Appellant Brief - Prisoners\' First

Appellant Brief - Prisoners' First Amendment Rights in United States District Court

SOUTHERN DISTRICT OF FLORIDA

11TH Circuit

MOTHERS OF M. MEN & )

PRISONER M.LIN

Plaintiffs,) v.) Case No. 02-510-CIV-Miller

SHELDON Y, as SUPERINTENDANT of)

CORRECTIONAL FACILITY (MCF))

Defendant,)

APPELLANT BRIEF

STATEMENT OF JURISTICTION

This Court's jurisdiction in this action arises under the United States Constitution, particularly under the First Amendment to the United States Constitution, and under federal law, particularly under 42 U.S.C. Title 42, 1983.

Jurisdiction is conferred on this court by Title 28, U.S.C. 1343(3) and (4).

Plaintiff Mothers of M. Men ("MOM") was and is an association of women whose sons either currently are, or at some times in the past were, incarcerated in M. Correctional Facility ("MCF"), a Florida state prison located in M, Florida.

Plaintiff M. Lin was and is incarcerated in MCF, serving a three-year prison term.

Defendant Sheldon Y was and is Superintendent of MCF, and in that capacity, Y is an employee and agent of the state of Florida.

STATEMENT OF FACTS

1. MOM is an association of approximately 35 women, 30 of whom have adult sons currently incarcerated in MCF.

2. The remaining five MOM members have sons whom were formerly incarcerated at MCF, but have been released.

3. The organizational goal of MOM is to provide emotional and financial support for its members whose sons are incarcerated at MCF.

4. During the past three years, MOM members have provided financial support for travel costs to assist members whose sons are currently incarcerated at MCF to visits at the facility on an average of once a week.

5. On seven occasions between December 2002 and June 2003, MOM members were denied visitation of their incarcerated sons as a result of the suspension of visiting privileges.

On December 2001 M. Lin began serving a three-year prison sentence at MCF for the conviction of felony aggravated battery.

7. M. Lin was released on December 22, 2003, almost a year early from his original release date of December 1, 2004.

8. M. Lin was released without any requirement of supervision, and is no longer under the custody or control of the State of Florida.

M. Lin and his mother testified that on three occasions between December 2002

June 2003, Ms. Lin was denied visitation of her son at MCF.

10. M. Lin's release from incarceration occurred after the filing of the lawsuit.

11. M. Lin's mother is an active member of MOM and currently serves as the organization's president.

12. During M. Lin's incarceration, it has been his mother's usual practice to visit him approximately once a week.

13. As part of the correctional system of the State of Florida, MCF is subject to the direction of the Florida Department of Corrections.

14. One of the DOC's administrative regulations, Rule 33-601.717, Florida Administrative Code, provides grounds on which visitation privileges afforded to inmates in DOC custody may be denied, revoked, or suspended.

15. Rule 33-601.714 provides that the prison superintendent is authorized to deny or terminate a visit only if "any of its aspects are disruptive or violate rules, procedures, instructions, restrictions, orders, or directions."

16. The effect of a suspension of privileges is that the inmate may not have any visitors, except his attorney, during the time of the suspension.

17. M. Lin's visitation privileges were suspended a total of 26 days in 2003.

18. The sons of six other members of MOM suffered similar suspensions of visitation privileges in 2003.

SUMMARY OF ARGUMENT

Plaintiff Mothers of M. Men (MOM) lack standing to prosecute this action in this Court, and Plaintiff M. Lin's lawsuit is rendered moot by his release from incarceration, which occurred after the filing of the lawsuit but before the hearing on the Defendant's motion. Furthermore, the cause of action is unripe, and no declamatory judgment is available. Additionally, the cause of action will fail on arguments made on the basis of the Prison Litigation Reform Act and under the Civil Rights Claim Act. Thus, Plaintiffs lawsuit must accordingly be dismissed.

