Opposition — Holshouser v. Bolding

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SUPREME COURT OF THE UNITED STATES

OCTOBER TER’: 1978

NO. 77-1843

JAMES E. HOLSHOUSER, JR., et al.,

Petitioners

Vv.

THOMAS BOLDING, et al.,

Respondents.

RESPONDENT'S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

—-

VAN WINKLE, BUCK, WALL, STARNES,

HYDE & DAVIS, P. A.

By: Russell P. Brannon

Post Office Box 7376

Asheville, North Carolina 28807

Phone: (704) 258-2991

ALLEN H. WELLONS

Post Office Box 7661

Asheville, North Carolina 28807

Counsel for Respondents

a er

INDEX

Page

QUESTIONS PRESENTED l

STATUTES INVOLVED

STATEMENT OF THE CASE AND FACTS

t-

ARGUMENT

Nm

CONCLUSION 6

Sea, ee. Se

Newman vV.

CITATIONS

Alabama, 559 F.2d 283 (5th Cir. 1977) 8

Procunier v. Martinez, 416 U.S. 396 (1974) 8

Procunier v. Navarette, 55 L. Ed. 2d 24 (1978) +

Rizzo v. Goode, 423 U.S. 362 (1976) 7

Swann v. Charlotte-Mecklenburg Board of

Statutes

Education, 402, U.S. 1 (1971) 7,9

Involved:

28 U.S.C.

42 U.S.C.

& 1392 (a) 2,

-

& 1983 2

Page

Cases:

Allee v. Medrano, 416 U.S. 802 (1974) 9

‘Bounds v. Smith, 403 U.S. 817 (1977) 8

Conley v. Gibson, 355 U.S. 41, 46 (1957) 4,7

Cruz v. Beto, 405 U.S. 519, 521 (1972) 4

Estelle v. Gamble, 429 U.S. 97 (1976) 4,5

Hague v. CIO, 307 U.S. 406 (1939)

Haines v. Kerner, 404 U.S. 519, “SZ1 (1972) 4.9

Jones v. North Carolina Prisoner's Labor

Union, 433 U.S. 119 (1977) 7

oO

Miscellaneous:

Federal Rules of Civil Procedure, Rule 8

Rules of the Supreme Court of the United

States, Ruie 19

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1978

NO.

JAMES E. HOLSHOUSER, JR., et al,

Petitioners,

Vv.

THOMAS BOLDING, et al,

Respondents.

QUESTIONS PRESENTED

The Petition misstates the nature and number

Appeals dealt with three issues, the same three raised

the Petitioners herein when they filed this brief

with the Fourth Circuit. Those issues are as follows:

I.

iI.

WHETHER THE COMPLAINT CONTAINS SUFFICIENT

FACTUAL ALLEGATIONS TO STATE A CLAIM UPON

WHICH RELIEF CAN BE GRANTED.

WHETHER THE RELIEF SOUGHT IS WITHIN THE SCOPE

OF A PROPER EXERCISE OF THE DISTRICT COURT'S

JURISDICTION.

Iit. WHETHER THE WESTERN DISTRICT OF NORTH CAROLINA

IS A PROPER VENUE FOR THIS CLASS ACTION.

STATUTES INVOLVED

This case involves 42 U.S.C. § 1983 and 28 '.S.C. §

.1392 in addition to the constitutional provisions

mentioned in the Petition.

STATEMENT OF THE CASE AND FACTS

Petitioner's statement of the case and facts

is substantially correct although the final paragraph

contains a resume of facts which are relevant neither

to the issues for review nor the question of whether

the Court should grant the petition.

ARGUMENT

Rule 19 of this Court's Rules provides that

"review on writ of certiorari is not a matter of

right, but of sound judicial discretion, and will be

granted only where there are special and important

reasons therefor". Subsection (b) of that same rule

‘gives some indication of the types of reasons which

the Court considers “special and important” enough

to justify issuance of the extraordinary writ of

certiorari; and these reasons provide a clear set of

Standards against which a particular court of appeals

decision may be measured. The instant case, when

judged against these standards, does not appear at

this stage to be of such significance as to justify

discretionary review by this Court.

