Full opinion text
MEMORANDUM DECISION DENNEY, District Judge. This case is a civil rights action challenging many of the administrative procedures and practices at the Nebraska Penal and Correctional Complex (hereafter Complex). The plaintiff, who is incarcerated at that institution, has been allowed to prosecute the case as a class action on behalf of all inmates of the Complex. Counsel has been appointed for the plaintiff and both parties have furnished excellent briefs of the arguments to the Court. Pursuant to the pre-trial order, the issues were narrowed, then the parties filed a stipulation of facts as to those issues and, as a result, some of them were resolved in the stipulation itself. Those issues that were handled in that manner are as follows: 1. Prior to October 28, 1970, there were three procedures followed in processing inmate letters to sentencing judges regarding the crediting of “dead time.” (“Dead time” is time spent in jail prior to sentence, which would have no effect on the time the inmate must serve unless specially credited to the sentence by the sentencing judge.) The procedures revolved about whether the particular judge had or had not expressed a policy regarding such letters. In some instances, the procedures resulted in the letters being returned to the inmates without being sent to the judge. The parties have stipulated that since October 28, 1970, and in all future cases, all letters addressed to any judge will be mailed out by the Complex. It will be so ordered by the Court. 2. Postage has also been a problem at the Complex. Stamps, because they are negotiable, have by necessity been closely controlled. The parties have agreed that the inmate is given three free stamps per month and that, in addition, he may spend from'his earnings up to $30.00 per month on postage, and that the Court should enter an order to that effect. It will be so ordered. 3. The law library at the Complex has also been a constant source of disagreement. It will be discussed in greater detail further in this opinion. The parties do agree that the procedure that allows inmates to cheek out books and take them to their cells is acceptable to the parties. The parties have also agreed as to general adequateness of the law library in terms of books available except for the Nebraska Statutes, which are not current. See Appendix A for a comprehensive cataloging of that library. Inmates may also purchase books for their own use. 4. Inmates desiring notary service submit an interview request to the Captain’s office. Notary service is available at the Complex at 3:00 P.M. on Mondays and Fridays. Emergency notary service is done on a daily basis. The parties agree that this procedure is acceptable and the Court will so order. To the remaining issues, the parties have made certain stipulations of facts but are not in agreement as to how the issues should be resolved. Evidence has also been taken at two hearings and by affidavit. The Court approaches these problems mindful that matters of internal prison administration should not be interfered with by the federal courts. Lee v. Tahash, 352 F.2d 970 [8th Cir. 1965]. The matters that can be examined by this court in a civil rights action such as this have been succinctly stated as: The Court . . ■. is limited in its inquiry to the question of whether or not the constitutional rights of inmates are being invaded and with whether the Penitentiary itself is unconstitutional. The Court is not judicially concerned with questions which in the last analysis are addressed to legislative and administrative judgment. A practice that may be bad from the standpoint of penology may not necessarily be forbidden by the Constitution. And a prison system that would be excellent from the point of view of a modern prison administrator may not be required by the provisions of the Constitution with which the Court is concerned. Holt v. Sarver, 309 F.Supp. 362 [E.D.Ark.1970]. 5. The parties have stipulated that the inmates are denied the individual use of a typewriter. The inmate legal assistant is permitted to use a typewriter and all legal documents required by The Courts to be typewritten are typed by the inmate legal assistant at the request of the inmate. The Complex will not refuse a request for typing of such required documents. Plaintiff charges that this procedure effectively denies the inmates their rights to adequately prepare legal papers. The Court is not so persuaded. So long as the Courts will either accept hand-drafted petitions or the prison will have those required to be typed so done, no rights of the inmates are infringed. There is no right to the individual use of a typewriter. Williams v. United States Department of Justice, Bureau of Prisons, 433 F.2d 958 [5th Cir. 1970]. 6. The plaintiff contends that because there are reprisals by the prison officials to those inmates who petition the Courts the plaintiff’s rights to access to the Courts are infringed. The defendants contend that there are no such reprisals. It has been recognized that reasonable access to the Courts is a right guaranteed against state action by the due process clause of the Fourteenth Amendment. Stiltner v. Rhay, 322 F.2d 314 [9th Cir. 1963]. Were the defendants to exact reprisals for the exercise of that right, this Court would be of the opinion that such would tend to inhibit plaintiff’s rights sufficiently to be actionable. Coonts v. Wainwright, 282 F.Supp. 893, 895 [M.D.Fla.1968]. The following is the evidence as it developed as to the existence of such reprisals. Plaintiff McDonnell testified that he originally was given as a work assignment that of clerk-typist in the reception center but that in May of 1970, on the day after appearing in Federal Court, he was reassigned to the soap factory. Warden Wolff testified that McDonnell was moved to the soap factory for security reasons, there being at that time indications that an escape attempt might be made somewhere in the prison and that McDonnell had an escape record. Inmate Nykeil stated that he believes that the refusal of the prison authorities to allow him to enroll in college courses at the institution is based on his involvement in this law suit. Plaintiff also alleges in the petition, but no proof was offered, that Douglas L. Rhodes was transferred from his prison job of clerk-typist for the Associate Warden to the particular laundry room where the laundry is filled with human feces from various State hospitals solely because he complained to this Court and that William M. Pegram was placed in a death row confinement cell solely because Pegram requested Rhodes to assist him in complaining to the Courts. The Court does recognize that the officials at the Complex may well feel justified in taking some sort of administrative action against “writ writers” whom they view as harassing the officials and interfering with the orderly administration of the institution. McDonnell and Rhodes are both well known “writ writers” having many actions of various types pending in the Courts constantly. However, the Court is not convinced that plaintiff herein has met the burden of proving that a widespread procedure of reprisals exists. The allegations regarding Rhodes and Pegram were unproved. There was apparently good reason for McDonnell’s transfer at the time it was accomplished and Nykeil’s statement is too flimsy a foundation to support the entire verdict sought. The Court would caution the defendants that administrative reprisals against inmates who seek access to the Courts will not be tolerated, regardless of how justified they might appear. 