Appendix — Burrell v. McCray
Supreme Court brief1976
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APPENDIX er = =F
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Supreme Court of the United States
QOQcTOBER TERM. 1975
No. 75-44
ROBERT BURRELL. Petitio:
\
MILTON McCRAY. Respondent
~
SERGEANT V. 1). SMITH, etc, Petitioner
v.
MILTON McCRAY, Respondent.
GERALD McCLELLAN, er At... Petitioners,
2
JAMES E. X. STOKES. Respondent.
DR. HAROLD M. BOSLOW anp
DR. DOMINGO CC. SORONGQGON,. Petitioners.
\
JOHN WASHINGTON, Respondent.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE FOURTH CIRCUIT
PETITION FOR CERTIORARI FILED JULY 9, 1975
CERTIORARI GRANTED NOVEMBER 3. 1975
« INDEX
Note: The following opinions are contained in
the Petition for Writ of Certiorari
previously filed in this case and are
referred to in Petitioners’ Brief by the
designation “App.”:
McCray v. Burrell, 367 F. Supp. 1191 (D. Md.
ieee aa a te
SUPT snsiccitciviesidinchiniosnsiceisiinciieilenialiibataieaitedidaipsinieteinteds
Stokes v. McClellan, Civil No. 73-1182-B, Memor-
andum and Order (I). Md., April 1, 1974) ...
McCray v. Burrell, 516 F.2d 357 (4th Cir. 1975)
Docket Entries, McCray v. Burrell, No. 72-68-N
ON lilac a eae
iy SETINDD coctcsiesdsviniinitsiiaupsaiaetiiapemsdoniinmmnainamanaiaion
Complaint, McCray v. Burrell, No. 72-68-N (D.
aaa a a aa a
Suit, McCray v. Burrell, No. 72-68-N (D. Md.) ..
Suit, McCray v. Smith, No. 72-234-N (D. Md.) ..
Complaint for Compensatory and Punitive
Damages, McCray v. Burrell, No. 72-68-N ..
Answer of Mr. Burrel!. Hearing Officer, McCray
v. Burrell, No. 72-68-N (D. Md.) .....................
Answer of Sergeant V. D. Smith, McCray v.
Smith, No. 72-234-N (D. Md.) ........................
PAGE
ii
PAGE
Order to Amend Opinion of This Court Dated
October 16, 1973 and Directing Clerk to
Enter Judgment, McCray v. Burrell, No. 72-
68-N, and McCray v. Smith, No. 72-234-N (D.
RRR eeare sore sree it aoleer a aenn See a I aE noe Ono nee 27a
Judgment, McCray v. Burrell, No. 72-68-N (D.
i aaa ais 29a
Judgment, McCray v. Smith, No. 72-234-N (D.
a alae 30a
Docket Entries, Stokes v. McClellan, No. 73-1182-
I a elie 3la
Suit for Preliminary and Permanent Injunctive
Relief, Stokes v. McClellan, No. 73-1182B (D.
RES EAE Bs, oS a AM RR ee eae eRe I oe 32a
Brief, Stokes v. McClellan, No. 73-1182B (D. Md.) 37a
Order to Show Cause and Temporary Restrain-
ing Order, Stokes v. McClellan, No. 73-1182B
Bs RS CIR TAN ra heat ae OES ne ee 39a
Exhibits, Stokes v. ‘AcClellan, No. 73-1182B (D.
SFR ae ee mean! Ce oN ea eee 40a
Supplement to Prayer for Relief, Stokes v.
McClellan, No. 73-1182B (D. Md.) ................. 4la
Proceedings, June 12, 1973 — June 14, 1974,
McCray v. Smith, No. 72-234-N, and McCray
v. Burrell, No. 72-68-N (D. Md.) ..................... 43a
Docket Entries, Washington v. Boslow, No. 73-
I aera 238b
Complaint, Washington v. Boslow,. No. 73-1025-N
S| REIMER Ce eae een Deen wemee 239a
Judgment, Washington v. Boslow, No. 73-1025-N
i TIED “ciicctaseidehscennpniiainitliesetitadihia tii benitebiaatieaabiainiiiaiialee 244a
Proceedings, Washington v. Boslow, No. 73-1025-
-% 5 & | eee 245a
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Plaintiff's Exhibit No. 6, Washington v. Boslow,
Dee SUPE GUA. TRIMER ctcnitinsinetencensnstnsnennsinvevosien
Plaintiff's Exhibit No. 7, Washington v. Boslow,
Tg St ERS arene
Deposition of Dene L. Lusby, February 28, 1974,
Washington v. Boslow, No. 73-1025-N (D.
REET RSI Do Oe mee OD
Plaintiffs Deposition Exhibits ...............
Deposition of Robert J. Lally, February 28, 1974,
Washington v. Boslow, No. 73-1025-N (D.
a aaa ies
APPENDIX (Volume I)
Supreme Court of the United States
OcTOBER TERM, 1975
No. 75-44
ROBERT BURRELL, Petitioner,
v
MILTON McCRAY, Respondent.
SERGEANT V. D. SMITH, etc., Petitioner,
v
MILTON McCRAY, Respondent.
GERALD McCLELLAN, et AL., Petitioners,
y
JAMES E. X. STOKES, Respondent.
DR. HAROLD M. BOSLOW anpb
DR. DOMINGO C. SORONGON, Petitioners,
V
JOHN WASHINGTON, Respondent.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE FOURTH CIRCUIT
Ya
United States District Court for the
District of Maryland
McCray v. Burrell — 72-68-N
DOCKET ENTRIES
1972
January 19—(1) Complaint, and affidavit, filed.
January 19—(2) Order (Northrop, C.J.) directing
Summons be issued and to be served along with a copy
of complaint upon the Office of the Attorney General of
— and granting leave to file in forma pauperis,
iled.
January 19—(3) Summons issued. (Served — 1-21-
72).
February 9—(4) Supplemental Complaint, filed.
(copy to Attorney General of Maryland 2/16/72).
March 14—(5) Motion of Defendant, Warden, Mary-
land Penitentiary, to Enlarge Time within which to
Answer or Other wise Plead and Order (Northrop, C.J.)
gy 5 ase of leave to and including April 10,
Y/Z, filed.
ss April 11—(6) Motion of Defendants and Order of
Court (Northrop, C.J.) granting leave for Defendants to
oe or otherwise plead until and including 5/1/72,
iled.
May—(7) Joint Motion of Defendants in Civil 72-68-
N, 72-69-N, and 72-234-N to Dismiss or, in the alterna-
tive, Joint Motion for Summary Judgment, Memoran-
~~ in support thereof, and Exhibit 1, filed. (3 copies to
Juage).
May 31—(8) Notice of Plaintiff to take Deposition of
Robert T. Coulter, Executive Director of the Inmate
Grievance Commission, upon Oral Examination, filed.
June 6—(9) Motion of Plaintiff to record deposition
by other than stenographic means, Memorandum of
Points and Authorities in support thereof, and Order of
Court (Northrop, C.J.) granting leave as prayed, filed.
June 26—(110) Memorandum of Plaintiff inopposi-
tion to Defendants’ Motion to Dismiss and Motion for
3a
Summary Judgment, Exhibit 1 and 1A, filed. (2 copies
to Judge).
June 26—(11) Motion of Plaintiff for leave of Court
to filed amended complaint dropping one defendant and
adding two other defendants and reformulating the
issues, Exhibits A, B, and proposed Order, filed. (2
copies to Judge).
December 13—Status Conference held before Nor-
throp, C.J.
1973
February 14—(12) Appearance of Charles F. Mor-
gan, Esquire, as counsel for Plaintiff, Order, filed.
June 1—(13) Motion of Plaintiff and Order (Nor-
throp, C.J.) that Defendants Produce for Inspection and
Copying the Documents therein referred to, filed.
June 1—Status Conference held before Northrop, C.J.
June 6—(14) Writ of Habeas Corpus Ad Testifican-
dum Issued.
June 11—(15) Appearance of Michael S. Elder,
Esquire, as Counsel for Plaintiff, Order, filed.
June 11—Plaintiffs Oral Request for Jury Trial
Denied by the Court.
June 11—Hearing on Motion of Defendants to
Dismiss or, in the alternative, Motion for Summary
Judgment before Northrop, C.J.
June 11—Argument of Counsel.
June 11—Not concluded.
June 13—(16) Answer of Defendant Mr. Burrell,
Hearing Officer to Amended Complaint, filed.
June 13—Case tried before the Court (Northrop, C.J.).
June 13—Not Concluded.
June 14—Trial Resumed.
June 14—Held Sub Curia — Briefs to be submitted.
June 26—(17) Motion of Plaintiff for leave to amend
complaint, amended complaint, and Order (Northrop,
C.J.) granting leave to amend complaint, filed.
4a
July 11—(18) Petition of Plaintiff for Issuance of a
Subpoena at the expense of the United States ot
America and Order (Young, J.) nunc pro tunc thereon.
July 11—(19) Stipulation of Counsel that the Copies
of attached Orders of the Maryland Inmate Grievance
Commission listed herein may be considered as Plain-
tiffs Evidence. (Filed separately).
July 11—(20) Supplemental Memorandum of De-
fendant and Copies of Orders of Maryland Inmate
Grievance Commission attached.
August 17—(21) Motion of Plaintiff, Milton McCray,
for leave to produce additional evidence, and Attach-
ments. (cys, submitted).
August 17—(22) Order (Northrop, C.J.) Denying
Plaintiffs Motion for Leave to Produce Additional
Evidence. (Copies mailed 8-21-73 now).
October 16—(23) Opinion and Order of Court (Nor-
throp, C.J.) that the Defendants’ Motion to Dismiss be
and the same is hereby “Denied”; that plaintiffs claim
for relief be and the same is hereby “Denied”;
Attachments thereto. (Filed Separately).
October 24—Status Conference held before Northrop,
C.J.
November 2—(24) Order (Northrop, C.J.) Amending
Opinion of this Court dated October 16, 1973 and
Directing Clerk to Enter Judgment.
November 5—(25) Judgment (Clerk) Granting De-
fendant’s Motion to Dismiss, and Denying Plaintiff's
claim for Relief. (Copies mailed to Plaintiff and to
Counsel 11-5-73 now) closed.
November 30—(26) Notice of Appeal of Plaintiff.
(copies mailed by Clerk — 11-30-73).
December 12—(27) Motion of Plaintiff and Order
(Northrop, C.J.) directing Official Court Reporter to
prepare and furnish the transcript of proceedings, as
therein set forth, pursuant to U.S.C., Title 28, Section
753(f).
a
va
United States District Court for the
District of Maryland
McCray v. Smith — 72-234-N
DOCKET ENTRIES
1972
— 7—(1) Complaint, Affidavit and attachments,
March 7—(2) Order of Court (Northrop, CJ) granting
leave to file in forma pauperis, directing Clerk to docket
complaint without payment of filing fee; and also to
issue a summons as therein set forth, filed.
March 7—(3) Summons issued. (Served 3/9/72)
March 16—(4) Motion of Defendant and Order
(Northrop, CJ) granting leave to extend time for
Defendant to answer or otherwise plead until and
including 4/17/72, filed.
April 10—(5) Motion of Defendants and Order
(Northrop, CJ) granting leave to extend time for
Defendants to answer or otherwise plead until and
including 5/1/72, filed.
« * * * x *
May 1—(6) Joint Motion of Defendants in Civil 72-
68N, 72-69N and 72-234N to dismiss, or in the
alternative, Joint Motion for Summary Judgment,
Memorandum in support thereof, and Exhibit 1, filed. (3
copies to Judge).
baad * x * x ~
April 19—(5A) Motion of Plaintiff for Relief Re-
quested to be Immediately granted, etc., filed.
_May 1—(7) Notice (copy) of Plaintiff to take Deposi-
tion of Robert T. Coulter, Executive Director of the
Inmate Grievance Commission, upon Oral Examina-
tion, filed. (Original filed in 72-68-N).
June 6—(8) Motion of Plaintiff to record deposition
by other than stenographic means, Memorandum of
Points and Authorities in support thereof, and Order of
Court (Northrop, C.J.) granting leave as prayed, filed.
(Original filed in 72-68-N)
6a
Dec. 13—Status Conference held before Northrop, C.J.
1973
February 14—(9) Appearance of Charles F. Morgan,
Esquire, as counsel for Plaintiff, Order, filed.
June 1—Motion of Plaintiff and Order (Northrop,
C.J.) that Defendant Produce for Inspection and
Copying the Documents therein referred to, filed. (See
Paper No. 13 in Civil No. 72-68).
June 1—Status Conference held before Northrop, C.J.
June 6—(10) Writ of Habeas Corpus Ad Testifican-
dum Issued.
June 11—(11) Appearance of Michael S. Elder,
Esquire as Counsel for Plaintiff, Order, filed.
