Full opinion text
MEMORANDUM OPINION CARL O. BUE, Jr., District Judge. I. THE NATURE OF THE LITIGATION In these three closely related civil actions plaintiffs, prisoners in the custody of the Texas Department of Corrections, seek injunctive relief in an effort to bar defendant, a VISTA lawyer who is licensed to practice law in the State of Texas, from the prison system as a result of her alleged activities to organize and, in effect, to instigate an uprising among the inmate population within the Texas prison system. Jurisdiction is predicated upon (1) the Civil Rights Act of 1871, 42 U.S.C. § 1983; (2) diversity of citizenship, 28 U.S.C. § 1332; and (3) the Court’s pendent jurisdiction in conjunction with the Texas injunctive statute, Tex.Rev.Civ.Stat.Ann. art. 4642. A. THE COMPLAINTS In dramatically worded complaints plaintiffs allege that defendant has organized and implemented a conspiracy with recalcitrant inmate-clients which is aided by the unwitting acquiescence or response of prison officials or employees. Such conspiracy is allegedly aimed at the overthrow of the administration of the Texas Department of Corrections (TDC) by causing violence, threats of violence, unrest among inmates, planned incidents and confusion through the dissemination of false rumors. It is alleged that defendant in furthering her plans in conspiracy with other inmate-clients has caused plaintiffs to be threatened and beaten because they would not yield to such plans to promote unrest and violence within the various units of the TDC. It is additionally asserted that in effecting the conspiracy defendant has made over five hundred visits to various inmates in the TDC and that through the use of the rules regulating such visits and the unwitting acquiescence or response to the TDC officials in permitting her to see them she has succeeded in establishing numerous ostensible attorney-client relationships in furtherance of her conspiratorial goals. The claim is made that as a consequence plaintiffs have suffered irreparable injury in derogation of their right to be free from harassment, intimidation, physical injury, threats of death, and cruel and unusual punishment pursuant to the Fourteenth and Eighth Amendments of the United States Constitution as well as deprivation of their vested rights and privileges as inmates of the TDC pursuant to Texas statute. In the first lawsuit plaintiff Dreyer alleges that the defendant attempted to recruit him to join the unlawful conspiracy and upon his repeated refusals he was threatened and later beaten by her inmate-clients and agents. This prisoner also contends that he lost his prison job and privilege to work as a result of these actions. In the second lawsuit, plaintiff Slayman asserts that defendant attempted to coerce him into signing a false statement concerning the death of a fellow inmate in which the blame was to be squarely placed upon the brutality of prison officials. This prisoner also contends that defendant attempted to coerce him into testifying in Court about brutality practices of prison officials of which he had no knowledge or desire to give testimony. Thereafter, defendant’s inmate-clients allegedly threatened this prisoner’s life. In the third lawsuit, plaintiff Lock asserts that the defendant attempted to coerce him into signing a fictitious statement which charged that a warden had brutally beaten him. Upon his repeated refusals, this prisoner was allegedly threatened and later beaten by defendant’s inmate-clients. B. THE ANSWERS AND THE COUNTERCLAIMS In response to plaintiffs’ charges, defendant asserts that the various complaints fail to state a viable cause of action under the Civil Rights Act, 42 U. S.C. § 1983, and that there is a lack of diversity jurisdiction under 28 U.S.C. § 1332. In regard to the latter contention it is urged that there is both a lack of diversity of citizenship and an absence of the requisite jurisdictional amount in controversy in order to satisfy such statute. The defendant further contends that the rights asserted to have been violated are incapable of the requisite pecuniary valuation. It is also claimed that only plaintiff Lock may seek relief based upon any theory of pendent jurisdiction since, according to defendant, only he has properly pleaded for such relief. With regard to the specific factual allegations of the plaintiffs, defendant asserts that the visits and the communications with the inmate-clients at TDC were entirely legitimate attorney-client relationships which never embraced the consideration of violence in any form. Defendant contends that any inmate response to her efforts to assist them was a necessary concomitant of a justifiable and legal pursuit to rectify improper practices and conditions predominating in the TDC. It is further urged that if plaintiffs were, in fact, harassed or beaten by fellow inmates, which is denied, such actions were not in any way suggested, encouraged, approved, or acquiesced in by defendant. Finally, it is contended that these lawsuits were specifically instigated by plaintiffs as a result of promises of benefits made to plaintiffs including early paroles, or, conversely, as a result of threats of reprisal by TDC officials if there was a lack of cooperation in the prosecution of these actions by the plaintiffs. In further response to plaintiffs’ complaints, defendant has counterclaimed in each action for damages. In these counterclaims it is asserted that the complaints of plaintiffs,, are a part of an overall conspiracy originated and manipulated by the Director of the Texas Department of Corrections and joined in by the Attorney General of Texas to deprive defendant of her right to practice law and to consult wi1#’ inmate-clients confined at the TDC. In this regard defendant asserts that in the course of her representation of inmate-clients various meritorious civil actions have been instigated against the TDC. It is contended that as a result of these actions inmates have been successful in some instances in having many condemnatory TDC practices and conditions censured by Court ruling. Defendant urges that the TDC Director and the prison administration have attempted to bar her from representing inmates solely to preclude further public criticism and adverse court action condemning the operations and management of the TDC. The effect of this conspiracy, according to the counterclaims, will be to terminate the attorney-client relationships which presently exist between defendant and certain inmate-clients with a resulting interference with her right to practice law. To secure the ouster of defendant, it is alleged in the counterclaims that the TDC Director and State Attorney General have used the plaintiffs as mere unknowing conduits in this unlawful conspiracy. It is asserted that as a result of this conspiracy defendant has suffered anxiety, distress and a loss of reputation as a practicing lawyer to her substantial professional and monetary detriment. C. THE PRELIMINARY MATTERS Preliminarily and prior to the evidentiary hearing in these civil actions, the Court, upon application of the inmate plaintiffs and submission of proof of indigency, appointed counsel to represent each of them in these proceedings. Inasmuch as all three actions involved a common question of law and closely related facts, and upon the motion of defendant, the Court ordered a