7. The parties have raised and stipulated to several issues regarding legal assistance for inmates in the Complex. When the inmate first arrives at the Complex, he is housed in the Reception and Diagnostic Center for a short time. See Appendix B from the Inmate Handbook (Published March, 1970). During this time period, the inmate is not allowed access to the Complex’s law library. However, the Complex does order the inmate legal assistant to visit the Center once each week, during which time the legal assistant will help the new inmate with any pending legal action he might have or to begin a new action, if desired. The inmate legal assistant is an inmate who has been appointed by the Complex to help other inmates in presenting their claims to the Courts. See Appendix C from the Inmate Handbook and Appendix D, affidavit of legal assistant, James Maddox. The inmate legal assistant is the only inmate specifically approved to assist other inmates in the preparation of legal documents without express approval of the Warden. The plaintiff is also not satisfied with the regulations surrounding visits to the inmate legal assistant and the law library itself. Any inmate who has indicated an interest in visiting the legal assistant may do so between the hours of 7:00 A.M. and 7:30 P.M. daily. The law library itself is open on Monday, Tuesday, Wednesday, Thursday and Friday evenings for independent research by an inmate unassisted by the legal assistant. The law library is open from 5:00 P.M. to 7:00 P.M. on Tuesdays and Thursday, and it is open from 6:00 P.M. to 7:00 P.M. on Monday, Wednesday and Friday. See Appendices E and F. An inmate is required to be back in his cell for the 7:30 P.M. lineup. For security reasons, the number of inmates that may be allowed in the library at any one time is six. Some days there are more than six requests, and some days there are less than six requests to visit the law library for independent research. School is held on some of the same nights that the law library is open for independent research. The school classes are organized into three periods of one hour each, commencing at 5:15 P.M. and ending at 8:15 P.M. There are two classes of inmate students and the inmates’ ability to visit the law library for independent research depends upon his classification as a student. Inmates under twenty-one years of age, who do not have a high school diploma, are mandatory students. Inmates over twenty-one years of age or high school graduates are voluntary students. An involuntary student, who is attending the first two periods of school, therefore has a conflict with the hours of the law library and he may be excused from school to visit the law library only upon a showing of need to the warden. A voluntary student may miss two nights of school per week and still remain active in the program without a penalty. Involuntary students normally are able to satisfy their library needs during the daytime with the assistance of the inmate legal assistant. Finally, the procedure is challenged that denies all inmates of the Reformatory Unit access to the law library. See Appendix G from the Inmate Handbook for the distinction between the Reformatory Unit and the general penal Cpmplex. The reformatory inmates are not permitted to go to the Complex unit where the law library is located. Previously, the inmate legal assistant has been ordered to visit the Reformatory unit for one afternoon per week and to stay for a sufficient time to take care of all the reformatory inmates’ requests. In addition, a small library is being established at the Reformatory unit. See Appendix D. Danny Hart stated that he was held in solitary for three weeks in February, 1971, during which time he was not allowed to contact court appointed counsel regarding pending escape charges against him. Solitary confinement is actually implemented in the Adjustment Center portion of the Complex. See Appendix H for the legal assistance regulations regarding the Adjustment Center. Some of the inmates have particular reluctance to use the inmate legal assistant. McDonnell testified that he uses the inmate legal assistant but is concerned that some of the information given the legal assistant may be forwarded to the administration of the prison. There has been a recent change in the individual who is the legal assistant in the Complex unit from James Maddox to Harold Huffman, which seems more satisfactory to the inmates. Maddox is now the legal assistant for the Reformatory unit. McDonnell further testified that he had violated the prison rule about giving legal assistance to other prisoners but had never been punished for doing so. The Court should first examine the inmate assistance program whereby the Complex provides for the use of the inmate legal assistant. This procedure must satisfy the test of Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 [1969] of being a reasonable alternative to allowing inmates to freely assist each other in the preparation of petitions if such a ban is imposed. The problem is discussed in Note, Constitutional Law: Prison “No-Assistanee” Regulations and the Jailhouse Lawyer, 1968 Duke Law Journal 343. Here, the Complex allows for inmates to assist each other upon permission of the Warden. Assuming such permission is freely given, then it is certainly arguable that no Johnson v. Avery, supra, problem is presented, since the procedure and the alternative both are allowed. But at least it should seem evident, and the Court so finds, that such a regulation in conjunction with the comprehensive program of inmate legal assistance afforded by the Complex satisfies the reasonable alternative requirements of Johnson v. Avery, supra. This is not to say that improvements cannot yet be made. The Court is of the opinion that some of the suggestions in United States v. Simpson, 141 U.S.App.D.C. 8, 436 F.2d 162 [1970] regarding the use of law students are worthy of consideration by the Complex. Similarly, the voluntary assistance of qualified attorneys, as cited in Novak v. Beto, 453 F.2d 661, [5th Cir. 1971], is a goal to be sought. But the system presently employed by the Complex is not constitutionally defective and no major change is mandated. This Court has examined over 50 petitions in the last 12 months which have originated in the Complex. The Court has found them to be sufficiently drafted to apprise the Court of the inmate’s basic claim. Often, the inmate legal assistant prepares a brief to accompany the initial petition, although such is not required, and the Court has found such briefs to be well prepared, with numerous but pertinent legal citations. In addition, the Court appoints counsel for 95% of all the habeas corpus petitions (only those involving purely questions of law are excepted) and most of the civil rights cases where complex, factual allegations are involved. It should be noted that this case itself is of the latter variety, wherein counsel was appointed. In Johnson v. Avery, supra, 393 U.S. at p. 490, 89 S.Ct. at p. 751, the Court also recognized that: [T]he State may impose reasonable restrictions and restraints upon the acknowledged propensity of prisoners to abuse both the giving and the seeking of assistance in the preparation of applications for relief: for example, by limitations on the time