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YOUNG v. LARKIN

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA, SCRANTON DIVISION


September 30, 1994

RICHARD YOUNG, Plaintiff
v.
DAVID LARKIN, ET AL., Defendants

The opinion of the court was delivered by: THOMAS I. VANASKIE

MEMORANDUM

 Plaintiff Richard Young, a pretrial detainee in custody at the Lackawanna County Prison, but formerly incarcerated at the State Correctional Institution at Dallas-Pennsylvania ("SCI-Dallas"), filed the above-captioned civil rights action on February 19, 1993. This Memorandum and accompanying Order address defendants' motion to dismiss (Dkt. Entry # 7). For the reasons stated below, the defendants' motion to dismiss will be granted. *fn1"

 BACKGROUND

 Young's suit, which he filed pursuant to 42 U.S.C. § 1983, complains about his treatment while housed as a pretrial detainee at SCI-Dallas between March 10, 1992 and July 15, 1992. (See "Complaint Civil Rights" (Dkt. Entry # 1; hereafter "Compl.") at 1.) *fn2" The defendants include the Pennsylvania Department of Corrections (the "DOC"), the Commissioner of Corrections, Joseph Lehman, and the following SCI-Dallas officials: John R. Stepanik, Superintendent; David H. Larkins, Deputy Superintendent for Operations; Paul F. Crisler, Deputy Superintendent for Operations; Robert Pikulski, Counselor; and Stanley Gabriel, Major of the Guard. Young requests "monetary relief of $ 25,000 as a result of the defendants' actions . . . ." (Compl. at 6.)

 In March, 1992, the Court of Common Pleas of Lackawanna County ordered that Young, who was a pretrial detainee being held at the Lackawanna County Prison on murder charges, be transferred to SCI-Dallas because, as the court explained, "incarcerated at the Lackawanna County Prison [were] several potential witnesses against" Young and the "potential for witness intimidation and tampering" existed. (Stepanik Decl. at Ex. "II.") The form employed by the Pennsylvania Bureau of Correction, entitled "Transmittal Of Data For County Prison Transfer" accompanying Young's transfer to SCI-Dallas, indicated that no bail amount was set in connection with his murder charges. It also indicated that two detainers were filed against him, which involved, inter alia, arson and criminal mischief, for which each had bail set at $ 200,000. (Stepanik Decl. at Ex. "II.")

 Upon Young's transfer, SCI-Dallas officials prepared a "Notification of Confinement," in which Young was advised:

 

You were received at SCI-Dallas as a [sic] untried/unsentenced county detentioner (Lackawanna Co.). You are being placed in the Restricted Unit until you are seen by the Program Review Committee. [Stepanik Decl. at Ex. "II."] *fn3"

 The next day, March 11, 1992, SCI-Dallas officials held an Administrative Custody Hearing concerning Young's confinement in a restricted housing unit, after which the officials recorded:

 

[Young is] an HVA from Lackawanna County who is a potential escape risk. Absconded from Public defender's office on prior charge.

 SCI-Dallas records indicate that on March 12, 1992, two days after his transfer to SCI-Dallas, Young undertook a "hunger strike" and began to refuse eating his meals. (Stepanik Decl. at Ex. "VI.") Young consequently was confined to a psychiatric observation room between March 13 and March 23, 1992. (Stepanik Decl. at P 37 and Ex. "VI.") *fn4"

 On April 14, 1992, SCI-Dallas administrative officer George A. Matthews memorialized the following conversation in a memorandum he addressed "To Record:"

 

On April 14, 1992, Trooper Jerry DeFazio, Pennsylvania State Police, Dunmore, arrived at SCI-Dallas [and] substantially stated Young should be treated as an extreme security risk in that Young may attempt to get a medical emergency to a local hospital. He will then use it to fake a fall and file a lawsuit or make an escape attempt. It was told to me that his attorney was arrested for blocking a doorway while he made his getaway being a fugitive for eight (8) years. [Stepanik Decl. at Ex. "VIII."]

