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Sturm v. Clark

argued: September 28, 1987.

CHERYL J. STURM, APPELLANT
v.
CLARK, JJ., SUPT. FPC, ALLENWOOD; MATHIS, EARLANDO, CORR. OFFICER; GARZARELLI, LOUIS, SUP. CORR. OFFICER, OWCZARSKI, ANN, PERSONNEL OFFICER; CHALMERS, MR., CORR. OFFICER, MYHAND, LIEUTENANT, SUP. CORR. OFFICER, ISENBERG, MR. CORR. OFFICER, CAMPANA, MR., CORR, OFFICER, AND DOES, JOHN, UNKNOWN CORRECTIONAL STAFF, FPC, ALLENWOOD, BOTH INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES



Appeal from the United States District Court for the Middle District of Pennsylvania, Civil No. 86-0959.

Seitz, Greenberg, and Rosenn, Circuit Judges.

Author: Rosenn

Opinion OF THE COURT

ROSENN, Circuit Judge.

Unlike the more common appeal in which we consider the constitutionality of prison regulations designed to control the activities if inmates, the present inquiry requires us to review directives intended to restrain the conduct of an attorney practicing in a federal correctional institution. From November 1985 to June 1986, the appellee-defendant, Allenwood Federal Prison Camp (Allenwood or Camp). instituted a series of directives applicable only to the appellant-plaintiff, Cheryl J. Sturm, that effectively modified the terms and conditions of her access to the Camp.

Sturm thereafter filed a complaint in the United States District Court for the Middle District of Pennsylvania, alleging that the directives violated her federal constitutional rights, and her right to be free from undue interference with contract under Pennsylvania law. The district court dismissed plaintiff's complaint pursuant to Fed. R. Civ. P. 12(b)(6). We affirm in part and reverse in part.

I.

Sturm is a duly admitted attorney whose offices are in Wayne, Pennsylvania, and whose practice consist in large part of representing inmates at federal prisons on matters related to sentencing, resentencing, and parole. Plaintiff's complaint alleges a series of limitations imposed on her practice at Allenwood, a minimum security facility located in central Pennsylvania. On November 30, 1985, plaintiff visited the Camp to conduct a client interview. When Sturm began to speak to the wife of another client, officer Chalmers informed her that she could speak only to those inmates for whom she had a visitation permit.

Upon plaintiff's arrival at Allenwwod the next day, officer Campana searched her briefcase and read confidential attorney-client correspondence. Campana additionally compelled Sturm to conduct her interviews under visual and audio surveillance of prison officers, and again precluded her from speaking to visitors and inmates for whom she did not have a visiting permit.*fn1 When Sturm objected, officer Isenberg replied that Allenwood would not tolerate "business solicitation" during its visiting hours. On Father's Day, June 15, 1986, while Sturm was conferring with a client, Lieutenant Garzarelli, also a prison officer, terminated the conference by informing the inmate that he could have his legal visit or his family visit but no both. On June 16, 1986, Superintendent Clark had the plaintiff presented with a letter giving notice that as a result of her "disruptive and unprofessional behavior" on June 15, 1986, while Sturm was conferring with a client, Lieutenant Garzarelli, also a prison officer, terminated the conference by informing the inmate that he could have his legal visit or his family visit but not both. On June 16, 1986, Superintendent Clark had the plaintiff presented with a letter giving notice that as a result of her "disruptive and unprofessional behavior" on June 15, her subsequent visits could occur only upon twenty-four hours notice, and between the hours of 8:00 A.M. and 3:30 P.M., Monday through Friday. Allenwood's restrictions on plaintiff's speech and access applied to no other attorney.*fn2

On July 17, 1986, Sturm instituted a Vivens action against the defendants in their official and individual capacities seeking damages and an injunction for deprivation of her constitutional rights.*fn3 The district court granted defendants' motion to dismiss the complaint by memorandum and order dated February 20, 1987, holding that Sturm had failed to state a cause of action under the first, fifth, ninth, and fourteenth amendments of the constitution and under Pennsylvania tort law. At oral argument before this court, plaintiff conceded that the visiting hour directives contained in the June 16 correspondence had been lifted.*fn4 Therefore, Sturm's request for an injunction with respect to those directives is moot. Her claim for injunctive relief from speech restrictions is, however, still before us, as are her claims for compensatory and punitive damages.

II.

In reviewing a motion to dismiss a complaint for failure to state a claim under Fed. R. Civ. P. 12(b)(6), all allegations in the complaint and all reasonable inferences that can be drawn therefrom must be accepted as true and viewed in the light most favorable to the non-moving party. Wisniewski v. Johns Manville Corp., 759 F.2d 271, 273 (3d Cir. 1980).

A.

We first determine whether plaintiff's claim that the directives,*fn5 embodied in the June 16 correspondence adversely affected her reputation without affording her due process of law within the meaning of the fifth amendment. In Wisconsin v. Constantineau, 400 U.S. 433, 27 L. Ed. 2d 515, 91 S. Ct. 507 (1970), the Supreme Court examined the constitutionality of a Wisconsin statute that permitted the City of Hartford to post in all retail liquor stores, the names of individuals who by excessive drinking, endangered themselves, their families, or their communities. Id. at 434. The statute prohibited the sale of alcoholic beverages to those whose names were posted. In holding that the statute violated the fourteenth amendment's due process clause, the Court asserted that "where a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity ...


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