Opinion
Civil No. EP-03-CA-433(KC)
April 16, 2004
ORDER
Plaintiff moves for a preliminary injunction requiring that defendants permit attorney visitation during designated hours, provide a suitable area for attorney-client visits or in the alternative provide transportation to attorneys' offices if unable to provide such an area and provide a telephone line for attorney conference without cost to detainees, without an advance notice requirement prior to use and without monitoring by the West Texas Community Supervision and Restitution Center (Center) staff.
The present motion is addressed only as to plaintiff Jose Luis Saucedo and not as to "others similarly situated" as there is no evidence that plaintiff's circumstances are typical of others in the West Texas Community Supervision and Restitution Center, thus justifying a more sweeping order.
West Texas Community Supervision was dismissed as a party by order of December 3, 2003 (Doc. No. 6).
I. BACKGROUND
The present action involves the alleged violation of plaintiff's First, Fifth, Sixth and Fourteenth Amendment rights through 42 U.S.C. § 1983 for defendants' conduct in managing the West Texas Community Supervision and Restitution Center. The alleged violations center on a restrictive attorney visitation policy and inadequate facilities for purposes of protecting attorney client confidences.
It is not apparent how the conduct of a state detention facility affecting what appears to be a discretionary proceeding for release from the Center would implicate plaintiff's Fifth Amendment rights. "[T]he Fifth Amendment applies only to federal jurisdictions," Brock v. North Carolina, 344 U.S. 424, 426 (195 3), overruled in part on other grounds by Benton v. Maryland, 395 U.S. 784 (1969), although rights expressly provided therein have been incorporated by virtue of the Fourteenth Amendment and applied to the states. See, e.g., City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 711 (1999) (right to compensation for takings); Malloy v. Hogan, 378 U.S. 1, 6-11 (1964) (right against self-incrimination). Notwithstanding such incorporation, the rights therein are typically invoked in the course of or initiation of criminal trials, not events subsequent to imposition of sentence.
The present claims involve state court proceedings to amend terms of supervised release. As such, there is serious question as to how such a post-trial proceed ing implicates Sixth Amendment rights. Woods v. Texas, 440 F.2d 1347, 1348 (5th Cir. 1971) (stating no violation of Sixth Amendment in probation hearing as it was not a "criminal proceeding").
Plaintiff, a detainee of West Texas Community Supervision Restitution Center (Center), alleges that attorney visitation restrictions implemented by the Center violate his rights under the First, Fifth, Sixth and Fourteenth Amendments. The present complaint reveals that on September 22, 2003, Attorney Edward Hernandez was denied access to another detainee, Miguel Angel Alvarenga, after Center personnel informed him of a policy restricting visitation to the hours of 8:00 a.m. to 5:00 p.m. and after hours "subject to the discretion of the . . . director." Complaint ¶ 1.2. On October 12, 2003, Hernandez was refused access to plaintiff notwithstanding a letter sent by Hernandez to the Office of the El Paso County Attorney opposing the restriction as unconstitutional. Id. Plaintiff alleges that as a result of such refusal his counsel was required to request a continuance from the judge presiding over his state court proceedings, presumably proceedings on a motion for release from the Center, TEX. CRIM. PROC. CODE ANN. § 42.12(18)(b) (Vernon 2004), and as a result such motion has not been heard to date.
Plaintiff alludes to an August 1 8, 2003 request to the Center for information by the American Civil Liberties Union El Paso Chapter, which request was not answered completely, Complaint ¶ 4.1, apparently to raise some retaliatory motive in the alleged change to visiting hours, which prior to that date had no visitation restrictions, subsequent to that date by the Center. As the present claims do not involve claimed violations of FOIA, and motive is not a relevant concern in determining the presence or absence of the violations of constitutional rights alleged, the information is viewed as irrelevant.
Section 18(d) provides that "The director shall examine the evaluation, make written comments on the evaluation that he considers relevant, and file the evaluation and comments with the judge who granted community supervision to the defendant. If the evaluation indicates that the defendant has made significant progress toward compliance with court-ordered conditions of community supervision, the court may release the defendant from the community corrections facility."