 Because Young was housed in administrative custody, Pennsylvania Bureau of Corrections procedures provided that he was entitled to have his housing status reviewed, and to be personally interviewed as part of the review, every thirty (30) days by a Program Review Committee ("PRC"). (Stepanik Decl. at Ex. "I," pg. 4.) A progress review was conducted on April 9, 1992. The PRC issued, in substantial part, the following report:

 

Young requested visiting privileges in the Visiting Room based on the fact that he needs the time to sit with his lawyers in an unhandcuffed fashion and of not being a threat to other people who were possible witnesses in the county. Young now states that witnesses he was to be separated from are no longer being potential witness and that those cases have been dropped. PRC advised him they would, in fact, contact the Lackawanna officials to find out more about this situation. PRC also has the understanding that he may have been a potential escape risk to which Young claimed he had never been convicted of any similar charges, and that information we have is wrong. He requested a telephone call and discussed this with Mr. Kaminski. Mr. Rusnak, Records Office Supervisor, will be contacted to find out the specifics in Young's case. If, in fact, the inmates we are separating him from are no longer at Lackawanna Prison or that the potential for problems there no longer exists, the Records Officer should try to get him transferred him [sic] back to that institution. He was agreeable to this. [Stepanik Decl. at Ex. "V."] *fn5"

 Young refused to attend his next PRC review. The May 14, 1992 PRC review report, in pertinent part, stated:

 

Young was scheduled for his 30 day review on this date before the PRC. Young refused to attend. By way of this communication, Young is strongly encouraged to attend his next regularly scheduled review. . . . He is being continued in the RHU as he is considered a potential escape risk because of his past history. It is also noted that he is being held for Lackawanna County Prison as a HVA. He will continue on that status until he is returned to the county or returned to other authorities. [Stepanik Decl. at Ex. "V."] *fn6"

 The June 11, 1992 PRC review report, in pertinent part, stated:

 

There was a significant discussion about his status and his inability to obtain legal material. It is this reporter's opinion that he can obtain legal material upon request. Due to his status in the RHU it is improbable to provide physical access to the Law Library. [Stepanik Decl. at Ex. "V."] *fn7"

 Finally, the July 9, 1992 PRC review report, in pertinent part, stated:

 

[Young] presented the PRC with a list of . . . requests. . . . 1) He requested to be placed in general population. Young is considered a serious escape risk and this request is denied. 2) He requested to be allowed to meet with his attorney without handcuffs. This is a security precaution that is required in this status and this request is denied. PRC fails to see how reviewing paperwork cannot be accomplished with handcuffs. 3) He asked for the opportunity to make phone calls. PRC indicates that the majority of his phone calls are being made preclude having an inmate pay for the call. They must be collect calls. 4) He indicates that books are in the Mailroom for him. PRC directs that certain books will be reviewed by his counselor and the required number will be permitted pursuant to RHU regulations. 5) He asked for an inmate manual. This will be provided. 6) He asked to go to the Law Library. There is a RHU procedure whereby he can request information from the Law Library. [Stepanik Decl. at Ex. "V."] *fn8"

 Young complains of a number of aspects of his confinement at SCI-Dallas. For example, he complains that the defendants refused to release him into the general prison population. (Compl. at PP 4 and 5.) *fn9" He alleges that the defendants required him to "meet with counsel in handcuff's [sic]," which purportedly hampered his ability to review documents and make "notes in the presence of his legal counsel." (Compl. at P 31.) Moreover, Young alleges that he "was allowed fewer visits with family than prisoners in general population," and that he "had to visit family with handcuffs on and that condition is not placed on prisoners who are convicted but in general population." (Compl. at PP 31 and 34.) Young alleges that his legal mail "was opened and inspected and censored before given to" him. (Compl. at PP 19 and 20.) He alleges that he was refused "free copies of legal documents that the plaintiff requested to be copied and needed to have copied, for court filing in his criminal case." (Compl. at P 12.)

