CRUZ v. HAUCK: Prisoners' Struggle with the Judicial System

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1 CRUZ v. HAUCK: Prisoners' Struggle with the Judicial System FRANCES T. FREEMAN CRUZ* Fred Arispe Cruz, objecting to a jail regulation banning possession of hard-bound books and restricting use of other legal materials, was obliged to submit to isolation in order to retain possession of his hard-bound books. The restriction did not apply to isolation cells, where their potential use as weapons was not at issue. For Cruz, this meant twenty-four hour-a-day confinement for over four months in a small, steel, constantly illuminated, windowless cell. The legal history of Cruz v. Hauck 1 reveals a case plagued by seemingly insurmountable obstacles. In 1970, three indigent inmates at Bexar County Jail, San Antonio, Texas, alleged that the regulation, banning possession of hard-bound books, unconstitutionally denied them access to the courts. In litigation spanning over twelve years, the case has seen one Supreme Court decision, four appeals to the Court of Appeals for the Fifth Circuit, followed by four remands to the district court. The tortuous path of the litigation is illustrative of the battle confronting the incarcerated in trying to assert their constitutional rights. The handwritten pro se complaint was drafted by Fred Arispe Cruz, a competent and prolific "jailhouse lawyer." The plaintiffs' complaint was summarily dismissed by the district court. 2 Their efforts to obtain counsel from organizations such as the Bexar County Legal Aid Society and the Mexican-American Legal Defense Fund proved fruitless. When requested, I agreed to serve as attorney. Following dismissal of their claim, the plaintiffs requested leave to appeal in forma pauperis. The request was refused by the District Judge who stated that any appeal would be "frivolous, without merit, and not taken in good faith." '3 The plaintiffs applied to the Court of * Attorney at Law, Mason City, Iowa; LL.M. 1958, Georgetown University Law Center; J.D. 1937, Columbia Law School; B.A. 1931, Radcliffe; Reginald Herber Smith Community Lawyer Fellowship, ; Member of the following bars: New York (1939), Connecticut (1955), Texas (1968) and Illinois (1974) U.S. 59 (1971)(per curiam). 2. Cruz v. Hauck, No. SA-70-CA-182 (W.D. Tex. Oct. 30, 1970). 3. Cruz v. Hauck, No. SA-70-CA-182 (W.D. Tex. Dec. 3, 1970).

2 CRIMINAL AND CIVIL CONFINEMENT [Vol. 9 Appeals for the Fifth Circuit for permission to appeal. There too they were denied the right to appeal in forma pauperis. Unable to pay the $25.00 filing fee and the $ minimum security deposit, a motion for reconsideration was submitted, supported by a memorandum of law asserting that the plaintiffs' poverty was having the effect of foreclosing their right to equal access to the courts. This motion was also denied. Their only recourse was to seek certiorari in the Supreme Court of the United States in forma pauperis. The petition was filed and certiorari was granted. The Supreme Court, in a per curiam decision, vacated the judgment and remanded the case for further consideration in light of Younger v. Gilmore. 4 Gilmore affirmed a district court ruling which held invalid prison regulations restricing law libraries to certain legal matters as a denial of reasonable access to the courts. Justice Douglas, in a concurring opinion, described Cruz as presenting an important question in the "evolution by statute and constitutional decision of a Bill of Rights for prisoners." 5 On remand, the district court judge again dismissed the case holding that there is no constitutional requirement that prisons maintain complete law library facilities. 6 He further noted that prisoners had access to the Bexar County Law Library through their attorneys. The plaintiffs' were now imprisoned in the Texas Department of Corrections. A second appeal was taken, again proceeding as a class action on behalf of all inmates. The appeal reasserted that the jail regulation preventing inmate access to and possession of hard-bound law books and legal materials was unconstitutional. In an opinion delivered by Chief Judge Brown, the court rejected the prohibition. Respondents' first proposed rule prohibits the prisoners from possessing or using books with hardbound covers. Two justifications are offered for this restriction: (i) the possibility that the hard cover books could be used as weapons, and (ii) the fear that the importation of the books will be used as a method of smuggling contraband into the prison. Many common household items may be conceivably improvised for use as a weapon, e.g. a fork. But the possibility that a fork could be used as a weapon would not justify prison officials in forcing prisoners to eat with their fingers. 7 On the matter of secretion of contraband, the Judge recommended U.S. 15 (1971). 5. Cruz v. Hauck, 404 U.S. 59, 60 (1971). 6. Cruz v. Hauck, 345 F. Supp. 189, 190 (W.D. Tex. 1972) (citing Hatfield v. Bailleaux, 290 F.2d 632 (9th Cir. 1961)). 7. Cruz v. Hauck, 475 F.2d 475, 477 (5th Cir. 1973).

