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MCCLEARY v. KELLY

May 28, 1974

Randy Wayne McCLEARY, Plaintiff,
v.
Richard D. KELLY, Individually and in his official capacity as Acting Superintendent of the State Correctional Institution at Huntingdon, Pennsylvania, et al., Defendants


Sheridan, Chief Judge.


The opinion of the court was delivered by: SHERIDAN

Plaintiff, presently an inmate at the State Correctional Institution at Huntingdon, Pennsylvania, brought this action under the Civil Rights Act, 42 U.S.C.A. § 1983, seeking declaratory and injunctive relief and damages against the defendants. Federal jurisdiction is invoked under 28 U.S.C.A. §§ 2201, 2202 and 1343. In accordance with Rule 65(a) (2) of the Federal Rules of Civil Procedure, the case was set down for non-jury trial on the merits thereby consolidating the trial with the hearing on the preliminary injunction. At the trial the following facts emerged.

 On December 16, 1973, a concert for the inmates was held at the State Correctional Institution at Huntingdon. The concert was sponsored by the Altar Rock Jaycees, the inmate chapter of the Junior Chamber of Commerce at Huntingdon, and had been approved by the prison administration. However, the nature of the concert was misrepresented to the prison authorities and what was supposed to be purely musical entertainment turned out to be a rally consisting of political speeches and politicized songs with the Attica riot and the overthrow of the prison establishment as the major themes. Prison officers on duty at the concert became concerned about the security of the institution during the concert as the inmates reacted to the propaganda contained in the speeches and songs. During the course of the concert, metal buttons which bore the imprint "ATTICA" and a publication titled the "Attica News" were distributed surreptitiously and without authorization to some of the inmates by members of the performing group. *fn1"

 Plaintiff received an "Attica" button at the concert. The following day he wore the button on his shirt to the dining hall. He was approached by defendant Wakefield, a correctional officer at Huntingdon, who informed plaintiff that the button was contraband and therefore he was confiscating it. Plaintiff asked Wakefield for a receipt for the button and Wakefield responded by instructing him to see defendant Wicker, the correctional officer in charge at the dining hall. Plaintiff approached Wicker with his request for a receipt, whereupon Wicker took the button from plaintiff and told him that receipts were not given for contraband. Plaintiff claims that at this point Wicker removed from his back pocket a copy of the "Attica News." Defendant Wicker testified that he did not see and hence did not take from the plaintiff any newspaper. The court finds that a copy of the "Attica News" was not confiscated from the plaintiff. Moreover, the "Attica News" would have been contraband since it was distributed at the concert in the same manner the "Attica" button had been distributed.

 The Rules at Huntingdon provide in part as follows with respect to contraband:

 
"GENERAL RULES
 
". . .
 
"13. Inmates are not to receive of [sic] give any articles whatsoever to visitors, except by permission of the Superintendent or Deputy Superintendent
 
". . .
 
"16. Liquor, drugs, and unauthorized pictures or literature are strictly forbidden and any violation of this rule will result in disciplinary action.
 
". . ."
 
"CONTRABAND

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