Smith v. Bounds

• Decision Date: 10 April 1986
• Docket Number: Civ. No. 3052,790.,4277
• Citation: 657 F. Supp. 1327
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: Robert (Bobby) SMITH, et al., Plaintiffs, v. Vernon Lee BOUNDS, et al., Defendants. Donald W. MORGAN, et al., Plaintiffs, v. R.L. TURNER, Defendant. John HARRINGTON, et al., Plaintiffs, v. James HOLSHOUSER, et al., Defendants.

657 F. Supp. 1327

Robert (Bobby) SMITH, et al., Plaintiffs, v. Vernon Lee BOUNDS, et al., Defendants.

Donald W. MORGAN, et al., Plaintiffs, v. R.L. TURNER, Defendant.

John HARRINGTON, et al., Plaintiffs, v. James HOLSHOUSER, et al., Defendants.

Civ. Nos. 3052, 4277, 790.

United States District Court, E.D. North Carolina.

April 10, 1986.

Barry Nakell, Chapel Hill, N.C., for plaintiffs.

Jacob L. Safron, Asst. Atty. Gen., N.C. Dept. of Justice, Raleigh, N.C., for defendants.

ORDER

DUPREE, District Judge.

This action is before the court for a determination of which of the parties' plans for providing North Carolina's indigent inmates with the assistance of counsel should be adopted by the court. Plaintiffs have submitted two alternative plans, each providing that defendants would contract with Legal Services of North Carolina, Inc. (LSNC) to provide legal services to inmates. The major difference between plaintiffs' two proposals involves the number of attorneys and proposed budgets. Plaintiffs' initial proposal, filed July 3, 1985, would provide for twenty-three attorneys, with twenty to be funded by the state and three to be provided by LSNC.¹ The estimated budget for this proposal is $1,357,000. Plaintiffs' second proposal, initiated in response to defendants' proposal, would provide for thirteen attorneys, ten of whom would be funded by the state and three through NCPLS.² The estimated budget for this proposal is $643,695.

In most other respects the two proposals are the same. The particulars of those proposals are as follows: The contract between the state and LSNC would obligate LSNC to provide representation to all indigent inmates of North Carolina prisons³ in connection with the validity of their convictions, sentences and sentence computation and the validity of the conditions of their confinement. The program would be administered by the LSNC's board of directors. Office space would be made available through LSNC offices across the state. LSNC would provide representation in all cases in state and federal courts that the attorneys conclude have merit. The attorneys would be authorized to decline representation in frivolous cases, but would provide inmates in such cases with an explanation of their decision as to frivolity. The attorneys would attempt to resolve all grievances at the administrative level or through settlement, where possible. They would follow standard LSNC policies and priorities regarding the screening of cases. Case and client confidentiality would, of course, be maintained. Plaintiffs contend that such a program would provide inmates with excellent representation and would assure the independence necessary to make a program of inmate assistance work.

Defendants' plan would provide that the Department of Correction would contract with one supervisory attorney. The supervisory attorney would be responsible for employing nine staff attorneys and five secretaries. The attorneys' offices would be placed in the administrative wings of five prisons: Caledonia Correctional Institution, Central Prison, Piedmont Correctional Center, Western Correctional Center, and Southern Correctional Center. No fewer than two attorneys and one secretary would be assigned to each institution. Interviews would be conducted in the attorneys' office. To assure privacy, the offices would be equipped so that persons would not be able to observe an attorney conferring with an inmate. Additionally, a privacy button would be installed in the attorneys' offices so that other persons would not be able to listen to a conversation on another extension or on the switchboard. To insure the safety of attorneys, each inmate would be completely searched prior to any interview. Furthermore, the attorneys' offices would be equipped with emergency alarm buttons to summon assistance should the need arise. Attorneys' offices would also be randomly searched on an infrequent basis for contraband concealed by inmates. Any indication that such searches were being conducted for harassment purposes would result in disciplinary proceedings being instituted against the responsible department employees.

The attorneys essentially would be independent contractors. They would receive no benefits other than their salaries. They would not be subject to the State Personnel Act, N.C.G.S. § 126-1, et seq. They would also be permitted to perform outside work for non-inmate clients, receiving compensation for that work above and beyond the amount of their salaries. These provisions are included in a proposed contract agreement which is attached to defendants' memorandum filed March 10, 1986.

