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URBANO v. MCCORKLE

November 17, 1971

Robert F. URBANO, No. 37744, Plaintiff,
v.
Lloyd W. McCORKLE, Commissioner of Institutions and Agencies of the State of New Jersey, et al., Defendants


Kitchen, District Judge.


The opinion of the court was delivered by: KITCHEN

PARTIAL SUMMARY JUDGMENT

 KITCHEN, District Judge:

 Robert F. Urbano, an inmate of the New Jersey State Prison System serving a life sentence for murder and currently confined in general population at Leesburg Prison Farm instituted this prisoner complaint action in the United States District Court on November 8, 1968. Urbano brings this action against eleven officers of the New Jersey Department of Institutions and Agencies, alleging violations of certain constitutional and civil rights. Jurisdiction is based upon diversity of citizenship and the Civil Rights Act. Since it is not precisely clear what issues plaintiff is attempting to raise by his amended complaint, filed December 21, 1968, the issues stated by plaintiff in his "Brief in Opposition to Defendants' Second Motion for Summary Judgment" [hereinafter cited as Brief ] shall be those considered, to the extent that they bear some relation to the facts alleged in the amended complaint.

 Defendants have moved for a partial or complete summary judgment. *fn1" A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, admissions on file and affidavits show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. F.R. Civ. P. 56(c).

 I. Plaintiff's first issue is:

 
"whether defendants' actions, either individually or severally, since 10/22/68, i.e. transfer to State Hospital and confinement in punitive segregation, were maliciously intended in order to deny, impair or discourage in futuro plaintiff's constitutional rights, such as access to the courts, and in order to punish plaintiff for past legal action on behalf of himself and other prisoners, such as a 1965 legislative investigation of defendants' prison administrations?"

 Brief at 1.

 Plaintiff does not dispute that defendants may transfer prisoners among state institutions for a proper purpose. Id. The gist of this issue is whether the transfers were designed to produce a "chilling effect" on plaintiff's constitutional right of access to the courts. *fn2"

 The facts viewed in the light most favorable to the responding party are these. On the morning of October 20, 1968, only a few inmates reported for breakfast at the prison mess hall. Apparently, a rumor had been circulated that the food served that day would be contaminated with human waste. Defendant prison officials interviewed various inmates to attempt to ascertain the cause of the boycott. Included among these prisoners was plaintiff Urbano. The next day, October 21, 1968, prison officials directed four prisoners, including plaintiff, to attend a meeting at which the causes of the boycott were discussed. Plaintiff "reiterated his prior complaints," among which were poor preparation and inadequate portions of food, lack of outdoor recreation in the winter, discrimination against blacks, homosexual prison officials and lack of a prisoner-administration liaison committee. Later that afternoon, defendants again met with certain inmates and announced that a number of their complaints would be rectified.

 Rumors, however, persisted the next day, October 22, 1968, that prison officials were not going to act on any of the prisoner complaints, and that in retaliation, all inmates were to take part in disturbances planned for October 28, 1968. Plaintiff and three other inmates were again directed to meet with prison officials, who informed plaintiff that he had been pinpointed by various inmates as the alleged leader of the planned prison disturbances. Plaintiff denied these allegations. Another meeting was held by prison officials, at which time they agreed that certain inmates were a threat to the safety and welfare of the institution and that these prisoners should be transferred to other institutions within the state prison system. That night, at approximately 11:00 P.M., plaintiff and 32 other prisoners were transferred from Trenton State Prison. Of these, approximately 19, including Urbano, were transferred to the Prison Hospital. The transfer was authorized by Commissioner McCorkle pursuant to N.J. Rev. Stat. 30:4-85, which states in part:

 
"Any inmate of any correctional institution * * * may be transferred to any other such correctional institution by order of the commissioner * * *."

 The transfer of a state prisoner from one state prison to another does not violate any of the prisoner's constitutional rights. United States ex rel. Stuart v. Yeager, 293 F. Supp. 1079 (D.N.J. 1968), aff'd, 419 F.2d 126 (3rd Cir.), cert. denied, 397 U.S. 1055, 90 S. Ct. 1400, 25 L. Ed. 2d 673 (1969). Plaintiff contends that this transfer was designed to prevent him from having access to the courts. Yet, plaintiff admits that he was represented by counsel at this time, and on October 23 at 3:00 P.M., approximately 16 hours after the transfer, he was allowed a visit with his attorney at which time they "exchanged papers." Affidavit of Robert F. Urbano, April 16, 1969 at P13 [hereinafter cited as Affidavit ]. This court finds that there is no merit to the allegation that prison officials intended to deny plaintiff access to the courts, when by his own admissions, he has been and still is represented by able counsel and was allowed contact with his attorney in a very reasonable time after the transfer.

