author: WARRINER, District Judge.

text:
    Dennis Ray GRAVES v. David GARRAGHTY, Warden.
    Civ. A. No. 85-0410-R.
    United States District Court, E.D. Virginia, Richmond Division.
    Oct. 2, 1985.

      David E. Boone, Boone & Warren, Richmond, Va., for plaintiff.
    Jacqueline G. Epps, Asst. Atty. Gen., Richmond, Va., for defendant.
   JUDGMENT

WARRINER, District Judge.

For the reasons set forth in the accompanying opinion it is hereby ORDERED that the petition for writ of habeas corpus sought by Dennis Ray Graves, petitioner, against David Garraghty, respondent, is DENIED.

And it is so ORDERED.

OPINION AND ORDER

On 19 April 1985 petitioner, by counsel, submitted this petition for a writ of habeas corpus pursuant to -28 U.S.C. § 2254. By order of 22 May 1985, the Court granted respondent’s motion for an extension of time within which to file a responsive pleading to the petition. Respondent submitted a motion to dismiss on 30 May 1985. On 19 June 1985 petitioner submitted a brief in opposition to the respondent’s motion. Respondent failed to rebut. The motion is now ripe for consideration. The Court’s jurisdiction is conferred by 28 U.S.C. § 2241.

Petitioner, a State inmate at the Nottoway Correctional Center, is currently incarcerated pursuant to judgment of the Circuit Court of Montgomery County, Virginia, wherein he was convicted of rape, abduction, and two counts of attempted sodomy. Petitioner attacks the validity of these convictions by making the following allegations:

(a) The trial judge had no authority to rule on the credibility of the witnesses during an evidentiary hearing conducted under Va.Code § 18.2-67.7.
(b) If the trial judge’s interpretation of the Rape Shield Law is correct, then the statute is unconstitutional.
(e) There was no manifest necessity requiring the judge to declare a mistrial, sua sponte. Therefore, petitioner’s second trial was in contravention of the double jeopardy clause of the United States Constitution.

A review of the evidence presented at the evidentiary hearing to determine admissibility and the trial judge’s determinations based upon that evidence is necessary. At the evidentiary hearing, defendant testified that he had had consensual sexual intercourse with the complaining witness “toward the fall” of 1976 and again about six months later (Tr. 54-55). Defendant also stated that the complaining witness was 14 years old at the time of the first occurrence and either 14 or 15 at the time of the second occurrence. (Tr. 55). Defendant also asserted that these were the only two times that he had had sexual intercourse with the complaining witness prior to the alleged rape in July, 1982. (Tr. 53). Finally, defendant acknowledged that the complaining witness had become married at some time between 1976 and the time of the alleged rape. (Tr. 57).

The complaining witness, defendant’s cousin, testified that she had never had sexual intercourse with defendant until he raped her on 10 July 1982, but that defendant had forced her “to let him feel of [her]” when she was 11 and 12 years old. (Tr. 58). She also testified to his persuading her to “use my hand.” (Tr. 60). The complaining witness also stated that after those occurrences, she did not see him for approximately nine years, resuming her familial relationship with him shortly before the alleged rape in July, 1982. (Tr. 61-62).

At the conclusion of the evidentiary hearing the judge ruled that the evidence of prior sexual contact between the complaining witness and defendant would not be admitted. The court’s ruling from the bench was as follows:

And I'm convinced that any prior sexual conduct between these two parties as far as sexual intercourse did not occur from the evidence that I have heard here. Mr. Graves has testified that his mother, Mrs. Graves, who is here in the witness room, caught them in the act at the grandmother’s house at, on Park Street. I haven’t heard any evidence to that effect and I, therefore, am of the opinion, and so rule, that any prior sexual, alleged sexual conduct between the parties would not be admissible in the trial of this case before this jury, and so rule.

(Tr. 64). When pressed by defense counsel, the judge explicitly stated that the reason he was not admitting the evidence was that he believed the complaining witness and did not believe defendant with respect to their versions of prior sexual contact' between the two of them. (Tr. 65).

I

Addressing petitioner’s claim that the trial judge’s interpretation of Va.Code § 18.2-67.7 was erroneous, the interpretation of a State statute regarding the admissibility of evidence is a matter of State law not cognizable on federal habeas review. Absent circumstances impinging upon the fundamental fairness of petitioner’s conviction, a federal court cannot grant habeas relief based on a claim that the court improperly rejected relevant admissible evidence. Grundler v. North Carolina, 283 F.2d 798, 800 (4th Cir.1960).

It appears that under the Virginia statute the trial judge is called upon to apply a mixed question of fact and law. The trial judge must determine whether alleged sexual conduct “occurred within a period of time reasonably proximate to the offense charged under the circumstances of this case.” Va.Code § 18.2-67.7.

An interpretation of Virginia law by the Supreme Court of Virginia constitutes the final authority on the statute’s construction. Petitioner presented his claim regarding the trial court’s interpretation of § 18.2-67.7 to the Supreme Court of Virginia in a petition for a writ of error. The petition was denied. Under Virginia law, such a denial constitutes a judgment on the merits of the claim. See Saunders v. Reynolds, 214 Va. 697, 204 S.E.2d 421 (1974). Accordingly, petitioner’s claim under (a) above must be DISMISSED insofar as it constitutes a dispute as to the proper interpretation of a State rule of practice.

II

Petitioner alleges that, assuming that the trial judge’s interpretation as to his proper function under the Rape Shield statute is correct, i.e., that he shall admit or exclude on the basis of his credibility findings, the statute is unconstitutional because it deprives petitioner of his right to confront the witnesses against him. See Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). Petitioner’s claim under the confrontation clause of the Sixth Amendment is derived from a mixed base and its rationale is not altogether clear in his brief. On one level it appears that petitioner argues that the ruling made pursuant to the statute prevented petitioner from “confronting” the prosecution witness by inquiring into her past sexual conduct. On a different level, I think, petitioner points out that the trial judge made his ruling on admissibility on the basis of the trial judge’s findings as to the witnesses’ relative credibility. Petitioner argues that while materiality and relevance are for the judge to decide, credibility is for the jury. Here petitioner may be invoking the right to trial by jury, also under the Sixth Amendment.

Viewed on either basis and on both respondent argues that this habeas court should not consider petitioner’s claims because of petitioner’s procedural defaults in the State courts. Although admitting that petitioner alluded to the Sixth Amendment right of confrontation in his petition for a writ of error (respondent’s Exhibit 1 at 13), respondent contends that petitioner did not specifically raise the “right to confrontation” as an assignment of error in the Virginia Supreme Court. Respondent argues that, pursuant to Rule 5:21, Rules of the Virginia Supreme Court, counsel is required to “lay his finger on the error.” Omohundro v. County of Arlington, 194 Va. 773, 75 S.E.2d 496 (1953). Respondent urges that counsel’s failure to place this issue squarely before the Virginia Supreme Court constitutes a procedural default.