June 11—Plaintiffs Oral Request for Jury Trial
Denied by the Court.
June 11—Hearing on Motion of Defendant to Dismiss
or, in the alternative, Motion for Summary Judgment
before Northrop, C. J.
June 11—Argument of Counsel.
June 11—Not concluded.
June 12—Case tried before the Court, Northrop, C.J.
June 12—Oral Motion of Defendant to Dismiss heard
and Denied by the Court at the close of Plaintiffs
Evidence.
June 12—Not concluded.
June 13—(12) Answer to Complaint, filed.
June 13—Trial Resumed.
June 13—Briefs to be submitted on or before June 21,
1973.
July 11—Stipulation of Counsel that Copies of the
Attached Orders of the Maryland Inmate Grievance
Commission may be considered as Plaintiff's Evidence.
(See Paper No. 19 in Civil No. 72-68-N).
July 11—Supplemental Memorandum of Defendant
and Copies of Orders of the Maryland Inmate Griev-
ance Commission. (See Paper No. 20 in Civil No. 72-68-
N).
— or
7a
Aug. 17—Motion of Plaintiff, Milton McCray, for
leave to produce additional evidence, and Attachments.
(See Paper No. 21- Civil No. 72-68-N).
August 17—Order (Northrop, C.J.) Denying Plain-
tiffs Motion for Leave to Produce Additional Evidence.
(See Paper No. 22 in Civil No. 72-68-N).
October 16—(13) Opinion and Order of Court (Nor-
throp, C.J.) that defendants’ Motion to Dismiss be and
the same is hereby “Denied”; that plaintiff's claim for
relief be and the same is hereby “Denied”; Attachments
thereto. (Filed separately).
. : ened 24—Status Conference held before Northrop,
November 2—Order (Northrop, C.J.) Amending Opin-
ion of this Court dated October 16, 1973 and Directing
Clerk to enter Judgment. (See Paper No. 24 in Civil
Action No. 72-68-N).
November 5—(14) Judgment (Clerk) Granting De-
fendant’s Motion to Dismiss, and Denying Plaintiff's
Claim for Relief. (Copies mailed to Plaintiff and to
Counsel 11-5-73 now) Closed.
November 30—(15) Notice of Appeal of Petitioner.
(copies mailed by Clerk — 11-30-73).
December 2—Copy of Motion of Plaintiff and Order
(Northrop, C.J.) directing Official Court Reporter to
prepare and furnish the transcript of proceedings, as
therein set forth, pursuant to U.S.C., Title 28, Section
753(f). (Original filed in No. 72-68-N Civil Docket —
Paper No. 27).
8a
In the United States District Court
For the District of Maryland
Civil No. 72-68-N
Filed January 19, 1972
To the Honorable Judge of Court,
On January 1, 1972 Petitioner, Milton McCray’s cell
caught on fire, resulting from a lit cigarette falling from
his hand into some paper while he was asleep. When he
woke up his cell was blazing.
A officer ran up to the door with a fire extinguisher
but nothing would come out.
PETITIONER CONTENDS
1. That the officer deliberately brought the empty fire
extinguisher to his door knowing that it was empty. He
could not help but know it was when he picked it up.
2. That said officer after finding out that said
extinguisher was empty ran away and stayed for an
eternity. The fire extinguisher being empty almost cost
Petitioner his life.
3. That the Officers deliberately took their time
putting the fire out, causing him to suffer first degree
burns on the face, ears, hand, and arms. He is also
having lung trouble.
4. That he has been denied medical treatment for two
weeks.
5. That he has been laying on the floor suffering for
over two weeks because no doctor would treat him.
6. That each doctor that saw him referred him to
another doctor therefore no treatment was received,
administered.
7. That because of the doctors deliberate spiteful and
unprofessional negligence Petitioner has suffered much
pain.
Ya
8. That because of the deliberate negligence of the
persons responsible the empty fire extinguisher has
caused petitioner to suffer unnecessarily.
Wherefore Petitioner pray that this Honorable Court
will award him his immediate release and $500,000 in
damages.
MILTON McCRAy
I, hereby, certify due to his poverty, he is unable to
pay the cost of this proceeding or give security therefor.
MILTON McCray
10a
In the United States District Court
for the District of Maryland
Civil No. 72-68-N
(Filed February 9, 1972)
Captain Burrell and
Md. Penitentiary Medical Staff
Respondent.
SUIT
Jurisdiction 28 U.S.C. 1343 (3). 42 U.S.C. 1983
To the Honorable Judge of said Court:
On January 1, 1972, Petitioner, Milton McCray’s cell
caught on fire while Petitioner was in bed asleep, cell
door was locked, the cell was totally burnt, walls, bed,
mattress, books, papers, etc. it is said that Petitioner
was super-lucky to have gotten out alive.
Petitioner suffered burns of the face, eyes, nose, both
ears, arm and hand, and swallowed a very great deal of
smoke making breathing almost impossible. Petitioner
was rushed to the Hospital (institution) where an
Officer who has absolutely no authority as a doctor or
experience in Medicine, placed cold water pads on
petitioner’s face and gave him something red to drink
and then said lock him in the blue room, Capt. Barrell’s
orders, until the doctor is located. The blue room
consists of ten cells, the window is covered completely
with a metal plate, no sink. Petitioner was forced nude,
in severe pain, with only the hard cement floor to sleep
on Capt. Barrell ordered all shifts not to give Petitioner
anything until he saw the doctor.
All Saturday and Sunday petitioner laid on the hard
cement floor in unbearable pain, petitioner asked, even
begged the officer on all shifts for aid, each told him
that he must wait to see the doctor, petitioner asked for
cough medicine, each officer stated he couldn’t give him
anything until he saw the doctor, petitioner asked for a
bath, same answer.
lla
Tonight is Tuesday January 4, 1972, four (4) days
since petitioner was burnt, no doctor has examined
petitioner.
Treatment of this kind cannot, I repeat cannot be
tolerated, it must not be tolerated, it is the duty of this
court to bring an end to the cruel unusual and barbaric
treatment, punishment perpetrated vindictively without
care or concern for helpless inmates who are completely
at the mercy of captains such as Capt. Burrell who acts
out of his authority arbitrarily and capriciously, to, the
detriment of inmates under his care.
The inmates of this institution through the petitioner,
Milton McCray, in this petition entreat this Honorable
court to hear this petition and bring an end to this cruel
treatment.
Petitioner contends
1. That he was completely refused, cruelly spitefully
refused and unconstitutionally refused medical treat-
ment for serious burns of face, eves, arms, hands, both
ears, and chest.
2. That he was placed in the blue room nude in pain
with only the cement floor to sleep on, with no toilet, no
sink, no hot or cold water, no fresh air inlet, no stale air
outlet.
3. That he has not been permitted a bath since 29th
of December 1971, still has had no bath or is permitted
one.
4. That his entire body is filled with smoke in side
and out and no one cares.
5. That he is being held incommunicado, refused
legal papers, books, pen and writing paper for all
purposes including court, attorney, Warden, Commis-
sioner, Secretary of Public Safety.
6. That he was refused food.
7. That his food and his Black Muslin Religion food
is improperly prepared.
8. That a doctor should be on duty twenty-four hours
a day in an institution of this capacity.
l2a
9. That a particular day is a Holiday is the most
absurd, preposterous excuse for this institution not to
have a doctor on duty or call.
10. That if it had not been for inmates illegally
getting a call out to petitioner's Mother and Wife, and
petitioner’s Mother immediately calling Capt. Burrell
and laying him out, petitioner would have been left to
die in the blue room.
11. That his face was burnt so badly, he could hardly
recognize his self nothing short of a plastic surgery will
repair the damage done to his face by Capt. Burrell’s
contributory negligence, the institution contributory
negligence.
Petitioner prays that this Honorable Court immedi-
ately order him expert medical treatment, and that
Captain Burrell be personally penalized for his cruel
and spiteful act.
The State should not be solely responsible for
deliberate, spiteful act on the part of its’ officers.
Petitioner should be released from custody and a sum
of $500.000 be awarded to him for the severe pain and
misery he has suffered, is suffering and will suffer, as
the result of the gross contributory negligence he is the
victim of.
MILTON McCray,
Petitioner, Milton McCray.
I, Milton McCray, hereby certify that I am indigent,
without funds to pay for any of the proceedings
involved in processing this petition.
Mitton McCray,
Milton McCray 110-563.
~- Cie en Re oe ee =
l3a
In the United States District Court
for The District of Maryland
Civil No. 72-234-N
Milton McCray (110-563)
Uv
Sergeant V. D. Smith (Badge No. 153)
Md. Penitentiary
(Filed March 7, 1972)
SUIT
Jurisdiction exist under 28 u. 5. c s 1343(3). Which
Provides: “The District court shall have original
Jurisdiction of any civil action authorized By law to be
commsed by any person:
‘(3) To redress the deprivation under the color of any
state law, statute, ordinance, Regulation, custom or
usage, of any right, privileged or immunity secured by
the constitution of the U.S. or by any act of congress
provided for equal rights of citizens or of all person
within the jurisdiction of the United States:
See: Sostre v. McDinnis, F.2d — (2 Cir. 1971):
Johnson v. Avery, 393 U.S. 483 (1969) Lee v. Washing-
ton, 390 U.S. 333 (1968); Houghton v. Shafer, 392
U.S. 639 (1968); Sewell v. Pegelow, 291 F.2d 196, 198
(4).
Cir. (1967). exhaustion of state, legal or equitable
remedies is not Necessary. Sostre v. Rockefellow
(1970): Gordon vy. Fitzharris, (1966). Sostre v.
McAinnis F.2d (2 Cir. Feb, 24, 1971)
l4a
Statement of Facts
On Wednesday, November 17, 1971 Petitioner, Milton
McCray, an inmate at the Maryland Penitentiary was
severely beaten by Major Mills and five or six Officers
in the isolated office with a telephone book and Life,
Look Magazines about the body and head than stripped
him of his clothing and throw Petitioner in a cell which
was fill with lice and lousy cell. He was taken from said
cell and placed in the hole without a Mattress or
blanket necessitating sleep on the cold hard concrete
floor. Sergeant Smith refused to let McCray see the
Doctor.
On Thursday November 18, 1971 the assist Warden
was notified. McCray explained what had happened.
The assist Warden order him sprayed and deliced,
taken out of the hole and given law books, Sergeant
Smith told the Warden to his face that he was not going
to do nothing for me.
On Friday November 19, 1971 the Sergeant still
refused to give me my legal, papers, pen etc. and my
medication. He refused to call the Doctor concerning the
headaches resulting from being beaten by the Major
and officers with the phone book and magazines.
McCray’s headaches became so unbearable, he could
not stand it so he started calling the officer for some
kind of medical attention, instead six officer’s led by
Sergeant Smith who order me dragged out of my cell
down four flights of stairs to the hole where all clothing
was ripped of and I was dragged into the hole nude,
Sergeant Smith then ask me if I still wanted a shower, I
said yes. He went away and came back with two
buckets of water and threw them on me saying now
sleep in it”, I almost froze standing in the water for
seemingly an eternity, Finally he got an inmate to mop
the water up and give me a mattress to stand on until
the water dry however he would not give me any thing
to dry off with or clothing to put on. Nor would he turn
that fan off me. I waited until the shift changed hoping
that I could get some clothing, a blanket and the fan cut
off. The officer on the next shift refused to give me a
blanket or clothing however after many, many request
l5a
the officer did turn the fan off which made the coldness
a little more bearable nevertheless at about ten or
eleven o'clock I could stand it no longer. Therefore I tore
a hole in the filthy mattress and slide between the
cotton to get and keep warm. I went to sleep. Monday
November 22, 1971 still no medicated shower, law
books, tooth brush, paste, etc. Tuesday November 23,
1971 I finally saw the Doctor who inquired into the
original reason for me being on segregation of Capt.
Beaver and Sergeant Smith no one knew, the Doctor
ordered showers daily and X-rays taken. Wednesday
November 24, 1971 no showers, legal books, paper
stamps, tooth brush, paste, etc. but I did received a X-
ray of the chest, head and side, result unknown, I
received thirty days on segregation and the lost of 10
days good conduct and working time for tearing the
mattress to keep warm. Which is very unreasonable
considering Hon. Judge Roszel Thompson orders in
Bundy v. Cannon (4th District 1971).
Thursday 25, 1971 refused legal books, paper, pen, etc.
tooth paste, brush, etc. and medicatal shower, etc.
The following conditions treatment, separately and
together, amount to violations of my
constitutional rights
(1) segregation and solitary confinement.
(A) that petitioner were not afforded a proper admin-
istrative hearing conducted according to provi-
sions embodying procedural due process before
the mattress infraction or after.
(B) Petitioner is totally and separately day and nite in
a unventilated and unheated cell approximately
(7" X 9”) for approximately (23'% hours) a day
seven days a week.
(C) each cell is without hot water.