US CONSTITUTIONAL CLAIMS

STANDING

AUTHORITY

Article III, Section 2 limits the jurisdiction of federal courts to "cases" or "controversies." A "case" or "controversy" is a real and substantial dispute which touches the legal relations of parties having adverse interests and which can be resolved by a judicial decree of a conclusive character. Aetna Life Insurance Co. v. Haworth, 300 U.S. 227 (1937). The plaintiff must show a direct and personal injury by the action that he/she is complaining about. When the plaintiff has not suffered any personal injury or harm, then he/she does not have standing. Sierra v. Morton, 405 U.S. 727 (1972). The injury must be caused by the violation of a duty affecting the plaintiff's rights arising under the constitution or federal laws. Under the traditional view, a litigant lacks the standing to assert the rights of third parties not before the court. Tileston v.Ullman, 318 U.S. 44 (1943).

However, in certain situations, the Court has permitted a party to raise the constitutional rights of a third party. An association has standing to assert the claims of its members, even if the association has not suffered any injury itself, if a) the members would otherwise have standing to sue in their own right, b) the interest asserted is germane to the association's purpose, and c) neither the claim asserted nor the relief requested would require participation by the individual members in the lawsuit. Hunt v. Washington Apple Advertising Commission, 432 U.S. 333 (1977). A declamatory judgment is a decision where the court is requested to determine the legal effect of a proposed conduct without awarding damages or injunctive relief. However, the legal questions may not be too abstract or hypothetical.

ARGUMENT

Mothers of M. Men lacks standing to prosecute this action in this Court. Article III of the United States Constitution confines the federal judiciary to hearing actual "cases or controversies" where a plaintiff must have standing to prosecute the matter in a federal court. The standing doctrine requires that the plaintiff allege a personal injury in fact that is failure traceable to the allegedly unlawful acts of the defendant and likely to be redressed by the requested relief. MOM, as an organization, cannot allege that it has been injured in fact. MOM cannot prove a direct and personal injury caused by the suspension of visitation rights. Since MOM cannot show this injury, MOM does not have standing.

Furthermore, MOM as an organization, was not denied access to MCF inmates. There were only six other members that suffered suspensions of visiting privileges in 2003, with each suspension being under 33 days of suspension. The argument that MOM would have standing under the factors applied in the Hunt case would also fail. The members of MOM would not have standing to sue in their own right because only six of them were denied visitation rights, and since those denied the rights were not the prisoners themselves, but the mothers, MOM could not allege personal or direct injury, Secondly, visitation rights are not a relevant portion of the association's purpose, which is to provide emotional support for its members. Although on three occasions in the past three years, the organization has provided financial support to help a member travel to MCF for the purpose of visiting her son, this is not the central purpose of the organization. Additionally, three instances in the past three years will fail under the relevancy test. Finally, both the claim asserted and the relief requested would require participation by the individual members in the lawsuit. A declamatory judgment will also fail because the court is not being requested to determine the legal effect of a proposed conduct without awarding damages or injunctive relief. Thus, MOM lacks standing to prosecute this lawsuit.

B. MOOTNESS

AUTHORITY

If the controversy or matter has been resolved, then the case will be dismissed as moot. An actual "case" or "controversy" must exist at all stages of the litigation. Liner v. Jafco, Inc. 375 U.S. 301 (1964). Although the principal issue in the lawsuit has been resolved, if a party still has an interest in resolving collateral matters, the case will not be dismissed. Powell v. McCormick, 395 U.S. 486 (1969). Where the injury is capable of repetition, yet evading review, it is a practical impossibility to achieve appellate review in such cases before the claims of the same plaintiff, or other plaintiffs who are members of the same class, become moot. Roe v. Wade, 410 U.S. 113 (1973). If intervening factual or legal events effectively dispel the case or controversy during pendancy of the lawsuit, the case is moot and the federal courts are powerless to decide the questions presented.

ARGUMENT

In order to be justifiable under Article III, the conflict between the litigants must present a case or controversy both at the time the lawsuit is filed and at the time it is decided. In this cause of action, since there are intervening factual or legal events effectively which dispel the case or controversy during the pendancy of the lawsuit, the case is moot and as a result, the federal courts are powerless to decide the questions presented. M. Lin's release from MCF has had the effect of rendering his lawsuit moot. In this case, M. Lin was incarcerated at the time the lawsuit was filed, but not at the time it is being decided. Thus, M. Lin's cause of action fails on the issue of mootness. Additionally, of the six members whom were denied visitation privileges, five of them have had sons which whom were formerly incarcerated at MCF, but now have been released. The son of the sixth MOM member asserting denial of visitation privileges died after his release from MCF. Thus, all of the six members of MOM claims will fail as a result of mootness.