and location of such activities and the imposition of punishment for the giving or receipt of consideration in connection with such activities. Thus, the remainder of the restrictions in inmate legal assistance must pass that reasonableness test. The legal assistance procedure in the Reception and Diagnostic Center does not appear to have resulted in any loss in rights to appeal or to seek post-conviction relief. The detrimental effect, if at all, is in the area of delay in seeking such relief. Even delay is minimal, with the regular visits of the inmate legal assistant to those persons. The Court finds the regulations regarding inmate legal assistance for new inmates in the Reception and Diagnostic Center to be a reasonable restraint, during the short period of their stay, within the meaning of Johnson v. Avery, supra. The interest of the Complex in minimizing the security risk in the Complex legal library by restricting to six the number of inmates in the library at any one time, thereby preventing large numbers of inmates from congregating together, sustains the reasonableness of the regulation. The Court also finds that allowing inmates to visit with the inmate legal assistant between the hours of 7:00 A.M. and 7:30 P.M. daily is a reasonable restriction. However, the Court does not find that the hours during which an inmate may do independent research has any relationship in fact to the time required for such efforts. The total of approximately seven hours per week for independent research is unreasonable within the meaning of Johnson v. Avery, supra. The defendants will be required to amend the regulation regarding time allowed for independent research. It appears to the Court that a regulation that allows the inmate access to the legal library at any time during the periods that he has “free time” or recreation periods would meet the Johnson v. Avery requirements. This would also solve the problem of conflict with school schedules. The not too distant past procedure of denying inmates in the Reformatory unit access to the legal library was unreasonable on its face. The right to proceed pro se if the person chooses is fundamental to our legal system. Forcing the inmate at the Reformatory unit to use the inmate legal assistant would be violative of that right. The evidence shows that recently the Reformatory unit acquired its own legal assistant and a small legal library. There being no evidence that the Reformatory unit legal library is not adequate for the needs of the inmates, the Court cannot say that the procedure as it is today is unreasonable. The Adjustment Center where the solitary confinement is located presents, by its nature, extraordinary problems. The regulations indicate that the inmate legal assistant is available to those inmates as well, but on a weekly basis. So long as this is available to every requesting inmate weekly and that an inmate is not required to wait three weeks or more, as indicated by Inmate Hart’s testimony, the Court is inclined to find the procedure reasonable. Unlimited access to other inmates and the legal library would seem to emasculate the purpose and effectiveness of solitary confinement. 8. The parties have raised and stipulated to several issues regarding censorship of mail to and from the inmates at the Complex. On May 19, 1971, Judge Warren Urbom of this District issued a temporary injunction in this case, enjoining defendants during the pendency of this suit from opening any mail from plaintiff’s attorney to plaintiff or from plaintiff to plaintiff’s attorney. Following that, an extensive hearing to reconsider the motion for temporary injunction was held on April 15, 1971, before Judge Urbom. Then Warden Sigler testified at length, saying that the need for censorship has only one purpose, that of security for the institution. He stated that the mails are used to introduce contraband into the prison and especially narcotics. Drugs may be dissolved in water, dropped onto the paper of the letter, then allowed to dry before mailing. The inmate at the receiving end can recover the narcotic from the paper by using a water solution again or merely eat the paper itself. Escape plans can also be devised with outsiders by the use of the mails, according to Warden Sigler. Insofar as censorship of mail between attorney and client, Warden Sigler stated that it was done because either unscrupulous or naive attorneys might introduce contraband or further escape plans. Defendants, in their brief, further describe this problem as “[p]ersons who are employed by attorneys, or even courts, or are clerking for them may, in exercise of what is commonly known as the ‘Don Quixote’ complex, in their zeal to change the world, unwittingly or without thinking anything wrong, use the attorneys’ or courts’ stationery to contact an inmate,” John B, Greenholtz, who was a deputy warden for 21 years and is now chairman of the Nebraska Board of Paroles, substantiated Warden Sigler’s testimony. Carol Franssen, Drug Investigator for the Nebraska State Patrol, testified as to the detection of drugs that have been impregnated in paper either through visual observation or black light techniques. Following the hearing, the temporary injunction was withdrawn upon stipulation of the parties that law students would be permitted freely to visit plaintiff and plaintiff would be transported to plaintiff’s counsel’s law office for consultation when requested during the pendency of this lawsuit. At this Court’s hearing on the matter on November 22, 1971, additional evidence was adduced. Now Warden Wolff further stated that, regarding Inmate Rhodes, he had been written up on the basis of slanderous, derogatory and obscene statements and that no mail from or to courts or counsel is stopped but all is opened. Associate Warden Jones stated that a letter to anyone outside the approved mailing list must have special approval. He repeated Warden Wolff’s testimony regarding the Rhodes’ letters. In respect to the delay of McDonnell’s mail, Jones testified that the mail that had been delayed a month was caused by unusual circumstances, namely, that McDonnell was out of the institution being tried in South Dakota on another charge. He testified that letters to Judges are not censored but that occasionally he writes on the letter the position of the institution. The five letters of Inmate Rhodes in question have been examined by the Court. They were written on January 16, and 17, 1971. The letters to Time Magazine and.to State Senator Ernest Chambers are fairly typical. In the letter to Time Magazine, some of the objectional portions included: “in many areas its worse than the publicized conditions in Arkansas prisons”; “the only suggestion of treatment here is the prison’s name; Nebraska Penal and Correctional Complex”; “it is headed by Maurice H. Sigler who is so old his thinking is fossilized.” In the letter to State Senator Ernest Chambers, the objectionable portions were “I feel it is my right — my duty — to inform the public that all is not well at the Maurice Apartments” and “some of the things I could show you at Sigler’s Ghetto would shock your conscience.” The Disciplinary Report indicates that the Disciplinary Board imposed as punishment for the writing of the letters that 5 days of extra earned good time be withheld and that Rhodes be placed in administrative segregation for the protection of the individual and the welfare of the institution. Plaintiff