IN THE SUPREME COURT OF MISSISSIPPI

NO. 96-CA-00758-SCT

DAVID LYNN UNRUH

v.

STEVE PUCKETT, COMMISSIONER, MISSISSIPPI

DEPARTMENT OF CORRECTIONS

DATE OF JUDGMENT: 05/22/96

TRIAL JUDGE: HON. GRAY EVANS

COURT FROM WHICH APPEALED: SUNFLOWER COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: PRO SE

ATTORNEY FOR APPELLEE: JANE LANIER MAPP

DISTRICT ATTORNEY: FRANK CARLTON

NATURE OF THE CASE: CIVIL - POST CONVICTION RELIEF

DISPOSITION: REVERSED AND REMANDED - 6/25/98

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 7/16/98

BEFORE PRATHER, P.J., BANKS AND McRAE, JJ.

BANKS, JUSTICE, FOR THE COURT:

¶1. In this case we are called upon to address the appellant's claim that he should be allowed to serve

his state time in a federal facility. The basic question is whether the issues should be tried now or

later. The trial court said later is better and dismissed the appellant's complaint. Because we believe

this delay serves little purpose, we reverse and remand with directions to appoint counsel and

proceed with the consideration of the appellant's claim.

I.

¶2. At the time this matter arose David Lynn Unruh was serving time at Parchman for crimes in

Lowndes County as a habitual offender. The record indicates that during his incarceration from 1987

until April, 1988, Unruh served as an informant and witness for a federal investigation of a money

order scam at the Mississippi State Penitentiary. The investigation resulted in the indictment and

conviction of several individuals for conspiracy and mail fraud.
¶3. As a result of Unruh's participation in this case, the United States Attorney requested that he be

allowed to serve the remainder of his sentence in federal custody. Thomas F. O'Neil of the United

States Attorney's Office for the District of Maryland acknowledged that because Unruh's testimony

was the primary factor leading to the indictment and conviction of several inmates and prison

officials, his safety would be severely jeopardized if he remained in the Mississippi prison system. On

August 15, 1988, Unruh's transfer from the MDOC to federal custody was approved by the Interim

Commissioner of Corrections and the Governor, pursuant to Miss. Code Ann. § 47-5-175 (1993).(1)

On August 24, 1988, O'Neil requested that Unruh be transferred to the Talladega federal facility in

Alabama.

¶4. In an affidavit Unruh claims that he testified in support of the federal government's case in

exchange for complete immunity, assistance in obtaining parole from the Mississippi Parole Board,

admission to the Federal Witness Protection Program, and a promise that he would serve the

remainder of his Mississippi sentence under federal custody in Talladega. However, shortly after

arriving in Alabama, Unruh was transferred to the Lowndes County Jail in Columbus, Mississippi,

where he claims he was harassed and threatened by other inmates. On or about September 1, 1990,

allegedly fearing for his life, Unruh escaped from the county jail.

¶5. After his escape from the Lowndes County Jail, Unruh found his way to South Dakota where he

is currently serving time in the South Dakota State Penitentiary on an unrelated conviction. While

incarcerated there, Unruh submitted to the Mississippi Department of Corrections (MDOC) an

Offender's Relief Request form on September 28, 1995, and a Third Step Response form October 17,

1995, requesting an administrative remedy. The MDOC Administrative Remedy staff denied Unruh's

request, finding that the agreement between the U.S. Government and the State of Mississippi was

never consummated.

¶6. On November 13, 1995, Unruh filed a complaint in the Circuit Court of Hinds County,

Mississippi, against the MDOC. This case was later transferred to the Sunflower County Circuit

Court. In his complaint, Unruh requests that the MDOC be restrained from placing the appellant in

any Mississippi penal facility. Also, the complaint requests that Unruh be appointed counsel. The

MDOC submitted an answer to the complaint March 27, 1996, arguing that the complaint should be

dismissed without prejudice because Unruh is currently listed as an escapee. Additionally, the MDOC

claims that it was unaware of any agreement to allow Unruh to serve his sixteen (16) year Mississippi

sentences in another state.

¶7. On May 22, 1996, the circuit court acknowledged Unruh's cooperation with the federal

investigation in several money order scam cases; however, it ordered that the complaint be dismissed

because Unruh was not scheduled for release from the South Dakota prison until the year 2008. The

circuit court concluded that consideration of Unruh's complaint at this time would be useless and that

Unruh was free to submit a similar petition when released to the State of Mississippi.

¶8. The circuit court issued an order June 19, 1996, permitting Unruh to appeal this matter to the

Supreme Court of Mississippi in forma pauperis. A notice of appeal was filed on July 2, 1996.

II.

