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CHINCHELLO v. FENTON (08/06/86)

argued: August 6, 1986.

CHINCHELLO, EDWARD, LEWISBURG PRISON PROJECT, INC. SCHOPPERT, DOUGLAS, ESQUIRE
v.
FENTON, CHARLES, CARLSON, NORMAN, DIRECTOR, BUREAU OF PRISONS, DOE, JOHN, CORRECTIONS OFFICER, FCI, EL RENO, SCOTT, OFFICER, CORRECTIONS OFFICER, FCI, EL RENO, WELSH, GENE, CORRECTIONAL SUPERVISOR, FCI, EL RENO, OKLAHOMA, MARTIN, THOMAS C. WARDEN, FCI, EL RENO, OKLAHOMA, WISEHART, DAVID L., CHIEF CORRECTIONAL SUPERVISOR, FCI, LA TUNA, TEXAS, WINGFIELD, R., CHIEF CORRECTIONAL SUPERVISOR, FCI, EL RENO, OKLAHOMA, UNITED STATES OF AMERICA, MARTIN, ROBERT, MARTIN, THOMAS C., NORMAN CARLSON AND BOYDE SCOTT, APPELLANTS



On Appeal from the United States District Court for the Middle District of Pennsylvania - Scranton D.C. Civil No. 85-0027.

Author: Stapleton

BEFORE: SEITZ, ADAMS, and STAPLETON, Circuit Judges.

Opinion OF THE COURT

STAPLETON, Circuit Judge:

Edward Chinchello, an inmate at the Federal Correctional Institution in El Reno Oklahoma, (FCI El Reno) brought this Bivens action*fn1 against a number of federal corrections officials alleging that his outgoing, confidential mail had been opened and that he had been placed in "administrative detention" in violation of numerous amendments to the United States Constitution.*fn2 Two of the defendants, Norman Carlson, director of the Bureau of Prisons, and Boyde Scott, a corrections officer at FCI El Reno, moved for summary judgment. They filed these appeals following denial of their motions. We will dismiss Scott's appeal for want of jurisdiction. We will reverse the district court's order denying Carlson's motion and will direct that summary judgment be entered in his favor.

I.

Chinchello was transferred from the federal prison in Lewisburg, Pennsylvania, to FCI El Reno on March 18, 1983. On March 26th, Chinchello used "special mail"*fn3 to send a press release concerning conditions at FCI El Reno to his former attorney at the Lewisburg Prison Project, with directions to forward the press release to Mike Wallace of "60 Minutes." Chinchello alleges that prison officials improperly opened this "privileged" correspondence.

On March 27, the day after Chinchello wrote and mailed the letter, he was placed in administrative detention, where he remained until April 7, 1983. He alleges that this detention was imposed without notice and a hearing and in retaliation for this attempt to publicize poor conditions in the prison. The defendants, on the other hand, assert that Chinchello was one of many prisoners properly placed in detention as part of an investigation of a food strike at FCI El Reno which occurred between March 25 and March 28.

Chinchello's original complaint alleged that Carlson, acting "through an unnamed officer, employee, agent or servant of the Bureau of Prisons," conspired to interfere with Chinchello's legal correspondent. (52a) The complaint also alleged that Carlson, through named employees, confined Chinchello in administrative detention. With respect to Scott, Chinchello alleged that he participated in the decision to place Chinchello in isolation for dispatching the letter concerning prison conditions and that he acquiesced in Chinchello's remaining there for twelve days despite his knowledge that Chinchello was being detained in violation of his constitutional rights.

Carlson and Scott promptly moved to dismiss or, in the alternative, for summary judgment. In support of his motion, Carlson filed an affidavit swearing that he had "no knowledge of nor involvement in decisions directly concerning" Chinchello and that "any actions [he] might have taken that could have even remotely or indirectly affected [Chinchello] were done within the scope of [his] employment as Director, Bureau of Prisons." (15a) Scott also filed an affidavit averring that any involvement he may have had was limited to the ministerial action of escorting Chinchello to detention. Although noting that the complaint did "not indicate precisely how or the extent to which Carlson was involved in the conspiracy," the court denied both motions to dismiss. (26a) It deferred decisions on the motions for summary judgment until Chinchello's counsel had had an opportunity to conduct discovery.

Counsel took several depositions including a deposition of Carlson. In his deposition, Carlson testified that he had never heard of Chinchello prior to the filing of this suit and that he had been unaware of any disturbance occurring at FCI El Reno in March and April of 1983. He further testified at length about his responsibility for directing the affairs of the Bureau of Prisons from Washington, D.C.

In responding to the summary judgment motion following discovery, Chinchello filed no affidavit tending to show that Carlson had knowledge of the food strike, the opening of the letter, or Chinchello's detention. Indeed, Chinchello acknowledged Carlson's "admitted lack of knowledge of whether an event termed a 'food strike' . . . occurred or did not occur" at FCI El Reno in March or April of 1983. (87a) Chinchello's response to Carlson's denial of any contemporaneous knowledge of the events giving rise to the suit was the following:

Defendant Carlson failed to train, supervise, and discipline Defendants Scott and Doe properly and as a direct result of Defendant Carlson's failure to perform this ministerial function [Plaintiff] suffered violations of [his] constitutional rights. Defendant Carlson, through his failure to supervise properly, had direct involvement in the establishment of practices and policies of the Federal Correctional Institution at El Reno, Oklahoma, Bureau of Prisons, United States Department of Justice, pursuant to which subordinates directly charged with the discipline, treatment, and care of inmates therein . . . engaged in conduct that violated [Plaintiff's] constitutional and statutory rights.

(89a) Chinchello's response to Carlson's motion did not identify any practice or policy formulated by Carlson which authorized the conduct of which he complained. Rather, he complained that Bureau of Prisons regulations designed to ...


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