Furthermore, respondent asserts that a second procedural default occurred when petitioner earlier failed to raise a confrontation issue during his motion to set aside the verdict. Under Virginia practice it is necessary to make a timely objection at the trial level in order to preserve the right to challenge the constitutionality of a statute on appeal. Manley v. Commonwealth, 211 Va. 146, 176 S.E.2d 309 (1976), cert. denied, 403 U.S. 936, 91 S.Ct. 2245, 29 L.Ed.2d 716 (1971). In view of both these defaults respondent argues that the doctrine of Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594, reh’g denied, 434 U.S. 880, 98 S.Ct. 241, 54 L.Ed.2d 163 (1977), precludes federal habeas review of petitioner’s confrontation claims. Petitioner counters that trial counsel excepted to the judge’s ruling regarding the admissibility of the proffered evidence. Trial counsel argued at the time that the evidence was relevant and that the issue of credibility was a jury question, not one for the judge. (Tr. 66).

The nature of and the practice under a State’s contemporaneous objection rule is one for the State courts to apply under State law. So the question arises: How did the courts of the Commonwealth apply the contemporaneous objection rule in this case?

The constitutionality of the statute as applied by the trial judge was raised by petitioner on direct appeal. Although there and here petitioner is less than clear as to the exact nature of his Sixth Amendment claims, it is clear that he believes what the trial judge did was wrong. The Virginia Supreme Court denied petitioner’s petition for a writ of error, thus ruling on the merits of the claim. Saunders v. Reynolds, 214 Va. 697 at 703, 204 S.E.2d at 424 (1974). This ruling on the merits shows that the Supreme Court of Virginia disregarded any failure contemporaneously to object at the trial level. Since the Supreme Court of Virginia has declined to apply their own procedural bar, the Wainwright doctrine is inapplicable. Griffin v. Commonwealth, 606 F.Supp. 941, 946 (E.D.Va.1985). Accordingly, the Court will proceed to address the merits of petitioner’s claim. Petitioner’s claim here appears to be a hybrid allegation of a denial of his Sixth Amendment right to trial by jury in conjunction with his Sixth Amendment right to confront the witnesses against him. The foundation of petitioner’s claim is the trial judge’s statement quoted p. 1350, supra.

The trial judge also stated as his specific reason for this ruling that “I believe this young lady” and “I don’t believe him.” (Tr. 65). Were this all that appeared, serious questions under the Sixth Amendment would present themselves. See United States v. Parodi, 703 F.2d 768, 790 (4th Cir.1983).

I would note in passing that the trial court’s decision not to admit the evidence of prior sexual conduct upon the issue of credibility, does not seem to me to comport with the relevant provisions of Virginia’s Rape Shield Statute, Va.Code § 18.2-67.7(A)(2). The trial judge quite properly could have based his decision upon the fact that even assuming that defendant’s version of the facts be correct, as I assume here, the alleged sexual contact between defendant and the complaining witness occurred five to six years prior to the alleged rape, and hence would not have been “reasonably proximate to the offense.” Va.Code § 18.2-67.7(A)(2).

Similarly, the trial judge properly could have found that the evidence of prior sexual conduct while relevant was not material. More than five years had elapsed between the last time that defendant had had sexual contact with the complaining witness in 1976 and the alleged rape in July 1982. During that time the complaining witness had grown from a 14 or 15 year-old child to become a woman of 21 years of age. Moreover, the complaining witness no longer was a single girl; she was a married woman. These factors eliminated any materiality the evidence of prior sexual conduct might have had with respect to the issue of whether the complaining witness consented to sexual intercourse with defendant in July 1982.

Thus under a reasonable construction of the Rape Shield Statute and under general rules of evidence, the evidence could have been excluded without considering the complaining witnesses’ contradictory evidence. If the ruling of the trial court can be sustained on a basis which does not implicate constitutional concerns it is of no moment, on habeas consideration, that the basis stated by the trial court does implicate constitutional concerns. Ulster County Court v. Allen, 442 U.S. 140, 154, 99 S.Ct. 2213, 2223, 60 L.Ed.2d 777 (1979).

Without regard to the United States Constitution, under Virginia law “the credibility of witnesses and the weight to be given their testimony are questions exclusively for the jury.” Coppola v. Commonwealth, 220 Va. 243, 252, 257 S.E.2d 797, 803 (1979), cert. denied, 444 U.S. 1103, 100 S.Ct. 1069, 62 L.Ed.2d 788 (1980). Furthermore, “conflicts of credibility between witnesses are matters for the jury.” United States v. Parodi, 703 F.2d at 790.

This case law indicates that the trial judge based his decision to exclude the evidence of prior sexual conduct on inappropriate grounds under Virginia law. If this Court were a Virginia appellate court, I might reverse the trial judge for basing his decision on reasoning that is contrary to Virginia law. This Court does not sit as a court of appeals, however, but as a court with the limited power to grant a writ of habeas corpus should it find that plaintiff was substantially prejudiced through the violation of a federal constitutional right.

In that capacity, I must first refer to the Supreme Court’s clear statement that:

Although 28 U.S.C. § 2254 authorizes the federal courts to entertain [a prisoner’s] claim that [he is] being held in custody in violation of the Constitution, it is not a grant of power to decide constitutional questions not necessarily subsumed within the claim. Federal courts are courts of limited jurisdiction. They have the authority to adjudicate specific controversies between adverse litigants over which and over whom they have jurisdiction. In the exercise of that authority, they have a duty to decide constitutional questions when necessary to dispose of the litigation before them. But they have an equally strong duty to avoid constitutional issues that need not be resolved in order to determine the rights of the parties to the case under consideration.

Ulster County Court v. Allen, 442 U.S. at 154, 99 S.Ct. at 2223; see also Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Engineering, P.C., 467 U.S. 138, 104 S.Ct. 2267, 2279, 81 L.Ed.2d 113 (1984); Shaw v. Martin, 733 F.2d 304, 314 (4th Cir.), cert. denied, — U.S. -, 105 S.Ct. 230, 83 L.Ed.2d 159, reh ’g denied, — U.S. -, 105 S.Ct. 555, 83 L.Ed.2d 441 (1984).

Since the petition presently before the Court can be resolved without resort to constitutional issues, I am compelled to resolve this case on other than constitutional grounds. As I observed above, the trial judge unquestionably could have decided to exclude the evidence of prior sexual conduct between the complaining witness and defendant on the basis of the lack of “reasonable proximity” under the Virginia Rape Shield Statute or upon a lack of materiality of the evidence. Thus under State law, there existed two readily recognizable grounds upon which the trial judge could have decided not to admit this evidence. Had the trial judge decided to exclude the evidence without giving a reason for his determination, petitioner would have no reason to complain that the evidence was improperly excluded. Petitioner similarly has no grounds upon which to assert that his constitutional rights have been violated merely because the trial judge’s reasoning arguably was defective under both State law and federal constitutional law.

