Seybold v. Milwaukee County Sheriff

• Decision Date: 30 November 1967
• Docket Number: No. 67-C-78.,67-C-78.
• Citation: 276 F. Supp. 484
• Parties: John Allen SEYBOLD, Plaintiff, v. MILWAUKEE COUNTY SHERIFF, and Milwaukee County Board, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

276 F. Supp. 484

John Allen SEYBOLD, Plaintiff, v. MILWAUKEE COUNTY SHERIFF, and Milwaukee County Board, Defendants.

No. 67-C-78.

United States District Court E. D. Wisconsin.

November 30, 1967.

John Allen Seybold, pro se.

Robert P. Russell, Corp. Counsel, Milwaukee County, Gerald G. Pagel, Asst. Corp. Counsel, Milwaukee, for defendants.

OPINION

TEHAN, Chief Judge.

On March 9, 1967, this court entered an order permitting the plaintiff, John Allen Seybold, to file his complaint in the above action in forma pauperis. The plaintiff, an inmate of the Wisconsin State Prison at Waupun, Wisconsin, alleges that the defendants are infringing his copyright and seeks an injunction and damages. The defendants have moved to dismiss and the plaintiff has filed a "Petition for a Temporary Restraining Injunction" and a motion to strike the motion to dismiss.

Court records reveal that this action is the fifth action filed by the plaintiff in forma pauperis in this court in the past year and one-half. One of these, Civil Action No. 66-C-213, Seybold v. Burke, was a petition for writ of habeas corpus filed August 4, 1966 challenging the legality of two consecutive twenty year sentences imposed upon him on May 13, 1964 in the Circuit Court of Milwaukee County for armed robbery and attempted murder. The petition was denied on October 26, 1966. In another, Civil Action No. 66-C-200, Seybold v. Wolfe, the plaintiff sought damages of $320,000 from a Wheeling, Illinois police officer under the Civil Rights Act. This action, filed August 1, 1966, was dismissed on September 21, 1967 due to improper venue. A third, Civil Action No. 66-C-199, Seybold v. State of Wisconsin, et al., filed on July 26, 1966, seeks damages of $511,000 apparently under the Civil Rights Act, and is still pending. The fourth, Civil Action No. 67-C-1, Seybold v. Wolke, et al., filed January 4, 1967 and dismissed the same day, attempted to set forth a copyright infringement cause of action but alleged that defendant was using plaintiff's copyrighted article under an agreement with plaintiff which he failed to perform.

Although he is unable to make himself available for trial or hearings on motions by reason of his incarceration, the plaintiff, appearing pro se, has pressed for action in his case and, in a letter dated September 16, 1967, stated that he would petition for writ of habeas corpus to be present at the hearing on pending motions. On September 20, 1967, the court caused a letter to be sent to the plaintiff informing him that when his petition for writ of habeas corpus was submitted he should submit authority substantiating his right thereto in a civil action for injunction and damages. The plaintiff filed his petition for writ of habeas corpus ad testificandum on September 27, 1967, citing as his authority all of Title 28 U.S.C., and Edgerly v. Kennelly, 215 F.2d 420 (7th Cir. 1954) cert. den. 348 U.S. 938, 75 S.Ct. 359, 99 L.Ed. 735.¹ On October 2, 1967, the court directed counsel for the defendants to file objections to the granting of said petition, if he had such objections, by October 27, 1967. Those objections have now been filed, as has the plaintiff's response thereto.

This case is one of a growing number of civil actions filed in this court by state prisoners seeking relief unrelated to their detention. It is obvious that such actions cannot be prosecuted effectively by the plaintiffs pro se² while they remain in custody, since their opportunity to engage in meaningful discovery is limited and since, absent interference by the court with their detention by State authorities, they would be unable to appear personally to plead their causes. It is also obvious that such interference by this court—directing that prisoner-plaintiffs be transported to court by State prison officials—could result not only in considerable expense and inconvenience to the State and the public but also in no small risk of escape. The incidents of the filing of civil suits by State prisoners have now reached the stage where the conflicting interests of the plaintiffs and the public must be weighed.