(D) the cell and their contents are rarely cleaned and
as result are encrusted with dirt and waste
materials,
(E) Mattresses are filthy, ragged and odered.
(F)
(10)
l6a
Each cell is infested with cockroaches and
unknown lugs, one cell I from personal experience
know has lice. Consequently petitioner suffer from
roach etc. bites,
Petitioner was brutally attacked and assaulted by
Major Mills and Staff Personnel,
petitioner is denied the opportunity to maintain
physical health.
Petitioner was spitefully denied medical attention
by Major Mills and Sergeant Smith,
petitioner was denied access to the courts for a
prolonged period of time.
Negligent and unsanitary handling and serving
of food and failure to provide adequate diet in
quantity and quality,
Unreasonable and arbitrary restriction on visit-
ing.
Unreasonable censorship of mail.
No radios permitted and no earphone are issued.
Ninety five percent of the earphone boxes are
disconnected resulting in very little awareness of
what is going on in the world.
Petitioner was forced to serve (30) days on
segregation for minor rule infraction in deliberate
violation of the order of Hon. Judge Roszel
Thompson see Brady et al. v. Cannon et al., (Daily
Record March, 2, 1971).
Petitioner is suffering physical and mental
inhuman treatment under aforesaid conditions.
Therefore petitioner prays injunctive relief, and
physical release, petitioner further pray pursuant
to 42 U.S.C.
(1983) and (28 U.S.C.) (1343) (3) damages of
$500.00 for the cruel attack upon him by Major
Mills and Staff personnel maliciously vindictively
and spitefully, without Justification which re-
sulted in constant severe headaches and blackout
a
_—_—_
es
17a
and his refusal to permit petitioner medical
treatment. Petitioner became sick, sore and
disordered and so remained for a long time. to wit:
from thence hitherto up to and including this and
I Milton McCray hereby certify that I am indigent
without sufficient fund to pay for competant
counsel to prosecute the petition or any or the
proceeding involved in processing this petition,
MILTON McCray,
In proper person
Milton McCray 110-563
If there is any doubt as to whether violations of the
fourteenth amendments by the states officers or
agencies, acting in their official capacities, maybe
enjoined by the Federal courts. One need only turn to
Baker v. Carr, 369 U.S. 186, 8LS ct 691, 7 L. Ed. 2d 663
(1962) and it progeny E. G. Well v. Rockefeller, 273 F.
Supp 184 (S.d. N.Y.) Aff'd 389 U.S. 421.88 Sct. 578 19 L.
Ed 651 (1967).
Then there is if any doubt as to whether a federal
court can award damages against Officials in their
Official capacities despite the eleventh amendment.
See: Thompson Jordan v. Fitzharris 257, F. Supp 674
(1966) C. C. Governor.
Secretary of Public Safety Mr. Lally
Warden
Major Mills
Sgt. Smith
United States District Court for Maryland
MILTON McCray,
el sign here Milton McCray 110-
18a
In the United States District Court
for the District of Maryland
Milton McCray
954 Forrest Street
Baltimore, Maryland 21202,
Plaintiff,
U
Robert Burrell
Maryland Division of Correction
920 Greenmount Avenue
Baltimore, Maryland 21202,
Defendant.
Civil Action No. 72-68-N
COMPLAINT FOR COMPENSATORY AND
PUNITIVE DAMAGES
JURISDICTION
1. Jurisdiction of the Court is invoked pursuant to
and in accordance with the provisions of Title 28,
United States Code, §§ 1343(3) and (4), Title 42, United
States Code, § 1983, and the Constitution of the United
States in particular, but not limited to the Eighth, and
Fourteenth Amendments thereto.
2. The matter in controversy exceeds, exclusive of
interests and costs the sum or value of Ten Thousand
Dollars ($10,000.00).
PARTIES
3. The Plaintiff, Milton McCray, is a citizen of the
United States, over twenty-one years of age and a
resident of Maryland. He is presently incarcerated at
the Maryland Penitentiary, 954 Forrest Street, Balti-
more, Maryland 21202.
19a
4. Defendant Robert Burrell is employed by the
Division of Correction as a hearing officer. During all
times mentioned herein, Defendant Burrell was a
captain at the Maryland Penitentiary and was respon-
sible for supervising the day shift of the Marvland
Penitentiary.
NATURE OF THE ACTION
5. This action, which is authorized by Title 42,
U.S.C., § 1983, seeks to recover compensatory and
punitive monetary damages for the deprivation under
color of law of the rights, privileges and immunities
guaranteed by the United States Constitution to the
Plaintiff. Specifically, the Plaintiff challenges the
constitutionality of the acts of Defendant Burrell, who
acted willfully, maliciously and intentionally as well as
negligently and recklessly and without authority of
law, and with the specific intent to deprive the plaintiff
of his right to:
a) Be free from physical abuse and cruel and
unusual punishment as guaranteed by the Eighth and
Fourteenth Amendments to the United States Constitu-
tion:
b) Be free from arbitrary punishment and abuses as
guaranteed by the due process clause of the Fourteenth
Amendment;
c) The privileges, rights and immunities afforded by
other provisions of the United States Constitution.
STATEMENT OF CASE
6. On the morning of January 1, 1972, the Plaintiff
Milton McCray was confined in a segregation cell
(#325) on the third tier of the South Wing of the
Maryland Penitentiary. At approximately nine a.m.,
several Correctional Officers working in the South
Wing of the Maryland Penitentiary noticed that the
Plaintiff's cell was on fire. Although, they attempted to
put the fire out, the fire extinguisher they were using
would not function properly and therefore they had to
wait until another correctional officer, Mr. Wharton,
20a
arrived with an extinguisher that was functioning
properly. Once the fire was under control, Correctional
Officers Jackson and Wharton were instructed by
Defendant Burrell, who on January 1, 1972, was a
captain and the supervisor of the day shift in the
Maryland Penitentiary, to escort the Plaintiff to the
medical dispensary unit so that the nurse could check
him for any injuries and then to make sure that the
Plaintiff was placed in a medical observation cell.
7. At the medical dispensary unit, the Plaintiff was
seen by a nurse, Mrs. Weber and a correctional officer,
Mr. Martin, who applied cold compresses to his eyes
and ears and bacitracin ointment to all areas stated by
the Plaintiff to have been burned or injured.
8. The Plaintiff was then, pursuant to the orders of
Defendant Burrell, placed nude in a bare cement “strip”
cell which had no mattress, blankets, or proper hygienic
facilities (a strip cell containing only a hole for a toilet
and no sink).
9. Later that morning, Dr. Holljes, a Maryland
Penitentiary physician, was advised of Plaintiffs
‘ondition and he instructed the nurse to call Dr.
Stewart, another Penitentiary physician. However, Dr.
Stewart could not be reached at his home or office and
thus the Plaintiff was not seen or examined by a doctor
during that day January |, 1972, or the following day.
10. Thereafter, on January 3, 1972, the Plaintiff was
finally released from this “strip” cell by Dr. Campbell, a
Maryland that he was able to see a Dr. William Gould,
a dermatologist, who that he was able to see a Dr.
William Gould, a dermatologist, who, diagnosed his
injuries as first degree burns with some secondary
pyoderma on the face.
11. As a direct result of the unlawful refusal of the
l)efendant to insure that a doctor is on duty at all times
at the Maryland Penitentiary, or in the alternative to
insure that the injured Plaintiff was taken to a doctor or
hospital, outside of the Penitentiary, the Plaintiff was
caused to suffer extreme physical pain, emotional
anguish and injury to his face, ears, arms and hands.
Zila
12. In addition, the unlawful and intentional actions
of Defendant Burrell, who is being sued individually
and in his official capacity, caused the injured Plaintiff
to be placed in a cold barren cell without any clothing.
As a direct result of these unlawful acts, the Plaintiff
was caused to suffer additional physical pain, emo-
tional anguish; and his injuries to his face, ears, arms
and hands were made more severe.
13. The unlawful acts detailed in the above para-
graphs, were intended by the Defendant to deprive the
Plaintiff of due process and equal protection of the law,
and the privileges and immunities of citizens secured by
the Fourteenth Amendment to the Constitution of the
United States. Furthermore, these acts which were
carried out under color of state law constituted cruel
and unusual punishment in abrogation of the Eighth
Amendment to the United States Constitution.
First CLAIM
14. The failure of the Defendant to insure that a
doctor and reasonable medical attention was accessible
to Plaintiff when his physical condition so required;
and the unlawful action of the Defendant of ordering
the injured Plaintiff to be placed in a cold barren
“strip” cell without any clothing or bedding has denied
the Plaintiff's right to be free from arbitrary denials of
life and liberty in contravention of the Fourteenth
Amendment to the United States Constitution.
SECOND CLAIM
15. The failure of the Defendant to provide that a
doctor would be accessible to the Plaintiff, when his
condition so required, and the placement of the Plaintiff
in the “strip” cell when the Defendant knew that the
Plaintiff was injured and in great pain and that the
cold cement cell would aggravate these injuries was a
denial of the Plaintiffs right to be free from cruel and
unusual punishment in violation of his Eighth Amend-
ment rights.
22a
WHEREFORE, Plaintiff respectfully requests this
Court to order that Defendant Burrell compensate the
Plaintiff in the amount of Five Thousand Dollars
($5,000.00) for compensatory damages and Ten Thou-
sand Dollars ($10,000.00) for punitive damages, plus the
costs of this action, and to grant such other relief that
this Court deems necessary or appropriate.
Respectfully submitted,
CHARLES F. MORGAN,
MICHAEL S. ELDER,
341 North Calvert Street
Baltimore, Maryland 21202
539-5340,
Attorneys for Plaintiff.
2a
In the United States District Court
for the District of Maryland
Civil Action No. 72-68-N
Milton McCray,
Plaintiff.
Uv.
Mr. Burrell, Hearing Officer.
Mr. Gerald H. McClellan, Warden,
Maryland Penitentiary,
James Jordan, Commissioner, Division of Correction,
and
Robert J. Lally, Secretary, Department of Public Safety
and Correctional Services,
Defendants.
ANSWER OF MR. BURRELL, HEARING OFFICER
Mr. Burrell, Hearing Officer, by his attorneys,
Francis B. Burch, Attorney General, John P. Stafford,
Jr. and Gilbert Rosenthal, Assistant Attorneys General,
in answer to the claim filed by the Plaintiff, respectfully
states in answer to the Statement of Case filed in the
Amended Complaint, respectfully states the following:
First Defense
The complaint fails to state a claim against Defend-
ant, Mr. Burrell, upon which relief can be granted.
Second Defense
1. In answer to Paragraph 10, the Defendant alleges
that he was not personally present, and therefore is
without knowledge or information sufficient to form a
belief that to the truth of the allegations contained in
Paragraphs 10, 11, 13, 14 and 15.
2. In answer to Paragraph 12, the Defendant believes
that he may have ordered the Plaintiff to be placed in a
24a
cell which had no mattress or blankets, but the
Defendant denies that there were improper hygenic
facilities.
3. In answer to Paragraph 16, the Defendant denies
that he acted in an unlawful or intentional action to
cause the Plaintiff to suffer physical pain, emotional
anguish, or any other allegation contained in Para-
graph 17 of the Complaint.
WHEREFORE, the Defendant, Mr. Burrell, prays the
above action to be dismissed.
FRANCIS B. BURCH,
Attorney General,
JOHN P. SPAFFORD, JR.,
Assistant Attorney General,
GILBERT ROSENTHAL,
Assistant Attorney General
One South Calvert Building
Baltimore, Maryland 21202
Telephone — 383-3737
Attorneys for Defendants.
! HEREBY CERTIFY that on this day of June,
1973, a copy of the foregoing Answer of Mr. Burrell,
Hearing Officer, was mailed, postage prepaid, to
Charles F. Morgan, Esq., 341 North Calvert Street,
Baltimore, Maryland 21202, Attorney for Plaintiff.
GILBERT ROSENTHAL,
Assistant Attorney General.
25a
In the United States District Court
for the District of Maryland
Civil Action No. 72-234-N
Milton McCray,
Plaintiff,
v.
Sergeant V. D. Smith (Badge No. 153 — Maryland
Penitentiary),
Defendant.
ANSWER OF SERGEANT V. D. SMITH
Sergeani V. D. Smith (Badge No. 153 — Maryland
Penitentiary) by his attorneys, Francis B. Burch,
Attorney General; John P. Stafford, Jr. and Gilbert
Rosenthal, Assistant Attorneys General, in answer to
the claim filed by the Plaintiff, respectfully states in
answer to the Statement of Case filed in the Amended
Complaint, respectfully states the following:
First Defense
The Complaint fails to state a claim against Defend-
ant, Sergeant V. D. Smith, upon which relief can be
granted.
Second Defense
That in each and every allegation in the Plaintiff's
Complaint, which the Defendant, Sergeant V. D. Smith,
has personal knowledge, the Defendant denies each and
every allegation contained in the Complaint.
