Procunier v. Martinez Jurisdictional Statement

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s t a t e s

< )c t o b e r  T e r m . 1972

No.

Raymond T\. Procfxter. Pirpetor. California 
Department of Corrections. <*t a]..

A //<• '/" •/•'.
vs.

R o b er t  M a r m x e z . et a l..

On Appeal from the Ur.:.:: : States District Court 
for i'ne Northern District of California

JURISDICTIONAL statem ent

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Division.

Doris TT. Mater.
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JiuBERT R. (tP.AXIT ( [.
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Thomas A Draby.
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Subject Index

Page
Opinion b e lo w .................................................................................... 2
Jurisdiction ........................................................................................ 2
Questions presented .........................................................................  2
State provisions involved ...............................................................  3
Statement of the case .....................................................................  4
The questions presented are substantial ....................................... 4
Argument .......................................................................................... 5

I
The District Court should have abstained from deciding 

the constitutional issues .......................................................  5

II
The District Court applied improper standards in deter­

mining the propriety and permissible scope of federal 
intervention ...........................................................................  8

III
The constitution docs not compel the states to accord 

non-attorneys the right to confer confidentially with 
prison inmates .....................................................................  H



Table of Authorities Cited

Cases Pages
Baker v. Beto, 349 F.Supp. 1263 (S.D. Texas 1972) ..........  10

Ex parte Hull, 312 U.S. 546 (1941) ........................................  12

Guajardo v. McAdams, 349 F.Supp. 211 (S.D. Tex. 1972) 9

Harman v. Forsscnius, 380 U.S. 528 (1965) .........................  7
Hatfield v. Bailleaux, 290 F.2d 632 (9tli Cir. 1961) ......... 14

In re Harrell, 2 Cal.3d 675, 87 Cal. Rptr. 504 (1970) ____ 6
In re Jordan, 7 Cal.3d 930, 103 Cal. Rptr. 849 (1972) ____ 6

Johnson v. Avery, 393 U.S. 483 (1969) ................................  9,11

Lake Carriers’ Assn. v. MacMullan, 406 U.S. 498 (1972) . .  7
Lamar v. Kern, 340 F.Supp. 544 (W.D. IVis. 1972) ..........  9
Lanza v. New York, 370 U.S. 139 (1962) ..............................  8
Lee v. Tali ash, 352 F.2d 970 (8th Cir. 1965) ......................  9

Price v. Johnston, 334 U.S. 266 (1948) ..................................  8

Scale v. Manson, 326 F.Supp. 1375 (D. Conn. 1971) ..........  10
Smith v. Sclincckloth, 414 F.2d 6S0 (9th Cir, 1969) ..........  9
Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971), cert. den.

404 U.S. 1049, 405 U.S. 978 ..................................................  9

United States ex rel. Gardner v. Madden, 352 F.2d 792 
(9th Cir. 1965) ........................................................................  12

Younger v. Gilmore, 404 U.S. 15 (1971) ................................  2

Zemel v. Rusk, 381 U.S. 1 (1965) ..........................................  2
Zwicklcr v. Koota, 389 U.S. 241 (1967) ..................................  7

Codes
Penal Code:

Section 2600 ..........................................................................  5, 6
Section 5058 ..........................................................................  8

|

T able of A uthorities Cited 'iii

Constitutions
United States Constitution: Pages

First Am endment................................................................... 8,10
Fourteenth Amendment ....................................................... 11

Rules
Federal Rules of Civil Procedure:

Rule 12(b) ............................................................................. 4
Rule 56 ................................................................................... 4

Statutes
28 U.S.C.:

Section 1253 .......................................................................... 2
Section 1915 .......................................................................... 12
Section 2281 .......................................................................... 4

42 U.S.C., Section 1983 ...............................................................  2

Other Authorities
Rules of the Director of Corrections:

Section 1201 .........................................................................  3
Section 1205(e) ...................................................................  3
Section 1205(f) ...................................................................  3
Section 2402(8) ................................................................... 3

Director’s Mail and Visiting Manual, Rule MV-IV-02 ........  3



Jtt tip i ’ttprrutr Gkmrt
OF THE

llttttefo S t a t e s

O c t o b e r  T e r m , 1972

N o.

R a y m o n d  K. P r o c e n t e r , Director, California 
Department o f Corrections, et al., 

Appellants,

v s .

R o b e r t  M a r t i n e z , e t a l.,

Appellees.

On Appeal from the United States District Court 
for the Northern District of California

JURISDICTIONAL STATEMENT

This appeal is taken from the judgment of a three- 
judge panel of the United States District Court for 
the Northern District of California, entered on Feb­
ruary 2, 1973, enjoining the enforcement of certain 
rules promulgated by appellant Procunier, Director 
of the California Department of Corrections; this 
statement is submitted to show that this Court has 
jurisdiction of the appeal and that substantial ques­
tions are presented.



2

OPINION BELOW

The opinion of the three-judge panel o f the United 
States District Court for the Northern District of 
California has not yet been published in the official 
reports. A  copy o f the opinion is attached as Ex­
hibit A.

JURISDICTION

This suit was brought as a class action on behalf 
o f all inmates of penal institutions under the jurisdic­
tion o f the California Department of Corrections and 
its Director, defendant R. K. Procunicr, under 42 
U.S.C. section 1983, to enjoin the operation of certain 
rules promulgated by defendant Procimier, and for 
declaratory relief. The judgment of a three-judge 
panel of the district court was entered on February 
2, 1973, and notice of appeal was filed in that court 
on March 1, 1973. The jurisdiction of the Supreme 
Court to review this decision by direct appeal is con­
ferred by Title 28, United States Code, section 1253. 
The following decisions sustain the jurisdiction of the 
Supreme Couri to review the judgment on direct ap­
peal in this case: Younger v. Gilmore, 404 U.S. 15 
(1971); Zemel v. Rusk, 381 U.S. 1, 5-7 (1965).

