Petition — Leeke v. Timmerman

Oftice-Supreme Court, U.S.

Yr 2. EoD

80-2077

NO. 81 — arattodicce

ALEXANDER L. STEVAS,

In The Supreme Court-—

of the United States

OCTOBER TERM [980

WILLIAM LEEKE, individually and in his official capacity as

Director of the South Carolina Department of Corrections; PETER

THEM, individually and in his official capacity as legal advisor to

the South Carolina Department of Corrections,

Petitioners,

VS.

MELVIN LEE TIMMERMAN, and ROBERT THOMAS, in-

dividually and on behalf of all others similarly situated,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DaniEL R. McLeop

Attorney General

C. TOLBERT GOOLsBY, JR.

Deputy Attorney General

EpwIn E. Evans

Assistant Attorney General

RoBert D. Cook

Assistant Attorney General

LarRY C. BATSON

General Counsel of the South Carolina

Department of Corrections

Post Office Box 11549

Columbia, SC 29211

(803) 758-2081

ATTORNEYS FOR PETITIONERS

I.

QUESTIONS PRESENTED FOR REVIEW

1. Whether respondents as prison inmates have a

constitutional right of access to the criminal courts of

South Carolina to seek from a magistrate arrest warrants

charging prison guards with criminal conduct.

2. Whether in 1973, it was clearly established that

respondents had a constitutional right of access to the

criminal courts of South Carolina to seek from a

magistrate arrest warrants charging prison guards with

criminal conduct, and that petitioners Leeke and Them

knew or should have known of this right.

3. Whether respondents as prison inmates have

private rights or interests in the criminal prosecution of

prison guards sufficient to give them standing to sue for

enforcement of these rights.

4. Whether the state’s prosecuting attorney’s request

to the Magistrate that pursuant to his prosecution policy

cross-warrants should not issue against prison guards

until an investigation by the South Carolina Law

Enforcement Division could be conducted unconstitu-

tionally interfered with respondents’ right to seek arrest

warrants.

5. Whether petitioner Leeke’s acquiescence in the

face of knowledge that actions had been taken by others

to deny respondents their right to seek criminal arrest

warrants is sufficient basis to impose upon him monetary

liability pursuant to 42 U.S.C. 1983.

6. Whether the solicitors prosecution policy that

cross-warrants sought by respondents should not issue

against prison guards until an investigation by the South

Carolina Law Enforcement Division could be conducted,

unconstitutionally denied respondents equal access to the

courts.

Il.

TABLE OF CONTENTS AND OF AUTHORITIES

Page

Questions Presented for Review .............. i

Table of Contents and of Authorities ......... ii

I Ea awaiee-ck veh en idvdsctovsecet’s I

Dee dk 64 SUN s 0 b0 ee ci ved ceueewed see I

Constitutional and Statutory

PUNE PUOIUUE Ab ccccccncaddcdenecedes 2

OG ED OD Wiis cwcncascdsccevndeses 2

Se COU WON, ches a tccvcsnaeecue 6

ED ie ku bug esidulscccesuseuésabaavuect 19

Appendix A: Opinion of the Court of Appeals 22

Appendix B: Opinion of the District Court .. 25

Appendix C: Judgment of the District Court . 42

Appendix D: Order of the District Court .... 45

Appendix E: Opinion of the Court of Appeals 47

Appendix F: Judgment of the Court of Appeals 58

Appendix G: Order of the Court of Appeals . 60

AUTHORITIES

Cases: Page

Boddie v. Connecticut, 410 U.S. 371 (1971) .. 7, 17

Bordenkircher v. Hayes, 434 U.S. 357 (1978) .... 18

Bounds v. Smith, 430 U.S. 817 (1977) ... 7, 16, 19

Dixon v. Md., 261 F.Supp. 746 (D.Md. 1966) .. II

Funn v. Winston, 612 F.2d 880 (4th Cir. 1980) . 18

Imbler v. Pachtman, 424 U.S. 409 (1976) ....... 13

Inmates of Attica v. Rockefeller, 477 F.2d

IS Me Maes CODTED cp vctadesccec cwgnsneste 19

Johnson v. Avery, 393 U.S. 483 (#969) ......... 16

Lane v. Correll, 434 F.2d 598 (Sth Cir. 1970) .. 17

Linda R. S. v. Richard D., 410 U.S.

O06 USTED és cas ckpane 7, §a> Os fee ee Fl 1

Moses v. Kennedy, 219 F.Supp. 762 (D.D.C.

SN Culacidieacveeseewbetiseedscenatatwnten 19

O’Bannon v. Town Court Nursing Center,

Ue CA ee CRO Thweh ci s'cccveccabedeceds 14

Oyler v. Boles, 368 U.S. 448 (1962) ............ 18

People v. Brim, 199 N.Y.S.2d 744 .....ceeeeees 14

People v. Muka, 440 F.Supp. 33 (N.D.N.Y.

Ee Vikobed tia een bbe bcddeabesus 11, 15, 19

Petition of Piscanio, (Pa.) 344 A.2d 658 ........ 12

Procunier v. Martinez, 416 U.S. 396 (1974) ..... 16

Procunier v. Navarette, 434 U.S. 555 (1978) . 8, 18

Rizzo v. Goode, 423 U.S. 362 (1976) ........ 8, 19

Simon v. Eastern Ky. Welfare Rights

Organization, 426 U.S. 26 (1976) ............ 13

State v. Addis, 257 S.C. 482, 186 S.E.2d 415 ... 10

State v. Addison, 2 S.C. 356 ........ 9, 14, 15, 19

State v. Howard, 15 Rich. [S.C.] 274 ......... 15

Cases: Page

ete Ve Om: 250 Tee AS av ce cccee votes 15

State ex rel. Wild v. Otis, 251 N.W.2d 361

cert. den., 434 U.S. 1003 (1978) ............. 7

Terry v. Onto, F932 U.S. 1 (19GB) cncccscccccecs 15

Timmerman v. Brown, 528 F.2d 811 (4th

Ra EE EL vn eOad dace ceakbnewss neared 39

United States v. Bryson, 434 F.Supp. 986

CU SR URTEE Snake cee coc cect bshecscoues 11

United States v. Kras, 409 U.S. 434 (1973) . 17, 19

United States v. Panza, 381 F.Supp. 1133

CU SEUEN ebed ow nasenctengnicevectavan 11

United States el rel. Pope v. Bruckno, 330

Pa THe Cte AUTE) ccccse de Wabns dines 11

United States ex rel. Savage v. Arnold, 403

PN UTE AERP TOTO) cdbc eden tercerens 11

Whitley v. Commonwealth, (Mass.) 339

PRE Sia de beds ieee heedenebooee 15, 19

Wolff v. McDonnell, 418 U.S. 539 (1974) ...... 17

Wood v. Strickland, 420 U.S. 308 (1975) ....... 18

United States Constitution

es Se in. cc cvev sbeebs wewae 0% 2

Statutes

United States Code

BE , SEE. Cataivreccscawetenenieveses l

ES, NE es ik be ie eae sees 2

RP A | BRR eee a ae ee TT,

ll: MEMS, TGRD cv saiWonccccamesetoccnsescacs 2

MICHIGAN COMPILED LAWS

MUNOTATED GRUB icc cicvcvcvcavecececetvcs 12

MINNESOTA STATUTES ANNOTATED

Title 49, R.Cr.P. 2.02 ........ cedewertebiees 12

-iv-

Cases: Page

NEBRASKA REVISED STATUTES

GIOMOE occ cccccciecbeccecccccncnesiesecense 12

PENNSYLVANIA RULES CRIMINAL

PROCEDURE Rule 133(B) R.Crim.P. ....... 12

SOUTH CAROLINA CODE OF LAWS (1976,

Gs ambnded) $IT=1s10 ..ccccccvccccccsccccces 10

SOUTH DAKOTA CODIFIED LAWS

ANNOTATED Q23A6Era | 0. cccecvtvccvvcsveces 12

VERMONT RULES OF CRIMINAL

PROCEDURE Rule 4 Rules Criminal

PUNE |... ccdarcasmnnésscbbeowaanestelae 12

WASHINGTON Title 10 App.J.Cr. Rules 2.01 .. 12

WISCONSIN STATUTES ANNOTATED

OOOBAE . s.icccasucecds ehh gunvandaeane 12

MISCELLANEOUS

AMERICAN BAR ASSOCIATION’S PROJECT

ON TITLE STANDARDS FOR CRIMINAL

JUSTICE, Standards Relating to the prosecu-

tion Function and the Defense Function, com-

ment to §3.4 (Approved Draft, 1971) ........ 10

Lafave, Arrest — The Decision to take a Suspect

Reto Comtody, G0. FRTS cccccvecicecceguasuen II

-V-

Ill.

OPINIONS BELOW

The order of the United States Court of Appeals for

the Fourth Circuit denying petition for rehearing and

refusing suggestion for rehearing en banc, filed March 11,

1981, is unreported and is appended hereto at 59.

The opinion of the United States Court of Appeals for

the Fourth Circuit affirming the decision of the United

States District Court for the District of South Carolina,

filed December 30, 1980, is unreported and is appended

hereto at 21.

The order of the United States District Court for the

District of South Carolina denying petitioners’ motion for

reconsideration entered October 23, 1979, is unreported

and is appended hereto at 44.

The opinion of the United States District Court for

the District of South Carolina awarding respondents’

monetary relief, filed September 28, 1978, is unpublished

and appended hereto at 24.

The opinion of the United States Court of Appeals for

the Fourth Circuit reversing the decision of the district

court is reported at 528 F.2d 811 (4th Cir. 1975) and

is appended hereto at 46.

IV.

JURISDICTION

The opinion of the United States Court of Appeals for

the Fourth Circuit was filed December 30, 1980. By order

filed March 11, 1981, petition for rehearing and

suggestion for rehearing en banc was denied.

This Court has jurisdiction to review the opinion

rendered below pursuant to the provisions of 28 U.S.C.

§1254(1).

V.

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

Section | of Amendment XIV of the United States

Constitution:

All persons born or naturalized in the United States

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the state

wherein they reside. No state shall make or enforce

any law which shall abridge the privileges or

immunities of citizens of the United States; nor

shall any state deprive any person of life, liberty,

or property, without due process of law; nor deny

to any person within its jurisdiction the equal

protection of the laws.

Section 42 U.S.C. 1983:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory, subjects, or causes to be

subjected, any citizen of the United States or other

person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be

liable to the party injured in an action at law, suit

in equity, or other proper proceeding for redress.

Vi.

STATEMENT OF THE CASE

This suit arose pursuant to 42 U.S.C. §§1983 and

1985, with jurisdiction founded upon 28 U.S.C. 1343.

On April 9, 1974, respondents commenced a civil

action in the District Court for the District of South

Carolina. Petitioners William Leeke, Commissioner of the

State Department of Corrections, and Peter Them, who is

presently an attorney in private practice but at the time of

the incident employed by the Department of Corrections

and was not licensed as an attorney, were named

defendants in respondents’ action. Additional defendants

included prison guards and officials, Magistrate Franchot

Brown, and John Foard, the former prosecuting attorney

for Richland County, South Carolina.'

The respondents sought injunctive relief, including an

order enjoining pending state court criminal prosecutions

of respondents, and an order enjoining all named

defendants [except Magistrate Brown] from interfering

with the issuance or non-issuance of arrest warrants

sought by respondents. Additionally, respondents sought

a declaration that the policy of the solicitor with reference

to the issuance of criminal warrants sought by inmates

violated the Fourteenth Amendment of the United States

Constitution. Finally, respondents requested an award of

monetary damages.

