Souza v. Travisono

• Decision Date: 18 December 1973
• Docket Number: Civ. A. No. 5261.
• Citation: 368 F. Supp. 959
• Parties: Anthony SOUZA et al. v. Anthony P. TRAVISONO, Individually and as Director, Department of Corrections, et al.
• Court: U.S. District Court — District of Rhode Island

368 F. Supp. 959

Anthony SOUZA et al. v. Anthony P. TRAVISONO, Individually and as Director, Department of Corrections, et al.

Civ. A. No. 5261.

United States District Court, D. Rhode Island.

December 18, 1973.

Ralph J. Gonnella and Thomas C. Angelone, Richard A. Boren, Inmate Legal Assistance Program, Providence, R. I., Max Stern, Burnham, Stern & Shapiro, Boston, Mass., Stanley A. Bass, New York City, John M. Roney, R. I. Legal Services, Providence, R. I., for plaintiffs.

W. Slater Allen, Jr., Donald P. Ryan, Edward F. Burke, Providence, R. I., Joel D. Landry, R. I. Dept. of Corrections, Cranston, R. I., Raymond R. Coia, Everett A. Petronio, Providence, R. I., for defendants.

OPINION

PETTINE, Chief Judge.

This is a class action filed on behalf of the inmates confined at the Adult Correctional Institutions (hereinafter cited as ACI) against various state officials and correctional officers seeking declaratory and injunctive relief against certain policies and practices of the defendants alleged to be unconstitutional. Specifically, plaintiff inmates allege they have been denied the right of access to counsel and the right to attorney-client confidential communication in violation of the First, Sixth, Eighth and Fourteenth Amendments of the United States Constitution. The cause of action arises under 42 U.S.C. § 1983 and 28 U.S.C. §§ 2201 and 2202. Jurisdiction is based on 28 U.S.C. § 1343.

Findings of Fact

Attorney and Law Student Access to Inmates

The evidence offered at the hearing on July 27, 1973 on the preliminary injunction, at the conclusion of which an order was entered with the consent and by agreement of all the parties and the October 28, 29, 1973 hearing on the merits, constitute the facts of the case.¹ It establishes, and I so find, the facts to be as recited hereinafter.

In November of 1971, an Inmate Legal Assistance Program (hereinafter referred to as "ILAP") was instituted at the Adult Correctional Institutions. This program is federally funded through a grant from the Law Enforcement Assistance Administration pursuant to the Federal Omnibus Crime Control and Safe Streets Act of 1968, and is designed to provide a full panoply of legal services to indigent prisoners. These include but are not limited to actions of divorce, bankruptcy, probate, bail, detainers, civil rights, post-conviction remedies and a miscellany of prisoner problems. Additionally, the "ILAP" often performs the important function of acting as a liaison with the Public Defender Service in relation to a prisoner's defense in a criminal action. In Rhode Island, it functions under the auspices of the Rhode Island Governor's Committee on Crime, Delinquency and Criminal Administration and is administered pursuant to a sub-grant by the Center for Corrections and the Law at Boston College Law School.

The present "ILAP" sub-grant budgets rental space for three rooms totaling 500 square feet ". . . to be supplied in-kind by the ACI"² and from inception of the program, office space at the ACI was furnished and occupied in the administration wing of the Maximum Security Section.

The "ILAP" permanent personnel consists of a supervising attorney, a staff attorney and an office manager who in turn have the assistance of law students from Boston College Law School. From September, 1972 to June 15, 1973, fifteen such individuals worked on a part-time basis in return for which they received course credits. However, during the summer months, three to four students worked for salary on a full time five day a week schedule. The scope of their activities was limited to assisting the two program attorneys in determining the eligibility of inmate applicants for legal assistance and if the case was accepted, preparing the historical aspects and researching the applicable law.

Since the defendants attack in opposition to the plaintiffs' complaint is aimed directly at the activities of these students, the Court carefully searched the record and found that the sum and substance of the law student assistance may be recited in seriatim form.

1. Applications for assistance are received either directly by mail, phone calls or letters from the inmates, or their family, friends, other attorneys and on occasion even correctional officers.

2. The initial step of determining the indigency of the applicant was done by the law student after a personal interview with the prisoner.