The decision of the Fourth Cizcuit Court of

Appeals did not decide “an important question of federal

law which has not been but should be, settled by this

Court" (Rule 19). Although the Court of Appeals was

constrained to remind the District Court of its duty

anc jurisdictional authority to protect the

constitutional rights of inmates in state prison

systems by whatever mode of relief the proof requires,

the thing actually decided by the Fourth Circuit was that

enough had been alleged in the Complaint to require

some further inquiry into the actual facts. The decision

involved no more than the application of well-settled rules

of pleading to a complaint filed by a group of

prisoners who allege their civil rights have been

violated. This Court has considered many such cases

Since the adoption of the Rules of Civil Procedure in

1938 and has announced and reaffirmed on several

occasions the test to be applied in passing on the

_ sufficiency of the complaints: "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. “Conley v. Gibson, 355 U.S. 41,46 (1957).

See also Cruz v. Beto, 405 U.S. 519, 521 (1972) and Haines

v. Kerner, 404 U.S. 519, 521 (1972). This test is in

accord with the letter of Rule 8 and the spirit of the

rules of pleading have not prevented the district

courts from dismissing prisoners' complaints where

Clearly meritless, nor have the courts of appeals or

this Court refused to affirm such action where justified.

See Estelle v. Gamble 429 U.S. 97 (1976) and Procunier

v. Navarette, 55 L. Ed. 2d 24 (1978). In the instant case

a competent panel of judges reviewed the Complaint,

applied the test established by this Court, and found

the pleading to be sufficient on all but one count.

There being no departure from "the accepted and usual

course of judicial proceedings” (Rule 19) in cases of this

type, no special or important reason appears for reviewing

ee my

rf? ro eres

the decision of the Fourth Circuit Court of Appeals

in this case. The courts below will continue to apply

the well-settled rules of pleading on a case-by-case

basis and this Court will not have departed from its

practice of refusing to take cases merely to reaffirm

settled law.

Not only does there appear to be no signifizant

federal question raised in this case, the granting

of the petition would involve the Court in interlocutory

review of a question which might never be presented if the

case were allowed to proceed on to a consideration of

the merits. Just as it would be meaningless and

inefficient for the Court, burdened as it is with a heavy

caseload, to take this case for review merely to reaffirm

settled law, the interest of judicial economy would be

equally ill-served by the Court's departure from its

normal practice of denying interlocutory review. The

inadvisability of this course of action is discussed by

Mr. Justice Stevens in his dissent in Estelle v. Gamble,

supra, a case similar to this one. Justice Stevens goes

On to say that even "if the Court thought that instead

of a pleading question, the case presented an important

constitutional question .. ., allegations of this

complaint do not provide the kind of factual basis the

Court normally requires as a predicate for the adjudication

of a novel and serious constitutional questions - not

dealing with pleadings but with administration of the

prison system in the State of North Carolina. As Justice

Stevens says,"such questions cannot be dealt with without

an adequate "factual basis", the sort of basis which

can best be tested by a motion for summary judcoment

(as suggested by the Fourth Circuit) or a trial on the

merits.

The only interest that will be served by

the Court's review of this case will be the State's interest

in delaying discovery and trial. While this delay

continues, the overcrowded conditions in North Carolina

prisons about which the Respondents complain, continue

to worsen. In a prison system designed to hold

approximately 10,000 inmates there are now over 14,000

incarcerated. This latter figure represents a dramatic

increase of some 2,000 prisoners since the suit

was filed a little over two years ago. The Court should

not contribute to further worsening of the situation by

Sl tid

granting the Petition and undertaking interlocutory

review of an insignificant and well-settled question

of law.

The Petitioners seek to make this something

more than a simple pleadings question by asserting

that the broad injunctive relief sought in the Complaint

is so violative of principles of federalism and

judicial restraint as to be beyond the authority of the

District Court to grant. They rely upon the recent

decisions of Rizzo v. Goode, 423 U.S. 362 (1976) and

Jones v. North Carolina Prisoner's Labor Union,

433 U.S. 119 (1977). Although the Respondents acknowledge

that this Court in Rizzo cautioned against sweeping

injunctions directed at state officials, it is their

belief that the relief sought in this case would not

be violative of the principles restated in Rizzo.

