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INTERSIMONE v. CARLSON

December 29, 1980.

Sebastian INTERSIMONE, Plaintiff,
v.
Norman CARLSON et al., Defendants.



MEMORANDUM

I. INTRODUCTION

On April 16, 1980, Sebastian Intersimone, an inmate at the United States Penitentiary, Lewisburg, Pennsylvania, instituted this action, which has been characterized as both a civil rights action and a petition for a writ of habeas corpus, by filing a request for a temporary restraining order. Although this request was denied, *fn1" Plaintiff filed a complaint on May 9, 1980, alleging deprivations of his First, Fifth, Sixth and Eighth Amendment rights because of interference with his mailing privileges and subsequent disciplinary actions taken against him for his attempts to mail certain letters. Defendants have filed a motion to dismiss or, in the alternative, for summary judgment. Subsequently, Plaintiff filed a cross-motion for summary judgment with respect to his request for injunctive relief and expungement of the record of certain disciplinary actions. The parties have submitted supporting documents and memoranda and these motions are now ripe for our consideration.

II. STATEMENT OF FACTS

 To fully comprehend this matter, our discussion must begin with Plaintiff's 1977 criminal trial in which he was tried for Possession with Intent to Distribute Heroin and Cocaine. (76 Cr. 224, S.D.N.Y.) During the course of that trial, one of the jurors approached Plaintiff's sister and requested that she tell Intersimone to meet him during the noon recess on the following Monday. This information was reported to District Judge Owen who presided in that case and the juror was dismissed. After informing defense counsel of the reason for the juror's dismissal, Judge Owen requested suggestions for questioning the remaining jurors, and then questioned each of them individually. However, he found no taint among the remaining jurors and the trial was resumed. Following his conviction, Plaintiff filed post-trial motions seeking to re-examine the members of the jury. Judge Owen, however, denied this request and instructed Intersimone that "no interrogation of jurors is to be done without application to me on a reasonable basis." Government Exhibit 2, p. 31. *fn2"

 Thereafter, Plaintiff was held in contempt of court for violation of this court order. As a result, Judge Owen requested prison officials not to forward mail to any members of the jury in Intersimone's criminal trial. Government Exhibit 2.

 On May 22, 1979 Plaintiff instituted a civil rights action, which was transferred to the United States District Court for the Southern District of New York and docketed to Civil Action No. 79-4382. In that action, he alleged that his civil rights were violated as a consequence of a conspiracy to tamper with the jury in his criminal trial. Plaintiff named all seventeen jurors in addition to numerous other individuals as Defendants in that action. The court dismissed that action on July 10, 1980. The court concluded in part that all of the jurors had absolute immunity for damages which result from their jury service. Alternatively, the court determined that Plaintiff was collaterally estopped from relitigating the issue of jury tampering. See Intersimone v. Bell , Civil No. 79-4382 (S.D.N.Y. filed July 10, 1980), appeal pending .

 The controversy in this matter arose as a result of the conflict between Judge Owen's directive against forwarding any correspondence to any of the jurors in Plaintiff's criminal trial and Rule 5 of the Federal Rules of Civil Procedure which required Plaintiff to serve notice of filing documents upon all defendants including defendant-jurors, in his civil action. In an effort to comply with Judge Owen's request, prison officials placed Plaintiff on "restricted general correspondence." This classification permits "general correspondence which is limited to a list of authorized correspondents...." Government Exhibit 4, Bureau of Prison Program Statement 5265.5, P3. *fn3" Under these guidelines, an inmate may be placed on "restricted general correspondence" on the basis of any of the following determining factors:

 1. Involvement in any of the activities listed in § 540.13(e), *fn4"

 2. Attempting regularly to correspond with persons or businesses where the addressee is known by the inmate only through such sources as advertisements in newspapers, magazines, telephone directories, etc.;

 3. Being a security risk;

 4. Threatening a government official;

 5. Having committed an offense involving the mail;

 6. Having participated in major criminal activity of a ...


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