QUESTIONS PRESENTED

1. Whether the district couri erred in refusing to 
abstain from  determining the constitutional validity 
o f administrative rules promulgated by appellant, the

3

Director of the California Department of Corrections, 
when there existed a state statute, as yet iminter- 
preted, dealing with the subject matter covered by the 
rules and a means for state prisoners to judicially 
challenge the rules in question?

2. Whether the district court properly determined 
that institutional regulations dealing with general in­
mate correspondence, not including correspondence to 
and from attorneys, courts or public officials, may be 
subjected only to such regulations as are found by a 
federal court to be either “ compelling” or “ reason­
able and necessary” to the advancement of some jus­
tifiable purpose of imprisonment?

3. Whether the constitution compels the State of 
California to accord to an unspecified class of non- 
attomeys acting on behalf o f attorneys the full range 
of privileges accorded licensed attorneys in their meet­
ings with their inmate-clients?

STATE PROVISIONS INVOLVED

The district court’s opinion enjoined enforcement of 
sections 1201, 1205(e) and ( f ) ,  and 2402(8) of the 
rules of the Director o f Corrections, which are re­
printed in footnotes 1-3 of the district court’s opinion 
and the accompanying text. It also enjoined enforce­
ment of Rule MV-IV-02 of the Director’s Mail and 
Visiting Manual. This rule is reprinted at page xi of 
the opinion o f the district court (see Exhibit A ).



4

STATEMENT OF THE CASE

Appellees, on behalf of themselves and all other in­
mates at California penal institutions under the jur­
isdiction o f the California Department of Corrections, 
filed an amended complaint in the United States Dis­
trict Court for the Northern District of California on 
July 6, 1972, challenging the constitutionality of cer­
tain regulations promulgated by Director Procunier. 
The amended complaint requested the convening of a 
three-judge court under the provisions of Title 28, 
United States Code, section 2281. This request was 
granted by Chief Judge Chambers of the Court of 
Appeals for the Ninth Circuit. Appellants then moved 
to dismiss the complaint under Rule 12(b) of the 
Federal Rules o f Civil Procedure. Appellees moved 
for a summary judgment under Rule 56 o f the Fed­
eral Rules of Civil Procedure. The motions were 
heard jointly and on February 2, 1973, the court is­
sued an order denying appellants’ motion to dismiss 
the complaint and partially granting appellees’ mo­
tion for a summary judgment. This order enjoined 
enforcement o f the above-mentioned regulations and 
directed appellants to formulate new regulations in 
their stead, subject to approval by the court, in ac­
cordance with the general guidance furnished in the 
court’s opinion.

THE QUESTIONS PRESENTED ARE SUBSTANTIAL

The questions presented herein are of importance 
to the administration o f both the state prisons and the 
federal prison system. These questions concern the

5

instances in which a federal court may properly in­
tervene in matters o f state prison management and 
the proper application of the doctrine o f abstention. 
Finally, there is the question of whether the Consti­
tution compels the states to accord to persons other 
than attorneys the general right to confer confiden­
tially with inmates in the same manner as attorneys, 
or whether the states retain the right to limit access 
to prisoners by private individuals.

ARGUMENT

I
THE DISTRICT COURT SHOULD HAVE ABSTAINED FROM 

DECIDING THE CONSTITUTIONAL ISSUES.

’Idle district court summarily rejected defendants’ 
contention that the court should abstain from deciding 
the issues presented until the state courts had had an 
opportunity to pass on them. The district court ap­
parently presumed that abstention would be proper 
only if  the regulations themselves were unclear and 
could be authoritatively settled by a state court de­
cision.

At all times here pertinent, there existed in Cali­
fornia a statute dealing in some detail with the ef­
fect of a sentence of imprisonment in a state prison 
on the civil rights of a prisoner. This statute, Cali­
fornia Penal Code section 2600, provides, inter alia: 

“ This section shall be construed so as not to de­
prive [an inmate] of the following civil rights, 
in accordance with the laws of this state:



G

. . . (4) To purchase, receive, and read any and 
all newspapers, periodicals, and books accepted 
for distribution by the United States Post Office. 
Pursuant to the provisions of this section, prison 
authorities shall have the authority to exclude ob­
scene publications or writings, and mail contain­
ing information concerning where, how, or from 
whom such matter may be obtained; and any mat­
ter of a character tending to incite murder, arson, 
riot, violent racism, or any other form of violence; 
and any matter concerning gambling or a lottery.”

California has, at all times here pertinent, allowed 
prisoners access to the courts by means of a petition 
for a writ of habeas corpus in order to assert rights 
relating to the conditions o f confinement, in addition 
to challenging the fact o f confinement. See In re 
Ilarrdl, 2 Cal.3d 675, 87 Cal. Rptr. 504 (1970). Thus, 
in In re Jordan, 7 Cal.3d 930, 103 Cal. Rptr. 849 
(1972), the state supreme court entertained, and 
granted, habeas corpus petitions by prisoners who 
challenged the Director’s rules with respect to mail 
between inmates and their attorneys on the ground 
that they deprived petitioners of rights guaranteed 
them by California Penal Code section 2600.'

The net result o f the district court’s refusal to ab­
stain in the instant case is that, although the Califor­
nia legislature has enacted a statute specifically 
dealing with the rights and obligations o f prison 
authorities and inmates with respect to correspondence

lTliose same vales were challenged on constitutional grounds in 
the complaint filed in the instant ease. However, the district court 
dismissed this challenge as moot because the intervening decision in 
In re Jordan granted appellees the relief they requested.