On April 18, 1974, Magistrate Brown and then

Solicitor Foard moved the district court for dismissal on

the basis of judicial and prosecutorial immunity re-

spectively. The district court granted the motion in an

order dated July 15, 1974. Appeal was taken and the

United States Court of Appeals for the Fourth Circuit, in

an opinion dated December 18, 1975, reversed and

remanded for further proceedings consistent with its

opinion. Timmerman v. Brown, 528 F.2d 811 (4th Cir.

1975).

'Petitioners were sole appellants in the appeal to the Fourth Circuit

Court of Appeals which resulted in that Court's unpublished opinion

entered December 30, 1980. All other respondents were dismissed by

the district court in its unpublished opinion entered September 28,

1978 and are not parties to this petition.

a%

On May 5, 1976, the district court temporarily

enjoined the state of South Carolina from prosecuting

respondents. The district court conducted hearings on

May 20 and May 25, 1976, on whether the state should be

enjoined from prosecuting respondents. The court

determined that the prosecution of respondents could

proceed.2 During the course of the hearings on the

injunction, the court found that petitioners had interfered

with respondents’ right to seek criminal arrest warrants.

On June 2, 1976, the court heard testimony on the issue

of damages.

The district court issued its final order filed September

28, 1978, awarding monetary relief to respondents against

petitioners in the amount of $3,000 and an additional

award against petitioner Them for $1,000 in punitive

damages. All other defendants were dismissed from the

suit.

The district court found that a melee occurred at

Central Correctional Institute in Columbia, South

Carolina in August, 1973, involving prison guards and

inmates. As a result respondents contacted Magistrate

Brown to procure arrest warrants against certain guards.

The court found that petitioner Them met with

Richland County Sheriff Frank Powell, Deputy Attorney

General J. C. Coleman, and Solicitor Foard, each of

whom suggested possible courses of action available to

stop the criminal prosecutions of the guards. Solicitor

Foard wrote a letter to Magistrate Brown requesting that

criminal warrants not issue until an investigation by the

South Carolina Law Enforcement Division could be

conducted and stating the solicitor’s policy on prosecution

of cross-warrants by inmates.

2Respondent Timmerman was found not guilty and respondent

Thomas was convicted on two counts of assault and battery.

The court further found that petitioner Leeke did not

participate in the meetings with law enforcement officials,

did not authorize the meetings and was unaware of the

activity until the events had already taken place. The

court, however, found that Leeke had supervisory control

over petitioner Them. Leeke, it was found, relied heavily

upon the Solicitor’s Office and the Attorney General's

Office for legal advice.

The district court concluded that there existed a

clearly established constitutional right of access to the

courts to seek arrest warrants in 1973, and that Solicitor

Foard’s letter to Magistrate Brown interfered with that

right. The court concluded that petitioners knew or

should have known of this clearly established constitu-

tional right in 1973, and that their conduct interfered with

respondents’ exercise of that right. The court further

concluded that Them acted with a “malicious intention”,

defining the phrase as “simply intending to deprive

someone of his rights.” Leeke’s conduct was described as

that of “acquiescence”.

A motion to reopen or amend the judgment was filed

in the district court by petitioners, and was denied by

order of the court dated October 23, 1979. Petitioners

appealed the district court’s order to the United States

Court of Appeals for the Fourth Circuit. In a per curiam

opinion, entered December 30, 1980, and unpublished, a

three judge panel of that court affirmed the district court’s

decision for “. . . reasons adequately stated by the district

court.”

Petition for rehearing and suggestion for rehearing en

banc was filed with the Fourth Circuit by petitioners.

The three judge panel denied the petition without poll of

the court in an order entered March 11, 1981, and

unreported.

-5-

Vil.

REASONS FOR GRANTING WRIT

In this decision, the court of appeals has effectively

declared unconstitutional the widespread practice em-

ployed by the federal government and numerous states

with respect to criminal prosecutions — that of permitting

the jurisdiction’s prosecuting authority to provide input

into the important prosecution decision whether an arrest

warrant should be issued. Such a ruling undermines this

Court’s clearly defined and limited decisions concerning

the constitutional right of “access to the courts”. By

employing these decisions in a completely inappropriate

setting, the court of appeals has created an entirely new

constitutional right, certainly never before suggested by

this Court — the private citizen’s “right” of “access to the

courts” to seek an arrest warrant against another

individual. The impact of the Fourth Circuit’s ruling upon

the effective operation of federal and state criminal

systems and the decisions of this Court is enormous.’

Thus, the writ of certiorari should be granted so that the

constitutional questions presented herein may be settled

by this Court.

First, the decision involves a question of paramount

constitutional significance to an effective system of

criminal prosecution in this country. If allowed to stand,

the decision would undoubtedly jeopardize a_ basic

objective of nearly all American criminal law systems,

including that of the federal government — the placement

of control over criminal prosecutions under governmental

authority. Virtually every jurisdiction has determined it

3While the monetary judgment was assessed against petitioners, the

unconstitutional conduct found by the court was the prosecuting

attorney's request to the magistrate that the warrants not issue pending

investigation.

vital to an effective system of criminal prosecution that

there be a single prosecuting authority acting on behalf of

the government and under governmental control. A

number of states, as well as the federal government, now

affirmatively require the government's prosecuting au-

thority, not the private citizen, to control the prosecution

from the very outset, by determining which criminal

complaints may be filed with the magistrate. Many others

do not prohibit the public prosecutor’s having input in the

decision. Now, simply by constitutional fiat, and in the

name of “access to the courts” the Fourth Circuit has

attempted to substitute its own views and return control

over criminal prosecutions to private citizens, where

certainly the potential for abuse and chaos is great. State

ex rel. Wild v. Otis, 251 N.W.2d 361, cert. den., 434 U.S.

1003 (1978).

Secondly, the ruling below is in sharp conflict with the

applicable decisions of this Court. It undermines, if it

does not completely eliminate, this Court’s holding in

Lit. da R. S. v. Richard D., 410 U.S. 614, as it applies to

the arrest stage of prosecution. Moreover, the ruling

extends both the Boddie v. Connecticut, 410 U.S. 371

(1971), and Bounds v. Smith, 430 U.S. 8*” 1977), lines of

cases involving access to the cour’ . .ae area of an

individual’s seeking a criminz’ , -vsecution, a setting

which is entirely inapproprizte for the existence of

private, much less constitutional rights. Moreover, this

court has never even suggested that the constitutional

right of access to the courts might be applicable in this

area.

Thirdly, this decision severely undermines this Court’s

decisions in the area of personal liability of public

officials under 42 U.S.C. §1983. By imposing monetary

damages, the burden of the Fourth Circuit’s creation of

this heretofore unarticulated and sweeping constitutional

right is placed upon public officials who had no basis

whatever for knowing of the existence of such a

x %

constitutional right of access to the courts to seek an

arrest warrant. Thus, this Court’s standard of good faith

immunity under §1983, as articulated in Procunier v.

Navarette, 434 U.S. 555 (1978), has been eviscerated and

a new standard of absolute liability substituted. More-

over, the Court's conclusion that a mere “improper

acquiescence” to what it deemed an unconstitutional plan

of activity which “could have been aborted” is precisely

the type of personal liability against public officials which

this Court sought to preclude in Rizzo v. Goode, 423 U.S.

362 (1976).

A.

The Decision of the Court of Appeals Severely

Undermines the Prosecution Policies of Numerous

Jurisdictions Throughout the United States.

The Fourth Circuit has in effect now told the states

and the federal government that they are constitutionally

prohibited from allowing their prosecuting authorities a

voice in the decision whether a prosecution goes forward

at the complaint or arrest warrant stage. Under this

decision, the public prosecutor is now precluded from

suggesting, recommending, requesting, or determining that

the magistrate not file a criminal complaint or issue an

arrest warrant sought by a private complainant. Regard-

less of how well founded the policy reasons underlying the

prosecutor's judgment, his mere request to the magistrate

that a warrant not be issued would constitute an

“interference” with the complainant’s constitutional right

of “access to the courts.” If the Court allows such a

holding to stand, it would abolish the well conceived

policy of prosecution observed by most states and by the

federal government. These jurisdictions have properly

concluded, as part of the basic principle that private

citizens possess no individual “rights” in criminal

prosecutions, it is appropriate for the jurisdiction's

prosecuting authority to possess a voice in what criminal

complaints are filed and which of those complaints result

in the issuance of arrest warrants.‘

‘South Carolina is no exception. To petitioners’ knowledge, there

exists no provision of South Carolina law, statutory or otherwise,

which prohibits the solicitor, South Carolina’s prosecuting officer,

from recommending to the magistrate that an arrest warrant not issue.

In fact, State v. Addison, 2 S.C. 356, 363-4, strongly indicates

otherwise. There, the South Carolina Supreme Court stated:

The State is the party to the record charging an offense com-

mitted against its “peace and dignity.” As it represents the

whole people within its territorial limits, in point of fact, each

one of them is, more or less, as citizens interested in the

issue. In every department of the Government, however, proper

persons are by law delegated to represent it. Solicitors are

elected and assigned to the several circuits, whose duty it is to

prosecute for violation of the public law, with a general

supervision over all matters appertaining to this branch of the

judicial department. The whole control of the management of

all criminal cases is given to them and especially the prosecu-

tion for crime, and misdemeanors. If every citizen of the State

. . Can assume to interfere with the prosecution in the hands

of the Solicitor, it would be impossible to preserve and secure

that adherence to form and regularity so necessary and proper

in all legal proceedings . . . [I]s it likely that the interest of the

State would be promoted by a conflict of opinion between

{the Solicitor and private “prosecutor”] in which the Solicitor

is to be made to yield to the [private] prosecutor?

It is the recognized practice in South Carolina that the magistrate

receive the solicitor’s assistance in investigation or his views regarding

whether the issuance of an arrest warrant would constitute a futile act

in terms of the solicitor’s prosecution policy.

In Timmerman v. Brown, 528 F.2d 811, (4th Cir. 1975), at fn. 2,

the Court noted that in South Carolina, a solicitor may not prevent a

magistrate from issuing an arrest warrant. This thought was attributed

to a concession made by counsel. However, the court's conclusion

erroncously portrays South Carolina’s warrant procedure which, as a

matter of law, cannot be conceded. Petitioners later explained

this misconception concerning South Carolina law to the Fourth

Circuit panel at oral argument of that case presently before this Court.

In any event, the district court did not consider or attempt to discern

state criminal procedure in its final decision of September 28, 1978,

nor was it considered by the Fourth Circuit in its opinion of December

30, 1980. Counsel fully believes the correct status of South Carolina

i

The importance of and necessity for this policy has

been effectively stated in the American Bar Association’s

Project on the Standards for Criminal Justice, Standards

Relating to the Prosecution Function and the Defense

Function, comment to §3.4 (Approved Draft, 1971).

There, it was noted that:

Whatever may have been feasible under conditions of

the past, modern conditions require that the authority

to commence criminal proceedings be vested in a

professional, trained, responsible public official.

Under the heaaing “Citizen Complaints”, the comments

further observe:

There are sound reasons of general policy for the joint

screening of cases by both the prosecutor and the

magistrate. The prosecutor brings trial perspective of

his public responsibility to bear on the decision . . .

Where a magistrate has power to issue a warrant on

the complaint of a citizen, it is desirable that a public

prosecutor either endorse his approval or be afforded

a means of recording his reasons for declining

prosecution.