consolidation of the lawsuits pursuant to Rule 42(a), Fed.R.Civ.P. See Ellerman Lines, Ltd. v. Atlantic & Gulf Stevedores, Inc., 339 F.2d 673 (3d Cir. 1964), cert. denied, 382 U.S. 812, 86 S.Ct. 23, 15 L.Ed.2d 60 (1965). Similarly, in order to avoid an unnecessary complication of issues at the evidentiary hearing and to advance judicial expedition and economy, the Court ordered that the counterclaims of defendant be severed pursuant to Rule 42(b), Fed.R.Civ.P. See Big Cola Corp. v. World Bottling Co., 134 F. 2d 718 (6th Cir. 1943). As a final preliminary matter, the Court denied defendant’s motion or application, prior to the evidentiary hearing, to proceed in forma pauperis in defense of these lawsuits pursuant to 28 U.S.C. § 1915. However, at the time of the hearing defendant submitted a second in forma pauperis application. The second application was predicated on the alleged basis that a material change in defendant’s financial status had recently occurred, primarily the added cost of supporting her newly acquired husband, Fred A. Cruz, meriting reconsideration of the application. In order to properly resolve the propriety of defendant’s application for leave to proceed in forma pauperis, it is necessary to survey the applicable law in some depth. The in forma pauperis statute provides that a trial court “may authorize the commencement, prosecution or defense of any suit . . . without prepayment of fees and costs . . . by a person who makes affidavit that he is unable to pay such costs . . . .” 28 U.S.C. § 1915. It is clear that this statute does not create an absolute right to proceed in civil actions without payment of costs. To the contrary, the statute conveys only a privilege to those unable to pay costs without undue hardships. Startti v. United States, 415 F.2d 1115 (5th Cir. 1969). In Adkins v. E. I. DuPont de Nemours & Co., 335 U.S. 331, 339, 69 S.Ct. 85, 89, 93 L.Ed. 43 (1948), it was stated that a proper showing of poverty, as required by the statute, had been made if “one cannot because of his poverty ‘pay or give security for the costs . . . and still be able to provide’ himself and dependents ‘with the necessities of life.’ ” The court then elaborated on this principle as follows: To say that no persons are entitled to the statute’s benefits until they have sworn to contribute to payment of costs, the last dollar they have or can get, and thus make themselves and their dependents wholly destitute, would be to construe the statute in a way that would throw its beneficiaries into the category of public charges. The public would not be profited if relieved of paying costs of a particular litigation only to have imposed on it the expense of supporting the person thereby made an object of public support. Nor does the result seem more desirable if the effect of this statutory interpretation is to force a litigant to abandon what may be a meritorious claim in order to spare himself complete destitution. We think a construction of the statute achieving such consequences is an inadmissible one. 335 U.S. at 339-340, 69 S.Ct. at 89. Similarly, in Evensky v. Wright, 45 F. R.D. 506, 507-508 (N.D.Miss.1968), it was stated that: The privilege of proceeding in for-ma pauperis should not be reserved for those that are destitute, nor should a man be forced to go hungry to maintain his suit. But something more than the mere statement and an affidavit that a man is “poor” should be required before a claimant is allowed to proceed in forma pauperis It is readily apparent that there are no “magic formulas” for making the determination that the requisite in forma pauperis status is present, but instead, there is required a careful scrutiny and weighing of all of the relevant facts and circumstances involved in each particular situation. In order to preclude fraudulent or careless motions of poverty, the applicant moving for in forma pauperis status should state “with some particularity, definiteness and certainty” the facts as to his poverty. Jefferson v. United States, 277 F.2d 723, 725 (9th Cir.), cert. denied, 364 U.S. 896, 81 S.Ct. 227, 5 L.Ed.2d 190 (1960). Further, when the totality of the circumstances involved are weighed against the applicant’s statement of poverty, and the result suggests incongruity, the Court may go beyond the mere statement of income and inquire into additional relevant matters including the applicant’s earning capacity and ability. In Roberts v. I-T-E Circuit Breaker Co., 316 F.Supp. 133, 134 (D.C.Minn.1970), the court in denying a motion to proceed in forma pauperis indicated that: There is something incongruous in an application by one who has earned as much as did plaintiff during his last five years of employment and who claims now he is unable to earn anything. . . . His earning ability and capacity in the court’s opinion should be sufficient to enable him, if he is sincere in his belief, to garner sufficient earnings to finance the cost of his appeal. See Carroll v. United States, 320 F.Supp. 581 (S.D.Tex.1970). See generally, 6 Moore’s Federal Practice ¶ 54.74 (2d Ed. 1971). Defendant, who is a lawyer and who was represented at the hearing by six lawyer-members of the American Civil Liberties Union, claims that she is unable, without undue hardship, to pay the costs to defend these lawsuits. The financial information supplied to the Court by defendant reflects that she had a gross income in 1970 of $11,902.32 and a gross income in 1971 of $4,608.55. Prior to trial, and at the time of the first application for leave to proceed in forma pauperis, defendant represented that she had a net income of $297.12 per month as a VISTA lawyer. At trial, and at the time q-f” the second application, defendant represented that she would receive a gross income of $400 per month as a Harris County Legal Assistance, Inc. lawyer. It was further represented that her husband^ Fred A. Cruz, had received $240 in .income for the immediately preceding six weeks period from the NAACP Legal Defense and Educational Fund, Inc. In view of the fact that the costs, as the Court sees them, are insubstantial and in view of the defendant’s statement of income, professional status, broad legal educational background and resources to secure sufficient funds to defend these actions without apparent undue hardship, the second motion to proceed in forma pauperis is also denied. D. THE MOTIONS TO DISMISS AND THE COUNTERVAILING NEED FOR DEVELOPMENT OF THE FACTS Defendant urged repeatedly with unusual vigor that these causes be summarily dismissed prior to evidentiary hearing for lack of jurisdiction over the subject matter and/or for failure to state a claim upon which relief can be granted pursuant to Rule 12(b), Fed.R. Civ.P. This court denied the motion in each instance. At that time the Court felt that the posture of the jurisdictional facts was far from clear. The very nature of the subject matter as well as the highly disciplined, closed and secretive atmosphere characteristic of penal institutions compounded the need for clarification of the factual issues in these highly unusual lawsuits. Clearly, the jurisdictional facts remained in issue as amplified through the extensive pretrial memoranda. The Court’s ruling to postpone ultimate decision on the jurisdictional issues until after the evidentiary facts were examined following the hearing was premised on several considerations. With