McDonnell stated that certain of his mail has been delayed up to a month in being delivered to him. Inmate Robert N. Pilgrim stated that he mailed a letter to Judge Van Pelt, of this District, in October of 1970, but that the Judge did not receive it until January, 1971. Earlier that year, Pilgrim received an order from the Dakota County Court, giving Pilgrim ten days in which to answer. Because the order was delayed by prison officials for six days, Pilgrim had but three days to do all the work necessary to answer the letter. Inmate David Rice stated that on several occasions he has received letters sent to his attorney back from the mail room informing him that his attorney was not on the authorized mailing and visiting list. Inmate Dennis Marion stated that his mail has been repeatedly tampered with and, as a result, it has taken as much as a month for him to receive some letters; that often when he sends letters out the institution does not send them out nor does he get them back. Inmate Larry Wayne Powell stated that late in 1968 his grandmother died and that in such cases it is the policy of the institution to allow the inmate to attend the funeral. Powell was not notified of the funeral until approximately one and a half hours prior to the funeral because the letter from home was delayed three days by prison authorities. As a result, Powell was not able to attend the funeral. Inmate Hart stated that on March 22, 1971, all of his mailing and visiting privileges were stopped because he had allegedly mailed letters to the World Herald (an Omaha, Nebraska, newspaper) and Nebraska State Senator Ernest Chambers. Hart added that he is and has been denied the right to write to the United States Senator from his native state, namely, Senator Jack Miller of Iowa. The Complex’s regulations on mailing privileges as contained in the Inmate Handbook are set out in Appendix I. Additional regulations are to be found in Appendices J and K. Many Courts have spoken recently on this problem of censorship. The Court of Appeals of the First Circuit recently held that an inmate’s First Amendment rights extend to being allowed to correspond with the news media concerning prison matters. Nolan v. Fitzpatrick, 451 F.2d 545 [1st Cir. 1971]. That Court reasoned that: [T]he condition of our prisons is an important matter of public policy as to which prisoners are, with their wardens, peculiarly interested and peculiarly knowledgeable. The argument that the prisoner has the right to communicate his grievances to the press and, through the press, to the public is thus buttressed by the invisibility of prisons to the press and the public: the prisoners’ right to speak is enhanced by the right of the public to hear. As shown in Appendix I, the inmates in Nebraska Penal and Correctional Complex are prevented from writing to the news media about prison conditions. The evidence regarding Inmate Rhodes indicates that any such attempt is met with severe punishment. In Peek v. Ciccone, 288 F.Supp. 329 [W.D.Mo.1968] the Court recognized that refusal to mail a letter to the Pope of the Catholic Church would violate the inmate’s First Amendment religious freedoms. It is questionable for the Complex whether the Pope would be an allowable person on the approved mailing list, since the inmate is allowed to write to only three friends. Friends are defined as “aunts, uncles, nieces, nephews, cousins, in-laws and acquaintances”. It is certain that the Pope could not be added to the approved list except during one of the following periods: January 1-5, May 1-5, or September 1-5, since those are the only times when changes can be made. See Appendix I. The Second Circuit Court of Appeals, in Sostre v. McGinnis, 442 F.2d 178 [2nd Cir. 1971], held that: [I]f a communication is properly intended to advance a prisoner’s éffort to secure redress for alleged abuses, no interest would justify deleting material thought by prison authorities to be irrelevant to the prisoner’s complaint. The danger that an official will improperly substitute his judgment for that of the correspondent’s then preponderates. For similar reasons, prison officials may not withhold, refuse to mail, or delete material from otherwise protected commuincations merely because they believe the allegations to be repetitious, false, or malicious. That Court went on to hold that such protected communications were between an inmate and (a) a court, (b) any public official or agency, or (c) any lawyer. In Rhem v. McGrath, 326 F.Supp. 681 [S.D.N.Y.1971], the Court examined the censorship regulations of the Manhattan House of Detention and found that there were no restrictions upon outgoing mail. In Palmigiano v. Travisono, 317 F.Supp. 776 [D.R.I.1970], the Court questioned: “Why should there be any limitation on the number of correspondents except as it may be based on the amount of time available to the inmate for writing letters and the amount of physical space and facilities available?” This Court is of the opinion that a relaxation of the Complex’s rules on censorship of letters to the news media and public officials and limits on numbers of persons to whom letters can be written would aid in the prevention of that which the Complex fears the most, namely riots. It seems that all too often it is the need and frustration to demonstrate to the outside world their complaints that precipitates such disasters as the Attica riots. Whether such a relaxation is constitutionally mandated as the previous cases indicate, this Court does not at this time need to decide. Herein, the plaintiff has directed his attack at censorship between counsel and the inmate and the recent case of Moore v. Ciccone, 459 F.2d 574 [8th Cir. 1972], decided during the pendency of this case, appears to have settled the matter for this Court. In that case, the 8th Circuit focused on the right to access to the Courts instead of the inmates’ First Amendment rights, although that Court has recognized that inmates have First Amendment rights, Rowland v. Jones, 452 F.2d 1005 [8th Cir. 1971], delineating as the scope of the censorship of mail between inmate and attorney to be as follows: Outgoing mail may not be inspected or opened; incoming mail may be opened only if manipulation of the envelope, use of fluoroscopes and metal detectors or other alternate means to opening the envelope fail to disclose contraband and there is a real possibility that contraband will be included in mail from an attorney; in addition, if the envelope from the attorney is marked “Privileged” it cannot be opened except in the presence of the inmate addressee. That Court further emphasized the importance of immediate delivery of mail. From the evidence submitted herein, this Court is convinced that a rule that requires all mail to be delivered within 48 hours of receipt at the Complex is the permissible outside limit that the Complex may delay mail, without violating the right of access to the Courts. Similarly, the Court cannot condone procedures that would allow the Complex any longer time to delay where the inmate initiates the mailing. Initiate means, in this instance, from the time the letter is sealed by the inmate for mailing. The Complex will be required to modify its regulations regarding censorship of mail to and from attorneys in accordance with Moore v. Ciccone, supra, as interpreted by this Court. It is axiomatic that no less can be tolerated for mail to and from the Courts themselves. 