Petition — Holshouser v. Bolding
Supreme Court brief1978
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IN THE
Supreme Court of the Anited States
OCTOBER TERM 1977
JAMES E. HOLSHOUSER., JR. et al.
Petitioners
THOMAS BOLDING., et al.
Respondents
Petition For Writ of Certioreri
To The United States Court of Appeals
For the Fourth Circuit
RUFUS L. EDMISTEN
4ttorney General of North Caroline
JACOB L. SAFRON
Special Deputy Attorney General
JAMES PEELER SMITH
4ssistant Attorney General
Post Office Box 629
Raleigh, North Carolina 27602
Counsel for th Petitioners
DICESARE - Printing 3318101 — Washington, D.C. 20006
INDEX
Page
I a i as ia ie a ?
Tee ee ee cwawueuaes 2
ee 2
CONSTITUTIONAL PROVISIONS INVOLVED ............ 4
STATEMENT OF THE CASE AND FACTS ................ 4
REASONS FOR GRANTING THE WRIT: ................. 9
I. The Effect Of The Decision Of The Fourth Circuit Court
| Of Appeals Is That Virtually No Pleading Filed By Or On
Behalf Of A Prisoner May Be Dismissed Under Rule
12(b) Of The Federal Rules Of Civil Procedure.
Regardless Of However Vague, Conclusory Or Lacking
In Factual Allegations The Pleading May Be. This
Holding Is Contrary To The Decisions Of This Court In
Procunier v. Navarette, U.S. ____ (February 22,
1978) And Estelle v. Gamble, 429 U.S. 97 (1976). The
Holding Further Is Counter To Judicial Efficiency And
Economy By Requiring That The Time Of The Courts
And The Money Of Taxpayers Be Expended In
Responding To Pleadings Which Have No Factual
ED ch dbandbuncededssseekhesedbdeseccecssen )
ee ee Pee FS
a
Il. The Hoiding Of The Fourth Circuit Abrogates In
| Prisoner Litigation The Requirement That A Plaintiff
Must Demonstrate His Standing To Sue And Assert A
| Real Case Or Controversy Between Himself And The
tt dn tesekdedaduenedbaeedssbcassbeneesens 16
Ill. The Action Of The Court Of Appeals Reversing The
District Court Permits A Purported Class Action Suit To
Circumvent The Rules Of Venue By Naming A Nominal
Defendant In A Remote Location, Although The Real
Defendant Resides Or The Real Cause Of Action Arose
In Another District ...........eeeecececeeeeecees 20
IV. The Action Of The Fourth Circuit Violates The Holding
Of This Court In Rizzo v. Goode, 423 U.S. 362 (1976)
And Jones v. North Carolina Prisoners’ Labor Union,
433 U.S. LID (1977) ..ccccccccccccccccccccccccens 23
COPBCLUGIIN . cccbocccccccccsccccsccccccccccesccccsceses 25
APPENDIX
Page
Opinion Of The United States Court Of Appeals For The
Fourth Circuit, Filed May 4, 1978 ..............0005. A-|
Memorandum And Order Of The United States District Court
For The Western District Of North Carolina, Asheville
Division, Filed On August 16, 1976.............0055 A-22
Plaintiffs’ Complaint Filed In The United States District
Court For The Western District Of North Carolina,
Asheville Division, On May 10, 1976 ...........-4-. A-29
List Of Individual Cases Filed By The Plaintiffs ....... A-44
Certificate of Service
TABLE OF CITATIONS
Page
Cases
Adickes v. Kress & Co., 398 U.S. 144 (1970) ............ 15
Baker v. Carr, 369 U.S. 186 (1962) ...............0005. 16
Blanks v. Cunningham, 409 F.2d 220 (4th Cir. 1969)... ... 27
Bounds v. Smith, 430 U.S. 817 (1977) .................. 14
Conley v. Gibson, 355 U.S. 41 (1957) ............ 10, 12, 14
Cooper v. Riddle, 540 F.2d 731 (4th Cir. 1976) .......... 24
Cruz v. Beto, 405 U.S. 319 (1972) .............. 10. 14, 25
East Texas Motor Freight System, Inc. v. Rodriquez,
smas Gale SE OD nied webecéincveresevess 17
Estelle v. Gamble, 429 U.S. 97 (1976).............. 10, 14
Flast v. Cohen, 392 U.S. 83.(1968) ...............-. 16,19
Haines v. Kerner, 404 U.S. 519 (1972) ............. 10, 14
Jones v. North Carolina Prisoners’ Labor Union, 433
Pe A etn gecdsexeséscesssvereseses 11, 23, 24
Laird v. Tatum, 408 U.S. 1 (1972) ..................... 19
McGowan v. Maryland, 366 U.S. 420 (1961) ............ 16
Massachusetts v. Mellon, 262 U.S. 447 (1923) ........... 18
iv
O'Shea v. Littleton, 414 U.S. 488 (1974) ............ 17, 18
Procunier v. Martinez, 416 U.S. 396 (1974) ......... 25, 27
Procunier v. Navarette, ___ U.S. __— (February
TB, IDTED oc ccdccscccndecvevecisvccecsccses sess 10, 14
Rizzo v. Goode, 423 U.S. 362 (1976) ..... 3, 8, 11, 17, 23, 24
Schlesinger v. Reservists To Stop The War, 418 U.S.
BEB CIDPRD occcccccdccescocedécsccecucess 16, 17, 18, 19
Sierra Club v. Morton, 405 U.S. 727 (1972) «2... ee eeu. 20
United Public Workers v. Mitchell, 330 U.S. 75 (1947) ...20
United States v. Raines, 362 U.S. 17 (1960) ............. 16
Woodhous v. Commonwealth Of Virginia, 487 F.2d
OOD (4th Cle. 99TDD ccc veccvccetnconestececessescses 27
Constitutional Provisions:
First Amendment, United States Constitution ........... 4
Sixth Amendment, United States Constitution........... 4
Eighth Amendment, United States Constitution ......... 4
Fourteenth Amendment, United States Constitution. ...... 4
Statutes Involved:
28 U.S.C. § 1254(1)
EE aon cc cegeeececess
eee §, 7, 10, 21, 23, 24, 26,
N.C.G.S. Ch. 143B, Article 6, Executive Organization
i PEPEEUEREEEEAGebeesdGeceebcoscotoccoccecocecees
N.C.G.S. Ch. 148, State Prison System
ee ee eee we we wewewnwnne
Miscellaneous:
Federal Rules of Appellate Procedure, Rule 35
Federal Rules of Civil Procedure, Rule 8
Federal Rules of Civil Procedure, Rule 12
“eevee eeeneeeneneee
Federal Rules of Civil Procedure, Rule 56
“eee eeeeweeeeeee
Wright, Law of Federal Courts (3d ed. 1976)
>7
Zi
21
—
21
—
IN THE
Supreme Court of the MnitedD States
OCTOBER TERM 1977
No.
JAMES E. HOLSHOUSER, JR.. et al.
Petitioners,
We
THOMAS BOLDING, et al..
Respondents.
Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Fourth Circuit
TO: THE HONORABLE CHIEF JUSTICE AND ASSO-
CIATE JUSTICES OF THE SUPREME COURT OF
THE UNITED STATES:
The Petitioners, James E. Holshouser, Jr., formerly the
Governor of North Carolina; David L. Jones, formerly the
Secretary of the North Carolina Department of Correction;
Ralph D. Edwards, Director of the North Carolina Division of
Prisons; Jack Scism, formerly the Chairman of the North
Carolina Parole Commission; J. Richard Smith, formerly the
Superintendent of the Craggy Subsidiary Unit of the North
Carolina Division of Prisons; E. C. Watkins, Superintendent of
the Stanly County Subsidiary Unit of the North Carolina
Division of Prisons; L. V. Stephenson, Superintendent of the
Caledonia Institution of the North Carolina Division of Prisons;
Sam P. Garrison, Warden of North Carolina Central Prison, of
the North Carolina Division of Prisons; and Fred Briggs,
Chairman of the Central Classification Committee of the North
Carolina Division of Prisons, pray that a Writ of Certiorari issue
to review the Judgment of the United States Court of Appeals for
the Fourth Circuit filed April 26, 1978, in the case of Bolding v.
Holshouser.
OPINION BELOW
The Opinion of the United States Court of Appeals for the
Fourth Circuit filed May 4, 1978, is not yet reported and is
printed in the Appendix to this Petition[A. pp.A-15 through A-
24].
JURISDICTION
The Jurisdiction of this Court is invoked under 28 U.S.C. §
1254(1).
QUESTIONS PRESENTED
1. WHETHER A WHOLLY CONCLUSORY COM-
PLAINT, TOTALLY LACKING IN FACTUAL
ALLEGATIONS, STATES A CLAIM UPON WHICH
RELIEF CAN BE GRANTED.
Il. WHETHER A WHOLLY CONCLUSORY COM-
PLAINT, TOTALLY LACKING IN FACTUAL
IV.
Vi.
ALLEGATIONS, IS A SUFFICIENT BASIS UPON
WHICH A FEDERAL COURT SHOULD UNDER-
TAKE A COMPLETE REVIEW OF THE NORTH
CAROLINA PRISON SYSTEM TO DETERMINE
WHETHER ANY PRISONER HAS BEEN SUBJECTED
TO THE DEPRIVATION OF FEDERAL CONSTITU-
TIONAL RIGHTS TO THE EXTENT THAT THE
FEDERAL COURT SHOULD UNDERTAKE THE
SUPERVISION OF THE ADMINISTRATION OF THE
NORTH CAROLINA PRISON SYSTEM.
WHETHER A WHOLLY CONCLUSORY COM-
PLAINT, TOTALLY LACKING IN FACTUAL
ALLEGATIONS, IS SUFFICIENTLY PLEADED TO
DETERMINE WHETHER ANY OF THE NAMED
PLAINTIFFS HAS DEMONSTRATED A PERSONAL
STAKE IN THE OUTCOME SUCH AS TO CONFER
STANDING UPON THEM.
WHETHER THE RELIEF SOUGHT VIOLATES THE
PRINCIPLES OF FEDERALISM AND JUDICIAL
RESTRAINT ENUNCIATEDIN R/ZZOv. GOODE, 423
U.S. 362 (1976).
WHETHER PLAINTIFFS HAVE PLEADED A JUSTI-
CIABLE CASE OR CONTROVERSY WITHIN THE
MEANING OF ARTICLE Ill OF THE UNITED
STATES CONSTITUTION.
WHETHER THE VENUE PROVISICN CODIFIED AT
28 U.S.C. § 1391 MAY BE CIRCUMVENTED BY
NAMING A NOMINAL DEFENDANT WHEN ALL
OTHER DEFENDANTS RESIDE OUTSIDE OF THE
DISTRICT AND THE CAUSE OF ACTION, AROSE, IF
AT ALL, IN ANOTHER DISTRICT WITHIN THE
STATE.
CONSTITUTIONAL PROVISIONS INVOLVED
This case involves the First, Sixth, Eighth, and Fourteenth
Amendments to the Constitution of the United States.
STATEMENT OF THE CASE AND FACTS
On May 10, 1976, the Plaintiffs, 29 state court prisoners
housed in !3 of the 84 facilities across the State of North Carolina
which comprise the Division of Prisons of the North Carolina
Department of Correction (of whom only 8 were housed in 4
facilities within the jurisdiction of the United States District
Court for the Western District of North Carolina)! brought suit
'Western District — 8 inmates
Craggy Correctional Institution, Asheville .......... 4 inmates
Raymond Creason, Gerald R. Price, Gonzales Jones,
and Norman Anthony
Iredell County Subsidiary, Statesville ............... 1 inmate
Wilbert Clemmons
Lincoln County Subsidiary, Lincolnton ............. | inmate
Erwin Zelms
Union County Subsidiary, Monroe ................ 2 inmates
Jodie V. Austin and John H. Stacks
Middle District — 6 inmates
Rowan County Subsidiary, Salisbury ............... | inmate
Stanly County Subsidiary, Albemarle ............... | inmate
Guilford County Subsidiary No. |, High Point....... 1 inmate
Randolph County Subsidiary, Asheboro ........... 3 inmates
Eastern District — 15 inmates
Correctional Center for Women, Raleigh........... 3 inmates
Odom Correctional Institution, Jackson............ 2 inmates
eT ee ER ncicde Junk ecétenceescecses 5 inmates
Triangle Correctional Center, Raleigh .............. | inmate
Caledonia Correctional Institution, Tillery.......... 4 inmates
through counsel on behalf of themselves, individually, and on
behalf of all others similarly situated, based upon the Civil Rights
Act of 1871, 42 U.S.C. § 1983, seeking declaratory and injunctive
relief. [A. pp. ] In the Complaint prepared by Russell P.
Brannon, Esq., of the firm of Van Winkle, Buck, Wall, Starnes,
Hyde and Davis, P.A., and Allen H. Wellons, Esq., both of the
Asheville, North Carolina, Bar, the Plaintiffs alleged that the
following conditions exist in the North Carolina Department of
Correction: severe overcrow ing, inadequate administrative
hearing procedures, improper classification of inmates,
inadequate and restricted programs for education, recreation,
and work release, improper treatment of prisoners in solitary,
and improper interference with the transmittal of mail. Based
upon these alleged conditions the Plaintiffs sought from the
United States District Court for the Western District of North
Carolina the following injunctive relief:
(a) Enjoining the Defendants from accepting any new
prisoners into the North Carolina Prison System until
inmate population is reduced to the point that
minimum Constitutional standards are met;
(b) Requiring the North Carolina Department of
Correction and Board of Paroles to release or parole
sufficient numbers of prisoners to reduce the inmate
population to a level where minimum Constitutional
standards are met;
(c) Enjoining the construction of further prison
facilities until constitutionally acceptable programs
for education, recreation, work release, etc., are
funded and developed;
(d) Requiring the Defendants to make available to the
Plaintiffs and others similarly situated basic items and
6 7
rome August 16, 1976, filed its Memorandum and Order dismissing the
facilities a ae = woe Sane tied Guan Complaint [A. pp. A-27 through A-28] for failure to state a
ms oe ordi " ‘of whether the inmate is in claim upon which the relief sought could be granted by the
conditions, ai Riese District Court and for seeking relief “beyond the powers of the
eaenany GF Cage OF federal judiciary and violative of the principles of federalism,
(e) Requiring the Defendants to develop and comity and equity.” [A. p. A-27] In dismissing this Complaint,
implement a classification plan which will insure the the Court specifically pointed out that
protection of Plaintiffs and all others similarly situated
from physical violence and other violations of their
rights;
(f) Enjoining the Defendants from censo. ship of and
other interference with inmate mail, except to search
for contraband and then only in the presence of the
inmate; and requiring the Defendants to expeditiously
deliver mail addressed to or by prison inmates in
accordance with the United States Postal regulations.
