Smith v. Swenson, Civ. A. No. 1495.

Decision Date06 May 1971
Docket NumberCiv. A. No. 1495.
Citation333 F. Supp. 1258
PartiesCharles SMITH, Plaintiff, v. Harold R. SWENSON, Warden, Missouri State Penitentiary, Jefferson City, Missouri, et al., Defendants.
CourtU.S. District Court — Western District of Missouri

Charles Smith, plaintiff, pro se.

Kenneth M. Romines, Asst. Atty. Gen., Jefferson City, Mo., for defendants.

ORDER DENYING PLAINTIFF LEAVE TO APPEAL IN FORMA PAUPERIS

WILLIAM H. BECKER, Chief Judge.

In his complaint herein under the Federal Civil Rights Act, plaintiff, a state convict confined in the Missouri State Penitentiary, stated that his federal rights had been violated by his commitment to maximum security confinement in April 1968 and his continuous retention there, except for some intermissions, to the time of the filing of the complaint herein. Because, however, plaintiff admitted that threats had been made to his safety; that a knife had been thrown into his cell; and because he was serving a 50-year sentence for stabbing another inmate, plaintiff could not state any claim of arbitrary or capricious commitment or retention in maximum security confinement from April 1968 to September 1969. Further, the pendency of a criminal charge against him in a state court, which plaintiff admitted to be pending, justified his retention in maximum security quarters from March 31, 1970. Because plaintiff therefore did not state any claim of the denial of a federal right, his complaint was dismissed on March 25, 1971, 333 F.Supp. 1253.

Plaintiff now moves for leave to appeal in forma pauperis. Under the provisions of Rule 24, F.R.App.P., the federal district court may grant an indigent appellant who has been granted leave to proceed in forma pauperis further leave to appeal in forma pauperis without a further showing of indigency unless that court certifies that the appeal is not taken in good faith or the appellant is not otherwise entitled to an appeal in forma pauperis. In the case at bar, plaintiff cannot raise any substantial issues on appeal. In a brief memorandum accompanying his motion for leave to appeal in forma pauperis, plaintiff contends that commitment to maximum security confinement in the Missouri State Penitentiary is per se a violation of the 8th Amendment's prohibition of cruel and unusual punishment because it includes deprivation of certain other privileges which he names as follows:

"by depriving him of equal yard and entertainment opportunities; by depriving him equal opportunities to earn merit time by working and by other means; by depriving him equal opportunities to purchase articles from the commissary; by subjecting him to poorer living conditions than other prisoners who were being held in protective custody, by not allowing him to have a razor and a mirror and a television set and radio the same as other prisoners who were being held in protective custody."

The denial of certain comforts and rehabilitative benefits do not state denials of any federal rights. There is no federal right to a particular course of training or a particular rehabilitative program. Carey v. Settle (C.A.8) 351 F.2d 483; Diehl v. Wainwright (C.A.5) 419 F.2d 1309; Numer v. Miller (C.A.9) 165 F. 2d 986; Vaughn v. Swenson (W.D.Mo.) Civil Action No. 1422. The denial of privileges which plaintiff seeks to enforce in this action are all necessary conditions of maximum security status and are not deprivals of federal rights when abridged in accordance with a lawful commitment to maximum security confinement.

The claims that plaintiff is not allowed to have certain personal effects, including a razor, not only do not state any denials of federal rights, but represent a change in plaintiff's factual contentions in that he now for the first time contends that he is being denied the permanent retention of a razor in his cell when other prisoners in protective custody are being allowed the privilege of keeping a razor. But in his complaint herein, plaintiff alleged that he was permitted the use of a razor twice a week and that, unlike "other inmates in the general prison population," he was not permitted to retain a razor in his cell. (Emphasis added.) It is also noteworthy in this regard that plaintiff throughout the course of pleading in this case has shifted his factual contentions. In his original complaint herein, plaintiff admitted that he was being retained and had been committed to maximum security:

"because other inmates in the aforesaid penitentiary (who are members of an inmate gang) are threatening to kill plaintiff (because of a long standing grudge) if and when plaintiff is released back into the general prison population;"

and that "defendants also have...

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6 cases
  • United States ex rel. Hoss v. Cuyler
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • May 1, 1978
    ...Smith v. Schneckloth, 414 F.2d 680, 682 (9th Cir. 1969); Padgett v. Stein, 406 F.Supp. 287, 296-97 (M.D.Pa. 1975); Smith v. Swenson, 333 F.Supp. 1258, 1259-60 (W.D.Mo.1971); Wilson v. Kelley, 294 F.Supp. 1005, 1012-13 (N.D.Ga.) (three-judge court), aff'd mem., 393 U.S. 266, 89 S.Ct. 477, 21......
  • Padgett v. Stein, 72-487 Civil.
    • United States
    • U.S. District Court — Middle District of Pennsylvania
    • December 16, 1975
    ...294 F.Supp. 1005, aff'd 393 U.S. 266; Holt v. Sarver, E.D.Ark.1970, 309 F.Supp. 362, aff'd 8 Cir. 1971, 442 F.2d 304; Smith v. Swenson, W.D.Mo.1971, 333 F.Supp. 1258; United States v. Wyandotte County, Kansas, D.Kan.1972, 343 F.Supp. 1189. There is no constitutional duty imposed on a govern......
  • Houchin v. Holmes
    • United States
    • U.S. District Court — Eastern District of Kentucky
    • December 27, 1974
    ...Tyrrell v. Speaker, supra, 471 F. Supp. at 1202; United States ex rel. Walker v. Mancusi, 2d Cir., 467 F.2d 51 (1972); Smith v. Swenson, W.D.Mo., 333 F.Supp. 1258 (1971); Novak v. Beto, S.D.Tex., 320 F.Supp. 1206, 1211-1212 (1970), modified on other grounds 5th Cir., 453 F.2d 661 (1971), ce......
  • Beauclair v. Heimgartner
    • United States
    • Kansas Court of Appeals
    • April 3, 2015
    ...the inmate was transferred to a new prison job, which afforded less of an opportunity to earn good-time credits); Smith v. Swenson, 333 F.Supp. 1258, 1259–60 (W.D.Mo.1971) (finding that denying an inmate the opportunity to earn good-time credit by placing him in maximum-security confinement......
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