The complaint further reveals that attorneys permitted access are required to confer with clients in a lounge with vending machines and a lavatory, which subjects such conferences to interruption by staff personnel and detainees using those services. The Center, which may be characterized as a halfway house or work-release program, transports detainees to work sites. Detainees "work irregular shifts, spend several hours each work day [in transit] to or from . . . work site[s], and spend additional time participating in mandatory classes and treatment programs." Id. ¶ 1.3.
Plaintiff also alleges that "attorneys who represent detainees typically spend office hours in and out of Court, and typically cannot expend the time necessary to travel back and forth from the . . . Center and to visit their clients during the course of a regular workday." Complaint ¶ 1.3. It is not apparent how an attorney's schedule bears on the constitutional rights of those he or she undertakes to represent. Courts have been reluctant to accord plaintiff's the benefit of the doubt as a result of such a claim, Lookingbill v. Cockrell, 293 F.3d 256, 264 (5th Cir. 2002) (denying habeas petitioner's equitable tolling claim when "federal habeas counsel was overburdened by a busy docket"), and claims of daily schedules so onerous that routine visits in preparation for court proceedings often invite the very ineffective assistance of counsel claims addressed through the present complaint toward the Center, see Asbury v. Cox, 314 F. Supp. 1196, 1198 (W.D. Va. 1970) (involving claim of ineffective assistance of counsel "that petitioner's counsel was so overburdened that he could not give petitioner's case adequate preparation"); see also Moore v. St. Louis Music Supply Co., Inc., 539 F.2d 1191, 1194 (8th Cir. 1976) (in civil context, "the attorney inexcusably caused available court time to go unused when such court time was badly needed to meet the court's caseload. For this he may properly be subject to discipline").
Defendants are Stephen Enders, Director of West Texas Community Supervision, and Luis Montes, Director of West Texas Community Supervision Center. The defendants are sued in both their individual and official capacities.
II. DISCUSSION
Plaintiff seeks a preliminary injunction based on actions infringing on his right of access to the courts and failure to provide a sufficiently private setting to facilitate attorney-client communications. Defendants respond that plaintiff cannot establish any constitutional violation.
Plaintiff refers to a re quest dated August 18, 2003 by the El Paso Chapter of the American Civil Liberties Union ("ACLU") for information on the policies and practices of the Center, which apparently received an incomplete response. It would appear that plaintiff argues that this request prompted the subsequent refusal of Center personnel to permit Edward Hernandez, a cooperating ACLU attorney, to visit his client, a resident of the Center. The complaint is limited to the alleged violations of plaintiff's constitutional rights and does not raise substantive claims as to violations of the Freedom of Information Act (FOIA), 5 U.S.C. § 552, or the Texas Open Records Act, TEX. GOV'T CODE ANN. §§ 552.001-.353 (Vernon 1994). As such, and as this Court is only concerned with evidence of a violation of plaintiff's constitutional rights and not the motive for such violation, the allegations pertaining to any information request is deemed irrelevant to resolution of the present motion.
A. Standard
A preliminary injunction shall be granted only if a plaintiff shows (1) a substantial likelihood of success on the merits, (2) a substantial threat of irreparable injury if the injunction is denied, (3) that the threatened injury outweighs any damage that the injunction might cause a defendant and (4) that the injunction will not disserve the public interest. Lake Charles Diesel, Inc. v. General Motors Corp., 328 F.3d 192, 195-96 (5th Cir. 2003). An injunction, as an extraordinary remedy, shall not be granted unless the plaintiff "clearly carrie[s] the burden of persuasion on all four requirements." Id. at 196 (internal quotation marks omitted). Furthermore, a mandatory injunction, as compared to an injunction seeking merely to maintain the status quo pending trial, "is particularly disfavored, and should not be issued unless the facts and law clearly favor the moving party." Martinez v. Mathews, 544 F.2d 1233, 1243 (5th Cir. 1976).
As plaintiff has failed to establish a substantial likelihood of success on the merits of his claims, this Court does not reach the remaining three elements of the preliminary injunction standard.