26a
WHEREFORE, the Defendant, Sergeant V. D. Smith,
prays the above action to be dismis <d.
FRANCIS B. BURCH,
Attorney General
JOHN P. STAFFORD, JR.,
Assistant Attorney General,
GILBERT ROSENTHAL,
Assistant Attorney General,
One South Calvert Street,
Baltimore, Maryland, 21202.
I HEREBY CERTIFY that on this day of June,
1973, a copy of the foregoing Answer of Sgt. V. D.
Smith, was mailed, postage prepaid, to Charles F.
Morgan, Esq., 341 North Calvert Street, Baltimore,
Maryland 21202, Attorney for Plaintiff.
GILBERT ROSENTHAL,
Assistant Attorney General.
Jia
In the United States District Court
For the District of Maryland
Civil Action No. 72-68-N
Civil Action No. 72-234-N
— -- —— |
Milton McCray
v.
Robert Burrell
Milton McCray
v.
Sergeant V. D. Smith
[Sergeant Bernard D. Smith]
(Badge No. 153)
ORDER TO AMEND OPINION OF THIS COURT
DATED OCTOBER 16, 1973 AND DIRECTING
CLERK TO ENTER JUDGMENT
IT IS, this 2nd day of November, 1973, ORDERED
that the Opinion of this Court filed in the captioned
cases on October 16, 1973, BE and the same HEREBY
is amended and changed in the following manner:
Page 61 — seventeenth (17th) line from top of page.
The word “DENIED” shall be stricken and the
word “GRANTED” shall be substituted in lieu
thereof, so that the sentence will read:
“1. That the defendants’ Motions to Dismiss in
Civil Actions Nos. 72-68-N and 72-234-N be, and the
same hereby are, GRANTED.”
28a
AND IT IS FURTHER ORDERED that the Clerk of
this Court shall enter judgment accordingly.
EDWARD S. NORTHROP
Edward S. Northrop,
Chief United States
District Judge.
29a
In the United States District Court
For the District of Maryland
Civil Action No. 72-68-N
Milton McCray
v.
Robert Burrell
JUDGMENT
In accordance with the Opinion of the Court dated
October 16, 1973, filed in the above case, and Amended
by Order of the Court dated November 2, 1973, it is
ORDERED AND ADJUDGED:
1. That the Defendant's Motion to Dismiss be, and
the same hereby is, GRANTED;
2. That the Plaintiff's claim for relief be, and the
same is, DENIED.
Dated at Baltimore, Maryland this 5th day of
November 1973.
PAUL R. SCHLITz,
Clerk.
By: EArL L. GRAHAM,
Deputy Clerk.
30a
In the United States District Court
For the District of Maryland
Civil Action No. 72-234-N
Milton McCray
v.
Sergeant V. D. Smith
(Sergeant Bernard D. Smith)
(Badge No. 153)
JUDGMENT
In accordance with the Opinion of the Court dated
October 16, 1973, filed in the above case, and Amended
by Order of the Court dated November 2, 1973, it is
ORDERED AND ADJUDGED:
1. That the Defendant’s Motion to Dismiss be, and
the same hereby is, GRANTED;
2. That the Plaintiff's claim for relief be, and the
same hereby is, DENIED.
Dated at Baltimore, Maryland this 5th day of
November 1973.
PAUL R. SCHLITzZ,
Clerk
By: Ear L. GRAHAM,
' Deputy Clerk.
sla
United States District Court for the
District of Maryland
Stokes v. McClellan — 73-1182-B
DOCKET ENTRIES
1973
December 4—(1) Complaint, Affidavit, and Exhibits
A through G.
December 4—(2) Order of Court (Blair, J.) granting
leave to file in forma pauperis and directing issuance of
summons by U.S. Marshal with copy of complaint on
the Attorney General of Maryland and on the defend-
ants named in the complaint.
December 5—(3) Summons issued. (All served)
December 17—(4) Supplement of petitioner to Prayer
for Relief and attachment.
December 21—(5) Motion of defendant for enlarge-
ment of time and order (Blair, J.) Dated December 27,
1973 that the time for filing responsive pleadings, etc. is
hereby extended to and including January 10, 1974.
(Cys. mailed)
1974
January 11—(6) Motion of defendant to dismiss or
in the alternative motion for summary judgment and
memorandum in support thereof. (Cys. submitted)
’ March 1—(7) Memorandum (Blair, J.). (Cys. mailed
as directed)
March 1—(8) Order (Blair, J.) dismissing complaint
without prejudice to its reinstitution upon exhaustion of
remedies available through the Maryland Inmate
Grievance Commission as therein more particularly set
forth. (Cys. mailed as directed) Closed
March 15—(9) Notice of Appeal of Petitioner. (copies
mailed by Clerk — 4-16-74).
32a
In the United States District Court
for the District of Maryland
Civil No. ——
(To be supplied by Clerk of Court)
James E. X. Stokes,
Plaintiff,
v.
Gerald McClellan, individually and in his official
capacity as Warden of Maryland Penitentiary, and
the Mail Censor, individually and in his or her
official capacity as Mail Censor of the Maryland
Department of Corrections,
Defendants.
SUIT FOR PRELIMINARY AND PERMANTENT
INJUNCTIVE RELIEF
(Filed December 4, 1973)
Demand for Jury Trial
1. JURISDICTION
1. This is a civil action authorized by 42 U.S.C. Sec.
1983 to redress the deprivation, under color of State law,
of rights secured by the Constitution of the United
States. The Court has jurisdiction under 28 U.S.C. Sec.
1343. Plaintiff seek declaratory relief pursuant to 28
U.S.C. Secs. 2201 and 2202.
II. PLAINTIFF
2. Plaintiff James E. X. Stokes was (is), at all times
mentioned herein, a prisoner of the State of Maryland,
in the custody of the Maryland Department of Correc-
tions. He is currently confined at the Maryland
Penitentiary, 954 Forrest Street, Baltimore, Maryland
21202.
33a
III. DEFENDANTS
3. Defendant Gerald McClellan’ is the Warden of
Maryland Penitentiary. He is legally responsible for the
operation of Maryland Penitentiary and for the welfare
of all the inmates of that prison.
4. The Mail Censor inspects in-coming as well as out-
going mail, newspapers, etc. and he or she is legally
responsible for seeing to it that newspapers are forward
to all inmates of that prison. Maryland Penitentiary.
5. At all times hereinafter mentioned, defendants
seperately and in concert, acted under color and
pretense of law, to wit, under color of statutes,
regulations, customs and usages of the State of
Maryland. Each of the defendants herein, separately
and in concert, engaged in the illegal acts hereinafter
mentioned to the injury of Plaintiff and deprived
plaintiff of his rights, privileges and immunities
secured to him by the First and Fourteenth Amend-
ments as well as the Fourth as it relates to the Ninth
Amendment to the Constitution of the United States.
IV. STATEMENT OF CASE — FACTS
6. Prison officials (Wardens) have always found
something up-setting about what Black prisoners read.
Especially white racist-minded type officials.
7. In the past, prison administrations even sought to
justify excluding Muhammad Speaker because, inter
alia, its format in many respects is anti-government
and racist”, and would interfere with rehabilitation.
8. It is such racism and racial discrimination as the
aforementioned that explains this instant case — cause
of action.
9. Piaintiff has been receiving both the Gay Liberator
newspaper and Akwesasne Notes (a Native American
newspaper) because he was (is) interested in both the
educational and political point of view and.
10. Up to July 1973, the Warden and his agent (Mail
Censor) began returning the papers to the senders
marked “disapproved.”
34a
11. Both Defendants did and still is engaging in a
concerted on-going act of psychological warfare which,
has and still is causing Plaintiff much mental anguish
and emotional suffering.
12. If Plaintiff can have pictures such as Exhibits A,
B, C and D, than surely he can have in his personal and
private possession educational and political literature
to read.
13. Attached hereto is a copy of Exhibits E, F and G
of Plaintiff's attempt to find-out why the Mail Censor
would not and will not deliver the said papers to him
and, inform the Warden of the Mail Censor actions.
14. Since the Warden was informed of this problem
and, by his refusal to order his agent (Mail Censor) to
cease and desist from such un-constitutional practices
or policies he became an accessory after the fact and, or
the Mail Censor informed him of his or her actions
wherefore,
15. The Warden was accessory before and after the
fact.
V. LEGAL CLAIMS
16. Plaintiff has and is being deprived of his right to
possess and read educational/political literature, which
is guaranteed by the First Amendment to the United
States Constitution and the Due Process Clause of the
Fourteenth Amendment. The confiscation/returning of
the papers also deprived Plaintiff of his property
without the due process of law required by the
Fourteenth Amendment. ~
17. Plaintiff right to privacy is being violated by
defendants interfering with not only with his education-
al ‘political thoughts but his right to choose and free
will to possess and read such relevant literature in the
confines of his cell as is guaranteed by the Fourth
Amendment as it relates to the Ninth Amendment to
the United States Constitution and the Due Process
Clause of the Fourteenth Amendment.
———
a
35a
\8. Plaintiff have no plain, adequate or complete
remedy at law to redress the wrongs described herein.
Plaintiff have been and will continue to be irreparably
injured by the conduct of the defendants unless this
court grants the declaratory and injunctive relief which
plaintiff seek.
Wherefore, plaintiff respectfully pray that this Court
enter judgment granting plaintiff:
1. A declaratory judgment that the defendants acts,
policies and practices described herein violate’s not
only plaintiff rights under the United States Constitu-
tion but is also racist, and racial discriminatory to
Native Americans and, prejudiced to Gays as a class.
2. A preliminary and permanent injunctive which
a. Requires defendants McClellan and Mail Censor
to cease and desist from confiscating and returning
“Gay and Native American” literature in the future.
b. Requires defendant McClellan to rescind the
policy directive concerning confiscation of and return-
ing Gay and Native American literature and to issue
reguiations which prohibit any such confiscation and
the returning of such literature in the future.
c. Prohibits defendants, their agents, employees,
successors in interest and all other persons in active
concert or participation with them, from further racial
and/or class discrimination against Gays and Native
American people by their refusal to deliver the “Akwe-
sain Notes and Gay Liberator newspaper to plaintiff
which is discriminatory to plaintiff as well, since such
practices or policies interferes with his right to education
and political belief, during the pendency of this action.
d. Requires defendant McClellan to allow plaintiff
and other prisoners to: 1) engage in any oral or written
communication which is reasonably related to the
conduct of this suit, including the preparation of
affidavits on behalf of other prisoners; and 2) to confer
with other prisoners and prepare legal papers, and to do
anything else, consistent with prison security, which is
reasonably connected with the conduct of this suit.
36a
3. Compensatory damages in the amount of $10,000
to plaintiff from beth defendants and each of them.
4. Punitive damages of $10,000 to plaintiff from
Defendant McClellan and from Defendant the Mail
Censor.
5. Trial by jury on all issues triable by jury.
6. Such other and further relief as this court may
deem just, proper and equitable.
A motion to proceed in Forma Pauperis is attach
hereto, along with plaintiffs brief, and motion for
appointment of counsel.
Dated: Sept. 6, 1973
Constitutionally submitted,
JAMES E. X. STOKES, PROSE
James E. X. Stokes,
Maryland Penitentiary,
954 Forrest St.,
Baltimore, Md. 21202,
In Propia Personam.
" ee ee
37a
In the United States District Court
For The District of Maryland
James E. X. Stokes,
Plaintiff,
v.
Gerald McClellan, individually and in his official
capacity as Warden of Maryiand Penitentiary, and
the Mail Censor, individually and in his or her
official capacity as Mail Censor of the Maryland
Department of Corrections,
Defendants.
Civil No.
BRIEF
Since the defendants never supplied plaintiff with a
reason for their “all of a sudden” total disapproval of
Akwesasne Notes and Gay Liberator plaintiff can only
conclude that the refusal to deliver Akwesasne Notes
was (is) based on “racial and class discrimination”
which, has and is being directed against all people of
color, Red in reference to Native Americans and, the
refusal to deliver Gay Liberator is based “solely” on
cless prejudice of people who do not suffer” racial or
class hang-ups as the defendants. Wherefore, the
defendant seeks to ban the said newspapers for the
reasons stated herein and, including the fact that
plaintiff is a Black person. Defendant McClelian like all
white racist prison officials believes it is a crime for
Black prisoners to read any literature that is not all-
Amerikkkan and anti-people. Furthermore, the defend-
ants seem to be saying: that they, agents of the State,
supersede the federal government, nullifying the
Constitution of the United States. Otherwise, the
38a
defendants would not arbitrarily censor, regulate and
abuse plaintiff rights which, are guaranteed by the
First Amendment. Wm. Fortune Society v. McGinnis,
319 F. Supp. 901 (S.D. N.Y. 11-24-70) the Court noted the
absence of a compelling state interest centering about
prison security or discipline, to justify the serious and
irreparable injury to a “preferred” freedom under the
First Amendment. Censorship is utterly foreign to our
way of life, it smacks of dictatorship. Correctional and
prison authorities, no less than the courts, are not
above criticism, and certainly possess no power of
censorship simply because they have the power of
prison discipline, in granting the preliminary injunc-
tion.