The A.B.A. study concludes that:

Closely related to this is the question of what role the

prosecutor should have in the issurance of arrest

warrants. Some jurisdictions by statute require the

approval of the prosecutor before an arrest warrant

may issue . . . It is established federal practice to

secure the approval of the United States Attorney

before application is made for a warrant . . . In the

view of the Advisory Committee the approval or

endorsement of the prosecutor should be obtained

unless it’s not feasible to do so. Generally, circum-

stances which permit an application for an arrest

Footnote 4 (continued)

law to be as stated in the preceeding paragraph of this note. See also,

Code of Laws of South Carolina, §17-1-10 (1976, as amended); State

v. Addis, 257 S.C. 482, 487, 186 S.E.2d 401 [The Solicitor “must and

does have full control of the state's case”.]

-10-

warrant to be made will also permit time to consult

with the prosecutor and to obtain his approval.

See also, Latave, Arrest: The Decision to Take a Suspect

Into Custody, at 34-35.

This policy is widely recognized and approved in the

United States. For example, in U.S. ex rel. Savage v.

Arnold, 403 F. Supp. 122 (E.D. Pa. 1975), the court relied

upon Professor Moore’s earlier interpretation of Rule 3 of

the Federal Rules of Criminal Procedure, in holding that

a prisoner possessed no “right” to file a criminal

complaint.

Although a private citizen is not barred by the Rules

from instituting a complaint before the magistrate he

may not do so as a matter of right... .

The broader issue which this presents is the scope of

the government’s control over the prosecution of

crime.

Supra, at 174. Similarly, in People v. Muka, 440

F. Supp. 33, 37 (iv.D. N.Y. 1977), the court succinctly

stated:

What defendant Muka seems to misapprehend is that

a criminal prosecution is brought on behalf of the

United States as whole, rather than to vindicate

private rights, a purpose better suited by the bringing

of a civil action.

See also, United States v. Panza, 381 F. Supp. 1133

(W.D. Pa. 1974); Dixon v. Md., 261 F. Supp. 746

(D. Md. 1966); U.S. v. Bryson, 434 F. Supp. 986 (W.D.

Okla. 1977); United States ex rel. Pope v. Bruckno, 330

F. Supp. 793 (E.D. Pa. 1971). Just as the A.B.A. study,

none of these numerous federal decisions so much as

hinted that this legitimate prosecutorial “interference”

posed any constitutional problem whatever.

Likewise, many states have seen fit to adopt some

form of the federal model.’ Wisconsin law, a notable

example, provides that “[a] complaint is issued when it is

approved for filing by the district attorney.” See, §968.02

WIS.STAT.ANN. The comments to this Wisconsin

provision state that

[t]his is a change from the present law designed to give

the district attorney a greater voice in the initiation of

criminal proceedings. Since his is the obligation of

conducting the prosecution, it is believed that he

should have a voice in the screening out of

unfounded complaints and in determining if there was

sufficient evidence to warrant a prosecution.

In Petition of Piscanio, Pa., 344 A.2d 658, the

constitutionality of the Pennsylvania rule of criminal

procedure, which allowed the district attorney to

approve the filing of criminal complaints, was attacked.

The plaintiff contended he was entitled to a hearing

“before the court to support his motion for reinstatement

of the complaints.” Said the court,

In this circumstance, no hearing should be available as

there is no dispute between the private and public

prosecutor and the complainant does not risk the loss of

any rights. In bringing his own complaint, he is calling

the attention of the attorney for the Commonwealth

to an alleged violation of the law, a public wrong

done to the people of the Commonwealth. If he fails

to convince the public prosecutor in his capacity as

representative of the people, or the court . . . to

redress what he conceives to be a violation of the law,

he has lost nothing.

Supra at 661, n. 5. The court concluded that as private

‘See e.g.. Wash.: West's R C W A Title 10 App.J.Cr. Rule 2.01;

Neb.: NEB.REV.STAT. §29-404; S.D.: S.D. CODIFIED LAWS

ANN. §23A-2-2; Wis.: WIS.STAT.ANN. §968.02; Vt: Rule 4

V.R.Cr.P.; Pa.: Rule 133(B) Pa. R.Crim.P.; Ohio: OHIO REV. CODE

ANN. §2935.10; Minn.: 49 MINN.STAT. ANN. R.Cr.P. 2.02; Mich.:

MICH. COMP. LAWS ANN. §813.

-}2-

“prosecutor,” the citizen, “even as a victim . . . has no

legitimate interest other than as a member of the general

public in seeing a violator of the laws brought to justice

by the Commonwealth and punished for his misdeeds.”

Supra.

This Court has already emphasized its complete

concurrence with this view in Linda R. S. v. Richard D.,

410 U.S. 614 (1973). There, the mother of an illegitimate

child contended that interpretation of a criminal support

statute as applicable only to fathers of legitimate children

violated the Equal Protection Clause. She sought to

enjoin the state prosecutor to enforce the statute against

the father of her child.

The Court concluded that the mother possessed no

standing to seek prosecution. The plaintiffs failure to

secure support payments had not resulted from the

nonenforcement of the criminal statute. All that was

assured by enforcement was the “jailing of the child's

father.” Any individual benefit to the mother was “only

speculative.” Supra at 618.

Significantly, the Court concluded that the very nature

of the criminal system dictated this result. Private relief or

satisfaction was inherently foreclosed, unlike the civil

contempt situation where incarceration might provide

direct monetary benefit to the plaintiff. Concluded the

Court,

in American jurisprudence at least, a private citizen

lacks a judicially cognizable interest in the prosecution

or nonprosecution of another.

Supra, at 619. See also, Imbler v. Pachtman, 424 U.S.

409, 438, (White J. concurring) [“There is no one to sue

the prosecutor for an erroneous decision not to

prosecute.”}]; Simon v. Eastern Kentucky Welfare Rights

Org., 426 U.S. 26, 37 (1976) [“exercise of prosecutorial

discretion cannot be challenged by one who is himself

neither prosecuted nor threatened with prosecution.”]

st}.

The present situation is no different from Linda R. S.

Issuance of arrest warrants at respondents’ behest against

Central Correctional Institute guards certainly does not

serve to vindicate respondents’ private interests. To

imagine vindication of these interests merely because the

guards are arrested is to increase tenfold the type of

speculation which Linda R. S. sought to preclude and

which Article III prohibits.

South Carolina law is identical to Linda R. S. The

South Carolina Supreme Court in State v. Addison, 2

S.C. 356, supra, at 364 stated that

save for the just and proper vindication of the law, no

one has an interest in the conviction of [another].

Although as in the federal system, individuals are

permitted to file criminal complaints in South Carolina,

no provision of South Carolina law vests any “rights” in

the private citizen at any stage of the prosecution, from

the filing of the complaint seeking an arrest warrant to

final conviction. In South Carolina, the citizen simply

has no individual interest in the seeking or issuance of an

arrest warrant except as a citizen and as a witness. State

v. Addison, supra.®

It is well recognized that a private citizen possesses no greater

status than that of a mere witness af any stage of a criminal

prosecution. People v. Brim, 199 N.Y.S.2d 744. This Court, in another

context, only recently observed that “[t}he fact that a person may be

an important, or even critical, witness does not, however, give him a

constitutional right to testify.” O'Bannon v. Town Court Nursing

Center, 441 U.S. 904, 65 L.Ed.2d 506, 517, N.15 (1980). The Fourth

Circuit completely ignored this language in the O'Bannon case and

held in effect that in a criminal prosecution, a constitutional right to be

a witness does exist and may not be interfered with. It is unclear

why O'Bannon may be ignored in the context of criminal procedings.

especially when, as shown, the criminal process vests no private

“rights”. Linda R. S. v. Richard D., supra.

-14-

Yet, the Fourth District has attempted to escape the

holding of Linda R. S. and its South Carolina

counterpart, State v. Addison, by artificially segregating

the various stages of prosecution. The Court sought to

distinguish Linda R. S. merely by saying that “the district

court did not hold that the solicitor was obliged to

prosecute the warrants.” [emphasis added].

Such a segregation is meaningless, and there is no

support for it either in Linda R. S. or in South Carolina

law. In South Carolina, where an arrest warrant is

sought, the initiation of the prosecution occurs at the time

the complaint is made before the magistrate. State v.

Addison, supra, at 361; State v. Howard, 15 Rich. [S.C.]

282. See also, Terry v. Ohio, 392 U.S. 1, 26 (1968) [“an

arrest is the initial state of a criminal prosecution.”]; State

v. Olson, 250 N.W.2d 12, 17 [the criminal complaint is the

“first step of many steps in a criminal prosecution.”];

People v. Muka, supra [no right to file a criminal

complaint, because “private citizen has no right to

prosecute a federal crime.”] Certainly, the Court in

Whitley v. Commonwealth, Mass., 339 N.E.2d 890,

perceived no such distinction between arrest warrants and

prosecutions in applying Linda R. S. to the arrest stage.

The only legitimate purpose in seeking an arrest warrant

is the criminal prosecution of an individual. Thus, the

Court of Appeals’ characterization of the seeking of an

arrest warrant and “prosecution” as different processes

for purposes of determining the applicability of Linda

R. §. is without foundation and represents an under-

mining of this Court’s intent.

In short, the Fourth Circuit's ill-founded extension of

a constitutional right of access into the area of criminal

prosecutions undermines the state’s entire criminal

system. It reinstitutes the ancient notion that private

persons who may have been wronged by a violation of the

criminal laws can control the enforcement of those laws.

Irrespective of respondents’ status as prison inmates, they

-15-

as private citizens possess no constitutional right in the

criminal prosecution of another. Linda R. S. v. Richard

D., supra. Certainly, if there was no constitutional

violation present in the Solicitor’s conduct, petitioners

cannot be held liable for their contact with him or for

their failure to alter that course of conduct. Post at 18.

The role of the private citizen as a participant in

criminal prosecutions is the central issue here. Govern-

ment’s allowance of its prosecuting authority to have

input in and even control the determination whether a

criminal complaint is filed or an arrest warrant is issued,

reflect just as does Linda R. S., a widespread recognition

in this country that at every stage of prosecution,

decisions must be made by public prosecutors, not private

citizens. Certainly, in Linda R. S. this Court possessed no

constitutional misgivings with respect to such a basic

recognition. Thus, if the private citizen is now to be given

a constitutionally protected place in criminal prosecu-

tions, and Linda R. S. be given no meaning in the arrest

warrant setting, it should be this Court and not the

Fourth Circuit which mandates it.

The Decision of the Fourth Circuit Misuses

The Cases of this Court to Create a New

Constitutional Right.

The Fourth Circuit has, whether it wishes to call it so

or not, created the new and never before recognized

constitutional right of access to the criminal courts. In so

doing, it has misused and undermined this Court's clearly

limited decisions involving access to the courts.

Those cases relied upon by the district court and

apparently adopted by the Fourth Circuit, all dealt with

habeas corpus and civil rights actions, as well as the rights

of criminal defendants. Nowhere in any of these cases

involving prisoner access [e.g. Bounds v. Smith, 430 U.S.

817 (1977); Johnson v. Avery, 393 U.S. 483 (1969);

Procunier v. Martinez, 416 U.S. 396 (1974)] is there even a

suggestion that prisoners possess a right of access to the

criminal courts, to seek arrest warrants.

When the constitutional right was extended from

habeas corpus to civil rights actions, this Court saw the

need to articulate the reasons why the actions were similar

and constitutional protections required. See, Wolff v.

McDonnell, 418 U.S. 539 (1974). Here however, the

Fourth Circuit, relying upon no case where this Court has

even hinted that the right of access extends beyond these

well-defined limitations, has starkly created a right of

access to the criminal courts. Nowhere in either the

district court or Fourth Circuit’s opinion is the need for

the creation of such a right analyzed or articulated,

especially where those forms of access, civil actions and

§1983 actions, recognized by Wolff remained available to

respondents throughout. Surely, this Court did not intend

the mere recitation of the phrase “access to the courts” to

make the constitutional right all encompassing.