(g) Requiring the Defendants to accord to the
Plaintiffs and all others similarly situated fundamental
due process rights, including notice and the right toa
meaningful hearing, with respect to all significant
actions affecting them.
The Defendants moved to dismiss the action for failure to
state a claim upon which the relief sought can be granted
contending that the Complaint is so vague and general that it
must be considered conclusory in nature with inadequate
allegations in support thereof. The Defendants also contended
that the District Court lacked subject matter jurisdiction and was
not the proper venue for the action.
A hearing on the Defendants’ Motion was conducted by the
District Court at the July 1976 Term in Asheville. Following the
...[t]his is not to say that these Plaintiffs do not have
an available avenue for redress, for this decision does
not prejudice their rights to plead their cases
individually? upon the peculiar facts of each case.
Section 1983 of 42 United States Code has staunchly
protected the civil and constitutional rights of the
prison population, as well as the total citizenry of this
country. This statute protects all citizens from those
who abuse authority purportedly conferred by state
law, and provides a right and a remedv in the federal
courts. The Plaintiffs, who seek such broad relief in
this Court today, may again come to this forum
pieading the individual facts which support their
respective cases. If the individual facts are meritorious
and support the legal conclusions pleaded today, then
this Court is bound by its office to afford proper relief
.. . Nevertheless, facts must be pleaded and proven to
support these legal conclusions before relief is
available, and certainly this relief cannot extend to a
total usurpation of a state agency. Therefore, the
Court finds that the dismissal of the Plaintiffs’
Complaint for failure to state a cause of action is in
order. This dismissal is without prejudice to the
7A listing of other actions brought by the named Plaintiffs is
hearing, the Court took the matter under advisement and on included at pp. A-44 through A-48 of the Appendix.
Plaintiffs, for the courts remain available to hear
future actions they may file which are properly pleaded
and which are supported by factual allegations... .[A.
pp. A-27, A-28]
On September 19, 1976, following the Court's Order
dismissing the Complaint, Plaintiffs gave notice of appeal to the
Fourth Circuit Court of Appeals. This matter came on for
argument December 5, 1977, before Chief Judge Haynsworth,
Senior Judge Bryan and Judge Winter of the Fourth Circuit. Ina
2-1 decision filed May 4, 1978, the panel reversed the District
Court and remanded the case to the District Court for further
consideration. With respect to the following matters, the
majority of the panel found that Plaintiffs had sufficiently
pleaded a cause of action: (1) overcrowding; (2) interference with
mail; (3) failure of the prison system to “meet minimum
standards of the United States Public Health Service”; (4) certain
other unconstitutional conditions of confinement; and (5) failure
of the prison system “to provide adequate sanitary food service
facilities.” In regard to Plaintiffs’ claim of denial of due process,
the Court of Appeals agreed with the District Court that this
matter was insufficiently pleaded to state a claim for relief;
however, the majority felt dismissal should be with leave to
amend the pleadings of Plaintiffs were able to state a cause of
action.
Senior Judge Bryan vigorously dissented. He declared that
the “very entertainment of the instant complaint” is offensive to
the principle of federalism as enunciated in Rizzo v. Goode, 423
U.S. 362 (1976). He felt that a federal court takeover of the North
Carolina prison system was not relief which 2 District Court was
authorized to grant and that the District Court was correct in so
holding. Judge Bryan further declared that the relaxed standards
applied in prisoner pro se petitions were not applicable to the
pleading in this case as “[t}he complaint was drawn and
counseled by reputable attorneys.” [A. p. A-20] As “[p]laintiffs
were left free to bring separate appropriate actions for themselves
and others suffering deprivations in the same prison [unit],”
Judge Bryan felt that the District Court was correct in dismissing
the Complaint because the individual plaintiffs were not
prejudiced thereby. [A. p.A-21 }
Upon circulation of the opinions in the case through the full
Court, Judge Hall, not a member of the panel, sua sponte moved
for rehearing and rehearing in banc. Because under Rule 35 of the
Federal Rules of Appellate Procedure, only those Circuit J udges
who are in “regular active service” may order a rehearing in banc,
and Judge Hall’s Motion failed 3 to 3. Ironically, as revealed in
the Opinion, had all the Judges of the Fourth Circuit been
permitted to vote, the Opinion of the District Court would have
been affirmed 5 to 3 as Judges Russell, Widener and Hall
announced their dissent for the reasons stated in Judge Bryan’s
desenting opinion. [A. p. A-12]. Senior Circuit Judge Field also
placed himself “on record as being in complete accord withthe
views experssed by Judge Bryan...” [A. p. A-21] However, the
provisions of Rule 35 prohibited the votes of Senior Judges
Bryan and Field from counting, although Judge Bryan was on
the original panel, and the Motion failed 3 to 3 instead of passing
5 to 3, reversing the panel and affirming the District Court.
REASONS FOR GRANTING THE WRIT
I. THE EFFECT OF THE DECISION OF THE FOURTH
CIRCUIT COURT OF APPEALS IS THAT
VIRTUALLY NO PLEADING FILED BY OR ON
BEHALF OF A PRISONER MAY BE DISMISSED
UNDER RULE 12(b) OF THE FEDERAL RULES OF
CIVIL PROCEDURE, REGARDLESS OF HOw.
EVER VAGUE, CONCLUSORY OR LACKING IN
FACTUAL ALLEGATIONS THE PLEADING MAY
BE. THIS HOLDING IS CONTRARY TO THE DECI
10
SIONS OF THIS COURT IN PROCUNIER yy.
NAVARETTE, U.S. __ (FEBRUARY 22, 1978)
AND ESTELLE v. GAMBLE, 429 U.S. 97 (1976). THE
HOLDING FURTHER IS COUNTER TO JUDICIAL
EFFICIENCY AND ECONOMY BY REQUIRING
THAT THE TIME OF THE COURTS AND THE
MONEY OF TAXPAYERS BE EXPENDED IN
RESPONDING TO PLEADINGS WHICH HAVE NO
FACTUAL ALLEGATIONS. .
In reliance on what it conceived to be the requirements of
Conley v. Gibson, 355 U.S. 41, 46 (1957); Cruz v. Beto, 405 U.S.
319 (1972) and Haines v. Kerner, 404 U.S. 519 (1972), a panel of
the United States Court of Appeals for the Fourth Circuit
reversed the District Court's dismissal of a Complaint filed by
twenty-nine inmates from prison units dispersed across the State
of North Carolina. The District Court had ruled that the
Complaint failed to state a claim upon which relief can be
granted. The District Court found the Complaint to “have merely
asserted legal conclusions with no factual allegations in support
thereof.” [A. p. A-25]3
‘The District Court made the following observation:
The Plaintiffs failed to allege facts which would support a
conclusion that the prisons are overcrowded; they fail to
allege what inadequacies exist in hearing procedures; they
fail to show in what way the classification of inmates is
improper; they fail to enunciate the restrictions placed upon
programs for education, recreation, and work release, and
show in what way these programs are inadequate; and
finally the Plaintiffs have failed to allege any acts of the
Defendants which would support a finding that prisoners in
solitary are improperly treaied or that there is improper
interference with their mail. /nstead, the Plaintiffs have
boldly and baldly made conclusory statements insufficient
fo state a cause of action under 42 U.S.C.A. § 1983.
(Emphasis added.) [A. p. A-25]
Matic.
The reversal of the District Court's Order eviscerates all
standards by which the sufficiency of pleadings may be judged
and essentially eradicates the possibility of dismissing under Rule
12(b) any prisoner civil rights action, whether pro se or drafted by
counsel. The Opinion of the Fourth Circuit further requires the
federal District Court to undertake minute scrunity of the North
Carolina Prison system upon nothing more than a complaint
which is comprised of only conclusory pleadings, devoid of any
facts relating to actual circumstances, occurrences or events, and
which seeks a federal court takeover of the North Carolina prison
system in complete disregard of the principles just recently
reaffirmed in Rizzo v. Goode, 423 U.S. 362 (1976), and Jones v.
North Carolina Prisoners’ Labor Union, 433 U.S. 119 (1977).
Senior Judge Bryan, referring to Plaintiffs’ Petition as a
“blunderbuss complaint,” [A. p. A-20] declared that
[t]he very entertainment of the instant complaint, in
my view, offends a fundamental of federalism: it is a
bald, bold and entire usurpation of an official State
function. Rizzo v. Goode, 423 U.S. 362, 380 (1976).
Argument to sustain the suit as one simply ill-pleaded
ignores the integral and facial insufficiency in law of
the complaint. Immediately its illegal concept is
manifest in the compass of its allegations and prayers
for their effectuation. [A. p. A-16]
Judge Bryan is undoubtedly correct in his assessment of the
Complaint. What the Plaintiffs ultimately want is for the Federal
Courts to assume the administration of the North Carolina
prison system. Plaintiffs announce their fundamental Opposition
to the way they think the North Carolina Department of
Correction is being operated. In their BRIEF IN OPPOSITION
TO DEFENDANTS’ MOTION TO DISMISS. the Inmates
bluntly declare:
12
This is a class action challenging the totality of the
conditions of confinement in the North Carolina
prison system. It is the way the prison system is being
administered by the Defendants, the policies the
Defendants have taken and not taken which are the
focus of this suit. In essence, it is the very existence of
the North Carolina prison system which is being
challenged as being inherently violative of the Eighth
Amendment prohibition against cruel and unusual
punishment. [Plaintiffs’ emphasis. ]
The essence of the Plaintiffs’ Complaint is their charge that
prisons in North Carolina are “overcrowded,” but they have also
thrown in other amorphous charges. [See A. pp. A-36 through A-
40] Judge Winter acknowledges difficulty in setting forth
concisely Plaintiffs’ contentions and we can sympathize with his
difficulty in “summarizing them yet preserving their essential
fullness.” [A. p. A-4] After reading the Complaint, Defendants
were hardly in a better position to determine exactly what they
had done wrong and to whom.
The majority Opinion has misapplied the standard of Rule
8(e)( 1) of the Federal Rules of Civil Procedure that “no technical
forms of pleading or motion are required,” but rather “a pleading
shall be simple, concise, and direct.” In attempting to apply this
Rule to these pleadings, the majority has forgotten that pleadings
must still “give the defendant fair notice of what the plaintiff's
claim is and the grounds upon which it rests.” Conley v. Gibson,
355 U.S. at 47.
. . . [PJleadings under the rule may properly be a
generalized summary of the party’s position, sufficient
to advise the party for which incident he is being sued,
sufficient to show what was decided for purposes of res
judicata, and sufficient to indicate whether the case
should be tried to the Court or to a jury. [Wright, Law
of Federal Courts 319 § 68 (3d Ed. 1976)]}.
13
The Defendants strongly contend that the Plaintiffs’ pleadings do
not measure up even to the liberal standards of the Federal Rules.
Professor Wright further points out in regard to Conley vy.
Gibson:
The rules require the pleader to disclose adequate
information as the basis of his claim for relief as
distinguished from a bare averment that he wants relief
and is entitled to it. It is true that in Conley v. Gibson
the Supreme Court referred to “simplified ‘notice
pleading,’” but in context it is plain that the Court's
statement was one of aim rather than definition. Only
two sentences before the phrase in question the Court
had emphasized that the rules require the complaint to
give the defendant “fair notice of what the plaintiff's
claim is and the grounds upon which it rests.” Thus the
Court recognized that the rule does contemplate the
statement of circumstances, occurrences, and events in
support of the claim presented, even though it permits
the circumstances to be stated with great generality.
[Wright, supra at 323]
If every prisoner complaint were viewed with the
unrestricted liberality applied by the majority in this case,
virtually no prisoner complaint, whether pro se or lawyer
drafted, could be dismissed. This of course is not what happens in
reality. Hundreds of prisoner complaints are dismissed each
‘In fact, the Court of Appeais in the present case upheld the
District Court's dismissal of the inmates’ due process claims. [A. p. A-
8] The majority noted that these “allegations are so general and so broad
that they state conclusions of law rather than a short and plain
Statement showing that plaintiffs are entitled to relief.” Defendants
agree here with the majority's description of these contentions but find
no greater specificity here than in those allegations which the majority
found sufficiently pleaded.
14
year because it is apparent to the District Courts that the
petitioners in those cases can show no set of facts which would
entitle them to relief. Moreover, this Court has very recently on
two occasions demonstrated that a prisoner petition can be
dismissed on the pleadings. In Estelle v. Gamble, 429 U.S. 97
(1976) this Court held that the prisoner's own pleadings showed
that he was not entitled to relief. And in Procunier v. Navarette,
—_—. U.S. ___ (February 22, 1978), this Court said that the
complaint which charged that the Defendants negligently
mishandled prisoner legal mail during the period from
September |, 1971, to December 11, 1972, was insufficient to
overcome the prison employees qualified official immunity.
It is ironic, but inevitable, that if the action of the Fourth
Circuit is sustained, plaintiffs will be encouraged to plead less
specifically in order to get their respective feet in the courtroom
door. Had Gamble or Navarette pleaded their cases more
generally, under the yardstick applied in the case at bar their
pleadings could not have been dismissed at an early stage of the
proceedings. Thus the majority's criteria in judging this
Complaint has the further effect of requiring the expenditure of
time and money before obviously meritless cases can be
terminated.