Since there are ample grounds upon which the trial judge could have decided to exclude the evidence of prior sexual conduct between the complaining witness and defendant, defendant has failed to demonstrate the existence of “circumstances impugning fundamental fairness or infringing specific constitutional protections.” See Grundler v. North Carolina, 283 F.2d at 802; Chance v. Garrison, 537 F.2d 1212, 1215 (4th Cir.1976). Absent such circumstances, the admissibility of the evidence at issue does not present a federal question. See Chance v. Garrison, 537 F.2d at 1215. Accordingly, petitioner’s claim under (b) above must be DISMISSED as failing to present a federal question for consideration by this Court.

Ill

Petitioner’s final claim is that the trial court’s action in entering, sua sponte, a mistrial subjected petitioner to a second prosecution, entailing double jeopardy. See Arizona v. Washington, 434 U.S. 497, 503, 98 S.Ct. 824, 829, 54 L.Ed.2d 717 (1978). The incident dealt with in I and II above occurred in the trial resulting in defendant’s conviction and imprisonment. Earlier defendant had faced trial before a jury on the same charge which had resulted in a mistrial. Defendant’s counsel, ignorant of the Virginia Rape Shield Statute, had in his opening statement related to the jury the alleged prior consensual sexual intercourse. Because of this disclosure the trial court had declared a mistrial.

Both parties agree that jeopardy attached at petitioner’s first trial; the trial was aborted following the empaneling and swearing of the jury. Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978). Although a declaration of a mistrial does not in all circumstances implicate the prohibition against double jeopardy, in general when a trial judge grants a mistrial, sua sponte, a habeas court must examine the issue of whether a “manifest necessity” existed for taking such action. Arizona v. Washington, 434 U.S. at 504, 98 S.Ct. at 829.

Respondent argues that this Court need not address the issue of manifest necessity because petitioner acquiesced in the ruling at trial. Respondent also points out that the problem arose solely because of defense counsel’s ignorance of the statute. Defense counsel did state:

I did not read the statute and I will be very frank with the Court on it. I don’t see what difference it would make because I think that from his testimony, it should be admissible evidence anyway. If you want to declare a mistrial, then I’m sorry I caused the Court that trouble but I didn’t know about it.

(Tr. 38).

However blameworthy counsel was, it cannot fairly be said that he waived defendant’s rights under the double jeopardy clause. For example, counsel stated, “Far be it from me to ask for a mistrial on this case.” (Tr. 42). Prior to the Court’s ruling, petitioner’s counsel urged the Court to reconsider its ruling on the admissibility of the evidence in an attempt to prevent the Court’s ruling on the mistrial issue. (Tr. 66). I don’t believe there was a waiver which relieves this court from facing the double jeopardy issue. I must proceed to address the substantive issue of whether a manifest necessity existed justifying the trial judge’s actions.

Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978), is so directly apposite to the present action that a careful review of that case is in order. In Arizona v. Washington, defendant earlier had been granted a new trial because the prosecution had withheld exculpatory evidence from the defense. At the second trial, defense counsel made reference to the fact that the prosecution had hidden evidence from the defense during the previous trial. Id. at 498-99, 98 S.Ct. at 826-27. The trial judge granted the prosecution’s motion for a mistrial without expressly finding that there was “manifest necessity” or that he had considered alternative solutions and had concluded that none would be adequate. Id. at 500-01, 98 S.Ct. at 827-28. After the Arizona Supreme Court refused to review the mistrial ruling, defendant filed a petition for a writ of habeas corpus in federal court. The federal district judge granted the writ, finding that the trial judge was required to make express rulings on “manifest necessity” and on the possibility of courses alternative to a mistrial. The district court held that because the trial judge had not made such rulings explicitly, defendant was entitled to the writ despite improper conduct by his counsel. The Ninth Circuit affirmed. Id. at 501-02, 98 S.Ct. at 828.

The Supreme Court reversed the Ninth Circuit. Justice Rehnquist first observed that the concept of manifest necessity requires that a prosecutor prove that a “high degree” of necessity is present before a trial court may conclude that a mistrial is appropriate. Id. at 505-06, 98 S.Ct. at 830. With this in mind, the Court held that where defense counsel makes improper and prejudicial remarks during his opening statement to the jury, “the trial judge’s determination is entitled to special respect,” equivalent to that accorded a judge’s decision to declare a mistrial when he arrives at the conclusion that a jury is deadlocked. Id. at 510, 98 S.Ct. at 833.

An underlying question, of course, is whether defense counsel’s remarks in the instant case were improper. In Arizona v. Washington, the Supreme Court stated that that issue was there foreclosed “by respondent’s failure to proffer any Arizona precedent supportive of his contention and by the State court’s interpretation of its own law, buttressed by the consistent opinion of the federal district court and the court of appeals.” Id. at 511, 98 S.Ct. at 833.

In the present action, petitioner similarly has failed to cite any Virginia precedent which would indicate that evidence of prior sexual conduct between himself and the complaining witness under all the facts and circumstances of this case was admissible as a matter of law. As has been noted above, the evidence was inadmissible both under the Rape Shield Statute and under ordinary rules of materiality. The capacity of counsel’s assertions to prejudice the Commonwealth’s right to a fair trial is self-evident. The collateral harm to a complaining witness cannot be ignored. Such harm, along with the resultant discouraging influence in the prosecution of rape cases, was the legislative reason for enacting the Rape Shield Statute. As I have previously discussed at some length, there were several grounds upon which the trial judge could have decided to exclude the evidence under State law, and I can find no grounds upon which the evidence must have been admitted as a matter of law. I “therefore start from the premise that defense counsel’s comment was improper and may have affected the impartiality of the jury.” Id. at 511, 98 S.Ct. at 833.

Given the impropriety of defense counsel’s reference to prior sexual conduct in his opening statement, the trial judge was in the best position to judge the extent of possible bias that comment had upon the jury. As Justice Rehnquist held in Arizona v. Washington:

[T]he overriding interest [in] the evenhanded administration of justice requires that we accord the highest degree of respect to the trial judge’s evaluation of the likelihood that the impartiality of one or more jurors may have been affected by the improper comment.
* sjc sjc jfc 5}:
An improper opening statement unquestionably tends to frustrate the public interest in having a just judgment reached by an impartial tribunal. Indeed, such statements tend to create a risk, often not present in the individual juror bias situation, that the entire panel may be tainted. The trial judge, of course, may instruct the jury to disregard the improper comment. In extreme cases, he may discipline counsel, or even remove him from the trial____ Those actions, however, will not necessarily remove the risk of bias that may be created by improper argument. Unless unscrupulous defense counsel are to be allowed an unfair advantage, the trial judge must have the power to declare a mistrial in appropriate cases.

Id. at 511-13, 98 S.Ct. at 833-34. I am therefore bound by the Supreme Court’s instructions to give great deference to the trial judge’s evaluation of possible juror bias in cases such as this.

