Warden of Wisconsin State Prison, Matter of

• Decision Date: 03 September 1976
• Docket Number: No. 75-1047,75-1047
• Citation: 541 F.2d 177
• Parties: In the Matter of the WARDEN OF the WISCONSIN STATE PRISON, Appellant. Richard A. MOECK, Plaintiff-Appellee, v. Inspector John ZAJACKOWSKI et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 177

541 F.2d 177

In the Matter of the WARDEN OF the WISCONSIN STATE PRISON,

Appellant.

Richard A. MOECK, Plaintiff-Appellee, v. Inspector John ZAJACKOWSKI et al., Defendants-Appellees.

No. 75-1047.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 28, 1975.

Decided Sept. 3, 1976.

Bronson C. La Follette, Atty. Gen., James H. Petersen, Asst. Atty. Gen., Madison, Wis., for appellant.

David Walsh, Madison, Wis., for appellee.

Before FAIRCHILD, Chief Judge, and SWYGERT and TONE, Circuit Judges.

FAIRCHILD, Chief Judge.

The appellant, Ramon L. Gray, Warden of the Wisconsin State Prison, appeals from the order of the District Court for the Western District of Wisconsin enjoining him "from interfering in any way with the presence of Richard Allen Moeck in the courtroom of this court, in Madison, Wisconsin, at 9:00 a. m., January 30, 1975." Moeck v. Zajackowski, 385 F.Supp. 463, 469 (W.D.Wis.1974). This appeal is to determine whether a lawfully incarcerated state prisoner is entitled to be present at the trial of an action, not related to the terms of his confinement, which he brought in the district court under 42 U.S.C. § 1983. The warden argues: (1) that he is responsible by statute ¹ for custody of all prisoners in the state prison; (2) that he must send prison guards to accompany any prisoner who is outside the confines of the prison; and (3) that he finds that the expense of escorting prisoners to federal court is an unreasonable and unnecessary burden.

I.

The plaintiff-appellee Moeck is currently a prisoner in the custody of the appellant at the Wisconsin State Prison located at Waupun, Wisconsin. ² The plaintiff brought an action for damages against the defendant, Inspector John Zajackowski, of the Wausau, Wisconsin Police Department. The plaintiff alleged that he was deprived of his rights secured by the Constitution when the defendant, a police officer, wrongfully disclosed to the plaintiff's employer a record of plaintiff's juvenile offenses. The plaintiff further alleged that his subsequent dismissal was caused by the disclosure of his record. Jurisdiction appears under 28 U.S.C. § 1343(3) and 42 U.S.C. § 1983.

Trial in this lawsuit was scheduled for October 3, 1974. Upon direction of the district court, the Clerk issued a writ of habeas corpus ad testificandum. It was addressed to the United States Marshals of the Eastern and Western Districts of Wisconsin and to the appellant, Warden Gray. The writ directed that the plaintiff be brought to the courtroom in Madison on the day of trial. The warden moved for an order clarifying the writ, to determine which of the parties was responsible for bringing the plaintiff to the courtroom in Madison; he also moved for an order discharging him from any obligation for transporting and guarding the plaintiff. Judge Doyle then directed the warden to show cause why he should not be enjoined from preventing the plaintiff from being present in the courtroom on the day of trial. On September 27, 1974 a hearing was held on the warden's motions and the order to show cause. The Attorney General of Wisconsin appeared for the warden and the United States Attorney appeared for the marshals. On December 5, 1974 Judge Doyle ordered that the writs be quashed and that Warden Gray be enjoined from preventing the plaintiff from appearing in court on January 30, 1975. Moeck v. Zajackowski, 385 F.Supp. 463, 469 (1974). The order has been stayed pending the appeal, and we understand the trial date has been postponed.

II.

The warden argues that the "most compelling reason" for reversal of the district court's order is the lack of jurisdiction. Judge Doyle quashed the writ of habeas corpus ad testificandum after a hearing in which the warden appeared voluntarily to move that the writ be clarified. Judge Doyle concluded "that it is not appropriate for this court to issue a writ of habeas corpus either to the warden or to one or both United States Marshals." Moeck, supra, at 468. Instead, he issued an injunction directed solely at the warden.

The warden contends that the issuance of the writ constituted an abuse of the court's discretion and violated the principles of comity between the state and federal sovereigns. See Abelman v. Booth, 62 U.S. (21 How.) 506, 16 L.Ed. 169 (1858) and Covell v. Heyman, 111 U.S. 176, 4 S.Ct. 355, 28 L.Ed. 390 (1883). The jurisdictional power of the court in issuing the injunction depends on obtaining in personam jurisdiction over the person to whom the injunction is directed. See 7 J. Moore, Federal Practice § 65.13 (1975); Chase Nat'l Bank v. Norwalk, 291 U.S. 431, 54 S.Ct. 475, 78 L.Ed. 894 (1934).

