Rowland v. Wolff

• Decision Date: 02 November 1971
• Docket Number: Civ. No. 1617 L.
• Citation: 336 F. Supp. 257
• Parties: Curtis E. ROWLAND, Plaintiff, v. Warden Charles L. WOLFF, Jr., Nebraska Penal and Correctional Complex, Defendant.
• Court: U.S. District Court — District of Nebraska

336 F. Supp. 257

Curtis E. ROWLAND, Plaintiff, v. Warden Charles L. WOLFF, Jr., Nebraska Penal and Correctional Complex, Defendant.

Civ. No. 1617 L.

United States District Court, D. Nebraska.

November 2, 1971.

Bernard Wishnow, Lincoln, Neb., for plaintiff.

C. C. Sheldon, Asst. Atty. Gen., for defendant.

MEMORANDUM AND ORDER

URBOM, District Judge.

The plaintiff, Curtis E. Rowland, has brought suit against the warden of the Nebraska Penal and Correctional Complex,¹ alleging that his civil rights have been violated. The jurisdiction of this court has been properly invoked pursuant to 42 U.S.C.A. § 1983 and 28 U.S.C.A. § 1343.

Although the original petition made a number of broad complaints about the treatment accorded the plaintiff, it was stipulated at the pretrial conference of this matter that the major issue to be presented for trial would be whether the plaintiff had been denied visitation by two of his sisters in an arbitrary and discriminatory manner.

The facts surrounding the incident which led to the denial of visitation by Mr. Rowland's sisters are not seriously in dispute. The plaintiff has been incarcerated at the Nebraska Penal and Correctional Complex for approximately eight years. On March 20, 1967, the plaintiff was visited by two of his half sisters. The next day, then-warden Maurice Sigler received a report from an informant that Curtis Rowland had smuggled a pistol into the complex. All inmates were immediately confined within their cells and an extensive search was made. A 32-caliber automatic pistol, clip, and ammunition were discovered in a filing cabinet in the basement of the chapel. The plaintiff, among others, was questioned as to his knowledge of the incident. Investigator Lynn Parks of the State Highway Patrol made a fairly detailed investigation of the plaintiff and his sisters, Linda (Marion) Jones and Mary Ellis Marion. Throughout the investigation the plaintiff and his sisters denied any knowledge of the incident. However, the warden subsequently removed the names of Mrs. Jones and Miss Marion from the plaintiff's list of approved visitors, although the other two sisters of the plaintiff are permitted to visit and have done so since March 20, 1967.

Institutional policy, as reflected in the Inmate Rule Book (plaintiff's exhibit 1), allows visits by sisters of inmates. The evidence indicates that other prisoners are allowed visits by sisters. The question for determination, then, is whether denial of visitation privileges to two of the plaintiff's sisters amounts to a deprivation of a constitutional right. I am confident that the plaintiff has no constitutional right to visitation from his sisters. Walker v. Pate, 356 F.2d 502 (C.A. 7th Cir. 1966); United States ex rel. Raymond v. Rundle, 276 F.Supp. 637 (U.S.D.C.E.D.Pa. 1967).

This does not completely answer the question, however, as a deprivation of some right or interest not necessarily constitutional in magnitude may be constitutionally impermissible if the effect of the deprivation is to place a chilling effect on the free exercise of some right that is constitutionally protected. Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), or if the deprivation is the result of an invidious discrimination foreclosed by the equal protection clause of the Fourteenth Amendment. See Sawyer v. Sigler, 320 F.Supp. 690 (U.S.D.C. Neb.1970). The United States Supreme Court has expressly recognized that the deprivation of some interests, even though not suggested as constitutional rights, must be attended by certain minimal safeguards. Slochower v. Board of Higher Education, 350 U.S. 551, 559, 76 S.Ct. 637, 100 L.Ed. 692 (1961). See also, Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817 (1951).

Thus, if it could be shown that the deprivation suffered by the plaintiff fits into any of the three categories mentioned above, it is possible that he would be entitled to relief. It has not been suggested by counsel, nor does the evidence in any way indicate, that the deprivation of visiting rights with Mrs. Jones and Miss Marion was imposed as a sanction for the exercise of a constitutionally protected right, and that ground need not be considered.

The plaintiff has advanced the contention that the treatment accorded him has been a violation of his right to equal protection of the law as guaranteed by the Fourteenth Amendment to the Constitution of the United States. Before some state action may be held to be a violation of the right to equal protection it must be shown that the complainant is a member of a class whose members are subjected to unequal treatment under the law. Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958). This may be shown by evidence that the class is invidiously or arbitrarily drawn, Torao Takahashi v. Fish and Game Commission, 334 U.S. 410, 68 S. Ct. 1138, 92 L.Ed. 1478 (1948), or that the class, although validly drawn, is treated unequally for no rational reason. Rinaldi v. Yeager, 384 U.S. 305, 86 S.Ct. 1497, 16 L.Ed.2d 577 (1966); Fay v. People of State of...