The inquiry must not end there, however. The Court in Arizona v. Washington held that reviewing courts must satisfy themselves that “the trial judge exercised ‘sound discretion’ in declaring a mistrial.” Id. at 514, 98 S.Ct. at 835. In Arizona v. Washington, the Supreme Court held that the trial judge had acted well within his discretion because he was in the best position to assess the impact of the “improper and highly prejudicial evidence” upon the jury, and because the trial judge “did not act precipitately in response to the prosecutor’s request for a mistrial.” Id. at 515, 98 S.Ct. at 835.

Similarly, in this case the trial judge was in the best position to judge the possible impact of defense counsel’s improper opening statement upon the jury. He saw the manner in which counsel emphasized this revelation to the jury. He saw the facial and other overt reactions of the jury. By comparison I only have a transcript. Furthermore, the record reveals that the trial judge was concerned with making a proper determination with respect to whether to grant a mistrial. The trial judge ruled after a few moments. After the lapse of 33 months,, counsel for petitioner is still unable to show the trial court’s judgment was faulty when he determined it was necessary to abort the trial. I therefore find that the trial judge exercised sound discretion with respect to the issue of possible juror bias created by defense counsel’s improper comment.

Finally, the fact that the trial judge did not make an explicit finding of “manifest necessity” or of the possibility of alternative solutions to the problem presented by defense counsel’s improper remarks is not determinative in this case. The Supreme Court held in Arizona v. Washington that where “the record provides sufficient justification for the State court ruling, the failure to explain that ruling more completely does not render it constitutionally defective.” Id. at 516-17, 98 S.Ct. at 836. At the State trial proceeding reviewed in Arizona v. Washington, as in the present case, the trial judge made no explicit finding with respect to manifest necessity or alternatives to a mistrial. This Court will not impose procedural requirements upon the State courts that the Supreme Court has held to be excessive. See id. at 516, 98 S.Ct. at 835.

For these reasons, I find that the trial court’s mistrial order is supported by the manifest necessity which is required in a case of this kind, that alternatives were properly considered, and that therefore the State did not put defendant in jeopardy twice for the same offense.

Petitioner’s petition for writ of habeas corpus will be DENIED.

A certificate of probable cause to appeal is GRANTED.

An appropriate judgment shall issue.

And it is so ORDERED.

      . Section 18.2-67.7(A) provides as follows:

        Admission of Evidence. — A. In prosecutions under this article, general reputation or opinion evidence of the complaining witness’s unchaste character or prior sexual conduct shall not be admitted. Unless the complaining witness voluntarily agrees otherwise, evidence of specific instances of his or her prior sexual conduct shall be admitted only if it is relevant and is:
      1. Evidence offered to provide an alternative explanation for physical evidence of the offense charged which is introduced by the prosecution, limited to evidence designed to explain the presence of semen, pregnancy, disease, or physical injury to the complaining witness's intimate parts; or
      2. Evidence of sexual conduct between the complaining witness and the accused offered to support a contention that the alleged offense was not accomplished by force, threat or intimidation or through the use of the complaining witness’s mental incapacity or physical helplessness, provided that the sexual conduct occurred within a period of time reasonably proximate to the offense charged under the circumstances of this case; or
      3. Evidence offered to rebut evidence of the complaining witness’s prior sexual conduct introduced by the prosecution.

      . Such a hearing is required by the statute. Va.Code § 18.2-67.7(C).

      . I recognized at pp. 1350-1351, supra, that the trial court’s interpretation of the statute was affirmed by the Virginia Supreme Court.

      . THE COURT: "Now, I’ve got to make the decision of whether or not to grant a mistrial.”
      MR. GRAYBEAL: "Your Honor, if I might just have a moment before you rule on that.”
      THE COURT: "Yeah, I'd like to have a moment to think about it myself to be frank with you.”
      (Tr. 65-66).


source: Caselaw Access Project

author: DIANA E. MURPHY, District Judge.

license: Public Domain

text:
    Roy ERICKSON for and on Behalf of Randal Dean ERICKSON, Plaintiff, v. Richard SPORE d/b/a Country Dam Supper Club, Defendant.
    Civ. No. 4-85-682.
    United States District Court, D. Minnesota, Fourth Division.
    Oct. 2, 1985.

      Jeffrey R. Anderson, Reinhart & Anderson, St. Paul, Minn., for plaintiff.
    JAMES R. GOWLING, Geraghty, O’Loughlin & Kenney, St. Paul, Minn., for defendant.
   MEMORANDUM OPINION AND ORDER

DIANA E. MURPHY, District Judge.

Plaintiff, Roy Erickson, for and on behalf of Randal Dean Erickson, brought this action for damages against defendant, Richard Spore, d/b/a Country- Dam Supper Club, alleging negligence. Jurisdiction is alleged under 28 U.S.C. § 1332. This matter is now before the court on defendant’s motion to dismiss for lack of personal jurisdiction.

Background

For the purpose of this motion to dismiss for lack of personal jurisdiction, the court takes as true the facts alleged by the plaintiff.

Randal Dean Erickson was injured during a one automobile accident which took place on Sunday, July 1, 1979, at approximately 2:25 a.m. in St. Croix Falls, Wisconsin. Erickson was the front seat passenger in an automobile owned and operated by Robert Joseph Christian. Christian apparently lost control of the vehicle; and it skidded sideways across the highway and into a ditch. Erickson was ejected from the vehicle, rendered unconscious, and transported to a hospital in a comatose state. He has suffered severe and permanent neurological damage, and has remained in hospitals and total care medical centers since the accident. His doctors project that he will be totally dependent on others for the remainder of his life.

Plaintiff asserts that Christian left a party in Lindstrom, Minnesota, at approximately 10:30 p.m. the evening before the accident to go to the “Dam-Site Bar”, and that he arrived at the Country Dam Supper Club in Apple River, Wisconsin at approximately 11:00 p.m. and stayed until the bar closed at 2:00 a.m. Christian was “loud and obnoxious” and “consuming mixed drinks;” he was not refused service “[d]espite his obviously intoxicated state.” Some time after the accident, a blood alcohol test administered by the Polk County Sheriffs Department revealed a blood alcohol concentration of .165. Christian was issued a DWI citation. Plaintiff asserts that the automobile accident and Erickson’s injuries were a direct result of defendant’s negligent service of intoxicating liquor to Christian when the latter was in an obviously intoxicated condition.

Certain jurisdictional facts are undisputed. Plaintiffs Roy and Randal Erickson are and have been at all material times residents of Minnesota. Defendant Richard Spore is and has been at all material times a resident of Wisconsin. From May 1979 until March 1985, Mr. Spore was owner and operator of the Country Dam Supper Club, a large dining and “on-sale” and “off-sale” liquor establishment in Apple River, Wisconsin, about 13-15 miles from the Minnesota border.

