Underwood v. Loving, Civ. A. No. 74-C-120-H.

• Decision Date: 03 February 1975
• Docket Number: Civ. A. No. 74-C-120-H.
• Citation: 391 F. Supp. 1214
• Parties: Earnest Ray UNDERWOOD, Petitioner, v. W. R. LOVING, Superintendent Augusta Correctional Unit, et al., Respondents.
• Court: U.S. District Court — Western District of Virginia

391 F. Supp. 1214

Earnest Ray UNDERWOOD, Petitioner, v. W. R. LOVING, Superintendent Augusta Correctional Unit, et al., Respondents.

Civ. A. No. 74-C-120-H.

United States District Court, W. D. Virginia, Harrisonburg Division.

February 3, 1975.

Stuart Bateman, Asst. Atty. Gen., Richmond, Va., for respondents.

OPINION and JUDGMENT

DALTON, District Judge.

This is a pro se prisoner's complaint under 42 U.S.C. § 1983 in which petitioner, Earnest Ray Underwood, alleges that he was deprived of his constitutional right by respondents, all who are employed by the Virginia Department of Corrections. Jurisdiction is conferred upon the court pursuant to 28 U.S.C. § 1343 (3) and (4); the petitioner was allowed to proceed in forma pauperis by order of the court dated December 30, 1974. Petitioner seeks $10,000 in damages, mainly punitive.

Petitioner alleges that on December 15, 1974, Miss Kathy Sandys came to visit him at the Augusta Correctional Unit # 10, but was told by respondent Sergeant Crigler that he would not permit the visit because petitioner had been intoxicated previously, although no charge to this effect was ever brought by Sergeant Crigler. Petitioner further states that on several prior occasions Miss Sandys had been permitted to visit with him. He has enclosed an affidavit by another inmate, James Farmer, and a picture which purportedly shows petitioner, Miss Sandys, James Farmer, and Pat Woods, an inmate released before Sergeant Crigler denied petitioner the privilege of visitation with Miss Sandys.

The essence of petitioner's complaint is that Sergeant Crigler abridged his constitutional rights by applying the prison's visitation regulations in a discriminating manner so as to punish petitioner for being intoxicated, a charge which was never brought against petitioner. In support of this complaint James Farmer's affidavit indicates that although the prison does have a visitation list, the prison policy is not to enforce the regulations unless the particular guard "has a beef with you, then you can expect to get hassleed (sic) and treated unequal."

Respondents have filed a motion for summary judgment attaching an affidavit by prison counselor William W. Decuir, an affidavit by Sergeant Crigler, a copy of Division Guide Line No. 819, a copy of petitioner's present visiting list, and a copy of the Adjustment Committee's Action Report.

Although the weight of authority holds that visitation privileges are matters within the scope of internal prison administration, this does not permit discriminatory application of the regulations. However, absent extraordinary circumstances, internal concerns such as visiting regulations should be resolved by jail officials. Respondents have enclosed a present visiting list which shows that Miss Sandys is presently on petitioner's approved visiting list. Sergeant Crigler has also filed an affidavit denying that his motivation in not allowing Miss Sandys to visit petitioner was any but his duty to follow Department of Corrections' guidelines. The court does not find it necessary to determine what Sergeant Crigler's exact motivation was on denying Miss Sandys' visit; suffice it to state that since Miss Sandys is now on petitioner's visiting list, that the issue is no...