Thompson v. Bond, 74 CV 91-C.

• Decision Date: 15 October 1976
• Docket Number: No. 74 CV 91-C.,74 CV 91-C.
• Court: U.S. District Court — Western District of Missouri
• Parties: Douglas W. THOMPSON and Gary Vincent Johnson, Plaintiffs, v. Christopher BOND, Governor, State of Missouri, and John C. Danforth, Attorney General of Missouri, Defendants.

421 F. Supp. 878

Douglas W. THOMPSON and Gary Vincent Johnson, Plaintiffs, v. Christopher BOND, Governor, State of Missouri, and John C. Danforth, Attorney General of Missouri, Defendants.

No. 74 CV 91-C.

United States District Court, W. D. Missouri, C. D.

October 15, 1976.

COPYRIGHT MATERIAL OMITTED

James W. McManus of Shughart, Thompson & Kilroy, Kansas City, Mo., for plaintiffs.

William F. Arnet, Asst. Atty. Gen., Jefferson City, Mo., for defendants.

Before GIBSON, Circuit Judge, and COLLINSON and HUNTER, District Judges.

MEMORANDUM AND ORDER

ELMO B. HUNTER, District Judge.

Plaintiffs Douglas Thompson and Gary Johnson, both prisoners confined in institutions under the jurisdiction of the Missouri Department of Corrections, bring this action on behalf of all inmates of the Missouri penal system, seeking to have this Court declare unconstitutional and enjoin the enforcement of the Missouri civil death statute, Mo.Rev.Stat. § 222.010 (1969). A three-judge court was duly requested and empanelled as required by law.¹

Plaintiff Douglas Thompson is an inmate of the Missouri Department of Corrections, currently confined at the correctional institution in Moberly, Missouri, pursuant to a sentence for life following a conviction in a state court of Missouri. Plaintiff Gary Johnson² is an inmate of the Missouri Department of Corrections at Jefferson City, Missouri, where he is serving a term of 99 years following a conviction in a state court.³

Plaintiffs seek an Order of this Court permitting this action to proceed as a class action, contending that this cause falls within the requirements of all of the three subdivisions of Fed.R.Civ.P. 23(b). Having carefully considered the facts herein, the allegations of plaintiffs' amended complaint, and plaintiffs' suggestions supporting the motion for an Order designating this case as a class action, the Court has determined that the requirements of Rule 23(a) and 23(b)(2) have been met. Accordingly, this cause will be certified to proceed as a class action under Rule 23(b)(2) and plaintiffs will be allowed to represent the class of all adults presently incarcerated in Missouri penal institutions pursuant to a conviction in a Circuit Court of the State of Missouri and sentence of imprisonment for a term of years or life.

I.

Mo.Rev.Stat. § 222.010 (1969), the civil death statute, provides:

A sentence to imprisonment in an institution within the state department of corrections for a term less than life suspends all civil rights of the persons so sentenced during the term thereof, and forfeits all public offices and trust, authority, and power; and the person sentenced to imprisonment for life shall thereafter be deemed civilly dead.

Plaintiffs do not challenge the provision in § 222.010 for forfeiture of "all public offices and trust, authority, and power". The challenge herein is directed solely to that portion of the statute which "suspends all civil rights of the persons so sentenced during the term thereof" and the provision that "the persons sentenced to imprisonment for life shall thereafter be deemed civilly dead."

The so-called "saving statute", Mo.Rev. Stat. § 516.170, provides:

If any person entitled to bring an action in sections 516.100 to 516.370 specified, at the time the cause of action accrued be * * * in execution under a sentence of a criminal court for a less term than for his natural life, such persons shall be at liberty to bring such actions within the respective times in sections 516.100 to 516.370 limited after such disability is removed.

Plaintiffs contend that the two statutes act as a bar to prevent all inmates in the Missouri prison system from bringing suit in the state courts and as a result have deprived plaintiffs and other convicted persons of their rights under the First, Fifth, Sixth and Fourteenth Amendments to the United States Constitution.

Although no legislative history exists, a number of state court decisions have helped to clarify the scope of Missouri's civil death statute. First, the statute destroys or suspends a prisoner's right to enter into any contract or judicially enforceable instrument. Williams v. Shackleford, 97 Mo. 322, 11 S.W. 222 (1889); Jandro v. Jandro, 246 S.W. 609 (Mo.App.1923); Gray v. Gray, 104 Mo.App. 320, 79 S.W. 505 (1904). Second, a state prisoner in Missouri is unable to file any civil action in the courts, other than those related to the validity or constitutionality of his confinement, as long as he is incarcerated. Hill v. Gentry, 182 F.Supp. 500 (W.D.Mo.), rev'd on other grounds, 280 F.2d 88 (8th Cir. 1969). Thus, the civil litigation barred by § 222.010 includes lawsuits of a personal nature not affecting real and personal property, such as a suit for divorce, see McLaughlin v. McLaughlin, 228 Mo. 635, 129 S.W. 21 (1910), or a personal injury action. Hill v. Gentry, supra; see Note, "The Collateral Consequences of a Criminal Conviction," 23 Vanderbilt L.Rev. 929, 1023 (1970). Defendants neither dispute these interpretations of the statute's effect nor deny that the statute on its face suspends the civil rights of prisoners.