 Other claims of Young include:

 

- that the defendants refused to allow his attorney "into the prison to see the plaintiff" (Compl. at P 32)

 

- that he was denied physical access to the prison library and that he was not offered a "para legal" assistant (Compl. at PP 10 and 11) *fn10"

 

- that he had "no private access to a telephone for legal phone calls as all calls were made from the . . . gate door to the plaintiff's cell [so that] other inmates and guards [had] the opportunity to listen to the plaintiff's conversations" (Compl. at P 14) *fn11"

 

- that he was denied "from receiving a beard trim," though he acknowledges that he was allowed to shave the beard, and that he "was denied the ability to have hair cuts in the barbershop . . . but had to receive a hair cut" in his cell (Compl. at P 16)

 Young alleges that the conditions of his confinement in RHU were "more severe" and "more punitive [sic] than that of prisoners in general population." (Compl. at PP 33 and 41.) Young asserts that his Fourteenth Amendment rights were violated because, as Young alleges, he was confined "under conditions that imposed upon the plaintiff . . . materially greater restrictions of his freedom than those upon convicted prisoners in the same institution." (Dkt. Entry # 42.)

 On April 20, 1993, the defendants filed the instant motion to dismiss. (Dkt. Entry # 7.) The Court later directed that "the motion shall be treated as one for summary judgment and adjudicated in the manner provided by Rule 56." (Dkt. Entry # 26 at 2.) *fn12" The Court also ordered the defendants to file a statement of material facts and the plaintiff to respond to the statement, a directive with which the parties have complied. *fn13"

  DISCUSSION

 Defendants' Summary Judgment Motion

 Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment should be granted when "there is no genuine is sue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Summary judgment will not lie "if the dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). There is no issue for trial unless sufficient evidence exists which favors the non-moving party so that a jury may return a verdict for that party. Anderson, 477 U.S. at 249-250.

 A fact is "material" if proof of its existence or nonexistence would affect the outcome of the lawsuit under the law applicable to the case. Id., at 248. Summary judgment thus should be entered when a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 The burden of demonstrating the absence of genuine is sues of material fact initially rests with the moving party regardless of which party would have the burden of persuasion at trial. Celotex, 477 U.S. at 321-25. After the moving party meets this burden, the non-moving party must present sufficient evidence to establish the existence of every element essential to that party's case. Id. The responding party may not rest on the allegations of his pleading but must present specific facts by affidavit or otherwise which are sufficient to create a genuine issue of material fact. Sunshine Books Ltd. v. Temple University, 697 F.2d 90 (3rd Cir. 1982).

 It is well-established that a state or state governmental entity is not encompassed by the term "person" as used in 42 U.S.C. § 1983. Will v. Michigan Dept. of State Police, 491 U.S. 58, 65-66, 105 L. Ed. 2d 45, 109 S. Ct. 2304 (1989). Consequently, summary judgment will be granted with respect to the Pennsylvania Department of Corrections. It also is well-established that state officials may be sued for Section 1983 violations only in their "individual capacity," and not in their "official capacity." Hafer v. Melo, 502 U.S. 21, 116 L. Ed. 2d 301, 112 S. Ct. 358 (1992). Consequently, summary judgment will be granted for the defendants to the extent that Young sues them for actions taken in their official capacity.

 In moving for summary judgment, the defendants group a portion of Young's claims under the topical headings "Conditions Claims" and the remaining contentions under the category "Access To Courts Claims." The "Conditions" and "Access" claims presented in this case will be addressed seriatim.