Furthermore, even in prisoner litigation this Court has never
held that it is unnecessary to plead any facts. An examination of
Cruz v. Beto, 405 U.S. 319 (1972) and Haines v. Kerner, 404 US.
519 (1972) reveal that the plaintiffs in those cases had in fact
pleaded enough specific facts that they had stated, if proved,
claims for relief. Cf. Conley v. Gibson, supra. Moreover, in
Bounds v. Smith, 430 U.S. 817 (1977) Mr. Justice Marshall
commented that though inmate complaints are construed
liberally, nonetheless they are still required to “set forth facts
giving rise to the cause of action.”
15
The majority opinion in the instant case has turned the rules
of pleading upside down and shifted the burden of proof to
Defendants. If a plaintiff can get into court on such pleadings as
the ones in question here, the burden will be on the defendant to
disprove any possibility that some named plaintiff, or for that
matter any prisoner in a purported class action suit, has suffered
any constitutional wrong. The majority suggests somewhat
blithely that the Defendants should proceed with discovery with
an eye toward moving for partial summary judgment
under Rule 56. However, summary judgment may be granted
only if the movant can show the absence of any disputed issue of
material fact. Cf. Adickes v. Kress & Co., 398 U.S. 144, 159. 160
(1970). Thus Defendants must negate all possibility that they
have unconstitutionally harmed any prisoner although they have
not been confronted with even one factual allegation claiming
harm. Defendants must become the Devil's Advocate. make
Plaintiffs’ case and then disprove it.
Judge Bryan recognizes the predicament in which the
majority has placed the State in this case:
We must be mindful that the State is entitled to some
consideration. Should a State be subjected to a
deliberate broadside attack upon one of its major
functions and then its defense be limited to a motion
for more definite statements, submission of
interrogatories, request for admissions, severances of
the claims or other defense procedures in the Rules?
Entertainment of this action will invite generally
complaints against a single prison to be framed as an
action against the entire State system. [A. p. A-21]
The majority Opinion evinces no consideration for the
State, the real defendant in this case. On these conclusory
pleadings, the State is asked to defend itself from a possible
16
Federal Court takeover. Neither sovereign States nor individual
defendants ought to be subjected to such an impossible burden
and only a misreading of Rule 8 would impose such an obligation
upon them.
Il. THE HOLDING OF THE FOURTH CIRCUIT ABRO-
GATES IN PRISONER LITIGATION THE REQUIRE-
MENT THAT A PLAINTIFF MUST DEMONSTRATE
HIS STANDING TO SUE AND ASSERT A REAL
CASE OR CONTROVERSY BETWEEN HIMSELF
AND THE DEFENDANT.
Although some inmate may have suffered some violation of
his civil rights, the Complaint is just too vague to determine whai
wrong or wrongs each or any one of the plaintiffs may have
suffered. The Complaint is in reality nothing more than a series of
“generalized grievances” of the sort which are not sufficient to
confer standing upon citizens or taxpayers. Schlesinger v.
Reservists To Stop The War, 418 U.S. 208, 217 (1974); Flast v.
Cohen, 392 U.S. 83, 96 (1968). The generalized interests which
these inmates may share does not confer standing upon them.
_Not one of the Plaintiffs has demonstrated that he himself has
“such a personal stake in the outcome of the controversy as to
assure that concrete adverseness which sharpens the presentation
of issues upon which the Court so largely depends for
illumination of difficult constitutional questions.” Baker v. Carr,
369 U.S. 186, 204 (1962).
It is elementary that “a litigant may only assert his own
constitutional rights or remedies.” U.S. v. Raines, 362 U.S. 17, 22
(1960), quoted in McGowan v. Maryland, 366 U.S. 420, 429
(1961). When a plaintiff seeks to bring a class action, he must
establish that he himself has suffered a wrong which is of the same
nature as that suffered by the class which he hopes to represent.
17
East Texas Motor Freight System, Inc. v. Rodriquez, —___. U.S.
—__— (May 31, 1977). “To have standing to sue as a class
representative it is essential that a plaintiff must be a part of that
class, that is, he must possess the same interests and suffer the
same injuries shared by all members of the class he represents.”
Schlesinger, 418 U.S. at 216. “[I]}f none of the named plaintiffs. . .
establishes the requisite of a case or controversy with the
defendants, none may seek relief on behalf of himself or any
member of the class which they purport to represent.” Rizzo v.
Goode, 423 U.S. 362, 373 (1976), citing O’Shea v. Littleton, 414
U.S. 488, 494 (1974). A cursory examination of the Complaint in
this case shows that not one of the plaintiffs has pleaded how he
himself as an individual has been injured by the conduct of the
defendants.
There are more than 80 separate facilities spread across the
State of North Carolina administered by the Department of
Correction. Do plaintiffs mean to contend that exactly the same
conditions exists in each unit so that each plaintiff (whether in
maximum, medium or minimum custody) suffers the same
constitutional deprivations? Do the plaintiffs contend that an
“overcrowded” prison has the same effect on an inmate who has
work or study release privileges as such a prison would have on
an inmate who is in segregation? Has each of the defendants
unconstitutionally interfered with the mail of each plaintiff?
These rhetorical questions simply illustrate the total failure of
each plaintiff here to show that he has standing to bring this
lawsuit.
Of course all the inmate plaintiffs share the common
denominator that they are each prisoners of the State of North
Carolina and they share the common interest all such prisoners
have in the administration of the system of which they are
involuntarily a part. But as this Court held in Schlesinger, supra,
418 U.S. 220,
. . . Standing to sue may not be predicated upon an
interest of the kind alleged here which is held in
common by all members of the public, because of the
necessarily abstract nature of the injury all citizens
share. Concrete injury, whether actual or threatened, is
that indispensible element of a dispute which serves in
part to cast it ina form traditionally capable of judicial
resolution. It adds the essential dimension of
specificity to the dispute by requiring that the
complaining party has suffered a particular injury
caused by the action challenged as unlawful.
Mr. Chief Justice Burger emphasized in Schlesinger, that “in
the context of judicial review of regulatory agency action .. .
whatever else the ‘case or controversy’ requirement embodied, its
essence is a requirement of ‘injury in fact.”” 418 U.S. at 218. This
Court held in O'Shea v. Littleton, 414 U.S. at 494 that
{a]}bstract injury is not enough. It must be alleged that
the Plaintiff “has sustained or is immediately in danger
of sustaining some direct injury,” as the result of the
challenged statute or conduct. Massachusetts v.
Mellon, 262 U.S. 447, 448, 67 L.Ed. 1078, 43 S.Ct. 597
(1923). The injury or threat of injury must be both “real
and immediate,” not “conjectural” or “hypothetical.”
The importance of the requirement that a plaintiff must have
a real and concrete injury as enunciated so fully in Schlesinger is
illustrated clearly by the instant case. The necessity of actual
injury, as noted by Mr. Chief Justice Burger, serves a twofold
purpose: (1) “‘to show that .. . [plaintiff's] individual
need requires the remedy for which he asks;” and (2) to insure
“the framing of relief no broader than required by the precise
facts to which the court's ruling would be applied.” 418 U.S. at
19
222. In the instant case because of the complete absence of factual
allegations, the Court would be unable to determine whether any
plaintiff is entitled to the relief he seeks, nor can the Court tailor
the relief to the facts of the case. The abandonment of the
requirement to plead and prove a concrete injury suffered would
“open the Judiciary to an arguable charge of providing
government by injunction.” 418 U.S. at 226. A federal system of
government does not admit of the kind of remedy Plaintiffs seek
here.
Even if, assuming arguendo, that the Plaintiffs’ inmate
status alone is sufficient to confer standing upon them, this vague
complaint does not present issues “in an adversary context and in
a form historically viewed as capable of resolution through the
judicial process.” Flast v. Cohen, 392 U.S. at 95. These prisoners
are asking the federal District Court to examine micro-
scopically the North Carolina prison system and ferret out any
constitutional violations therein. The Plaintiffs here are similar
to those in Laird v. Tatum, 408 U.S. 1 (1972), who sought
essentially
a broad-scale investigation, conducted by themselves
as private parties armed with the subpoena power of a
federal district court and the power of cross-
examination to probe into the Army’s intelligence
gathering activities, with the district court determining
at the conclusion of that investigation the extent to
which those activities may or may not be appropriate
to the Army’s mission. 408 U.S. at 14.
The prisoners here want the federal court to define what is
and what is not constitutional in the prison system without their
having in any given instance to plead a specific deprivation. What
they seek from the federal courts is in essence an advisory opinion
to which they are not entitled and which a federal court may not
20
constitutionally render. United Public Workers v. Mitchell, 330
U.S. 75 (1947). This Court has repeatedly refused to permit the
federal courts to become instruments of “judicial review at the
behest of organizations or individuals who seek to do no more
than vindicate their own value preferences through the judicial
process.” Sierra Club v. Morton, 405 U.S. 727, 740 (1972). The
precedent set by the Fourth Circuit in finding this suit sufficiently
pleaded would go a long way toward making the federal courts
mere grievance mechanisms for prisoners and others who
disagree generally or in principle with the way a prison or other
government institution is being operated. Thus not only the State
of North Carolina but others will feel the effects of this precedent
if it is allowed to stand.
(ll. THE ACTION OF THE COURT OF APPEALS
REVERSING THE DISTRICT COURT PERMITS A
PURPORTED CLASS ACTION SUIT TO CIRCUM-
VENT THE RULES OF VENUE BY NAMING A
NOMINAL DEFENDANT IN AREMOTELOCATION,
ALTHOUGH THE REAL DEFENDANT RESIDES OR
THE REAL CAUSE OF ACTION AROSE _ IN
ANOTHER DISTRICT.
Of the twenty-nine Plaintiffs, only eight were housed within
the jurisdiction of the United States District Court for the
Western District of North Carolina and they were housed in only
four of the approximately eighty-four facilities across the State of
North Carolina which constitute the Division of Prisons of the
North Carolina Department of Correction. Six of the remaining
twenty-one Defendants were housed in facilities within the
Middle District of North Carolina and the remaining fifteen were
housed within the Eastern District of North Carolina.
21
The North Carolina Department of Correction is an agency
of the State of North Carolina created pursuant to Article 6 of
Chapter 143B of the General Statutes of North Carolina. The
governing authority of the Department of Correction includes a
Secretary of Correction [G.S. 143B-263] appointed by the
Governor [G.S. 143A-9] and the Board of Correction [G.S.
143B-265]. The offices of the Department of Correction are
located and the functions of the Department of Correction are
performed at 840 West Morgan Street, Raleigh, North Carolina,
within the Raleigh Division of the United States District Court
for the Eastern District of North Carolina. The Division of
Prisons of the North Carolina Department of Correction is an
agency of the State created pursuant to Article 6 of Chapter 143B
and Chapter 148 of the General Statutes of North Carolina. The
Division's offices are located and the functions of the Division
are performed at 831 West Morgan Street, Raleigh, North
Carolina.
Except for the Defendant Richard Smith, former
Superintendent of the Craggy Correctional Institution at
Asheville, none of the other Defendants were served within or are
resident within the jurisdiction of the United States District
Court for the Western District of North Carolina and the claims
against those Defendants arose, if at all, within the jurisdiction of
the United States District Courts for the Middle or Eastern
Districts of North Carolina.
Actions under § 1983 are susceptible to the same venue
considerations as other civil actions. 28 U.S.C. § 1391 is entitled
“Venue Generally” and subsection (b) thereunder states:
A civil action wherein jurisdiction is not founded solely
on diversity of citizenship may be brought only in the
jurisdiction where all defendants reside, or in which the
claim arose, except as otherwise provided by law.
22
Except for naming as a nominal Defendant Richard Smith,
former Superintendent of the Craggy Correctional Institution at
Asheville, North Carolina, none of the Defendants are residents
of the Western District of North Carolina and only eight of the
Plaintiffs were housed within the Western District. The mere fact
that eight of the Plaintiffs were housed within the Western
District, and four are housed at the Craggy Institution does not
provide the requisite link with the Western District of North
Carolina to support venue over all the Defendants in the United
States District Court for the Western District of North Carolina
particularly whereas here it is not alleged that Smith individually
harmed any prisoner.
For example, the Plaintiff seeks to obtain jurisdiction over
L. V. Stephenson, Superintendent of the Caledonia Institution at
Tillery, North Carolina. However, the Caledonia Institution is
deep within the jurisdiction of the United States District Court
for the Eastern District of North Carolina and is located more
than 325 miles from Asheville and since the Plaintiffs seek to have
the United States District Court for the Western District of
North Carolina at Asheville control the North Carolina
Department of Correction, it would be fair to assume that the
Currituck County Subsidiary Prison Unit at Maple, North
Carolina, is also included—although that unit is on the Atlantic
Ocean 415 miles from Asheville. To properly translate such
distances, it should be remembered that Raleigh, North
Carolina, is 245 miles from Washington, D.C., or 387 miles from
Philadelphia, Pennsylvania. Asheville is 205 miles from Atlanta,
Georgia; 460 miles from Washington, D.C.; or 463 miles from
Tallahassee, Florida, on the Gulf Coast. From these figures it is
obvious that even if the United States District Court for the
Western District at Asheville had venue over all the Defendants,
which it does not, the case as filed by the Plaintiffs would lack
manageability. Therefore, the District Court properly dismissed
Plaintiffs’ action without prejudice to their individual right to file
civil rights actions which are properly pleaded, supported by
factual allegations and within the venue of the Court.
‘eee
23
IV. THE ACTION OF THE FOURTH CIRCUIT VIO-
LATES TUE HOLDING OF THIS COURT IN R/ZZOv.
GOODE, 423 U S. 362 (1976) AND JONES v. NORTH
CAROLINA PRISONERS’ LABOR UNION, 433 U.S.
119 (1977).
