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Cunningham v. Kane

United States District Court, D. South Carolina

January 31, 2018

Eugene Jerome Cunningham, #02433-135, Petitioner,
v.
Thomas R. Kane, Helen J. Marberry, Travis Bragg, M. Furman, and K. Parra, Respondents.

          REPORT AND RECOMMENDATION

          Bristow Marchant United States Magistrate Judge

         This action has been filed by the Petitioner, pro se. Petitioner is an inmate with the Federal Bureau of Prisons (BOP), and seeks herein a writ of mandamus pursuant to 28 U.S.C. § 1361, which provides district courts with “original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States . . . to perform a duty owed to the [petitioner].” Respondents filed a motion for summary judgment on September 19, 2017. As the Petitioner is proceeding pro se, a Roseboro order was entered by the Court on September 20, 2017, advising Petitioner of the importance of a dispositive motion and of the necessity for him to file an adequate response. Petitioner was specifically advised that if he failed to respond adequately, the Respondents' motion may be granted, thereby ending his case. After receiving extensions of time to respond, Petitioner filed a response in opposition to the motion on December 27, 2017.

         This matter is now before the Court for disposition.[1]

         Background and Evidence

         The record before the Court shows that Petitioner was sentenced by the United States District Court for the District of Columbia on February 20, 1973, to a 5 to 15 year term of imprisonment for a violation of DC ST § 22-2801 (Carnal Knowledge). See Respondents' Exhibit 1, p. 2. Thereafter, on March 23, 1973, Petitioner was sentenced to consecutive sentences for a total aggregated term of forty-five (45) years to life imprisonment with a mandatory minimum of forty (40) years for 2 counts of Murder I in violation of DC ST ¶ 22-2404 and Armed Robbery in violation of DC ST § 22-3202 and 2901. See Respondents' Exhibit 1, pp. 2-3. Petitioner was then sentenced on June 15, 1973, to a 1 year term of imprisonment by the United States District Court for the Eastern District of Virginia for Escape in violation of 18 U.S.C. § 751(a). See Respondents' Exhibit 1, pp. 3-4.

         On February 15, 1974, Petitioner was sentenced by the United States District Court for the Eastern District of Virginia to twenty (20) years for Escape (in violation of 18 U.S.C. § 751), Assault on a Correctional Officer (in violation of DC ST § 22-5-5 & 18 U.S.C. § 2), Transportation of Stolen Motor Vehicles (in violation of 18 U.S.C. § 2312), Carrying a Firearm During the Commission of a Felony (in violation of 18 U.S.C. 924(c)(2)), and Transportation of Stolen Firearms (in violation of 18 U.S.C. § 922(I) and (924(a)). See Respondents' Exhibit 1, pp. 4-5. Petitioner was next sentenced on March 19, 1974, to a three (3) year term of imprisonment by the United States District Court for the District of Columbia for Assault and Interfering with a Federal Officer in violation of 18 U.S.C. § 111. See Respondents' Exhibit 1, p. 5. On July 11, 1975, the Petitioner was sentenced to a twelve (12) year term of imprisonment by the United States District Court for the Eastern District of Virginia for Assault on a Correctional Officer with a Dangerous Weapon in violation of DC ST § 22-505(b). See Respondents' Exhibit 1, pp. 5-6. Petitioner was then sentenced on October 8, 1975, to a term of 6 months imprisonment by the District of Columbia Superior Court for Simple Assault. See Respondents' Exhibit 1, p. 6.

         Petitioner is currently incarcerated at the Federal Correctional Institution (“FCI”) in Bennettsville, South Carolina. Petitioner asks for mandamus relief from this Court directing the Respondents to provide a main law library and a legal aid program at FCI Bennettsville, to include allocation of proper funding to hire legal aides. Petitioner also seeks removal of Respondent Parra from supervision of the law library at FCI Bennettsville; the costs of this civil action if the Respondents lose; and the appointment of a special master to ensure the Respondents perform the ministerial duty owed to him. See Petititon, pp. 1-2, 12. Petitioner alleges that from 2010, when he arrived at FCI Bennettsville, until late 2015, there was a main library in the Education Department that had chairs, tables, and typewriters, which was sufficient for him to do his legal work. See Petition, p. 2. However, Petitioner complains that in 2015 Respondent K. Parra dismantled the main library, combined it with the leisure library and the arts and crafts program, and moved it to one room. Id. Petitioner contends that he is “owed a duty of MAIN LIBRARY, free from being surrounded by a leisure library where there are loud videos playing and arts and crafts being done.” Id. at pp. 2-3. Petitioner further claims that in order to prepare his petitions for the court, he has to bicker and banter, arguing with other inmates over the usage of the tables and chairs in order to prepare his legal work. Id. at p. 3. Petitioner also seeks a legal aid program that complies with the BOP policies and federal regulations. Id. at p. 6. Petitioner argues that since FCI Bennettsville does not have a main law library, that is even more reason why a legal aid program should be implemented. Id. at p. 7. In addition, he asserts that an inmate's use of a legal library falls short of getting legal aid from an attorney or paralegal, so he is entitled to mandamus relief by having the Respondents implement a legal aid program. Id.

