Brooks v. Cupp

488 P.2d 804 (1971)

Roger Allen BROOKS, Appellant, v. Hoyt C. CUPP, Superintendent, Oregon State Penitentiary, Respondent.

Court of Appeals of Oregon, Department 1.

Submitted on Briefs July 30, 1971.

Decided September 21, 1971.

Rehearing Denied September 30, 1971.

Review Denied November 3, 1971.

Roger Allen Brooks, in pro. per.

Jim G. Russell, Asst. Atty. Gen., Lee Johnson, Atty. Gen., and John W. Osburn, Sol. Gen., Salem, for respondent.

Before SCHWAB, C.J., and LANGTRY and THORNTON, JJ.

LANGTRY, Judge.

Petitioner appeals from dismissal of his petition for writ of mandamus (ORS 34.110, 34.120) seeking to require the Superintendent of Oregon State Penitentiary to discontinue "present censorship practices which are in violation of the rights of the 1st and 4th Amendment of the U.S. Constitution," alleging in particular:

"1. The defendant does not allow correspondance [sic] without first acquiring written permission from petitioner to censor all incoming and outgoing mail of petitioner. "2. The defendant further violates the petitioners rights by taking outgoing mail and having copies made of same to be placed in a file. "3. The defendant does in fact censor all incoming and outgoing mail."

Petitioner is serving a life term in the Oregon State Penitentiary. As a supplement to his petition he has attached a copy of the correspondence rules applying to inmates which includes:

"Regular correspondence from relatives, friends, and other persons in the community who have a right or could be influential in helping an inmate adjust to a law-abiding life upon release is essential. Therefore, and in accordance with regulations approved by the Superintendent, inmates may exchange correspondence with any person, provided such correspondence does not violate the rights and interests of others. *805 "Procedures governing all correspondence are as follows: "1. To qualify for correspondence privileges, an inmate must agree to authorize the Superintendent, or his designated representatives, to inspect all mail both incoming and outgoing, with the following exceptions: "(a) Any mail exchanged with elected State Officials; "(b) Any mail exchanged with courts; "(c) Any mail exchanged with attorneys; and "(d) Any mail exchanged with Corrections Division Central Office Administrative staff. "(Any mail to or from the aforementioned sources (a through d) will be forwarded without being opened. If, however, the mail room officer feels that the origin is suspect and therefore contain contraband items; these letters may be opened in the inmate's presence.) "* * *"

The Attorney General asserts that if petitioner has a grievance he has chosen the incorrect remedy. With this we agree. Newton v. Cupp, Or. App., 91 Adv.Sh. 253, 255-256, 474 P.2d 532 (1970). However, petitioner is appearing as his own attorney.

In Roberts v. Pegelow, 313 F.2d 548, 550 (4th Cir.1963), the court said:

"* * * Unlearned inmates of penal institutions * * * are usually ignorant of the legal niceties of the procedural rules in the courts. If one presents in his own behalf a petition which clearly merits some relief, he ought not to fail entirely because he misconceives the nature of the proceeding or mislabels his petition. * * *"

The court then proceeded to consider the substance of the petitions there being considered and concluded that they had properly been dismissed in the lower court. We will consider the substance of petitioner's complaints in this matter, but do not consider this action as setting a precedent for other cases.

Petitioner relies principally upon the opinion in Palmigiano v. Travisono, 317 F. Supp. 776, 785 (D.R.I. 1970). The opinion there concerned a petition for a temporary injunction against a prison official pending a hearing of the matter by a three-member court. The circuit judge first noted that, "* * * the plaintiffs * * * are in the awaiting trial section * * * and must be presumed innocent * * *." After discussing precedents and the facts in that case the court held that unrestricted censorship of prisoner mail is a violation of the free speech guarantees of the First Amendment and the unreasonable search and seizure provision of the Fourth Amendment to the United States Constitution.

In the latter respect, we note some apparent conflict between that decision and our opinion in State v. Brotherton, 2 Or. App. 157, 465 P.2d 749, Sup.Ct. review denied (1970), wherein we said that prison authorities may subject inmates to searches unimpeded by Fourth Amendment barriers, although the facts of the two cases are sharply distinguishable.

The district court's opinion in Palmigiano is broader in its sweep than appears to be justified by contemporary opinions of the 4th and 2nd United States Circuit Courts of Appeal. In McDonough v. Director of Patuxent, 429 F.2d 1189 (4th Cir.1970), speaking specifically of a prisoner's right of access to the courts, the court said:

"* * * In Coleman [Coleman v. Peyton, 4 Cir.] (362 F.2d 905), we held that undelayed, uncensored, unlimited use of the mails was necessary to secure the right. * * *" 429 F.2d at 1192.

The court thus limited its holding to correspondence with courts. The censorship rules in the case at bar are consistent with the Coleman decision.

In Sostre v. McGinnis, 442 F.2d 178 (2d Cir.1971), the court, sitting in banc, disagreed on some of the points of *806 the wide-ranging decision, but all of the court agreed on the part of the court's opinion where, after an exhaustive review of precedents and authoritative writings, it said:

"* * * We need only add that when we say there may be cases which will present special circumstances that would justify deleting material from, withholding, or refusing to mail communications with courts, attorneys, and public officials, we necessarily rule that prison officials may open and read all outgoing and incoming correspondence to and from prisoners." Sostre v. McGinnis, 442 F.2d 178, 201 (1971).

The substance of all of petitioner's complaints in the case at bar are encompassed in the Sostre decision. The petition was properly dismissed on its merits.

Affirmed.