JAMES E. X. STOKEs,
James E. X. Stokes,
Maryland Penitentiary,
954 Forrest Street,
Baltimore, Md. 21202,
In Propais Personam.
39a
In The United States District Court
For The District Court of Maryland
James E. X. Stokes,
Plaintiff,
Uv
Gerald McClellan, et al.,
Defendants.
Civil No.
ORDER TO SHOW CAUSE AND TEMPORARY
RESTRAINING ORDER
Upon the complaint, the supporting affidavit of
plaintiff, and brief submitted herewith, plai:tiff move
this court to order Gerald McClellan and the Mail
Censor to show cause why a preliminary injunctive
should not be issue pursuant to Rule 65(a) of the Federal
Rules of Civil Procedure enjoining the defendants, their
successors in office, agents and employees and all other
persons acting in concert and participation with them,
from interfering with, and returning the Gay Liberator
and Akwesasne Notes newspapers to senders marked
“disapprove”.
JAMES E. X. STOKEs, PRO
James E. X. Stokes,
Maryland Penitentiary,
954 Forrest St.,
Baltimore, Md. 21202.
40a
July 30, 1973
Dear Miss, Mrs, Ms or Sir,
I have received letters informing me that you are
returning the Akwesasne Notes and Gay Liberator
newspapers marked “not approved”.
In the future you will please cease and desist from
such acts.
JAMES E. X. STOKES
Cell #130
South Wing.
August 15, 1973
Re: Letter dated July 30, 1973
Once against I have received words concerning
returning reading matter wherefore you will now give
me notification. | have a chance to reply in writing or
orally before you return any Gay Liberator and/or
Akwesasne Notes in the future.
JAMES E. X. STOKES
—_— — + — -
August 15, 1973
Mr. McClellan,
I have written the Mail Censor concerning Gay
Liberator and Akwesasne Notes newspaper. As of yet, I
have received no answer. Therefore, I can only assume
that you have sanction his or her acts. If I do not
receive words from you by 29 August 1973, as to any I
no longer can receive the said newspapers mentioned
herein. I will take court action.
JAMES E. X. STOKES
South Wing
Note: Letter to Mail Censor July 30 and one (1) this
morning.
4la
In The United States District Court
For The District of Maryland
Civil No. 73-1182
James E. X. Stokes,
Plaintiff,
v.
Gerald McClellan, Warden, et al.,
Defendants.
Filed December 17, 1973
SUPPLEMENT TO PRAYER FOR RELIEF
In supplement to the above cause, petitioner prays
that this court will impose First Amendment procedural
standards on the defendants as follows:
1. Notice and reason (s) in the future for refusal to
deliver the said papers or correspondence;
2. Some opportunity for the plaintiff to object (either
personally or in writing;)
3. A decision by a body that can be expected to act
fairly and,
4. That the screening process be exercised within a
set reasonable period of time.
Dated: December 10, 1973
Constitutionally submitted,
JAMES E. X. Stokes
James E. X. Stokes
954 Forrest Street
Maryland Pemitentiary
Baltimore, Maryland 21202
42a
December 10, 1973
954 Forrest St.
Dear Clerk,
Please inform Judge Blair that unless First Amend-
ment procedural safeguards are impose upon the
defendants they will only continue to arbitrary deny
any and all reading matters without affording any due
process what so-ever. Example: on or about the 5th or 6
December I received a memo from a Mr. Folse.
Classification counselor here at the Pen. Informing me
that Worker World, another newspaper had been
disapproved because of so-called security. And, even
though I have tried to get appointment with Mr. Fine,
Asst. Warden of Treatment as well as written to The
Warden I have yet to this writing heard anything
concerning my request to Mr. Fine and Warden
McClellen that in the future they afford me at least
minimum due process before they disregard my first
amendments rights.
JAMES E. X. STOKES
43a
PROCEEDINGS OF JUNE 12, 1973
(171) (The Clerk) Civil Action 72-234-N, Milton
McCray versus Sergeant V. D. Smith, Maryland
Penitentiary.
(The Court) All right.
(Mr. Morgan) Your Honor, if I may, just briefly, state
what this case is about.
What we are alleging in this case, Your Honor, is that
at a period of time when Mr. McCray was in the south
wing segregation section in the Penitentiary, he was
removed from his segregation cell and placed into an
isolated confinement area by the Defendant, Sgt.
Smith, where he remained for at least two days. He was
then placed back into the regular segregation section of
the Penitentiary.
We are claiming damages as relief, and our claim is
based on two legal theories. First, we’re saying that the
conditions under which Mr. McCray was confined in
that two-day period violated his right to be free from
cruel and unusual punishment under the Eighth
Amendment.
Also in that connection, we are alleging that the
confinement, conditions of the confinement during that
two-day period subjected Mr. McCrary to unwarranted
and unneces- (172) sarily degrading and undignified
treatment, violating his right to privacy.
The second basis of the claim is a Fourteenth
Amendment claim, and that is that the punishment
imposed upon Mr. McCray, the punishment being the
placement in the isolated confinement cell for two days,
was summarily imposed by the Defendant without any
semblance of procedural due process either before,
during or after the punishment, with no justification for
that summary punishment.
Mr. McCray suffered injuries as a result of his
confinement in isolated — as a result of his confine-
ment in isolation, and the relief he requests are
compensatory damages, to compensate for violation of
his constitutional rights, nominal damages, and puni-
—_—_———— —e ae —— - -~«
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tive damages against the Defendant, punitive damages
because the Defendant was acting under rules and
regulations which he should have known, rules and
regulation which set forth constitutional standards and
which he consciously violated.
(The Court) All right.
(The Clerk) Mr. McCray, you are still under oath for
the purposes of this action, also, 72-234.
By Mr. Morgan:
Q. Mr. McCray, just state where you are presently
confined. A. Maryland Penitentiary.
(173) Q@. Maryland Penitentiary? A. Yes.
Q. Could you tell the Court how old you are,
please? A. 33.
Q. Are you from Baltimore? A. Yes, I am.
Q. Born in Baltimore? A. Yes.
(The Court) Now, answer so that the Reporter can get
it down.
(The Witness) Yes, to all the questions that he asked.
By Mr. Morgan:
Q. Mr. McCray, when did you begin service of the
sentence that you are presently doing? A. February
4th, 1969.
(The Court) February 4, what?
(The Witness) 1969.
(The Court) 1969?
(The Clerk) 1969.
(The Court) All right.
By Mr. Morgan:
Q. And what is the sentence you're serving, Mr.
McCray? A. 28 years.
(174) (The Court) 28, what?
(The Witness) Years.
- -_ a eZ -
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By Mr. Morgan:
Q. For what offense, Mr. McCray? A. Deadly
weapon, assault with intent to murder; deadly weapon,
assault with intent to murder, and—
(The Court) Now, speak up.
Fix it up so he can speak into it.
(The Witness) I like to talk to the Judge.
(The Court) Just look straight ahead, or look at
counsel, that’s all right, just make sure you talk into
that thing, right?
(The Witness) I like to talk to the man that has the
power to—
(The Court) Yes, I notice you do that, but that’s
perfectly all right, I can hear you, that’s okay now, if
you want to talk over here, that’s fine.
Now, put that microphone up near you and speak up.
By Mr. Morgan:
(. Mr. McCray, before the time you entered prison on
this sentence, February 4th, 1969, had you been
employed? A. Repeat that.
@. Had you been employed prior to the time that you
entered prison on this sentence? (175) A. Yes, I owned
my own grocery store.
@. Where was that located? A. Barclay Street.
Q. What was the name of the store? A. Sander’s
Grocery.
Q. Mr. McCray, in a case of this kind, it’s proper for
the State, or the Defendant, to cross-examine you on the
question of your past criminal record.
We have agreed, your counsel and the State has
agreed during the recess to try to work out what that
past criminal record is, and we'll stipulate to it, so I
won't ask any questions about it and the State won’t
ask any questions about it, but we will agree to that.
(The Court) All right?
(The Witness) Yes, sir.
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I'm not proud of my criminal record.
(The Court) What?
(The Witness) I'm not proud of my criminal record,
but it’s mine.
By Mr. Morgan:
Q. Mr. McCray, I direct your attention to November
20th, 1971, were you in the Penitentiary at that
time? A. Yes.
Q. What part of the Penitentiary were you in? A.
South wing.
(176) Q. Could you describe to the Court what the
south wing is? A. South wing is the area of the
Penitentiary where they house inmates that are in
violation of the Penitentiary rules.
Q. Could you describe that section briefly? A. Well,
it's a desolate place, I that just about — it’s cold, it’s
lonely, and it’s cruel.
(Mr. Rosenthal) I object to that, Your Honor.
(The Court) Well—
(Mr. Rosenthal) I think that’s a conclusion.
(The Court) Yes, okay.
(The Witness) That’s a fact.
(The Court) Objection overruled.
Go on.
By Mr. Morgan:
Q. Mr. McCray, could you describe the south wing
physically, for example, how the tiers are laid out, how
the cells are laid out? A. Well, it’s — it has five tiers,
the doors are key operated with a lever back in the tier,
this is old fashioned, is an antique system there. It’s
filthy. That’s just about it. It’s cold, filthy and just
operated by an old lock system.
Q. Mr. McCray, on November 20th, what part of the
south (177) wing were you housed in? A. On what
day?
~~ re ~
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Q. On November 20th, 1971? A. In the hole area.
That—
Q. Prior to being housed in the hole area, where were
you housed? A. On the second tier, I think i vas, on
street side in the south wing.
Q@. The second tier means two floors off the
ground? A. Two floors off the ground, yes. I’m not
sure, I know it was in that south wing area, either the
second or fourth, I’ve been over there quite a few times.
Q. Mr. McCray, you are aware of the complaint that
you made in this case and I think to save time if it’s
agreeable with the State, rather than my asking you
directly, direct questions about it, could you describe
what happened to you on November 20th while you
were in that tier, the nature of your complaint in this
case? A. Do you want me to describe what led up to
this case?
Q. Yes. A. Well, when I was put in south wing that
time, they put me in the cell on the second tier, and the
cell they put me in, I mean, was filthy. Trash, dirt, torn
mattresses, parts of mattresses on the floor. It just
hadn’t been cleaned.
(178) I immediately called the officer and explained to
him that I should be moved to another cell, and the
officer looked in the cell and he saw that the cell was in
bad condition, so he called the tie runner and asked the
tier runner, why didn’t you clean -he cell, why is this
cell like it is, and the tier runner at that time—
(The Court) Who?
(The Witness) The tier runner at that time told him
that no one supposed to be in the cell because the cell
had lice in it, because someone in the cell had lice, and
when I heard this, I really performed.
So, they finally took me out of the hole — I mean, out
of.the cell and placed nfe in the hole area, isolated area.
(The Court) What?
(The Witness) This the hole area, this is an isolated
area where there is six cells and no bed, a toilet and a
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sink, this is another part of the south wing, this is the
area that they place you in if you violate a rule on south
wing.
I immediately asked for a shower as a result of being
in the cell with lice in it.
(Mr. Morgan) Excuse me.
By Mr. Morgan:
Q. Mr. McCray, if I may interrupt, could you place
this in time, was this on the 20th, or was this before the
20th, (179) or— A. This was before the 20th, this, I
think, led up to me being on the south wing.
Q. I see.
All right.
A. The Warden came through and I called him and |
explained to him that I was in south wing, in the hole,
because they had just taken me out of the cell that had
lice in it and no one would give me a shower as a result
of it.
He had to call the officer and asked about it, and they
verified my statement. So, in turn, he ordered Sgt.
Smith here to give me a shower and to see that I get my
law books and take me out of the hole.
Sgt. Smith told him, he was quite angry at me for, I
guess, approaching the Warden, and he told the Warden
to his face that he wasn’t going to do anything for me.
Well, anyway, another officer, I don’t know whether
Sgt. Smith ordered him to do it, or not, got me. I don’t
know whether Sgt. Smith ordered him to give me a
shower and spray some delicer, or whatever it was,
powder on me, or not, but an officer came in and he took
me down, gave me a shower, and sprayed me with
powder.
They then placed me on fourth tier, I think it was
third or fourth tier, in another cell, and I stayed there, I
think, for a day or so, but immediately after I was put
in the (180) cell I asked Sgt. Smith to give me the law
books that the Warden had ordered me to have. He
wouldn’t give them to me. I asked a couple other officers
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that came by that — I informed them that the Warden
had ordered me to get my law books and Sgt. Smith
wouldn’t give them to me and would they check and see
whether they could get them for me. .
