Reutcke v. Dahm

• Decision Date: 15 June 1988
• Docket Number: No. CV86-L-333.,CV86-L-333.
• Citation: 707 F. Supp. 1121
• Parties: John T. REUTCKE, Jr., Plaintiff, v. John J. DAHM, et al., Defendants.
• Court: U.S. District Court — District of Nebraska

707 F. Supp. 1121

John T. REUTCKE, Jr., Plaintiff, v. John J. DAHM, et al., Defendants.

No. CV86-L-333.

United States District Court, D. Nebraska.

June 15, 1988.

Robert Slovek, Omaha, Neb., for plaintiff.

Susan Ugai, Asst. Atty. Gen., Lincoln, Neb., for defendants.

URBOM, District Judge.

Under the provisions of 28 U.S.C. § 636(b)(1)(B) I referred this case to the United States Magistrate for an evidentiary hearing. The magistrate's report and recommendation followed.

I now adopt the report and recommendation of the magistrate and comment only briefly with respect to objections made by each of the parties.

The magistrate has recommended that the plaintiff recover judgment against the defendant Dahm in his individual capacity on the plaintiff's access-to-the-courts claim in the amount of $1.00, costs, and attorney's fees. The plaintiff objects for failure to award substantial compensatory damages and failure to award any punitive damages.

The magistrate's recommendation is a correct one on both scores. There simply has been no evidence of any damage to the plaintiff from his lack of access to the courts. It is true, as the plaintiff points out, that the magistrate rightly said that there is no requirement of "prejudice" to establish a claim, yet says that in connection with damages "the plaintiff has demonstrated no actual prejudice which befell him...." That is not inconsistent. One may establish a claim without any damage, but it does not follow that one is entitled to receive substantial money in compensatory damages when he has shown no damage. "Prejudice" is used in the sense of "damage" by the magistrate at page 21 of his report and recommendation. Nominal damages are the appropriate remedy under the circumstances in this case.

As for punitive damages, the plaintiff argues that Dahm's "abdication of his responsibility was done knowingly and intentionally." The evidence does not support that contention. He was negligent, but not reckless or demonstrating a callous disregard for the plaintiff's rights.

The defendants object to the recommendation that the plaintiff was denied access to the courts in violation of the Constitution arguing, first, that the plaintiff's access to the courts was reasonable when balanced against the interests in maintaining the safety and security of the institution, and, second, that the defendant Dahm is entitled to a qualified good faith immunity under the Eleventh Amendment.

The defendants' argument with respect to the reasonableness of the restriction on the plaintiff's access is rooted in my decision of Andrews v. Gunter, CV86-L-50 (Memorandum on Motions for Summary Judgment, dated December 28, 1987). The critical difference between the facts in that case and in this one, as the magistrate noted, is that in the Andrews case the evidence without contradiction was that the inmate legal aides, who were provided to help the inmate obtain the materials he needed were well-trained, contrary to the facts of the present case. Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), stands for the proposition that inmates must either be provided "with adequate law libraries or adequate assistance from persons trained in the law." Id. 828. Neither alternative was provided plaintiff at crucial times in this case.

The concept of qualified good faith immunity does not save the defendant Dahm from liability in this case. The law was clear, as I have just quoted from Bounds. It must be obvious that in order to have adequate libraries, an inmate must have reasonable access to those libraries and in order to have adequate assistance from persons trained in the law, the persons must be trained in the law. The law was well-settled and a reasonable administrator would have known the requirements of Bounds v. Smith, supra.

The plaintiff is entitled to an attorney's fee and I shall give him an opportunity to make a showing regarding the amount of it. A judgment shall not be entered until that issue is resolved.

IT THEREFORE IS ORDERED that the objections of the plaintiff and of the defendants to the magistrate's report and recommendation are denied and the plaintiff shall have 15 days from the date of this order in which to submit to the court one or more affidavits regarding the amount of the attorney's fee, bearing in mind the requirements of our Local Rule 34(D) and Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); thereafter the defendant Dahm may respond within 15 days.

REPORT AND RECOMMENDATION

DAVID L. PIESTER, United States Magistrate.