 "Conditions Claims"

 Because Young was confined at SCI-Dallas as a pre-trial detainee, and not as a convicted prisoner, the proper analysis of Young's complaints regarding his conditions of confinement begins with the Supreme Court's decision in Bell v. Wolfish, 441 U.S. 520, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979), in which the Court stated:

 

In evaluating the constitutionality of conditions or restrictions of pretrial detention that implicate only the protection against deprivation of liberty without due process of law, we think that the proper inquiry is whether those conditions amount to punishment of the detainee. . . . A court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose. Absent a showing of an expressed intent to punish on the part of the detention facility officials, that determination generally will turn on "whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it]." Id. at 535, 538 (1979) (footnotes and citations omitted).

 The Court concluded:

 

If a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not without more, amount to "punishment." Id. at 539.

 The Court admonished that when deciding whether a specific restriction is "reasonably related" to the security interest of the institution, it must be recognized that:

 

[security] considerations are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations courts should ordinarily defer to their expert judgment in such matters. . . Prison administrators [are to be] accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security. Id. at 540 n. 23, 547 (emphasis added).

 In Block v. Rutherford, 468 U.S. 576, 82 L. Ed. 2d 438, 104 S. Ct. 3227 (1984), the Supreme Court held that a blanket prohibition against pretrial detainees receiving contact visits from the general public or their family was "an entirely 'reasonable, nonpunitive response to the legitimate security concerns identified [by the prison administrators], consistent with the Fourteenth Amendment." Id. at 588. The Block court also observed:

 

Detainees . . . often are awaiting trial for serious, violent offenses, and many have prior criminal convictions. Exposure of this type person to others, whether family, friends, or jail administrators, necessarily carries with it risks that the safety of innocent individuals will be jeopardized in various ways. They may, for example, be taken as hostages or become innocent pawns in escape attempts. It is no answer, of course, that we deal here with restrictions on pretrial detainees rather than convicted criminals. For . . . in this context, "there is no basis for concluding that pretrial detainees pose any lesser security risk than convicted inmates." Indeed, . . . "it may be that in certain circumstances [detainees] present a greater risk to jail security and order." 468 U.S. at 586-87 (citations omitted). *fn14"

 In Martucci v. Johnson, 944 F.2d 291, 293 (6th Cir. 1991), the court examined the § 1983 complaint of a pretrial detainee who was housed in segregated confinement for eight days because an agent of the state's bureau of investigation reported that the detainee was planning an escape. The detainee was confined during this period to a "six by ten foot cell furnished only with a bed, sink, and toilet." Id. at 293. The detainee's "mail was withheld and he had no access to a telephone." Id. "At no time during his confinement was [the detainee] informed of the reasons for his segregation." Id. The court determined:

 

Because the conditions imposed on [the detainee] during the eight days of his segregated confinement were "reasonably related to [the] legitimate governmental objective" of aborting his escape and insuring his presence at trial, segregation did not, under the circumstances, amount to unconstitutional "punishment." Because it did not amount to punishment, the [detainee's] placement in segregated confinement did not, in and of itself, violate principles of due process as applied in the context of pre-trial detention." Id. at 294 (citations omitted).

 The court also construed the detainee's complaint to allege violations of his due process rights because he was not afforded a hearing before being placed in segregated housing. Id. Addressing the detainee's argument that the state's prison regulations required a hearing in "cases of alleged violations of prisoner conduct rules," the court asserted:

 

[The detainee] was not subjected to "discipline" for violation of a prison rule. Rather, he was reasonably placed in segregated confinement for what amounted to purely administrative reasons -- reasons anchored in a desire to foil his escape, thereby preserving institutional security and insuring [the detainee's] presence at trial. Id. at 294-95.