regard to defendant’s motion to dismiss for lack of jurisdiction over the subject matter, it appeared obvious to the Court that the jurisdictional issues were inevitably interwoven with the merits of the lawsuits. Accordingly, the proper solution was to defer decision on the jurisdictional issues until after an evidentiary hearing. See Land v. Dollar, 330 U.S. 731, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947); McBeath v. Inter-American Citizens for Decency Committee, 374 F.2d 359 (5th Cir.), cert. denied, 389 U. S. 896, 88 S.Ct. 816, 19 L.Ed.2d 214 (1967). Considering plaintiffs’ jurisdictional allegations under the Civil Rights Act, which hinge on whether or not “state action” was involved, the Court’s decision was particularly appropriate in view of the United States Supreme Court’s recent ruling in a case involving the civil right against discrimination wherein it was stated that: While the principle is easily stated, the question of whether particular . . . conduct is private, on the one hand, or amounts to “State action,” on the other hand, frequently admits of no easy answer. “Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance.” Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627, 637 (1972). With regard to defendant’s motion to dismiss for failure to state a claim upon which relief can be granted, the oft-cited and frequently relied upon principle is that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). See Singleton v. Foreman, 435 F.2d 962, 968 (5th Cir. 1970). Again the peculiarities of the highly unusual situation of the plaintiffs and their allegations under the Civil Rights Act compel caution. The law dictates that a petition allegedly setting forth a cause of action under the Civil Rights Act should not be dealt with cavalierly and summarily dismissed prior to giving the petitioner “the opportunity to offer supporting evidence.” Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652, 654 (1972). The United States Supreme Court recently stated with regard to petitions of state prisoners that: Federal courts sit not to supervise prisons but to enforce the constitutional rights of all “persons” which include prisoners. We are not unmindful that prison officials must be accorded latitude in the administration of prison affairs, and that prisoners necessarily are subject to appropriate rules and regulations. But persons in prison, like other individuals, have the right to petition the Government for redress of grievances which, of course, includes “access of prisoners to the courts for the purpose of presenting their complaints.” Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263, 267 (1972). See Williams v. Wainwright, 461 F.2d 1080 (5th Cir. 1972); Campbell v. Beto, 460 F.2d 765 (5th Cir. 1972). E. THE JURISDICTIONAL ISSUES 1. CIVIL RIGHTS ACT OF 1871 These consolidated lawsuits present an issue of first impression. It is whether or not a VISTA lawyer allegedly acting in combination with certain inmates and through the unwitting acquiescence or response of prison officials and employees to engage in constitutionally deprivative . practices within the confines of a penal institution is empowered with sufficient state vested authority to be deemed to be acting under color of State statute, regulation, custom or usage within the meaning of the Civil Rights Act. The very nature of the rigidly controlled, closed and secretive atmosphere often found in penal institutions compounds the difficulty of “sifting facts and weighing circumstances” in order to make this jurisdictional determination. See Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972). There is a paucity of reported cases in which factual situations closely akin to those found in these lawsuits have been presented to courts for scrutiny. It is clear that the Civil Rights Act is inapplicable to private parties not acting against a backdrop of state compulsion or involvement, unless their activities result in a deprivation of protectable rights through a complete breakdown of state law or its enforcement. Historically, the Civil Rights Act of 1871 included in its formal title the following purpose: “An Act to enforce the provisions of the Fourteenth Amendment to the Constitution of the United States, and for other purposes.” 17 Stat. 13 (1871). As a result of a prolific volume of litigation in recent years, this seemingly shapeless Act has acquired some definitive guidelines and limits. A cursory examination of section one, 42 U.S.C. § 1983, and its related provision section two, 42 U.S.C. § 1985(3), of the Civil Rights Act of 1871 reflect that its ultimate purpose was, simply stated, to interpose the federal courts between the states and the people and thereby insure that the Fourteenth Amendment rights remained unabridged by the misuse of power or authority possessed by virtue of state law. The legislatures recognized that a backdrop of state compulsion or involvement can color private actions disproportionately with the result that such actions become as forceful and compelling as the laws of the state. In an attempt to cope with this potential loophole in the statutory scheme, section 1983 of the Act was expressly applied to “[e]very person who, [acts] under color of any statute, ordinance, regulation, custom, or usage, of any State”. In a further attempt to preclude indirect modes of activity from being employed to abridge the rights sought so forcefully to be protected and as a correlative provision to the latter section, section 1985(3) related to the conduct of two or more wholly private persons acting in concert to abridge Fourteenth Amendment rights with such overriding effect that the state was either unwilling or unable to cope with it. This includes the situation in which private action results in a complete breakdown of state law and the law of conspirators becomes, with regard to the rights sought to be protected, the law of the state. See Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Lynch v. Household Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972); Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Baldwin v. Morgan, 251 F.2d 780 (5th Cir. 1958). The requisites for establishing a cause of action under section 1983 were succinctly delineated in Adickes v. S. H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970), as follows: The terms of § 1983 make plain two elements that are necessary for recovery. First, the plaintiff must prove that the defendant has deprived him of a right secured by the “Constitution and laws” of the United States. Second, the plaintiff must show that the defendant deprived him of this constitutional right “under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory.” This second element requires that the plaintiff show that the defendant acted “under color of law.” Considering initially the second prerequisite for recovery under section 1983 according to Adickes, there generally is no question as to a person’s acting “under color of law” when that person is an official or agent of the state and is duly acting within his vested authority. However, not infrequently when the actions of private persons are under scrutiny, the involvement of the state is not immediately apparent, and the issue of state action in a particular factual situation can be resolved, as previously indicated, “[o]nly by sifting facts and weighing circumstances”. Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627, 637 (1972). Turning to the law most closely related to the facts in these lawsuits, it is obvious that the issuance of a license to a person does not color that person’s activities, without more, to establish state action. In Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972), it was held that a state’s licensing of a private club to dispense liquor does not render the club’s otherwise violative discriminatory guest policies by the Equal Protection Clause “state action”. The Court clearly indicated that: The Court has never held, of course, that discrimination by an otherwise private entity would be violative of the Equal Protection Clause if the private entity receives any sort of benefit or service at all from the State, or if it is subject to state regulation in any degree whatever. Since state-furnished services include such necessities of life as electricity, water, and police and fire protection, such a holding would utterly emasculate the distinction between private as distinguished from State conduct set forth in The Civil Rights Cases, supra, and adhered to in subsequent decisions. Our holdings indicate that where the impetus for the discrimination is private, the State must have “significantly involved itself with invidious discriminations,” ... in order for the discriminatory action to fall within the ambit of the constitutional prohibition. 407 U.S. at 173, 92 S.Ct. at 1971, 32 L.Ed. at 637 (citations omitted). It follows that the mere fact that a person holds a license to practice law issued by a state does not render that person’s actions those of the state. Skolnick v. Martin, 317 F.2d 855 (7th Cir. 1963). Further, the fact that the attorney is appointed by the court to represent a litigant does not alter the private nature of his actions. Mulligan v. Schlachter, 389 F.2d 231 (6th Cir. 1968); see Schack v. Starr, 440 F.2d 378 (5th Cir. 1971). Additionally, a legal aid lawyer or public defender is not vested with state authority, even though the organization involved is financed wholly or in part by state funds. Peake v. County of Philadelphia, Pa., 280 F.Supp. 853 (E.D.Pa.1968); Pugliano v. Staziak, 231 F.Supp. 347 (W.D.Pa.1964), aff’d, 345 F.2d 797 (3d Cir. 1965). Similarly, the issuance of a permit from the state to do an innocuous act which can be supplemented by private action to deprive another of basic rights does not create state action in the recipient. Guthrie v. Alabama By-Products Co., 328 F.Supp. 1140 (N.D.Ala.1971). Plaintiffs specifically contend that defendant was empowered with state action as a result of her availing herself of regulations of the TDC, and her securing the unwitting acquiescence or response of TDC officials, which permitted her to obtain unlimited access to her inmate-clients as an attorney. This theory falls short of its intended mark when compared to the theory offered and decisively rejected in the Moose Lodge decision. With regard to the prospects of the regulations of a state agency sufficiently coloring private actions to establish “state action”the Court in Moose Lodge concluded that: However detailed this type of regulation may be in some particulars, it cannot be said to in any way foster or encourage racial discrimination. Nor can it be said to make the State in any realistic sense a partner or even a joint venturer in the club’s enterprise. 407 U.S. at 176-77, 92 S.Ct. at 1973, 32 L.Ed.2d at 639. The prison regulations obviously fail to encourage or foster the alleged conspiratorial activities of defendant within the prison system. The only remaining question in this regard, as stated in Moose Lodge, is whether or not the involvement of the State was such as to render it “a partner or . . . joint venturer ip j, [defendant’s] enterprise.” 407 U& at 177, 92 S.Ct. at 1973, 32 L.Ed.2d at 639. Clearly concerted action, or closely intertwined conduct, of private parties and state officials establishes sufficient state involvement to satisfy the jurisdictional requisites. Smith v. Young Men’s Christian Ass’n of Montgomery, Inc., 462 F.2d 634 (5th Cir. 1972); Fulton v. Emerson Electric Co., 420 F.2d 527 (5th Cir. 1969), cert. denied, 398 U.S. 903, 90 S.Ct. 1689, 26 L.Ed.2d 61 (1970). However, in view of the evidence ultimately forthcoming at the hearing in these causes, it is apparent that the unwitting acquiescence or response of the TDC officials under these circumstances was not tantamount to concerted action related to defendant’s alleged conduct as a conspirator. Similarly, any action taken by TDC officials and employees to counteract defendant’s alleged conspiracy would not under these facts suffice to create “color of state law”, even though plaintiffs may have been deprived of a protectable right as a result. Accordingly, the facts as fully developed at the hearing compel the conclusion that plaintiffs’ efforts to bring an action under 42 U.S.C. § 1983 must fail. Finding a lack of direct state involvement sufficient to demonstrate state action under section 1983, the next step is to test the sufficiency of the indirect state involvement coupled with the interrelated issue of the sufficiency of the deprivative wrong involved so as to confer jurisdiction under section 1985(3). As has been pointed out heretofore, this section relates to purely private conspiracies. Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971). However, this section was not intended to confer federal remedies for all private conspiracies having the effect of depriving'others of constitutionally vested rights. 403 U.S. at 101-102, 91 S.Ct. 1790. In Dombrowski v. Dowling, 459 F.2d 190, 195 (7th Cir. 1972), it was properly indicated that: The breadth of the statute’s coverage is yet to be determined, but three categories of protected rights have been plainly identified. Griffin gives express recognition to a black citizen’s Thirteenth Amendment rights and to his federal right to travel interstate; the title of the statute expressly identifies the third category, namely, rights protected by the Fourteenth Amendment. We think the § 1983 cases make it clear that in this third category a “state involvement” requirement must survive Griffin. The Court concluded that: Since the Fourteenth Amendment, unlike the Thirteenth, affords the plaintiff no protection against discrimination in which there is no state involvement of any kind, a private conspiracy which arbitrarily denies him access to private property does not abridge his Fourteenth Amendment rights. 459 F.2d at 196. But see Action v. Gannon, 450 F.2d 1227 (8th Cir. 1971). It is also clear that a private conspiracy to violate a federal statute is actionable under this section. See Hayes v. United States, 464 F.2d 1252 (5th Cir. 1972). This, of course, would include a conspiracy to violate section 1983 of the Civil Rights Act. Birnbaum v. Trussell, 371 F.2d 672 (2d Cir. 1966). Obviously, the deprivative practices outlawed by section 1985(3) pertain to racial or other class-based conduct aimed at a denial of the equal enjoyment of basic rights. Having determined that the interests protectable from private conspiracies are not presented in the facts of these consolidated actions, this Court necessarily concludes that section 1985(3) is of no avail to plaintiffs. 