7

to and from an inmate, and although the legislature 
has created a means whereby a prisoner may seek 
interpretation or invalidation of the rules of the 
Director o f Corrections seeking to interpret the stat­
ute, these processes will apparently never be used 
since a federal court has allowed petitioners herein 
to bypass these state mechanisms entirely, has adju­
dicated their constitutional claims regarding the rules 
without reference to the state statute, and has re­
tained jurisdiction over the matter to compel appel­
lants to formulate new rules solely in accordance with 
the court’s opinion.

Under such circumstances, we submit that absten­
tion by the federal court was required. Abstention 
is permissible only in narrowly limited special cir­
cumstances which justify the delay and expense which 
application of the doctrine may entail. Zwiclder v. 
Koota, 389 U.S. 241, 248 (1967). However, “ (t)he 
paradigm case for abstention arises when the chal­
lenged state statute is susceptible to ‘a construction by 
the state courts that would avoid or modify the [fed­
eral] constitutional question.’ ”  Lake, Carriers’ Assn, 
v. MacMullan, 406 U.S. 498, 510-511 (1972).

“ Where resolution of the federal constitutional 
question is dependent upon, or may be materially 
altered by, the determination of an uncertain 
issue o f state law, abstention may be proper in 
order to avoid unnecessary friction in federal- 
state relations, interference with important state 
functions . . . and premature constitutional ad­
judication.”  Harman v. Forssenius, 380 U.S. 528, 
534 (1965), cited with approval in Lake Carriers’ 
Assn. v. MacMidlan, supra at 511,



8

Here the state enacted a comprehensive statute 
dealing with the subject o f correspondence to and 
from inmates of state penal institutions. Nonetheless, 
that statute was bypassed and the federal court in­
terpreted rules promulgated by the Director of the 
Department of Corrections, within the scope of his 
authority (see Calif. Pen. Code §5058), without ref­
erence to the fact that there existed a state statute, 
as yet uninterpreted, which sought to regulate this 
field. For these reasons, we submit that the instant 
case is such a paradigm for application o f the doc­
trine of abstention as was envisioned by the decisions 
of this Court discussed above, and that the district 
court’s failure to apply that doctrine herein resulted 
in a substantial breach of the salutary purposes of 
that doctrine.

IT
THE DISTRICT COURT APPLIED IMPROPER STANDARDS IN 

DETERMINING THE PROPRIETY AND PERMISSIBLE SCOPE 
OF FEDERAL INTERVENTION.

The district court’s opinion notes that there is con­
flict among the cases regarding the standard which a 
federal court must apply in determining whether a state 
statute or state prison regulation violates the First 
Amendment rights of prisoners (Op. Exhibit A, pp. 
vii-viii). The court’s opinion disregards this Court’s 
admonitions in Lanza v. New York, 870 U.S. 139, 143 
(1902), and Price v. Johnston, 334 U.S. 200, 285 
(1948), that lawful incarceration brings about the 
withdrawal or limitation of many of the rights and

9

privileges accorded a free man and that such limi­
tations may be justified by the considerations under­
lying our penal system. It also disregards the many 
cases holding that prison authorities have wide dis­
cretion, in matters of internal prison administration 
and that reasonable action within the scope of this 
discretion does not violate a prisoner’s constitutional 
rights, see e.g., Smith v. Schnecklotli, 414 F.2d 680 
(9th Cir. 1969), and this Court’s admonition in John­
son v. Avery, 393 U.S. 483, 486 (1969), that federal 
intervention is authorized only when paramount fed­
eral constitutional rights supervene.

There is also some conflict as to whether any regu­
lation of inmate mail is proper. The vast majority of 
the reported cases hold that restrictions on the extent 
and character o f prisoners’ correspondence and exami­
nation and censorship thereof are inherent incidents 
in the conduct o f penal institutions. See e.g., Lee v. 
Tahash, 352 F.2d 970, 971 (8th Cir. 1965); Sostre v. 
McGinnis, 442 F.2d 178, 199-201 (2d Cir. 1971), cert, 
denied, 404 U.S. 1049, and 405 U.S. 978. However, 
several recent cases have held that a state has no 
justifiable interest in censoring outgoing personal mail 
o f inmates. Guajardo v. McAdams, 349 F.Supp. 211 
(S.D. Tex. 1972); Lamar v. Kern, 340 F.Supp. 544 
(W .D. Wis. 1972).

Thus, it appears that the lower federal courts at 
present hold widely diverging views regarding the 
scope and propriety o f federal intervention in matters 
of internal prison regulation and, in particular, in the 
area of the limitations which a state may validly place



10

on non-logal mail to and from inmates. The district 
court’s opinion herein notes two standards which the 
lower federal courts have applied in determining the 
propriety of state enactments. Other cases have em­
ployed various other balancing tests to determine 
whether such regulations are justified. See e.g., Seale 
v. Manson, 326 F.Supp. 1375, 1383 (D. Conn. 1971); 
Baker v. Beto, 349 F.Supp. 1263 (S.D. Texas 1972). 
The net effect o f these many cases and differing 
standards is, we submit, total confusion as to the 
scope of a prisoner’s First Amendment rights with 
respect to “ non-legal” correspondence, conflict as to 
the extent to which prison officials may regulate the 
inmates’ correspondence, and conflict as to the cir­
cumstances when federal courts may intervene in 
such matters and the standards they should apply in 
measuring the validity of such prison regulations. 
Thus, the questions herein presented concerning these 
matters are substantial and of wide importance to the 
administration of both the federal and state prisons 
and the maintenance of harmonious federal-state re­
lations.

11

I I I
THE CONSTITUTION DOES NOT COMPEL THE STATES TO AC­

CORD NON-ATTORNEYS TIIE RIGHT TO CONFER CONFI­
DENTIALLY WITH PRISON INMATES.

The district court also enjoined enforcement of a 
prison rule limiting investigators for an inmate’s at­
torney of record to no more than two persons, who 
must themselves be either state licensed investigators 
or members of the bar and must be designated in 
writing as investigators by the attorney of record. 
Appellants were ordered to replace this rule with one 
which was “ less restrictive” and were advised by the 
court that “ bona fide law students under the super­
vision of attorneys, or full time lay employees of at­
torneys” would constitute a reasonable group of 
potential i nvestigators.