The Plaintiffs’ cause of action seeks to lay a foundation for
equitable intervention, such as that sought in Rizzo v. Goode,
423 U.S. 362 (1976). In Rizzo, the Supreme Court found that the
requisite Article III case or controversy between the individuals
named respondents and petitioners was lacking and therefore the
judgment of the District Court constituted an unwarranted
federal judicial intrusion into the discretionary authority of the
Philadelphia authorities to perform their official functions as
prescribed by state and local law, and by validating this type of
litigation and granting the type of relief involved herein, the
lower court had exceeded its authority under 42 U.S.C. § 1983. In
this case the Plaintiffs’ “Prayer for Relief” asks that the injunctive
relief previously enumerated be granted, that certain standards
governing the North Carolina Department of Correction be set
by the District Court and monitored by a Citizens Committee,
that inmates be released to reduce the inmate population and
that, oxymoronically, that the Defendants be enjoined from the
construction of further prison facilities. In essence, the Plaintiffs
seek to have the United States District Court for the Western
District of North Carolina usurp the power of the Governor of
the State of North Carolina, the General Assembly of the State of
North Carolina, the Secretary of the North Carolina Department
of Correction, the North Carolina Parole Commission, and to
take under its control the total management of the prison system
of the State of North Carolina.
Mr. Justice Rehnquist spoke to the issue when writing for
the majority in Rizzo v. Goode, supra, when he stated:
24
_.. When a plaintiff seeks to enjoin the activity of a
government agency, even within a unitary court
system, his case must contend with “the well
established rule that the government has traditionally
been granted the widest latitude in the ‘dispatch of its
own internal affairs.””. ..
_. , Where an injunction against criminal proceedings
is sought under § 1983, “the principles of equity,
comity, and federalism” must nonetheless restrain a
federal court.
_. . We think these principles likewise have applica-
bility where injunctive relief is sought not against the
judicial branch of the state government, but against
those in charge of an executive branch of an agency of
state or local government such as respondents here. . . .
These statements by the Court in Rizzo caution any federal
court to hesitantly employ the extraordinary remedy of an
injunction upon a state agency. It is clear that this remedy is to be
invoked only ina limited fashion and only upon the most extreme
circumstances. In contrast, the Plaintiffs call for a total
management of the prison system of the State of North Carolina
by the federal courts while not stating injury. This is in total
disregard of the Fourth Circuit’s own clear and unequivocal
disclaimer “that federal courts are [not] to assume the role of
super wardens of state penal institutions. . . .” Cooper v. Riddle,
540 F.2d 731 (4th Cir. 1976).
As we have recently been reminded by this Court in Jones v.
North Carolina Prisoners’ Labor Union, 433 U.S. 119 (1977):
,
-
2
.
25
Because the realitites of running a penal institution are
complex and difficult, we have also recognized the
wide-ranging deference to be accorded the decisions of
prison administrators. We noted in Procunier v.
Martinez, 416 U.S. 396, 405 (1974), that
“courts are ill-equipped to deal with the in-
creasingly urgent problems of prison
administration and reform. Judicial recog-
nition of that fact reflects no more than a
healthy sense of realism. Moreover, where
state penal institutions are involved, federal
courts have a further reason for deference to
the appropriate prison authorities.” See also
Cruz v. Beto, 405 U.S. 319, 321 (1972).
CONCLUSION
It is clear in fact that the Plaintiffs simply disagree with how
the North Carolina prison system is being run. With no specific
factual basis, Plaintiffs urge the federal court to undertake an
across-the-board examination of every aspect of the North
Carolina prison system, ferret out unconstitutional practices and
order programs of a more enlightened (in their view) nature. How
the prison system should be run is a question for the legislature
and executive branches of the state government of North
Carolina, not for the federal courts.
What the District Court did in dismissing these actions was
simply to recognize the historic principle of federalism and apply
it. As the District Court wrote,
... [T]he Plaintiffs ask this Court to usurp the power
of the North Carolina Department of Correction and
26
take under its control and management the prison
system of this sovereign state. This Court has no
authority to follow such a course of conduct, and
would refuse to do so under the circumstances if the
power did exist. This refusal to act is founded and
nurtured upon the principles of equity, comity and
federalism which call for judicial restraint by the
federal courts in the matters concerning the internal
administration of a governmental agency. [A. p.A-26]
Yet the District Court did not close its doors to the
legitimate grievances set forth in a matter “capable of resolution
through the judicial process.” The District Court declared in its
Opinion:
However, this is not to say that the Plaintiffs do not
have an available avenue for redress, for this decision
does not prejudice their rights to plead their cases
individually upon the peculiar facts of each case.
Section 1983 of 42 United States Code has staunchly
protected the civil and constitutional rights of the
prison population, as well as the total citizenry of this
country. This statute protects all citizens from those
who abuse authority purportedly conferred by state
law, and provides a right and remedy in federal courts.
The plaintiffs, who seek such broad relief in this Court
today, may again come to this forum pleading the
individual facts which support their respective cases. If
the individual facts are meritorious and support the
legal conclusions pleaded today, then this Court is
bound by its office to afford proper relief. The legal
conclusions, such as denial of adequate care,
protection from violence and unlawful censorship of
mail, have been established as grounds for relief under
27
§ 1983. See Procunier v. Martinez, 416 U.S. 396(1974);
Woodhous v. Commonwealth of Virginia, 487 F.2d
889 (4th Cir. 1973); Blanks v. Cunningham, 409 F.2d
220 (4th Cir. 1969). Nevertheless, facts must be pleaded
and proven to support these legal conclusions before
relief is available and certainly this relief cannot extend
tc a total usurpation of the state agency
Respectfully submitted,
RUFUS L. EDMISTEN
Attorney General
JACOB L. SAFRON
Special Deputy Attorney General
JAMES PEELER SMITH
Assistant Attorney General
APPENDIX
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 76—2151
Thomas Bolding, Robert Fink, Samuel Bost,
Raymond Creason, James Grant, Gerald R. Prince,
Perry W. Franklin, Norman Anthony, Wilburt
Clemmons, Jimmy Covington, Erwin Zelms, Marjorie
H. Marsh, Timothy P. Harding, William R. McCall,
Fred T. Malick, Glenn Ford, Jodie V. Austin, John H.
Stacks, Charles L. Edmondson, Donald Perkins, Jim
Vickers, Anne C. Willett, Gonzales Jones, Anne
Sheppard Turner, Michael McSwiggen, Sherman
Jones. Strother Holder, James Sapp, and Dennis Cole,
ang all others similarly situated,
Appellants,
James E. Holshouser, Jr., individually and in his
official capacity as Governor of North Carolina:
David L. Jones, individually, and in his official
capacity as Secretary of Social Rehabilitation and
Control; Ralph D. Edwards, individually, and in his
official capacity as Commissioner of the North
Carolina Department of Correction; Jack Scism.
individually, and in his official capacity as Chairman
of the North Carolina Parole Commission; The North
Carolina Parole Commission; The North Carolina
Commission of Correction: J. Richard Smith.
individually and in his official capacity as
Superintendent of the Craggy Subsidiary of the North
Carolina Department of Correction: E.C. Watkins.
individually, and in his capacity as Superintendent of
the Stanley County Subsidiary of the North Carolina
Department of Correction: L. C. Stephenson,
individually, and in his official capacity as
Superintendent of the Caledonia Farms Subsidiary of
the North Carolina Department of Correction: and
Sam Garrison, individually, and in his capacity as
Warden of Central Prison, and Fred Briggs,
individually, and in his capacity as Chairman of the
Central Classification Committee of the Department
of Correction;
Appellees.
Appeal from the United States District Court
for the Western District of North Carolina,
at Asheville. Woodrow W. Jones, Chief Judge.
Argued December 5, 1977 Decided April 26, 1978
Before HAYNSWORTH, Chief Judge,
BRYAN, Senior Circuit Judge, and WINTER, Circuit Judge.
Allen H. Wellons (Russell P. Brannon, Van Winkle,
Buck, Wall, Starnes, Hyde & Davis on brief) for Appellants:
Jacob L. Safron, Special Deputy Attorney General
(Rufus L. Edmisten, Attorney General of North Carolina on
brief) for Appellees.
WINTER, Circuit Judge:
The district court granted a motion under Rule 12(b)(6),
F.R. Civ. P., to dismiss a complaint brought by a group of North
Carolina prisoners, both individually and as representatives of all
prisoners similarly situated in North Carolina prisons. The
complaint sought a declaratory judgment that certain prison
conditions and certain treatment of prisoners and their mail
violated the constitutional rights of the prisoners under the
A4
Federal Constitution and the Constitution of North Carolina.
The major premise for the district court's ruling was that the
complaint failed to state a claim upon which relief could be
granted because it set forth merely legal conclusions unsupported
by adequate factual allegations. The district court also expresed
its unwillingness “to take under its control and management the
prison system [of North Carolina]” in this or any other case, and
to that end stated that it would not grant class relief although it
would grant individual relief to any plaintiff who would plead
and prove an individual right to relief. We reverse and remand
the case for further proceedings.
Plaintiffs are twenty-nine prisoners incarcerated in thirteen
penal institutions in various cities and towns in North Carolina.
They sue the Governor of North Carolina, the Secretary of the
Department of Social Rehabilitation and Control, the Director
of Prisons and Commissioner of the Department of Correction,
the persons constituting the North Carolina Parole Commission
and those constituting the North Carolina Commission of
Correction, the Chairman of the Central Classification
Committee of the Department of Correction, and the various
persons who are the Superintendents or Wardens of the various
institutions in which plaintiffs are confined.
The plaintiffs’ substantive allegations go to the charges of (1)
overcrowding, (2) interference with prisoners’ mail, (3) isolation.
(4) denial of procedural due process at administrative hearings
dealing with parole, transfer, disciplinary action and prisoner
classification, and (5) general conditions. The task of
summarizing them yet preserving their essential fullness is
impossible, so we append as an appendix to this opinion the
portion of the complaint dea.ing with each of these substantive
complaints. The complaint charged that the acts and omissions
of defendants amounted to (a) cruel and unusual punishment in
violation of the Eighth Amendment and Article I, §27 of the
A-5
North Carolina Constitution, (b) denial of access to the courts
and access to counsel in violation of the Sixth Amendment, and
(c) denial of due process of law in violation of the Fourteenth
Amendment.
Plaintiffs sought comprehensive declaratory and injunctive
relief. They sought a declaration that each inmate was entitled to
eighty square feet of living space, that conditions in the North
Carolina prison system do not meet minimum constitutional
_ standards, and that defendants violated plaintiffs’ constitutional!
rights in the divers regards set forth in the substantive allegations.
Both interim and permanent injunctive relief, albeit some of it
conflicting, were sought, inter alia, to enjoin defendants from
accepting new prisoners until minimun consititutional standards
were met, to require defendants to parole prisoners to reduce
unconstitutional overcrowding, to enjoin the construction of new
prison facilities until programs for education, recreation and
work-release were funded and developed, to enjoin defendants
from interference with prisoners’ mail, to enjoin the denial of
hygienic needs, medical services, sanitary food service and access
to reading and writing materials, and to require defendants to
afford prisoners procedural due process with regard to their
future status. The relief prayed also included a request for
protecting plaintiffs against retaliation for bringing the suit, the
appointment of a Citizens Committee to monitor compliance
with any order granting relief and a reservation of jurisdiction
until full compliance with any order entered by the court.
Without expressing any view as to whether plaintiffs can
prove all or any of the facts that they allege and, if so, whether
they would be entitled to any or all of the exact relief that they
pray, we disagree with the district court that plaintiffs have failed
to state a claim upon which relief may be granted.
A-6
The adoption of the Federal Rules of Civil Procedure in
1938 marked the demise of common law pleading in the federal
courts; in its place, the rules adopted the concept of notice
pleading. Thus, Rule 8 requires only “a short and plain statement
of the claim showing that the pleader is entitled to relief.” Rule
12(b)(6) must be given a construction consonant with this basic
concept; detailed factual averments are no longer necessary to
avoid dismissal of a claim. And in testing the sufficiency of
compliance with Rule 8 when a Rule 12(b)(6) motion has been
filed. Conley v. Gibson, 355 U.S. 41, 45-46 ( 1957). teaches that
In appraising the sufficiency of the complaint, we
follow, of course, the accepted rule that a complaint
Should not be dismissed for failure to state a claim
unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which
would entitle him to relief.
This test was repeated more recently in Cruz v. Beto, 405 U.S. 319
(1972); and Haines v. Kerner, 404 U.S. 519. $2] (1972). See also
— v. Leeke, ___ F.2d ___ (4 Cir.. Decided March 6,
).
In application of these principles, we think it manifest that
plaintiffs’ complaint is immune to dismissal under Rule 12(b)(6)
in at least four of the five separate causes of action which are
asserted.
A. With respect to overcrowding. plaintiffs have alleged
that the prison facilities in the State of North Carolina “do not
provide adequate persona! living space for each individual
prisoner,” and as a result they allege that plaintiffs “are victims of
and are in constant danger of violent and deadly
attack;. . . [they] are victims of and face the persistent danger of .
rape and other sexual attack or molestation: . . . [and they]
A-7
suffer accumulating psychological damage from the high level of
mental stress and fear.” In addition, piaintiffs allege that as a
result of the overcrowding they do not receive “adequate
educational, recreational and work-release programs;
... Sanitary living conditions; ...supplies for meeting basic
personal hygiene; ...adequate medical, psychological and
dental care; ...visitation rights; ...[and] a _ functional
classification system ...[to] provide treatment for those
individuals with emotional problems, safety for prisoners in
-general population, and means for prisoners to achieve personal
improvement.” These allegations are sufficiently factual to state a
cognizable claim. See Pugh v. Locke, 406 F. Supp. 318 (M.D.
Ala. 1976), aff'd in pari, rev'd in part, Newman v. Alabama, 559,
F.2d 283 (5 Cir. 1977).
B. With respect to interference with prisoners’ mail,
plaintiffs have alleged that defendants “unreasonably delayed the
delivery of incoming mail and the posting of outgoing mail, and
have... failed or refused to deliver incoming mail or post
outgoing mail.” Moreover, plaintiffs have alleged that
defendants have delayed the delivery and the posting of attorney-
client mail and at times have failed or refused to deliver or post
such mail. Again, the allegations are sufficient to state a
cognizable claim. See Procunier v. Martinez, 416 U.S. 396
(1974).