Moreover, here, since resort to the criminal courts is

not respondents’ “sole path to relief”’ [assuming arguendo

that Linda R. S. was wrong and private rights are

bestowed], their equal access to the courts was not

unconstitutionally denied. See, United States v. Kras, 409

U.S. 434 (1973), [severely undermining Lane v. Cor-

rell, 434 F.2d 598 (Sth Cir. 1970), cited by the

District Court]; Boddie v. Connecticut, 401 U.S. 371

(1971).

a

"Respondents could easily have sued in the civil courts of South

Carolina the very same guards against whom they sought arrest

warrants. Moreover, the avenue of a §1983 action remained equally

open and available to them in either the state or federal courts and in

fact respondents in this very same lawsuit availed themselves of the

$1983 remedy against these guards. Order of District Court, dated

Septernber 28, 1978.

-17-

The district court made no finding that the state's

interest in seeking an independent investigation prior to

the initiation of a criminal proceeding was not sub-

stantial. The risks inherent in permitting inmates to

appear at their whim before magistrates to swear out

cross-warrants against prison guards must remain an

important consideration. Compare, Funn v. Winston, 612

F.2d 880 (4th Cir. 1980); see also, Oyler v. Boles, 368

U.S. 448 (1962); Bordenkircher v. Hayes, 434 U.S. 357

(1978). Without a determination that such a policy was

lacking in justification, no Equal Protection violation

may be found.

Cc

The Decision of the Court of Appeals Severely

Undermines This Court's Decisions In The

Area of Personal Liability of Public

Officials Under §1983

The Fourth Circuit found petitioners personally liable

in damages to respondents. The decision relied upon the

district court’s reasoning that the constitutional right of

access to the criminal courts was “clearly established” in

1974 and that petitioners “knew or should have known”

that their conduct violated respondents’ rights. Such a

conclusion radically alters the standard of good faith

immunity articulated by this Court in Wood v. Strickland,

420 U.S. 308 at 322 (1975), and Procunier v. Navarette,

supra, by now requiring public officials to act at their

peril in determining constitutional law.

It is simply incongruous to assume that petitioners

had such superior knowledge of the law that they could

foresee or divine a right of access to the criminal courts,

when such a “right” was evidently not envisioned or

“established” until the Fourth Circuit's ruling. Certainly,

as has been shown, no such prediction was reasonable or

even imaginable from the cases cited by the district court

as existing in 1973 or from subsequent decisions. See, e.g.,

Linda R. S. v. Richard D., supra; Whitley v. Common-

wealth, supra; Inmates of Attica Correct. Facility v.

Rockefeller, 477 F.2d 375 (2d Cir. 1973) [where the

Second Circuit could not discern the effect of Linda R. S.

in an arrest setting}; Moses v. Kennedy, 229 F. Supp. 762

(D.D.C. 1963); People v. Muka, supra; Bounds v. Smith,

supra [and cases cited therein]; United States v. Kras,

supra [and cases cited therein]. Certainly none of these

cases suggested the Fourth Circuit's holding, i.e., that

segregation of the stages of criminal prosecution was

appropriate, in order to find private rights in the seeking

of arrest warrants, while still acknowledging their absence

in later stages. If these petitioners had examined Linda

R. S. and read it together with State v. Addison, supra,

Terry v. Ohio, supra, etc. surely they would have

reasonably concluded that their conduct was entirely

constitutional. Compare, Inmates of Attica, supra. Again,

if absolute liability is now to be the standard under §1983,

this Court should make that determination.

Moreover, the Fourth Circuit, as well as the District

Court, concluded that petitioner Leeke violated §1983

merely by “acquiescing to the plan [of interference] which

he could have aborted.” It is clear that such conduct,

absent petitioner's personal involvement, does not con-

stitute a violation of §1983, even assuming as did the

Fourth Circuit that petitioner somehow possessed control

over the Solicitor’s prosecutorial policy or the magis-

trate’s own decision to issue the warrants. See, Rizzo v.

Goode, 423 U.S. 362 (1976).

CONCLUSION

For all the foregoing reasons, this petition for

certiorari should be granted.

Office of Attorney General

Attorneys for Petitioners

-19-

APPENDIX

Argued December 3, 1980 Decided December 30, 1980

Before BUTZNER, Circuit Judge, FIELD, Senior Circuit Judge, and

MURNAGHAN, Circuit Judge.

Emmet H. Clair, Deputy Attorney General (Daniel R. McLeod,

Attorney General, Edwin E. Evans, Assistant Attorney General,

Robert D. Cook, Assistant Attorney General, Larry C. Batson, Legal

Advisor, South Carolina Department of Corrections on brief) for

appellants; Allan R. Holmes for appellees.

PER CURIAM:

The Commissioner of the South Carolina Department

of Corrections, and a former legal advisor to the

Department, appeal the judgment of the district court

ordering them to pay monetary damages to two prisoners

pursuant to 42 U.S.C. §§1983 and 1985(3). With respect

to the legal advisor, the district court held:

This Court finds as a matter of law that [the

defendant legal advisor] conspired with several

individuals for the purpose of depriving plaintiffs, as

prison inmates, of equal access to the courts, and for

the purpose of preventing or hindering [a magistrate],

as a constituted authority of the State of South

Carolina, from giving or securing to these plaintiffs

equal protection of the law.

The court found that the legal advisor violated both

§1983 and §1985(3) and acted with sufficient malice to

justify punitive damages. Further, the court held that

while the Commissioner violated §1983 by improperly

acquiescing to the plan which he could have aborted, he

-23-

did not willfully participate in the conspiracy in violation

of §1985(3), nor act with malicious intent.

The state officials argue that the prisoners suffered no

constitutional deprivation because, “a private citizen

lacks a judicially cognizable interest in the prosecution or

nonprosecution of another.” Linda R. S. v. Richard D.,

410 U.S. 614, 619 (1973). The district court correctly

noted, however, that the real question invelved here is

“whether or not plaintiffs have a constitutional right to

seek an arrest warrant.” The court held that the prisoners

do have a “clearly established” right of access to the

courts and that it is “unlawful, and indeed unconstitu-

tional, for state officials to actively interfere with a

prisoner’s access to the courts.” See Timmerman v.

Brown, 528 F.2d 811, 815 (4th Cir., 1975). The district

court did not hold that the solicitor was obliged to

prosecute the warrants.

Upon consideration of the record, briefs and oral

argument, we conclude that the distict court’s judgment is

amply supported by the evidence and that the court

committed no error of law. We affirm for reasons

adequately stated by the district court. Timmerman v.

Leeke, No. 74-452 (D.S.C., Sept. 28, 1978).

AFFIRMED.

*The proceedings were conducted in accordance with our remand

in Timmerman v. Brown, 528 F.2d 811 (4th Cir., 1975).

-24-

APPENDIX B

In The

United States District Court

for the

DISTRICT OF SOUTH CAROLINA

COLUMBIA DIVISION

Civil Action No. 74-452

ORDiR

MELVIN LEE TIMMERMAN, and ROBERT THOMAS, in-

dividually and on behalf of all others similarly situated,

Plaintiffs,

vs.

WILLIAM LEEKE, individually and in his official capacity as

Director of the South Carolina Department of Corrections; PETER

THEM, individually and in his official capacity as legal advisor to the

South Carolina Department of Corrections; J. W. STRICKLAND,

individually and in his official capacity as Warden of the Central

Correctional Institution of the State of South Carolina; SAMUEL

BENJAMIN, WILLIAM WESTON, ROBERT ERVIN, TERRY

HART and SAMUEL JACKSON, individually and in their official

capacities a Corrections Officers of the Central Correctional

Institution of the State of South Carolina; the HONORABLE FRAN-

CHOT A. BROWN, individually and in his official capacity as

Magistrate for the County of Richland, State of South Carolina;

JOHN FOARD, individually and in his official capacity as Solicitor

for the Fifth Judicial Circuit for the State of South Carolina; JAMES

ANDERS, individually and in his official capacity as Solicitor for the

Fifth Judicial Circuit for the State of South Carolina; and their

AGENTS, SUBORDINATES, AND EMPLOYEES,

Defendants.

-25-

This matter began with the filing of a complaint on

April 9, 1974, by the attorney for the individual named

plaintiffs, Melvin Lee Timmerman and Robert Thomas,

then prison inmates at the Central Correctional Institu-

tion. The complaint requested class certification, declara-

tory and injunctive relief, as well as money damages. The

gravamen of the complaint was that the inmate plaintiffs

were, in an incident at the Central Correctional

Institution on August 11, 1973, unnecessarily beaten by

prison guards; that to protect themselves from this kind of

physical abuse they announced their intentions to seek

criminal arrest warrants against their alleged prison guard

assailants; that in efforts to keep the inmates from having

the arrest warrants issued at their instance, the

defendants conspired in bad faith to institute criminal

charges against the inmates for their parts in the incident

of August 11, 1973, and conspired in bad faith to block

the issuance of the arrest warrants for the prosecutions of

prison guard attackers. The plaintiffs alleged that the

defendant magistrate had determined that probable cause

existed for the issuance of the arrest warrants they had

requested.

The complaint sought preliminary and permanent

injunctive relief, including an Order enjoining the pending

state court criminal prosecutions of plaintiffs; an Order

enjoining the defendant magistrate from failing to issue

the arrest warrants against the prison guards; and an

Order enjoining all the defendants with the exception of

the defendant magistrate from further interfering with the

issuance or non-issuance of criminal warrants by any

court. Additionally, the plaintiffs sought a declaratory

judgment that the policy of the defendant solicitor with

reference to non-issuance of criminal warrants at the

behest of inmates violated the Fourteenth Amendment to

the United States Constitution.

Finally, the plaintiffs requested an award of money

damages for the violations by the defendants of

protections afforded the plaintiffs by the Constitution.

With the filing of the complaint, an Order dated April

9, 1974, directed the defendants to show cause why the

state court criminal prosecutions of the plaintiffs should

not be enjoined by this Court. The attorney for the

defendants then moved that two of the defendants, then

State Court Magistrate Franchot A. Brown and then

State Court Solicitor John Foard be dismissed as parties

to this action on the basis of judicial immunity from suit.

This motion was granted after hearing by an Order of this

Court dated July 15, 1974. An Order of December 18,

1974, certified the Order of Dismissal for appeal pursuant

to Rule 54(b) of the Federal Rules of Civil Procedure.

Appeal was taken, and an opinion of the United States

Court of Appeals for the Fourth Circuit dated December

18, 1975, reversed the decision of the District Court and

remanded for further proceedings consistent with the

opinion of the Court of Appeals. Timmerman v. Brown,

528 F.2d 811 (4th Cir. 1975).

On remand this Court took judicial note that

defendant Foard was no longer a solicitor and that no

attempt had been made to link his successor in office to

any bad faith criminal prosecution. Thus, by Order of

April 27, 1976, Foard was dismissed as a defendant.

Defendant Magistrate Brown was also dismissed by this

Order. The Court was under the impression that

defendant Brown had not determined that probable cause

existed for the issuance of the warrants requested by the

plaintiffs and that injunctive relief was therefore un-

available. In retrospect, it appears that this determina-

tion was erroneous in that facts presented at subsequent

hearings indicate that probable cause for issuance had

been determined by Brown to exist. However, this was

harmless error as the warrants were subsequently issued

at the instance of the plaintiffs, thereby mooting their

request for irjunctive relief as regards defendant Brown.