It is unquestioned that prisoners do not lose their right to bring civil actions solely by reason of their conviction and incarceration. There is authority however clearly demonstrating that this right is not unlimited. For example, in Weller v. Dickson, 314 F.2d 598 (9th Cir. 1963) cert. den. 375 U.S. 845, 84 S.Ct. 97, 11 L.Ed.2d 72, and Shobe v. People of State of California, 362 F.2d 545 (9th Cir. 1966) cert. den. 385 U.S. 887, 87 S.Ct. 185, 17 L.Ed.2d 115, the prisoners' status was apparently a consideration in the exercise of the court's discretion to refuse to permit a filing of civil actions in forma pauperis.³ In Kirby v. Thomas, 336 F.2d 462 (6th Cir. 1964), the court upheld the validity of a prison regulation prohibiting prisoners from mailing legal papers in civil actions unrelated to the validity of their convictions, quoting the District Court's Opinion as follows:

"`Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the consideration underlying our penal system, Price v. Johnston, 334 U.S. 266, 285 68 S.Ct. 1049, 92 L.Ed. 1356 (1948), and it appears well settled that it is not the function of the courts to superintend the treatment and discipline of prisoners in penitentiaries, but only to deliver from imprisonment those who are illegally confined. Kelly v. Dowd, 140 F.2d 81 (7th Cir. 1944). The enforcement of the regulation preventing the filing of ordinary civil actions by prisoners which do not relate to their personal liberty is a matter of prison discipline and is not in violation of any constitutional restriction. Tabor v. Hardwick, 224 F.2d 526 (5th Cir. 1955), cert. dismissed, 350 U.S. 890 76 S.Ct. 148, 100 L.Ed. 784, cert. denied, 350 U.S. 971 76 S.Ct. 445, 100 L.Ed. 843; United States ex rel. Wagner v. Ragen, 213 F.2d 294 (7th Cir. 1954), cert. denied, 348 U.S. 846 75 S.Ct. 68, 99 L.Ed. 667; Hatfield v. Bailleaux, 290 F.2d 632 (9th Cir. 1961), cert. denied, 368 U.S. 862 82 S.Ct. 105, 7 L.Ed.2d 59.'" (463)

and stating

"The limitation placed on the above stated rule by Ex Parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034 and White v. Ragen, 324 U.S. 760, 65 S.Ct. 978, 89 L.Ed. 1348, regarding regulations restricting the right of prisoners to apply for habeas corpus to inquire into the validity of their restraint, is well recognized. We do not understand these cases to require an absolute and unrestricted right for a prisoner to file any civil action prepared by himself. Tabor v. Hardwick, supra, involved facts substantially similar to those here presented, except that the petitioner in that case was a federal prisoner." (463)

In Tabor v. Hardwick, 224 F.2d at p. 529, cited in that opinion, the court stated:⁴

"We do not question the wisdom of the rule recognized by such decisions as Ex parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034, and White v. Ragen, supra, 324 U.S. 760, 65 S.Ct. 978, 89 L.Ed. 1348, that penitentiary inmates ought to have their right to inquire into the validity of their restraint of personal liberty and freedom zealously safeguarded by the courts, but we think that the principle of the cases so holding should not be extended to give them an absolute and unrestricted right to file any civil action they might desire. Otherwise penitentiary wardens and the courts might be swamped with an endless number of unnecessary and even spurious law suits filed by inmates in remote jurisdictions in the hope of obtaining leave to appear at the hearing of any such case, with the consequent disruption of prison routine and concomitant hazard of escape from custody. As a matter of necessity, however regrettable the rule may be, it is well settled that, `Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.' Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356." (224 F.2d 526, 529)

Because Wisconsin law does not toll operation of the statutes of limitations against prisoners for the entire period of imprisonment⁵ this court has uniformly granted prisoners' requests to file non-frivolous civil complaints in forma pauperis, despite their lack of freedom to prosecute their causes, to save them from loss of such rights of action as may prove meritorious. Only recently, however, have we been called upon to consider the extent to which prisoners should be permitted to pursue their causes whether they be filed in forma pauperis or not. After careful consideration of the problem and after considering the best interests of the prisoner and the government, as we have been directed in Price v. Johnston, 334 U.S. 266, 284, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948) and Haines v. Castle, 226 F.2d 591, 594 (7th Cir. 1955), cert. denied 350 U.S. 1014, 76 S.Ct. 660, 100 L.Ed. 874, we have concluded that, absent unusual circumstances, prisoners who have filed their civil complaints unrelated to the legality of their convictions and thus protected themselves against the running of any statutes of limitations will not be afforded the opportunity to appear in court to present their cases during their prison terms. Instead, such matters will be held in abeyance until the plaintiffs are released from prison and are in a position to freely prepare and present their cases.

The United States Supreme Court in Price v. Johnston, supra, made the oft-quoted statement:

"Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system." (285)

This statement, relating to limitation of a prisoner's right to appear in the Ninth Circuit Court of Appeals to argue his appeal from denial of a habeas corpus petition, was immediately followed...