9. Lastly, the parties have raised and stipulated to issues regarding the loss of good time at the Complex. The various Nebraska statutory provisions regarding good time are found in Appendices L, M and N. It should be noted that § 83-1,107, Appendix M, makes a distinction between statutory good time which shall be credited and meritorious good time which may be credited. A good discussion of the distinctions between the two types of good time can be found in Sawyer v. Sigler, 320 F.Supp. 690. [D.Neb.1970], The regulations regarding good time as contained in the Inmate Handbook are found in Appendix O. A sampling of the rules for which violations thereof have resulted in the loss of good time can be found in Appendix P. The most recent regulations regarding the Adjustment Committee (the quasi-judicial board that passes on inmate infractions, formerly the Disciplinary Committee) for the penitentiary unit can be found in Appendix Q. There are some very similar regulations in force ..for the Reformatory unit. At the hearing that this Court held, the following additional evidence was adduced. Warden Wolff testified that the procedure used now by the prison in taking away good time is as follows: (a) The chief correction supervisor reviews the “write-ups” on the inmates by the officers of the Complex daily; (b) the convict is called to a conference with the chief correction supervisor and the charging party; (c) following the conference, a conduct report is sent to the Adjustment Committee; (d) there follows a hearing before the Adjustment Committee and the report is read to the inmate and discussed; (e) if the inmate denies charge he may ask questions of the party writing him up; (f) the Adjustment Committee can conduct additional investigations if it desires; (g) punishment is imposed. Warden Wolff stated that only a small number of the write-ups are forwarded to the Adjustment Committee, with most being resolved without action at the lower levels. Plaintiff McDonnell stated that on occasion he had been called before the disciplinary committee but was not made aware of the charge until after he arrived before the committee. . Inmate Robert Emory stated that he had lost good time for such things as messing up the “count up” (5 days), cussing a guard, and bringing a sandwich into the shop. In none of these instances was Emory taken to the Adjustment Committee for hearing. When Emory has been before the Adjustment Committee the Committee has never failed to have taken good time away. Inmate James E. Botts stated that in January of 1971 he was taken before the Disciplinary Committee and charged with taking part in an “insurrection” by black inmates. He was found guilty and punished by forfeiting 90 days good time and being placed in segregation for 14 days. Inmate Ronald Jackson stated that in July and September of 1971 he was charged with cursing an officer and threatening his life, for which Jackson lost 70 days of good time. Inmate Roger Simons stated that at various times he has had either 5 or 10 days good time taken away for such infractions as “no socks”, “being on the wrong tier”, “no shave” or “contraband in his cell”. Simons stated that at no time was he warned of the violations until the good time was taken away and the officer who accused him was not present at any of the proceedings. Inmate David E. Nykeil stated that he appeared before a special disciplinary court in August of 1969 because he had refused to change cells; that he was not allowed to tell his side of the story; and was subsequently confined in a “dry cell” (without benefit of running water or a toilet) for 4 days. Inmate Douglas Montgomery stated that he was before the Adjustment Committee on September 19, 1969, for defending himself in a fight, despite witnesses to the effect that he did not start the fight. The punishment that he received was loss of all good time, placement in a dry cell in solitary confinement, and, as a consequence, had to wait an additional six months for parole. Inmate Rice stated that in June of 1971 he was sent to the Adjustment Committee for refusing an order to work, but that during the hearing he was not allowed to produce his own witnesses, nor was he allowed to confront his accuser. The punishment was loss of good time and 5 days in solitary confinement. On another occasion, Rice was written up for refusal to work when he was, in fact, in the hospital, and that when the true situation was learned the decision of the Adjustment Committee was to hold the report in abeyance. Rice believes this gives the Administration a future weapon and that the report should have been destroyed. Rice said that he has been before the Adjustment Committee several times, but in no instance was the accusing officer present. According to Rice, although he has been before the Adjustment Committee nine times, he has never been made aware of the charge before arriving at the hearing. On September 8, 1971, Rice was sent to the adjustment center for 43 days for failure to get a conforming haircut and suffered a loss of some good time as well. Of the 43 days, 12 were spent in a dry cell. Inmate David Wade stated that he has appeared before the Adjustment Committee several times and that in none of the instances was the reporting officer present. Inmate Gary Flynn stated that he had been before the Adjustment Committee four times for being drunk and that in none of the instances was the officer present who wrote him up. Inmate Bobby Lee Maxwell stated that in his hearing before the Adjustment Committee he was not allowed to call any witnesses to support his side of the case and that none of the accusers was present. Maxwell added that he has lost all the good time he could possibly earn in the future, which includes statutory good time. Inmate Terry Owen stated that in January of 1971 he had 5 days of good time taken as a result of a peaceful strike and the following day 90 additional days for the same offense. Later, Owen stated that he had 5 days of good time taken, his mailing and visiting privileges suspended and was placed in solitary confinement and on a restricted diet for “cussing an officer.” In the latter hearing, the accusing officer was not present. Inmate Donald Johnson stated that he was called before the Disciplinary Committee and charged with “sniffing”. Johnson was not informed of the charge in advance and the accusing officer was not present. He lost all his good time and was sent to solitary for 9 days. Inmate James Rollins stated that on April 28 or 29th, 1971, he had a hearing before the Adjustment Committee and lost 38 days extra earned good time and 16 months statutory good time without the accusing officer being present. Inmate Anthony Jay Rogers stated that around January of 1970 the warden called all the inmates together and said that he was not absolutely sure he could still give extra good time for giving blood. Inmates continued to give blood in 1970 and all inmates who were paroled or discharged in 1970 were given credit for their “blood-time.” But then, on January 1, 1971, the inmates still in prison lost all the blood-time which, for Rogers, amounted to 45 days. Inmate Hart stated that he was placed in solitary for a month for organizing a protest against the warden. Inmate Harold L, McGhee stated that he had on occasion lost good time without being notified as to amount, when taken, or for what reason. Inmate Sammie L. Barbary stated that he had 90 days of good