The basis for this decision appears to be that the 
rule in question violates appellees’ right of reason­
able access to the courts, which is guaranteed as 
against state action by the Fourteenth Amendment. 
It is clear that the courts, state or federal, have no 
general obligation to appoint counsel for prisoners 
who indicate, without more, that they wish to seek 
post-conviction relief. Johnson v. Avery, 393 II.S. 
483, 488 (1969). The practice in most federal courts 
is to appoint counsel in post-conviction proceedings 
only after a petition for post-conviction relief passes 
initial judicial evaluation and the court determines 
that an evidentiary hearing is warranted. Id. at 487. 
Similarly, no general right exists for the appointment 
of counsel to represent an indigent in a civil case.



12

28 U.S.C. §1915; United States ex rel. Gardner v. 
Madden, 352 F.2d 792 (9th Cir. 1965). However, it 
has long been recognized that prisoners, as well as 
other persons, have a right o f reasonable access to the 
courts. Ex parte Mull, 312 U.S. 546, 549 (1941). The 
question here presented calls for this Court to define 
more precisely the concept “ reasonable access to the 
courts.”

The rule in question does not deny inmates access 
to their attorneys. Nor does it impair the confidential 
relationship between an attorney and bis client. Nor 
does it attempt to deny attorneys the opportunity to 
use the services of non-attorneys to aid them in their 
work. Nonetheless, the district court concluded that 
the rule, although designed to prevent the abuses 
found to exist when confidential communication be­
tween inmates and non-attorneys was permitted, was 
unconstitutional since the court found that a “ less 
restrictive” rule could be drawn which would none­
theless satisfy the prisons’ security needs.

Whatever may be the merits generally o f the use 
of law students and non-student legal assistants or 
“ paraprofessionals”  for the performance of some 
functions previously performed by attorneys only, we 
submit that the Constitution does not compel the Cal­
ifornia state prisons to recognize such persons as at­
torneys for purposes of allowing them confidential 
communication with inmates. The classes of attorneys 
and licensed private investigators, which were recog­
nized by the previous rule, are easily defined and 
identifiable classes. Both are subject to detailed li­

13

censing and regulatory statutes o f the State of Cali­
fornia. By contrast, it must be said that the use of 
law students and “ paraprofessionals” by attorneys is 
still in an early stage of development in this country. 
Indeed, no clear definition of these terms was at­
tempted by the district court. Nonetheless, appellants 
have been ordered to open the class of persons al­
lowed confidential interviews with inmates to include 
some unspecified number of such persons.

The basis of the court’s holding appears to be that 
allowing of confidential interviews of inmates by such 
persons could or would benefit attorneys by freeing 
them from the necessity o f interviewing their clients 
and allowing them to concentrate on legal research 
and drafting and might also allow them to serve more 
clients. W e submit that an inmate’s constitutional 
right oP access to the courts does not demand that the 
legitimate requirements of institutional security be 
subordinated to the convenience of an attorney, es­
pecially when nothing prohibits that attorney from 
visting and conferring with his client. We submit 
that the court’s opinion departs from the correct defi­
nition op the term “ reasonable access to Ihe courts” 
and the correct standard to be applied in determining 
whether a particular prison regulation violates an in­
mate’s right of reasonable access. Some years ago, 
another three-judge court, in an opinion which has 
been often cited in the intervening years, attempted 
to define the term “ reasonable access to the courts” 
and the standard which a federal court must apply 
in determining whether this right has been violated:



14

“ In the context o f this case, access to the courts 
means the opportunity to prepare, serve and file 
whatever pleadings or other documents are nec­
essary or appropriate in order to commence or 
prosecute court proceedings affecting one’s per­
sonal liberty, or to assert and sustain a defense 
therein, and to send and receive communications 
to and from judges, courts and lawyers concern­
ing such matters. Whether or not in a particular 
case the access afforded is reasonable depends 
upon all the surrounding circumstances.”  Hat­
field v. Bailleaux, 290 F.2d 632, 637 (9th Cir. 
1961).

The com f continued:
“ In this federal proceeding under the Civil Rights 
Act we are not concerned with the question of 
whether these purposes for the challenged regu­
lations are salutary or whether the regulations 
provide an effective means of achieving such pur­
poses. See Ex parte Hull, 312 U.S. at page 549, 
61 S. Ct. at page 641. I f  the purpose was not to 
hamper inmates in gaining reasonable access to 
the courts with regard to their respective crim­
inal matters, and if the regulations and practices 
do not interfere with such reasonable access, our 
inquiry is at an end. The fact, i f  it. be a fact, that 
access could have been further facilitated without 
impairing effective prison administration is like­
wise immaterial.

“ This accords with the general principle that 
apart from due process considerations, the fed­
eral courts have no power to control or supervise 
state prison regulations and practices.” Id. at 
639-640 (footnote omitted).

15

Appellants respectfully urge this Court to adopt 
this approach.

Dated, S an Francisco, Califomia,
April 26, 1973.

Respectfully submitted,
E v e l l e  J . Y o u n g e r ,

Attorney General of the State of California,

E d w a r d  A .  I I i n z , J r .,
Chief Assistant Attorney General—

Criminal Division,

D o r is  II. M a ie r ,
Assistant Attorney General— Writs Section,

R o b er t  R . G r a n u c c i ,
Deputy Attorney General,

T h o m a s  A. B r a d y ,
Deputy Attorney General,

Attorneys for Appellants.

(Exhibit A Follows)



E x h i b i t  A



Exhibit A

In the United States District Court for the 
Northern District o f California

CASE NO. C-71 513 ACW

Robert Martinez and Wayne Earley, et al..
Plaintiffs,

vs. >
Raymond K. Procumer, et al.,

Defendants.

