pursuant to writs of habeas corpus ad testificandum. F. Continuing Clashes Between Parties Another major difference between habeas corpus and prisoner civil rights actions is that while the prisoner names the warden as the nominal defendant in habeas actions, there is usually no real conflict between the parties to the suit. However, in prisoner civil rights actions the prisoner is usually seeking money damages from the prison officials in whose custody he is being held and continual clashes between the parties are common. Prisoners frequently claim they are being punished in retaliation for filing their lawsuit. While prison officials are not permitted to punish or harass a prisoner for filing a lawsuit, they must have the power to maintain security and punish prisoners for misconduct and violations of the rules of the institution. When a prisoner is disciplined after filing a lawsuit, the court frequently becomes involved in determining whether the punishment constituted harassment for filing the lawsuit as the plaintiff contends, or whether the prisoner, as the institution contends, intentionally provoked prison officials or required disciplinary action by misconduct unrelated to the lawsuit. Plaintiff's allegations of harassment for filing the lawsuit were found to be true by the district court in Ruiz v. Estelle, 550 F.2d 238 (5th Cir. 1977), and injunctive relief was granted. On appeal the court stated: A review of the record reveals that as a result of their instigation of and participation in this litigation, these named plaintiffs have indeed been treated as a special class of inmates by the officers and officials of the Texas Department of Corrections. The record discloses that in response to their participation in this litigation, these inmates have been subjected during its pendency to threats, intimidation, 550 F.2d at 239. Collins v. Schoonfield, 344 F. Supp. 257 (D. Md. 1972) held that both the prisoner plaintiffs and defendant jail officials were guilty of wrongful conduct. The court stated: [C]ounsel for plaintiffs complained that 344 F.Supp. at 266. The court had instructed counsel for the defendants to inform them that no inmate was to be discriminated against or be the subject of any retaliatory or disciplinary action because of his participation in the case. Counsel for plaintiffs were instructed to inform the plaintiffs that the court would expect them not to utilize the pendency of trial of the case to create problems of administration and discipline. The court found that both sides had violated the spirit of the court's instructions. Further, the court stated: As the trial judge in this case, I whom I ruled. And that was true of those in authority as well as those confined. Against that background, while it is not hard to recognize the factual and legal issues and sub-issues in this case, it is more difficult to provide even to suggest solutions in connection with them, and it is most difficult for those charged with the task to establish an ongoing system which meets the minimums of federal constitutional principles and hopefully of higher standards. [T]he tensions between those in command and those subject to command have long since passed the boiling point. While those tensions may have been exacerbated in and by this suit, nevertheless, the very pendency of this suit -- and the drama of the courtroom has provided, at least to some extent, an opportunity for some steam to escape from what has largely been a sealed cauldron. 344 F.Supp. at 268. An allegation in Willis v. Ciccone, 506 F.2d 1011 (8th Cir. 1974), that three incident reports were filed on plaintiff after he filed a writ of habeas corpus was held insufficient to justify habeas relief. The court noted that the question was moot since plaintiff had been transferred to another prison and the alleged harassment ceased. G. Amendments to Complaint Bris Since the civil rights plaintiff and the prison officials tend to engage in continual clashes, plaintiffs continually seek leave to amend their complaints to add new causes of action. Of course, the defendants must respond to each new amendment to the complaint. Sometimes the plaintiff loses interest in his original claim and is really only prosecuting the 30. See Section II,F supra. later ones. The pleadings drafted by the prisoners are Where the named defendants, supervisory officials who allegedly observed the assault of plaintiff, were entitled to summary judgment, the district court should have advised plaintiff that pursuant to Rule 19 (a), F. R. Civ. P., he could have joined the correctional officers as a defendant, and should have given him leave to do so. Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978): A district court is not required to act 31. See also Kauffman v. Moss, 420 F.2d 1270 (3d Cir. 1970) (although civil rights complaints must be specifically pleaded to avoid a motion to dismiss, rule does not subvert liberal policy of amendment); Neal v. State of Georgia, 469 F.2d 446 (5th Cir. 1972) (district court in best interest of orderly procedure should allow state prisoner to amend pro se complaint to name additional parties); Hansen v. May, 502 F.2d 728 (9th Cir. 1974) (state prisoner had right to amend complaint to allege warden personally took active part in confiscation of property); Vinson v. Richmond Police Dept., 567 F.2d 263 (4th Cir. 1977) (court of appeals would have remanded to permit amendment to bring in as parties defendant the actual officers involved in illegal taking but this would have been fruitless since statute of limitations had expired). to proceed and direct or permit amendment of the pleadings to bring that person or persons before the court. 574 F.2d at 1152. Bolding v. Holshouser, 575 F.2d 461, 465 (4th Cir. 1978) observed that the district court had properly dismissed plaintiff's claim alleging denial of procedural due process for the reason that their allegations were so general and broad that they stated conclusions of law rather than a short and plain factual statement showing they were entitled to relief. However, the court stated: However, any such dismissal should be 575 F.2d at 465. H. Temporary Restraining Orders Throughout the proceedings, civil rights prisoner plaintiffs frequently file motions for temporary restraining orders under Rule 65 (b) of the Federal Rules of Civil Procedure. These motions must be disposed of promptly. There are basically five requirements for the plaintiff to satisfy in order to obtain a temporary restraining order. First, the defendant must have been notified of the motion, or the plaintiff must certify in writing the efforts he has made to give notice, and the reasons supporting his claim that notice should not be required. Rule 65(b) of the Federal Rules of Civil Procedure. Further, the four basic elements which must be shown for the issuance of a preliminary injunction must also be shown for the issuance of a temporary restraining order. 32 The plaintiff must make a strong showing that he is likely to prevail on the merits; he must show that without such relief he will be irreparably injured; he must show that the grant of the 32. Murphy v. Society of Real Estate Appraisers, 388 F. Supp. 1046 (E.D. Wis. 1975). |