In any case, after the Order of April 27, the plaintiffs

<27-

sought to amend their complaint by adding the new

solicitor as a defendant, retaining defendant Brown, and

attempting to obtain an Order temporarily restraining

their state criminal prosecutions. The amendments were

allowed after a hearing held on May 3, 1976. The

temporary restraining Order sought by the plaintiffs was

also granted at that hearing. The plaintiffs were directed

that they were to once again seek indictments and/or

arrest warrants against the defendant prison guards

through the state criminal justice system before this

Court would finally enter or deny an injunction pursuant

to that portion of their complaint seeking the warrants.

Plaintiffs succeeded in convincing defendant Brown to

issue the arrest warrants requested. On May 20, 1976, and

May 25, 1976, a non jury trial was held on all issues

excepting the complaints by the plaintiffs of physical abuse

by the defendant prison guards and the subsequent

denials by the defendants of necessary medical care. This

Court, as a result of the hearings, allowed the defendants

to proceed with their criminal prosecutions of the

plaintiffs. This Court found for the plaintiffs on their

other constitutional claims regarding the defendants’

improper interference with the issuance of arrest

warrants. An explication of these findings and the legal

authority supportive thereof follows hereafter in the parts

of this opinion headed Findings of Facts and Conclusions

of Law.

A damages hearing was held June 2, 1976. Because of

the potential collateral effect guilty verdicts might have on

the remaining issues to be tried, the trial of the case was

recessed until after the state criminal prosecutions of the

plaintiffs were completed. Counsel have informed the

Court that these prosecutions ended with the plaintiff

Timmerman found not guilty on all counts and the

plaintiff Thomas found guilty on two counts of simple

assault and battery. Counsel for the plaintiffs indicates his

belief that the conviction of plaintiff Thomas has no

-28-

collateral effect upon his claims in this proceeding in that

this conviction apparently resulted from assaults pro-

duced by his d.fense of Timmerman and had no factual

impact on his claims of physical abuse and denial of

medical treatment. All of this appears academic, however,

as the plaintiffs, now freed from prison, have filed a

Motion to Dismiss without prejudice these remaining

claims. The memorandum supportive of this motion

evinces the opinion of the plaintiffs that the reaction of

the Court to their already tried claims is likely to provide

the primary relief sought. Plaintiffs reason that the claims

upon which they have prevailed and the relief they are

to obtain are directed toward higher ranking officials

capable of substantially impacting prison conditions.

Plaintiffs apparently feel that any further trial of their

claims against the prison guards would produce very little

in the way of meaningful change of prison conditions.

In addition to the other pending motion, the attorney

for the plaintiffs has filed a motion so as to allow an

award of attorneys fees for the plaintiffs pursuant to the

Civil Rights Attorneys Fees Act of 1976, 42 U.S.C. 1988.

This Court has considered all of these matters, and in an

attempt to finally determine this action, enters and makes

the following findings of fact and conclusions of law:

FINDINGS OF FACT

1. The testimony of all witnesses in this action

indicates that on August 11, 1973, an incident occurred at

the Central Correctional Institution in Columbia, South

Carolina, involving the plaintiffs and the prison guards

named as defendants in this action. Accounts as to what

occurred during that incident and what provocation

existed on either side vary substantially. Suffice it to say

that all witnesses agree that there was a melee of the first

order.

-29-

2. As a result of this incident, plaintiff Timmerman

first announced this intention to seek and subsequently

sought to institute criminal proceedings against the prison

guard defendants. Timmerman was himself charged with

criminal acts as a result of the incident of August 11, and

he enlisted the assistance of his public defender in his

efforts to obtain arrest warrants from then Magistrate

Franchot A. Brown. Testimony taken showed that, in

addition to the sworn statements of plaintiff Timmerman,

supportive of issuance of the warrants, Magistrate Brown

had also received confidential information from an

employee of the Central Correctional Institute, an

ombudsman, who purported to have investigated the

incident and to have determined that plaintiffs Timmer-

man and Thomas were victimized by the defendant prison

guards. At the hearing before this Court, it was

established that this information was suspect at best. The

significance of this information is simply that it, together

with the affidavits of plaintiff Timmerman, convinced

Magistrate Brown that probable cause existed for the

issuance of the arrest warrants against the prison guards.

This was proven explicitly both by the testimony of

Magistrate Brown, as well as by Plaintiffs’ Exhibit 11

(letter from Brown to Timmerman, dated November 15,

1973). At this point, the public defender representing

plaintiff Timmerman had already prepared warrants and

given them to Magistrate Brown for execution. (See letter

of John Delgado to Melvin Lee Timmerman, submitted

by the parties and now Court’s Exhibit 1.)

3. Magistrate Brown informed defendant Peter

Them, then a legal advisor to the South Carolina

Department of Corrections, that he intended to issue the

warrants that Timmerman requested and told defendant

Them to arrange to have the officers brought before the

Magistrate to have the warrants published. Defendant

Them then relayed this information to Warden Joe

Martin at CCI. The two discussed the matter, and, in an

-30-

effort to see that the legal action against the correctional

officers be dropped, concluded that defendant Them

should meet with Richland County Sheriff Frank Powell,

Deputy Attorney General J. C. Coleman, and Solicitor

Foard. Powell, Coleman and Foard all made recom-

mendations as to how the action against the correctional

officers could be stopped. The various possible courses of

action were discussed among defendant Them, Warden

Martin, Department of Corrections Public Relations

Chief Sam McCuen, and Legal Advisor William Lucius.

The course that was adopted was the recommendation by

Solicitor Foard that he would write a letter to Magistrate

Brown requesting that Magistrate Brown not issue the

warrants and stating that Foard would ask the State Law

Enforcement Division to conduct an_ investigation

surrounding the charges made against the four officers.

According to Plaintiffs’ Exhibit | (Confidential Memo-

randum from Peter Them to William Leeke), Foard

stated that there would be no indictments against any of

the correctional officers, except possibly Officer Hart.

The letter was written and received by Magistrate Brown,

who complied with Foard’s request (See Plaintiffs’

Exhibits | and 11).

At the trial, Director ! ceke of the Department of

Corrections expressed only minor reservations about the

propriety of the activities described by the memorandum.

His testimony indicated that he felt that the meeting held

to discuss the matter of the criminal warrants was a

“reasonable approach.” It is clear that Leeke did not

attend the meeting, did not authorize the meeting, and did

not find out about the letter to Brown, until these

activities and events had already taken place. However, he

admitted that he did have the responsibility to provide

inmates with access to the courts, but that he did not

question the participants in the above described activities

to see why such access was not allowed. | eeke had

supervisory control over Them, Martin, McCuen, and

-31-

Lucius. He also had knowledge of the actions taken to

deny plaintiffs of their civil rights. However, Leeke stated

at trial that the Department of Corrections relies heavily

on the Solicitor’s Office and the Attorney General for

legal advice. Moreover, he expressed a duty to defend his

employees when actions have been instituted against

them. On the other hand, he admitted that it is not the

policy of the Department of Corrections to interfere with

prosecutions against its employees.

CONCLUSIONS OF LAW

A. This Court has jurisdiction of this matter

pursuant to 28 USC §1343.

B. As an initial proposition, this Court must set

forth what it does not find. This Court draws no

conclusion as to Magistrate Brown regarding whether or

not he acted alone or in concert under color of state law

to deprive plaintiffs of their right to equal access to the

courts secured by the Fourteenth Amendment to

the Constitution, in violation of 42 USC §1983 and

§1985. This Court makes no finding as to Magistrate

Brown because the injunctive relief issue as to him is now

moot and because he is immune from monetary damages

under the doctrine of judicial immunity. Timmerman,

supra. The same abstention applies to Solicitor Foard

because of his quasi-judicial immunity. Timmerman,

supra. This Court also makes no finding as to liability

under §§1983 and 1985 for Powell, Coleman, McCuen,

Lucius, or Martin. Though plaintiffs seek to hold liable

the “agents, subordinates, and employees” of the named

defendants, that designation will not suffice to extend this

Court’s jurisdiction over any of the five. Powell and

Coleman are not “agents, subordinates, or employees” of

any of the named defendants. As to McCuen, Lucius, and

Martin, though they may be considered agents, sub-

ordinates, or employees of Leeke, Rule 10(a) of the

-32-

Federal Rules of Civil Procedure specifically provides

that “{iJn the complaint the title of the action shall include

the names of all the parties . . .” (Emphasis added.)

Plaintiffs’ designation of “agents, subordinates, and

employees” does not meet the requirement of Rule IC.

Neither does it satisfy the requirements of due process

since only the named defendants could be and were

served. This Court does not have jurisdiction over anyone

other than the defendants who were named and served.

United States ex rel. Lee v. Illinois, 343 F.2d 120 (7th

Cir. 1965). Therefore, this Court makes no finding as to

Powell, Coleman, McCuen, Lucius, or Martin.!

C. As to defendants Leeke and Them, this Court is

governed by the recently enunciated standards for prison

officials set forth in Procunier v. Navarette, U.S.

S.Ct. , 55 L.Ed. 2d 24 (1978). Procunter

adopted the two-pronged test of Wood v. Strickland, 420

U.S. 308, 95 S.Ct. 992, 43 L.Ed. 2d 214 (1975), as the

guidepost for determination of whether or not prison

officials should enjoy the cloak of qualified immunity or

be stripped of its protection. The Court in Procunier

extended the first prong of the Wood analysis to prison

officials in the following language:

We agree with petitioners that as prison officials

and officers, they were not absolutely immune from

liability in this §1983 damages suit and could rely only

on the qualified immunity described in Scheuer v.

Rhodes, supra [416 US 232, 94 S.Ct. 1683, 40 L.Ed.

2d 90 (1974)], and Wood v. Strickland, supra... .

Under the first part of the Wood v. Strickland

rule, the immunity defense would be unavailing to

'The evidence presented at the trial of this matter failed to

implicate named defendant Strickland by a preponderance of the

evidence. This Court therefore holds that Warden Strickland is not

liable to plaintiffs under either 42 USC §1983 or §1985.

-33-

petitioners if the constitutional right allegedly in-

fringed by them was clearly established at the time of

their challenged conduct, if they knew or should have

known of that right and if they knew or should have

known that their conduct violated the constitutional

norm. .

In applying this test to the facts of that case, the Court

stated:

Petitioners claim that in 1971 and 1972 when the

conduct involved in this case took place there was no

established First Amendment right protecting the

mailing privileges of statc prisoners and that hence

there was no such federal right about which they

should have known. We are in essential agreement

with petitioners in this respect and also agree that they

were entitled to judgment as a matter of law.

Thus, the first question to be determined by this

Court is whether or not there was a “clearly established”

constitutional right to access to the courts by prisoners in

1973. Though this Court is soinewhat troubled by the

question of whether or not the right to access was “clearly

established” in 1973 as extending to arrest warrants

instituted by prisoners, this Court must accept the

somewhat less than emphatic determination of the Fourth

Circuit in Timmerman , supra, wherein that Court stated:

We have no doubt that plaintiffs, even though

they are inmates, have some first and fourteenth

amendment rights to air their grievances and to have

access to judicial procedures to redress them.

Proe-inier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40

L.Ed.2d 224 (1974); Cruz v. Beto, 405 U.S. 319, 92

S.Ct. 1079, 31 L.Ed.2d 263 (1972); Johnson v. Avery,

393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969);

Dowd v. United States ex rel. Cook, 340, U.S. 206, 91

S.Ct. 262, 95 L.Ed. 215 (1951); Cochran v. Kansas,

316 U.S. 255, 62 S.Ct. 1068, 86 L.Ed. 1453 (1942);

Lane v. Correll, 434 F.2d 598, 600 (5 Cir. 1970)... .