C. As to isolation, plaintiffs have alleged that their ceils “do
not meet minimum standards of the United States Public Health
Service” and that plaintiffs are “not provided with three
wholesome and nutritious meals a day;. . .are not provided with
toilet articles necessary to keep up their own personal
hygiene; ...are not provided with adequate shower opportunities;
... are not provided with clean and sanitary linen; and .. . are not
provided with adequate exercise and recreation time. ..” These,
too, are factual allegations sufficient to state a cognizable claim.
See Sweet v. South Carolina Dept. of Corrections, 529 F.2d 854
(4 Cir. 1975).
A-8
D. In regard to general conditions, the plaintiffs allege that
defendants have failed “to provide adequate sanitary food service
facilities....” We think this allegation sufficient to state a
cognizable claim.
E. Finally, with regard to their claims of procedural due
process, we agree with the district court that plaintiffs have
probably failed to allege a cognizable claim. Their only allegation
is that defendants have failed “to provide meaningful hearings
which comport with minimal standards of fairness” in regard to
such matters as “parole, transfer, disciplinary action, and
prisoner classification.” While various decisions have recognized
that procedural due process must be afforded in regard to such
matters and have defined what process is “due” in each context,
we are inclined to think that plaintiffs’ allegations are so general
and so broad that they state conclusions of law rather than a
short and plain factual statement showing that plaintiffs are
entitled to relief. If the claim of denial of procedural due process
of law was plaintiffs’ sole cause of action, we would agree,
especially since plaintiffs were represented by counsel, that the
complaint should be dismissed. However, any such dismissal
should be with leave to amend within a reasonable period to
correct the omissions and deficiencies of the pleader by supplying
specific allegations concerning those practices which are claimed
to violate the due process clause. Gordon v. Leeke, supra. Since
this alleged cause of action is not plaintiffs’ only cause of action, it
is manifest that the entire complaint should not be dismissed, and
since portions of the complaint, as we hold, are clearly immune
from dismissal, we think that dismissal solely as to this cause of
action is warranted but only with leave to amend.
Plaintiffs’ complaint is broad in nature and sweeping in
scope. We are constrained to add, therefore, that although we
think that it is immune to dismissal under Rule 12(b)(6), it does
not follow that the district court should proceed directly to
A-9
determining if a class should be certified and to trial without
delineation and definition of the issues. Delineation and
definition of the issues will undoubtedly have a direct bearing on
whether a class should be certified and, if so, the description of
the class. It may also disclose a basis on which the district court
should sever the claims and order them tried separately. Rules
42(b) and 20(b). Perhaps even the trials of some severed claims
should be transferred to the middle or the Eastern District of
North Carolina. Leesona Corporation v. Cotwool
Manufacturing Corporation, 308 F.2d 895 (4 Cir. 1962).
Under the Rules of Federal Procedure, the manner in which
the issues are delineated and defined, as well as the factual basis
for claims disclosed and sham claims eliminated, is not by the
pleadings. Hodgson v. Virginia Baptist Hospital, Inc., 482 F.2d
821 (4 Cir. 1973). “The rules provide techniques more efficient
than pleadings for performing [these] functions. The facts may
be determined by discovery. The issues may likewise be narrowed
by discovery or at a pretrial conference, or by ‘partial summary
Judgment’ under Rule 56(d). Cases where there ts no real
controversy may be disposed of speedily and finally, on the
merits, by summary judgment.” C. Wright, Law of Federal
Courts 319 (3d ed. 1976). Thus, we remind counsel for defendants
and the district court that the proper path for them to pursue is
not a motion under Rule 1|2(b)(6) but the various procedures
authorized and described in Rules 16, 26-37, and 56.
Because the district court went beyond dismissal of the
complaint and indicated that it would never entertain a class suit
granting class relief in a cause of this nature, we think it
appropriate to remind the district court of the scope of a proper
exercise of its jurisdiction in an appropriate case. We, of course,
express no view on whether the proof which the plaintiffs may
adduce represents such a case.
A-10
Recently the Supreme Court has cautioned against sweeping
injunctions directed at state executive officials. Rizzo v. Goode,
423 U.S . 362 (1976). While Rizzo states that the principles of
federalism militate against injunctive relief under 42 U.S.C.
§1983 against the executive branch of state or local governments,
Rizzo does not preclude recourse to broad injunctions when a
clear pattern of unconstitutional conduct has been established.
Specifically, Rizzo does not overrule Procunier v. Martinez,
supra, where the Court, after stating that “courts are ill equipped
to deal with the increasingly urgent problems of prison
administration and reform” (416 U.S. at 405), nevertheless
added:
But a policy of judicial restraint cannot
encompass any failure to take cognizance of valid
constitutional claims whether arising in a federal or
state institution. When a prison regulation or practice
offends a fundamental constitutional guarantee,
federal courts will discharge their duty to protect
constitutional rights. Johnson v. Avery, 393 U.S. 483,
486 (1969). 416 U.S. at 405-06.
We agree with the holding in Newman v. Alabama, 559 F.2d
283 (5 Cir. 1977), that, notwithstanding Rizzo, class relief
requiring sweeping changes in a state prison system may still be
mandated when the proof requires such relief.
In the district court, defendants asserted, as an alternative
reason why their motion to dismiss should be granted, that only
eight of the plaintiffs were confined in the four penal institutions
located in the Western District of North Carolina in which suit
was filed, that the remaining twenty-one pla.ntiffs were confined
in penal institutions located in other districts of North Carolina,
that all but one of the defendants reside and have their principal
offices in districts of North Carolina other than the Western
<<
A-11
District and that, therefore, the district court lacked venue except
as to the eight plaintiffs confined within its territorial
jurisdiction. In this regard, defendants’ motion to dismiss was a
motion under Rule 12(b)3). .
The district court did not find it necessary to rule on this
aspect of the motion but defendants press this theory on us asa
basis for sustaining the result, at least in part, reached by the
district court.
We reject the contention. It is true that 28 U.S.C. §1391(b)
States that non-diversity cases “may be brought only in the
judicial district where all defendants reside, or in which the claim
arose, except as otherwise provided by law,” but 28 U.S.C.
§1392(a) makes special provision applicable to this case. It states
that a civil action “not of a local nature, against defendants
residing in different districts in the same State, may be brought in
any of such districts.” Since the instant case is a purported class
suit against defendants residing in the several districts of North
Carolina, venue lay, inter alia, in the Western District of North
Carolina. 1 his is not to say, however, that upon a proper showing
the district court may not conclude to transfer the case to another
district. The provisions of 28 U.S.C. §1404(a) state specifically
that “{flor the convenience of parties and witnesses” a district
court possess the authority to transfer a civil action “to any other
district. . .where it might have been brought.”
We reverse the judgment of the district court and remand the
case for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
—_ re ee ee ee ee
A-12
ADDENDUM
After the foregoing opinion and Judge Bryan’s dissent were
circulated to the non-sitting judges, Judge Hall suggested that the
case be reheard in banc and he requested a poll on his suggestion.
The poll lost for lack of a majority of the votes of the judges
entitled to vote therein.
For the reasons stated in Judge Bryan’s dissenting opinion,
Judge Russell, Judge Widener and Judge Hall dissent from the
failure to rehear the case in banc.
APPENDIX
The substantive allegations of the complaint are contained
in paragraph VII which follows:
STATEMENT OF CLASS CLAIM
Count One — Overcrowding
A. Defendants, by confining Plaintiffs within facilities
under Defendants’ control, have and continue to subject
Plaintiffs to impermissible indignity because the majority, if not
all, of the prison facilities in the State of North Carolina, as
designed and constructed, violate the evolved standards of
decency upheld, embodied, and protected by this society, in that
they do not provide adequate personal living space for each
individual prisoner.
B. By permitting and causing the prisoner population at
each prison facility to exceed the designed capacity, the
Defendants have subjected Plaintiffs to further degrading and
inhumane deprivations.
A-13
C. The extreme overcrowding and its resultant effects has
created an environment in which the evermounting tensions,
fears, and frustrations prevent, disrupt and destroy normal
human interaction. The Defendants are unwilling or unable to
protect Plaintiffs from the unnatural behavior which results, to
wit:
1. Plaintiffs are victims of and are in constant danger of violent
and deadly attack;
2. Plaintiffs are victims of and face the persistent danger of
rape and other sexual attack or molestation;
3. Plaintiffs suffer accumulating psychological damage from
the high level of mental stress and fear.
D. Beyond the suffering caused by overcrowding itself,
overcrowding results in the Plaintiffs being subjected to
additional cruelties including, but not limited to, the following:
|. Defendants are unwilling or unable to provide adequate
educational, recreational and work-release programs;
2. Defendants cannot, or have refused to, provide sanitary
living conditions;
3. Defendants are unwilling or unable to provide adequate
supplies for meeting basic personal hygiene needs of
Plaintiffs;
4. Defendants do not provide adequate medical,
psychological, and dental care for the Plaintiffs;
5. Defendants have increasingly curtailed visitation rights of
Plaintiffs, due to lack of space which can be used as a
visiting area;
A-14
6. Defendants are unable to operate a functional classification
system which would provide treatment for those individuals
with emotional problems, safety for prisoners in general
population, and means for prisoners to achieve personal
improvement.
Count Two — Mail
A. The Defendants, both intentionally and negligently,
have interferred with the mail of Plaintiffs and others similarly
situated in that they have unreasonably delayed the delivery of
incoming mail and the posting of outgoing mail, and have at
times failed or refused to deliver incoming mail or post outgoing
mail.
B. The Defendants, both intentionally and negligently,
have interferred with Plaintiffs’ mail transmitted to and from
their attorneys. Specifically, Defendants have unreasonably
delayed the delivery of incoming, and the posting of outgoing,
attorney-client mail, at times having failed or refused to deliver or
post such mail. In addition, Defendants have engaged in the
censorship of attorney-client mail and have inspected attorney-
client mail without the prisoner-client being present.
C. Defendants’ actions with regard to the mail of Plaintiffs
and others similarly situated exceed the measures necessary to
insure internal security in the prisons and deprive Plaintiffs of
their rights of free speech, freedom of association, and access to
counse! and the Courts.
Count Three — Isolation
The defendants in the past have placed, and continue to
place, Plaintiffs in isolation (the hole) without providing them
with safe and sanitary conditions, to-wit:
A-15
l. Plaintiffs’ cells do not meet minimum standards of the
United States Public Health Service;
2. Plaintiffs are not provided with three wholesome and
nutritious meals a day;
3. Plaintiffs are not provided with toilet articles necessary
to keep up their own personal hygiene;
.4. Plaintiffs are not provided with adequate shower
opportunities necessary to keep up their own personal
hygiene;
5. Plaintiffs are not provided with clean and sanitary
linen; and
6. Plaintiffs are not provided with adequate exercise and
recreation time outside the cell.
Count Four — Administrative Hearings
. The Defendants have failed to provide meaningful hearings
which comport with minimum standards of fairness on matters
determinative of Plaintiffs’ future status, such as parole, transfer,
disciplinary action, and prisoner classification.
Count Five — General Conditions
The Defendants have been guilty of other violations of the
constitutional rights of the Plaintiffs not herein specifically
alleged, including, but not limited to, the failure to provide
adequate sanitary food service facilities and conditions, which
violations, when taken together and in combination with the
conditions and violations alleged in the previous counts, serve to
further deprive the Plaintiffs of rights conferred upon them by
the Constitutions of the United States and the State of North
Carolina.
A-16
Albert V. Bryan, Senior Circuit Judge, dissenting:
Deferentially I disagree with today’s basic holding. It is that
the motion to dismiss the complaint under FRCiv.P12(b)(6)—
failure to state a claim upon which relief can be granted —must be
denied in this suit brought by twenty-nine inmates of thirteen
State prisons, to have the Federal District court assume
supervision of a// seventy-seven of the prisons comprising the
North Carolina system.
The very entertainment of the instant complaint, in my view,
offends a fundamental of federalism: it is a bald, bold and entire
usurpation of an official State function. Rizzo v. Goode, 423 US
362, 380 (1976). Argument to sustain the suit as one simply ill-
pleaded ignores the integral and facial insufficiency in jaw of the
complaint. Immediately its illegal concept is manifest in the
compass of its allegations and prayers for their effectuation.
In this take-over, plaintiffs begin with the Governor, suing
him and following through with the naming as defendants of
apparently every officer whose duties might touch upon the
State’s policies and efforts in the punishment and correction of
crime. Grievances asserted are termed as deprivations of the
plaintiffs and of the “inmate population”, as a whole, of rights
under the Eighth Amendment of the Federal, and corresponding
articles of the State constitution denouncing cruel and unusual
punishments.
The unacceptability of the suit appears at once from the
declarations and injunctions prayed with regard to “over
crowding”. A formal declaration is demanded “that the
minimum living space required for each inmate” by the consti-
tutions is 80 square feet.' Thereafter to be decreed are the
following injunctions to the State officers:
2.9 e
ee
ies +
A-17
1. Enjoinment of them “from accepting new prisoners until
the inmate population is reduced to the point” of minimum
constitutional standards “for each facility in the North Carolina
prison system”.
2. Command of the appropriate State departments “to
release or parole sufficient numbers of prisoners eligible for
parole or release” so as to reduce the inmate population at each
correctional facility to “minimum constitutional standards”.
3. Prohibiting defendants from construction anywhere of
more prison facilities until Constitutionally acceptable programs
for education, recreation and work-release are funded and
developed.?
4. Ordering the appointment of “a Citizens Committee” for
the North Carolina prison system, to be compensated by the
State and invested with “general responsibility and authority to
monitor and supervise the implementation of the Standards
Order achieved by the [District] Court.”
A more sweeping obtrusion upon the sovereignty of a State
is not readily even to be conjectured. A//imprisonments are to be
stayed, no matter the gravity of the crimes of conviction. Starkly
‘Incidentally, this court held in October 1977, Hite v. Leeke, 564
F2d 670, 673, that required occupancy by two prisoners of a cell 65 feet
square is not a Constitutional deficiency.
7Noteworthy, Newman v. State of Alabama, 559 F2d 283, 291-2(5
Cir. 1977) concluded that such provisions were not entitlements under
the law.