Plaintiff asserts that “prior to July 1, 1979, defendant solicited business from citizens of the State of Minnesota through newspaper, radio, and other methods of advertising within the State of Minnesota” and that defendant “knowingly accepted business from citizens of the State of Minnesota.” Defendant acknowledges that prior to the accident it advertised in TriCounty Advertisers, which circulated largely in Wisconsin, but also in a small part of Minnesota. Defendant also acknowledges advertising in newspapers and on radio stations in the Minneapolis-St. Paul, Minnesota area in 1981 or 1982. Plaintiff had the opportunity to depose defendant and has submitted defendant’s deposition to the court. Plaintiff points to, and the deposition evidences, no other contacts between defendant and Minnesota. It is uneontroverted that defendant had no offices, agents, employees, property, bank accounts, or loans in Minnesota. Defendant did not perform any services or enter into any contracts in Minnesota. Plaintiff does not assert that Randal Dean Erickson ever saw or heard any of defendant’s advertising or that his decision to go to Country Dam was in any way related to that advertising.

(b) Transacts any business within the state,
Subd. 3. Only causes of action arising from acts enumerated in subdivision 1 may be asserted against a defendant in an action in which jurisdiction over him is based upon this section.

Discussion

In considering a motion to dismiss for lack of jurisdiction, the court must take as true the facts alleged by the plaintiff; unless plaintiff fails to make out a prima facie case of jurisdiction the motion should be denied. Hardrives, Inc. v. City of LaCrosse, Wisconsin, 307 Minn. 290, 240 N.W.2d 814, 818 (1976). The facts must be viewed in the light most favorable to the plaintiff. Once the plaintiff makes out a prima facie showing, the burden shifts to the moving party to show a lack of jurisdiction. Mountaire Feeds, Inc. v. Argo Impex, SA, 677 F.2d 651, 653 (8th Cir.1982).

Plaintiff seeks to invoke jurisdiction under Minn.Stat. § 543.19 which provides for long arm jurisdiction over non-resident defendants in causes of action arising from the defendant’s transacting of business within Minnesota.

Minnesota’s long arm statutes authorize jurisdiction over foreign corporations “to the maximum extent consistent with due process.” Marquette National Bank v. Norris, 270 N.W.2d 290, 294 (Minn.1978). Where plaintiff asserts “specific jurisdiction” over an out-of-state defendant, due process is satisfied if the defendant “ ‘purposefully directed’ his activities at residents of the forum, and the litigation results from alleged injuries that ‘arise out of or relate to those activities.’ ” Burger King Corp. v. Rudzewicz, — U.S. -, 105 S.Ct. 2174, 2182, 85 L.Ed.2d 528 (1985) (citations and footnotes omitted). Thus, under both Minn.Stat. § 543.19 and the due process clause of the United States Constitution, plaintiff must make a prima facie showing that defendant has transacted business in Minnesota and that the plaintiff’s injuries arise from plaintiff’s activities in Minnesota.

In West American Insurance Co. v. Westin, Inc., 337 N.W.2d 676 (Minn.1983), the Minnesota Supreme Court held that Minnesota lacked jurisdiction over a Wisconsin borderline liquor establishment. The court considered the traditional justification for such jurisdiction: the foreseeability of an accident in Minnesota resulting from the sale of liquor so near the border, Minnesota’s strong interest in providing a forum for resident plaintiffs, and the short distance between the defendant’s residence and the Minnesota forum, which “vitiates any inconvenience to the defendants,” Id. at 679, but determined that such considerations were insufficient to meet the due process test enunciated in World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 and Rush v. Savchuk, 444 U.S. 320, 100 S.Ct. 571, 62 L.Ed.2d 516 (1980). In a special concurrence Justice Wahl said that “solicitation-type contacts” with Minnesota would permit the constitutional exercise of jurisdiction over foreign defendants. West American, 337 N.W.2d at 681.

This court is aware of only one case finding jurisdiction under Minn.Stat. § 543.19 largely on the basis of defendant’s advertising in Minnesota. In BLC Insurance Co. v. Westin, Inc., 359 N.W.2d 752 (Minn.App.1985), petition for review denied, No. C6-84-1422 (Minn. Apr. 15, 1985), the Minnesota Court of Appeals found jurisdiction where the defendant bar had purchased from Minnesota stations radio commercials informing listeners of “daily drink specials” 10 to 15 times each week; other facts also supported jurisdiction. Id. at 753. But see Larson v. Association of Apartment Owners of Lahaina Shores, 606 F.Supp. 579 (D.Minn.1985) (no jurisdiction where Minnesota travel agents carried Hawaii defendant’s promotional material).

In this case, defendant’s only contact with Minnesota prior to the accident appears to be advertising in a small Wisconsin publication with limited circulation in Minnesota. Plaintiff has had the opportunity for discovery, but it does not support jurisdiction. The court has carefully reviewed Spore’s deposition for evidence of any contacts with this state. Plaintiff has not requested any additional discovery nor does he suggest that further discovery might disclose additional contacts with Minnesota. The record now before the court does not show a “purposeful availment” of “the privilege of conducting activities within the forum state.” West American Insurance Co. v. Westin, Inc., 337 N.W.2d 676, 680 (Minn.1983) (citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980)). There are no other facts on which plaintiff seeks to found jurisdiction in this forum.

In determining whether the maintenance of a suit against a non-resident defendant offends “traditional notions of fair play and substantial process,” Land-O-Nod Co. v. Bassett Furniture Industries Inc., 708 F.2d 1338, 1340 (8th Cir.1983) (quoting International Shoe Co. v. State of Wash., 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95), the central concern must be “the relationship among the defendant, the forum, and the litigation.” Id. (quoting Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 2579, 53 L.Ed.2d 683 (1977)). The relationship here between the defendant and the forum is slight. The relationship between the forum and the litigation rests entirely on the plaintiffs residence in Minnesota; the accident took place in Wisconsin. Compare BLC Insurance Co. v. Westin, Inc., 359 N.W.2d 752 (Minn.App.1985), petition for review denied, No. C684-1422 (Minn.Apr. 15 1985) (finding long arm jurisdiction where defendant engaged in extensive advertising and other purchasing in Minnesota and accident took place in Minnesota). Finally, the connection between the accident and defendant’s advertising in Minnesota is at most indirect: plaintiff does not assert that defendant’s advertising had anything to do with Erickson’s decision to go to the Country Dam.

For all these reasons the court reluctantly concludes that personal jurisdiction is lacking here.

ORDER

Accordingly, based on the above and all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that defendant’s motion to dismiss for lack of personal jurisdiction is granted, and plaintiff’s complaint is dismissed.

      . At deposition, defendant stated that some time after his advertising with Tri-County Advertisers he was informed that "there was some little corner around Lakeland where 30 or 40 copies were circulating in Minnesota. That was the first [he] had known [of] that.”

