Carriger, et al v. Patrissi, et al

Filing 121

OPINION AND ORDER denying 113 Motion to Enforce Stipulation; denying 120 Motion to Amend to Add Movant. Signed by District Judge J. Garvan Murtha on 9/18/2012. (wjf)

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,
v.
Heinz Arenz, State of
Vermont Department of
Corrections,
Defendants.
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
(Docs. 113 and 120)
Vermont inmate Isaac Faham, proceeding pro se, has
moved the Court to enforce a stipulation entered into by the
Vermont Department of Corrections (“DOC”) in 1997.
113.)

(Doc.

The stipulation arose out of litigation brought by a

group of Vermont inmates regarding the legal resources
available to them in prison.

Faham contends that the DOC is

not adhering to the terms of the stipulation, and asks the
Court to order compliance.

Also before the Court is an

addendum to Faham’s motion and a motion to add inmate Kirk
Wool as a movant.

(Doc. 120.)

For the reasons set forth

below, the motions are DENIED.
I.

Case Background
This case originated in 1989, and was subsequently

consolidated with three other civil cases, all of which
pertained to inmate access to the courts.

In 1997, the

parties entered into a stipulation that was approved by the
Court and resulted in DOC Directive 385.01.

Directive

385.01 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

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courts.”

(Doc. 109-1 at 4.) 1

Related provisions set forth

the scope of inmate legal services, require the provision of
supplies and photocopying, and outline the contents of an
inmate litigation manual.

Id. at 6-8.

On September 20, 2010, a group of Vermont inmates filed
a motion to enforce the stipulation, claiming that the DOC
had failed to adhere to Directive 385.01.

(Doc. 104.)

Specifically, the movants alleged that in early 2010, the
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.

The

movants claimed the computer in question, like many other
prison computers, had been purchased used, and that the hard
drive had not been properly “scrubbed.”

Without computers,

inmates reportedly could not access Westlaw or other on-line
legal resources.
As a partial substitute for on-site legal resources,
the DOC allegedly implemented a request system, whereby

1

Although the filed copy of Directive 385.01 (Doc. 1091) appears to be incomplete, the complete text may be viewed
at:
http://www.doc.state.vt.us/about/policies/rpd/correcti
onal-services-301-550/385-389-programs-education-servi
ces/385.01%20Inmate%20Access%20To%20Courts%20Template.
pdf
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inmates could mail research requests to DOC Legal Education
Director Carol Callea, Esq.

The movants argued that the

request system was inadequate.

They also criticized the

more recent implementation of a “Kiosk read only system” in
prison law libraries, claiming that the system was “not user
friendly.”

Id. at 7.

The DOC responded to the motion with an affidavit from
Attorney Callea which stated she was “continu[ing] to
provide and update” a 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.
18.)

(Doc. 109-2 at

Attorney Callea also confirmed that a computer Kiosk

system was installed in January 2011 to 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.

Id.

In denying the motion to enforce, the Court noted that
The Directive states its purpose, defines terms,
and outlines available services by Inmate Law
Librarians and Inmate Legal Assistants. Movants
do not contend that these services are
unavailable. The Directive also requires
superintendents to provide access to legal
materials and assistance, writing supplies, policy
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manuals, and photocopying services. There is no
claim that these services are not being provided.
(Doc. 112 at 5.)

The Court also found that “movants’

contention that the Kiosks are not user-friendly fails to
establish DOC is not in compliance with Directive 385.01.”
Id. at 6.
II.

Faham’s Motion to Enforce
Faham filed his motion to enforce on January 18, 2012.

The motion first recounts the removal of prison computers by
the DOC in early 2010, and contends that materials stored on
those computers have not yet been returned to inmates.
Faham also alleges that the DOC “used the situation to
hi[]jack policy 385.01 by removing all the computers and the
. . . required resources contained on them.”
2.)

(Doc. 113 at

Faham alleges generally that inmates are not provided

adequate time in the law library, and that requesting legal
materials in writing is inefficient and inadequate.
As Defendants properly note in their response, these
claims are essentially the same as those presented in the
previously filed motion to enforce.

As it did before, the

Court finds that in light of the broad provisions of
Directive 385.01, as well as Attorney Callea’s affidavit,
the motion fails to demonstrate a specific breach of the

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terms of the 1997 stipulation.

The motion to enforce (Doc.

113) is therefore DENIED.
III.

Addendum and Motion to Amend
The most recent filing in the case is an “addendum” to

Faham’s motion to enforce, together with a motion to add
inmate Kirk Wool as a movant.

Wool was a movant in the

previous motion to enforce.
This latest filing details problems Wool has
experienced while trying to use the Kiosk computer system,
including sudden “shut offs,” inconsistent search results,
and an inability to locate the cases cited in Defendants’
opposition memorandum.

(Doc. 120 at 1-2.)

The addendum

also alleges that books in the prison law libraries are out
of date, library legal aides are inadequately trained, and
inmate time in the library is generally limited to five to
ten hours per week.

DOC Directives require inmate legal

assistants to successfully complete a legal assistant
education program, while Directive 385.01 Section 4.3.2.1.5
requires inmates be provided library access of “no less than
12 hours of scheduled time each week, subject to security
and disciplinary policies, directives and facility
procedures previously established.”

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The motion to amend and addendum are not accompanied by
a certificate of service as required by Fed. R. Civ. P.
5(d)(1).

Consequently, the DOC has not responded to Faham’s

latest claims.

The motion to amend and addendum is

therefore DENIED without prejudice to re-filing with a valid
certificate of service.

See, e.g., Native Am. Council of

Tribes v. Weber, 2010 WL 1999352, at *2 (D.S.D. May 18,
2010) (denying motion without prejudice for failure to file
certificate of service); Feinerman v. Bernardi, 558 F. Supp.
2d 36, 42 n.6 (D.D.C. 2008) (noting previous denial of
motion “because it was not accompanied by a certificate or
service”).
III.

Conclusion
For the reasons set forth above, the motion to enforce

(Doc. 113) and motion to amend (Doc. 120) are DENIED.
SO ORDERED.
Dated at Brattleboro, in the District of Vermont, this
18 th day of September, 2012.
/s/ J. Garvan Murtha
Honorable J. Garvan Murtha
United States District Judge

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