-34-

The cases cited by the Fourth Circuit do not deal with

the precise issue faced by this Court. They involve a

prisoner's right to seek redress in the courts “in order to

challenge unlawful convictions and to seek redress for

violations of their constitutional rights.” (Emphasis

added.) Procunier v. Martinez, supra, at 416 U.S. 419.

This Court does not deny that the right to seek relief by

way of habeas corpus or §1983 was “clearly established”

in 1973. Moreover, that right has been expanded since

then, e.g. Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491,

52 L.Ed.2d 72 (1977). Plaintiffs here clearly have that

right and are presently asserting it. But the real question

involves the underlying constitutional claim which is the

basis of this §1983 action. In other words, the question is

whether or not plaintiffs have a constitutional right to

seek arrest warrants. That is the specific right to access at

issue here. In Lane v. Correll, 434 F.2d 598 (Sth Cir.

1970) Judge Bell (now Attorney General) held that “a

citizen has no constitutional right to have an arrest

warrant issued. The only constitutional right involved

here is the citizen’s ability to set in motion the

governmental machinery which redresses violations of

municipal ordinances; i.e., the right to seek an arrest

warrant.” This Court believes that the present plaintiffs

did not have a meaningful ability to set in motion the

governmental machinery because the above described

activities stopped the machinery unlawfully, not in a

proper way, as for example, upon a valid determination

of lack of probable cause. It seems clear that for many

years, it has been unlawful and indeed unconstitutional,

for state officials to actively interfere with a prisoner's

access to the courts. Ex parte Hull, 312 U.S. 546, 61 S.Ct.

640, 85 L.Ed. 1034 (1941). This fact, together with Judge

Winter’s observation in Timmerman, push this Court, so

to speak, to a plateau from which it can in good

conscience state that the right to access to the courts

which plaintiffs assert here was “clearly established” in

1973.

-35-

The second question to be decided is whether or not

defendants Leeke and Them knew or should have known

of that right. Leeke testified that he recognized that he

had a responsibility to provide access to the courts. Them

was a legal advisor with the Department of Corrections.

If he did not know of this right, he at least should have

known.

The last question is whether Leeke and Them knew or

should have known that their conduct violated the

constitutional norm. The whole purpose behind Them’s

activities was to deprive plaintiffs of this right. He

certainly knew or should have known that his activities

violated this right. Leeke obtained knowledge of the plan

to deprive plaintiffs of their right to the courts. His

conduct in not taking any steps to rectify the situation in

effect furthered the efforts of Them and his partners. He

knew or at least should have known that without his

intervention, plaintiffs would be deprived of their right to

the courts.

Having established all the requirements necessary to

strip defendants Leeke and Them of their qualified

immunity, this Court holds that they are liable for

damages to plaintiffs under §1983. Were it not for the fact

that plaintiffs seek punitive damages in this action, it

would not be necessary to reach the second prong of the

Wood test, as applied to prison officials by Procunier.

The Court in Procunier stated that the second branch of

the Wood test “. . . would authorize liability where the

official has acted with ‘malicious intention’ to deprive the

plaintiff of a constitutional right or to cause him ‘other

injury.’ This part of the rule speaks of ‘intentional injury,’

contemplating that the actor intends the consequences of

his conduct... .”

This Court state ai the trial of this matter that it

preferred to use the term “bad faith” rather than

“malicious” to describe the activities of the participants in

the plan tu thwart plaintiffs’ access to the courts.

However, having established the right to arrest warrants

by prisoners (based, of course, on probable cause), this

Court must now conclude that defendant Them's

conduct was carried out with “malicious intention.” This

conclusion is mandated by the Supreme Court's descrip-

tion of “malicious intention” as simply intending to

deprive someone of his rights. This Court cannot

characterize Leeke’s conduct as “malicious.” Leeke’s

acquiescence in the plan was improper because he should

have known that his failure to act would result in

plaintiffs’ being deprived of their rights. However, there is

no evidence that Leeke intended to deprive plaintiffs of

their rights.

Thus, this Court concludes that Leeke and Them

violated §1983 and are thus liable to plaintiffs for the

damages caused thereby. Moreover, Them’s actions were

malicious and he is subject to punitive damages.

D. Having determined that defendants Leeke and

Them are not entitled to qualified immunity and that they

have violated §1983, this Court must now turn to

plaintiffs’ claim that defendants conspired for the purpose

of depriving them of their equal protection under the laws

in violation of 42 USC §1985. Since this is a civil, not

criminal action, this Court must first define “civil

conspiracy” which is “a combination of two or more

persons to do an unlawful or criminal act or to do a

lawful act by unlawful means or for an unlawful

purpose.” Ammlung v. City of Chester, 494 F.2d 811 (3rd

Cir. 1974). This Court perceives no substantive difference

between this definition and the definition of criminal

conspiracy as found in 2 Federal Jury Practice and

Instructions, 3rd Ed., §27.04:

A conspiracy is a combination of two or more

persons, by concerted action, to accomplish some

unlawful purpose, or to accomplish some lawful

purpose by unlawful means... .

Sh

This Court does not feel that there is any real

difference between civil and criminal conspiracy, other

than the fact that criminal conspiracy can be a crime in

and of itself, and civil conspiracy is a tort. As a

consequence of this distinction, however, there is a

difference in the burden of proof required to establish

conspiracy. Taking into account these distinctions, this

Court will be guided by the principles set forth in the

above-cited jury instruction manual:

. . . What the evidence in the case must show . . . is

that the members in some way or manner, or through

some contrivance, positively or tacitly came to a

mutual understanding to try to accomplish a common

and unlawful plan.

Id. §27.04.

Before the jury may find that a defendant, or any

other person, has become a member of a conspiracy,

the evidence in the case must show . . . that the

conspiracy was knowingly formed, and that the

defendant, or other person who is claimed to have

been a member, willfully participated in the unlawful

plan, with the intent to advance or further some object

or purpose of the conspiracy.

Id. §27.05

This Court finds as a matter of law that defendant

Them conspired with several individuals for the purpose

of depriving plaintiffs, as prison inmates, of equal access

to the courts, and for the purpose of preventing or

hindering Magistrate Brown, as a constituted authority of

the State of South Carolina, from giving or securing to

these plaintiffs equal protection of the laws. Them thereby

violated 42 USC §1985(3) and is liable to the plaintiffs for

damages.

There is no evidence that defendant Leeke came to

any mutual understanding with the conspirators to try to

accomplish the unlawful plan. Moreover, there is no

evidence that he willfully participated in the plan or that

he had any intent to further or advance some object or

purpose of the conspiracy. This Court holds, as a matter

of law, that he has not violated 42 USC §1985(3) as to

these plaintiffs.

E. Since the state criminal trials of plaintiffs have

been concluded, the question of enjoining the state

criminal prosecutions of plaintiffs is now moot. How-

ever, the Court will explain its earlier determination

to allow the prosecutions to proceed. The Court notes

that the evidence presented might possibly support a

finding that the original prosecutions of plaintiffs were in

bad faith. However, plaintiffs failed to link the present

Fifth Circuit Solicitor, James Anders, with any bad faith

prosecution. This Court believes that even if a prosecu-

tion is initiated with an improper motive, when a

subsequent solicitor objectively determines that sufficient

merit exists for continuing the prosecution, then the

prosecution should not be enjoined. Otherwise, an

improperly motivated prosecutor could forever bar the

right of the public to be protected by the conviction and

imprisonment of criminals.

F. The defendants have evidenced no objection to

plaintiffs’ Motion to Dismiss without prejudice the claims

of plaintiffs relating to physical abuse and denial of

medical care arising from the August I1, 1973, incident.

Therefore, the motion is granted.

G. Having determined that plaintiff's constitutional

rights have been violated in the raanner described

hereinabove, the Court must now turr. to the question of

damages. The only defendants held to hav violated §1983

are defendants Leeke and Them. Only defendant Them

has been held to have violated §1985. Thus, only Leeke

and Them are liable for damages.

Plaintiffs are entitled to damages for the deprivation

of their constitutional rights. This Court believes that an

-39-

award of $2,000.00 is proper compensation for the loss of

these rights.

Plaintiffs also suffered emotional distress due to

defendants’ activities. This Court finds that an award of

$1,000.00 is proper compensation for these damages.

This Court has determined that defendant Them acted

maliciously. Therefore, an award of punitive damages is

appropriate against defendant Them in the amount of

$1,000.00.

H. Finally, plaintiffs, as prevailing parties, are

entitled to receive an award for a reasonable attorney's fee

under the 1976 amendment to 42 USC §1988 which

provides in pertinent part as follows:

... In any action or proceeding to enforce a provision

of sections 1981, 1982, 1983, 1985, and 1986 of this

title . . ., the court, in its discretion, may allow the

prevailing party, other than the United States, a

reasonable attorney's fee as part of the costs.

This amendment became effective on October 19,

1976, but it applies to all actions pending at the time of its

enactment. Hodge v. Seiler, 558 F.2d 284 (Sth Cir. 1977);

Simpson v. Weeks, 570 F.2d 240 (8th Cir. 1978). This

action was pending at the time of the enactment of the

§1988 amendment. Thus, attorney’s fees should be

awarded plaintiffs “unless special circumstances would

render such an award unjust.” Newman v. Piggie Park

Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L. Ed.2d

1263 (1968). See Wharton v. Knefel, 562 F.2d 550 (&th

Cir. 1977), reh. and reh. en banc den. October 13, 1977,

for an explanation of the reasons why this standard

controls fee awards under §1988. This Court does not find

any special circumstances which would render an award

of attorney's fees unjust. Thus, plaintiffs are entitled to a

reasonable attorney’s fee. However, plaintiffs’ attorney

indicates that he was appointed by the Court of Appeals

for the appeal taken in this action. That portion of this

case shall thus be excluded from the computation of the

attorney’s fees. The parties to this action shall attempt to

agree upon a reasonable fee. Should agreement not be

forthcoming, plaintiffs’ attorney shall submit such

evidence as is appropriate and necessary for the Court to

make a determination. Defendants shall have a reason-

able time thereafter to respond.

ORDER

IT IS, THEREFORE, DECLARED that the conduct

of defendants Leeke and Them deprived plaintiffs of the

protections afforded them by the Fourteenth Amend-

ment.

IT IS, THEREFORE, ORDERED that plaintiffs be

awarded judgment for actual damages against defendants

Leeke and Them in the amount of $3,000.00.

IT IS FURTHER ORDERED that plaintiffs be*

awarded punitive damages against defendant Them in the

amount of $1,000.00.

IT IS FURTHER ORDERED that plaintiffs be

awarded a reasonable attorney’s fee to be later determined

pursuant to the procedures outlined hereinabove.

IT IS FURTHER ORDERED that the claims of

plaintiffs based upon alleged physical abuse and denial of

medical treatment be and the same are hereby dismissed

without prejudice.

AND IT IS SO ORDERED.

Ropert F. CHAPMAN

United States District Judge

September 28, 1978

Columbia, South Carolina

-41-

APPENDIX C

United States District Court

for the

DISTRICT OF SOUTH CAROLINA

COLUMBIA DIVISION

Civil Action File No. 74-452

JUDGMENT

MELVIN LEE TIMMERMAN, and ROBERT THOMAS, in-

dividually and on behalf of all others similarly situated,

Plaintiffs,

VS.