Well, I didn’t get them.
So, on the — I think it was on the 19th, or 20th, I
decided that I had a right to demand my law books
since the Warden had — I had gotten the okay from the
Warden to have them. So, I started hollering and
calling an officer to give me my law books, and the
shower, the Warden also ordered this for me, and Sgt.
Smith came around and he told me that if I didn’t shut
up, what he was going to do, you know, and I kept
calling. I told him I only wanted what was — what I was
entitled to.
Q. If I might interrupt, Mr. McCray, what were the
things that you were asking Sgt. Smith for at that
point? A. My shower, daily showers, because of the
prescription that was given to me by Dr. Gould at
Maryland Penitentiary, that I should have a medicated
shower every day, and I felt that I had a right to have
that also because the doctor ordered it, and Sgt. Smith,
he came to my door about 10 minutes later and asked
me what was the problem, you know. I told him I wanted
the law books, I said, Man, you was there (181) when
the Warden told you to get me the law books and he told
you to give me a shower, and he told me something
about the shower was being deliced, and as far as the
law books goes he just didn’t have time then and when
he get time he will bring them to me, you know, and one
word led to another, and, finally, he opened the door
and said, all right, him and another officer, let’s go
down to the hole.
I told him. look, Man, I said, I’m not going nowhere, I
haven’t done anything. So, I sit down on the floor. So,
he told the officer, let’s take him out. So, each one of
them grabbed me by the arms and dragged me out to
the end of the tier, and Sgt. Smith dragged me down the
steps, but the other officer, I don’t know if he felt sorry
for me, or not, he said, no, don’t drag him down, he
said, i'll pick him up.
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So, the officer picked me up by the shoulder and led
me down in the hole area.
While down there, when [| got in the hole area, he told
me to take my clothes off, so I was taking off my clothes
and | wasn’t taking them off fast enough, Sgt. Smith
reached up, he said, hurry up, I don’t have all day to
wait for you to take your clothes off, and he tore off my
jump suit and shoved me in the hole area.
Just as he was getting ready to go out the door, I said,
Man, what about my shower. He said, what about
it? (182) I said, Man, aren’t you going to give me my
shower, I got a prescription for it, I said, I been getting
this shower every day in another institution prior to
coming here and I’ve been taking it every day outside, I
need it in order for me to sleep comfortable. He says,
you want a shower? I said, yes. So, he went around one
of the cells, back in the corner there, and I was standing
at the door, I never thought he was going to throw any
water, I thought he was going back to get a key, I didn’t
know what he was going to do.
Anyway, I was standing at the door and he come
around the bend and before I could get myself together
he dashed me with this bucket of water, and he said,
now, you got your shower, and he walked on out.
Well, I said a few words behind that, and it was cold
there that particular day, and—
(. Mr. McCray, if I might interrupt you at this point
to ask you a couple of specific questions. A. Yes.
(). About what you've said so far. A. This has been
so far away, I can’t remember, I’ve got it pretty well.
q). All right, sir.
Mr. McCray, you say you had been calling for law
books, why did you need the law books? A. Well, I
have quite a few cases in different courts (183) all over
the state and if I don’t file answers, letters, or, well, I
just have the time for the letter to go out, or I'll forget
them, or my work will get behind, and I was particu-
larly interested in having my law books at that time
because of that reason.
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Q. What law books did you own at that time? A. I
owned quite a few law books, boxes, I had about two or
three boxes of law books. I’m sure Sgt. Smith can verify
that.
Q. What was the nature of the prescription you said
you had gotten from Dr. Gould concerning a show-
er? A. Well, it was — I was supposed to get a shower
every day and I have to have an oil to my body, and I
think — a cream, I have a nervous condition and keep
down the itch, and this had been going on, oh, about
two years, and Dr. Gould has been constantly keeping
me on this because it’s the only thing that helped me,
the showers and the alpha keri oil and the cream, this
was the only thing he could prescribe that would help
the condition.
Q. Now, before you were taken to the hole, Mr.
McCray, isolated confinement, you say Sgt. Smith came
to your cell? A. Yes, he did.
Q. And you requested these two items from him, law
books and showers? A. That’s correct. I said, all I
want is my law books (184) and my daily shower.
Q. And what did Sgt. Smith say, if anything, to
you? A. He told me that he wasn’t going to give me the
law books and I reminded him of the Warden’s order,
and he told me that he didn’t care, he just wasn’t going
to give them to me.
Q. Now, at this time, Mr. McCray, I believe you
testified you were on the third or fourth tier, which side
of the institution was that on? A. On the yard side.
Q. It was on the yard side? A. Yes, on the yard side.
Q. Could it possibly have been on the street side? A.
No, it wasn’t, it definitely wasn’t the street side, I
remember it was on the yard side, I was on the street
side before they put me in the hole.
Q. I see.
Do you recall how many other men were on that same
row of cells with you? A. I didn’t stay up there, like I
say, a few hours, I guess, it wasn’t long enough for me
to know who was on the tier.
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You see, once you're locked in your cell, you don't
know who's next door to you unless you get a chance to
talk through the wall.
(185) Q. I see.
At the time that you were yelling out the door of your
cell, I believe you did testify you were yelling for these
things? A. Yes.
Q. Was there anyone else in south wing yelling out
the doors of their cells? A. Oh, no, no, there wasn’t
anybody else yelling, I was just calling Sgt. Smith, you
know, constantly calling, and that was it.
Q. To your knowledge, Mr. McCray, were any
inmates out on your tier at that time, out of their
cells? A. No, no one, they're not permitted out of their
cells.
Q. Now, you testified that Sgt. Smith, with other
officers, took you down from the third or fourth tier to
the— A. Yes.
(). —flats, as it’s referred to, the bottom floor of the
south wing, is that correct? A. Right.
q. And they took you into what is known as the
isolated confinement area? A. Yes. |
Q. You referred to it as the hole? (186) A. Yes.
Q. Could you describe that area physically, for
example, if there are cells there, how many, what the
cells look like, what the area in general appears? A.
Well, it has two entrances. One from the Captain’s
office at the time, the other one from south wing area.
There’s no windows in the hole area. They have six
cells. In each cell there’s a toilet and sink combination
— | think it is — yes, they have a light in the back of
the cell, that is never turned on, the only way it can be
turned on, the officer has to go all the way around
behind the cells and turn it on. Sometimes they turn it
on during the day, and at night. It has a cement block
on the floor for a bed.
(The Court) Cement, what?
(Tne Witness) Cement block, about this long, about —
it's about eight inches long.
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Sa
By Mr. Morgan:
Q. Mr. McCray. do you recall which of the six cells
you were placed in? A. What?
Q. Do you recall which of the six cells you were
placed in? A. Number five.
Q. All right. (187) Now, how large was that cell, if
you would estimate? A. It’s about as big as that table
that’s in back of the chair, I think. from the beginning
of this table to the back of your chair.
Q. About that wide? A. Yes, about that wide.
Q. Approximately four to five feet? A. Approxi-
mately that.
@. And about how long would you say? A. Maybe
12, 15, 16 feet. I guess. I don’t know.
Q. It’s a long, narrow cell? A. It’s long and narrow.
ves.
Q. It’s more long and narrow than it is square? A.
Much more long and narrow than it’s square.
Q. All right.
Now, you testified that in these cells, and I direct your
attention just to the cell you were in, there’s a toilet and
a sink, is that right? A. Yes.
Q. Were those things in your cell? A. There was a
toilet and a sink in the cell I had.
Q. How high is the cell, by the way? A. It’s quite
high, I would say about 18 feet. It’s quite high.
Q. It's more than three times as tall as you
are? (188) A. 1 would say two times, about twice as
tall as I am.
Q. What is the construction of the walls in the
cell? A. Cement.
Q. Cement? A. Yes.
Q. Are they painted? A. Yes.
Q. I'm y omg | your attention now to the time when
you were there, they were cement then and they— A.
A brownish orange color, I think, orange or yellow.
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Q. Now, if you would, would you describe again this
cement block that was in the cell? A. Well, it’s just a
big cement slab in the floor, up against the wall, about
nine feet long and about three or four feet wide, I guess
it is.
Q. And how deep is it? A. About six — about 12
inches.
Q. All right.
(The Court) About twelve inches?
(The Witness) Yes, high.
By Mr. Morgan:
(). And that’s made out of cement? A. Yes.
Q. Now, is there a light in your cell? (189) A.
There’s a light in the back of the cell, turned on late in
the evening, it’s not during the day.
(). Does the cell have doors? A. It has two doors.
() Would you describe those two doors? A. One is
barred, the other one is a wooden door.
Q. A solid wooden door? A. A solid wooden door.
Q. Which door is inside and which door is out-
side? A. The barred door is inside, the wooden door is
outside.
Q. All right.
Now, when you were placed in your cell, were either
or both of those doors closed? A. At times. Whenever
an inmate is brought into the south wing area, they
always close the wooden door. Other than that, they
will leave it open, unless they want to — an officer just
wants to be nasty, or he just don’t like you, he will lock
that door.
Q. On this particular occasion, did — was the outer
door, the solid door, closed on you, or not? A. After he
throwed the water on me, he slammed the door just
before he walked away,
Q. The solid wooden door? A. Yes, but he didn’t lock
it. I shoved it back open.
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(190) Q. How long was the solid door closed,
altogether? A. Well, just throwed the water and when I
jumped back from the water, the door was closed, you
know, and I come back up to the door and pushed it
back open at that time.
Q. All right.
Now, when you entered the cell, you testified that
there’s a concrete slab on the floor and there’s a toilet,
sink and a light, was there anything else in the
cell? A. Nothing else.
There was a mattress in there when I first came in
the hole, they took that out.
Q. Who took it out? A. Sgt. Smith. I don’t know if it
was exactly him, him or one of the other officers took it
out.
Q. At the time you were put in the cell? A. Yes.
Q. You testified you were put in the cell without any
clothes on, is that correct? A. No clothes at all.
Q. Mr. McCray, do you recall how long you were in
this cell? A. About two days.
Q. At any time during the two-day period did you
have clothes to wear? A. No. I got my clothes the day
they took me out.
(191) Q. Just before you were taken out? A. Just
before I was taken out of the room.
Q. At any time during the period of time when you
were in isolated confinement, did you have a mat-
tress? A. Oh, I received a mattress that night, I think
it was the officer that came on the next shift, gave me a
mattress. He didn’t want to give me that until — he
didn’t give me that until late that night, I think it was,
I’m not sure how [ got that mattress. I know I got a
mattress eventually after complaining quite a bit, and
that was the only other item in the cell, other than what
I described.
Q. Did you have a mattress for the first night you
were there? A. Yes.
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Q. Is the isolated confinement area an area where
there is — during the period of time when you were in
isolated confinement, I assume you could see out of the
front of your cell door, is that right? A. Yes.
Q. Did you see any other people during that two-day
period in the isolated confinement area, either inmates
or guards? A. Oh, constant through there. I mean,
every inmate that goes in, is admitted to the south wing
area, comes through, and they’re shook down, their
clothes are taken (192) off and they’re assigned to a
cell in the south wing, in that area.
Q. During that two-day period, did you witness
inmates walking by your cell? A. Yes.
Q. Did you witness Correctional Officers walking by
your cell? A. Constantly. That’s an avenue for going
to the Captain’s office, was an avenue for — to the
Captain’s office at that time.
Q. At any time during that two-day period, Mr.
McCray, did you request that you be given clothes to
wear? A. Yes, I did. The whole time I was there, every
hour, every available opportunity, you know, I would
ask for clothes.
Q. Were clothes ever provided? A. Not until I was
released.
Q. Do you recall any speciiic cases when you asked
for clothes, or any specific officers or inmates from
whom you asked for clothes? A. No. I asked just about
every officer that came through there that I thought
might be able to ask someone or convince Sgt. Smith, or
whatever officer was out at the desk, to give me
something to put on.
Q. During the time you were in this cell, Mr.
McCray, (193) were you taken out for any pur-
pose? A. No.
Q. During that two-day period, you remained in the
cell for the total two days? A. Yes.
Q. Then I assume you did not h-ve a shower during
that period of time? A. No, I didnt.
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(Mr. Rosenthal) Your Honor please, I have not
objected—
(The Court) Yes, you are leading, Counsellor.
(Mr. Rosenthal) Leading terribly.
By Mr. Morgan:
Q. Mr. McCray, during that period of time when you
were in the hole, did you have any visits? A. No, no
visits.
Q. Did you have with you in your cell during that
two-day period any personal belongings? A. None at
all.
Q. Did you have any items of personal hygiene? A.
None at all.
Q. Did you have a toothbrush? A. No.
Q. Toothpaste? A. No.
(194) Q. Did you have a wash cloth? A. No.
Q. Towel? A. No.
Q. Were you fed during that period of two cays, Mr.
McCray? A. Yes, I was fed.