2. DIVERSITY OF CITIZENSHIP UNDER 28 U.S.C. § 1332 Plaintiffs Dreyer and Slayman contend that they have viable causes of action under this Court’s diversity jurisdiction pursuant to 28 U.S.C. § 1332(a) since the diversity requisites are satisfied and Texas law confers a remedy for the rights sought to be protected. It is asserted that there is complete diversity of citizenship and that the value of the right sought to be protected exceeds the jurisdictional amount. These plaintiffs claim to be bona fide citizens of states other than Texas, even though presently incarcerated in a Texas prison. It is basic to federal jurisdiction that trial courts have jurisdiction over “civil actions where the matter in controversy exceeds the sum or value of $10,000” and is between citizens of different states. 28 U.S.C. § 1332(a). Citizenship in a state, within the meaning of the latter provision, requires more than mere residency. It is the domicile of a person that is controlling. Domicile is the place where a person has his permanent place of abode and to which he has the intention of returning whenever absent therefrom. Stine v. Moore, 213 F.2d 446 (5th Cir. 1954). It appears clear that an otherwise non-citizen of a state does not acquire a domicile, and hence citizenship, in a state merely because he happens to be incarcerated in that state. This is necessarily true, since there would be a total absence of intention or free choice to remain in the incarcerated state. H. Goodrich & E. Scoles, Handbook of the Conflict of Laws 46 (4th Ed.1964); see Eddings v. Pennsylvania, 311 F.Supp. 944 (E.D.Pa.1970); Hardy v. De Leon, 5 Tex. 211 (1849). From the evidence forthcoming at the trial, it appears that plaintiff Dreyer is a citizen of the state of Kansas and that plaintiff Slayman is a citizen of the state of Michigan. In order to establish jurisdiction, however, plaintiffs must also demonstrate that the amount in controversy exceeds the $10,000 jurisdictional minimum. This determination is to be made by federal standards, although the nature and extent of the rights sought to be protected are a matter of state law. Johns-Manville Sales Corp. v. Mitchell Enterprises, Inc., 417 F.2d 129 (5th Cir. 1969). In actions seeking injunctive relief the amount in controversy is measured by the value of the right to be protected or the value of the object to be gained. Fletcher v. Gerlach, 7 F.R.D. 616 (S.D.N.Y.1947); see Annot., 30 A.L.R.2d 602 (1953). The burden of proof in this regard is upon the plaintiff. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135 (1936). Absolute certainty in valuation of the right involved is not required, and a reasonable probability of an amount in controversy exceeding the jurisdictional amount suffices if the amount can be ascertained pursuant to some realistic formula. Berk v. Laird, 429 F.2d 302 (2d Cir. 1970), cert. denied, Orlando v. Laird, 404 U.S. 869, 92 S.Ct. 94, 30 L.Ed.2d 113 (1971); Friedman v. International Association of Machinists, 220 F.2d 808 (D.C. Cir.), cert. denied, 350 U.S. 824, 76 S.Ct. 51, 100 L.Ed. 736 (1955). In the Berk case the plaintiff, an Army private, sought injunctive relief precluding his dispatch to Vietnam asserting jurisdiction under 28 U.S.C. § 1331(a). The court noted that the jurisdictional allegations were challenged but then concluded that “the complaint can be construed as putting in controversy his future earning capacity, which serious injury or even death might diminish by an amount exceeding $10,000.” 429 F.2d at 306. However, if the matter in dispute is of a nature that is incapable of valuation in pecuniary terms, then the requisite amount in controversy cannot be demonstrated and, hence, diversity jurisdiction is lacking. Goldsmith v. Sutherland, 426 F.2d 1395 (6th Cir.), cert. denied, 400 U.S. 960, 91 S.Ct. 353, 27 L.Ed.2d 270 (1970). Whatever may be the proper method of objectively ascertaining and demonstrating the presence of the requisite amounts in controversy in these cases, plaintiffs have not seriously attempted to develop and prove it. Accordingly, with this essential requisite of federal diversity jurisdiction lacking, this Court must conclude that viable causes of action under 28 U.S.C. § 1332(a) have not been advanced by thes,e.,plaintiffs. 3. PENDENT JURISDICTION Plaintiffs next contend that this Court has pendent-', jurisdiction to issue appropriate injunctive relief in accord with Texas law. It is fundamental that where federal and nonfederal grounds for relief “derive from a common nucleus of operative facts” and are joined in a single cause of action the federal court has full jurisdiction to hear both claims. Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148 (1933); United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Anderson v. Nosser, 438 F.2d 183 (5th Cir. 1971), modified, 456 F.2d 835 (5th Cir. 1972); Whirl v. Kern, 407 F.2d 781, 793 (5th Cir.), cert. denied, 396 U.S. 901, 90 S.Ct. 210, 24 L.Ed.2d 177 (1969). See 1 W. Barron & A. Holtzoff, Federal Practice and Procedure § 23 (Wright Ed.1961). If the federal claim is not plainly wanting in substance, then the ultimate disposition of the federal claim is immaterial. Hurn v. Oursler, supra; Roberts v. Williams, 456 F.2d 819 (5th Cir. 1971); Brown & Root, Inc. v. Gifford-Hill & Co., 319 F.2d 65 (5th Cir. 1963); Strachman v. Palmer, 177 F.2d 427 (1st Cir. 1949); Sauls v. Hutto, 304 F.Supp. 124 (E.D.La.1969); Annot., 5 A.L.R.3d 1040 (1966); Annot., 12 A.L.R.2d 695 (1950). In fact, even if the federal claim is dismissed prior to trial, the trial court still has discretion, to be exercised in the interest of judicial economy, convenience and fairness to litigants, to hear and decide the merits of the state claim. Gem Corrugated Box Corp. v. National Kraft Container Corp., 427 F.2d 499 (2d Cir. 1970); Rogers v. Valentine, 426 F.2d 1361 (2d Cir. 1970). It is apparent that plaintiffs have alleged a substantial federal claim which was not plainly wanting in substance, but which ultimately dissipated only after the facts were distilled through the mass of proof presented at the trial. Accordingly, this Court has the discretion to hear and consider any valid state claim which arises out of the same common nucleus of operative facts as the federal claim and to dispose of the case upon the non-federal ground. United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). Turning now to the applicable Texas law, the Texas general injunctive statute, Tex.Rev.Civ.Stat.Ann. art. 4642, authorizes relief “[w]here the applicant is entitled to the relief demanded and such relief or any part thereof requires the restraint of some act prejudicial to him.” This statutory provision sanctions injunctive relief to protect both property and personal rights. Passel v. Fort Worth Independent School District, 440 S.W.2d 61 (Tex.1969). Various Texas courts have couched the personal rights to be protected in terms of “natural or contractual rights”, “basic civil rights” and “unalienable rights.” Hotel & Restaurant Employees’ International Alliance & Bartenders’ International League of America v. Longley, 160 S.W.2d 124 (Tex.Civ.App.—Eastland 1942, no writ); McMorries v. Hudson Sales Corp., 233 S.W.2d 938 (Tex.Civ.App.—El Paso 1950, no writ); Sims v. University Interscholastic League, 111 S.W.2d 814 (Tex.Civ.App.