C. RIPENESS

AUTHORITY

The controversy must be ripe for decision; ripeness bars consideration of claims before they have fully developed. A case may be dismissed as unripe where a statute has never been enforced and there is no real threat that it ever will be. Poe v. Ullman, 367 U.S. 497 (1961). In this case, the Prison Litigation Reform Act was ultimately unsuccessful, among a myriad of other failed legislation. Margo Schlanger, Inmate Litigation, 116 Harv. L. Rev. 1555, 1586-87 (2003) (It would be equally appropriate to talk about a "deluge' of inmate requests for food);

Thomas v. Woolum, 337 F.3d 720, 722 (6th Cir. 2003) (The PLRA's text does not condition access to the federal courts on satisfying the procedures and timelines of prison administrators.");

Wendell v. Asher, 162 F.3d 887, 892 (5th Cir. 1998) (holding that once the prisoner exhausts his administrative remedies, he can refile the action in federal court even if the time limit had run on his grievance.

ARGUMENT

As many legal scholars have indicated, and cases have demonstrated, that there were numerous problems concerning the applicability of the provisions of the PLRA.

Porter v. Nussle, 534 U.S. 516, 525 (2002) (determining what the term "prison conditions" meant under 1997e (a)); Kermit Roosevelt III, Exhaustion Under the Prison Litigation Reform Act: The Consequence of Procedural Error, 52 Emory L.J. 1771, 1773-74 (2003) (discussing the scope of the exhaustion requirement and Congress's silence on the consequences of procedural missteps in the course of exhaustion);

Ortiz v. McBride, 380 F.3d 649 (2d Cir. 2004) (rejecting the total exhaustion doctrine), cert. denied, 73 U.S.L.W. 3513 (U.S. Feb. 28, 2005) (No. 04-668). In the cause of action presented, there has never been a statute which has been enforced in such situations as the one illustrated above. Thus, the Plaintiffs cause of action also fails on the issue of ripeness.

II. FEDERAL STATUTORY CLAIM

PRISON LITIGATION REFORM ACT (42 U.S.C. 1997e)

AUTHORITY

The Prison Litigation Reform Act of 1995 ("PLRA"), Pub. L. No. 104-134, 110 Stat. 1321-66 (1996) (codified as amended in scattered sections of 18, 28, and 42 U.S.C.), was designed to reduce the quantity and improve the quality of prisoner suits.

Porter v. Nussle, 534 U.S. 516, 524 (2002). Section 1997e (a), 42 U.S.C. 1997e (a) (2000) provides that no action shall be brought with respect to prison conditions under 42 U.S.C. 1983 (2000), or any other Federal law,... By a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted (42 U.S.C. 1997e (a)). The doctrine of exhaustion of administrative remedies, like the related doctrines of finality and ripeness, govern the timing of lawsuits in federal courts.

McCarthy v. Madigan, 503 U.S. 140, 144 (1992). Exhaustion is applicable to all inmate suits about prison life, whether the suit is about general circumstances or particular episodes, regardless of what the alleged wrong is.

Porter v. Nussle, 534 U.S. At 532. The exhaustion requirement is not absolute, however, but is an affirmative defense that must be pled or it will be waived.

Johnson v. Testman, 380 F.3d 691 (2d Cir. 2004);

Foulk v. Charrier, 262 F.3d 687, 697 (8th Cir. 2001);

Perez v. Wisc. Dep't of Corr., 182 F.3d 532, 536 (7th Cir. 1999).

Each state provides inmates with such administrative remedies, with the exhaustion requirements generally following a similar pattern. N.Y. Comp. Codes R. & Regs. tit. 7, 701.7 (2001). Typically, when a prisoner brings a complaint under 1983, he will allege multiple constitutional violations.

Ross, 365 F.3d at 1183. If all claims are unexhausted, the complaint is generally dismissed without prejudice until the required procedures are invoked. Section 1997e (a) does not specify how detailed a prisoner's grievance must be in order to satisfy exhaustion.