II.

Plaintiffs contend that § 222.010 operates to infringe upon their First Amendment protections. Although the First Amendment itself is merely a limitation against federal abridgment of the rights embodied in that amendment, the due process clause of the Fourteenth Amendment prevents any denial of those rights by the states. DeJonge v. Oregon, 299 U.S. 353, 364, 57 S.Ct. 255, 81 L.Ed. 278 (1936).

The First Amendment to the United States Constitution guarantees that Government will make no law abridging the right of the people to petition the Government for redress of grievances. Central to this right to petition is the right of access to the courts. California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510, 92 S.Ct. 609, 30 L.Ed.2d 642 (1971); Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969). Inmates cannot be denied the opportunity to petition courts for writs of habeas corpus, Ex Parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034 (1941), and any restriction which unduly impinges upon a prisoner's right to seek habeas corpus relief is invalid. Johnson v. Avery, supra. The Supreme Court has expanded this principle by recognizing that prisoners possess the right of access to courts for the purpose of redressing constitutional violations. Procunier v. Martinez, 416 U.S. 396, 419, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974); see Cruz v. Beto, 405 U.S. 319, 321, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972). These cases support the general proposition that inmates cannot be denied access to courts to seek relief from or remedies for certain unconstitutional activities which are intimately and directly related to their incarceration.

Plaintiffs do not and cannot contend that the Missouri civil death statute denies them the opportunity to seek post-conviction relief in the Missouri courts since Missouri Supreme Court Rule 27.26 grants them that right. Rather, plaintiffs contend that they are constitutionally entitled to file suits which arise out of activities unrelated to their incarceration and that the civil death statute deprives them of that right. We agree that a state statute, which in broad and unqualified language, deprives all state inmates of the right to file any type of civil action in state court contravenes the constitutional imperative that citizens are entitled to reasonable access to courts. Cf. Conway v. Oliver, 429 F.2d 1307 (9th Cir. 1970). As stated in Cruz v. Beto, supra, 405 U.S. at 321, 92 S.Ct. at 1081:

But persons in prison, like other individuals, have the right to petition the Government for redress of grievances which, of course, includes "access of prisoners to the courts for the purpose of presenting their complaints." Johnson v. Avery, 393 U.S. 483, 485 * * * 89 S.Ct. 747, 21 L.Ed.2d 718.

This right cannot reasonably or logically be limited to habeas corpus or related actions. "The constitutional protection of access to the courts is much broader, for it includes access to all courts, both state and federal, without regard to the type of petition or relief sought." Hooks v. Wainwright, 352 F.Supp. 163, 167 (M.D.Fla.1972). A blanket proscription against the filing of all non-frivolous⁴ lawsuits is contrary to the principles of due process. The statute is an archaic remnant of an era which viewed inmates as being stripped of their constitutional rights at the prison gate. The contemporary view that prisoners retain their due process rights, Wolff v. McDonald, 418 U.S. 539, 556, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), provides support for our conclusion that inmates are constitutionally entitled to seek various forms of relief through the state court structure.⁵

Our conclusion that the civil death statute contravenes plaintiffs' right of access to the courts does not end our inquiry. Defendants seek to uphold the validity of the statute by contending, first, that it effects only an insubstantial infringement upon the rights of inmates, and, second, that in any event there are sufficient governmental interests to justify the restrictions embodied in the civil death statute.

III.

Defendants contend that the civil death statute effects only an insubstantial restriction on the plaintiffs' right of access to the courts for two reasons: (1) Mo.Rev. Stat. Ch. 460 (1969)⁶ provides some protection to inmates since it permits the appointment of a trustee for a prisoner and (2) Mo.Rev.Stat. § 516.170 tolls the statute of limitations for prisoners serving a sentence of a term of years, thus permitting a belated filing of civil actions.

Under § 460.010 the appointment of a trustee is not automatic upon the incarceration of a prisoner. Nor does the statute appear to give the prisoner the power to apply for the appointment of a trustee. Thus, although a prisoner must have a trustee appointed to protect his estate when a third ...