Sturm v. Clark

• Decision Date: 14 December 1987
• Docket Number: No. 87-5170,87-5170
• Citation: 835 F.2d 1009
• Parties: Cheryl J. STURM, Appellant v. CLARK, J.J., Supt. FPC, Allenwood; Mathis, Earlando, Corr. Officer; Garzarelli, Louis, Sup. Corr. Officer, Owczarski, Ann, Personnel Officer; Chalmers, Mr., Corr. Officer, Myhand, Lieutenant, Sup. Corr. Officer, Isenberg, Mr., Corr. Officer, Campana, Mr., Corr. Officer, and Does, John, Unknown Correctional Staff, FPC, Allenwood, both individually and in their official capacities.
• Court: U.S. Court of Appeals — Third Circuit

Page 1009

835 F.2d 1009

Cheryl J. STURM, Appellant v. CLARK, J.J., Supt. FPC, Allenwood; Mathis, Earlando, Corr. Officer; Garzarelli, Louis, Sup. Corr. Officer, Owczarski Ann, Personnel Officer; Chalmers, Mr., Corr. Officer Myhand, Lieutenant, Sup. Corr. Officer, Isenberg, Mr., Corr. Officer, Campana, Mr., Corr. Officer, and Does, John Unknown Correctional Staff, FPC, Allenwood, both individually and in their official capacities.

No. 87-5170.

United States Court of Appeals Third Circuit.

Argued Sept. 28, 1987.

Decided Dec. 14, 1987.

James J. West, U.S. Atty., Wayne P. Samuelson, Asst. U.S. Atty. (argued), Lewisburg, Pa., for appellees.

Cheryl J. Sturm (argued), Wayne, Pa., pro se.

Before SEITZ, GREENBERG, and ROSENN, Circuit Judges.

OPINION OF THE COURT

ROSENN, Circuit Judge.

Unlike the more common appeal in which we consider the constitutionality of prison regulations designed to control the activities of inmates, the present inquiry requires us to review directives intended to restrain the conduct of an attorney practicing in a federal correctional institution. From November 1985 to June 1986, the appellee-defendant, Allenwood Federal Prison Camp (Allenwood or Camp), instituted a series of directives applicable only to the appellant-plaintiff, Cheryl J. Sturm, that effectively modified the terms and conditions of her access to the Camp.

Sturm thereafter filed a complaint in the United States District Court for the Middle District of Pennsylvania, alleging that the directives violated her federal constitutional rights, and her right to be free from undue interference with contract under Pennsylvania law. The district court dismissed plaintiff's complaint pursuant to Fed.R.Civ.P. 12(b)(6). We affirm in part and reverse in part.

I.

Sturm is a duly admitted attorney whose offices are in Wayne, Pennsylvania, and whose practice consists in large part of representing inmates at federal prisons on matters related to sentencing, resentencing, and parole. Plaintiff's complaint alleges a series of limitations imposed on her practice at Allenwood, a minimum security facility located in central Pennsylvania. On November 30, 1985, plaintiff visited the Camp to conduct a client interview. When Sturm began to speak to the wife of another client, officer Chalmers informed her that she could speak only to those inmates for whom she had a visitation permit.

Upon plaintiff's arrival at Allenwood the next day, officer Campana searched her briefcase and read confidential attorney-client correspondence. Campana additionally compelled Sturm to conduct her interviews under visual and audio surveillance of prison officers, and again precluded her from speaking to visitors and inmates for whom she did not have a visiting permit. ¹ When Sturm objected, officer Isenberg replied that Allenwood would not tolerate "business solicitation" during its visiting hours. On Father's Day, June 15, 1986, while Sturm was conferring with a client, Lieutenant Garzarelli, also a prison officer, terminated the conference by informing the inmate that he could have his legal visit or his family visit but not both. On June 16, 1986, Superintendent Clark had the plaintiff presented with a letter giving notice that as a result of her "disruptive and unprofessional behavior" on June 15, her subsequent visits could occur only upon twenty-four hours notice, and between the hours of 8:00 A.M. and 3:30 P.M., Monday through Friday. Allenwood's restrictions on plaintiff's speech and access applied to no other attorney. ²

On July 17, 1986, Sturm instituted a Bivens action against the defendants in their official and individual capacities seeking damages and an injunction for deprivation of her constitutional rights. ³ The district court granted defendants' motion to dismiss the complaint by memorandum and order dated February 20, 1987, holding that Sturm had failed to state a cause of action under the first, fifth, ninth, and fourteenth amendments of the constitution and under Pennsylvania tort law. At oral argument before this court, plaintiff conceded that the visiting hour directives contained in the June 16 correspondence had been lifted. ⁴ Therefore, Sturm's request for an injunction with respect to those directives is moot. Her claim for injunctive relief from speech restrictions is, however, still before us, as are her claims for compensatory and punitive damages.

