number: Civ. A. No. 17784-3.
• Citation: 310 F. Supp. 600
• Parties: Howard L. RAMSEY, Petitioner, v. Dr. P. J. CICCONE, Director, United States Medical Center for Federal Prisoners, Springfield, Missouri, Respondent.
• Court: U.S. District Court — Western District of Missouri

310 F. Supp. 600

Howard L. RAMSEY, Petitioner, v. Dr. P. J. CICCONE, Director, United States Medical Center for Federal Prisoners, Springfield, Missouri, Respondent.

Civ. A. No. 17784-3.

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

February 16, 1970.

Addendum March 2, 1970.

Howard L. Ramsey, pro se.

Bert C. Hurn, U. S. Atty., by Frederick O. Griffin, Jr., Asst. U.S. Atty., Kansas City, Mo., for respondent.

ORDER DENYING PETITION FOR HABEAS CORPUS

BECKER, Chief Judge.

Petitioner, a federal convict confined in the United States Medical Center for Federal Prisoners, petitions this Court for a writ of habeas corpus to relieve him of certain conditions of confinement which he alleges that he is currently suffering. Leave to proceed in forma pauperis has been previously granted.

Petitioner states that he was convicted by a jury in the United States District Court for the Eastern District of Missouri of causing a falsely made, forged and counterfeited check to be transported in interstate commerce; that he was sentenced on that conviction on December 20, 1963, to a term of two and one-half years' imprisonment; that he appealed the judgment of conviction and imposition of sentence, but that they were affirmed on appeal; that he later filed a motion to vacate sentence under Section 2255, Title 28, U.S.C., in the sentencing court, which was denied; that he appealed the denial to the United States Court of Appeals for the Eighth Circuit, which affirmed the denial on September 24, 1965 (Ramsey v. United States (C.A. 8) 351 F.2d 31); and that he was represented by counsel at his arraignment and plea, trial, sentencing and on appeal.

Petitioner states as grounds for his contention that his confinement is currently in violation of his federally protected rights (1) that he has been denied the assistance of counsel while in the Medical Center, contrary to the rule of Johnson v. Avery, 393 U.S. 483, 89 S. Ct. 747, 21 L.Ed.2d 718; (2) that respondent is subjecting him to certain medical treatment which is impairing petitioner's health; and (3) that petitioner is being denied "equal protection of the laws" in that prisoners with "camp numbers" are given preferential treatment.

As facts supporting his allegations, petitioner states that he wrote to John Kane, Esquire, the attorney assigned as a preliminary legal consultant for Medical Center prisoners and inmates, in the first week of September 1969; that he thereupon received an unsigned receipt, saying that he would see Mr. Kane as soon as possible; that, as of the date of the filing of the petition herein, Mr. Kane has not yet contacted petitioner; that such delay constitutes the effective denial of all legal assistance, since by the policy statements of the Medical Center, petitioner is prohibited from seeking legal assistance from other inmates; that Dr. John R. Kluge gave petitioner "glucose of sugar and water" 24 hours a day continuously for two weeks, and orange juice with sugar added; that Dr. Kluge "knew sugar on a continuous flow is harmful for a person with hypoclocemia (sic)"; that petitioner's health was impaired thereby; and that "camp workers" receive good time credit and pay, but petitioner, who works the same hours in the same place and at the same job, has been denied "meritorious good days" and pay.

The show cause order was issued herein on December 12, 1969. Respondent's response was filed on December 16, 1969, stating that one of Mr. Kane's assistants had attempted to see petitioner on November 13, 1969, but petitioner refused to accept any consultation from him; that Mr. Kane thereafter referred petitioner's file to the UMKC Legal Assistance Program "in the thought that there perhaps existed a personality problem"; and that petitioner was not currently assigned to the prison camp and that such assignment, furthermore, was in the discretion of the attorney general.

Before petitioner could be ordered to file a traverse to that response, this cause was transferred to Division 2 of this Court for a plenary evidentiary hearing on the question of denial of legal assistance. Thereafter, on December 23, 1969, a hearing on that issue was held before the Honorable William R. Collinson of that division. As a result of that hearing, Judge Collinson found that the program of legal assistance being offered at the Medical Center, at the date of the hearing, met the standards of Johnson v. Avery, supra, in that it was an effective "reasonable alternative" to inmate legal assistance. Judge Collinson further found that some delay was characteristic of the early stages of the legal assistance program (after its institution in the spring and summer of 1969) resulting from the backlog of demand for legal assistance which had been building up prior to the institution of the program; that such delay was not excessive under the circumstances; and that current periods of delay were progressively shorter. Furthermore, during the pendency of Judge Collinson's decision, Mr. Kane made vigorous efforts in this Court in behalf of petitioner's request for relief in respect of his allegations of improper or inadequate medical treatment. Petitioner's complaints of inadequate legal assistance are therefore without merit.

