The opinion of the court was delivered by: MUIR
The Plaintiff, Richard O. J. Mayberry, presently an inmate at the State Correctional Institution at Dallas, Pennsylvania, filed a complaint pursuant to 42 U.S.C. § 1983 on April 2, 1976 alleging violation of his constitutional rights by the Defendants William B. Robinson, Commissioner of Correction [sic] of the Commonwealth of Pennsylvania, Glen R. Jeffes, Superintendent of the State Correctional Institution at Dallas, Joseph M. Ryan, Deputy Superintendent at that institution, Albert J. Perlis, Mail Inspector Supervisor at the institution, Lieutenant John M. Kerestes, and a Sergeant Lavan. The jury was drawn on December 6, 1976. The trial commenced December 28, 1976 and, except for two days spent in drawing juries for the January session and pre-trial conferences for that session, continued through January 24, 1977.
In addition to damages, the Plaintiff requested injunctive relief and the purpose of these findings of fact, discussion, and conclusions of law, is to set down in writing matters pertinent to the injunctive relief requested.
Mayberry's voluminous complaint covers 17 distinct issues. Starting on the second day of the trial, the Court daily informed Mr. Mayberry and counsel for the Defendants that the case was not being presented in a concise manner and that the Court would not allow the trial to occupy an inordinate amount of time. At the beginning of the trial day on Thursday, January 13, 1977, the Court again advised Mr. Mayberry and counsel for the Defendants that the case was not proceeding with the expedition which was required and that the work of the Court with respect to other cases awaiting trial was being impeded. The Court then directed that the presentation of evidence on liability would terminate at the close of business on Friday, January 21, 1977, which termination took place. Reasons for imposing this time limitation are set forth hereafter in the discussion portion of this document.
98 special verdict questions were presented to the jury. Of all the issues submitted to the jury, a finding of liability in favor of Mr. Mayberry was made with respect to only one issue, interference by Albert J. Perlis, the Mail Inspector Supervisor, with mail of the Plaintiff directed to the District Attorney of Luzerne County, Pennsylvania, and the Deputy Court Administrator of the Court of Common Pleas of that county. On Monday, January 24, 1977, the issue of damages on this question was submitted to the jury which returned a finding of nominal damages in the Plaintiff's favor in the amount of $100.00. For reasons set forth hereafter the Court will reduce the nominal damages to $1.00.
The Court makes the following findings of fact:
2.1 Restriction on Visits and Correspondence with James and Priscilla Mayberry
2. Although Mayberry pleaded guilty to the above charges, he testified at the trial of this case, Mayberry v. Robinson, 427 F. Supp. 297 (M.D.P.A. 1977), that the guards attacked him with guns while transporting him from Court and that he has instituted suit against the guards for invasion of his constitutional rights by reason of the incident.
3. The Defendant Jeffes, Superintendent of the State Correctional Institution at Dallas, was advised by Pennsylvania State Police that the gun used by Mayberry in the shooting of the guard January 21, 1974 had been traced to a dealer who identified a picture of James Mayberry, brother of Richard O. J. Mayberry, Plaintiff herein, as that of the individual who had bought the gun from him.
4. Jeffes was advised that Harry Somner, the guard shot by Mayberry, was seriously injured.
5. Jeffes was advised by his subordinate that a handcuff key had been found in Mayberry's cell in the Behavior Adjustment Unit (B.A.U.) at Dallas and this key was introduced into evidence in the current case as Defendant's Exhibit 64 on January 3, 1977.
6. The handcuff key mentioned above was etched as if by body acids, indicating that the key had been swallowed.
7. Despite the warning of the Court to defense counsel that the introduction of the key in evidence was considered by the Court to be undesirable and that a photograph should be substituted therefor, the key was offered in evidence on January 3, 1977.
8. Sometime during the trial the handcuff key was ripped from the Exhibit tag attached to it and was stolen.
9. The exhibits during the trial were available for examination from time to time by Mr. Mayberry, by defense counsel, by court personnel, and possibly by others whose identity is unknown.
10. Jeffes and Ryan were informed by their subordinates that Mayberry attempted to electrocute a fellow prisoner by placing electrified bars on a magazine laid on the grillwork of his cell and requesting that the intended victim take the bars to another place. The intended victim picked up the magazine with the bars rather than picking up the bars themselves, whereupon the bars rolled together, short circuited, and blew the pertinent fuse at the prison.
11. Jeffes was informed by his subordinates and the state police that Mayberry had had in his possession a T-bone from a steak which was sharp and lethal. Mayberry was charged with possessing instruments of escape and two other crimes as a result of an altercation between Mayberry and another prisoner in which Mayberry was armed with the T-bone and the other prisoner armed with a homemade knife. Mayberry was convicted on two of the charges. A new trial was awarded by the Court of Common Pleas of Luzerne County with respect to the charges as to which Mayberry was convicted. On January 5, 1977, Judge Dalessandro of the Court of Common Pleas of Luzerne County ordered the dismissal of the charges. The state police and the district attorney determined that these charges should be nolle prossed.