¶9. Unruh offers various theories in support of his claim that he should be allowed to serve his state
time in a federal facility. First, Unruh argues that the MDOC breached its contractual promise to

allow the appellant to serve the remainder of his state sentences in federal custody. Secondly, he

argues that MDOC officials have full knowledge of the danger and safety risks that would prevail if

Unruh was placed in a Mississippi penal facility. As such, Unruh claims that he would be subjected to

cruel and unusual punishment in violation of his state and federal constitutional rights if placed in a

Mississippi penal facility. The complaint requests that the MDOC be restrained from placing Unruh in

a Mississippi penal facility, and that the appellant be granted access to adequate legal assistance while

incarcerated in the South Dakota penitentiary.

¶10. The State takes the position that Unruh escaped after the agreement and that he should be

returned to Mississippi in order to face charges related to that and an earlier escape. It supports the

trial court's conclusion that the matter is not yet ripe for trial because no transfer to Mississippi is

imminent. It also asserts that the statute of limitations has run on Unruh's "contract" claim that he be

able to serve the remainder of his time in federal custody. Finally, it argues that the appeal should be

dismissed because Unruh was improperly allowed to appeal a civil action in forma pauperis.

¶11. The circuit court correctly found that Unruh's complaint was a post-conviction relief motion

requesting that he not be returned to the State of Mississippi pursuant to the transfer which was

approved by the MDOC and the Governor. As such, an appeal in forma pauperis is proper.

According to Miss. Code Ann. § 99-39-5(1)(g) (1994), appropriate grounds for relief under the postconviction relief act exist where any prisoner claims he is otherwise unlawfully held in custody. It is

true that Unruh is not currently being held in Mississippi due to his incarceration elsewhere.

However, but for this incarceration, he would be subject to imprisonment here. The State of

Mississippi has a "hold" on Unruh and he will be released to Mississippi immediately following his

present incarceration. Thus, Unruh can legitimately said to be in custody for purposes of § 99-39-

5(1)(g).

¶12. The State also argues that Unruh's complaint should be dismissed because Unruh is not

scheduled to be released from the South Dakota prison for almost twelve years. The State contends

that this Court should defer the matter to a later time because it is pointless to consider Unruh's

complaint until he is released from the South Dakota prison.

¶13. Unruh concedes that his release from the South Dakota penitentiary could be delayed for twelve

years or more, but the option for early release is also possible. Unruh has executed habeas corpus

proceedings for reversal of his South Dakota conviction and if early release is granted the appellant

would be subject to custody by the MDOC immediately. Thus, even if Unruh were granted a hearing

at that time concerning his safety as an inmate in the MDOC, it is probable that he could spend time

in the MDOC pending the outcome of such a hearing. It is foreseeable that Unruh could be put in an

unsafe situation if released early and not transferred to federal custody. Also, Unruh argues that

delaying consideration of his complaint could undermine his opportunity for a fair hearing because

witnesses could suffer memory loss of important facts or become unavailable because of death.(2)

¶14. An immediate resolution to the issue of where Unruh will serve his Mississippi sentence

minimizes the probability that Unruh will enter harm's way in the MDOC. The trial court decided that

Unruh could better try this case at a time when his release from South Dakota was nearer. The court

did not say that Unruh must await a return to state custody. We conclude that this delay serves no
real purpose. The events in question happened from seven to nine years ago. Waiting another ten

years to make the appropriate factual determinations and the correct application of the law frustrates

the quest for truth. Theoretically, Unruh will still be incarcerated in South Dakota and it will be just

as difficult to try these issues under those circumstances. The only factor which recommends this

course is the possibility that the problem will somehow go away before it has to be tried.

¶15. If the State of Mississippi wants to try Unruh for escape it should to arrange to get him here and

try him. If he is brought back for trial on escape, the matter of his future incarceration on the original

charges can be tried at that time. If he is not brought back for trial on the escape charges those

charges should be dropped and the court should proceed to determine the place of his ultimate

incarceration for the original charges for which he was serving time when he escaped.

III.

¶16. Unruh claims that he has been subjected to cruel and unusual punishment contrary to his state

constitutional rights under Miss. Const. art. III, § 28, and his federal constitutional rights under U.S.

Const. amend. VIII. This Court has stated that "in order to state a cognizable claim under the Eighth

Amendment, the complaint must allege acts or omissions on the part of the particular defendant(s)

amounting to deliberate indifference to the rights and welfare of the plaintiff." Bilbo v. Thigpen, 647

So. 2d 678, 691 (Miss. 1994); Yizar v. Ault, 462 S.E. 2d 141 (Ga. 1995); Farmer v. Brennan, 511

U.S. 825 (1994).