—Beaumont 1937), vacated on other grounds, 133 Tex. 605, 131 S.W.2d 94 (Tex.Comm’n App. 1939). It is a fundamental principle, however, that injunctive relief will not issue to restrain the commission of a tort unless irreparable injury will result for which the recovery of damages is an inadequate remedy. See Hawks v. Yancey, 265 S.W. 233 (Tex.Civ.App.—Dallas 1924, no writ); 4 J. Pomeroy, A Treatise on Equity Jurisprudence § 1347 (5th Ed.1941); Restatement of Torts §§ 933-43 (1939); Annot, 175 A.L.R. 438 (1948); see also Pound, Equitable Relief Against Defamation and Injuries to Personality, 29 Harv.L.Rev. 640 (1916); Long, Equitable Jurisdiction to Protect Personal Rights, 33 Yale L.J. 115 (1924). Texas courts also adhere to the principle that “a private individual cannot maintain a suit to enjoin the violation of a penal law, unless such violation results in damage to such person, peculiar to him, and not common to the public in general.” Woods v. Kiersky, 14 S.W.2d 825, 828 (Tex.Comm’n App. 1929). The governing policy consideration is that the criminal prosecution process should not be interfered with by equity when that process affords an adequate remedy. The notable exception to this rule is that if the party in question is imminently threatened with an irreparable injury which is peculiar to him and for which there is no adequate remedy, then equity will not leave him remediless. Kostoff v. Harris, 266 S.W.2d 204 (Tex.Civ.App.—Dallas, writ ref’d n. r. e.). Injunctions have been issued to preclude repeated or continuous physical assaults and slanderous conduct which are of a peculiar and irreparable nature and for which the aggrieved party had no adequate remedy. Hawks v. Yancey, 265 S.W. 233 (Tex.Civ.App.—Dallas 1924, no writ); Ex parte Warfield, 40 Tex.Cr.R. 413, 50 S.W. 933 (1899); Hunt v. Hudgins, 168 S.W.2d 703 (Tex.Civ.App.—Waco 1943, no writ). Equity has also protected “the exercise of natural and contractual rights from interference by attempts at intimidation or coercion.” McMorries v. Hudson Sales Corp., 233 S.W.2d 938, 942 (Tex.Civ.App.—El Paso 1950, no writ). The latter court clearly indicated that “[v]erbal or written threats may assume that character; [and] when they do they amount to conduct or threatened conduct, and may properly be restrained.” 233 S.W.2d at 942. As indicated heretofore, basic civil rights are within the ambit of personal rights to be protected. Thus, a student of a school or a member of an association has a cause of action and a commensurate injunctive remedy against the association or individual dealing with him when the actions of the association or individual result in deprivation of “a valuable civil right.” Sims v. University Interscholastic League, 111 S.W.2d 814 (Tex.Civ.App.—Beaumont 1937), vacated on other grounds, 133 Tex. 605, 131 S.W.2d 94 (Tex.Comm’n App.1939). Similarly, injunctive relief is appropriate to preclude third-party interference detiimental to an attorney-client relationship. Stuessy v. Byrd, Davis and Eisenberg, 381 S.W.2d 126 (Tex.Civ.App.—Austin 1964, no writ). Peculiar to the situation of the plaintiffs in these lawsuits is the fact that they are confined within a rigidly controlled, closed penal institution highly regulated by statute. This statutory scheme not only regulates prison practices and conditions, but also confers upon inmates certain rights and privileges. Basically, the statute provides that “those convicted of violating the law and sentenced to a term in the [Texas Department of Corrections] shall have humane treatment, and be given opportunity, encouragement and training in the matter of reformation.” Tex. Rev.Civ.Stat.Ann. art. 6166a. While the control of the prison system is vested in the Texas Board of Corrections, the Director has “power to prescribe reasonable rules and regulations governing the humane treatment, training and discipline of prisoners . . . . ” Tex.Rev. Civ.Stat.Ann. arts. 6166g, 6166j. Further, the Texas statute provides for the admission of visitors into the penitentiary, including attorneys, “under such rules and regulations as may be established” by the Director. Tex.Rev.Civ. Stat.Ann. art. 6166z2. Specifically with regard to the rights and privileges of inmates in the TDC, provision is made for commutation of sentence, commonly referred to as “good time”, for “orderly, industrious and obedient” conduct. Tex.Rev.Civ.Stat.Ann. arts. 6166v, 6184?. Further, an inmate with “a good prison record” can, additionally, be appointed to a position of prison trusty and receive special privileges. Tex.Rev.Civ.Stat.Ann. art. 6184a. Plaintiffs allege continuous and repeated assaults, intimidation and harassment as a consequence of their refusal to sign fictitious statements and to give fictitious testimony, such intimidation stemming from the actions of defendant as well as her recalcitrant inmate-clients and through the unwitting acquiescence or response of prison officials or employees in enforcing the TDC regulations, particularly those regulating attorney visitations with inmates. All of this alleged conduct took place within the confines of an essentially closed, highly disciplined state institution established and maintained for the incarceration and rehabilitation of prisoners. Allegations have also been made of interrelated fights and incidents precipitated by defendant or her co-conspirators which are readily construed by prison officials as incorrigible conduct in violation of prison regulations, thereby setting in motion certain institutional disciplinary procedures against plaintiffs with a potential loss of prison rights and privileges including statutory commutation time. Accordingly, irreparable injury as well as lack of an adequate non-equitable remedy as to these plaintiffs seem apparent in this unusual fact situation occurring within a state prison. Under these circumstances this Court can only conclude that if the allegations presented in the complaints are factually supportable, then Texas law would not leave plaintiffs remediless, and that in making such a determination this Court is proper in acting within its discretion to exercise pendent jurisdiction in these consolidated cases. II. THE COMMENCEMENT OF THE ALLEGED CONSPIRACY THROUGH THE ALLIANCE OF DEFENDANT AND INMATE FRED CRUZ A. BACKGROUND OF DEFENDANT It is impossible to understand the development of this case without having some factual data concerning the background of the defendant, Mrs. Frances Freeman Jalet Cruz. A woman of extensive education, she holds liberal arts degrees from Radcliffe College and Columbia Teachers College and law degrees from Columbia University Law School and Georgetown University Law School. After working in New York State in various capacities which exposed her to social problems involving the poor, she joined the New York State Law Revision Commission in 1959 and remained until 1967. She then evidenced interest, applied for and obtained acceptance at the age of 57 as a candidate for Fellow in the Reginald Heber Smith Foundation program for the training of lawyers in the fields of poverty law, landlord-tenant law, juvenile courts and administrative agency rulings. She was a member of the initial class of this program which was given at the University of Pennsylvania Law School under the direction of a Professor Howard Lesnick. Upon the defendant’s successful completion of the six week course, she was assigned to the Legal Aid and Defender Society (LADS) of Travis County at Austin, Texas