[Filed February 2,1973]

MEMORANDUM OPIN ION DENYING 
D EFEN D AN TS’ MOTION TO D ISM ISS 

AND P A R T IA L L Y  GRANTIN G 
P L A IN T IF F ’S MOTION FOR 

SUM M ARY JUDGMENT
Before: Duniway, U. S. Circuit Judge; and Zirpoli 

and Wollenberg, U. S. District Judges
This suit is a class action brought on behalf of all 

inmates o f penal institutions under the jurisdiction of 
the California Department of Corrections [CDC], 
challenging certain rules of statewide application 
relating to mail censorship and attorney-client inter­
views conducted by law students or other parapro- 
fessionals. The jurisdiction of this Court is invoked 
pursuant to 28 U.S.C. §§1343(3), 1343(4), 2201 and



11

2281, and 42 U.S.C. §1983. Plaintiffs seek declaratory 
and injunctive relief.

The action is presently before the Court on defend­
ants’ motion to dismiss for failure to state a claim 
upon which relief can be granted and plaintiffs’ mo­
tion for summary judgment. The record before the 
Court consists of the amended complaint, the moving- 
papers of the parties, affidavits, depositions, interrog­
atories and admissions.

The amended complaint sets forth live separate 
claims for relief. Count I  alleges that Director’s 
Rules 1201, 1205(d) and ( f ) ,  and 2402(8) violate the 
First and Fourteenth Amendments to the United 
States Constitution insofar as they restrict the per­
missible content o f inmates letters to personal corres­
pondents. Count I I  alleges that the rules set forth in 
Count 1 and §MV-I-02 of the Director’s Mail and 
Visiting Manual violate the First, Sixth and Four­
teenth Amendments as applied to correspondence be­
tween inmates and their attorneys. Count ITT alleges 
that Rule MV-IV-02 o f the Director’s Mail and Vis­
iting Manual violates the Fifth and Fourteenth 
Amendments by permitting only licensed private in­
vestigators and members of the State Bar to inter­
view inmates on behalf of the attorney o f record. 
Count IV  alleges that Rule 2402(10) which requires 
that an inmate obtain permission before sending reg­
istered or certified mail violates the First and Four­
teenth Amendments. Count V  raises an individual 
claim, alleging abuse of Rule 2402(13) in that plain­
tiff Martinez was not permitted to correspond with

his former co-defendant in order to secure an affi­
davit he hoped to use in challenging his conviction. 
The rule itself is not challenged.

Two counts of the complaint need not be consid­
ered by this Court. Count V  deals only with an al­
leged abuse in the application of a director’s rule; it 
does not question the validity of the mile itself. Ac­
cordingly, the issue is one that should be dealt with 
by a single judge district court. The second count this 
Court need not consider is Count IV . At oral argu­
ment the Court was informed by counsel for defend­
ants that Director’s Rule 2402(10) will be completely 
omitted from forthcoming revised regulations, and 
once these regulations are adopted the prisons will 
not restrict the use o f registered and certified mail by 
prisoners. On the ground that this issue will soon be 
mooted, defendants asked that the Court not rule upon 
the validity of the present regulation. The Court, 
therefore, does not reach this question.

in

DEFEN DAN TS’ MOTION TO DISM ISS
In addition to the somewhat more specific argu­

ments addressed to each count of the complaint, de­
fendants raise two basic contentions in support of 
their motion to dismiss. First, they contend that the 
claims raised in the complaint involve questions o f in­
ternal prison administration over which correctional 
authorities traditionally have wide discretion. Smith 
v. Sehnecldoth, 414 F.2d 680, 681 (9th Cir. 1969). 
The Supreme Court responded to a similar contention 
in Johnson v. Avery, 393 U.S. 483, 486 (1969);



IV

“ There is no doubt that discipline and administra­
tion of state detention facilities are state func­
tions. They are subject to federal authority only 
where paramount federal constitutional or stat­
utory rights supervene. It is clear, however, that 
in instances where state regulations applicable to 
inmates of prison facilities conflict with such 
rights, the regulations may be invalidated.”

Accord, Cruz v. Beto, 405 U.S. 319, 321 (1972). Hence, 
in alleging violations of inmates rights under the 
First, Fifth and Fourteenth Amendments, plaintiffs 
have stated a claim that this Court must consider.

Defendants’ second contention is that even if juris­
diction is proper and a claim cognizable in federal 
court has been alleged, the Court should nevertheless 
abstain. Defendants admit that exhaustion o f state 
remedies is not required under 42 U.S.C. §1983, but 
suggests that since equitable relief has been requested, 
the Court should defer to the California courts on the 
basis o f comity, llcctz v. Bozonich, 397 U.S. 82 
(1970).

In Lake Carriers’ Ass’n v. MacMidlan, 406 U.S. 
498, 509-10 (1972), the Supreme Court, as it had done 
before, specifically rejected the argument that the pos­
sibility a state court suit might result in a law being 
declared unconstitutional is not grounds for abstain­
ing. Rather, abstention is proper only in the “ nar­
rowly limited ‘ special circumstances’ ”  that exist 
when the state law could be interpreted in a manner 
that would render it constitutional. Id., Zwicklcr v. 
Koota, 389 U.S. 241, 248 (1971). “Where there is no

v

ambiguity in the state statute, the federal court should 
not abstain but should proceed to decide the federal 
constitutional claim.”  Wisconsin v. Constantineau, 
400 U.S. 433, 439 (1971).

Finally, defendants argue that regardless o f the 
validity of the motion to dismiss the other claims, 
Count II  must be dismissed, because the question 
raised was resolved in In re Jordan, 7 Cal. 3d 930, 
103 Cal. Rptr. 849 (1972). The question raised is, as 
defendants argue, now moot, and defendants’ motion 
to dismiss Count I I  is, therefore, GRANTED.