Q. Could you describe the manner in which you were
fed? A. Well, they brought it down in — they had
containers that they put food in, plastic cups. They take
all the food, put it in separate plastic cups, you know,
that they have, corn flakes, they give you the cereal,
they have milk, they give you a milk carton, if they
have juice they put it in a plastic cup, if they have soup
they put that in a plastic cup, if they have meat they
have to put that in a cellophane bag, bread, they hand
that to you, you know, the inmate hands that to you, it
would be on a tray, he’ll hand it to you, you take in off
the tray if you want to, this is an inmate brings it to
you.
Q. Mr. McCray, the first night you were in the hole,
did you sleep on the mattress? A. The first night?
(The Court) You’ve already asked him that, and he
said yes. You’re leading him constantly.
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(195) (Mr. Morgan) I’m sorry, Your Honor.
(The Court) He said he got the mattress late at night.
By Mr. Morgan:
Q. Mr. McCray, could you describe — well, first of all,
Mr. McCray, would you vharacterize the condition of
the cell as either clean or dirty, and if you can
characterize it as one or the other, could you explain
why you would characterize it in that way?
(Mr. Rosenthal) Your Honor please, I object.
(The Court) Objection sustained.
By Mr. Morgan:
Q. Mr. McCray, do you know an Officer Green-
wood? <A. Yes, I do.
Q. During the period of time that you were in
isolation, did you have an opportunity to talk to Officer
Greenwood? <A. Yes. He was the Acting Officer, head
officer on night shift on the 20th, he was the officer that
woke me up for sleeping inside the mattress that
particular night.
Yes, I remember him.
Q. You state you were sleeping inside the mat-
tress? A. Yes.
Q. What was the purpose of your sleeping inside the
mattress? A. Well, I had no clothes on, it was cold, I
laid on (196) the mattress as long as I could, and I've
got a complex laying out on mattresses nude, anyway,
down there, and it got so cold in that hole until I had no
choice but to resort to the only method of getting warm
that I possibly could, since all my requests for clothes
were denied.
I tore the mattress open, it was a rotten mattress
anyway, and I stuck my finger in one of the big holes it
had, dug a channel down in between the cotton, and I
went to sleep.
As a result of that, Officer Greenwood came and he
didn’t say anything to me, but he came, epened the door
and saw me in there, and the next day I got a ticket for
destroying a mattress.
— a ee ee
59a
‘ @. Did you have an adjustment team hearing? A.
es.
Q. As a result of that? A. Yes.
@. Were you found guilty or not guilty?
(Mr. Rosenthal) I object, Your Honor, I don’t know if
there’s any relevancy.
(The Court) Yes.
Objection sustained.
By Mr. Morgan:
Q. Mr. McCray, during the period of time that you
were in the cell for two days, what did you do to occupy
yourself, (197) how did you spend your time?
(Mr. Rosenthal) Again, Your Honor, I’m not sure of
the relevancy, and we would voice an objection.
(Mr. Morgan) Your Honor, the relevancy of this
question is, we're suggesting and we're alleging that the
conditions of this type, segregated confinement, is in
violation of the Eighth Amendment, the Eighth
Amendment deals with physical inflictions of punish-
ment as well as mental inflictions of punishment and I
think we can show—
(The Court) All right, I'll permit the question. Go on.
Objection overruled.
By Mr. Morgan:
Q. Mr. McCray, during that period of time, how did
you occupy yourself, how did you spend your time in the
cell? A. Well, walking the floor, try to keep my mind
off being in the hole, that’s one important thing I tried
to do, I might try to do some exercises, think about the
past, think about my case, but if an officer come
through, might try to strike up a conversation, if he
would stand still long enough, or an inmate come
through, try to talk to him, just try to keep my mind off
the conditions that I was under, you know.
Q. Did you have any reading material? (198)
A. Well, this particular time, I didn’t try to talk to
60a
anybody because I was in the nude and I didn't
particularly want to be standing talking to anybody,
but that’s the usual thing I do when I’m in the hole.
Q. Did you have any reading materials with you? A.
Oh, no, none at all, didn’t allow it.
(Mr. Morgan) I don’t have any other questions.
Thank you, Mr. McCray.
CROSS EXAMINATION
By Mr. Rosenthal:
Q. Now, Mr. McCray, at the time you were on the
street side, which tier were you on, if you recall? A.
The second tier.
Q. The second tier.
And you do acknowledge the fact that you were
hollering, is that correct? A. Yes. Not — on the street
side?
Q. Yes, sir.
When you first started hollering for your books and—
A. No; on the street side, I was hollering to get out of
the cell with the lice in it.
Q. All right. A. At that time, to tell the officer, that
was the cell with lice in it, is when I started.
(199) Q. And how long did this hollering go on? A.
It didn’t go on but a few minutes, the officer came right
hack to the door and said, we’re going to get you out.
Q. Then you were taken, as I understand it, to the
fourth tier, yard side? A. I was taken in the hole.
Q. Well, didn’t you testify at one time you were on the
fourth tier? A. Yes, but that’s after the Warden came
through and I advised him being in the hole — I mean,
being in a cell with lice, and I wanted to be showered
and deliced, and he ordered that I was taken out of the
hole and given all this treatment and put on the fourth
tier, vard side.
Q. You're stating that you went to the fourth tier
after you left the isolated cells? <A. Yes.
ee
bla
q. But did you not also testify that at one time you
were hollering for your law books and clothing and—
A. Yes.
Q. Things of that nature? A. Yes.
q. Well, where were you at that point? A. I was on
the fourth tier, yard — yes, yard side.
(200) Q. Well, that’s what I was talking about.
Now, after that hollering, isn’t it a fact that that’s
when you were placed in the isolated confinement
cell? A. That’s the second time I was placed, as a
result of that, yes.
Q. And you acknowledge that there were no other
inmates who were in that area who were also hollering
and yelling? A. No, nobody else was hollering.
Q. And all the cells in that isolated confinement area
are approximately the same size, is that correct? A.
7
Yes.
Q. Prior to this time, had you ever been placed in that
area before, the isolated confinement cells, or, as you
described, the hole? A. I’ve been in the hole quite a few
times prior to that time.
(The Court) What?
(The Witness) I’m not sure, I’m not sure, but—
(The Court) Now, wait a minute, I didn't get your
answer.
What did you ask him?
(Mr. Rosenthal) The question, Your Honor, was
whether or not prior to this incident he had ever been
placed (201) in the IC area before, the isolated
confinement cells, and Mr. McCray’s answer—
(The Court) Well, let him answer it.
(Mr. Rosenthal) Okay.
By Mr. Rosenthal:
Q. The answer was, Mr. McCray? A. I’m not sure,
it’s a possibility.
6a
Q. There is a possibility? A. Yes, there’s a possibil-
ity, | wouldn’t say no or yes.
(The Court) You mean you never had been in the
isolated area before this, you never had been in the hole
before this time?
(The Witness) What date was this?
(Mr. Rosenthal) °71.
(The Witness) ’71.
It’s a possibility I wasn’t in there before then.
(The Court) Why?
(The Witness) Because I was transferred from
Patuxent in May of ’71, I think it was, and I think that
was my first time in, in the hole.
By Mr. Rosenthal:
Q. But you have been there, thereafter, is that
correct? A. Yes, I have, after that.
(202) Q. And there is a possibility that you had been
there prior to this November of 1971, is that cor-
rect? A. It’s a possibility, but I can’t recall.
Q. Now, isn’t it standard operating procedure that
when an inmate is placed in the IC area that he is
stripped of his clothing?
(Mr. Morgan) I object, Your Honor. I don’t think Mr.
McCray is in a position to testify about standard
operating procedure.
(Mr. Rosenthal) I'll relate it only to Mr. McCray.
(The Court) Sir?
(Mr. Rosenthal) I'll relate it only to Mr. McCray.
(The Court) All right.
By Mr. Rosenthal:
Q. Mr. McCray, on the other times that you have
been placed in the IC area, isn’t it a fact that you were
stripped of your clothing? A. My clothes were taken,
yes, and when I say stripped of my clothing, the
clothing that you wear, when you go in there, your
regular Penitentiary clothes, and then they give you a
63a
jump suit, and when I refer to clothing I mean whatever
I have on at that particular time.
(). So that you did have a jump suit, or did you have
a jump suit? A. When are you talking about?
(203) Q. On the time that you were placed in the IC
area? A. 1 have a jump suit — not when I was placed
in the IC area, but I had a jump suit when I came off
south wing down to the IC area.
Q. Now, the wooden door that you alleged was
closed—
(The Court) Now, wait a minute, I don’t quite
understand that.
He had a jump suit when he went down to the IC
area, and they took that off and you didn’t have
anything on?
(The Witness) Nothing, they put me in the cell nude.
By Mr. Rosenthal:
Q. And this is the same procedure, though, with
reference to yourself, that is followed when you have
been placed in the IC area—
(Mr. Morgan) Excuse me.
I object to that, Your Honor.
I think any occasions of Mr. McCray having been in
the IC area and what procedures might have been
followed subsequent to this event would be irrelevant
here.
If he can testify as of the time, that that was what he
had had happen to him before, then that would be
relevant, I think, but anything since then I think would
be irrelevant.
(204) (The Court) Well, he doesn’t know whether he
was in there before, or whether he wasn’t there before.
He has been over, in Patuxent, since May, and this is
November, and he says he possibly could have been in
there, and the question was, when you went in before,
or when you went in after, what was happening.
b4a
I'll permit the question.
Objection overruled.
Go on, ask him again, Counsellor.
By Mr. Rosenthal:
Q. Mr. McCray, the time that you might have been
placed in the IC area prior to November, 1971, and—
A. I might have been?
I don’t understand that.
(Mr. Morgan) I object, Your Honor, he can’t testify
about something that happened at a time that might
not have happened.
(The Court) Well—
(Mr. Rosenthal) Let me finish the question.
(The Court) All the times that he has been in there
with the exception of this time, he can testify to.
(Mr. Morgan) Your Honor, I think—
(The Court) Ask him that question, Counsellor.
(Mr. Morgan) Your Honor, I think that if the State
has a specific time in mind, that they could direct Mr.
McCray’s (205) attention to that and ask him what
happened on that specific occasion, but these general-
ized questions are rather difficult for the witness to
handle.
(The Court) Well, I'll permit the question.
Objection overruled.
By Mr. Rosenthal:
Q. The times that you have been placed in the IC
area, have you been placed in that area without
clothing? A. This was the only time I was placed there
without clothing.
Q. What, if anything, happened the second day that
you were in this cell, do you recall? A. The second day,
nothing.
Q. Isn't it a fact that you smeared the walls of the cell
with some fecal matter? A. No, it’s not.
Q. Isn’t it a fact that you smeared yourself—
-
Ha
(The Court) Wait a minute.
(Mr. Morgan) Your Honor, | object to these questions,
unless the State can proffer now that they have some
basis for these questions.
(Mr. Rosenthal) We will—
(The Court) Counsellor, this is cross-examination.
(Mr. Morgan) I understand that, Your Honor, but they
can’t just testify to some event that may or may not
have (206) occurred.
(The Court) Well, Counsel, he is testing his credibility
and he certainly can do that.
(Mr. Morgan) Your Honor, they can’t make up fact
situations.
(The Court) Sir, I will tell you that this Court is a
court of law and I rule on evidence and I rule on what
cross-examination might be employed in this court,
and, certainly, they can test his credibility and that’s
exactly what they’re trying to do.
Objection overruled.
By Mr. Rosenthal:
Q. Now— A. When you refer—
(The Court) What happened the second day.
All right, you said you didn’t know what happened
the second day, right?
(The Witness) No, I don’t.
(The Court) What?
(The Witness) Nothing happened the second day that
I can recall.
(The Court) All right.
(The Witness) Except for me just being in the cell.
(The Court) All right.
(207) By Mr. Rosenthal:
Q. Do you recall Sgt. Smith coming down the second
day? A. Yes, yes.
NEE
bba
Q. And you have already denied that you placed any
or spread any fecal matter on the walls of the cell.
Did you place any upon yourself’? <A. No, I dont.
never.
(). Were you given a shower the second day? A. No,
no.
(Mr. Rosenthal) One second.
By Mr. Rosenthal:
Q. Now, you testified, I believe, Mr. McCray, that the
wooden door was at one time closed for a few seconds, is
that correct? A. Yes.
Q. And did I understand you to say that it was the
water that — I think your words were that the impact of
the water is what closed the door? A. No. The impact
of the water, I jumped back from the door.
(). | see. A. And that’s what—
_Q. Do you remember the other officer that took you
from the fourth tier down to the IC area? (208)
A. Officer Baylor.
(The Court) How do you spell that, do you know, Mr.
McCray?
(‘The Witness) B-a-y-l-o-r.