         Petitioner has attached an affidavit to his Petition in which he addresses exhaustion of his administrative remedies with respect to his claims, as well as a copy of what purports to be a portion of BOP Program Statement 1315.07, a copy of what purports to be a portion of an instruction sheet relating to administrative remedies, and copies of some of his administrative remedy forms.

         In support of summary judgment in this case, Respondent Parra has submitted an affidavit in which she attests that she is the Supervisor of Education (“SOE”) at FCI Bennettsville, a position she has held since August 2015. See Parra Declaration, ¶ 1. As the SOE, Parra attests that she is in charge of running the Education Department, including the upkeep of the law and leisure libraries. See Parra Declaration, ¶ 2. Parra attests that when she started as SOE, the main law library was located in a small room containing a few tables and typewriters with no structure in how it was set up. See Parra Declaration, ¶ 3. At that time, the leisure library was in a larger room where there was a lot of reading material out in the open floor area but no system to check out materials. She alleges this reading material was frequently a place where inmates would hide contraband and pornography. See Parra Declaration, ¶ 3. Because the spaces for these libraries were not very effective or productive, she re-arranged the area utilized by both libraries and combined the two libraries in order to maximize space. See Parra Declaration, ¶ 4.

         The main library now has one entrance (door) that leads into one large room with two small rooms that are to the right after you come through the entrance. See Parra Declaration, ¶ 4.There are 6 tables in the main library area which can each seat four inmates. See Parra Declaration, ¶ 5. Parra attests that she had reading material like newspapers, videos, magazines, and books relocated to a smaller room, which was formerly the law library. See Parra Declaration, ¶ 5. Inmates are allowed to check out this material from the inmate library clerks assigned to this area and read them in the main sitting area, which Parra attests has helped eliminate the contraband problem in the library area. See Parra Declaration, ¶ 5. For videos or DVDs, inmates may check them out, watch them on one of the two television stations in the main library area, and use earbuds from the MP3 players to listen. See Parra Declaration, ¶ 6. The televisions are programmed where they cannot be heard without the use of earbuds. See Parra Declaration, ¶ 6.

         In addition to changing the arrangement of the library space, Parra purchased new, updated Swintec typewriters for the inmates and increased the number from 2 to 5. See Parra Declaration, ¶ 7. She also purchased Alpha Smart keyboards for inmates to use to type their legal work, as well as the typewriters. See Parra Declaration, ¶ 7. The typewriters and keyboards can be checked out from the inmate library clerks. See Parra Declaration, ¶ 7. There are 15 individual work stations along the walls of the main library (5 on each of 3 walls), where inmates can prepare legal work on a typewriter or Alpha Smart keyboard. There is also a copy machine located in the main library for inmates to make copies or print work downloaded from the Alpha Smart keyboard. See Parra Declaration, ¶ 7. Moreover, Parra attests that FCI Bennettsville utilizes the LexisNexis Electronic Law Library (ELL) system. See Parra Declaration, ¶ 8. This system provides inmates with electronic access to an extensive library of legal research material, specifically designed for inmate use, through ELL work stations (computer terminals) - the ELL system replaced the printed books in all federal prison law libraries. See Parra Declaration, ¶ 8.

         Parra attests that in September 2015, the ELL work stations were moved from the inmate Housing Units to the Education Department, at the direction of the Trust Fund Branch in the Central Office. See Parra Declaration, ¶ 9. The Trust Fund staff at the institution are responsible for the upkeep and maintenance of the ELL workstations and the copier/printer. See Parra Declaration, ¶ 9. The 15 ELL work stations along with a label machine were set up in the other smaller room in the library for inmate use, and Parra attests that inmates are able to work at an ELL work station based on availability. See Parra Declaration, ¶ 9. Parra further attests that the Arts and Crafts program is located in the Recreation Department, not the Education Department. See Parra Declaration, ¶ 10. Parra attests that there is a small area in one corner of the main library where, from time to time, a couple of inmates work on special projects that she assigns them such as making posters for a Family Day event. See Parra Declaration, ¶ 10. Parra attests that these projects are infrequent and are not disruptive to the library. See Parra Declaration, ¶ 10. Parra attests that the library at FCI Bennettsville affords inmates with a reasonably adequate space and an opportunity to work on their legal paperwork. See Parra Declaration, ¶ 11.

         Respondent Michael Furman attests that he is the Associate Warden of FCI Bennettsville and has held this position since April 2014. See Furman Declaration, ¶ 1. Furman attests that he is currently the Associate Warden of Programs and has direct oversight of various departments such as the Education and Recreation Departments. See Furman Declaration, ¶ 3. Since he has been working at FCI Bennettsville, he attests no law school or attorney working with a legal aid program has requested to set up a legal aid program to provide legal services for inmates at FCI Bennettsville. See Furman Declaration, ¶ 3. Furman further attests that nothing in BOP policy requires that FCI Bennettsville establish such a program initially without a request from those who would be providing such services. See Furman Declaration, ¶ 4.

         As an attachment to his response, Petitioner has submitted what appear to be selected portions of a BOP Program Statement and highlighting where it states that the Warden of each institution “must establish a main law library containing the materials listed in the Required Main Law Library Materials (Attachment A), unless an item is out of print”; that “[e]ach institution must set aside a sufficiently large room where law library books will be kept to allow inmates the opportunity to work at tables without the need for removing materials”; ...


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