WILLIAM LEEKE, individually and in his official capacity as

Director of the South Carolina Department of Corrections; PETER

THEM, individually and in his official capacity as legal advisor to the

South Carolina Department of Corrections; J. W. STRICKLAND,

individually and in his official capacity as Warden of the Central

Correctional Institution of the State of South Carolina; SAMUEL

BENJAMIN, WILLIAM WESTON, ROBERT ERVIN, TERRY

HART AND SAMUEL JACKSON, individually and in their official

capacities as Corrections Officers of the Central Correctional

Institution of the State of South Carolina; the HONORABLE

FRANCHOT A. BROWN, individually and in his official capacity as

Magistrate for the County of Richland, State of South Carolina;

JOHN FOARD, individually and in his official capacity as Solicitor

for the Fifth Judicial Circuit for the State of South Carolina; JAMES

ANDERS, individually and in his official capacity as Solicitor for the

Fifth Judicial Circuit for the State of South Carolina; and their

AGENTS, SUBORDINATES, AND EMPLOYEES,

Defendants.

-42-

This action came on for trial before the Court,

Honorable Robert F. Chapman, United States District

Judge, presiding, and the issues having been duly tried

and a decision having been duly rendered,

IT IS ORDERED AND ADJUDGED that the

Plaintiffs recover, of the defendants William Leeke,

Director of the South Carolina Department of Correc-

tions and Peter Them, Legal Advisor of the South

Carolina Department of Corrections, Three Thousand

($3,000.00) Dollars Actual Damages; and that the

Plaintiffs recover of the Defendant Peter Them, Legal

Advisor to the South Carolina Department of Cor-

rections, One Thousand ($1,000.00) Dollars Punitive

Damages.

IT IS FURTHER ORDERED that the Plaintiffs

recover from the defendants William Leeke, Director of

the South Carolina Department of Corrections and Peter

Them, Legal Advisor of the South Carolina Department

of Corrections, a reasonable attorney's fee.

Further, the court having heard and granted Plaintiffs’

Motion to Dismiss the claims of alleged physical abuse

and denial of medical treatment as to the defendants,

Samuel Benjamin, William Weston, Robert Ervin, Terry

Hart and Samuel Jackson, Corrections Officers, it is

hereby

ORDERED AND ADJUDGED, that the action is

hereby dismissed without prejudice as to defendants

Samuel Benjamin, William Weston, Robert Ervin, Terry

Hart and Samuel Jackson, Corrections Officers.

Further, the court having made no findings to

defendants, Honorable Franchot A. Brown, Magistrate

for the County of Richland, State of South Carolina;

John Foard, Solicitor for the Fifth Judicial Circuit for the

State of South Carolina; and James Anders, Solicitor for

the Fifth Judicial Circuit for the State of South Carolina,

it is

-43-

ORDERED AND ADJUDGED that the action is

hereby dismissed as to defendants, Honorable Franchot

A. Brown, Magistrate for the County of Richland, State

of South Carolina; John Foard, Solicitor for the Fifth

Judicial Circuit for the State of South Carolina; and

James Anders, Solicitor for the Fifth Judicial Circuit for

the State of South Carolina.

And further, the Court having found that the

defendant, J. W. Strickland, Warden of the Central

Correctional Institution for the State of South Carolina,

is not liable to Plaintiffs under either 42 U.S.C. §1983

or §19835, it is

ORDERED AND ADJUDGED that the complaint is

dismissed as to the defendant, J. W. Strickland, Warden

of the Central Correctional Institution for the State of

South Carolina.

Dated at Columbia, South Carolina, this 3rd day of

October, 1978.

MILLER C. Foster, Jr.

Clerk of Court

By: Trupy Det Priore

Deputy Clerk

APPENDIX D

In The

United States District Court

for the

DISTRICT OF SOUTH CAROLINA

COLUMBIA DIVISION

Civil Action No. 74-452

ORDER

MELVIN LEE TIMMERMAN, and ROBERT THOMAS, in-

dividually and on behalf of all others similarly situated,

Plaintiffs,

vs.

WILLIAM LEEKE, individually and in his official capacity as

Director of the South Carolina Department of Corrections et al,

Defenda.its.

45-

This matter is before the Court upon motion of the

defendants Leeke and Them pursuant to Rule 59a) and

(ce) of the Federal Rules of Civil Procedure seeking

reconsideration of this Court’s Order of October 3, 1978

and to reopen the judgment to take additional testimony.

The Court has reviewed the memorandum of the law

submitted by the defendants together with the affidavit

and other materials and has also considered the

memorandum of the plaintiffs. Since no justifiable reason

has been given for either reconsidering the Order or

setting it aside and taking additional testimony the

present motion must be, and hereby is, denied.

AND IT IS SO ORDERED.

Ropert F. CHAPMAN

United States District Judge

October 23, 1979

Columbia, South Carolina

APPENDIX E

United States Court of Appeals

FOR THE FOURTH CIRCUIT

No. 75-1208

MELVIN LEE TIMMERMAN, and ROBERT THOMAS, in-

dividually and on behalf of all others similarly situated,

Appellants,

vs.

THE HONORABLE FRANCHOT A. BROWN, in his official

capacity as Magistrate for the County of Richland, State of South

Carolina, and JOHN FOARD, in his official capacity as Solicitor for

the County of Richland of the State of South Carolina,

Appellees,

and

WILLIAM LEEKE, in his official capacity as Director of the

Department of Corrections of the State of South Carolina, et al.,

Defendants.

Argued August 21, 1975.

Decided December 15, 1975.

Allan R. Holmes, Columbia, S.C. [court-assigned

counsel], for appellants.

Frank Wiggins, Washington, D.C., on brief, for

amicus curiae for The National Legal Aid and Defender

Association.

Emmet H. Clair, Asst. Atty. Gen. of South Carolina

(Daniel R. McLeod, Atty. Gen. of South Carolina, and

Stephen T. Savitz, Asst. Atty. Gen. of South Carolina, on

brief), for appellees.

Before HAYNSWORTH, Chief Judge, and WINTER

and CRAVEN, Circuit Judges.

WINTER, Circuit Judge:

In plaintiffs’ suit for equitable relief, declaratory relief

and money damages because defendants allegedly were

violating plaintiffs’ first and fourteenth amendment rights

by prosecuting them and by suppressing the prosecution

of others, the district court granted motions to dismiss in

favor of Franchot A. Brown and John Foard, Magistrate

and Solicitor, respectively, for the County of Richland,

South Carolina. The district court ruled that both

defendants were immune from suit since the actions

complained of concerned the exercise of their respective

judicial and quasi-judicial immunity. After entry of an

order certifying the dismissal as a final judgment, Rule

54(b), F.R.Civ.P., this appeal followed.

Although Brown and Foard are immune from suit for

money damages, we hold that they are not immune from

equitable and declaratory relief. Contrary to the argu-

ments of these defendants, we also conclude that plaintiffs

have alleged a cause of action which survives the

restrictive rule of Younger v. Harris, 401 U.S. 37, 91 S.Ct.

746, 27 L.Ed.2d 669 (1971). Accordingly, we conclude

that dismissal as to Brown and Foard was erroneously

granted. We reverse and remand for further proceedings.

-48-

For purposes of this appeal, we accept, as we must,

the facts as alleged in the complaint. It sets forth that

plaintiffs are prisoners incarcerated at the Central

Correctional Institution at Columbia, South Carolina.'

On August 11, 1973, plaintiff Timmerman, falsely accused

of being under the influence of alcohol, was brutally

assaulted and then handcuffed by certain of the defendant

correctional officers of Central.“While helpless to defend

himself, he was further brutally and maliciously battered

by these defendants. Plaintiff Thomas and several other

inmates attempted to protect Timmerman from further

injury, and as a result of their efforts the beating was

discontinued and both plaintiffs were returned to their

cells. Although Timmerman suffered multiple physical

injuries apparent to anyone observing him, he was denied

medical treatment.

Although it is not alleged that Brown and Foard

participated in the beating or denial of medical treatment,

they were fully informed of the facts. Nonetheless, they

conspired to deprive plaintiffs of their right to have

access to criminal process to effect punishment on those

who committed wrongs on them and their right to speak

and write about the wrongs perpetrated upon them.

Knowing that plaintiffs wished to bring criminal

charges against their attackers, Brown, Foard, their co-

conspirators and their agents, transferred plaintiffs to

solitary confinement where they are still held. Plaintiffs,

nevertheless, caused to be delivered to Magistrate Brown

proposed criminal warrants against Timmerman’s at-

‘Plaintiffs allege that they sue for themselves and ask to sue also

for all inmates who are, have been, or will be incarcerated in

Columbia, South Carolina. Whether a class action may be maintained

and, if so, who are the members of the class are not now issues

before us.

-49-

tackers, charging them with assault and battery, and

Magistrate Brown determined that probable cause existed

for the issuance of the warrants.

Foard, his co-conspirators and their agents, prevented

the issuance of the warrants, however, by notifying

Magistrate Brown that inmates could not cause warrants

to be brought against correctional officials unless

Solicitor Foard determined, on the basis of an in-

dependent investigation by the South Carolina Law

Enforcement Division (S.L.E.D.), that probable cause

existed for their issuance. As a result, Brown refused to

issue the arrest warrants. Foard did not cause a S.L.E.D.

investigation to be made.”

Plaintiffs also allege that they have been maliciously

subjected to threats to their lives and safety, denial of

parole to Timmerman, and to bad faith criminal charges.

They allege that, even though Magistrate Brown

dismissed some of the criminal charges against them, they

have been indicted, at the instance of Foard, by the grand

jury of Richland County for the same, or substantially the

same, offenses which Magistrate Brown dismissed. By

affidavits which were supplied us in motions relating to

this appeal, we were advised that by error these

indictments have been nol prossed. This aspect of the case

is not moot, however, because we are further advised that

the state does not intend to give up prosecution of

plaintiffs for their part in the incident occurring August

11, 1973. New indictments will be prepared and these

2In oral argument, the representative of the Attorney General of

South Carolina conceded that the alleged conduct of Foard, if in fact

it occurred, would be illegal under state law. Under South Carolina

law, the warrants should have issued upon Magistrate Brown's finding

that there was probable cause for their issuance. As the prosecutor,

Foard might thereafter no/ pros the prosecution, in open court, if he

concluded that the state could not prove a case, but he lacked

authority to interfere with issuance of the warrants.

indictments will be presented to the grand jury tor

Richland County which will convene on August 25, 1975.

In summary, plaintiffs allege that defendants, col-

leetively, in violation of 42 U.S.C. §1983 and 1985, are

acting in concert, under color of state law, to deprive

plaintiffs individuality and as a class of their first and

fourteenth amendment rights by abusing plaintiffs

_ without provocation, denying plaintiff Timmerman neces-

sary medical treatment, maliciously and in bad faith

causing the issuance of warrants for the arrest and

prosecution of plaintiffs, and refusing to allow the

issuance of criminal warrants against Timmerman’s

attackers even though probable cause for their issuance

has been found.} Plaintiffs therefore sought (a) money

damages, (b) a declaration that the espoused policy of

Foard to suppress criminal warrants based on probable

cause and issued at the instance of inmates of a

correctional institution violates the fourteenth amend-

ment, (c) an injunction against defendants, except

Magistrate Brown, to restrain them from interfering with

the issuance or nonissuance of criminal warrants, (d) an

injunction to restrain the pending criminal prosecution

against Timmerman and Thomas, and (e) a writ of

mandamus requiring Magistrate Brown to issue the

criminal warrants against Timmerman’s attackers.

From the specific allegations of the complaint, it seems clear that

Brown and Foard were not alleged to be direct actors in the alleged

beating and denial of medical treatment. Yet they allegedly had

knowledge of them and these events lend significance to their alleged

subsequent acts.

-51-

We agree with the district court that, on the basis of

judicial immunity, the complaint against Brown and

Foard should be dismissed to the extent, but only to the

extent, that it seeks the recovery of money damages.

