The Luparar v. Stoneman

• Decision Date: 30 September 1974
• Docket Number: Civ. A. No. 73-95.
• Citation: 382 F. Supp. 495
• Court: U.S. District Court — District of Vermont
• Parties: THE LUPARAR et al. v. R. Kent STONEMAN, Individually and as Commissioner of the Department of Corrections of the State of Vermont, and Julius Moeykens, Individually and as acting Warden of the Vermont State Prison at Windsor, Vermont.

382 F. Supp. 495

THE LUPARAR et al. v. R. Kent STONEMAN, Individually and as Commissioner of the Department of Corrections of the State of Vermont, and Julius Moeykens, Individually and as acting Warden of the Vermont State Prison at Windsor, Vermont.

Civ. A. No. 73-95.

United States District Court, D. Vermont.

September 30, 1974.

COPYRIGHT MATERIAL OMITTED

Richard S. Kohn, American Civ. Liberties Union of Vermont, Inc., Montpelier, Vt., for plaintiffs.

Alan W. Cook, Asst. Atty. Gen., Montpelier, Vt., for defendants.

COFFRIN, District Judge.

This case presents serious questions concerning the right of prisoners to publish a prison newspaper and the right of the state if such a paper is published to impose guidelines on the types of articles that may be published, to suppress distribution of an issue, and to terminate the publication if it so desires.

The case is grounded upon 42 U.S.C. § 1983 and its jurisdictional complement, 28 U.S.C. § 1343. Plaintiffs seek injunctive and declaratory relief to permit the distribution of the January, 1973, issue of The Luparar and its continued publication without interference or censorship by the state. The case is before us on cross motions for summary judgment, defendants having moved to dismiss the complaint, or in the alternative, for summary judgment.

The Luparar was a newspaper published monthly by the inmates at the Vermont State Prison starting in December, 1971. At the outset, guidelines for publication were established at a meeting between a group of prisoners and some of the administrative staff. The paper was supported by the state and printed on the offset printing press at the State Prison. In the fall of 1972 there was a change of editors, and defendants allege that the editorial policy of the paper changed radically at this time. They claim that the publication began to carry attacks on personalities in violation of the guidelines that specified, inter alia, that issues, not personalities, would be discussed.

In January, 1973, the prison administration notified the newspaper staff that the issue could not be distributed as printed because some of the articles were objectionable. The staff made two attempts to mail copies of The Luparar to addresses outside the prison, but the prison mailman refused to accept them for mailing. The prison administration also sought to suppress distribution of the newspaper within the prison, but succeeded in recovering only a few of the five hundred copies printed. Since January, 1973, no issues of The Luparar have been published because the staff of the paper refuses to adhere to the 1971 guidelines or to discuss new guidelines, while the state will not allow publication without guidelines.

Plaintiffs are The Luparar, John Shuttle, an inmate who is the editor of the newspaper, and Craig Murray, an outside subscriber to the newspaper, who also purports to represent all others similarly situated. Defendants are R. Kent Stoneman, Commissioner of the Department of Corrections of the State of Vermont, and Julius Moeykens, incorrectly styled Michael Moeykens in the complaint who, at the time suit was brought, was Acting Warden of the Vermont State Prison. Defendants are sued both individually and in their official capacities.

Defendants have moved under Fed.R.Civ.P. 21 to drop The Luparar and Craig Murray as parties plaintiff. Plaintiffs have no objection to The Luparar being dropped and it may be so dropped. Plaintiffs object to dropping of Craig Murray as a party plaintiff, alleging that his right to receive the newspaper was infringed by defendants. Defendants claim that the interests of Craig Murray and the class he represents will be fully considered by the very nature of the suit and thus oppose granting the plaintiffs' motion to maintain the suit as a class action under Fed.R. Civ.P. 23(c).

We believe that maintaining this suit as a class action is unnecessary since, as should be apparent from this opinion, the relief applicable to plaintiff Murray would be applicable to the entire class of subscribers. We therefore deny plaintiffs' motion to maintain the suit as a class action and deny defendants' motion to drop Craig Murray as a party plaintiff.