B. Access to the Courts
Plaintiff argues that the present restrictions on attorney visitation deny him his right of access to the courts. The contours of the right of access have been defined as nebulous, Foster v. City of Lake Jackson, 28 F.3d 425, 430 (5th Cir. 1994), derived from the Article IV Privileges and Immunities Clause, the First Amendment Petition Clause, the Fifth Amendment Due Process Clause, and the Fourteenth Amendment Equal Protection and Due Process Clauses. Christopher v. Harbury, 536 U.S. 403, 415 n. 12 (2002). "[T]he right is ancillary to the underlying claim, without which a plaintiff cannot have suffered injury by being shut out of court." Id. "[T]he underlying cause of action, whether anticipated or lost, is an element that must be described in the complaint, just as much as allegations must describe the official acts frustrating the litigation. It follows . . . that when the access claim . . . looks backward, the complaint must identify a remedy that may be awarded as recompense but not otherwise available in some suit that may yet be brought." Id.
A right of access to the courts guards against governmental practices that "effectively foreclose access" and insures "inmate access . . . [that] is adequate, effective, and meaningful." Bounds v. Smith, 430 U.S. 817, 822 (1977). Such right "requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law." Id. at 828. Meaningful access is insured through adequate law libraries or "alternative means to achieve that goal." Id. at 830; Lewis v. Casey, 518 U.S. 343, 351 (1996) ("prison law libraries and legal assistance programs are not ends in themselves, but only the means for ensuring a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts" (internal quotation marks omitted)); Johnson v. Avery, 393 U.S. 483, 490 (1969) (listing alternative means by which prisoner could effect right to petition court for grievances); Cruz v. Hauck, 515 F.2d 322, 331 (5th Cir. 1975) ("access to the courts may be satisfied either by availability of legal materials, by counsel, or by any other appropriate device of the State[;] . . . [t]he alternatives open to the State are legion."). The right has further been defined as "a reasonably adequate opportunity to file nonfrivolous legal claims challenging" or "the capability of bringing contemplated challenges to" convictions, sentences or conditions of confinement. Jones v. Greninger, 188 F.3d 322, 325 (5th Cir. 1999). The right is not unlimited, Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997), subject to appropriate limitations, id. at 311-12; Hudson v. Palmer, 468 U.S. 517, 529 (1984) ("[t]he curtailment of certain rights is necessary, as a practical matter, to accommodate a myriad of `institutional needs and objectives' of prison facilities"), which are reviewed with an eye toward judgment calls regarding prison management which are best left to the wide discretion and expertise of prison administrators, Bell v. Wolfish, 441 U.S. 520, 562 (1979).
Given the foregoing, plaintiff's citation of a number of district court decisions and reference to less restrictive hours in other local facilities as support for the proposition that there exists some daily schedule that constitutes the constitutional threshold for compliance with plaintiff's right of access is unavailing. Meaningful access is at best an amorphous standard determined on the facts of each claim. Brewer v. Wilkinson, 3 F.3d 816, 821 (5th Cir. 1993). There is no litmus test on attorney visitation hours, and this Court could envision a schedule far more onerous that would pass constitutional muster and one affording more contact hours that might not meet constitutional requirements. The relevant question therefore is whether under the facts of the present case plaintiff is afforded meaningful access. Campbell v. Miller, 787 F.2d 217 (7th Cir. 1986), proves a useful guide for assessing whether plaintiff's right of access is violated under the facts of this case. Campbell involved the claims of a post-trial prisoner in a maximum security facility. Id. at 217. The prison involved therein imposed a twenty-four hour notice requirement on attorney visits and further limited visits to Thursdays through Sundays. Id. at 225. Prisoners were afforded limited law library access and were not afforded trained legal assistance from the prison itself. Id. The plaintiff argued that the totality of these circumstances infringed upon his right of access. Id. The Seventh Circuit Court of Appeals disagreed. Id.
In concluding as it did, the Campbell court noted that "the right of access . . . is not unconditional" and further that "[t]he constitutionally relevant benchmark is meaningful, not total or unlimited access." Id. at 226. The Court reasoned that, given the nature of the facility and risk posed by its inmates, security and administrative concerns justified the restrictions on visitation. Id. It further added that although "the visitation restrictions . . . may somewhat inconvenience attorneys representing inmate clients . . ., prison administrators are not required to adopt every proposal that may be thought to facilitate prisoner access to the courts. "Id. at 226-27 (internal quotation marks omitted). It thereafter concluded that "[d]espite these restrictions, attorneys may visit inmates four days a week. That provides inmates with a reasonable opportunity to receive professional legal assistance." Id. at 227.