in September, 1967. Although the defendant possessed a law degree, she did not have a Texas law license. Accordingly, she was assigned work as a staff assistant in the Austin program until licensed in March, 1968. Inasmuch as her salary was assumed and paid for by the Foundation under a contract with the Austin project, she was viewed as a welcome addition to its understaffed legal aid force. Problems arose soon after her arrival in Texas. The guidelines and scope of operation of the LADS office were somewhat imprecise and conflicting. The “Reggie” program ostensibly followed guidelines of the Office of Economic Opportunities (OEO) which had its headquarters in Washington, D. C., whereas the local Director in charge of the Austin project sought to remain independent and shape somewhat more restricted jurisdictional guidelines as to what people the program was to reach. The situation was complicated by the fact that the Austin program, the Legal Aid and Defender’s Society of Travis County, was funded through the OEO. Although there is testimony that the Austin Director made it clear to the defendant as to what the scope of her work would be, the evidence reflects thai, the defendant who had not as yet acquired a Texas law license was soon in contact with inmate personnel at the Texas Department of Corrections (TDC) located in Huntsville, Texas, over 100 miles away. It would appear that the initial inmate with whom she came in contact was a prisoner named Fred Arispe Cruz. This occurred following the publication of an article in an Austin newspaper concerning the defendant entitled “Portia for the Poor” in September, 1967, shortly after she arrived. Cruz wrote to the defendant, and she thereafter commenced corresponding with him and made visits to see him at Huntsville. According to the Austin Director of the Legal Aid and Defender Society, he soon received criticism of the defendant to the effect that she was seeing and representing prisoners at the TDC without a law license. Ultimately, he concluded that the defendant violated the rules of the LADS project by (1) practicing without a license, (2) handling poverty cases outside of Austin and Travis County, Texas, and (3) handling criminal instead of civil matters to which the program was restricted. The defendant vigorously denied that the project’s guidelines as she interpreted them violated any rules and certainly not those of the OEO. These differences could not be resolved. In due course the Austin Director conferred with the OEO, and arrangements were made to solve the probelm by transferring the defendant to the Dallas, Texas Legal Service Project. One issue which was disputed at the trial was whether or not Dr. George Beto, Director of the Texas Department of Corrections, brought pressure to bear, directly or indirectly, on those in charge of the Austin project which contributed to the defendant’s transfer to Dallas. Although the evidence contains some inconsistencies, this Court accepts the testimony of the Austin Director which is confirmed in substance by the Austin newspaper editor that certain of the complaints which ultimately reached him concerning the defendant’s activities had originated with Dr. Beto. A similar situation developed when the defendant commenced her work in the Dallas Legal Service Project in M-arch, 1968. This program was also funded by the OEO, and, as in the Austin project, there was a lack of unanimity on policy between the local Director of the program and the OEO. The Dallas Director viewed the program as (1) restricted to Dallas County and (2) encompassing no criminal representation. Whatever may have been the initial understanding between the Director and the defendant as to the scope of her work in the Dallas office, a matter on which their testimony sharply differed, it is apparent from the evidence that the defendant continued her visits to the TDC. In fact, she acquired additional inmates as clients. At one point Professor Lesnick attempted by long distance telephone to arbitrate between the Dallas Director and the defendant, but the misunderstanding persisted. In October, 1968, Dr. Beto called the Dallas Director and indicated that he was having difficulty with the defendant as a consequence of her visits to the TDC. This precipitated a memorandum by the Dallas Director to the defendant ordering her to terminate her visits to the prisoners. On the basis of receipt of a copy of this memorandum, Dr. Beto removed the defendant’s name from the approved visitor list at the prison in October, 1968, thus barring her from seeing any of the inmates. In December, 1968, the defendant brought suit against the Dallas Director and Dr. Beto in State Court in Dallas County for conspiring to keep her out of the TDC. As a consequence, the defendant’s employment in the Dallas project was promptly terminated on December 24, 1968. The role of Dr. Beto in contributing to the dismissal of thé'defendant at Dallas is clear in this instance and is answered by his own testimony. He had suggested to the Dallas Director that such action be taken because his information from the wardens was that the defendant’s activities were causing unrest in the prison units. The Director thereupon dismissed her. After Dallas the defendant sought employment in Houston and joined the Legal Aid Clinic at Texas Southern University where she was able to continue her work with prisoners at the TDC. Dr. Beto wrote the Dean of the Law School concerning her activities, but the Dean defended her work and retained her services. The termination of her Fellowship with the Reginald Heber Smith Foundation brought an end to her work at Texas Southern University in February, 1970. The defendant then moved to New York for a year, working for the Queens Legal Services there, but continuing to return periodically to Texas to handle certain prison cases at the TDC. In March, 1971, she took a job in Houston with VISTA, a federal agency rendering assistance to the poor, which resulted in a continuation of her work with inmates at the TDC. Shortly before the trial of this case, her employment with VISTA was terminated. B. DEFENDANT’S PRISON VISITS TO THE TEXAS DEPARTMENT OF CORRECTIONS AND HER CONTACTS WITH DR. GEORGE BETO As previously pointed out, the evidence indicates that defendant’s first contact with the TDC and an inmate, Fred Arispe Cruz, came after an Austin, Texas, newspaper published a feature story on her in September, 1967. Her first impressions of the TDC and of Dr. Beto were favorable. In January, 1968, the defendant had written to Dr. Beto that her impression of the Ellis Unit was that “everything was first class”. She had visited only one prison in her life before coming to Texas, and she made no pretense of possessing any background in penology or prison reform. Instead, this legal area involving prisoners’ rights had become a new source of interest to her. While still working in Austin, she had seen Dr. Beto on October 26, 1967, and had asked to visit other prison units. The nature of this request in addition to^ her other requests to visit Cruz privately and at length under special arrangements ultimately caused Dr. Beto to have misgivings about her intentions. Matters deteriorated in the early months of 1968. When at one point she could not see Cruz who was held incommunicado for disciplinary reasons, she requested a copy of the