 Young complains that the defendants refused to release him into the general prison population. (Compl. at PP 4 and 5.) He alleges that the "defendants continually lied and asserted that the plaintiff escaped from prison previously knowing and being informed the plaintiff never attempted escape from prison and has never been charged as a fugitive at any time in his entire life." (Compl. at P 21.) He alleges that the defendants "asserted that the plaintiff was a violent man and knew that to be false as the plaintiff has no violent convictions on his record and has never been convicted of such offenses." (Compl. at P 22.) *fn15"

 In contrast to Young's bald assertions, defendants have presented evidence supporting the decision to place Young in restricted housing. Indeed, the SCI-Dallas officials received Young at the order of the Lackawanna County Court of Common Pleas because Young presented the "potential for witness intimidation and tampering." (Stepanik Decl. at Ex. "II.") In light of such an order, and given the need to evaluate a new inmate before introducing him into the general prison population, the decision by the SCI-Dallas officials to place Young in restricted housing was "an entirely reasonable, nonpunitive response to legitimate security concerns . . . consistent with the Fourteenth Amendment." Block, 468 U.S. at 588. *fn16" There is no "evidence in the record to indicate that the officials have exaggerated their response" in their treatment of Young. Bell, 441 U.S. at 540 n. 23.

 Furthermore, the defendants' decision to continue holding Young in restricted housing was an "incident of some other legitimate governmental purpose," id. at 538, namely the institutional security of the SCI-Dallas facility. As explained by the SCI-Dallas superintendent, defendant Stepanik:

 

Young's own conduct raised serious concerns about the suitability of his release to the general population. Shortly after his arrival, he engaged in a hunger strike, which caused his transfer from RHU to a psychiatric observation room. This occurrence, which Young initially denied engaging in then later admitted, suggested the possibilities that he might be seeking to harm himself or that he was seeking to disrupt institutional operations. [Stepanik Decl. at P 37.]

 Finally, similar to the warnings relayed to the jailers in Martucci: by a state bureau of investigation officer, SCI-Dallas officials received stern warnings from a Pennsylvania state trooper about the security threat Young posed.

 The Supreme Court has instructed that this Court must accord to prison administrators "wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security." Bell, 441 U.S. at 547. The decision to hold Young in restricted housing "is reasonably related to a legitimate governmental objective." Id. at 539. In the absence of a showing by Young "of an expressed intent to punish on the part of the detention facility officials," id. at 538, Young's complaints that he was housed in segregated confinement as a pretrial detainee fail to present triable issues. Defendants merit summary judgment on these complaints.

 Young also alleges that he "was allowed fewer visits with family than prisoners in general population" and that he "had to visit family with handcuffs on and that condition is not placed on prisoners who are convicted but in general population." (Compl. at PP 31 and 34.) It is clear that the defendants are entitled to summary judgment regarding this claim, as well. The Supreme Court in Block, as discussed above, held that the constitution does not require that pretrial detainees be allowed contact visits when prison administrators have determined that such visits will jeopardize the security of the facility. 468 U.S. at 588-89. It would seem, at the very least, that in being allowed contact visits with his family, Young was afforded more privilege than constitutionally required. Additionally, it has been held that the mere fact that a prisoner is confined in a segregation unit substantiates the use of a security belt and handcuffs while receiving visitor's, although such a holding was premised on a finding that such measures did not violate the prisoner's Eighth Amendment rights. Hanna v. Lane, 610 F. Supp. 32, 35-36 (N.D.Ill. 1985) ("For Eighth Amendment purposes, the mere fact of segregation is sufficient to justify use of handcuffs and a security belt for purposes of receiving contact visits."). Consequently, the defendants are entitled to judgment as a matter of law with respect to this claim.

 Young also alleges that he was denied "a beard trim," although he acknowledges that he was allowed to shave the beard, and that he "was denied the ability to have hair cuts in the barbershop . . . but had to receive a hair cut" in his cell. (Compl. at P 16.) The defendants assert that prisoners "in administrative custody may request and receive haircuts by the same inmate barbers who give haircuts to general population inmates." (Stepanik Decl. at P 44.) It is apparent that Young was afforded the opportunity to receive satisfactory grooming to maintain personal hygiene and satisfy minimal constitutional standards. Accordingly, defendants are entitled to a judgment as a matter of law on this claim.