      . Minn.Stat. § 543.19 provides in pertinent part: Subd. 1 As to a cause of action arising from any acts enumerated in this subdivision, a court of this state with jurisdiction of the subject matter may exercise personal jurisdiction over any foreign corporation or any nonresident individual, or his personal representative, in the same manner as if it were a domestic corporation or he were a resident of this state. This section applies if, in person or through an agent, the foreign corporation or non-resident individual:

      . " ‘Specific’ jurisdiction contrasts with ‘general’ jurisdiction, pursuant to which a State exercises personal jurisdiction over a defendant in a suit not arising out of or relating to the contacts with the forum.’” Burger King Corp. v. Rudzewicz, — U.S. -, 105 S.Ct. 2174, 2182 n. 15, 85 L.Ed.2d 528 (1985) (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 1872 n. 80, 80 L.Ed.2d 404 (1984)).

      . The defendant had purchased other radio time before commencing these spots and had continued advertising for a year and a half after the accident. Defendant also had purchased more than |20,000 in other goods and services in Minnesota during the year of the accident. BLC Insurance Co., 359 N.W.2d at 753.

      . Defendant's modest advertising in Minnesota after the accident is irrelevant. Plaintiffs injury can not be said to arise from advertising occurring after that accident.

      . It is irrelevant that defendant "knowingly accepted business from citizens of the state of Minnesota." Defendant’s “contacts with the forum state ... are of interest in determining if in personam jurisdiction exists, not its contacts with a resident." (Emphasis in original.) Aaron Ferer & Sons Co. v. Atlas Scrap Iron & Metal Co., 558 F.2d 450, 455 n. 6 (8th Cir.1977) (citing Hanson v. Denckla, 357 U.S. 235, 250-55, 78 S.Ct. 1228, 1237-40, 2 L.Ed.2d 1283 (1958)). See also West American Insurance Co. v. Westin, Inc., 337 N.W.2d 676, 679 (Minn.1983).

      . Traditionally, the Eighth Circuit has considered five factors. Of primary importance are "(1) the nature and quality of the contacts with the forum state; (2) the quantity of the contacts with the forum state; and (3) the relation of the cause of actions to the contacts." Land-O-Nod, 708 F.2d at 1340. Of secondary importance are “(4) the interest of the forum state in providing a forum for its residents; and (5) the convenience of the parties." Id. In the instant case, Minnesota has an undeniably strong interest in providing a forum to a severely injured resident who has no other available forum. This interest and the obvious convenience of the forum are not determinative, however. Id.


author: LOVELL, District Judge.

text:
    Richard C. LUSSY, Plaintiff, v. Justice Frank I. HASWELL, Justice John Conway Harrison, Justice Daniel J. Shea, Justice John C. Sheehy, Justice Fred J. Weber, Justice L.C. Gulbrandson, Justice Frank Morrison Jr., Judge Joseph B. Gary, Judge Arnold Olsen, Judge Henry Loble, Judge Mark P. Sullivan, Judge Robert J. Boyd, Chief Judge James F. Battin, Defendants.
    Nos. CV 84-162-BU to CV 84-174-BU.
    United States District Court, D. Montana, Butte Division.
    Oct. 2, 1985.

      Lorraine Gallenger, Asst. U.S. Atty., Billings, Mont., for Chief Judge James F. Bat-tin.
    J. Michael Young, Sp. Asst. Atty. Gen., Dept, of Admin., Ins. and Legal Div., Helena, Mont., for Justices Haswell, Harrison, Sheehy, Weber, Gulbrandson, Morrison, and Judges Gary and Loble.
    Allen B. Chronister, Asst. Atty. Gen., Agency Legal Services Bureau, Legal Services Div., Dept, of Justice, Helena, Mont., for Justice Shea, and Judges Arnold Olsen, Sullivan and Boyd.
   OPINION AND OMNIBUS ORDER

LOVELL, District Judge.

Plaintiff is a disgruntled litigant who has filed these 13 separate federal cases against the named state and federal judicial officers, each of whom has ruled adversely to him in previous suits. The 13 complaints are basically the same pleading adapted to each factual circumstance. Exhibits indicate the complaints are similar to dozens of other suits filed by Plaintiff against lawyers and federal and state judges in Montana and Washington as well as judges of the Ninth Circuit Court of Appeals.

Plaintiff generally accuses each judicial officer of “Justinhoard”, a term he considers as essentially the act of hoarding justice for the benefit of judges and lawyers, and to the exclusion of others. The complaints contain language which seems defamatory to each Defendant and which attacks the entire American system of justice.

These cases are before the Court on the question of whether the complaints state claims upon which relief may be granted. The Court has jurisdiction under 28 U.S.C. § 1343.

The acts complained of were plainly taken by each Defendant in his capacity of judicial officer and within the respective jurisdiction of each judge or justice. Clearly no Defendant has the ability to make and enter orders against Plaintiff except in the capacity of judicial officer.

The issue here really is whether judicial decisions rendered within a Court’s jurisdiction subject the judge to the wrath of the losing litigant’s suit. Centuries of common law decisions establishing absolute judicial immunity in such cases answer in the negative. Speaking to this very point, the United States Supreme Court said:

This immunity ... “is not for the protection or benefit of a ... judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences.” (Scott v. Stansfield, LR 3 Ex 220, 223 (1868), quoted in Bradley v. Fisher, supra [13 Wall 335] 349; note, at 350, 20 L.Ed. at [646] 650 [1872].) It is a judge’s duty to decide all cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants. His errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decision-making but to intimidation. (Emphasis supplied.)

Thus plaintiff’s complaints wholly fail to state legal claims for relief. Moreover, these complaints are not merely defective statements of claims (possibly curable by amendment) but rather are statements of defective claims. Accordingly, dismissal with prejudice is required.

Plaintiff apparently has a bent to sue every judge who decides a case against him. It isn’t clear whether Plaintiff’s motive in such suits is punishment or future intimidation, but it does appear that he has abused the justice system. The taxpayers ought not be penalized by such abuse.

Rule 11, Fed.R.Civ.P. provides for the award of fees and expenses against a party signing a complaint that is “not warranted by ... law ...” or is “interposed for any improper purpose, such as to harass____” I find the Plaintiff’s complaints in each of these actions fall within the quoted portions of Rule 11 and that Plaintiff’s violations are of such severity as to mandate imposition of sanctions against him. I further find that an award of $500 costs and fees in each captioned case is a reasonable sanction to recompense Montana and the United States, respectively, for their costs of defense.

IT IS HEREBY ORDERED that each captioned case is dismissed with prejudice to the Plaintiff, and

IT IS FURTHER ORDERED that the clerk shall forthwith enter final judgment of dismissal in each captioned case and that each shall provide that the named Defendant have judgment against Plaintiff for the benefit of each Defendant’s Sovereign for the sum of $500.

      . Each complaint seeks damages and other relief. For example, the prayer in CV 84-174-BU demands judgment "[A]gainst the named defendant as named in his official capacity for judgment on Counts I and II determining the actions were improper and in error”; "punitive damages” of $26,433,000; "three years in jail with no TV,” and other relief. In CV 84-174-BU, Plaintiff complains of Judge Battin because he dismissed the complaint in CV 84-59 wherein Lussy had sued Judge Paul G. Hatfield. The principal basis of Lussy’s suit against Judge Hatfield was that he had dismissed Lussy’s suit against one Verwolf and others.

      . Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288, 294 (1967). Cases to the contrary are clearly distinguishable and are based on special circumstances not present here. For example, attorneys’ fees were awarded in a civil rights suit against a state magistrate who incarcerated several individuals who were waiting trial for nonjailable offenses — an action clearly in contravention of the magistrate’s jurisdiction. Pulliam v. Allen, 466 U.S. 522, 104 S.Ct. 1970, 80 L.Ed. 565 (1984). Pulliam, however, did not overrule the settled principle that judges are absolutely immune from liability for damages for acts committed within their judicial capacity. Sunn v. Dean, 597 F.Supp. 79, 83 (N.D.Ga.1984). Other limited exceptions to the doctrine of judicial immunity have been carved out by federal courts. Dykes v. Hosemann, 732 F.2d 1488 (11th Cir.1984), Richardson v. Koshiba, 693 F.2d 911 (9th Cir.1982); however, there is even movement underway to eliminate these exceptions to the doctrine. See, Reynoldson, The Erosion of Judicial Immunity, 69 Judicature, No. 2, 114 (1985).


author: BUA, District Judge.

text:
    Frank ESPOSITO, Plaintiff, v. Patrick LEDDY, et al., Defendants.
    No. 84 C 5379.
    United States District Court, N.D. Illinois, E.D.
    Oct. 3, 1985.

      Frank Esposito, pro se.
    Anton R. Valukas, U.S. Atty. by Elizabeth M. Landes, Asst. U.S. Atty., Chicago, 111., appeared on behalf of federal defendants.
    David A. Arthur, Deputy Atty. Gen., Indianapolis, Ind., appeared on behalf of defendant Duckworth.
   ORDER

BUA, District Judge.

Plaintiff Frank Esposito is a federal inmate who, at the time relevant to this action, was confined at the Metropolitan Correctional Center in Chicago, Illinois (“MCC”). While at MCC, Esposito was defending himself against criminal charges then pending in Indiana. A co-defendant in the Indiana prosecution was incarcerated in the Indiana State Prison in Michigan City, Indiana (“ISP”). Esposito brings this civil rights action seeking damages against both federal and Indiana prison officials on allegations they interfered with his correspondence with his co-defendant in violation of his rights under the First, Fourth, Fifth, Sixth and Fourteenth Amendments. Before the Court are the motion for summary judgment of ISP Warden Jack R. Duck-worth, the motion to dismiss or, in the alternative, for summary judgment of federal defendants Patrick Leddy, Sandra Stu-by, Debra Kemp, and Dennis Luther, and Esposito’s cross motion for partial summary judgment.

The critical facts in this case are not in dispute. In January and February 1984, Esposito’s Indiana co-defendant Richard Kapachinski mailed several letters to Esposito at MCC. According to Esposito, the letters bore notations indicating they contained legal material for a co-defendant. Defendants Stuby and Kemp worked in the MCC mailroom. Although Esposito asserts both defendants handled his mail, only Stu-by remembers receiving any letters from Kapachinski. Stuby returned the letters to Kapachinski pursuant to a Bureau of Prisons’ Policy Statement conditioning the right of one inmate to correspond with another upon prior approval of the wardens of the two institutions where the inmate letter writer and recipient are confined. Under the regulation:

An inmate may be permitted to correspond with an inmate confined in another penal or correctional institution, providing the other inmate is either a member of the immediate family, or is a party or a witness in a legal action in which both inmates are involved. The Warden may approve such correspondence in other exceptional circumstances, with particular regard to the security level of the institution, the nature of the relationship between the two inmates, and whether the inmate has other regular correspondence. The following additional limitations apply:
(a) Such correspondence may always be inspected and read by staff at the sending and receiving institutions (it may not be sealed by the inmate); and
(b) The Wardens of both institutions must approve of the correspondence.

28 C.F.R. § 540.16 (1985). After returning the letters, Stuby sent Esposito notice of her action with respect to the Kapachinski correspondence. Stuby also refused to mail a letter Esposito attempted to send to Kapachinski at ISP. According to Esposito, Stuby interfered with his mail on instructions from Leddy, Esposito’s case manager at MCC.

On February 2, 1984, Esposito directed a written request to Stuby protesting the handling of the mail and asking Stuby to allow delivery of Kapachinski’s letters. Stuby informed Esposito that he had to obtain approval through his case manager in order to correspond with an incarcerated co-defendant. On February 15, Esposito invoked the administrative remedy procedure to obtain permission to correspond with Kapachinski. In response to Esposito’s administrative grievance request, Leddy contacted prosecuting authorities in Indiana and verified that Kapachinski was a co-defendant with Esposito. He thereupon authorized correspondence between Esposito and Kapachinski for legal purposes.

The resolution of his problem with federal authorities, however, did not end Esposito’s difficulties in communicating with Kapachinski. Although federal officials had approved correspondence between Esposito and Kapachinski, officials at ISP had not. Several letters Esposito had sent Kapachinski were returned with an explanation that Indiana law requires the Indiana Department of Corrections to give prior authorization for correspondence between offenders incarcerated in Indiana correctional facilities and those incarcerated in other correctional facilities. See Ind.Code § 11-11-3-2(b)(1) (1983 Supp.). Kapachinski had not received the necessary permission to correspond with Esposito. Pursuing his right under Indiana law, Kapachinski invoked the administrative grievance procedure to request authorization to correspond with Esposito. Although Duckworth initially denied Kapachinski’s request, his decision was overruled by the Director of Adult Institutions for the Indiana Department of Correction who granted permission to correspond on April 25, 1984.

Although the pro se complaint contains ten separate counts asserting in very general terms that defendants conspired to violate a wide array of Esposito’s constitutional rights, the facts alleged in the pleadings and arguments advanced in his briefs focus on the contention that defendants violated Esposito’s rights under the First, Fifth, and Fourteenth Amendments in the handling of his mail. In support of his claim, Esposito relies primarily on Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974). Although Martinez considered the constitutionality of California regulations restricting the personal correspondence of prison inmates, its precedential value and usefulness for analyzing the questions presented in this case are, as Esposito himself recognizes, somewhat limited. Martinez rests not on the rights of prisoners, but rather on the First Amendment rights of those free citizens who correspond with inmates. Id. at 409, 94 S.Ct. at 1809. By reviewing the constitutionality of the challenged regulations in terms of the rights of the nonprisoner correspondent, the Court explicitly left undecided the question whether and to what extent an individual’s right to free speech survives conviction and incarceration. Id. at 408, 94 S.Ct. at 1809. As both correspondents in this case are prisoners, Martinez is inapplicable. More apposite are subsequent Supreme Court opinions which examined the First Amendment rights of prisoners.

The standard that governs this case was set out in Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974).