time taken for a sit down strike, during which the inmates were trying to get a better policy at the institution. Inmate Dan Oldfield stated that in November of 1970 he lost 15 days of good time for “loitering.” Oldfield was not notified of the charge prior to hearing and the accusing officer was not present. It is evident that the procedure described by Warden Wolff in his testimony has not in practice been followed in all instances. Courts have begun in recent years to recognize that fundamental due process is a right of all persons, including inmates, and have specifically held that before good time or other substantial rights may be taken there must be an impartial tribunal, notice, a hearing, a right to cross-examination of adverse witnesses, that the decision be based upon evidence adduced at the hearing, and that the inmate be allowed representation if he so desires. See, e. g., Landman v. Royster, 333 F.Supp. 621 [E.D.Va.1971]. However, the Eighth Circuit has not yet followed the trend regarding application of procedural due process to good time revocation, but continues to view the problem in terms of the right/privilege dichotomy that was popular prior to Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 [1970] and its progeny. Douglas v. Sigler, 386 F.2d 684 [8th Cir. 1967], Such a position was recently affirmed in Morrissey v. Brewer, 443 F.2d 942 [8th Cir. 1971], which, although the question was then of parole revocation, must be applicable to good time as well. See Judge Urbom’s memorandum and order of dismissal in McCoy v. Sigler, CV 71-L-119 [unreported memorandum D.Neb. May 13, 1971]. Thus, at this time, the Court will be compelled to hold that defendants must follow the Nebraska statutory procedure and no more. Were the Court free to decide, it would be inclined to follow the lead of the cases such as Landman v. Royster, supra,. The Nebraska statutory language of § 83-1,107 is to the effect that good time may be taken away “after the offender has been consulted regarding the charges of misconduct.” Further, § 83-185(2) provides that “[e]xcept in flagrant or serious cases, punishment for misconduct shall consist of deprivation of privileges. In cases of assault, escape, attempt to escape or other flagrant or serious misconduct” . . . the good time provided for in § 83-1,107 may be withheld. Failure to meet the statutory requirements of consultation and flagrant or serious conduct would result in a violation of federal due process. Rueth v. Sigler, CV 71-L-251 [unreported memorandum, D.Neb. Nov. 19, 1971]. In the case at bar, the evidence is insufficient to show that any inmate was deprived of the statutory right to consultation. According to Warden Wolff’s testimony consultation occurs at various levels in the adjustment process. The Court is not convinced that consultation by other than the Adjustment Committee itself satisfies the statutory requirement. However, the evidence that such consultations by the Committee do not regularly occur is isolated and confined to the statement of Inmate Emory. The Court is not convinced that the plaintiff has carried the burden of showing any deprivation of due process in this area of good time revocation. Reviewing the evidence previously summarized, it appears that good time has been revoked for such infractions as (a) messing up the “count up,” (b) cussing a guard, (c) bringing a sandwich into the shop, (d) insurrection, (e) refusal to work, (f) threatening an officer’s life, (g) “no socks”, (h) being on the wrong tier, (i) no shave, (j) contraband in cell, (k) refusal to change cells when ordered, (1) fighting, (m) nonconforming haircut, (n) drunkenness, (o) sniffing, (p) organizing a protest, and (q) loitering. The question now for the Court is which of these infractions are within the statutory language of flagrant or serious misconduct, for which good time may be taken. Examples of flagrant or serious misconduct are given by the statute as “assault”, “escape”, and “attempt to escape”. It seems apparent to the Court that fighting and threatening an officer’s life would be within the statutory definition. It seems equally apparent that “messing up the “count up”, cussing a guard, bringing a sandwich into the shop, “no socks”, no shave, and failure to have a conforming haircut are not within the statutory definition and for which deprivation of privileges is the appropriate punishment. The defendants will be required to restore all good time taken for such offenses. On the other hand, such offenses as refusal to work, being on the wrong tier, contraband in cell, refusal to change cells when ordered, drunkenness, sniffing, organizing a protest and loitering are in the gray area of the statute and best left to the judgment of the Adjustment Committee, based on the facts of each case. Inmate Rogers’ statement regarding loss of blood time, in light of the provisions in the Inmate Handbook, see Appendix 0 (which was not shown in the evidence not to be still in full force and effect) amounts to a denial of due process. Defendants will be required to re-credit all blood time earned by plaintiffs in 1970 and taken away on January 1, 1971. An order in accordance with this Memorandum will be entered contemporaneously herewith. APPENDIX A CONTENTS OF INMATE LAW LIBRARY Northwestern Reporter, 1st Series, Volumes 1-300. Northwestern Reporter, 2nd Series, Volumes 1-112, Bound. Soft Back, 169-186. Nebraska Reports, Bound Vols. 168 to 184. Nebraska Supreme Court Journal, (subscription) 183 to 187. Nebraska Digest, Vols. 1 to 12 and Index. Attorney Generals Reports, Nebr. 1957 through 1964. Laws of Nebraska, Bound vols, for 1957, 1959, 1961, 1963, 1965, 1967, 1969. Laws of Nebraska, preliminary print, 1971. Nebraska Statutes, 1964 Edition, Cum.Supp.1961, 1963, 1965, 1967. Shepards Nebraska Citations, Cases analyzed, 1969 Bound Volume. Shepards Nebraska Citations, Const.Laws.Stats.Rules, Analyzed, 1969 Bound Vol. Subscription to Nebraska Citations Supreme Court Reporter, Bound vols 57 through 81a, Advance sheets, 87 through 90. U. S. Reports, Preliminary Prints, 368, 375 through 403 (subscription) Preliminary Prints advance sheets from Clerk U.S.Sup.Ct.Ea.Week. U.S.C.A. 1970 Bound, 18, 28, 42-U.S.C.A. 1971 Title 1 to End. United States Code, 22 Bound Volumes, 1961 United States Code, 8 Bound Volumes, 1964 Shepards U. S. Citations, Bound volumes 1964. Shepards U. S. Citations, 1971 advance sheet. Shepards Federal Reporter Citations, 1967 Advance Sheet. Shepards Statutes of Court Rules, 1943-1964. Federal Supplement, from 235 F.Supp. to 324 F.Supp. Federal 2d Reporter, from 335 F.2d to 440 F.2d. American Juris. Legal forms, vols. 1-14. American Juris. Volumes 1 to 58. Corpus Juris. Vols. 1 to 71 A.L.R.2d vols. 1-4, 1960-1964. Reids Branson, Instructions to Juries, vols. l-5a. American Law and Procedure, Bound vols. 1-14. Whartons Criminal Law and Procedure, vols. 205. Whartons Criminal Evidence, Vols. 1-3. Blacks Law Dictionary, 1968 Edition. Rules of Civil Procedure, and title 28, 1968 Edition. Rules of Criminal Procedure, and Title 18, 1968 Edition.. Prosser on Torts Carrington, Civil Procedure — eases and comments. Perkins, Criminal Law. Perkins, Cases on criminal law and Procedure. Sullivan, et al — Administration of Criminal Justice — cases and comments. Sullivan, et al — Administration of Criminal Justice — -cases and comments, 2nd edition. Inbau — cases and comments — Criminal Justice. Jones, et al — Cases