P L A IN T IF F S ’ MOTION FOR SUMMARY 
JU D G M EN T: COUNT I

Plaintiffs challenge the following Director's Rules 
as infringing on their freedom of speech: Rule 1201 
directs inmates not to “ agitate, unduly complain, mag­
nify grievances, or behave in any way which might 
lead to violence.” 1 Rules 1205 (d ) and ( f )  define con­
traband, as “ any writings . . . expressing inflammatory 
political, racial, religious, or other views or beliefs.
. . . which if  circulated among other inmates, would 
in the judgment of the warden or superintendent tend 
to subvert prison order or discipline.”2 Rule 2402(8)

1D1201. I nmate B ehavior. Always conduct yourself in an or­
derly manner. Do not fight or take paid in horseplay or physical 
encounters except as part of the regular athletic program. Do not 
agitate, unduly complain, magnify grievances, or behave in any way 
which might lead to violence.

2Rulc 1)1205, Contraband, is revised as follows: . . . 
d. Any writings or voice recordings expressing inflammatory po­
litical, racial, religious or other views or beliefs when not in the 
immediate possession of the originator, or when the originator’s



vi

provides that inmates “ may not send or receive let­
ters that pertain to criminal activity; are lewd, ob­
scene, or defamatory; contain foreign matter, or are 
otherwise inappropriate. ”3

These rules implement CDC’s general policy to­
wards prisoner mail, which is set forth in Rule 2401: 

“ The sending and receiving o f mail is a privilege, 
not a right, and any violation of the rules gov­
erning mail privileges either by you or by your 
correspondents may cause suspension of the mail 
privileges.”

The rules are enforced by mailroom staff and other 
employees o f the prison who routinely read incoming 
and outgoing “personal”4 mail o f prisoners.

No standards, other than those contained in the 
rules set forth above, are furnished to the mailroom 
staff to help them decide whether a particular letter 
violates any prison rule or policy. I f  a letter is found

possession is used to subvert prison discipline by display or circu­
lation. . . .
f. Any writings or voice recordings constituting escape plans or 
plans for the production or acquisition of explosives or anus, pos­
session of which is forbidden by law to inmates of institutions under 
the control of the Department of Corrections. Such material as 
may be contained in books, magazines, or newspapers which have 
been previously approved for receipt by inmates is excepted.

There is some indication that the definition of contraband will 
be changed in revised regulations to emphasize the purpose, for 
which an item may be used, such as a weapon or escape plan, in­
stead of retaining the present general description. See Procunicr 
Deposition at 12.

3Rule 2402(8) has been altered since the amended complaint was 
filed. The present prohibition against “ foreign matter” replaces a 
prohibition against “ prison gossip or discussion of other inmates.”

4For purposes of this opinion, “ personal” mail is defined to bo 
all mail other than correspondence with “ any member of the State 
Bar, or holder of public office”. Cal. Penal Code §2000(2).

Vll

to be improper correspondence, a CDC employee may 
take one or more of the following actions: (a) lie may 
refuse to mail the letter and return it to the prisoner; 
(b) be may submit a disciplinary report, which may 
lead to suspension of the prisoner’s mail privileges or 
to other, possibly more severe disciplinary punish­
ment; or, (c ) he may photocopy the letter and place it 
in the prisoner’s permanent file where it will be avail­
able to classification committees, which determine 
housing and work assignments, and to the Adult Au­
thority, which sets a date for the prisoner’s parole 
eligibility.

Plaintiffs raise several challenges to these regula­
tions, all based on the First Amendment. Before dis­
cussing them, however, it is appropriate to examine 
the applicability of First Amendment rights to prison 
inmates in more general terms. The majority of re­
cent cases treating the problem have adopted the for­
mulation of the court in Corot hers v. Follette, 314 
F.Supp. 1014, 1024 (S.B.N.Y. 1970): “ [A ]ny prison 
regulation or practice which restricts the right of free 
expression that a prisoner would have enjoyed if  he 
had not been imprisoned must be related both reason­
ably [citations omitted] and necessarily [citations 
omitted] to the advancement of some justifiable pur­
pose of imprisonment.” See Gray v. Creamer, 4G5 F. 
2d 179, 180 (3d Cir. 1972); Wilkinson v. Skinner, 
402 F.2d 070, 071 (2d Cir. 1972); Nolan v. Fitzpat­
rick, 451 F.2d 545 (1st Cir. 1971) ; Barnett v. Rodg­
ers, 410 F.2d 995, 1000 (D.C. Cir. 1909); Jackson v. 
Godwin, 400 F.2d 529, 541 (5th Cir. 1908); Gates v.



v m

Collier, 349 F.Supp. 881, 89(5 (N.D. IMiss. 1972); Pal- 
migiano v. Travisono, 317 F.Supp. 77G, 785 (J). R .l. 
1970); cf., Guajardo v. McAdams, 349 F.Supp. 211 
(S.D. Tex. 1972); Brcnneman v. Madigan, 343 F. 
Supp. 128, 141-42 (N.D. Cal. 1972); Burnham v. Os­
wald, 342 F.Supp. 880 (W .D. N.Y. 1972); Hill erg v.
Procunicr,.....F.Supp.........C-71 2150 SW  (N.D. Cal.
1972) (judgment vacated and temporary restraining 
order granted pending decision by three-judge court 
October 31, 1972); Note: Prison Mail Censorship and, 
the First Amendment, 81 YALE L.J. 87 (1971). A  
few courts have required that the state show a com­
pelling interest. See, e.g., Morales v. Schmidt, 340 F. 
Supp. 544 (W .D. Wis. 1972) ; Fortune Society v. Mc­
Ginnis, 319 F.Supp. 901 (S.D. N.Y. 1970). But sec 
Baker v. Beto, 349 F.Supp. 1203 (S.D. Tex. 1972). 
This Court need not decide between the “ compelling” 
and “ reasonable and necessary”  tests since it holds 
that the regulations in question violate the First 
Amendment under either standard.