We start with the familiar proposition that ‘[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.’ In the First Amendment context a corollary of this principle is that a prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system. Thus, challenges to prison restrictions that are asserted to inhibit First Amendment interests must be analyzed in terms of the legitimate policies and goals of the corrections system____

Id. at 822, 94 S.Ct. at 2804 (citations omitted). Moreover, as Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977) instructs, the courts must accord the professional and expert judgment of prison officials wide-ranging deference when determining whether their decision to restrict First Amendment rights is grounded upon legitimate correctional policies and goals. Such deference to the informed discretion of prison administrators is required in the absence of substantial evidence that they have unreasonably exaggerated their response to proper correctional concerns like security and order. Id. at 128, 97 S.Ct. at 2539.

Viewed in light of the standards set out in Pell and Jones, the restrictions imposed by the regulations at issue in this case do not violate Esposito’s rights under the First Amendment. Courts have with near unanimity rejected constitutional challenges to the facial validity of prison regulations that restrict inmate correspondence by imposing a burden on the prisoner to obtain prior approval for any written communication with inmates in another institution. Watts v. Brewer, 588 F.2d 646 (8th Cir.1978); Schlobohm v. U.S. Attorney General, 479 F.Supp. 401 (M.D.Pa.1979); Fowler v. Graham, 478 F.Supp. 90 (D.S.C.1979); Mitchell v. Carlson, 404 F.Supp. 1220 (D.Kan.1975); Williams v. Ward, 404 F.Supp. 170 (S.D.N.Y.1975); Lawrence v. Davis, 401 F.Supp. 1203 (W.D.Va.1975). But see Safley v. Turner, 586 F.Supp. 589, 596 (W.D.Mo.1984) (restrictions overbroad). Indeed, courts have specifically upheld against First Amendment scrutiny both the federal regulation that Esposito contests, Antonelli v. Stuby, 84 C 1344 (N.D.Ill. Dec. 21, 1984), and a state regulation that parallels the Indiana statute Duckworth relied upon in returning the mail Esposito sent Kapachinski. Peterson v. Davis, 415 F.Supp. 198 (E.D.Va.1976). Those courts accept the need for prison officials to regulate mail between prisoners, citing legitimate concerns that prisoners could use such correspondence to plan escapes or other criminal activities, to subvert the daily operations of the prisons by coordinating disruptive activities, or to perpetuate gang influence by enlisting cohorts to continue threats against inmates whom prison officials have transferred in order to protect against gang violence. In light of the weight the courts must ascribe to the informed judgment of those charged with the difficult task of running the prisons, this Court agrees that the restrictions embodied in the federal and Indiana regulations at issue in this case are not so broad or arbitrary as to violate Esposito’s limited right to expression under the First Amendment.

Although the restrictions the regulations place on inmate correspondence do not themselves violate the First Amendment, prison officials are not necessarily free to invoke these regulations to arbitrarily prohibit one inmate from writing another. In Storseth v. Spellman, 654 F.2d 1349 (9th Cir.1981), a jailhouse lawyer attacked on First Amendment grounds a state regulation prison officials invoked to prohibit all correspondence between him and an inmate “client.” While upholding the right of prison officials to closely regulate inmate mail, the Ninth Circuit held that application of the regulation to totally bar all correspondence between the two inmates violated Storsteth’s First Amendment rights. Id. at 1355-56. But Esposito cannot complain that defendants applied their regulations to him in an arbitrary or unconstitutional manner. Unlike the jailhouse lawyer in Storseth, Esposito was allowed to communicate by letter with his co-defendant once he gained approval from the appropriate authorities.

Esposito also contends that defendants violated his rights to due process by returning his mail without according him the necessary procedural safeguards. He requests the Court to extend the protections delineated in Martinez to prohibit prison officials from returning censored or prohibited mail before giving the inmate a right to contest the censorship decision.

As the Court noted earlier, Esposito’s reliance on Martinez is misplaced because Martinez considered only the rights of free citizens. Although a few courts have assumed that interference with mail between inmates is protected by the due process clause, see Storseth, 654 F.2d at 1355, these cases have not independently analyzed the question whether an inmate’s limited interest in corresponding with another inmate is a “liberty” interest subject to scrutiny under the Fifth and Fourteenth Amendments. This Court need not decide that question here. Assuming that such an interest exists, the procedural safeguards provided Esposito were sufficient to comply with the demands of due process.

Prison regulations placed Esposito on notice of the need to obtain prior approval before writing to an inmate in another institution. In contravention of the regulations, Esposito began corresponding with Kapachinski. When prison authorities intercepted the unauthorized mail, they returned the letters to the sender with notice of reasons for the nondelivery. They also informed the intended recipient of the rejected correspondence and the process required for obtaining permission to correspond with another inmate. When Esposito and Kapachinski routed their requests for permission to correspond with one another through proper channels, the requests were approved. Balancing the governmental interests of institutional security, order, and rehabilitation against the inmate’s interest in preserving First Amendment liberties, the procedures accorded Esposito met the minimum requirements necessary to ensure fairness.

Requiring a hearing before return of unauthorized interprison mail would serve no useful purpose. This is not a situation where, as in Martinez, prison officials are censoring letters at random. Instead, the disputed regulations require prior approval of all inmate-to-inmate communications. As the regulation itself is valid, the only facts to be determined are whether the letter is to or from another inmate and whether the inmates have obtained prior permission for their correspondence. These factual questions can readily be determined without the need for an administratively burdensome hearing every time the regulation is violated. Given the governmental interest in restricting potentially disruptive communication between inmates, it is not unreasonable to place the burden on the prisoner to get approval for writing to a fellow inmate before he sends his letter.

Esposito also contends that defendants hindered his correspondence with his co-defendant in violation of his right of access to the courts and his Sixth Amendment right to counsel. In order to state a claim for denial of access to the courts, plaintiff must show that the challenged conduct resulted in actual injury or prejudice to potential or pending litigation. Hudson v. Robinson, 678 F.2d 462, 466 (3d Cir.1982); Isaac v. Jones, 529 F.Supp. 175, 179 (N.D.Ill.1981); see Hoppins v. Wallace, 751 F.2d 1161, 1162 (11th Cir.1985); Grady v. Wilken, 735 F.2d 303, 306 (8th Cir.1984); Jones v. Franzen, 697 F.2d 801, 803 (7th Cir.1983); Bach v. Coughlin, 508 F.2d 303, 308 (7th Cir.1974). Similarly, a showing of prejudice is required to substantiate a deprivation of the right to counsel under the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Siverson v. O’Leary, 764 F.2d 1208, 1215 (7th Cir.1985). Esposito presents no facts to show that the interference with his mail prejudiced his defense. Nor is Esposito’s claim one where such prejudice may be presumed. Absent any allegations of prejudice, Esposito’s claims that he was deprived of counsel and access to the courts must fail.

CONCLUSION

For the reasons stated above, the Court denies Esposito’s motion for summary judgment and grants summary judgment in favor of defendants. An order of judgment shall enter dismissing this case in its entirety.

IT IS SO ORDERED.