¶17. The decision to transfer Unruh from the MDOC to federal custody strongly suggests that prison

officials believed that Unruh's safety was compromised at the Mississippi State penitentiary.

Otherwise, they would not likely have granted the initial transfer and accepted responsibility for the

cost of housing Unruh in federal custody. However, the record suggests evidence that from

November, 1988, until September 1, 1990, Unruh was jailed in the Lowndes County Jail in

Columbus, Mississippi, and subject to threats, harassment and violence.(3) Furthermore, the record

indicates that counsel representing Unruh wrote several letters to MDOC officials explaining the

danger to his life if he was not transferred to federal custody. It is important to note that these events

occurred after Unruh's transfer to federal custody was approved between November, 1988 and

September, 1990. In addition, the record contains letters from the United States Attorney to the

MDOC requesting that the appellant not be placed in the Mississippi prison system because of the

danger from revenge-minded inmates.

¶18. The circuit court did not address Unruh's claim of cruel and unusual punishment. The

circumstances which led to Unruh's temporary incarceration in the Lowndes County Jail and

subsequent escape are not thoroughly described in the record. However, on remand, the issue of

whether Unruh's constitutional right to be free from cruel and unusual punishment has been violated

should be heard by the trial court.

IV.

¶19. In his complaint Unruh argues that he should be appointed legal counsel to facilitate his access

to the Mississippi courts. In particular, Unruh states that because he is incarcerated in the South

Dakota penitentiary he does not have access to Mississippi materials and case law, and that his ability

to articulate a legal basis for his contention here on appeal has been detrimentally affected. This
Court has acknowledged the requirement placed on state prison authorities to assist inmates in the

preparation and filing of meaningful legal papers by providing law libraries, or assistance from

persons trained in the law. Neal v. State, 422 So. 2d 747, 748 (Miss. 1982); Bounds v. Smith, 430

U.S. 817 (1977). Lewis v. Casey, 518 U.S. 343 (1996).

¶20. Unruh's access to Mississippi case law materials has been limited because the South Dakota

prison facility does not maintain Mississippi law materials. The issue is whether Unruh has been

provided adequate legal assistance by the MDOC. In Pruitt v. Hess, 923 P.2d 325 (Colo. Ct. App.

1996), the Colorado Court of Appeals, relying on the Supreme Court holding in Bounds, indicated

that a prison inmate has no absolute right to use a law library. However, an inmate has a right to ". . .

meaningful access to the courts to pursue constitutional claims." Pruitt, 923 P.2d at 327. The

foundation of Unruh's instant claim focuses on his transfer from the MDOC to federal authorities for

the remainder of his Mississippi sentence. In addition, Unruh asserts a constitutional claim under the

Eighth Amendment regarding his right to be free from cruel and unusual punishment. According to

the court in Pruitt, ". . . if a state chooses not to provide legal representation to inmates desiring to

assert such claims, that state must provide reasonable access to legal research materials for review by

the inmate." Pruitt, 923 P.2d at 327. See also Bounds v. Smith, 430 U.S. 817 (1977).

¶21. Unruh claims that his requests for legal assistance to the Mississippi State Penitentiary Law

Library have been ignored, and that the Mississippi State Law Library has advised him to provide

more detailed requests. Also, Unruh states that he cannot afford an attorney. Unruh has not been

provided adequate legal assistance and his access to the courts has been impeded, if not frustrated. It

is obvious that Unruh's claim will require a hearing. It follows that under these circumstances he

should be appointed counsel with respect to this claim pursuant to Miss. Code Ann. § 99-39-23(1)

(1994). Therefore, this Court directs that upon remand the trial court should appoint counsel to

proceed with the consideration of Unruh's claims.

V.

¶22. For the foregoing reasons, we reverse the order of the trial court and remand for proceedings

consistent with this opinion.

¶23. REVERSED AND REMANDED.

PRATHER, C.J., SULLIVAN, P.J., McRAE AND MILLS, JJ., CONCUR. SMITH, J.,

DISSENTS WITH SEPARATE WRITTEN JOINED BY ROBERTS, J. PITTMAN, P.J., AND

WALLER, J., NOT PARTICIPATING.

SMITH, JUSTICE, DISSENTING:

¶24. The majority writes that Unruh, convicted as a habitual offender in Lowndes County Circuit

Court, should be allowed to have his claim heard now that he is entitled to serve his state sentence in

a federal prison. The majority further directs the lower court to appoint counsel. On remand, the
majority directs the lower court to consider whether Unruh's Eighth Amendment rights concerning

cruel and unusual punishment have been violated due to his not being allowed to serve his state

sentence in federal prison.