A-18
evincing their interference, the plaintiffs ask the Federal court to
order the State to grant paroles or releases to inmates so as to
provide more space for the convicts remaining there. The
parolees or releasees are to be returned to the street on order of
the District Court, non obstante the concern and responsibility
for the discharge of criminals through eligible for parole or
pardon. Note, again, that mo new prison facilities are to be
constructed by the State until the programing, funding and
development of education, recreation and work-release
provisions are perfected for the incarcerated.
This arrogation of powers attributed by the plaintiffs to the
Federal court is even more incomprehensible when judicial
notice is taken, as it may be, that in North Carolina there are at
least 77 penal establishments located in 67 counties, all of these
considerations being embraced in this suit. Haughey v. Rhay, 300
F. Supp. 490, 494 (E.D. Wash. 1969); Smith v. Bounds, 538 F.2d
541,542 (4 Cir. 1975). This court in Hite v. Leeke, supra, 564 F.2d
670, (4 Cir. 1977 opinion by Circuit Judge Russell), exhaustively
expounded with precedent, both decisional and commentary, the
inhibitions upon the Federal court’s invasion of a State's
operation of her correctional system. I follow that exegesis.
Finally, statewide oversight of this function is, under the prayer
of the complaint, to be made the responsibility of a Citizens
Committee. Further disclosure of the aim of a total taking over
by the Federal Court at the instance of the plaint .s is scarcely
necessary.
Unlike the majority, I think that Rule 12(b)(6), FRCiv.P,
warrants the dismissal of these portions of the complaint for
“failure to state a claim upon which relief can be granted.”
* a ere
A-19
Likewise deficient in stating a claim cognizable by the
District Court are the complaint’s remaining allegations and
prayers for declarations and injunctions condemning: (a) the
living space assigned for each inmate; (b) interference with
prisoner’s mail; and (c) in isolation the cells not meeting
minimum standards of United States Public Health Service,
three wholesome and nutritious meals each day not provided,
toilet articles for personal hygiene not furnished, adequate
shower opportunities not given, clean and sanitary linen not
available, and adequate exercise and recreation time not
afforded.
When the source of this listing as to any one unit is from a
prisoner not an occupant thereof, the failure to make a
cognizable case against it or the whole system becomes
immediately apparent. All the instant accusations emanate from
twenty-nine prisoners and all are against each of the 77 units in
the penal system. However, it is not shown that together they can
be informed of more than thirteen units, since their confinement
is in them exclusively. Further, not one is shown to know of the
conditions in more than one of these thirteen. Additionally, as
will momentarily be seen, no more than five can speak ofa single
unit.
Complainants are incarcerated as follows: one is in one unit:
one is in another unit; one in another; one in another: one in
another; one in another, two are in still another: three in still
another; three in still another; three in still another: four in still
another; four in still another; and five in yet another. All of these
units are separated by miles and each is in a different county. The
obvious question is how, therefore, can they be heard to speak for
conditions throughout the State or even in another unit? For
example, how can one or several occupants of a unit appraise the
A-20
wholesomeness or nutrition of food served in the other seventy -
six units. Similar inquiries occur as to handling of the mail,
sanitation of living conditions, supplies for personal hygiene
needs and visitation area. Like queries cover operation of the
isolation cells in respect to hygienic items such as toilet articles,
“shower opportunities”, “Clean and sanitary linen”, “exercise
and recreation time outside the cell.”
These are the facts, not my inferences, presented to the
District Court. They constitute a blunderbuss complaint. The
case fails on its facts; it fails on its face. So again, it was
dismissible on motion under FRCiv.P 12(b)(6). While the factual
inadequacy alone ends the action, this result finds support as a
matter of law in this circuit in Inmates v. Owens, 561 F.2d 560,
562-3 (September 16, 1977) holding:
“In order to state a civil rights claim upon which relief
can be granted under 42 U.S.C. § 1983, one must allege
that he, himself, sustained a deprivation of a right,
privilege or immunity secured to him by the
Constitution and laws of the United States. Lopez v.
Luginbill, 483 F.2d 486, 488 (10th Cir. 1973). This was
not done, and the complaint was properly dismissed.”
The doctrine of relaxation of pleading pro se by prison
inmates has no play here, for the infirmity is not of form but in
substance. The complaint was drawn and counseled by reputable
attorneys. Notwithstanding the legal insufficiency of the
complaint, its allegations and prayers are unmistakably and
intentionally aimed at the prison system of North Carolina
throughout. it is not a prison-by-prison assault. So to treat it so is
to ignore and defeat the thesis of the pleader. Illustrating his
i ae erates we eee
A-21
entire concept are the prayers against accepting new prisoners
anywhere in the State, the construction of more facilities
anywhere and the mandate of parole or other release of prisoners
everywhere all focused on the system to reduce the existing
population. In similar vein is the call for a committee of oversight
for it all.
Nur does the resolution of this case depend upon whether
the District Court can keep this litigation within practicable
bounds. We must be mindful that the State is entitled to some
consideration. Should a State be subjected to a deliberate
broadside attack upon one of its major functions and then its
defense be limited to a motion for more definite statements,
submission of interrogatories, request for admissions, severances
of the claims or other defensive procedures in the Rules?
Entertainment of this action will invite generally complaints
against a single prison to be framed as an action against the entire
State system.
To my mind the District Court has judged altogether
soundly. Its dismissal was not a prejudicial judgment. Plaintiffs
were left free to bring separate appropriate actions for themselves
and others suffering deprivations in the same prison.’ | would
affirm with such leave to plaintiffs.
FIELD, Senior Circuit Judge:
While I have no vote upon the en banc suggestion, I want to
place myself on record as being in complete accord with the views
expressed by Judge Bryan in his dissenting opinion in this case.
a i a
A-22
IN THE
DISTRICT COURT OF THE UNITED STATES
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
A—C—76—74
FILED—AUG. 16 1976
THOMAS BOLDING, ROBERT FINK,
and others,
Plaintiffs,
VS.
JAMES E. HOLSHOUSER, JR., individually, and in his
official capacity as
GOVERNOR OF NORTH CAROLINA, and others,
Defendants.
MEMORANDUM AND ORDER
The Plaintiffs, who are State prisoners, sue on behalf of
themselves, individually, and on behalf of all others similarly
situated, and bring this action under 42 U.S.C.A. 1983 seeking
declaratory and injunctive relief. The Plaintiffs contend that the
Defendants have violated their rights under the First, Sixth,
Eighth, and Fourteenth Amendments of the United States
Oe hn ee D6 te ee nl a om Ores tO.
Sa tt Mtns SRR sate sone
ee ee
A-23
Constitution, as well as Article 1, Section 27 of the North
Carolina Constitution, in that the following alleged conditions
exist in the North Carolina prisons: severe overcrowding,
inadequate administration of hearing procedures, improper
classification of inmates, inadequate and restricted programs for
education, recreation, and work release, improper treatment of
prisoners in solitary, and improper interference with the
transmittal of prisoner mail. Based upon these alleged conditions
the Plaintiffs ask this Court to provide the following injunctive
relief:
a. Enjoining the Defendants from accepting any new
prisoners into the North Carolina Prison System until
inmate population is reduced to the point that
minimum Constitutional standards are met.
b. Requiring that the North Carolina Department of
Correction and Board of Paroles release or parole
sufficient numbers of prisoners to reduce the inmate
population to a level where minimum Constitutional!
Standards are met.
c. Enjoining the construction of further prison facilities
until Constitutionally acceptable programs for
education, recreation, work-release, etc., are funded
and developed.
d. Requiring the Defendants to make available to the
Plaintiffs and others similarly situated basic items and
facilities necessary for personal hygiene, adequate
medical care, and adequate sanitary food service
conditions, regardless of whether the inmate is in
solitary or regular confinement.
A-24
e. Requiring the Defendants to develop and implement a
classification plan which will insure the protection of
the Plaintiffs and all others similarly situated
from physical violence and other violations of their
rights.
f. Enjoining the Defendants from censorship of, and
other interference with inmate mail, except to search
for contraband and then only in the presence of the
inmate; and requiring the Defendants to expeditiously
deliver mail addressed to or by prison inmates in
accordance with the United States postal regulations.
g. Requiring the Defendants to accord the Plaintiffs and
all others similarly situated fundamental! due process
rights, including notice and the right to a meaningful
hearing, with respect to all significant actions affecting
them.
The Defendants have moved to dismiss the action for failure
to state a claim upon which the relief sought can be granted
contending that the complaint is conclusory in nature with
inadequate allegations in support thereof. The Defendants also
contend that this Court lacks subject matter jurisdiction and is
not the proper venue for this action.
A hearing on the Defendants’ Motion was conducted by this
Court at the July 1976 Term in Asheville. After a careful
consideration of the pleadings, briefs, and oral arguments, the
Court now enters its findings and conclusions.
It is well settled that general conclusory allegations
unsupported by facts are insufficient to constitute a cause of
action under 42 U.S.C.A. 1983. Hoffman v. Halden, 268 F.2d 280)
(9th Cir. 1959); Fletcher y. Hook, 446 F.2d 14 (3rd Cir. 1971):
Guedry v. Ford, 431 F.2d 660 (Sth Cir. 1970); Colon v. State of
ee en A Deke, ie a CT eee sence
}
:
‘
»* ESI
A-25
N.Y. Division of Human kights, 354 F.Supp. 343 (S.D. N.Y.
1973). Comparing the case at bar to this principle, it is clear that
the Plaintiffs have merely asserted legal conclusions with no
factual allegations in support thereof. The Plaintiffs fail to allege
facts which would support a conclusion that the prisons are
overcrowded; they fail to allege what inadequacies exist in
hearing procedures: they fail to show in what way the
Classification of inmates is improper; they fail to enunicate the
restrictions placed upon the programs for education, recreation,
and work-release, and show in what way these programs are
inadequate; and finally the Plaintiffs have failed to allege any acts
of the Defendants which would support a finding that prisoners
in solitary are improperly treated or that there is improper
interference with their mail. Instead, the Plaintiffs have boldly
and baldly made conclusory statements insufficient to State a
cause of action under 42 U.S.C_A. 1983.
It is important to note that the case at bar is readily
distinguishable from the class actions brought under Section
1983 in Hague v. CIO, 307 US. 496, 59 S.Ct. 954 (1939), or in
Allee v. Medrano, 416 U.S. 802, 94S.Ct. 2191 (1974), which are
discussed in the recent Supreme Court decision of Rizzo vy.
Goode, 96 S.Ct. 598 (1976). In Medrano and Hague the enjoined
conduct was premised upon a pervasive pattern of intimidation
Or upon deliberate policies of state officials. Only with this
backdrop of a deliberate deprivation of civil and constitutional
rights did the Supreme Court uphold the injunctions in those
cases. More importantly, the Supreme Court Opinion in
Medrano recognized that the complaint in that case Charged such
a single plan. In contrast. the Plaintiffs in the instant case have
alleged no such pattern or deliberate policy implemented by the
Defendants to deprive them of their guaranteed rights. In
summary, it appears to this Court that the Complaint fails to
Properly allege a cause of action under 42 U.S.C.A. 1983, and
therefore the action should be dismissed.
A-26
Although it is not necessary to proceed further, the Court
finds a comment on the relief sought is in order. The Plaintiffs’
“prayer for relief” asks that the injunctive relief previously
enumerated be granted, and that certain standards governing the
North Carolina Department of Correction be set by the Court
and monitored by a Citizens Committee. In short, the Plaintiffs
ask this Court to usurp the power of the North Carolina
Department of Correction and to take under its control and
management the prison system of this sovereign State. This
Court has no authority to follow such a course of conduct, and
would refuse to do so under these circumstances if the power did
exist. This refusal to act is founded and nurtured upon the
principles of equity, comity, and federalism which call for judicial
restraint by the federal courts into matters concerning the
internal affairs of a governmental agency.
Mr. Justice Rehnquist addressed this issue when writing for
the majority in Rizzo v. Goode, supra, when he said:
“When a plaintiff seeks to enjoin the activity of a
government agency, even within a unitary court
system, his case must contend with the well-established
rule that the Government has traditionally been
granted the widest latitude in the ‘dispatch of its own
internal affairs’. . .”
* * *
“ * * * Where an injunction against criminal
proceeding is sought under §1983, ‘the principles of
equity, comity, and federalism’ must nonetheless
restrain a federal court.”
Fee ee ee ee ee
3
3
:
:
ea, Mi hi ee
ae oa ras
“ * * * We think these Principles likewise have
applicability where injunctive relief is sought not
against the judicial branch of the state government, but
against those in charge of an executive branch of an
agency of state or local governments such as
respondents here. . .”
Certainly these statements by the court in Rizzo caution any
federal court to hesitantly employ the extraordinary remedy of
an injunction upon a State agency. It is clear that this remedy is to
be invoked only in a limited fashion and only upon the most
extreme circumstances. In contrast, the Plaintiffs in the instant
case would call for total management of the prison system by the
federal courts. The assumption of this duty would be rivaled only
by the Union occupation of the conquered South. One hundred
years have passed since the latter event, and this Court refuses to
paternalize a state, or its agency, by assuming duties by nature
belonging to that state. Therefore, it is the conclusion of this
Court that the relief sought in this case as pleaded is beyond the
powers of the federal judiciary and violative of the principles of
federalism, comity, and equity.
However, this is not to say that these Plaintiffs do not have
an available avenue for redress, for this decision does not
prejudice their rights to plead their cases individually upon the
peculiar facts of each case. Section 1983 of 42 United States Code
has staunchly protected the civil and constitutional rights of the
prison population, as well as the total citizenry of this country.
This statute protects all citizens from those who abuse authority
purportedly conferred by state law, and provides a right and a
remedy in the federal courts. Tre Plaintiffs. who seek such broad
relief in this Court today, may again come to this forum pleading
the individual facts which support their respective cases. If the
A-28
individual facts are meritorious and support the legal conclusions
pleaded today, then this Court is bound by its office to afford
proper relief. The legal conclusions, such as denial of adequate
medical care, protection from violence, and unlawful censorship
of mail, have been established as grounds for relief under Section
1983. See Procunier v. Martinez, 416 U.S. 396(1974); Woodhous
v. Commonwealth of Virgnia, 487 F.2d 889 (4th Cir. 1973);
Blanks v. Cunningham, 409 F.2d 220 (4th Cir. 1969).