Brown, as a judicial officer, and Foard, as a prosecutor,

enjoyed judicial and quasi-judicial immunity, respectively.

Pierson v. Ray, 386 U.S. 547, 87, S.Ct. 1213, 18 L.Ed.2d

288 (1967); McCray v. Maryland, 456 F.2d | (4 Cir.

1972). This immunity, however, protects qualified de-

fendants only from claims for money damages. It “does

not extend to plaintiffs action for injunctive and

declaratory relief under Section 1983, 42 U.S.C.” Fowler

v. Alexander, 478 F.2d 694, 696 (4 Cir. 1973). See

Littleton v. Berbling, 468, F.2d 389 (7 Cir. 1972), cert.

den., 414 U.S. 1143, 94 S.Ct. 894, 38 L.Ed.2d 674 (1974),

re’’d on other grounds sub nom. O'Shea v. Littleton, 414

U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974), vacated

sub nom., Spomer v. Littleton, 414 U.S. 514, 94 S.Ct.

685, 38 L.Ed.2d 694 (1974). See also Mitchum v. Foster,

407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972),

where, as here, in a suit against a state prosecuting

attorney an circuit judge, the Supreme Court concluded

that 42 U.S.C. §1983 is an “expressly authorized”

exception to the federal anti-injunction statute, 28 U.S.C.

§2283.

We conclude, then, that the district court over-

extended the doctrine of judicial immunity insofar as it

applied it to warrant dismissing Brown and Foard from

those aspects of the complaint which sought declaratory

and injunctive relief. Unless there is some jurisdictional

bar, Brown and Foard should be retained as parties

defendant in the action and the case decided on the

merits.

-§2-

Before us. Brown and Foard urge the holdings in

Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d

669 (1971), and its progeny as an additional ground why

they should be dismissed. Their argument is that under

Younger the district court lacked jurisdiction, or at least

should have abstained from exercising jurisdiction, with

respect to the prayer that pending prosecutions against

plaintiffs be enjoined. They contend also that, since

plaintiffs’ prayers for other relief revolve so intimately

around South Carolina’s criminal law enforcement policy,

jurisdiction should not exist as to them or that

jurisdiction should not be exercised. We are not

persuaded. We think that the allegations in this case put it

squarely within one of the exceptions recognized in

Younger where it is proper for a federal court to restrain

a state criminal prosecution. If jurisdiction to determine

whether to grant such extraordinary relief exists and may

be exercised, it follows that jurisdiction to decide

plaintiffs’ other prayers for declaratory and injunctive

relief also exists and may be exercised. Cf. Steffel v.

Thompson, 415 U.S. 452, 94.S.Ct. 1209, 39 L.Ed.2d 505

(1974); Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281, 45

L.Ed.2d 223 (1975).

In Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct.

1116, 14 L.Ed.2d 22 (1965), the Supreme Court affirmed

an injunction against a threatened state prosecution based

upon a state statute which unconstitutionally inhibited the

right of free speech. The possible scope of Dombrowski

was sharply restricted, however, in Younger, where it was

held that the rule was to the contrary when the state

criminal proceeding had already commenced. Neverthe-

less, in Younger, the Court significantly qualified the anti-

injunction rule announced in that case by suggesting

possible exceptions:

It is sufficient for purposes of the present case to hold,

as we do, that the possible unconstitutionality of a

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statute “on its face” does not in itself justify

an injunction against good-faith attempts to enforce it,

and that appellee Harris has failed to make any

showing of bad faith, harassment, or any other

unusual circumstance that would call for equitable

relief. 401 U.S. at 54,91 S.Ct. at 755.

The holding in Younger has been extended and

refined in a number of subsequent cases. For our

purposes, it is unnecessary to analyze subsequent holdings

except to note that the exceptions to federal noninterven-

tion suggested in Younger have continued to be

recognized. In the recent decision in Kugler v. Helfant,

421 U.S. 117, 95 S.Ct. 1524, 44 L.Ed.2d 15 (1975),

Younger was approvingly described:

[T]he Court in Younger left room for federal

equitable intervention in a state criminal trial where

there is a showing of “bad faith” or “harassment” by

state officials responsible for the prosecution . . .,

where the state law to be applied in the criminal

proceeding is “flagrantly and patently violative of ex-

press constitutional prohibitions,” . . . or where there

exist other “extraordinary circumstances in which the

necessary irreparable injury can be shown even in the

absence of the usual prerequisites of bad faith and

harassment.”

Accord: Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct.

1200, 43 L.£d.2d 482 (1975); Hicks v. Miranda, 422 U.S.

332, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975); Doran v.

Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d

642% (1975).

We think that in the instant case plaintiffs have

alleged a case of “bad faith” or “harassment” by state

officials for the prosecution. As pointed out in Kugler,

421 U.S. at 126, n.6, 95 S.Ct. at 1531, “*bad faith’ in this

context generally means that a prosecution has been

brought without a reasonable expectation of obtaining a

valid conviction.” “Harassment” means much the same,

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although it also connotes a legal exercise of authority in

such a manner as to be unnecessarily oppressive.

Plaintiffs have alleged that Magistrate Brown dis-

missed charges against them but, nevertheless, they have

been, or will be indicted by the grand jury and prosecuted

on the same or substantially similar charges. While that

allegation atone may not reasonably give rise to the in-

ference that there is little likelihood that they will be

convicted, plainti‘fs have alleged that Magistrate Brown

found that there was probable cause to prosecute some of

the defendants for their part in the same incident which

purportedly gave rise to the charges against plaintiffs. Of

course, it is theoretically possible for two participants in

an affray between them both to be guilty of assault. But

unless we are to assume the incompetence of Brown or a

strong bias in favor of plaintiffs — assumptions for which

there is no basis in the record — it is less likely that there

is a good case against plaintiffs when a disinterested

judicial officer has determined that there is no basis

on which to prosecute them but there is a basis on which

to prosecute their antagonists. Whatever lingering doubt

may exist about the substance of any case against

plaintiffs is removed, at this stage of the case, by the

further allegation that Foard took steps, concededly

illegal if in fact taken, to suppress any prosecution of

plaintiffs’ antagonists notwithstanding that the Magistrate

found probable cause for these prosecutions to go

forward.

We have no doubt that plaintiffs, even though they are

inmates, have some first and fourteenth amendment rights

to air their grievances and to have access to judicial

procedures to redress them. Procunier v. Martinez, 416

U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974); Cruz v.

Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972);

Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d

718 (1969); Dowd v. United States ex rel. Cook, 340 U.S.

206, 91 S.Ct. 262, 95 L.Ed. 215 (1951); Cochran v.

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Kansas, 316 U.S. 255, 62 S.Ct. 1068, 86 L.Ed. 1453

(1942); Lane v. Correll, 434 F.2d 598, 600 (5 Cir. 1970).

We think that plaintiffs have alleged bad faith and

intentionally harassing efforts to deny these rights,

including but not limited to bad faith and harassing

efforts to prosecute them. We think that plaintiffs have

alleged a case within an exception to the restrictive

Younger rule and that the district court not only had

jurisdiction to adjudicate their claims for equitable and

declaratory relief on the merits, but also should exercise

it.

Of course, we reach these conclusions solely on the

basis of plaintiffs’ allegations. In the present posture of

the case, those allegations are uncontroverted and we

think that they require an evidentiary hearing. Until an

evidentiary hearing has been held and the facts found, we

cannot know them.

It follows that the judgment dismissing Foard and

Brown must be reversed and the case remanded for

further proceedings not inconsistent with this opinion.

We append two additional comments for the guidance

of the district court on remand:

First, it appears from statements contained in

affidavits in support of, and in opposition to, a motion

for summary reversal that defendant Foard has been

succeeded in office by a certain James C. Anders, Esquire.

In oral argument, counsel confirmed that Foard is no

longer Solicitor for Richland County. A formal substitu-

tion of parties has not been requested, and no party has

raised any question of the effect, if any, of defendant

Foard’s leaving office. See Spomer v. Littleton, 414 U.S.

514, S.Ct. 685, 38 L.Ed.2d 694 (1974). We do not address

the question. It may, however, be raised and decided in

the district court on remand.

Second, we would suppose that, if after trial, an

injunction to prevent further unlawful interference by the

Solicitor of the County of Richland (if such be proved) is

granted, Magistrate Brown, freed from interference from

the Solicitor’s office, would issue any warrants sought by

plaintiffs, which he determined were grounded on

probable cause, on his own motion without the necessity

of an order by the district court. Because of this

likelihood we do not consider the authority of a federal

court in order to redress a violation of §1983 to compel

performance of a ministerial act by a state judicial officer.

Compare Peek v. Mitchell, 419 F.2d 575 (6 Cir. 1970),

with McIntire v. Wood, 7 Cranch, 504, 3 L.Ed. 420

(1813); Stern v. South Chester Tube Co., 390 U.S. 606, 88

S.Ct. 1332, 20 L.Ed.2d 177 (1968); Haggard v. State of

Tennessee, 421 F.2d 1384 (6 Cir. 1970); Gurley v.

Superior Court of Mecklenburg County, 411 F.2d 586 (4

Cir. 1969). See also Note, Mandatory Injunctions as

Substituted for Writs of Mandamus in the Federal

District Courts: a Study in Procedural Manipulation, 38

Colum.L.Rev. 903, 904-05 (1938). We do not dismiss

Magistrate Brown now, however, because if plaintiffs

prove the case they have alleged and our supposition with

regard to Brown is unfounded, the district court will be

brought to the question we reserve.

Reversed and remanded.

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APPENDIX F

United States Court of Appeals

FOR THE FOURTH CIRCUIT

No. 79-6800

JUDGMENT

MELVIN LEE TIMMERMAN; and, ROBERT THOMAS, in-

dividually and on behalf of all other similarly situated,

Appellees,

VS.

WILLIAM LEEKE, in his official capacity as Director of the

Department of Corrections of the State of South Carolina; PETER

THEM, in his official capacity as Legal Advisor to the Department of

Corrections of the State of South Carolina; J. W. STRICKLAND, in

his official capacity as the Warden of the Central Correctional

Institution of the State of South Carolina; SAMUEL BENJAMIN,

WILLIAM WESTON, ROBERT ERVIN, TERRY HART and

SAMUEL JACKSON, in their official capacities as Corrections

Officers of the State of South Carolina,

Appellants,

and

THE HONORABLE FRANCHOT A. BROWN, in his official

capacity as Magistrate for the County of Richland, State of South

Carolina; and, JOHN FOARD, in his official capacity as Solicitor for

the County of Richland of the State of South Carolina, and their

AGENTS, SUBORDINATES, and EMPLOYEES,

Defendants.

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APPEAL FROM the United States District Court for

the District of South Carolina.

THIS CAUSE came on to be heard on the record

from the United States District Court for the District of

South Carolina, and was argued by counsel.

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgment of

the said District Court appealed from, in this cause, be,

and the same is hereby, affirmed.

/s/ Witttram K. Scarte, Il

Clerk

APPENDIX G

United States Court of Appeals

FOR THE FOURTH CIRCUIT

No. 79-6800

MELVIN L’E TIMMERMAN, et al,

Appellees,

versus

WILLIAM LEEKE, etc., et al,

Appellants.

Upon consideration of the appellants’ petition for

rehearing and no request for a poll of the court on the

petition for rehearing en banc, by counsel,

IT IS ORDERED that the petition for rehearing is

DENIED.

Entered at the direction of Judge Butzner with the

concurrence of Judge Field and Judge Murnaghan.

For the Court,

/s/ Wititam K. S ate, Il

Clerk