¶25. The majority also holds that although Unruh is not currently being held in Mississippi, due to his

incarceration in South Dakota, but for this incarceration, he would be subject to imprisonment here.

Thus, the majority reasons that because Mississippi has a "hold" on Unruh for jail escape, Unruh can

legitimately be said to be in custody for purposes of Miss. Code Ann. § 99-39-5(1)(g). First, the

majority is stretching the statute in this regard, because the statute clearly only applies where a

prisoner can make out a valid claim that he is "otherwise unlawfully held in custody." He is not in

custody period in Mississippi, and he is admittedly lawfully held, serving a validly imposed sentence

in South Dakota, therefore he is not in "otherwise unlawfully held in custody." Id.

¶26. Next, there is nothing in this record, other than his own bald assertions, that Unruh and the State

of Mississippi ever reached any agreement for him to serve his entire Mississippi sentence in a federal

prison. Considering the letter executed by Governor Ray Mabus and Commissioner Charles Jackson

where Unruh was allowed to be held in Maryland, at Mississippi's expense, it is apparent that this was

only a temporary arrangement for convenience, since the federal money order scam cases that Unruh

testified in were conducted in Maryland. Neither Gov. Mabus nor Commissioner Jackson refer to any

permanent arrangement or agreement allowing Unruh's entire sentence to be served in federal prison.

While temporarily in a federal prison in Maryland, he was transferred to a federal prison in Alabama.

Ultimately, he was temporarily sent to Lowndes County Jail. Unruh was moved both times by federal

marshals, not Mississippi officials. Unruh did not seek any further assistance from federal or

Mississippi officials. Instead, he apparently escaped and fled to points unknown. He ended up in

South Dakota, where not surprisingly, he committed another felony, was convicted and sentenced to

prison there.

¶27. Unruh's claim of an alleged agreement is not supported by the record and is denied outright by

the State. Furthermore, the claim is time-barred under Miss. Code Ann. § 15-1-49, since more than

six years elapsed from the time of the so called promise, due solely to Unruh's jail escape and flight to

parts unknown. Unruh has only himself to blame. There is no evidence of any agreement other than

allegations unsupported by the record. The claim is time barred and alternatively without merit.

¶28. Finally, regarding the Eighth Amendment violation, the claim is clearly not ripe for adjudication,

if in fact any violation has occurred. State ex rel. Holmes v. Griffin, 667 So. 2d 1319, 1324 (Miss.

1995). Unruh is simply attempting to bring this issue because of a possible future action, i.e., ultimate

incarceration within the Mississippi penal system, which he claims might expose him to danger. If

Unruh was in fact incarcerated in Mississippi and could establish present danger, he would be entitled

to be heard on this issue. Helling v. McKinney, 509 U.S. 25 (1993). Instead, Unruh is incarcerated

in South Dakota for another felony, wholly unrelated to the previous mentioned federal trial, the

Mississippi convictions, or the hold placed upon him by Mississippi. Unruh admits that he is not

scheduled to be released by South Dakota for twelve years. By the time Unruh is due to be released

from his sentence there, a total of twenty years will have elapsed since his testimony in federal court

concerning the Mississippi prison money order scam. Whether he would indeed be subjected to

possible harm after twenty years is speculative at best, but is an issue that should only be decided by

the lower court when Unruh is released from South Dakota, and if and when, he is ever returned to
Mississippi. The lower court judge, in spite of there being no agreement, was certainly aware of the

possible need to consider Unruh's safety in the Mississippi prison system, if and when he is ever

returned to the state. The judge commented, "Were he to be returned to the Mississippi Penal System

in the near future this court would conduct an extensive hearing regarding the safety of petitioner

when incarcerated in the penal system." I find no error by the learned lower court judge and would

affirm.

¶29. I respectfully dissent.

ROBERTS, J., JOINS THIS OPINION.

1. Miss. Code Ann. § 47-5-175 provides:

The Commissioner of Corrections, with the concurrence of the Governor, is hereby authorized

to enter into agreements with appropriate federal agencies to provide housing and incarceration

of persons convicted by the courts of Mississippi and sentenced to the Mississippi Department

of Corrections by such courts under such terms and conditions as may be prescribed if a

determination is made that the best interest of the State of Mississippi would be served by

making such transfer.

2. Postal Inspector James Argubright, who was intimately involved in the Money Order Scam case

and Unruh's request for transfer to federal custody, has since died.

3. Although Unruh's affidavit indicates that he was transported to the Lowndes County jail by United

States Marshals, the fact remains the Interim Commissioner of Corrections and Governor approved

Unruh's transfer to federal custody because it was in the best interest of the State of Mississippi.