prison regulations pertaining to correspondence between attorney and client. In early 1968 she wrote the Texas Board of Corrections with copy to Dr. Beto and complained about conditions experienced by inmates in solitary confinement, the absence of due process at unit disciplinary hearings and other prison procedures. In March, 1968, defendant was admitted to the Texas Bar, and about that time the Austin Director took up with her the subject of her activities at the TDC. When she refused to abandon her contacts with the inmates, he arranged to terminate her work in Austin. After her transfer to Dallas, the defendant acquired other prisoner clients at the' TDC, one by federal court appointment. Her interest in this field increased, undoubtedly stimulated by her contacts with Fred Arispe Cruz. A relatively young inmate, Cruz already possessed a substantial criminal record. He had first been sent to the TDC in 1957 at the age of 18 after having been convicted of the offense of possession of marihuana. Most recently, he has completed serving a 15 year sentence at the TDC for robbery by assault. While incarcerated, Cruz had acquired some proficiency over the years in drafting and filing legal actions, one of a number who became known as “writ writers” in the prison populace. Concurrently, he had resisted prison regimen and had incurred the increasing disfavor of TDC officials including Dr. Beto. It is apparent from the evidence that the defendant and Cruz ultimately came to recognize that, in addition to a relationship of attorney and client, they shared some of the same interests with each contributing to the education of the other in understanding prison life procedures and the developing body of law pertaining to prisoners’ rights. The passage of time served to increase the opposition of the defendant to the TDC, its regulations and Dr. Beto. The filing of suit by defendant against Dr. Beto and the Director of the Dallas Legal Aid Clinic, alleging a conspiracy to deprive her of access to the inmates, was but an opening foray. That suit was ultimately dismissed. Her prior correspondence reflected her increased frustrations. In a letter to Professor Les-nick, she had stated in referring to the Dallas Director and Dr. Beto, “I want so much to lash out at him or both of them and the whole prison system here.” Following termination of her Dallas employment, defendant had come to the Texas Southern University Legal Aid Clinic. She was a party to another lawsuit filed in federal court against Dr. Beto and the warden of the Ellis Unit of the TDC on similar grounds in January, 1969. As a consequence she was barred from seeing inmates at the TDC until that suit was dismissed in March, 1969. In November of 1971 she was barred again. Because of her many visits to the TDC and her growing prison clientele, she was prohibited from seeing any inmates except those who were her clients as of November, 1971. That is her present status. All of these inmates have now been transferred to one prison complex, the Wynne Unit, where she is able to confer with them. C. THE EXTENT OF DEFENDANT’S CONTACTS WITH AND REPRESENTATION OF INMATES AT THE TEXAS DEPARTMENT OF CORRECTIONS The number of defendant’s visits to see inmates at the Texas Department of Corrections is unparalleled and deserves some comment. According to the records of the TDC, the defendant made 583 visits to see inmates between October, 1967 and March, 1972. More specifically, she made 166 visits between October, 1967 and March, 1970, and she made 417 visits between March, 1970 and March, 1972. Of those visited, the defendant made seventy visits to see Fred Arispe Cruz. Without identifying the other inmates, those who were most frequently visited by the defendant were seen respectively 26, 25, 23 and 20 times during the above time span. Many others were seen a lesser number of times. The defendant testified that she has legally assisted some 100 or more inmates, some in habeas corpus proceedings and others in civil rights suits attacking prison conditions and procedures. At one point she briefly represented one of the inmate plaintiffs, Lock, and had conferred with another, Slayman. She never had any contact with the third plaintiff, Dreyer. Although the defendant professes that none of her clients are prone to violence to her knowledge, the personnel records of the inmates which are in evidence reflect otherwise. A large percentage of the inmates represented are recidivists who are serving long sentences for serious offenses including murder, robbery by assault, burglary, rape, and possession of narcotics among others. Many of these inmates testified for both the plaintiffs and the defendant in this case, a situation which, has created major problems for this Court in determining where the truth lies in this lawsuit. It is in such a context that the plaintiffs’ charges of conspiracy against the defendant must be scrutinized and evaluated. 1. THE CHARGES OF PLAINTIFFS In brief, three of the prison inmates, Dreyer, Slayman and Lock, have alleged that the defendant has been engaged in a conspiracy to undermine and destroy prison regulations, to create tension and chaos and to spread false rumors and confusion in and out of the prison to their detriment as they attempt to serve their sentences. It is further alleged that the defendant made an alliance with inmate Fred Arispe Cruz to carry out such a scheme on a wide-spread basis throughout much of the prison system. Allegedly assisting in the plot were other inmates recruited from various units of the TDC which the defendant was freely able to visit in her capacity as an attorney. As a result of such disruption, plaintiffs have been victims of deliberate schemes for which they have been blamed by TDC officials and for which they have suffered disciplinary action and its consequences. Plaintiffs seek an injunction to enjoin the defendant from going to the TDC to continue such activities which allegedly attack the prison system and its procedures; as the plaintiffs profess to see it, the system can successfully operate only when its code of strict rules and regulations is rigidly enforced without interference, thereby permitting an inmate to serve his sentence without incident in the minimum time permitted under such rules. 2. THE ALLEGED CONSPIRACY If a civil conspiracy is to be proved, there must be persuasive evidence adduced that two or more individuals have been knowingly engaged over a period of time in a common purpose to accomplish unlawful objectives or to accomplish a lawful end by an unlawful means. Here the defendant and Fred Arispe Cruz constitute the principals comprising the alleged conspiratorial core with other inmates ostensibly recruited to assist through the combined efforts of both. The proof advanced by plaintiffs at the trial can be divided into two types, that evidenced by documents and that adduced from the testimony of other witnesses who allegedly participated in the conspiracy or were approached in some fashion to play a role in such a scheme. Two documents merit exposition, the “Kirby Writ Crusade” and the “Ellis Report.” The “Kirby Writ Crusade” is a tract handwritten by inmate Donald Lee Kirby, a so-called “prison writ writer,” which was confiscated at the Eastham Unit in July, 1971. Some fifteen pages long, the theme of the “Kirby Writ Crusade” spells out a format