However, defendants have offered nothing to show why their plan is preferable to plaintiffs', other than to say that the department should be given the opportunity to implement the plan that it prefers. Conversely, plaintiffs have interposed numerous objections to defendants' plan. Foremostly, plaintiffs contend that defendants' plan will not assure adequate independence on the part of the attorneys involved. They contend that defendants' arrangement violates Rule 5.1(B) of the North Carolina Rules of Professional Conduct,⁴ because the attorney's responsibilities to the department and the control exerted by the department may materially limit their representation of its prisoners who are to be their clients.

In support of this contention, they point out the following: The department would have the authority to hire the attorneys and to fire them on thirty days' notice. Contract Agreement, ¶ 10 and Final Paragraph. However, these attorneys would be independent contractors, and thus would not have the rights afforded state employees with regard to dismissal. Contract Agreement, ¶ 12. The department would exercise some control over what types of cases an attorney might take. Contract Agreement, ¶ 1. Additionally, counsel would be required to inform the Department of Correction as to the substance of all requests for representation by inmates, as well as the advice given, regardless of whether those requests were accepted or denied. Contract Agreement, ¶ 8. The attorneys' offices would be in the administrative wings of selected prison units, and would be subject to maintenance by prison staff and to random searches. The attorneys' telephone calls would come in through prison switchboards. All contact with inmates would have to be made through the prison superintendent, generally upon twenty-four hours' notice. The attorneys would also have to submit to the department monthly receipts for all travel, depositions, expert witness fees, photographs, exhibits and all other costs and expenses.

Plaintiffs argue that while some of these provisions may be necessary and proper, the combination enables the department to monitor the attorneys' activities so closely as to be unprofessional. They further argue that these provisions not only would compromise the independence of the attorneys, but perhaps more importantly, would bring their independence into question in the minds of their clients, the inmates. One of the aims of providing inmates attorney assistance is to curb the filing of frivolous lawsuits by giving inmates a chance to discuss their grievances with a disinterested, outside party. Plaintiffs argue that inmates are not likely to take these attorneys seriously if they appear to be no more than employees of the people who the inmates believe have violated their rights.

In response to these objections, defendants argue only that the contractual nature of the agreement alleviates any problems with independence. "The attorneys in defendants' plan would not be state employees and would be bound by the Code of Professional Conduct and the Canon of Ethics." Defendants' Response to Plaintiffs' Objections, filed January 2, 1986. Thus, they argue, plaintiffs' objections are without merit.

However, this proffered explanation clearly fails to address the very real concerns raised in plaintiffs' objections. No attorney assistance plan is going to work unless the attorneys involved are independent both in fact and in the minds of the inmates whose interests they will represent. The court fails to see how a plan which gives the Department of Correction authority to hire and fire individual attorneys could ever provide the requisite independence. Furthermore, while the extent of attorney representation can and should be limited to issues relating to convictions, detainers, warrants and conditions of confinement, Gilmore v. Lynch, 319 F.Supp. 105, 110 (N.D.Cal.1970), aff'd sub nom, Younger v. Gilmore, 404 U.S. 15, 92 S.Ct. 250, 30 L.Ed.2d 142 (1971), defendants should not be permitted to limit representation to claims which can only be brought in federal court. Recent Supreme Court decisions have held that inmates may not bring suit in federal court for certain actions of department employees which do not affect constitutional rights. Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984); Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). Such claims frequently involve negligent injury or destruction of inmate property on the part of corrections officials. However, the lack of a federal forum for these claims does not mean that defendants can deny inmates the right to assistance to challenge such actions. "`Access to the courts' ... encompasses all the means a defendant or petitioner might require to get a fair hearing from the judiciary on all charges brought against him or grievances alleged by him." Gilmore, supra, 319 F.Supp. at 110; see also Nordgren v. Milliken, 762 F.2d 851 (10th Cir.1985). Thus, any plan must also permit attorney assistance for claims against prison officials pursuant to the state tort claims act, N.C.G.S. § 143-291, et seq., or any other relevant state statutes.

Nevertheless, as stated before, the major problem with defendan...