With respect to petitioner's complaints of improper or inadequate medical treatment, this Court required a supplemental response from the respondent by letter of January 21, 1970, in which respondent was requested to furnish an opinion of one of the regular outside consultants to the Medical Center. Respondent responded by letter received in this division on February 4, 1970, to the following effect:

"In answer to your letter of January 21, 1970 requesting information on the medical treatment of Mr. Howard Lawrence Ramsey, our register number 17493-H, Dr. Seal, our Chief of Medicine here at the Medical Center, has provided me with the following information.

"At this point in time Mr. Howard Ramsey, a 39 year old white male, has been thoroughly investigated for the symptoms of hypoglycemia. It has been determined that he is suffering from reactive hypoglycemia and chemical diabetes mellitus. Pancreatic tumor has been excluded by a very thorough investigation. On Thursday morning, January 29, 1970, Mr. Ramsey was seen by our metabolic consultant from the City of Springfield Dr. Donald K. Back, who concurred with the above diagnosis. Both Dr. Back and Dr. Seal explained to the patient what his diagnosis is and the implications of this diagnosis, namely, that it is an early manifestation of diabetes mellitus. The patient was advised at that time that treatment for his condition is a weight reducing multiple feeding diabetic diet. Mr. Ramsey had already been advised on this diet by our dietician and appears to understand how to follow the diet as well as the need for it. Indeed, he has lost approximately five pounds in the last several weeks. It is hoped that on this diet and with normalization of his weight, that his chemical diabetes and reactive hypoglycemia may disappear. However, only time will tell whether this will happen.

"Now regarding the use of intravenous glucose for a patient with this condition Dr. Seal gave me the following facts.

`The patient received intravenous glucose only on his admission to the hospital because his physician was quite correctly concerned, on becoming familiar with the patient's prior history, about dangerously low levels of the blood sugar. It was only after the patient was able to be observed for several days and our own data and information collected on the patient that it was felt safe to take him off of intravenous glucose. And indeed he has not been on intravenous glucose for treatment for the past four to five months. The patient has been advised, however, to carry some candy or other ready source of sugar with him to prevent the disturbing symptoms of hypoglycemia which may occur approximately four hours after a meal in this kind if a situation.'"

Thereafter, petitioner submitted a letter relating to the facts reported in respondent's above letter and also a "motion for findings of fact and conclusions of law", asking for the immediate entry of final judgment herein. In his letter traversing the supplemental response, petitioner admits that he has been examined by an outside consultant of the Medical Center staff and that "he has made things a lot clear"; that "I just hope I can follow the diet untill (sic) I get out in 68 days, then I know I will be able too (sic)"; but that he still contests the validity of Dr. Kluge's original diagnosis and his initial administration of the glucose. Petitioner does not disagree with the diagnosis of diabetes mellitus and hypoglycemia, nor does he assert any disagreement with the current course of treatment which he is receiving. Further, petitioner states, in his motion for immediate judgment, that "there is no availability of such dietary or medical requirements as he purports to need in this institution" and that the disease is "possibly incurable." These allegations are consistent with the opinions of the treating physicians that for 4 or 5 months petitioner has been afforded the best treatment possible, is no longer being administered glucose (of which he originally, specifically complained in the petition herein) but that he is urged to keep a source of sugar on hand for emergencies; and that it is "hoped" that the condition will eventually disappear.

From the foregoing, it does not appear that petitioner states any claim of a continuing denial of a federally protected right to justify this Court in issuing a writ of habeas corpus. Habeas corpus is available to challenge the conditions of one's confinement. Harris v. Harris (W.D.Mo.) 222 F.Supp. 918; In re Baptista (W.D.Mo.) 206 F.Supp. 288. But, by virtue of Section 4042 of Title 18, United States Code, the care, custody, control, discipline and treatment of federal prisoners is committed to the exclusive...