 Urbano alleges that as of the date of filing this action, defendants had retained certain legal files belonging to plaintiff. These files were taken into custody on October 22, 1968, the date that plaintiff was transferred to the prison hospital. On November 11, 1968, plaintiff was transferred to the segregation unit at the prison farm in Rahway. Plaintiff admits, however, that on November 19, 1968, two files were returned to him, one being his file in this lawsuit. The next day, plaintiff was suddenly hospitalized but was allowed to keep his files until November 28, 1968, at which time they were taken from him. The confiscation was authorized by a prison hospital rule that forbids prisoners from using legal volumes, typewriters, etc. while in the hospital. Upon discharge from the hospital on January 20, 1969, Urbano was returned to Trenton State Prison and placed in segregation. Plaintiff claims that he had trouble in obtaining the return of his personal legal material while in "punitive" segregation. But it should be noted that plaintiff's legal material consisted of nearly 300 law reporters plus numerous other treatises and compilations of statutes. Plaintiff also admits that on workdays, he had access to his personal legal material, which was brought to him by guards, and on weekends, he had access to the prison law library. Not only did plaintiff have reasonable access to his legal materials, but also independent counsel had been representing him at the time of these transfers. The documents filed by plaintiff do not indicate that he was denied in any arbitrary or unreasonable manner the opportunity to consult his material or to confer with counsel.

 Finally, Urbano's record of litigation speaks for itself. In the past decade, he has filed suit in at least 17 actions. Some of these suits have reached the Third Circuit Court of Appeals and the United States Supreme Court. Indeed, the documents filed by plaintiff in the present suit are voluminous, indicating that the prison authorities have not changed their position with regard to allowing Urbano the uninhibited access to the courts that he has enjoyed since incarceration. In Wilson v. Prasse, 404 F.2d 1380, 1381 (3rd Cir. 1968), the court stated:

 
"Insofar as appellant complains of alleged denial of his right of access to the courts, the record shows that the many civil actions instituted by appellant in the federal and state courts supported the conclusion of the District Court that the contention that appellant had been denied access to the courts was frivolous."

 There can be no material dispute concerning plaintiff's record of litigation. In view of the fact that plaintiff is represented by able counsel and that plaintiff admits that he has had and still is allowed access to his legal material and the prison law library, it is the opinion of this court that plaintiff has not stated facts sufficient to support his conclusory statement that he was unreasonably denied access to the courts. See Negrich v. Hohn, 379 F.2d 213 (3rd Cir. 1967). Accordingly, defendant's motion for summary judgment on this issue is granted. Accord, Conway v. Oliver, 429 F.2d 1307 (9th Cir. 1970).

 II. Plaintiff's second issue is:

 
"whether defendants deliberately framed plaintiff by coercing him into a position of prominence in real or alleged prison disturbances and whether defendants exaggerated any real disturbance in order to 'excuse' denial of plaintiff's constitutional rights by incarcerating plaintiff in punitive segregation and in order to discourage plaintiff and other prisoners from filing future legal actions against the administration?"

 Brief at 1.

 In his amended complaint, Urbano stated that upon conferring with prison officials about the causes of the disturbance at Trenton Prison, he "advised unequivocally that he does not represent any other prisoner than himself." Amended complaint at P5. Urbano further states in his amended complaint that "plaintiff advised that he did not, could not, and would not represent anyone but himself," and "plaintiff emphasized that he represented no one but himself." Id. at P7. Yet, his complaint and supporting affidavits are replete with instances in which plaintiff advocates the cause of other inmates. For example, plaintiff complains of discrimination against Negroes, homosexual advances by certain member of the prison administration to the younger prisoners, id., and deprivation of other prisoners' constitutional rights, id. at P16. Plaintiff also admits that he had filed suit previously on behalf of himself and other prisoners to abolish a ten dollar "special savings account" per prisoner, used in lieu of discharge funds. Affidavit at P6. Plaintiff later complains about the treatment given three other inmates at the Trenton Prison Hospital, id. at P15, and the "improper" transfer of four inmates to Rahway, id. at P16. Urbano also admits that he has counselled other prisoners, see id. at P19 and that because of his "superior education," his "integrity" is respected by the average prisoner and many such inmates are referred to him for counselling. Amended complaint at P5. The above examples are merely illustrative of the numerous other occasions cited by plaintiff in which he represented the causes of other inmates, both to prison officials and to this court in the present action. By his own admissions, plaintiff is in a "position of prominence" in the hierarchy of inmates and this court fails to see any merit in the allegation that plaintiff Urbano was "framed" so that his rights could be "excused." The exact legal issue presented by plaintiff through counsel on this point is not clear. It is the opinion of this court, however, that plaintiff would not be entitled to relief under any state of facts that could be proved in support of his claim. See Scher v. Board of Education, 424 F.2d 741, 744 (3rd Cir. 1970). Accordingly, summary judgment of this "issue" is granted.

 III. In plaintiff's Brief at 2, it is set forth:

 
" The issue is whether plaintiff was entitled to minimal due process or administrative procedure in order to defend himself against any charges ...

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