12. At a preliminary hearing at the prison, Mayberry attempted to stab another inmate with a Bic pen. The stabbing was avoided because the pen struck the handcuffs of the intended victim. At the time of the attack, Mayberry was able to release one of his hands from his handcuffs.
13. Mayberry has been the subject of more than 50 misconduct reports in the last four years while in the B.A.U. at Dallas.
15. Mail was addressed to Mayberry, showing the return name and street number as David Rudovsky, 2711 East Thompson Street, Philadelphia, Pa. which is the residence of James and Priscilla Mayberry. The envelopes were endorsed "Privileged Correspondence Legal Mail".
16. The Defendant Jeffes called to the attention of James and Priscilla Mayberry in a letter dated May 2, 1975, the possible violation of the mailing regulations arising out of the use of their address as the address of David Rudovsky and suspended their rights to correspond to and with Mayberry until a reasonable explanation was furnished the Superintendent with respect to these items. No explanation has ever been given by James and Priscilla Mayberry to Jeffes of these matters. (Defendants' Exhibit No. 7).
17. Jean Mayberry, mother of Richard O. J. Mayberry, is permitted to visit the Plaintiff freely.
18. Other persons are permitted to visit the Plaintiff so long as their names appear on Mayberry's visiting list and they present no reasonable threat to the institution's security.
19. A report submitted to then Superintendent Leonard J. Mack stated that in November, 1972, Mayberry's cell was searched and the following items discovered: hacksaw blades, matches, protectively coated road map, a weapon with a taped handle, a piece of carborundum wire, and requests for asylum in many different languages. Also, it was reported to the Superintendent that several of the bars in Mayberry's cell had been sawn through and the separation camouflaged.
20. In 1966 the Plaintiff was convicted of perjury.
2.2 Restriction on Correspondence with Martha Austria
21. Jeffes was advised that letters were being sent by Mayberry through Martha Austria to her brother, Dominick Codispoti, an inmate in another state prison in Pennsylvania.
22. Mail regulations prohibit correspondence between prisoners in different institutions in the Pennsylvania correctional system without prior approval.
23. Jeffes on August 4, 1975 requested an explanation from Martha Austria of her apparent use as a go-between for correspondence between Mayberry and Codispoti and suspended the Plaintiff's right to correspond with Martha Austria until a reasonable explanation had been received from her.
24. Jeffes has never received a reply from Martha Austria.
2.3 Restrictions on Circulation of the "Prisoner's Free Press"
25. The Plaintiff Mayberry is the publisher of the Prisoner's Free Press.
26. Then State Commissioner of Correction Stewart Werner banned the circulation of the "Prisoners' Free Press" in all penal institutions in the Commonwealth of Pennsylvania and his order is still in effect.
27. Circulation of the "Prisoners' Free Press" is not permitted at the State Correctional Institution at Dallas in accordance with an order of Defendant Jeffes.
2.4 Interference with Correspondence with Attorney David Kairys at Post Office Box 4731
28. Box No. 4731, Philadelphia, Pa., is a post office box rented by the Imprisoned Citizens Union of which Richard O. J. Mayberry and James Mayberry are officers.
29. James Mayberry has access to Box No. 4731.
30. Mail was sent by Mayberry addressed to David Kairys, Attorney at Law, Box No. 4731, Philadelphia, Pa. On March 8, 1974, two envelopes addressed to Mayberry and containing the typed name and return address of Mr. David Kairys, Attorney at Law, P.O. Box 4731, Philadelphia, Pa., 19134, were opened by prison officials in Mayberry's presence. One envelope contained a letter from an inmate at the United States Federal Penitentiary at Leavenworth, Kansas. The other envelope had a letter from an inmate at the California State Prison at San Quentin, California.
31. On March 11, 1974, Defendant Jeffes prohibited Mayberry from corresponding with Attorney David Kairys through the use of Post Office Box No. 4731, Philadelphia, Pa.
32. Mayberry was not prevented from corresponding with Attorney Kairys at his office address, 1428 Walnut Street, Philadelphia, Pennsylvania.
33. Subsequent to the date of Jeffes' Order of March 11, 1974, Richard O. J. Mayberry has received mail from the law firm of Rudovsky and Kairys in which their printed envelopes were used and their full address shown.
2.5 Restriction on Incoming Legal and Business Mail
34. There is no evidence that there has been a failure to deliver to Mayberry any of his incoming legal mail.
35. Mayberry ordered books and magazines on a pay later basis.
36. Several prisoners at the State Correctional Institution at Dallas have ordered a substantial number of books and magazines ...