Johnson v. Johnson, 385 F.3d 503, 516 (5th Cir. 2004). Courts have generally not required the prisoner to allege a specific legal theory or facts to correspond to that legal theory, but rather the grievance must give prison officials fair notice of the problem that underlies the prisoner's suit.

Burton v. Jones, 321 F.3d 569, 575 (6th Cir. 2003)). Thus, the amount of detail required in giving such notice must be interpreted in light of the purposes behind 1997e (a).

ARGUMENT

The Turner test is used to decide whether a prison regulation that infringes a constitutional right is reasonable. The Turner test was developed specifically to "formulate a standard of review for prisoners' constitutional claims." Turner v. Safley, 482 U.S. 78, 85 (1987). The Turner test is a four-pronged evaluation: 1) Is the regulation rationally related to a valid penological interest; 2) Are there alternate means for the inmate to exercise the right in question; 3) What is the impact of accommodation of the asserted right on guards, other prisoners, and allocation of prison resources; and 4) Are there obvious, easy alternatives to the regulation in question that accommodate the prisoner's right at a de minimis cost, and is the regulation an "exaggerated response" to the prison's concerns. Turner, 482 U.S. At 89-91. Courts use a "totality of circumstances" approach to determine if the challenged regulation is reasonable, analyzing Turner's four-pronged test in a "balancing" manner, so that if one factor is weak, but others are strong, the policy may still be upheld. O'Lone v. Estate of Shabazz, 482 U.S. 342, 351 (1987) (upholding a prison regulation resulting in a Muslim prisoner's inability to attend Jumu'ah even though the Court's analysis of the second Turner prong recognized that there were no alternative means of attending Jumu'ah.

In this case, the actions of Defendant Y clearly meets the factors under the Turner test. First, the visitation privileges were suspended as a result of a valid penological interest. A main concern of the penological system is safety, and while the Court has recognized that prisoners retain a right to freedom of association while incarcerated, that right is limited. Bazetta V., 286 F.3d at 324. The Court has recognized that prisoner's right to association in the form of visitation is subject to significant restriction. Bazetta v. McGinnis, 124 F.3d 774, 779 (6th Cir. 1997) (ruling that prisoners do not have a constitutional right to visits); Kentucky Department of Corrections v. Thompson, 490 U.S. 454, 460 (1989) (Due Process Clause does not guarantee inmate's interest in "unfettered visitation"); Block v. Rutherford, 468 U.S. 576, 589 (1984) (holding that pre-trial detainees are not constitutionally entitled to contact visits).

In the past, rehabilitation was a central concern when creating prison policy and regulations, and rehabilitation as a factor in reducing recidivism was of national concern. Since most offenders will eventually return to society, a paramount objective of the prison system is rehabilitation of those in custody. Pell v. Procunier, 417 U.S. 817, 823 (1974); Hardaway v. Kerr, 573 F.Supp. 419, 423 (W.D. Wis. 1983) (stating that rehabilitation was one of three penological goals that must be considered when analyzing First Amendment restrictions); State v. Stevens, 381 P.2d 100, 102 (Ariz. 1963) (reformation and rehabilitation of offenders rather than retribution are the important goals of criminal jurisprudence). Thus, in the case at hand, the suspension of visitation privileges is rationally related to a legitimate state interest.

Under the second prong of the Turner standard, there are alternate means for the inmate to exercise the right in question. Letters and phone calls to the restricted prisoners meets the second prong of alternative forms of expression for the inmate. Even though some inmates are illiterate and phone calls are short in duration and monitored by staff these means of expression are still considered adequate alternatives. But see Bazetta v. McGinnis, 148 F.Supp. 2d 813, 818 n.2 (E.D.Mich.2001) (Dr. Kupers, a psychiatrist who specializes in mental health, testified that some 40-percent of prisoners are illiterate, and sixty to eighty percent are functionally illiterate). Under the third factor of the Turner standard, the impact of accommodation of the asserted right on guards, other prisoners, and allocation of prison resources is unreasonable. The restriction on visitation appears to be an attempt to manage visits, with the purported interest of reducing problems associated with overcrowded visitation rooms. These regulations were designed to reduce visitation by ten to fifteen percent, thereby returning visits to a manageable level.