The present facts do not present restrictions of the order presented in Campbell. Although the security concerns identified in Campbell are not present to the same degree, see also Bell, 441 U.S. at 562 (addressing institutional security concerns), testimony presented by defendants and the plaintiff's own allegations point to after hour programs and group sessions conducted as part of the Center's rehabilitative programming. It cannot be said that allocation of Center resources and efforts undertaken to avoid disruption of the same after hours does not constitute a legitimate penological objective. The advance notice requirement, unlike that in Campbell which was applicable to all visits and did not extend weekly visiting hours, provides the opportunity for additional time if needed. Defendants further testified that they would be willing to drive detainees to attorney offices when required. The only contrary evidence provided by plaintiff was that defendants' drivers were unreliable at times, leaving detainees waiting, sometimes for hours, for rides from their designated workplace. Given the pleadings and evidence presented at the hearing, this Court is not inclined to conclude that plaintiff has established a likelihood of success on the merits.
Plaintiff refers in his motion to the discretion left in the hands of defendants for approving visits. It would appear that the re ference attempts to graft the discretion concerns concerning generally involving permits in free speech claims, i.e., licenses to speak in a public places, see, e.g., Schneider v. State of New Jersey, Town of Irvington, 308 U.S. 147 (1 939); Staub v. City of Baxley, 355 U.S. 313 (1958); Shuttlesworth v. City of Birmingham, Ala., 394 U.S. 147 (1969), on the speech concerns involved in attorney visits with clients. This Court is aware of no precedent analogizing approval of after hours visits to unbridled discretion in permitting for public speaking. As plaintiff has provided no relevant authority for this argument, it need not be addressed at this time.
Furthermore, if this Court were to conclude that plaintiff had established a likelihood that his rights were violated, which it does not, plaintiff cannot establish that the regulation is invalid under the deferential standard applied to prison regulations. "[W]hen a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Shaw v. Murphy, 532 U.S. 223, 229 (2001) (internal quotation marks omitted). Under this test, a court should consider following four factors: (1) whether there is "a valid, rational connection between the prison regulation and the legitimate [and neutral] governmental interest put forward to justify it," (2) whether there exists an "alternative means of exercising the right available to inmates," (3) "the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally" and (4) "the absence of ready alternatives available to the prison for achieving the governmental objectives." Id. at 229-30 (internal quotation marks omitted).
Defendants advance rehabilitation programs conducted after visiting hours as a basis for the hours limitation. Rehabilitation is without question a legitimate penological interest. O'Lone v. Estate of Shabazz, 482 U.S. 342, 348, 351 (1987). In fact, rehabilitation of prisoners has been identified as a "paramount objective of the corrections system." Pell v. Procunier, 417 U.S. 817, 823 (1974). As to alternative means of conferring with counsel, testimony reveals the availability of telephones, both for collect calls and pay phones, the availability of transportation to the attorney's office when required and after hours visits by appointment. With regard to impact if no limitations were imposed, the likely result would be the redirection of Center resources to the front desk and the disruption of scheduled rehabilitation sessions. As to the fourth and final consideration, the solution to the unrestricted visitation proposed by plaintiff would appear to be increased staffing for visits primarily by Attorney Hernandez and plaintiff's counsel, an expense likely unjustified in comparison to the frequency of visits. Given the foregoing, it is unlikely that plaintiff can defeat the presumption of validity afforded defendants' regulation.
"Few attorneys regularly represent detainees at the" Center. Complaint ¶ 1.3.
Finally, were this Court able to overlook the foregoing, plaintiff must clear yet another hurdle to establish a likelihood of prevailing on the merits. A plaintiff alleging a denial of his or her right of access "must demonstrate an actual injury stemming from defendants' unconstitutional conduct." Chriceol v. Phillips, 169 F.3d 313, 317 (5th Cir. 1999). In the present case, this Court entertains serious doubts as to whether plaintiff can satisfy even this modest requirement. By Attorney Hernandez's own testimony, defendant's refusal to admit him on the date in question, the day prior to a hearing, resulted in a continuance of the proceedings. Plaintiff was not denied the opportunity to petition the court but in fact disputes his own claim through evidence of the pendency of his motion to amend the terms of his supervised release. This Court finds unavailing Attorney Hernandez's conjecture and surmise that the judge in the proceedings was somehow angered by a late request for continuance and has therefore refused to hear the motion as a result. It is a bedrock principle of evidence that one may not testify as to matters of which he lacks personal knowledge. While Attorney Hernandez may be entirely convinced that the pendency of his motion is attributable solely to the state court's taking exception to a single continuance resulting from denial of his visit request, it suffices to say that a host of factors other than an individual judge's proclivities may influence when a matter is resolved. As such, plaintiff has not established actual injury resulting from defendants' restrictions on attorney visitation.