II.

In reviewing a motion to dismiss a complaint for failure to state a claim under Fed.R.Civ.P. 12(b)(6), all allegations in the complaint and all reasonable inferences that can be drawn therefrom must be accepted as true and viewed in the light most favorable to the non-moving party. Wisniewski v. Johns Manville Corp., 759 F.2d 271, 273 (3d Cir.1985); Rogin v. Bensalem Twp., 616 F.2d 680, 685 (3d Cir.1980).

A.

We first determine whether plaintiff's claim that the directives ⁵ embodied in the June 16 correspondence adversely affected her reputation without affording her due process of law within the meaning of the fifth amendment. In Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971), the Supreme Court examined the constitutionality of a Wisconsin statute that permitted the City of Hartford to post in all retail liquor stores, the names of individuals who by excessive drinking, endangered themselves, their families, or their communities. Id. at 434, 91 S.Ct. at 508. The statute prohibited the sale of alcoholic beverages to those whose names were posted. In holding that the statute violated the fourteenth amendment's due process clause, the Court asserted that "[w]here a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential." Id. at 437, 91 S.Ct. at 510. It added that whenever "a State attaches a 'badge of infamy' to the citizen, due process comes into play." Id. quoting Wieman v. Updegraff, 344 U.S. 183, 191, 73 S.Ct. 215, 218-19, 97 L.Ed. 216 (1952).

In Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), the Court again examined the nexus between reputation and the due process clause, this time in the context of a university professor denied reappointment after the expiration of a one year contract. After observing that a constitution for a free people requires an expansive definition of liberty, the Court determined that the right to one's reputation is protected by the "liberty" component of the due process clause. 408 U.S. at 572-73, 92 S.Ct. at 2706-07. Although it ultimately denied respondent's entitlement to due process safeguards, the Court observed that the result would have been different had the State based its non-renewal decision "on a charge, for example, of dishonesty, or immorality." Id. at 573, 92 S.Ct. at 2707.

In Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), the Court reinterpreted its holdings in Constantineau and Roth in light of a due process challenge to a "flyer" distributed to Louisville merchants by the Kentucky Police Department containing the names and mugshots of "active shoplifters." Id. at 695, 96 S.Ct. at 1158. The respondent, who had been mistakenly included in the flyer, alleged a deprivation of liberty based upon impairment of his reputation and his future employment opportunities. Id. at 697, 96 S.Ct. at 1159. In rejecting the respondent's contention, the Court asserted that reputation cannot be accorded independent constitutional significance based, in part, on the fourteenth amendment's failure to make any explicit reference to it. Id. at 698, 96 S.Ct. at 1159. Therefore, it held that mere damage to reputation, apart from the impairment of some additional interest previously recognized under state law, is not cognizable under the due process clause. Id. at 711-12, 96 S.Ct. at 1165-66. Absent the alteration or extinguishment of a more tangible interest, injury to reputation is actionable only under state defamation law. Id. at 711-12, 96 S.Ct. at 1165-66. The Court additionally recognized that a state might elevate reputation to the status of a liberty interest by according it protection beyond that contained in its tort law. Id. at 710-12, 96 S.Ct. at 1165-66; Mosrie v. Barry, 718 F.2d 1151, 1159 (D.C.Cir.1983).

Returning to its prior precedents, the Court noted that "in each of these cases, as a result of the state action complained of, a right or status previously recognized by state law was distinctly altered or extinguished." Id. 424 U.S. at 711, 96 S.Ct. at 1165. Thus, due process safeguards attached in Constantineau, not because of any injury to reputation, but because the Wisconsin statute constituted a deprivation of a right previously recognized under state law--the right to purchase or obtain liquor. Id. at 708, 96 S.Ct. at 1164. Similarly, the Court reread Roth to require both damage to reputation and the extinguishment of government employment as a predicate for due process protection. ⁶ Id. at 709, 96 S.Ct. at 1164. Turning to the case before it, the Court held that because Kentucky did not extend any legal guarantee of present enjoyment of reputation apart from its tort law, the respondent's injury did not constitute a violation of the due process clause. Id. at 711-12, 96 S.Ct. at 1165-66.

Applying Paul to the present inquiry, we conclude that plaintiff fails to state a claim under the due process clause of the fifth amendment. ⁷ Sturm alleges that as a result of defendants' directives and their corresponding depiction of her as disruptive and unprofessional, prison inmates are unwilling to retain her as counsel. Plaintiff seeks to sanction the very result that Paul rejected, the constitutionalizing of the ordinary defamation action. Mosrie, 718 F.2d at 1158. Most, if not all, charges of defamation are inevitably accompanied by financial loss. Id. at 1158. Paul, however, asserts that financial harm resulting from government defamation...