CLAIMS “RETALIATION,” “BAD FAITH” NEGOTIATIONS; CONTINUES LAWSUIT FOR COURT ACCESS
by Sharon Rondeau
(May 18, 2018) — Copies of two letters received on Friday from Bledsoe County Correctional Complex (BCCX) inmate Robert Z. Whipple, III, #399615, indicate that not only has he not been released from prison after the Tennessee Board of Parole awarded him parole status on April 23, but he is also reviving a federal lawsuit against the Tennessee Department of Correction (TDOC) for reportedly acting in “bad faith.”
Whipple’s suit, filed on September 3, 2014, against the Department and styled Whipple v. Millay, initially alleged wrongful denial of access to the courts when he was housed at the Turney Center Industrial Complex (TCIX).
On January 5, 2017, Senior United States District Judge William R. Haynes, Jr. dismissed Whipple’s claims for injunctive relief. “Here, Plaintiff seeks injunctive relief challenging the conditions at the prison where he was formerly incarcerated, but Plaintiff has been transferred to a different facility and thus, his injunctive relief claims are moot,” Haynes wrote.
In April 2015, Whipple had been transferred to BCCX, where he was again denied access to the facility’s federal law library purportedly reportedly based on his residence in what is known as the “Annex.” Whipple had therefore requested that a Westlaw research terminal be installed in the Annex library, citing the U.S. Supreme Court opinion in Bounds v. Smith that state prison inmates are constitutionally entitled to access to legal materials or the assistance of a legal professional.
On September 21, 2017, Whipple’s claims against several of the original 22 defendants in Millay were dismissed by Chief U.S. District Judge Waverly D. Crenshaw, Jr. However, the lawsuit itself was not dismissed.
Following a number of further motions in the lawsuit, in February a Westlaw terminal was installed at the BCCX Annex. The following month, TDOC Commissioner Tony Parker signed a settlement agreement with Whipple in an apparent effort to avoid further litigation. At the time, Whipple wrote to this outlet and others that he was satisfied with the outcome and considered the matter closed.
However, after reporting several unexpected twists and turns which he believed were simply administrative miscommunications regarding the library’s hours of operation, Whipple unexpectedly found himself without access of any kind. In late March, prison personnel reduced the law library’s hours by “more than half,” Whipple reported, and his hours of employment precluded him from visiting during its remaining available hours.
One of the letters received Friday is addressed to U.S. District Court Judge Alistair Newbern, who had scheduled a May 7, 2018 phone conference with the Tennessee Attorney General’s office, to include Whipple, on his request to revive the lawsuit after he lost access to the Westlaw terminal through what he called “bad faith” actions on the part of BCCX staff. It is unclear from either of the two letters if the telephone conference took place.
In that letter, Whipple claimed that “not only are Defendants negotiating in bad faith, they are acting in concert with other TDOC employees to delay and interfere with Plaintiff’s parole.” He said he is therefore proceeding with the lawsuit “unless and until the State: (1) releases me forthwith; (2) enlarges BCCX Annex library hours to a minimum of 50 hours per week, with seven day-a-week access, (3) issues a formal apoplogy [sic] for their bad faith and retaliation; (4) reimburses my costs in this matter.”
He further explained to the judge, “I have revised my stance on acceptable settlement because the state and defendants have deliberately ‘lost’ paperwork and submitted incorrect address information in order to delay my release. This conduct is outrageous and will likely form the basis of new litigation if not corrected immediately.”
The second letter, addressed to U.S. District Court Judge Leon Jordan, informs the court that Whipple intends to proceed with a separate lawsuit filed last year against the Tennessee Board of Parole for failing to grant him parole when he allegedly met all of the requirements.
The first paragraph’s term “IFP” refers to the Latin “in forma pauperis,” meaning that as an inmate, he lacks the funds routinely required to file a federal lawsuit. Instead, by federal statute, the court deducts a certain amount each month from the inmate’s trust account until the $350 filing fee is satisfied.
Whipple indicated that in making the IFP request, he was aware that the court might require documentation of the monies currently in his account but that “trust fund officials” to that date did not honor his request to provide it.
In his May 11, 2018 letter to Leon, Whipple reiterated his claim that prison officials have “deliberately ‘lost’ paperwork and submitted incorrect address information in order to delay my release.”
Lastly, Whipple wrote that he is not seeking a TRO (Temporary Restraining Order) against the named defendants “but wanted the Court to be aware in case the retaliation continues.”