Rutherford v. Hutto, PB-73-C-193.
| Decision Date | 18 June 1974 |
| Docket Number | No. PB-73-C-193.,PB-73-C-193. |
| Citation | 377 F. Supp. 268 |
| Parties | James J. RUTHERFORD, Petitioner, v. Terrell Don HUTTO, Commissioner of Correction, State of Arkansas, and A. L. Lockhart, Superintendent, Cummins Unit, Arkansas Department of Correction, Respondents. |
| Court | U.S. District Court — Eastern District of Arkansas |
James J. Rutherford, pro se.
Jim Guy Tucker, Atty. Gen., and James W. Atkins, Asst. Atty. Gen., State of Arkansas, Little Rock, Ark., for respondents.
This is an action brought by James J. Rutherford, an inmate of the Cummins Unit, Arkansas Department of Correction, against Terrell Don Hutto, Arkansas Commissioner of Correction, and A. L. Lockhart, Superintendent of the Cummins Unit. Petitioner seeks equitable relief under 42 U.S.C.A., section 1983, and jurisdiction is conferred upon this Court by 28 U.S.C.A., section 1343(3). Petitioner has been permitted to prosecute the action in forma pauperis; however, the Court has not deemed it necessary to appoint counsel to represent petitioner.
Petitioner complains that his enforced attendance of classes being held at Cummins in connection with the operation of the prison school district created by Arkansas Act 279 of 1973, Ark.Stats., Ann., Cum.Supp., section 46-1301 et seq., violates rights protected by the First Amendment to the Constitution of the United States and also constitutes cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments. Respondents deny that the complaint has merit.
An evidentiary hearing was held in open court on May 24, 1974. In the course of the hearing the Court received the testimony of petitioner, Assistant Cummins Superintendent Jerry Campbell, the prison physician, Dr. George W. Smiley, and certain employees of the Department who are engaged in conducting the school. At the conclusion of the hearing petitioner was given leave to submit to the Court within a few days written communications from certain persons in the outside world; it was agreed that those communications would be received in evidence; however, no such communications have been received, and the Court does not think that any useful purpose would be served by waiting further for them. This memorandum incorporates the Court's findings of fact and conclusions of law.
Petitioner is a 43 year old white male. He is properly classified as illiterate although he has some slight ability to read and write and some elementary understanding of simple arithmetic. Petitioner's illiteracy is due entirely to lack of formal education. While he is not highly intelligent, he is probably not mentally retarded. For many years he has pursued a systematic criminal career, and he has a substantial record of felony convictions.
Petitioner alleges and has testified that when he was a small boy he suffered a severe attack of typhoid fever which caused his parents to remove him from the first or second grade in school, and that he never returned to school. He says that the family physician advised his parents that he should never be enrolled in school again, and he testified that his classroom attendance makes him extremely nervous. He is required to attend classes some eight hours a day, one day a week. When he is not in school, his duties are to operate heavy motorized equipment on and about the prison farm. At one time he, and other inmates similarly situated, were required to attend night classes on one night of each week in addition to performing their regular duties as inmates during the day. Compulsory attendance at night classes has now been discontinued, and the complaint that petitioner made originally that he had to work all day and then go to school during what would ordinarily be his leisure time has gone out of the case.
In addition to complaining about being made to go to school, petitioner has complained during the pendency of the case that he has been placed in fear by prison personnel on account of the fact that he filed the suit; and a few days before the hearing he complained that he had been found guilty of a major disciplinary violation on a trumped up charge of damaging a piece of State owned equipment which he was operating. In view of petitioner's early allegations of threatened retaliation the Court issued an order temporarily restraining respondents and their subordinates from forcing petitioner to go to school and from reducing him in class or changing his job assignment adversely unless petitioner should be found guilty of a major disciplinary violation. The order specified that should petitioner be charged with such a violation and found guilty by a prison disciplinary panel, the Court was to be advised of the fact at once and to be furnished with a statement as to the facts and circumstances of the episode.
The Court does not find from a preponderance of the evidence that petitioner has in fact been the subject of retaliation on account of his having filed this suit, and is satisfied that petitioner's recent conviction by the disciplinary panel of willfully or negligently operating a piece of equipment that had no oil in it was not retaliatory and was not related to this litigation in any way. After hearing petitioner's version of what took place, the Court entertains some doubt that petitioner should have been convicted. However, it appears that due to the existence of the Court's restraining order no punishment was imposed on petitioner, and that he is still doing his regular work and still occupies the status of a trusty inmate. The Court will return to this matter briefly before concluding this memorandum.
Returning now to petitioner's complaint about the school, petitioner asserts that he has a constitutional right to remain ignorant and, indeed, illiterate. He has no interest in learning, and the Court finds that it probably does make petitioner nervous to sit in a classroom all day; in that connection the Court noticed that sitting in the courtroom and testifying during the hearing appeared to be making petitioner somewhat nervous. Petitioner says that although he is illiterate, he understands life and people, and that he possesses sufficient skills to earn an honest living in the free world. The Court finds that petitioner could make such a living as a machinery operator if he wanted to; there is, unfortunately, little reason to believe that petitioner has sufficient motivation to lead a law abiding life to keep him out of trouble after his present sentence expires or after his release on parole, should he be so released.
Over four years ago the Court had occasion to hold that conditions and practices prevailing in the Arkansas Department of Correction were so substandard as to make the confinement of human beings in either of the Department's units for male offenders a cruel and unusual punishment prohibited by the Constitution. Holt v. Sarver, E.D.Ark., 1970, 309 F.Supp. 362. In the course of its discussion the Court pointed out and commented upon the then complete lack of any rehabilitation program at Cummins and recognized the well known contribution to crime of ignorance and lack of skills. While the Court was unwilling to hold that the Constitution positively requires a State to make an effort to rehabilitate its convicts, the Court recognized that a State has a right to do so and an interest in doing so. 309 F. Supp. at 378-379. And the Court considered that the lack of any meaningful program of rehabilitation at Cummins was a factor to be considered along with others in determining whether confining a person there amounted to cruel and unusual punishment. Ibid.
In its most recent opinion dealing with the Department of Correction, Holt v. Hutto, E.D.Ark., 1973, 363 F.Supp. 194,1 the Court took note of the many improvements that have been made at Cummins since 1970, and the Court is of the view that not the least of those improvements has been the establishment of the school which petitioner is being required to attend against his will.
Section 1 of Act 279 of 1973 provides that properties owned by the State and occupied by the various units of the Department of Correction shall constitute the Department of Correction School District, and that the State Board of Correction is to act as the District's school board.
Section 2 recites that the District is being created for the purpose of providing elementary, secondary, and vocational technical education to all persons incarcerated in the Department who are not high school graduates, irrespective of age. And the section then goes on to authorize a continuance of the adult education program currently being administered by the England Special School District No. 2 of Lonoke County, Arkansas.2
Section 3 of the Act specifies that the school is to be supported by State funds and by federal funds to the extent that federal funds are or may become available. It is stipulated that the District, like more conventional districts throughout the State, is to share in the distribution of grants and aids from the State Department of Education.3
Section 4 of...
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