Plaintiffs correctly assert that the regulations in 
question are deficient in several respects. The regu­
lations permit consoring of lawful expressions with­
out any apparent justification. Phrases such as 
“ defamatory” , “ otherwise inappropriate” , “ unduly 
complain” , and “ magnify grievances” , include writings 
which are not obscene and do not present a clear and 
present danger to any justifiable state interest. Such 
writings are, therefore, protected by the First Amend­
ment. No conceivable justification on the grounds of 
prison security necessarily requires such broad for­

mulation of censorship standards. Nor does it appear 
that defendant’s legitimate interest in preserving in­
ternal discipline is served by applying these criteria 
to incoming mail/’

Moreover, assuming that the requirements of prison 
security justify censoring outgoing mail in some cir­
cumstances,6 the regulations in question here are both 
vague and overbroad. Legitimate communications, 
though personally offensive to prison staff could be— 
and have been—censored on the grounds that state­
ments in letters were “ defamatory” , or “ otherwise in­
appropriate” , or that they constitute undue complaints 
or magnified grievances. I f  censorship o f outgoing per­
sonal mail is to continue, the regulations must be more 
narrowly and specifically drawn to prohibit only such 
communications as are obscene, and therefore not 
protected by the First Amendment, or as constitute 
a clear and present danger to the institution of its 
rehabilitation programs. Statements critical of prison 
life and personnel cannot be subject to censorship by 
the very people who are being criticized simply to 
stifle such criticism.

'■'Defendant does not raise other potential justifications based on 
the recognized functions of prisons in America— deterrence of the 
individual and others from committing criminal acts, and rehabili­
tation of the individual. See Morales v. Schmidt, supra, 340 F.Supp. 
at fifiO. Such an argument would be futile, in any event, since the 
regulations iiqqucstion would not appear necessary to further any 
of these functions.

nGuajardo v. McAdams, 340 F.Supp. 211 (S.D. Tex. 1072); 
Lamar v. Kern, 340 F.Supp. 222 (S.D. Tex. 1072); and Morales v. 
Schmidt, 340 F.Supp. 544 (W.D. Wis. 1072), have held that the 
state has no justifiable interest in censoring outgoing personal mail 
of inmates.



X

Plaintiffs further contend that the regulations in 
question are unconstitutional because they authorize 
punishment without giving “ fair notice”  of what is 
prohibited. See Landman v. It oyster, 333 F.Supp. 
621, 654-56 (E.D. Va. 1971). The punishment involved 
may include suspension of the right to send and re­
ceive personal mail, loss o f privileges, or even a term 
in solitary confinement. The Court agrees with this 
contention as well.

Plaintiffs’ final contention is that the Director’s 
Rides do not provide any procedural safeguards 
against violation o f prisoners’ First Amendment 
rights through error or arbitrariness in censoring 
mail. The absence of safeguards undoubtedly stems 
from the premise of the mail regulations—mail is 
a privilege, not a fundamental right. Since we hold 
that prisoners’ rights to correspond is a fundamental 
right protected by the First Amendment, and that re­
strictions on that right must be at least reasonably 
and necessarily related to a valid institutional inter­
est, it follows that any regulations restricting prison­
ers’ mail must be accompanied by the opportunity for 
review of decisions to censor or withhold mail. See 
Guajardo v. McAdams, supra. Without limiting the 
scope of such regulations, the following should, at a 
minimum, be provided for: (1) notice to the inmate 
that a letter has been disapproved, whether the letter 
be incoming or outgoing; (2) a reasonable oppor­
tunity for the inmate to contest a decision disapprov­
ing of an outgoing letter, and for an inmate’s 
correspondent to contest a similar decision on an in­

.x i

coming letter; (3) review of complaints arising from 
censorship by an official of the prison other than the 
person who initially decided to disapprove a letter.

COUNT I II
Administrative Rule MV-IV-02 provides in perti­

nent part:
Investigators for an attorney-of-record will be 
confined to not more than two. Such investigators 
must be licensed by the State or must be members 
of the State Bar. Designation must be made in 
writing by the Attorney.

Plaintiffs contend that this regulation effectively im­
pedes access to the courts by imposing an unnecessary 
burden on prison inmates who cannot afford to pay 
for the services of licensed private investigators or 
attorneys. Most inmates are indigent and cannot even 
afford to pay their attorneys o f record.7 Yet inter­
viewing inmates is frequently an essential part of 
understanding the basis for a civil rights complaint, 
a habeas corpus petition, or an appeal. Stevenson v. 
Mancusi, 325 F.Supp. 1028, 1032 (W .D.N.Y. 1971). 
I f  attorneys of record must interview their clients 
personally at the many CDC institutions, the time

T“ While the demand for legal counsel in prison is heavy, the 
supply is light. For private matters of a civil nature, legal counsel 
for the indigent in prison is almost nonexistent. Even for criminal 
proceedings, it is sparse.”  Johnson v. Avery, 303 U.S. 483, 493 
(1909) (Douglas, J., concurring) (footnote omitted). Cf. In re 
Tucker, f> Cal. 3d 171, 183 (1971); Jacob & Shamia, Justice After 
Trial: Prisoners’ Need for Legal Services in the Criminal-Correc­
tional Process, 18 Kan. L. Rev. 493 (1970).



X U

spent travelling would necessarily prohibit them from 
spending as much time working on legal problems.

Conversely, if  attorneys can send assistants with 
detailed instructions to interview inmates, they: will 
have more time available to evaluate the contentions 
raised and prepare the necessary legal documents. It 
follows that each inmate-client will receive better 
legal assistance, thus facilitating his access to the 
courts. Moreover, attorneys would have more time to 
serve additional clients who might otherwise have to 
rely on jailliouse lawyers.

