Carriger, et al v. Patrissi, et al
Filing
112
OPINION AND ORDER denying 104 Motion to Enforce Judgment, Motion for Temporary Injunction and Motion for Permanent Injunction. Signed by Senior Judge J. Garvan Murtha on 4/14/2011. (kak) Text clarified on 4/15/2011 (jlh).
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
Christopher Halpin, Esq.,
Administrator for the
Estate of David Carriger,
Gary Parizo,
Plaintiffs,
v.
Joseph J. Patrissi, John
Gorczyk, Heinz Arenz,
Charles Hatin, Kathy Lanman,
Defendants.
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Case No. 1:89-cv-359
consolidated with
Mitchell King,
Plaintiff,
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v.
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Heinz Arenz, State of Vermont :
Department of Corrections,
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Defendants.
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______________________________
Johnny Lopez,
Plaintiff,
v.
John Gorczyk, Ray Pillete,
Defendants.
______________________________
Richard Stempel,
Plaintiff,
v.
Howard B. Dean, III, John
G. Gorczyk, Raymond
Pillette, Heinz Arenz,
Karen St. Lawrence,
Defendants.
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Case No. 1:92-cv-45
Case No.
1:92-cv-75
Case No.
1:92-cv-295
OPINION AND ORDER
(Doc. 104)
Vermont inmates Kirk Wool, John Barbera, and James Ingerson
(“Movants”) have moved the Court to enforce a stipulation entered
into by the Vermont Department of Corrections (“DOC”).
The
stipulation arose out of litigation that was brought by Vermont
inmates beginning in 1989, and pertains to the legal resources
available to DOC inmates.
Movants now contend DOC is not
adhering to the terms of the stipulation and ask the Court to
order compliance.
Defendants have opposed the motion, arguing
Movants lack standing, and that DOC is performing consistently
with the stipulation.
For the reasons set forth below, the
motion to enforce (Doc. 104) is DENIED.
I.
Standing
The motion before the Court claims the stipulation was the
result of a class action lawsuit, and Movants and all other
“similarly situated” inmates are members of the class.
In fact,
this case was never certified as a class action, but is instead a
consolidated action, consisting of four cases filed between 1989
and 1992.
Movants were not parties to any of the cases.
Defendants therefore ask the Court to deny the motion since
Movants have no standing to seek enforcement.
Although they do not cite the Rule, Movants’ motion appears
to be authorized by Fed. R. Civ. P. 71.
Rule 71 provides that
“[w]hen an order grants relief for a nonparty or may be enforced
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against a nonparty, the procedure for enforcing the order is the
same as for a party.”
Fed. R. Civ. P. 71.
As the Second Circuit
has explained, “[i]t seems clear that Rule 71 was intended to
assure that process be made available to enforce court orders in
favor of and against persons who are properly affected by them,
even if they are not parties to the action.”
558 F.2d 1133, 1137 (2d Cir. 1977).
Lasky v. Quinlan,
The Lasky decision includes
a statement that “Rule 71 may support a separate action by a
present inmate to enforce the order obtained by [previouslyincarcerated] plaintiffs . . . .”
Id.
The Second Circuit has construed Lasky as “effectively
[giving] persons who were not original parties a green light to
pursue enforcement of the consent decree at issue.”
Berger v.
Heckler, 771 F.2d 1556, 1566 (2d Cir. 1985); see also Lavapies v.
Bowen, 687 F. Supp. 1193, 1207 (S.D. Ohio 1988) (“Under Rule 71,
a non-party who establishes standing to proceed as a third-party
beneficiary of a settlement agreement or consent decree may
pursue enforcement of that agreement or decree.”) (citations
omitted).
The Berger court also made clear an unnamed
beneficiary may intervene in the existing case under Rule 71, and
need not bring a separate action.
771 F.2d at 1566 (“judicial
economy virtually requires that appropriate persons be permitted
to intervene under Rule 71”).
The Court therefore finds Movants
have standing to bring their motion to enforce.
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II.
Compliance With Directive 385.01
The original parties’ stipulation resulted in the
development of DOC Directive 385.01.
The Directive is entitled
“Inmate Access to Courts,” and its stated purpose is “to enhance
access to the courts by offenders in the physical custody of the
Vermont Department of Corrections and to reduce litigation
pertaining to access to courts.”
(Doc. 109-1 at 4.)
The motion
currently before the Court alleges DOC has failed to adhere to
Directive 385.01.
In response, Defendants submit DOC “continues
to provide access to the courts to the inmates in the custody of
the Commissioner as required by this directive.”
(Doc. 109 at
2.)
Movants allege that in early 2010, DOC removed all computers
from its prison law libraries.
This action was allegedly taken
in response to an inmate’s discovery of certain content on one of
the computers.
Movants claim the computer in question, like many
other prison computers, had been purchased used, and the hard
drive had not been properly “scrubbed.”
Without computers,
inmates reportedly cannot access Westlaw or other on-line legal
resources.
As a partial substitute for on-site legal resources, DOC
allegedly implemented a request system, whereby inmates could
mail research requests to DOC Legal Education Director Carol
Callea, Esq.
Movants contend that requiring a single person to
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respond to requests from approximately 2,000 inmates is
inadequate, and cite case law critical of similar programs.
Movants also criticize the recent implementation of a “Kiosk read
only system” in prison law libraries.
The Kiosk system, they
claim, has been found by DOC personnel to be “not user friendly.”
Directive 385.01 does not specify the legal materials
available to inmates.
The Directive states its purpose, defines
terms, and outlines available services by Inmate Law Librarians
and Inmate Legal Assistants.
services are unavailable.
Movants do not contend that these
The Directive also requires prison
superintendents to provide access to legal materials and
assistance, writing supplies, policy manuals, and photocopying
services.
There is no claim these services are not being
provided.
The final requirement of the Directive is for development of
an Inmate Litigation Manual by the Legal Education Director.
The
manual is to include a summary of the most common Vermont legal
issues facing inmates; standard state and federal court forms;
commonly used DOC regulations and policies; cites to and synopses
of “key decisions” involving post-convictions remedies and
conditions of confinement; and copies of Vermont federal court
habeas and civil rights rulings since 1990.
Included in DOC’s response is an affidavit from Attorney
Callea which states she is “continu[ing] to provide and update” a
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host of materials consistent with Directive 385.01, including
responses to specific inmate requests; inmate legal files that
were previously stored on prison computers; legal education and
court opinion manuals; and court forms relevant to Vermont
inmates.
(Doc. 109-2.)
Attorney Callea also confirms a computer Kiosk system was
installed in January 2011.
The Kiosks provide on-line access to,
among other things, the Federal Reporter and Federal Supplement,
Vermont cases, state and federal statutes, and U.S. Supreme Court
opinions.
(Doc. 109-2 at 18.)
Movants’ contention that the
Kiosks are not user-friendly fails to establish DOC is not in
compliance with Directive 385.01.
The motion to enforce (Doc. 104) is DENIED.
SO ORDERED.
Dated at Brattleboro, in the District of Vermont, this 14th
day of April, 2011.
/s/ J. Garvan Murtha
Honorable J. Garvan Murtha
Senior United States District Judge
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