We find that in appearing for the September 27, 1974 hearing to show cause the warden subjected himself to the jurisdiction of the court. Even though the court subsequently quashed the writ, which was one of the subjects of the hearing, it retained the requisite in personam jurisdiction to enjoin the actions of the warden. Warden Gray, through the Attorney General, did not then challenge the jurisdiction of the court to issue the writ or to grant the injunction although he does so on appeal. ³

III.

The injunction to prohibit Warden Gray from interfering with Mr. Moeck's exercise of his "fundamental individual interest" of "access to a judicial determination of . . . (his) . . . federal constitutional rights and to judicial vindication of the rights." Moeck, supra, at 468. Judge Doyle found this "interest" rooted in the due process clauses of the Fifth and Fourteenth Amendments. The judge did not decide whether Mr. Moeck's section 1983 complaint successfully alleged the deprivation of a constitutional right; rather he determined that every such claimant has the fundamental interest of access to judicial proceedings, and that access includes attendance at trial. The court further held that the state may not restrict the exercise of this "interest" by a prisoner unless it is able to demonstrate that the restriction "is related both reasonably and necessarily to the advancement of a justifiable purpose of imprisonment." Moeck, supra, at 486. Failing to satisfy this standard, the warden was enjoined from restricting the exercise of this interest by Mr. Moeck.

In reaching this decision the court employed the standard articulated in Morales v. Schmidt, 494 F.2d 85, 87 (7th Cir. 1974). This court held that a state may restrict the free expression of a prisoner if it can demonstrate that the restriction is related "both reasonably and necessarily to the advancement of a justifiable purpose of imprisonment." Morales, supra, at 87. See also Procunier v. Martinez, 416 U.S. 396, 413, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974).

We do not agree with the district court as to the content to be ascribed to the fundamental interest of a prisoner in access to the courts. We accord greater weight to the interest of the state in maintaining the confinement of persons serving sentences at the place and institution chosen by the state, in avoiding risks of escape, and in economical administration of custody without incurring expenses which the state reasonably deems unnecessary. Accordingly, we do not allocate to the state the same burden of justification as did the district court for the state's refusal to bear the expense of transporting Mr. Moeck to appear at trial of his case.

We find no support in the Constitution or in judicial precedent for the proposition that a prison inmate has a fundamental interest in being present at the trial of a civil action to which he is a party, sufficient to outweigh, as a matter of course, the interest of the state in avoiding expense. The due process requirements of the Fifth and Fourteenth Amendments, which guarantee access to the courts, do not grant a prisoner the right to attend court in order to carry on the civil proceedings which he initiates. Tabor v. Hardwick, 224 F.2d 526, 529 (5th Cir. 1955), cert. denied, 350 U.S. 971, 76 S.Ct. 445, 100 L.Ed. 843 (1956); McKinney v. Boyle, 447 F.2d 1091, 1094 (9th Cir. 1971); Clark v. Hendrix, 397 F.Supp. 966, 969 (N.D.Ga.1975). Prisoners have been extended access to law libraries and jailhouse lawyers in order to allow them to establish what legal claims they might have and to provide them the means to file suits. Johnson v. Avery, 393 U.S. 483, 487, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969). However in Wolff v. McDonnell, 418 U.S. 539, 576, 94 S.Ct. 2963, 2984, 41 L.Ed.2d 935 (1974), the Supreme Court chose not to extend the right to access to the courts:

". . . Finally, the Fourteenth Amendment due process claim based on access to the courts, Ex Parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034 (1941); Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969); Younger v. Gilmore, 404 U.S. 15, 92 S.Ct. 250, 30 L.Ed.2d 142 (1971), has not been extended by this Court to apply further than protecting the ability of an inmate to prepare a petition or complaint."

There are doubtless situations in which fulfillment of a fundamental interest of a prisoner so reasonably requires his being transported to a place outside the place of confinement that it must outweigh the state's interest in avoiding the risks and expense of such transportation; but we think the particular circumstances must be considered in order to identify those situations. The interest in life and health is surely fundamental, but the circumstances relevant to a decision that a prisoner has a right to transportation elsewhere for medical treatment would be such an example.

It can be granted that the right of a prisoner to file a civil action may have little meaning if success is reasonably dependent on his immediate presence in court, and such presence is denied. But we would not accord him an automatic right to be present, and thus present the state, as was done by the relief granted here, with the choice of releasing him from custody, or bringing...