and Materials on Contracts Bade — Cases on real property. Babb — Negotiable Instruments. McKelvy on Evidence. Rottsehaifer — A Handbook of American Constitutional Law. Holmes — The Common Law Wiener — -Briefing and Arguing Federal Appeals. Trumbull — Materials on Lawyers Professional Responsibility. Evidence, Nebraska Bar Association. Dickerson — Fundamentals of Legal Drafting. STATE OF NEBRASKA COUNTY OF LANCASTER I, Jimmy D. Maddox, being first duly sworn, depose and state that the foregoing in (sic) a true and accurate list of the legal Books and materials presently in the Inmate law library and available to all inmates of the Pen Unit of the Nebraska Penal Complex. /S/ Jimmy D. Maddox_ Subscribed and Sworn to before me this 10 day of September, 1971. Signature of Notary not visible. APPENDIX B RECEPTION AND DIAGNOSTIC CENTER The first month of your stay will probably be more difficult for you than any other period. You must get used to the new surroundings, people, and restrictions that will be imposed upon you because of your loss of freedom to do as you wish. You will not be allowed to participate in some of the activities of the complex which will later be open to you. This first month of your stay here is referred to as the Orientation Period, and there are reasons why you receive special treatment during this period of time. First of all, it is necessary to avoid the possibility of communicable diseases which might be carried in with a new man. It is necessary that you be available for examinations, testing and interviews with staff personnel. Also during this period of time, the rules and regulations to which you will be expected to conform will be explained to you. You will be advised as to why these regulations are in effect by the Director of the Reception and Diagnostic Center. It is not expected that you will agree with all of the rules. However, by trying to understand the reasons for them, you should be able to avoid any unnecessary situations which could prevent your making the best possible use of the time you have to do. During this first month various department heads and supervisors will describe and explain the different programs and self-betterment activities in which you might participate. You will have to work. The complex would prefer that the work you do and the programs you participate in will help you become better equipped and determined to earn an honest living when you are released. While all this is going on, a thorough investigation of your past history will be made so that an accurate case study can be compiled. Upon completion of your orientation period, you will appear before the Initial Classification Committee. Here, decisions will be made as to your initial custody, unit, living quarters, job assignment, school program, vocational training and other requirements necessary during your stay in the complex. These decisions are based on your past history, and the institutional record of your accomplishments or lack of them. APPENDIX C Legal Work A legal advisor has been appointed by the Warden for the benefit of those offenders who are in need of legal assistance. This individual is an offender who has general knowledge of the law procedure. He is not an attorney and can not represent you as such. No other offender than the legal advisor is permitted to assist you in the preparation of legal documents unless with the specific written permission of the Warden. All requests to see the legal advisor or to do legal research in the legal library, must be submitted to the Captain’s Office, who will then place you on a pass to see the advisor or to do legal work. Legal material in the library cannot be taken to your living quarters. Any time it is necessary to have legal papers notarized, send an interview request to the Captain’s Office, stating your need. APPENDIX D The duties of the Inmate Legal Assistant are to assist any inmate unable to help himself in presentation of his claims of deprivation of his constitutional rights to the Court. Once the initial petition is prepared and submitted to the Court, and an attorney is appointed, the responsibility of the Inmate Legal Assistant is terminated. Each New receptee is advised of his rights of appeal during his first week in the Reception Center. Should he wish to appeal his sentence or conviction, special forms for notice of appeal have been prepared for just this purpose. The inmate simply fills in the blanks with the necessary information, has them notarized and mailed to the Court. Any Inmate that wishes to make use of the Inmate law library, for his own personal research, fills in the special request and submits it to the Captains Office indicating the date he wishes to have access to the Law Library. The available nights, are Monday through Friday. Should any inmate of the Pen Unit wish to prepare his own personal petitions, and then have them typed by the Legal Assistant, he simply indicates the Number of copies he wishes and they are typed and returned to him. Should the Inmate wish to type his own petitions, a typewritter has been supplied for just this purpose. Any inmate may use the typewriter during Legal Research hours. If an Inmates Brief is to the Nebraska Supreme Court or the Eighth Circuit Court of Appeals, facilities have been arranged so that the legal Assistant or the Inmate only has to type the original Copy, the rest is photostated and duplicated in the Records office. Inmates of the Reformatory Unit can consult with the Legal Assistant from 12:00 noon to 5:00 p. m, every thursday. At the Reformatory Unit, Reference books and other legal Material have been provided for the inmates. All duplicate books are transferred from the Pen Law Library to the Ref Unit. But should any book desired by an inmate not be in the Ref Unit library but in the Pen Unit Library, this Book is brought with the Legal Assistant on Thursday and checked out to the Inmate who must return the Book on the Following Thursday. Should the book not be found in either Library, it can be obtained from the Librarian at the University of Nebraska Law Library, arrangements have been in effect for the past Eight Months to loan any volume to the Legal Assistant for a period of 10 days. During each Thursday visit to the Reformatory, every inmate who has requested an interview is called in to talk to the Legal Assistant, since its implimation (sic) over Eight Months ago an average of 9 Inmates are seen each Thursday, some weeks the total in (sic) only 5-6 other weeks as high as 15. During these interviews, the inmates problems are discussed and the best course of action is determined. If the inmate wishes to file under the post-conviction act, special writ forms have been prepared, (similar to the Federal Habeas Corpus form) should the inmate wish to institute divorce proceedings he is then referred to the Lincoln Legal Service Society. Books and Material available at the Ref Unit are: REVISED STATUTES OF NEBRASKA, COMPLETE, 1964 EDITION, CUM.SUP. 61 & 63 FEDERAL REPORTER 2d SERIES FEDERAL SUPPLEMENT SHEPARDS CITATIONS OTHER REFERENCE BOOKS /S/ Jimmy D. Maddox_ JIMMY D. MADDOX INMATE LEGAL ASSISTANT APPENDIX E To: All Inmate Bulletin Boards From: Maurice H. Sigler, Warden Date: June 8, 1971 Re: Inmate Law Library M-71-403 Any person wishing to use the inmate law library for legal research must fill out the legal research pass request (blue form) that is maintained by the officer in each living