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DUGAR v. COUGHLIN

July 12, 1985

JOSEPH DUGAR, Plaintiff, v THOMAS COUGHLIN, SUPT. ADIRONDACK CORRECT. FACILITY, SUPT. AUBURN CORRECT. FACILITY, SUPT. OSSINING CORRECT. FACILITY, CARL HUNT, STEVE WILEY, Defendants


The opinion of the court was delivered by: SPRIZZO

OPINION & ORDER

SPRIZZO, D.J.:

 Plaintiff pro se Joseph Dugar brought this action pursuant to 42 U.S.C. §§ 1983 & 1985 for injunctive relief and damages, *fn1" alleging that various actions and practices of the defendants violated his civil rights and those of state prisoners. The complaint states two types of claims: the first relates to prisoners' right of access to the courts, and the second regards prisoners' participation in the New York Temporary Release Program ("TRP").

 defendants have moved to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim. *fn2"

 A. Access to the Courts

 Plaintiff seeks an injunction (1) prohibiting defendants from charging prisoners for postage for legal mail; (2) prohibiting defendants from charging prisoners for all photocopying services in connection with legal work, except for copies made from books; (3) ordering that photocopying machines be placed in prison law libraries; and (4) requiring defendants to make available to prisoners the services of a notary five days a week. Plaintiff also seeks restitution of $200.00, apparently for prior charges for mail and copying services, and $15,000,000 in punitive damages. The basis for these claims is plaintiff's assertion that defendants' present practices violate the due process and equal protection rights of prisoners.

 Prisoners have a well established right of access to the courts which prison regulation must not "unjustifiably obstruct." See, e.g., Procunier v. Martinez, 416 U.S. 396, 419, 40 L. Ed. 2d 224, 94 S. Ct. 1800 (1974); Ex Parte Hull, 312 U.S. 546, 649, 85 L. Ed. 1034, 61 S. Ct. 640 (1941). This principle, however, requires only that prisoners' access to the courts be "adequate, effective, and meaningful," see, e.g., Bounds v. Smith, 430 U.S. 817, 822, 52 L. Ed. 2d 72, 97 S. Ct. 1491 (1977), and does not preclude the balancing of prisoners' rights with the legitimate interests of the states, including economic concerns. See, e.g., id. at 825; Harrell v. Keohane, 621 F.2d 1059, 1061 (10th Cir. 1980); cf. Ross v. Moffitt, 417 U.S. 600, 612, 41 L. Ed. 2d 341, 94 S. Ct. 2437 (1974). A state need not "provide the best manner of access, nor is it obligated to equalize the financial resources of each of its inmates . . . . So long as the State's procedure's [sic] meet constitutional minima, the courts should not second-guess them." Pino v. Dalsheim, 558 F. Supp. 673, 675 (S.D.N.Y. 1983) (emphasis in original).

 1. Charges for Legal Mail

 The New York Department of Correctional Services ("the Department") has provided that prisoners may mail five one-ounce letters per week free of charge. Prisoners must pay for any mail weighing more than one ounce, or in excess of five one-ounce letters in any week. See Department of Correctional Services Directive No. 4422 at III(D)(1) & (3) (Dec. 7, 1981). Plaintiff claims that prisoners are constitutionally entitled to free postage for all legal mail, that Congress and the United States Postal Service have appropriated funds to allow prisoners to mail their legal materials for free, and therefore that the practice in New York, which may result in prisoners being charged for legal correspondence, is unlawful.

 Plaintiff is incorrect in claiming that funds have been provided to fully subsidize prisoners' legal mail. Furthermore, while a prisoner's constitutional right of access to the courts includes a right to use the mails, this right is not absolute, see United States ex rel. Thompson v. Fay, 197 F. Supp. 855, 856 (S.D.N.Y. 1961), and it does not require that prisoners be provided with unlimited free postage. See, e.g., Bach v. Coughlin, 508 F.2d 303, 307 (7th Cir. 1974); Williams v. Ward, 404 F. Supp. 170, 171-72 (S.D.N.Y. 1975). The practice in New York safeguards prisoners' right of access while also protecting the State's legitimate budgetary interests. See, e.g., Twyman v. Crisp, 584 F.2d 352, 359 (10th Cir. 1978); Bach, supra, 508 F.2d at 307-08. It clearly does not suppress all court access, as plaintiff contends. Nor is there any basis to find that this policy deprives prisoners of money earned in prison without due process. Therefore, this aspect of plaintiff's complaint must be dismissed for failure to state a claim.

 2. Charging for Copy Machine Services

 Plaintiff contends that, with the exception of charges for photocopying from books, it is unconstitutional to charge prisoners for photocopying services related to their legal work. He therefore challenges the practice at certain prisons whereby prisoners must pay $.10 per page for photocopies. He also notes in his complaint that prisoners have the option of using handwritten or typewritten copies as an alternative to photocopies, and that no charge is imposed for paper.

 As with charges for postage, an inmate's right of access to courts is not unconstitutionally infringed by reasonable charges for copying services, particularly in light of the available alternatives. See, e.g., Johnson v. Parke, 642 F.2d 377, 380 (10th Cir. 1981); Harrell, supra, 621 F.2d at 1061. These charges do not result in total or undue denial of access to the courts, but are a reasonable balance of the legitimate interests of both prisoners and the State. See Harrell, supra, 621 F.2d at 1061.

 Plaintiff has cited no authority for his claim that the Constitution requires that photocopying machines be placed in prison law libraries. It follows ...


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