As the Court of Appeals points out: "Rizzo does not

preclude recourse to broad injunctions when a clear

pattern of unconstitutional conduct has been established".

(A.p.A-10]. In fact, the Court specifically reaffirmed

.in Rizzo the exercise of federal injunctive power in

the case of Swann v. Charlotte-Mecklenburg Board of

Education 402 U.S. 1 (1971), where school board

administrators and board members were found by their

Own conduct in the administration of the school

system to have violated the rights of minority students.

Moreover, the Rizzo decision did not overrule

Procunier v. Martinez, 416 U.S. 396 (1974), where the

Court held:

"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."

416 U.S. at 405-06. This principle was reaffirmed in

Bounds v. Smith, 430 U.S. 817 (1977), decided after

Rizzo, where the Court was presented (by the State of

North Carolina interestingly) with the same argument

that the federal courts should not sit as "co-administrators

of state prisoners" and that the District Court had

"exceeded its powers” in doing so in that case.

The relief sought in this case is no broader than

that sought and granted in the similar case of Newman v.

Alabama, 559 F. 2d 283 (Sth Cir. 1977), cert. den. 46

a

U.S. L. Week 3803 (July 3, 1978). As noted by the

Fourth Circuit, it remains to be seen whether the

Respondents can adduce in this case the proof which

will require such relief. But the decisions of this

Court clearly mandate broad injunctive relief where

the constitutional violations are equally clear.

See Swann v. Charlotte-Mecklenburg Board of Education,

Supra, Hague v. CIO, 307 U.S. 406 (1939); and Allee

v. Medrano, 416 U.S. 802 (1974). Therefore, it appears

that a determination as to the appropriateness of the

relief granted in a particular case should, indeed

must, await the development through proof of the

"factual basis" referred to by Justice Stevens in

his dissent in Estelle v. Gamble, Supra. For it

cannot be said at this juncture that the Respondents

can prove no set of facts in support of their claims which

would entitle them to the relief sought. See Haines

v. Kerner and Conley v. Gibson, supra. It is clear

then that the District Court has the power to effectuate

by injunctive relief the changes in the North Carolina

prison system sought by the Respondents, if the prisoners

meet their burden and prove the constitutional violations

alleged. Just as it was inappropriate for the

District Court to decide that it lacked the "Judicial

power” to grant the relief sought, it would be ill-

advised for this Court to prematurely review, without

an adequate factual basis, the question of whether broad

equitable relief should or should not be granted in this

case.

The question of venue brought forward in the

Petition is meritless in the opinion of the Respondents.

28 U.S.C. & 1392 (a) quite clearly covers the fact

Situation presented here and leaves no room for dispute.

Review of this issue would be pointless and a waste of

the Court's time.

CONCLUSION

It is respectfully submitted that the Petitioners

have wholly failed to sustain their burden of establishing

that there are special and import reasons why the

extraordinary writ should be granted. The ruling

of the Court below did not involve an important question

of federal law which has not been, but should be,

settled by this Court; nor has the Court of Appeals for

the Fourth Circuit decided a federal guestion in a way

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A

to conflict with applicable decisions of this Court

or of another Court of Appeals on the same matter.

The Court of Appeals correctly reversed the District

Court and correctly applied well-settled law in so

doing. There is no issue of significance to be reviewed

by this Court.

By:

Respectfully Submitted,

VAN WINKLE, BUCK, WALL, STARNES,

HYDE & DAVIS, P.A.

Russell P. Brannon

Post Office Box 7376

Asheville, North Carolina 28807

Telephone: 704/258-2991

ALLEN H. WELLONS

Attorneys for Plaintiffs

CERTIFICATE OF SERVICE

I hereby certify that on this ~ $day of August,

1978, three copies of this Brief were served upon Jacob L.

Safron, Special Deputy Attorney General, and James Peeler

‘Smith, Assistant Attorney General, by mailing copies therof,

postage prepaid, to the Office of th Attorney General of

North Carolina, Post Office Box 629, Raleigh, North Carolina

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27602. -

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TALLEN H. WELLONS —

Attorney for Respondents