quarters. This request must be turned in to the cellhouse officer prior to 12:00 noon on the date you wish to have the pass issued. These requests will be forwarded to the Captain’s Office and a decision made, because of limitation of numbers who will be allowed to be in the area at one time, as to who' will be allowed to do legal research on a given date, and the pass will be issued. This procedure is being written to try to avoid any delay of those wishing to exercise their legal rights by utilization of this legal library. /S/ Maurice H. Sigler Warden APPENDIX F M-71-402 To: All Concerned From: Maurice H. Sigler, Warden Date: May 25, 1971 Subject: Hours for Inmate Law Library and Legal Research For the purpose of legal research, the following hours will be observed : Monday evening, one hour from 6:00 to 7:00 p. m. Tuesday evening, two hours from 5:00 to 7:00 p. m. Wednesday evening, two hours from 5:00 to 7:00 p. m. Thursday evening, two hours from 5:00 to 7:00 P. M. Friday evening, one hour from 6:00 to 7:00 p. m. Reformatory Unit, Thursday from 12:30 to 2-iSO-p. m. 5:00 p. m. (handwritten) /S/ Maurice H. Sigler_ Warden Distribution: Inmate Bulletin Boards Warden All Staff Members Lieutenants File APPENDIX G REFORMATORY UNIT The Reformatory Unit is classified as a median institution and is designed in general for the benefit of the first offender of a nonviolent offense. The specific function is to help you plan and carry out an institutional program which can equip you for useful citizenship upon release. Job assignments, educational facilities, vocational training, self-improvement groups, group therapy and recreational facilities are a few of the areas available in helping make this time serve you. Should you have any problems or questions, contact the Associate Warden-Reformatory Unit, or your Counselor by means of an interview request. APPENDIX H M-71-406 DATE: TO: FROM: SUBJECT: June 30, 1971 All Concerned Maurice H. Sigler, Director Adjustment Center Legal Counsel In order to insure the most effective method of facilitating individuals use of the legal assistant, it has been necessary to change the scheduling. In the future, the following procedure will be used for those inmates living in the Adjustment Center requiring legal assistance. Effective immediately the inmate Legal Assistant James Maddox, #24017, will be escorted by a shift lieutenant, Thursday Mornings at 9:00 A.M. to the Adjustment Center for legal counseling and remain until 10:45 A.M. if necessary. Maddox, will be stripped and searched when entering and before leaving the Adjustment Center, also any legal materials in his possession (sic) will be searched by the escorting lieutenant. The North Conference Room will be used for legal assistance. Adjustment Center Inmates who request legal assistance will be seen at this time. (Only one Adjustment Center Inmate will be permitted out of his cell and in this room at one time.) There will be the escorting shift lieutenant and one extra officer in the Adjustment Center where the Inmate Legal Counselor is interviewing Adjustment Center Inmates. /S/ Maurice H. Sigler Maurice H. Sigler, Director Division of Corrections APPENDIX I MAILING AND VISITING PRIVILEGES Mailing and visiting will be an important part of your life while you are here, therefore, it is necessary that you know all the regulations. During the Orientation Period a mailing and visiting list will be made. Immediately after investigation and approval, you will be allowed to write to the following persons who are described as your immediate relatives: your parents or step/parents; wife; your children; grandparents; brother and sisters. Mailing and visiting regulations permit you to have a total of ten (10) separate units on your list. You are allowed to have no more than three (3) friends, including one female friend. Those persons classified as friends are: aunts, uncles, nieces, nephews, cousins, in-laws, and acquaintances. These persons must first be approved and will not be added to your mailing and visiting list until a complete investigation has been made. Correspondence and visiting with one (1) female friend is permitted only when it is determined that both you and the female friend are single and free to marry. She must be eighteen (18) years of age or older and must have her parents or guardian’s consent unless she is over twenty-one (21) years of age. Three (3) free stamp credits are furnished to each offender per month, for three (3) free letters. This is paid by the complex. Any remaining letters must be paid for by you through the purchase of stamp credits from the inmate stores. The three stamp credits may be accumulated until the end of the respective year, at which time, if the stamp credits are not used they will be erased from your postage account. Postage stamps are contraband and are not allowed in your possession at any time. Mailing and visiting regulations do not permit you to have the following on your list: 1. Co-defendants (persons involved in your crime.) 2. Children under the age of 18 other than your own children and your brothers and sisters. 3. Minors over 18 years of age without the consent of their parents. 4. Married women, other than your wife, daughters, mother, sisters, and grandmothers. The husbands must be present when they visit. 5. Patients or offenders of other institutions, parolees, or probationers, unless they are members of your immediate family, and may be restricted to correspondence only. 6. Persons with a police record. Once your mailing and visiting list has been compiled, no additions or deletions to your list may be made on other than the following dates: Jan. 1-5 May 1-5 Sept. 1-5 Any time you have a change of address, send an interview request to the Mail Room, giving them the following information: Old Address Mr. & Mrs. John & Mary Doe 132 S. Main Street Anywhere, Nebraska (brother/sister-in-law) 68502 New Address Mr. & Mrs. John & Mary Doe 1001 Pie Square Somewhere, Nebraska 68501 Do not attach letter for mailing to the kite. Deposit the letter in regular mail box. You are permitted to write six (6) letters a week to those on your approved list. This number does not include business or legal letters. Notwithstanding restrictions on correspondence required by security and administrative reasons, business letters will be screened by the institutional counselors and legal documents (courts, judges) will be sent to Associate Warden-Reformatory or Associate Warden-Treatment for processing. The contents of the letter itself must be confined to strictly the special purpose for which the letter is intended. Letters directed to the Governor, Secretary of State, Attorney General, Director of Corrections, may be sealed and sent out. These letters are forwarded to the Associate Warden-Reformatory or Associate Warden-Treatment for mailing. All other letters must be left unsealed. All incoming and outgoing mail will be read and inspected by the mail room officers and must be in English. The writing must be legible and large enough to be easily read. Letters must be written or printed on one sheet of stationery (J-304) using both sides of the sheet if necessary. Only one letter per envelope is allowed. Make certain you leave enough space at the bottom of each letter for your full name and number. It is necessary that your name and number be written on the inside of the flap of the envelope and that your committed name appears on the line pro