Defendants' motion to dismiss the complaint for failure to state a cause of action is denied. In an action brought under the Civil Rights Act, the case should not be dismissed for failure to state a claim upon which relief can be granted under Fed.R.Civ.P. 12(b)(6) unless it appears to a certainty that the plaintiffs would be entitled to no relief under any state of facts which could be proved in support of their claims. Blair v. Rockefeller, 469 F.2d 641, 642 (2d Cir. 1972); Holmes v. New York City Housing Authority, 398 F.2d 262, 265 (2d Cir. 1968). Applying this test, we cannot say that plaintiffs could prove no set of facts which would entitle them to relief, and so we proceed to consider the cross motions for summary judgment.

It is well established that the internal management of prisons or correctional institutions is vested in and rests with the heads of those institutions operating under statutory authority, and their acts and administration of prison discipline and overall operation of the institution are not subject to court supervision or control. However, in the case of highly unusual circumstances or a violation of constitutional rights, courts have the power and duty to intervene in the internal affairs of a prison. See Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969); Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971), cert. denied, 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740 (1972); Douglas v. Sigler, 386 F.2d 684 (8th Cir. 1967).

Although plaintiffs and defendants are unable to agree on what precise issues are to be determined, the Court finds the following four issues in this suit. As we see it, the first issue that must be determined is what, if any, first amendment protections apply to the publication of a newspaper by prison inmates and the distribution of the newspaper within and without the prison. The second is whether the state, having permitted an inmate newspaper to be published by state facilities and to be partially supported by state funds, can terminate the publication because it objects to its content. The third issue is whether the state can impose guidelines on the publication. The final issue is whether the state can impose prior restraints upon publication of an issue because it objects to the content.

I

The first issue to be determined is whether the publication of a prison newspaper and distribution both inside and outside the prison is protected by the first amendment. Convicted prisoners do not retain "the full panoply of constitutional rights which citizens normally enjoy. But among the basic rights which they do retain in prison are certain of the first amendment freedoms and the sixth and fourteenth amendment right of access to the courts." Goodwin v. Oswald, 462 F.2d 1237, 1241 (2d Cir. 1972). Although the Supreme Court in Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), expressly withheld its opinion with regard to mass mailings by prisoners, id. at 408 n. 11, 94 S.Ct. 1800, 40 L.Ed.2d 224, we feel that the principles applicable to censorship of prisoner mail apply equally to censorship of a prisoner newspaper. The Court in Procunier refused to reach the question whether prisoners retained first amendment rights to send and receive uncensored mail. Instead, it based its decision on the first amendment rights of outsiders to carry on an uncensored correspondence with prison inmates. The issue here with respect to subscribers to The Luparar such as plaintiff Murray is virtually the same as that in Procunier, and we hold that distribution of a prison newspaper to subscribers outside the prison may not be prevented by prison officials unless such distribution would be likely to interfere with the legitimate governmental interests of security, order, and rehabilitation discussed in Procunier v. Martinez, 416 U.S. at 413-414, 94 S.Ct. 1800. Any suppression of a newspaper for reasons other than those would violate the outside subscribers' first amendment rights to receive the newspaper.

As for distribution within the prison, we fail to see how a newspaper that does not threaten security, order and rehabilitation can be withheld from the inmates. However, as the Supreme Court noted in Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969), first amendment guarantees must be "applied in light of the special characteristics of the . . environment." It follows, we think, that the same standards that determine whether distribution outside the prison would threaten legitimate governmental interests would apply to distribution within the prison. See Procunier v. Martinez, 416 U.S. at 412-414, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974). We hold, therefore, that distribution of a prison newspaper within the prison is entitled to the same protections and subject to the same limitations as distribution outside of the prison.

II

We next take up the issue of the state's termination of the publication because of objections to its content. Although cases dealing with prison newspapers are scarce, we find close analogies in the issues raised in cases concerning school and college newspapers. In Joyner v. Whiting, 477 F.2d 456 (4th Cir. 1973), the court said:

It may well be that a college need not establish a campus newspaper, or, if a paper has been established, the college may permanently discontinue publication for reasons wholly unrelated to the First Amendment. But if a college has a student newspaper, its publication cannot be suppressed because college officials dislike its editorial comment . . . . This rule is but a simple extension of the precept that freedom of expression may not be infringed by denying a privilege. Id. at

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