3 1983] CRUZ v. HAUCK careful examination and inspection. 8 Chief Judge Brown found no merit in the jail authorities' contention that those confined had access to legal materials through their appointed or retained attorneys since this fact had not been established. The Judge also held that the plaintiffs were entitled to a hearing to offer their proof. On remand, the United States District Judge, who had acquired a distaste for this case, appointed the Honorable John P. Giles, United States Magistrate, to conduct the hearing and to report to him his findings of fact and conclusions of law. The plaintiffs presented an array of witnesses to support their claims, but unfortunately, the device which recorded their testimony malfunctioned and the record was lost. A second hearing was scheduled some weeks later, but many of the earlier witnesses were unable to be present and their valuable testimony was lost. The Magistrate's finding and conclusions upheld the defendant's position and the District Judge denied plaintiffs' relief. A third appeal was instituted to the Court of Appeals. In their brief, plaintiffs objected to the appointment of the United States Magistrate and reasserted their challenge to the validity of the jail regulations which continued to restrict inmate possession and use of legal materials. The opinion, 9 rendered by Circuit Judge Rosenn of the Third Circuit sitting by designation, found merit in the plaintiff's contentions that the Bexar County Jail Rules were constitutionally unacceptable as an infringement upon their right of access to the courts. He adjudged that the findings of fact did not support the conclusions drawn. Furthermore, he expressed concern that inmates wishing to file both habeas corpus petitions and civil rights actions had no assurance of access to counsel. In Cruz, Circuit Judge Rosenn was careful to note that Gilmore v. Lynch,' 0 stands for the proposition that the "fundamental underlying the right of access to legal materials is the right of access to the courts. This... lodestar which guides our course,"' 1 may be met by access to legal materials, access to counsel, or other appropriate alternatives.' 2 The judge again remanded Cruz v. Hauck to the District Court for an evidentiary hearing to determine whether all inmates of the jail had adequate access to the courts through means other than by access to legal materials. The burden of proof on this issue was to be borne by the defendant jail authorities. Judge Rosenn also required that the then existing "broadbrush 8. Id., citing Seale v. Manson, 326 F. Supp (D. Conn. 1971). 9. Cruz v. Hauck, 515 F.2d 322 (5th Cir. 1975) F. Supp. 105 (N.D. Cal. 1970), afl'd sub noma., Younger v. Gilmore, 404 U.S. 15 (1971). 11. Cruz v. Hauck, 515 F.2d 322, 331 (5th Cir. 1975). 12. Id.