 "Access To Courts Claims"

 Young asserts in his complaint that he was denied physical access to the prison library and that he was not offered a "para legal" assistant. (Compl. at PP 10 and 11.) *fn17" In response, the defendants maintain:

 

Administrative custody inmates may request and receive legal materials from the prison's law library. If they wish, and have the funds to do so, they may also purchase materials from the appropriate vendors. (Stepanik declaration at P 47.) *fn18"

 In Bounds v. Smith, 430 U.S. 817, 52 L. Ed. 2d 72, 97 S. Ct. 1491 (1977), the Supreme Court held "that the fundamental constitutional right of access to the courts requires prison officials 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. *fn19"

 The Court of Appeals for the Sixth Circuit in Martucci v. Johnson, 944 F.2d at 291, discussed above, also addressed the detainee's claim that his constitutional right of access to the courts had been violated during the entire period he was held as a pretrial detainee because the jail facility in which he was held contained no law library. The court found significant the fact that, as at SCI-Dallas, "the record disclosed that jail officials were in the practice of providing legal materials to inmates 'upon request.'" Id. at 295. The court also found persuasive that, like Young, the detainee was represented by appointed counsel during his entire detention. Id. In response to the detainee's argument that the "counsel was appointed to defend him in the criminal case and not to represent him as a plaintiff in a civil rights action," the court responded:

 

There is, however, nothing in the record to lend support to the presumption that [the detainee] was barred from discussing his segregated confinement -- and the legal implications thereof -- with his appointed attorney. The availability of counsel during [the detainee's] period of pre-trial confinement, coupled with the jailers' unrebutted assertion that they provided inmates with legal materials upon request, defeats [the detainee's] access to courts claim. Id.

 The analysis and rationale employed by the Court of Appeals for the Sixth Circuit in Martucci is particularly apt here. Like the record before the Martucci court, there is nothing in the instant "record to lend support to the presumption that [Young] was barred from discussing his segregated confinement--and the legal implications thereof--with his appointed attorney." Martucci, 944 F.2d at 295. Moreover, in response to the Defendants' statement of uncontested fact that the SCI-Dallas policy in effect during Young's stay allowed him to request legal items from the law library which would be provided to him, (Dkt. Entry # 38 at P 42), Young replied as follows: "UNKNOWN AS TO POLICY DENIED AS TO LEGAL HELP." (Dkt. Entry # 49 at P 42.) Young did not refute that he had the opportunity to request and receive legal materials; Young only reiterated that he was not offered "legal help." *fn20" Here, as in Martucci, "the jailers' unrebutted assertion that they provided inmates with legal materials upon request, defeats [Young's] access to courts claim." *fn21" Martucci, 944 F.2d at 295.

 An additional access to courts claim advanced by Young is his assertion that he was forced to "meet with counsel in handcuff's [sic]," purportedly impairing Young's ability to review documents and make notes. (Compl. at P 31.) An inmate's right of access to the courts encompasses the right to contact visits with his or her attorney. Ching v. Lewis, 895 F.2d 608, 609 (9th Cir. 1990); Adams v. Carlson, 488 F.2d 619 (7th Cir. 1973); Mann v. Reynolds, 828 F. Supp. 894 (W.D.Okla. 1993). Because contact visits enable the attorney "to assess a witness' demeanor and credibility," they are a necessary means for the establishment of a relationship between the inmate and his or her lawyer. Casey, 773 F. Supp. at 1367.