There remains some question as to whether a plaintiff is required to show actual injury outside the context of a deficient or non-existent law library, which is not in and of itself a constitutional entitlement absent a consequent failure to obtain redress from a court. Benjamin v. Fraser, 264 F.3d 175, 186 (2d Cir. 2001); Chriceol v. Phillips, 169 F.3d 313, 317 (5th Cir. 1999); Ruiz v. United States, 160 F.3d 273, 275 (5th Cir. 1998). Such an inquiry would be raised if the claim involved pre-trial proceedings and the Sixth Amendment rights associated therewith. Benjamin v. Eraser, 264 F.3d at 186. Under the facts of the present case, there is a serious question as to whether the proceedings involved herein constitute anything more than a discretionary review of conditions of release and in any way implicate Sixth Amendment rights or defined notions as to what constitutes a prisoner's right of access. Taylor v. Sterrett, 532 F.2d 462, 477 (5th Cir. 1976) ("right to effective counsel under the Sixth Amendment extends only to criminal matters . . . [and] is applicable solely to pre-trial detainees or to a convicted prisoner being tried on additional charges or contesting the legality of a previous conviction"); see also Wolfish v. Levi, 573 F.2d 118, 133 (2d Cir. 1978), rev'd on other grounds by Bell v. Wolfish, 441 U.S. 520 (1979) (holding visiting hours in general visiting room for facility housing pre-trial and sentenced detainees between 4:30 to 6:30 p.m. or otherwise with 24 hours notice frequently accompanied by long delays unconstitutional and requiring institution to provide private visiting room with hours from 8 a.m. to 8 p.m.). As plaintiff has neither raised nor briefed this issue, the question will be left for another day.
C. Confidentiality of Attorney-Client Conversations
Concerns as to privacy in attorney-client communications implicates the Sixth Amendment right to effect assistance of counsel, i.e., one cannot appropriately prepare for a criminal proceeding if discussions are constrained by fear of eavesdroppers. See Taylor, 532 F.2d at 472. The Sixth Amendment right is "applicable solely to pre-trial detainees or to a convicted prisoner being tried on additional charges or contesting the legality of a previous conviction," while the right of access encompasses petitions addressed to prison conditions. Id. at 472-73. There is no Sixth Amendment right to representation on discretionary appeals, see Jackson v. Johnson, 217 F.3d 360, 363 (5th Cir. 2000). "[T]he constitutional right to counsel extends only through the defendant's first appeal." United States v. Whitebird, 55 F.3d 1007, 1011 (5th Cir. 1995). "The common practice . . . is to allow unmonitored conversations between inmates and visitors, including attorneys." Taylor v. Sterrett, 532 F.2d 462, 477 (5th Cir. 1976). "Restrictions may not be placed upon the attorney-client relationship which effectively diminish a prisoner's access to the courts." Id. at 473. While "fundamental fairness [may] require the assistance of a trained advocate" in certain proceedings, id. at 1011 n. 3, such as in proceedings to revoke a period of supervised release, Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973), there is no indication that the state proceedings involved in the present petition invoke similar concerns. As plaintiff has not established the existence of a right to counsel, he cannot establish a constitutional deprivation through defendants' failure to support such right.
D. Epilogue
At present, plaintiff has not established a likelihood of success on the merits of his claims. While the evidence does not support the violations claimed, there was evidence presented that indicates confusion with designated visiting hours. Such would appear to be readily addressed by conspicuously posting established hours along with a contact telephone number for after-hour requests and a deadline for submitting such requests. The privacy concerns would appear addressed by use of the vacant office to which Attorney Hernandez referred in his testimony. These relatively straightforward solutions would appear to assuage many of the concerns raised in the present complaint.
III. CONCLUSION
Plaintiff's motion for a preliminary injunction (Doc. No. 5) is denied.
SO ORDERED.