4 CRIMINAL AND CIVIL CONFINEMENT [Vol. 9 rules" include specific details as to assure reasonable and effective procedures for the use of an individual's legal materials designated to be stored in his cell. He found unreasonable and unnecessary, even for security purposes, the rule denying confinees the right to receive legal materials from any source other than their attorneys or a publishing house. He found that no provision had been made for the storage of non-hard cover materials, a matter requiring correction. In order "to forestall any further appeals by either litigant," Judge Rosenn directed the District Judge to personally conduct the proceedings." 3 The District Judge ignored the directive and appointed the same Magistrate to conduct the hearing. The plaintiffs immediately filed their objections, but these were passed over. Magistrate Giles ordered the plaintiffs to replead their cause, which directive was obeyed under protest. The plaintiffs petitioned the Supreme Court of the United States for leave to proceed in forma pauperis seeking a writ of certiorari. The petition was denied February 23, Thereafter, the plaintiffs fied their repleaded complaint and a month later filed their motion requesting certification of this cause as a class action. The defendants responded with a motion to dismiss. The plaintiffs moved to add a jail inmate as an intervenor. The District Judge denied the motion and stated that the plaintiffs were "trying to put Crawford in this suit solely to bolster their motion asking that this cause be certified as a class action... " It was not until October 12, 1977 that the District Court ordered the Magistrate to conduct an evidentiary hearing on the defendant's motion to dismiss and on "any pending motions" which included plaintiffs' motion for class certification. The hearing was held a week later with the Magistrate filing his findings and recommendations with the court. The plaintiffs objected and the Magistrate being directed to reconsider, issued new or amended findings to which the plaintiffs also filed their objections. The District Judge approved the findings and conclusions of Magistrate Giles which denied the plaintiffs motion for class action certification and granted the defendants' motion to dismiss. For the fourth time the plaintiffs gave notice of appeal and sought leave to appeal to the Court of Appeals in forma pauperis, which, as in the first instance in 1970, was denied as "frivolous." The appellate tribunal, however, granted the plaintiffs' request and again allowed oral argument. A basis of the District Court's affirmation of the defendant's motion 13. Id. at 332 n U.S. 917 (1976).

5 1983] CRUZ v. HAUCK to dismiss and rejection of the plaintiffs' motion for class certification was that the named plaintiffs, Messrs. Cruz, Andrade, and Lara, were no longer in the jail. Yet, important facts that were not considered were that the case had always been treated as a class action by the parties and that all the requirements of Rule 23 (b)(2) of the Federal Rules of Civil Procedure had been met. The opinion of Circuit Judge Tate recognized these facts and ruled in the plaintiffs' favor, remanding Cruz v. Hauck another time for a trial on the merits. On the question of possible mootness, the appellate court agreed with the plaintiffs' argument that the facts of this case brought it within "the narrow class of cases in which the injury complained of is 'capable of repitition, yet evading review.' ", 15 In the interim, the U. S. Supreme Court decided Bounds v. Smith. 10 In Bounds, prisoners of the North Carolina prison system brought suit contending that the State's Correctional Department's plan for a decentralized prison system comprising seventy-seven units provided totally inadequate access to the seven libraries. The plan contemplated a full day of library work for those individuals who requested it. The opinion of Justice Marshall goes further than any previous statement of the Courts on the right of access. Meaningful access is said to be the touchstone: [T]he fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law. 17 The case of Cruz v. Hauck went to trial December 21, 1981 before a newly appointed Judge, the Honorable Fred Shannon. He ordered the jail authorities to submit a plan in writing for operation of the law library. The plan must set forth policies and procedures, establish rules and provide sufficient time for research and writing for all inmates. The library plan is to include provisions for paper, duplicating supplies, storage facilities and to assure access to personally owned materials. Special arrangements are to be made for assistance to those individuals for whom library access would be meaningless, i.e. illiterates, non-english speaking persons. Today, the Bexar County Jail in San Antonio, Texas has a law li- 15. Cruz v. Hauck, 627 F.2d 710, (5th Cir. 1980). See also Bell v. Wolfish, 441 U.S. 520, 526 (1979); Gerstein v. Pugh, 420 U.S. 103, 110 n.11 (1975); Sosna v. Iowa, 419 U.S. 393, 401 (1975); Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, (1911) U.S. 817 (1977). 17. Id. at 828.

6 CRIMINAL AND CIVIL CONFINEMENT [Vol. 9 brary with a person in charge daily. A newly graduated paralegal assists him, and it appears that jail-house lawyers, also know as "writwriters," can be pressed into service. The collection is de minimis, but is growing. The plaintiff's complaint of the absence of the Federal Supplement is being remedied: "Many important prisoner right cases are decided in and go no farther than the district court, and the Federal Supplement from 1960 or so on should probably be available in an adequate large prison law library."' 8 After twelve years of litigation, plaintiffs' basic goal has been achieved. The mere existence of a law library does not suffice, however. Both the book collections and the rules for access do not yet meet the standards of adequacy required under Bounds v. Smith.' 9 The constitutional imperative of access to the courts is recognized but only time will tell whether it will bear fruit. 18. Cruz v. Hauck, 627 F.2d 710, 720 (5th Cir. 1980) U.S. 817 (1977).