The potential benefits to inmates, attorneys and the 
courts from permitting attorneys to send law students 
or other paraprofessionals to interview inmates are 
obvious. The use o f paraprofessionals throughout the 
profession is becoming recognized as a means of im­
proving legal services. The American Bar Association 
for example, recognizes such procedures in its new 
Code of Professional Responsibility.8

The fact that use of paraprofessionals would be 
beneficial, and perhaps essential in the prison context, 
to assuring an inmate reasonable access to the courts 
does not, however, provide a sufficient understanding 
of the problem to determine whether MV-TV-02 is 
constitutional. This Court has expressed the view

8“ A  lawyer often delegates tasks to clerics, secretaries, and other 
lay persons. Such delegation is proper if the lawyer maintains a. 
direct relationship with his client, supervises the delegated work 
and has complete professional responsibility for the work product. 
This delegation enables a lawyer to render legal services more eco­
nomically and efficiently.”  Canon 3, Ethical Considerations 3-fi. 
See also Brickman, Expansion of Ihc Lawycriufi Process Through 
a New Delivery System: The Emeryencc mul State of Legal Para- 
professionalism, 71 Colum.L.Rcv. 1153 (1971).

XU I

that “ prison rules must pass the basic test of due 
process reasonability, with that test being more or 
less stringent according to the character of the right 
taken from the prisoner.” Gilmore v. Lunch, 319 F. 
Supp. 105, 109 n.6 (N.I). Cal. 1970), aff’d sub nom, 
Younger v. Gilmore, 404 U.S. 15 (1971). The Su­
preme Court of California has similarly held that “ the 
proper determination of [whether a given restriction 
is constitutional] in a particular case requires that we 
measure the extent of the restriction against the need 
for restriction.” In re Harrell, 2 Cal.3d 675, 686 
(1970). Factual criteria to be examined in making 
this determination are (1) the extent to which appli­
cation of the rule impedes access to the court; (2) 
the extent of the threat presented by the conduct 
sought to be avoided by the particular rule from the 
standpoint of legitimate custodial objectives, and (3) 
the existence of reasonable alternative means of limit­
ing the undesirable conduct which do not entail so 
significant a restriction on access to the courts. In re 
Harrell, supra.

The uncontested affidavit of Alice Daniel estab­
lishes that rule MY-IY-02 and the remoteness of most 
CDC institutions makes personal visits to inmate- 
clients so time consuming and inconvenient that at­
torneys are reluctant to make such visits. Inability to 
interview a client conveniently may affect an at­
torney’s decision not to take the. case, especially if  the 
inmate is indigent and cannot pay for the attorney’s 
expenses or time in making personal visits. When 
such a decision occurs, the inmate’s ability to present



X IV

his case to the court necessarily suffers substantially 
from the absence of professional representation.

The conduct sought to be avoided by the adoption 
of MV-IV-02 in the fall of 1971 was visits to inmates 
by unlicensed investigators who posed a threat to 
prison security. Director Procimier testified in his 
deposition that “ the real threat to security was that 
we were having visits from any one attorney [sic] 
that designated some people that we chose not to 
have in our institutions. That was generally the cause 
we found, that with some firms, they would designate 
anybody to he an investigator to get them in, people 
that we wouldn’t allow in the institutions, so we tried 
to correct that and still be reasonable. The only way 
we could control it in my judgment would be to have 
them be licensed investigators.”  (Procimier Deposi­
tion, 24-25)

The Director’s interest in preventing “ undesirable” 
people from visiting inmates appears to he a reason­
able concern for preserving prison security. But the 
means chosen to protect that interest are overbroad. 
In the present case, Ms. Daniel attempted to have a 
Hastings law student interview her client on her be­
half, but was refused permission. Had the law student 
been participating in any of a number of law school 
programs under which students help inmates with 
their legal problems, instead of assisting a practicing 
attorney, he would have been permitted to interview 
the plaintiff. Moreover, he would not have undergone 
a security check other than to assure that he was 
enrolled in a school program.

In Hew of CDC’s ability to satisfy security needs 
and still allow many law students access to inmates, 
it is apparent that a less restrictive regulation can 
be drawn to govern attorneys’ use of law students or 
other paraprofessionals. Without intending to limit 
the Department’s ability to experiment, the Court 
might suggest that bona fide law students under the 
supervision of attorneys, or full time lay employees of 
attorneys would constitute a reasonable group of po­
tential investigators.

JUDGMENT
In accordance with Rule 56, Federal Rules o f Civil 

Procedure, the Court adopts the foregoing opinion as 
its findings of fact and conclusions of law. It is the 
judgment of this Court that CDC Director’s Rules 
1201, 1205(d) and ( f )  and 2402(8) violate the First 
and Fourteenth Amendments to the Constitution. Rule 
MV-IV-02 violates the Fifth and Fourteenth Amend­
ments. The Court therefore enjoins enforcement of 
these regulations insofar as they pertain to inmate 
mail and investigative interviews with qualified as­
sistants of licensed attorneys.

The Court further orders that the defendants for­
mulate new regulations in accordance with this opin­
ion, and serve said regulations on plaintiffs’ counsel 
and file them with the Court on or before March 1, 
1973. Plaintiffs shall have until March 15, 1973 to re­
spond to the proposed new regulations. The Court 
reserves jurisdiction o f this lawsuit until properly 
formulated regulations have been adopted.



X V I

It is further ordered that Count I I  is dismissed 
as moot, and Coimt V  be remanded to a single judge 
o f this Court.

/ s /  Ben C. Duniway
U. S. Circuit Judge

/&/ Albert C. Wollenberg 
U. S. District Judge

/ s /  Alfonso J. Zirpoli 
U. S. District Judge