3. If the inmate qualified for "ILAP" assistance, the student then embarked on a full factual investigation which in certain cases required that he travel to different court houses to search files, or to other states if detainer questions had to be resolved.

4. The final preparatory step was the crystallizing of the legal issues and completing the necessary research to be embodied in a report to the staff attorneys; conferences were held with them as to the legal merits of the case and the action, if any, to be taken. Though indeed they participated in the decisional process at no time did they give their own independent legal advice or conclusions to a client.

Prior to June 23, 1973, the "ILAP" operated in this manner with few restrictions on the law students, who were allowed to visit inmates at all reasonable day and night hours.

A tragic and devastating prison riot occurred on April 2, 1973 and thereafter the murder of a guard on June 22, 1973.³ In the interim, the present Warden was appointed, i. e. on May 7, 1973. As a result of his policies, the "ILAP" was evicted from the office space it occupied, law students were barred from the institution and the access of the staff attorneys curtailed as evidenced by the following series of events:

"July 3, 1973 — the two `ILAP' attorneys went to the prison with five to ten files each to see their clients but were denied access because they were not `attorneys of record.'" (Testimony of Richard Boren).

It appears to this Court that their status as attorneys of record could not be readily established because of the manner in which the applications were received, i. e. a phone call, letter or message of some sort from a third party to see the inmate or that the case had not reached the maturation point of court action. Preciseness is lacking as to the exact meaning of "attorney of record" but it is evident the "ILAP" law students are simply not allowed under any conditions to see inmates, who in one way or another contacted "ILAP" for help. As a result of this incident, the supervising "ILAP" attorney met with the Director of Corrections and also wrote to the Governor's Crime Commission. It was a sterile effort, for on July 12, 1973, the same obstacle was encountered. Four of the law students were denied admission.

At or about this time, the staff attorney learned that the Warden had issued a directive which he had not received and subsequently was unable to get in spite of two requests to the Attorney General of the State.⁴

On July 13, 1973 the staff attorney was at first denied admission to see an inmate because he was not an attorney of record. After explaining he was requested to see the prisoner by another attorney because of the prisoner's many problems, he was told that only the Warden could grant him access. He then attempted to speak to the Warden who was only ten feet away but who refused to talk with the attorney except to tell him to see the guard. Following this shuffling, he was allowed in.

On July 23, 1973, the staff attorney again encountered difficulty in seeing a prisoner referred to him by another attorney. The situation was explained to the guard who then called another officer who appeared 25 minutes later. After gaining admission, the guard inquired about the contents of the attorney's legal folder and started leafing through the papers contending he was looking for contraband. The attorney grabbed the file and offered to lift each sheet separately. The guard refused, insisting on going through them personally. The staff attorney feeling the attorney-client privilege was being violated left.

The present policies at the ACI appear to be in part a reflection of the Warden's attitude toward the nature of the "ILAP," involving the extensive use of law students serving as para-legal assistants to the staff attorneys.

Baldly he testified, "It's my testimony they don't belong in the prison" and merely offered as justification the bromide that they posed a threat to prison security. This conclusion is not substantiated in the record. On the contrary, the Warden's attitude shows a callous indifference, for at no time did he investigate the qualifications or reputation of participating students. In fact he didn't even know they were students nor did he bother to familiarize himself with the workings of the "ILAP." Even conceding that there was too much traffic "within the walls," as the Warden described, and that he could not continue to permit 85 people representing various civic projects free access to the Institution because it was "undermining" the staff and affecting control of the prison population, he failed to note that at no one time was there ever more than four law students "within the walls" nor did he distinguish the "ILAP" from other "volunteer" groups in that their mission was one designed to provide inmates effective access to the courts. As to any disruptive results stemming from these activities not even a modicum of supporting evidence was offered. All we have is the Warden's uttered predilection that he would rather have the inmates see their families rather than law students. In short it is evident the Warden feels no affirmative burden to provide inmates or their attorneys with services of law students and to the date of the trial on the merits remained inflexible in this regard.

Conceding that the Warden has an unquestioned right to take a strong summary stand to control an unruly prison population and forestall a planned kidnapping of civilians by the prisoners which he...