Nevertheless, facts must be pleaded and proven to support these
legal conclusions before relief is available, and certainly this relief
cannot extend to a total usurpation of a state agency.
Therefore, the Court finds that the dismissal of the
Plaintiffs’ Complaint for failure to state a cause of action is in
order. This dismissal is without prejudice to the Plaintiffs, for the
courts remain available to hear future actions they may file which
are properly pleaded and which are supported by factual
allegations. Furthermore, the Court finds that the stated claims
under the North Carolina constitution should also be dismissed.
IT IS, THEREFORE, ORDERED that the Defendants’
Motion to Dismiss be, and the same is hereby granted. The Clerk
is directed to send a copy of this Memorandum and Order to
Plaintiffs’ attorney and to the Attorney General of North
Carolina.
This the 4th day of August, 1976.
/s/ Woodrow W. Jones
Chief Judge
«ete ap Dee
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:
:
}
;
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:
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;
A-29
IN THE
DISTRICT OF THE UNITED STATES
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
Asheville Division
Filed May 10, 1976
Civil No. A-C-76-74
THOMAS BOLDING, ROBERT FINK, SAMUEL
BOST, RAYMOND CREASON, JAMES GRANT
GERALD R. PRICE, PERRY wW. FRANKLIN.
NORMAN ANTHONY, WILBURT CLEMMONS,
JIMMY COVINGTON, ERWIN ZELMS, MARJORIE
H. MARSH, TIMOTHY P. HARDING, WILLIAM R.
McCALL, FRED T. MALICK, GLENN FORD, JODIE
V. AUSTIN, JOHN H. STACKS, CHARLES L.
EDMONDSON, DONALD PERKINS, JIM VICKERS.
ANNE C. WILLETT, GONZALES JONES, ANNE
SHEPPARD TURNER, MICHAEL McSWIGGEN,
SHERMAN JONES, STROTHER HOLDER, JAMES
SAPP and DENNIS COLE, and all others similarly
Situated,
Plaintiffs,
paves me a
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JAMES E. HOLSHOUSER, JR., individually, and in his
official capacity as GOVERNOR OF NORTH
CAROLINA; DAVID L. JONES, individually, and in his
official capacity as SECRETARY OF SOCIAL
REHABILITATION AND CONTROL; RALPH D.
EDWARDS, individually, and in his official capacity as
COMMISSIONER OF THE NORTH CAROLINA
DEPARTMENT OF CORRECTION; JACK SCISM,
individually, and in his official capacity as CHAIRMAN
OF THE NORTH CAROLINA PAROLE
COMMISSION: THE NORTH CAROLINA PAROLE
COMMISSION: THE NORTH CAROLINA
COMMISSION OF CORRECTION: J. RICHARD
SMITH, individually, and in his official capacity as
SUPERINTENDENT OF THE CRAGGY SUBSIDIARY
OF THE NORTH CAROLINA DEPARTMENT OF
-ORRECTION: E.C. WATKINS, individually, and in his
capacity as SUPERINTENDENT OF THE STANLEY
COUNTY SUBSIDIARY OF THE NORTH CAROLINA
DEPARTMENT OF CORRECTION: L. C.
STEPHENSON, individually, and in his official capacity as
SUPERINTENDENT OF THE CALEDONIA FARMS
SUBSIDIARY OF THE NORTH CAROLINA
DEPARTMENT OF CORRECTION: and SAM
GARRISON, individually, and in his capacity as
WARDEN OF CENTRAL PRISON, and FRED
BRIGGS, individually, and in his capacityas CHAIRMAN
OF THE CENTRAL CLASSIFICATION COMMITTEE
OF THE DEPARTMENT OF CORRECTION,
Defendants.
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I.
PRELIMINARY STATEMENT
This action is brought to obtain a Declaratory Judgment
that the North Carolina prison system, as presently administered
and existing, violates the First, Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution, as well as Article
I, Section 27 of the Constitution of North Carolina, as applied to
the inmates therein, because of severe overcrowding, inadequate
administering of hearing procedures, improper classification of
inmates, inadequate and restricted programs for education,
recreation, and work release, improper treatment of prisoners in
solitary, improper interference with the transmittal of prisoner
mail, and other equally significant failings; and this action has the
further aim of obtaining a preliminary and permanent
injunction:
(a) Enjoining the Defendants from accepting any new
prisoners into the North Carolina Prison System until
inmate population is reduced to the point that minimum
Constitutional standards are met.
(b) Requiring that the North Carolina Department of
Correction and Board of Paroles release or parole
sufficient numbers of prisoners to reduce the inmate
population to a level where minimum Constitutional
standards are met.
(c) Enjoining the construction of further prison facilities
until Constitutionally acceptable programs for
education, recreation, work-release, etc., are funded and
developed.
(d) Requiring the Defendants to make available to the
Plaintiffs and others similarly situated basic items and
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facilities necessary for personal hygiene, adequate
medical care, and adequate sanitary food service
conditions, regardless of whether the inmate is in solitary
or regular confinement.
(ec) Requiring the Defendants to develop and implement a
classification plan which will insure the protection of the
Plaintiffs and all others similarly situated from physical
violence and other violations of their rights.
(f) Enjoining the Defendants from censorship of, and other
interference with inmate mail, except to search for
contraband and then only in the presence of the inmate,
and requiring the Defendants to expeditiously deliver
mail addressed to or by prison inmates in accordance
with the United States postal regulations.
(g) Requiring the Defendants to accord the Plaintiffs and all
others similarly situated fundamental due process rights,
including notice and the right to a meaningful hearing,
with respect to all significant actions affecting them.
Il.
JURISDICTION
This is a class action for declaratory and injunctive relief to
redress the deprivation of rights secured to Plaintiffs by the
Constitution of the United States. Jurisdiction of this Court is
invoked pursuant to Title 28 U.S.C. 1343 (3).
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III.
CAUSES OF ACTION
The jurisdiction of this Court is invoked to secure
protection, and to redress deprivation of rights, privileges, and
immunities secured by Title 42 U.S.C. 1983; the First, Sixth, and
Eighth Amendments to the Constitution of the United States: the
due process clause of the Fourteenth Amendment to the
Constitution of the United States; ARTICLE I, Section 17 of the
Constitution of North Carolina; and pursuant to the Declaratory
Judgment Act, 28 U.S.C. 2001 er seq.
IV.
CLASS ACTION
The Plaintiffs bring this action on behalf of themselves.
individually, and as a class action on behalf of all others similarly
situated pursuant to Rule 23 (a) and (b), 2, of the Federal Rules of
Civil Procedure. The class is defined as consisting of all persons
presently confined by the North Carolina Department of
Correction or who may be so confined in the future. Members of
the class on behalf of whom the Plaintiffs sue are in excess of
twelve thousand persons and are so numerous that joinder of all
is impracticable. The questions of law and fact presented by the
named Plaintiffs are common to the class, as are the claims
presented by the class representatives. Also, the representation
provided the named Plaintiffs will adequately protect the
interests of the class as a whole. The Defendants themselves have
acted or refused to act on grounds generally applicable to the
class, thereby making appropriate declaratory and injunctive
relief with respect to the class as a whole.
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Vv.
PARTIES PLAINTIFF
The Plaintiffs are residents of the State of North Carolina
and are inmates at various prison facilities in this state. The
Plaintiffs Raymond Creason, Gerald R. Price, Gonzales Jones,
and Norman Anthony currently are incarcerated in the Craggy
Subsidiary Unit of the North Carolina Department of Correction
near Asheville, North Carolina; the Plaintiffs Robert Fink,
Sherman Jones, Michael McSwiggen, and Jimmy Covington are
presently incarcerated in the Caledonia Farm Subsidiary Unit of
the North Carolina Department of Correction at Tillery, North
Carolina: the Plaintiff Samuel Bost is currently incarcerated at
the Rowan County Subsidiary Unit at Salisbury, North
Carolina: the Plaintiffs Marjorie W. Marsh, Anne Sheppard
Turner, and Ann C. Willett, are currently incarcerated at the
Women’s Correctional Center of the North Carolina
Department of Correction at Raleigh, North Carolina; the
Plaintiff Wilbert Clemmons is currently incarcerated at the
Iredell County Subsidiary Unit in Statesville, North Carolina;
the Plaintiff James E. Grant is currently incarcerated at the
Stanley County Subsidiary Unit at Albemarle, North Carolina;
the Plaintiffs Perry W. Franklin, Dennis Cole, and Strother
Holder are currently incarcerated at the Randolph County
Subsidiary Unit in Asheboro, North Carolina; the Plaintiffs
Donald Perkins and Jim Vickers are currently incarcerated at the
Odom Subsidiary Unit at Jackson, North Carolina; the Plaintiff
Erwin Zelms is currently incarcerated at the Lincoln County
Subsidiary Unit at Lincolnton, North Carolina; that the
Plaintiffs Thomas Bolding, Timothy P. Harding, William R.
McCall. Charles Edmondson, and Glenn Ford are currently
incarcerated at the Central Prison Facility of the North Carolina
Department of Correction in Raleigh, North Carolina; that the
Plaintiff Fred Malick is currently incarcerated at the Guilford
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County Subsidiary Unit No. | ne i i
ant) ' ar High Point, N.C.:
Plaintiffs Jodie V. Austin and John H. Stacks are cua
oe at the Union County Subsidiary Unit at Monroe
orth Carolina; and the Plaintiff James Sapp is currently
incarcerated at the Triangle C i i
meray veer tad g orrectional Center in Raleigh,
, V1.
PARTIES DEFENDANT
The Defendant Holshouser is Governor o
North Carolina and has final authority and oF ag
the prison system of this State; the Defendant David L. Jones is
Secretary of the Department of Social Rehabilitation and
Control, which Department includes the North Carolina
Department of Correction, and he is also Ex-Officio Chairman
of the North Carolina Commission of Correction: the Defendant
Ralph D. Edwards is Director of Prisons and Commissioner of
the Department of Correction and has immediate responsibilit
for the administration and operation of the North Carolina
prison system; the Defendant Jack Scism is Chairman of the
Parole Commission of the State of North Carolina and oversees
the operation of the parole system in this State: the North
Carolina Parole Commission, in addition to Chairman Scism, is
composed of James E. Cline, Grady D. Davis, C. Dempse
McDaniel, and Isabel Holmes, and is the agency making final
decisions on paroles; the North Carolina Commission of
Correction is composed of Johnnie L. Gallemore, Clarence C
Malone, Jr., W. H. S. Burgwyn, Jr., Florence Nelson Crisp
William S. Anderson, Leon Raymond Camp, Robert C. Carroll,
and William T. Graham, and has the responsibility of
establishing policies and procedures for the operation of the
correctional system in this state; the Defendant J. Richard Smith
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is Superintendent of the Craggy Subsidiary Unit of the North
Carolina Department of Correction and has immediate control
over the operation of that facility; the Defendant E. C. Watkins is
Superintendent of the Stanley County Subsidiary Unit of the
North Carolina Department of Correction and has immediate
control over the operation of that unit; the Defendant L. C.
Stephenson is Superintendent of the Caledonia Farm Subsidiary
Unit and has immediate control over the operation of that unit:
the Defendant Sam Garrison is the Warden of Central Prison in
Raleigh and has immediate control over the operation of that
facility; and the Defendant Fred Briggs is Chairman of the
Central Classification Committee of the Department of
Correction.
Vil.
STATEMENT OF CLASS CLAIM
Count One—Overcrowding
A. Defendants, by confining Plaintiffs within facilities
under Defendants’ control, have and continue to subject
Plaintiffs to impermissible indignity because the majority, if not
all, of the prison facilities in the State of North Carolina, as
designed and constructed, violate the evolved standards of
decency upheld, embodied, and protected by this society, in that
they do not provide adequate personal living space for each
individual prisoner.
B. By permitting and causing the prisoner population at
each prison facility to exceed the designed capacity, the
Defendants have subjected Plaintiffs to further degrading and
inhumane deprivations.
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C. The extreme overcrowding and its resultant effects has
created an environment in which the evermounting tensions,
fears, and frustrations prevent, disrupt and destroy normal
human interaction. The Defendants are unwilling or unable to
protect Plaintiffs from the unnatural behavior which results
to-wit:
1. Plaintiffs are victims of and are in constant danger of
violent and deadly attack:
*
2. Plaintiffs are victims of and face the persistent danger of
rape and other sexual attack or molestation:
3. Plaintiffs suffer accumulating psychological damage
from the high level of mental stress and fear.
D. Beyond the suffering caused by overcrowding itself,
overcrowding results in the Plaintiffs being subjected to
additional cruelties including, but not limited to, the following:
|. Defendants are unwilling or unable to provide adequate
educational, recreational, and work-release programs;
2. Defendants cannot, or have refused to. provide sanitary
living conditions;
3. Defendants are unwilling or unable to provide adequate
supplies for meeting basic personal hygiene needs of
Plaintiffs;
4. Defendants do not provide adequate medical,
psychological, and dental care for the Plaintiffs:
5. Defendants have increasingly curtailed visitation rights
of Plaintiffs, due to lack of space which can be used as a
visiting area;
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6. Defendants are unable to operate a functional
classification system which would provide treatment for
those individuals with emotional problems, safety for
prisoners in general population, and means for prisoners
to achieve personal improvement.
Count Two— Mail
A. The Defendants, both intentionally and negligently,
have interfered with the mail of Plaintiffs and others similarly
situated in that they have unreasonably delayed the delivery of
incoming mail and the posting of outgoing mail, and have at
times failed or refused to deliver incoming mail or post outgoing
mail.