 In a case decided only last year, the District Court for the Western District of Oklahoma examined the practice in one prison where inmates meet their attorneys in a room divided:

 

by a locking door and a metal grate with a diamond-shaped interstices of approximately 3/4 inch which divides the room above a three-foot-wide counter. A pass-through space is approximately four inches tall and 16 inches wide. The pass-through space is sufficient to allow the inmate and attorney to shake hands and, of course, pass through any necessary documents. Mann, 828 F. Supp. at 898-99. *fn22"

 The district court noted:

 

Plaintiffs are constitutionally entitle to contact visits with their attorneys. The level or nature of the contact is a different question. This court is unaware of any other reported decision discussing the level of contact minimally required to protect plaintiffs' constitutional rights. The question thus becomes whether the present system, providing some contact, satisfies the requirement of providing adequate, effective, and meaningful access to the courts. Id. at 904. *fn23"

  Applying "the four factor analysis established by Turner v. Safley, " 482 U.S. 78, 89-90, the district court upheld the constitutionality of the prison's actions. The Turner factors for "determining the reasonableness of the [prison] regulation" are: 1) "a 'valid, rational connection' between the prison regulation and the legitimate governmental interest put forward to justify it;" 2) "alternative means of exercising the right that remain open to prison 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." Turner, 482 U.S. 78 at 89-90, 96 L. Ed. 2d 64, 107 S. Ct. 2254.

 In Young's case, defendants' requirement that Young visit with counsel while handcuffed did not violate Young's right of access to courts. *fn24" Despite wearing handcuffs, Young was allowed direct contact with his attorney. Young could write and shake hands with his attorney. Young was only limited in the extent of movement he could enjoy with his hands. *fn25"

 An additional access to courts claim advanced by Young is the claim that he had "no private access to a telephone for legal phone calls as all calls were made from the . . . gate door to the plaintiff's cell [so that] other inmates and guards [had] the opportunity to listen to the plaintiff's conversations." (Compl. at P 14.) The district court in Mann, 828 F. Supp. at 906, also considered the prison policy of providing double-celled prisoners with a portable phone brought to the edge of the cell. The phone, however, was equipped with a long cord to allow the prisoner to "take the receiver to the back of the cell and achieve privacy from his cellmate." Id. The court concluded that the prisoners' access passed "constitutional muster." Id.

 Unlike the situation examined in Mann, Young was "single-celled," and the provision of a long cord to "achieve privacy from his cellmate" would not be required. The fact that Young was not provided an enclosed room in which to make such calls, but that the phone was brought to his cell, did not violate Young's constitutional rights. Although Young should be afforded privacy from prison officials monitoring conversations with his attorneys, the mere allegation that prison guards had "the opportunity to listen to the plaintiff's conversations," as Young alleges, is insufficient. Because Young has failed "to make a showing sufficient to establish the existence of an element essential to" his case, Celotex, 477 U.S. at 322, the defendants are entitled to judgment as a matter of law with regard to this issue.

 Finally, with respect to Young's allegations that his legal mail "was opened and inspected and censored before given to the plaintiff," (Compl. at PP 19 and 20), the defendants simply cite to Pennsylvania Bureau of Correction regulations which provide that correspondence to or from attorneys, and clearly identified as such, may "be opened, read, censored or reproduced" only in limited circumstances, of which each circumstance requires the approval of the superintendent. (Stepanik Decl. at 10.) Again, Young has made bald allegations with respect to his mail and has provided no evidence of any sort to substantiate his claim. Because Young has not produced sufficient evidence "so that a jury may return a verdict" in his favor, Anderson, 477 U.S. at 249-250, summary judgment will be granted to the defendants on this aspect of Young's claim.

 An appropriate Order will be issued.

 Thomas I. Vanaskie

 United States District Judge

 DATED: September 30, 1994

 ORDER

 NOW, THIS 30th DAY OF SEPTEMBER, 1994, for the reasons set forth in the accompanying Memorandum, IT IS HEREBY ORDERED THAT:

 1. Plaintiff Richard Young's "Motion To Compel Defendants To Comply To Plaintiff's [First] Request For Production Of Documents" (Dkt. Entry # 46) is DENIED as moot.

 2. The defendants' motion to dismiss (Dkt. Entry # 7), which the Court treats as a motion for summary judgment, is GRANTED.

 3. The Clerk of Court is directed to close this case file.

 Thomas I. Vanaskie

 United States District Judge


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