In the present action¹ the plaintiff, an inmate of the Nebraska Department of Corrections, has brought suit under 42 U.S. C. § 1983 challenging the conditions of his confinement at the Diagnostic and Evaluation Center and the Lincoln Correctional Center.² Specifically, he alleges that the policies of the defendants, John Dahm and Howard Ferguson, have deprived him of his constitutional rights to (i) meaningful access to the courts, (ii) freedom from cruel and unusual punishment, and (iii) the equal protection of the laws. The matter was referred to the undersigned magistrate for an evidentiary hearing, which was held on September 28, 1987, followed by a post-hearing briefing schedule. The following constitutes my proposed findings of fact and recommended disposition of this case pursuant to 28 U.S.C. § 636(b)(1)(B).

I

The plaintiff was originally incarcerated on October 18, 1982, following a conviction for issuing a bad-check, and was confined in the general population of the Diagnostic and Evaluation Center (DEC) until March 2, 1983, when he escaped while on work-release status. Following his subsequent conviction of misdemeanor middle-grade theft in Louisiana, the plaintiff was returned to Nebraska on November 15, 1985, after waiving extradition, and again placed in the general population of the DEC.³ He remained there until January 3, 1986, following his submission of a written request to be placed in protective custody. (Exhibit 108).⁴ At that time he was placed in the segregation unit, or infirmary, of the DEC, and held under administrative confinement. According to institutional policy all inmates, such as the plaintiff, who request protective custody status are initially placed in administrative confinement, presently referred to as immediate segregation. This placement is not imposed as the result of a violation of disciplinary rules. It is instead merely a status indicating an inmate's initial placement in the segregation unit, under which the inmate remains for a brief time, pending a hearing or other investigation to determine whether protective custody status is warranted. (See generally Exhibit 115).

On January 6 a hearing on plaintiff's request for protective custody was conducted by Barry Heinbigner and Ron Reithmuller, who recommended on January 7 that the plaintiff be placed in protective custody for his own safety. (Exhibit 109).⁵ On January 8 defendant Dahm accepted the recommendation and placed the plaintiff on protective custody status. (Exhibit 104).⁶ However, although the plaintiff's status changed, he physically remained in the segregation unit at the DEC. The reason for this was clear: the protective custody unit for the Nebraska Department of Corrections, which at that time was housed in the Lincoln Correctional Center, was at full capacity. The plaintiff was accordingly put on a waiting-list, to be transferred to that unit once space was available. However, in the meantime he remained confined in the segregation unit at the DEC, for, as defendant Ferguson emphasized in his testimony, this was the only unit in the DEC at that particular time which had space available and in which prison officials could reasonably assure plaintiff's safety.⁷ The plaintiff remained in the segregation unit until January 21, 1986, at which time he was transported to Louisiana, pursuant to a writ of habeas corpus ad testificandum, in order to testify in a murder trial. (Exhibit 8).⁸

During this time, from January 3 to January 21 of 1986, while the plaintiff was confined in the segregation unit he was admittedly subject to more restrictive conditions than if he had remained in general population. In particular, although inmates in the general population were afforded direct physical access to the law library, the inmates in the segregation unit, including those on protective custody status, had no such access. It is clear that this restriction was related to valid security concerns. As defendants Ferguson and Dahm testified, in order to permit such inmates physical access to the law library, given the pertinent protective and security concerns, it would first be necessary to close off access to the library area by the rest of the inmate population, and would require the presence of at least one guard per inmate who would escort the inmate to the library, remain in the library until his research time was completed, and then escort him back to his cell. Such a practice was seen as prohibitive, both in terms of its added burden on staff and prison resources, and, to a somewhat lesser degree, the attendant restrictions that would have to be placed on the other inmates.⁹

Because such inmates have no physical access to the law library, they are limited to using specifically requested legal materials in their cells.¹⁰ The evidence did not indicate whether any limit was placed on the amount or number of materials which an inmate could have in his cell at any one time.¹¹ The testimony of defendant Ferguson revealed that if the requested material could not be found in the library at the DEC, it would be possible to obtain the material from the University of Nebraska College of Law pursuant to an "inter-library transfer," although this was admittedly rarely done.¹²

The established policy for obtaining legal materials was by submitting an interview request form to the inmate legal aide, Al Holloway, who was...