B. The Defendants, both intentionally and negligently,
have interfered with Plaintiffs’ mail transmitted to and from their
attorneys. Specifically, Defendants have unreasonably delayed
the delivery of incoming, and the posting of outgoing, attorney -
client mail, at times having failed or refused to deliver or post
such mail. In addition, Defendants have engaged in the
censorship of attorney-client mail and have inspected
attorney-client mail without the prisoner-client being present.
C. Defendants’ actions with regard to the mail of Plaintiffs
and other similarly situated exceed the measures necessary to
insure internal security in the prisons and deprive Plaintiffs of
their rights of free speech, freedom of association, and access to
counsel and the Courts.
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Count Three—Isolation
The Defendants in the past have placed, and continue to
place, Plaintiffs in isolation (the hole) without providing them
with safe and sanitary conditions, to-wit:
1. Plaintiffs’ cells do not meet minimum standards of the
United States Public Health Service;
a Plaintiffs are not provided with three wholesome and
nutritious meals a day;
3. Plaintiffs are not provided with toilet articles necessary to
keep up their own personal hygiene:
4. Plaintiffs are not provided with adequate shower
opportunities necessary to keep up their own personal
hygiene;
5. ai are not provided with clean and sanitary linen;
an
6. Plaintiffs are not provided with adequate exercise and
recreation time outside the cell.
Count Four—Administrative Hearings
The Defendants have failed to provide meaningful hearings
which comport with minimum standards of fairness on matters
determinative of Plaintiffs’ future status, such as parole, transfer
disciplinary action, and prisoner classification.
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Count Five—General Conditions
The Defendants have been guilty of other violations of the
constitutional rights of the Plaintiffs not herein —
alleged, including, but not limited to, the failure to provi :
adequate sanitary food service facilities and nescence
violations, when taken together and in combination with the
conditions and violations alleged in the previous counts, serve “4
further deprive the Plaintiffs of rights conferred upon them ,
the Constitutions of the United States and the State of Nort
Carolina.
Vill.
PRAYER FOR RELIEF
As a result of the conditions existing in the North Carolina
prison system as a whole, and of the actions and inaction “ oe
Defendants, the Plaintiffs and the inmate population as a who ;
have been. and continue to be, subjected to cruel and unusua
punishment in violation of the Eighth Amendment and Article .
Section 27 of the Constitution of North Carolina, deprived Oo
their access to the courts and their access to counsel in violation
of the Sixth Amendment, and deprived of their rights to due
process in violation of the Fourteenth Amendment. The
deprivation of their constitutional rights have rest -
causing, and will continue to cause Plaintiffs and mem ~
their class serious and irreparable injury and harm for whicht 7
have no plain, adequate, or complete remedy or redress other
than a suit for injunctive relief.
WHEREFORE, Plaintiffs pray that this Court:
1. Declare that the minimum living space required for each
inmate by the Eighth and Fourteenth Amendments to the
United States Constitution is eighty (80) square feet.
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2. Declare that conditions in the North Carolina prison
system as a whole do not meet minimum constitutional
standards and that the Defendants have thereby violated
the Plaintiffs’ rights under the Eighth Amendment as
applied to the States through the Fourteenth
Amendment to the United States Constitution.
. That the Defendants have violated Plaintiffs First and
Sixth Amendment rights in their handling of prisoners’
mail, have violated the Eighth Amendment prohibition
against cruel and unusual punishment by permitting the
severe overcrowding now present in the prison system
and by their treatment of prisoners relegated to solitary
confinement and have violated the Fourteenth
Amendment due process clause by their arbitrary and
capricious actions with respect to administrative hearing.
. Enter a preliminary injunction enjoining the Defendants
from accepting new prisoners until the inmate population
is reduced to the point that minimum Constitutional
standards are met for each facility in the North Carolina
prison system.
. Enter a mandatory injunction requiring the Department
of Correction and Board of Paroles of the State of North
Carolina to release or parole sufficient numbers of
prisoners eligible for parole or release to reduce the
inmate population at each facility to a level where
minimum constitutional standards are met.
. Enter a preliminary injunction enjoining Defendants
from the construction of further prison facilities unti!
constitutionally acceptable programs for education,
recreation, and work-release are funded and developed.
7.
10.
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Enter a preliminary and permanent injunction enjoining
the Defendants from censorship of inmates’ mail other
than the search for contraband in their presence and
requiring the Defendants to expeditiously deliver mail
addressed to or by prison inmates in accordance with
United States Postal regulations.
Enter an Order temporarily and permanently enjoining
the Defendants from denying prison inmates’ basic
personal hygiene needs and adequate sanitary food
service, and from denying inmates in solitary
confinement the opportunity to bathe daily, to engage in
adequate exercise daily, to have access to reading and
writing materials, to be supplied with the same personal
hygiene articles, linens, and meals as are provided to the
general inmate population, and to adequate medical,
psychological, and dental care on a regular basis.
_ Enter an Order requiring the Defendants to give inmates
adequate notice of all actions determinative of their
future status and to provide fair and meaningful hearings
in connection with such actions.
Enter a preliminary and permanent injunction enjoining,
during the pendency of this action, the Defendants or
their successors or agents from harassing, punishing or
retaliation in any way against the Plaintiffs for filing this
action, including the transfer of any Plaintiff without his
express consent.
Enter an Order appointing a Citizens C ommittee for the
North Carolina prison system, said Committee to be
compensated by the State of North Carolina and to have
the general responsibility and authority to monitor and
supervise the implementation of the Standards Order
achieved by this Court.
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12. ee ae ;
Retain jurisdiction over this action to insure that the
13.
oe a a — the minimum constitutional
required by this Court’s Order
. . . .
Constitution of the United States, and to Sage
further relief a
s the Court deems ju
the circumstances. Just and proper under
jer» ee be required to pay the Plaintiffs’
y incurred in prosecuting thi
that the Defendants be requi = te Paes
quired to pay t intiffs’
attorneys fees as approved by the » tose —
VAN WINKLE, BUCK, WALL,
ST ANE. HYDE AND DAVIS.
s/ RUSSELL P. BRANNON
18 Church Street
P.O. Box 7376
Asheville, North Carolina 28807
(704) 258-2991
s ALLEN H. WELLONS
Western Carolina Bank Building
Asheville, North Carolina 28801
(704) 252-8226
ATTORNEYS FOR PLAINTIFFS
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Individual cases filed by the Plaintiffs include the following:
Thomas Bolding
bert Fink, Samuel
Ravmond Creason, Tommy Bolding, Ro
Bost v. David L. Jones, No. C-75-429-G (M.D. N.C.,
February 8, 1977), pending appeal, No. 77-1532 (4th —
(Challenging conditions of confinement at the Stanly
County Subsidiary at Albemarle, North Carolina, within
the Middle District of North Carolina.)
Robert Fink
Raymond Creason, Robert Fink, et al. v. Jones, supra.
Fink v. Jones, No. 77-0010-CRT (E.D. N.C.) (Alleges
denial of due process in inmate transfer between units.)
Samuel Bost
Ravmond Creason, Samuel Bost, et al. v. Jones, supra.
Bost v. Watkins, No. C-76-57-G (M.D. N.C., March 3,
1977) (Alleges interference with. mail.)
Raymond Creason
Creason, et al. v. Jones, supra.
Creason v. Board of Paroles, No. 74-78 CRT-5 (E.D.
N.C.. March 22, 1974), aff'd on appeal, No. 75-1534 (4th
Cir.. June 3, 1975) (Alleges denial of parole due to prior
record.)
Creason v. Hunt, No. A-77-29 (W.D.N.C., July 29, 1977)
(Alleges denial of due process in parole consideratron)
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Creason v. Boone, No. C-C-77-10} (W.D. N.C.) (Alleges
denial of right to post conviction transcripts by court
reporter.)
James Grant
James Robert Grant v. D. G. Luther, No. C-C-75-212
(W.D. N.C., May 9, 1977) (Alleges a denial of adequate
dental care. After presentation of evidence. the jury
answered the issues in favor of the Defendants.)
Jimmy Covington
Covington v. Jones, No. 4531-Raleigh (E.D. N.C.. March
27, 1974) (Alleges that maximum security wing of Central
Prison constitutes cruel and unusual punishment; that
disciplinary proceedings were unconstitutional: and that he
was being denied equal protection.)
Covington v. Garrison, No. 74-93-CRT (E.D. N.C.
September 4, 1974) (Alleges that Defendants inspected his
shoes in an unconstitutional manner.)
Covington v. Garrison, No. 74-149-CRT (E.D. N.C.,
December 10, 1974) (Seeking credit for time in custody
pending trial, appeal and while free on parole.)
Covington v. Caudle, No. 74-254-CRT (E.D. N.C...
February 28, 1975) (Alleges denial of due process upon
being placed in administrative segregation. Also alleges that
conditions constitute cruel and unusual punishment.)
Covington v. Turner, No. C-74-347-G (M.D. N.C..
September 15, 1976) (Alleges denial of due process in
transfer and classification proceedings.)
Covington v. Oakes, No. C-74-377-G (M.D. N.C...
September 15, 1976) (Seeks access to a typewriter and xerox
machine.)
A-+46
Covington v. Dixon, No. 75-0091-CRT-5 (E.D. N.C.,
October 12, 1975) (Alleges double jeopardy as a result of
refusal to work, i.e., disciplinary and reclassification
proceedings.)
Covington v. Dixon, No. 75-0163-CRT-5 (E.D. N.C.,
October 20, 1975) (Same allegations as Covington v. Dixon,
No. 75-0091-CRT-S, supra.)
Covington v. Brannon, No. C-75-27-G (M.D. N.C..,
February 3, 1975), aff'd on appeal, No. 75-1309 (4th Cir.,
October 28. 1975) (Civil rights case contesting state court
conviction.)
Covington v. Austin, No. 76-0084-CRT (E.D. N.C., June
24, 1976) (Alleges an illegal search of property.)
State v. Covington, No. 67 CR 11074 (Durham County
Superior Court, September 28, 1976) (Plenary state court
habeas corpus hearing upon allegation of
unconstitutionality of state indeterminate sentence status.
Covington v. Scism, No. 76-199-CRT (E.D. N.C., May 16,
1977) (Alleges a right to release upon completion of
minimum portion of indeterminate sentence. Contentions
similar to those presented in the state court habeas
proceeding, State v. Covington, supra.)
Erwin Zelms
Zelms v. Watkins, No. 317-G-73 (M.D. N.C., August 30,
1974) (Alleges a plethora of contentions concerning
conditions of confinement at the Stanly County Subsidiary
within the jurisdiction of the United States District Court
for the Middle District of North Carolina.)
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Marjorie H. Marsh
Barnes, Marsh, et al. v. Holshouser, N
, . vz , No. 75-0362-CRT
(E.D. N.C., December 4, 1975) (Alleges unconstitutional
conditions of confinement at the North Carolina
Correctional Center for Women at Raleigh within the
jurisdiction of the United States District
Eastern District of North Carolina.) rict Court for the
Wiltiam R. McCall
McCall v. Caldwell, No. A-75-30 (W.D. N.C., April 21
1975) (Alleges violation of right to due process by transfer
from Craggy Correctional Instituti
Subsidiary.) Rnaaee te venmy Coumy
Jodie Vernon Austin
Austin vy. Griffin, No. C-C-76-126(W.D. N.C
, No. .D. N.C., Novembe
24, 1976), affd on appeal, Nos. 76-8422/23 (4th Cir., May
13, 1977) (Civil rights suit for damages against district
attorney, defense counsel and sheriff.)
Austin v. Luther, No. 76-8060 (4th Cir.. J
Austin v. North Carolina, No. 76-8061 (ath a bead 5
1977) (Consolidated appeals affirming District Court denial
of leave to file in forma pauperis. Austin owns land worth
approximately $35,000.)
No. 75-8360, Austin v. Fowler; No. 75-8441, Austin v
United States District Court; No. 75-8442, Austin m
Austin; No. 75-8443, Austin v. United States District
oe No. 76-8063, Jn Re Austin (4th Cir., March 31,
A-48
Austin v. Jones, No. A-C-76-176 (W.D. N.C., December
27, 1976) (Alleges unconstitutionality of conditions at the
Craggy Correctional Institution.)
Charles L. Edmondson
Edmondson v. Jones, No. 76-0i164-CRT (E.D. N.C.,
February 11, 1977) (Alleges unconstitutionality of
conditions of confinement for safekeepers at North
Carolina Central Prison within the jurisdiction of the
United States District Court for the Eastern District of
North Carolina.)
Jim Vickers
Vickers v. Jones, No. C-75-369-G (M.D. N.C., August 8,
1977) (Complains of visiting facilities at Blanch
Correctional Institution within the jurisdiction of the
United States District Court for the Middle District of
North Carolina.)
Vickers v. Jones, No. 76-0119-CRT (E.D. N.C., October
15, 1976) aff'd on appeal, No. 77-1501 (4th Cir., April 21,
1977) (Alleges a refusal to supply more than one set of clean
clothes a week.)
Vickers v. Sanders, No. 76-197-CRT (E.D. N.C., August
16, 1977) (Alleges unconstitutionality of conditions of
confinement at Caledonia Correctional Institution at
Tillery within the jurisdiction of the United States District
Court for the Eastern District of North Carolina.)
Anne C. Willett
Barnes, Willett, et al. v. Holshouser, No. 75-0362-CRT
(E.D. N.C., December 4, 1975) (Alleges unconstitutionality
of conditions at the Correctional Center for Women at
Raleigh within the jurisdiction of the United States District
Court for the Eastern District of North Carolina.)
CERTIFICATE OF SERVICE
I hereby certify that on this 27th day of June, 1978. three
copies of this Petition for Writ of Certiorari were served upon the
following parties via U.S. Priority Mail:
Russell P. Brannon, Esquire
Van Winkle, Buck, Wall, Starnes. Hyde
and Davis, P.A.
i Post Office Box 7376
Asheville, North Carolina 28807
Allen H. Wellons, Esquire
Slawter and Wellons
Post Office Box 7552
Asheville, North Carolina 28807
Respectfully submitted,
JAMES PEELER SMITH
Assistant Attorney General
Ruffin Building
P.O. Box 629
Raleigh, North Carolina
Counsel for Petitioners
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