By Mr. Rosenthal:
Q. Now, Mr. McCray, did you at any time threaten to
ao bodily harm to yourself when you were taken down
to the IC area? A. No.
(Mr. Rosenthal) Your Honor please, that would be the
only questions we would have with reference to Sgt.
Smith, unless this would be an appropriate time to
place him—
(The Court) Well, he’s on cross-examination. Counsel-
lor.
(Mr. Rosenthal) Very well, Your Honor.
(The Court) All right.
Well, whatever you want to place in evidence by him,
you can do, if you've got something and he knows about
it.
a
67a
By Mr. Rosenthal:
Q. Now, Mr. McCray, do you recall filing any cases
with the Inmate Grievance Commission? A. Yes.
Q. Do you remember how many you filed? (209) A.
Not exactly how many, no, I assume about three or
four.
Q. And of the four that you filed, do you remember
the results? A. Yes.
(. Well, let me ask you this, if I may.
You filed a claim on May 7, 1971, allegedly you had
been assaulted, is that correct? A. May 7, 1971?
Q. Yes, that there had been an assault on your life on
May 7, 1971? A. Probably, yes.
(The Court) What?
(The Witness) Probably did, I can’t remember, so
many incidents that happened to me in the past vear, I
would—
By Mr. Rosenthal:
Q. Now—
I'm sorry. A. I would assume, you have it there, that
I did file it.
Q. And do you recall that you filed IGC Number 1196
claiming that the sentence imposed upon you by the
adjustment team was unfair? A. Yes, I did file that,
yes.
(The Court) Sentence imposed by whom?
(210) (Mr. Rosenthal) The adjustment team, Yoypr
Honor, was unfair.
By Mr. Rosenthal:
Q. Do you recall also in that case the order that came
down stating that certain items were to be reimbursed
to you and that whenever there was a search, there was
supposed to be two officers? A. Yes.
Q. And you received a copy of that order, is that
correct? A. Yes.
68a
q. Now, did you also file IGC Number 1456 with
reference to receiving inadequate medical care?
(The Court) Inadequate, what?
(Mr. Rosenthal) Medical care, Your Honor.
(The Witness) Yes, I did.
By Mr. Rosenthal:
Q. And is it correct that you voluntarily withdrew
that complaint? A. No, | cannot recall withdrawing
the case, complaint, it’s not my way of doing things.
Maybe you can refresh my memory.
Q. I'll try to get that record.
And then you filed a complaint with the Inmate
Grievance Commission that your mail and your law
books and (211) typewriter had been seized and
confiscated? A. Yes.
‘The Court) Well. now. when did he file that?
(Mr. Rosenthal) There's not a date here, Your Honor,
but it would have to be rather recent, because of the
Number 1549. counsel will obtain for the Court and the
witnesses the date upon which that was filed.
By Mr. Rosenthal:
(Q. Now, with reference to that case, Mr. McCray—
A. What was that?
Q. Sir? A. 1549”
Q. 1549, ves, sir. A. Yes, sir, I remember that one.
Q. Right.
Now, you received from the Inmate Grievance
Commission on February 6, 1973, with reference to that
case, an order holding that your claim was without
merit, is that correct? A. Yes, I did.
(). And are you familiar with the Inmate Grievance
Commission Information to Inmates Form? A. Let’s
see this.
(Handed.)
A. What was that?
69%a
(212) Yes, I’m familiar with it. I make it a point to try
to keep up on it, you know, in the institution.
Q. As a matter of fact, you received a copy of this, is
that correct? A. I didn’t receive a copy of it, but I’m
familiar with it.
Q. You are familiar with it? A. Yes.
Q. Did you take any appeal when you received from
the Inmate Grievance Commission—
(The Court) Sir?
Wait a minute, what did you say?
(Mr. Rosenthal) Did he take an appeal.
(The Court) Okay.
By Mr. Rosenthal:
Q. Pursuant to the information inmate sheet, setting
forth the law on the Inmate Grievance Commission,
when you received on February 6, 1973, notice that
Claim IGC 1549 was held to be without merit? A. Did I
appeal?
@. Yes. A. I may have, I don’t know.
Q. Well, isn’t it a fact that you did not appeal it? A.
No, I didn’t appeal it.
See, I appeal so many cases, when you ask me,
did (213) I appeal this or did I appeal that, I’m quite
sure the Court knows that I appeals, and I just can’t
come out and say, I didn’t appeal this case or that case.
(Mr. Rosenthal) I have no further questions, Your
Honor.
(Mr. Morgan) We have nothing else.
Thank you, Mr. McCray.
(The Court) Well, as you say, you appealed every-
thing, why didn't you appeal this?
(The Witness) To tell the truth, Your Honor, the
Inmate Grievance Committee advises a man that he
can appeal, but I just don’t know exactly what and how
to appeal that particular case.
(The Court) Well, now, listen, you've got—
70a
(The Witness) Yes.
(The Court) —cases in the Circuit Court—
(The Witness) I understand.
(The Court) —the state court, you’ve got them over
here, and you appeal everything, it’s amazing that you
didn’t appeal, I’m just commenting on it, I don’t
understand it.
(The Witness) This is the whole thing, I’m familiar
with how to appeal from other convictions, but this is a
new thing, I don’t know what to take, or what to appeal
for something, if I intend to appeal. I don’t know if I
intend to (214) appeal, I’m not suggesting by that
statement that I intend to appeal, but if I did—
(The Court) Did you get your property back, did you
get your typewriter and law books back?
(The Witness) No, I did not.
(The Court) They found the claim was not meritori-
ous, right?
(Mr. Rosenthal) That’s correct, Your Honor.
(The Witness) This was not — oh, I’ll tel] you why I
didn’t appeal.
At the Inmate Grievance Committee, they would not
hear the contention about the loss of the typewriter, et
cetera, because it was pending before this court, that’s
the reason they gave me.
(The Court) Pending before this court?
(The Witness) Yes.
That’s the reason they gave me.
(The Court) Why don’t I remand it back there?
(Mr. Rosenthal) We would have no objection to that,
Your Honor, so they could have a hearing, factual
determination.
(The Court) All right, that’s the only reason they
didn't hear it?
(The Witness) That’s the reason why they didn’t hear
it, that’s the reason I didn’t appeal that decision,
they (215) say they don’t have jurisdiction.
Tla
(The Court) What number is that?
(Mr. Rosenthal) That number—
(The Court) Yes.
(Mr. Rosenthal) Your Honor, I'd have to do some
research to determine that.
(The Court) Well, find the number, and send it back
over there, with this opinion, okay; do you have any
others like that, that should go back?
(Mr. Rosenthal) .*#ain, Your Honor, we would have to
review his files.
(The Court) Okay.
(Mr. Rosenthal) Counsel does have one more question,
Your Honor, if I may.
(The Court) Sure.
By Mr. Rosenthal:
Q. Mr. McCray, the claim that the Inmate Grievance
Commission found to be meritorious— A. Yes.
Q. —do you recall someone from the institution, or
the Inmate Grievance Commission, asking you to
submit the value of the items that were found to have
been lost? A. No, I don’t. I’ve been trying — I’ve
approached Captain — what’s his name — well, one of
the Captains, I’ve approached Major Mills on numerous
occasions about it, and (216) they said that it’s not in
their hands, it’s out of their jurisdiction, and it takes an
Act of Congress to see the Warden in the institution.
So, I don’t know, you can write him, I’ve written
letters, I think you might have copies of letters I’ve
written, concerning the property, and it just hasn't been
honored, it’s as simple as that.
I, for one, definitely want to be given compensation
for that property, and I would be glad if somebody
would take an interest.
(Mr. Rosenthal) No further questions, Your Honor.
(The Court) All right, make sure that they get a letter
telling them how much the property is worth, will you,
they've asked for it, Mr. Morgan.
i2a
(Mr. Morgan) Yes, Your Honor.
(The Court) All right.
(Mr. Morgan) I'm sorry, I didn’t hear the question.
(The Court) I say, make sure they get a letter setting
out how much the property is worth.
(Mr. Morgan) Yes, Your Honor, we will.
(The Court) All right.
Okay.
(Mr. Morgan) Your Honor, we have nothing further
on the Plaintiffs side.
(The Clerk) Step down.
(217) (The Court) All right.
(Mr. Rosenthal’ Well, if Your Honor please, we would
move for motion to dismiss as far as Sgt., now Lt.
Smith, is concerned; I don’t believe that there is really
anything that has been presented by Mr. McCray to
show any cruel and unhuman punishment under the
circumstances that exist in the instant case.
(Mr. Morgan) Your Honor, in response to that, I think
Haines, which is 92 S. Ct., a 1972 case, disposes of the
State’s claim.
The factual allegations that were made by the
prisoner there are almost identical to the factual
allegations we’re making in this complaint, Eighth
Amendment and Fourteenth Amendment violations.
There are numerous lower court cases that have
awarded relief, damage relief, to prisoners based on
both Eighth and Fourteenth Amendment claims,
included among which are Anderson versus Nausser,
United States, ex rel Wolfe versus Neale, for example,
Wright versus McMann, Sostre versus McGinnis.
We would feel that a motion to dismiss at this time for
the Defendants would be inappropriate.
(The Court) Motion denied.
Proceed with your case.
(Mr. Rosenthal) Yes, we would call Lt. Smith to
the (218) stand.
T3a
LT. BERNARD DAVID SMITH,
a Defendant. was called as a witness for and on behalf
of the Defendants, and, having been first duly sworn,
testified as follows:
(The Clerk) State your name, sir.
(The Witness) Bernard David Smith.
(The Clerk) What is your first name?
(The Witness) Bernard.
(The Clerk) Thank you.
DIRECT EXAMINATION
By Mr. Rosenthal:
Q. Mr. Smith, what is your occupation? A. Im a
Correctional Officer Number Four.
(The Court) Correctional Officer, what?
(The Witness) Four.
By Mr. Rosenthal:
Q. And to which institution are you presently
assigned? A. Maryland Penitentiary.
Q. And were you there in November of 1971? A. I
was.
Q. Now, how old are you, sir? A. 35.
Q. And have you finished high school? (219) A. I
finished high school and I have an Associate of Arts
Degree in Law Enforcement.
@. And from where did you obtain this degree? A.
Community College of Baltimore.
Q. Now, how long have you been assigned to the
Maryland Penitentiary? A. 1 came to the Maryland
Pentientiary in February, 1964.
Q. And prior to that, what was your employ-
ment? A. I was a Correctional Officer, still, but I was
working in the House of Correction.
Q. And for how many years total have you been a
Correctional Officer? A. 12 years and eight months.
Vda
(). Now, you are familiar with Mr. McCray? A. Very
well so.
Q. And are you also familiar with the incident to
which he refers? <A. Correct.
(. Now, what was your duty assignment at the
Maryland Penitentiary in November of 1971? A. I was
a Sergeant in charge of the south wing, which is the
segregation area for all the penal institutions in the
State of Maryland.
(The Court) Sergeant in charge of what?
22) (The Witness) South wing, which is the
segregation area for penal institutions of the State of
Marvland, the main segregation area.
By Mr. Rosenthal:
Q. Now, do you recall on November 19, 1971, where
Mr. McCray was assigned? A. Right.
(). Where was he assigned’? A. He was assigned to
the south wing.
. And do you recall what tier, or cell? A. Yes, I do.
See, that day was the first time I ever met him and for
some reason he was supposed to be locked up in the
south wing and I put him on the fourth tier, street side,
the particular cell I don’t remember.
Q. Was there any particular reason why he was
placed street side? <A. No, it’s a cell like any other cell
and it was an available cell, which everything was
operating in it, I mean by that, the toilet, light fixture,
sink, and it had bedding, and so forth, in it, this is the
reason why I placed him in that cell.
Q. All right, and then what, if anything hap-
pened? A. Well, after he got up there for a while, he
started screaming, you know, real loud, as a matter of
fact I never (221) heard a man scream this loud before,
so I thought I better go up myself to find what the
problem was.
Well, when he started screaming, it seemed as though
a lot of the other inmates in this area, maybe they knew
Tha
him, or semething, they didn’t get along with him, and
it was causing a disturbance, they were telling me I
better get him off that cell, off this tier, because they
didn’t want to be involved in all this noise, they
couldn’t sit and concentrate or talk with their buddies
with him raising all this ruckus up there.
This is the reason why I transferred him off that tier.
Q. And which tier did you take him to? A. I took
him around the other side of the fourth tier, yard side.
Q. Now, when you refer to street side and yard side,
would you describe this a little clearly? A. Well, street
side is facing Forrest Street, Greenmount Avenue area,
you know, the people walking up and down the street
can hear the noise real loud. If I put him on the other
side, well, the noise would go into the compound, that’s
facing the yard area.
@. Now, when you say facing, are vou talking about
the cell door, the window, or— A. The cell door.
(222) You see, at this particular time on the street
side, the windows was just like windows like that, you
know, they weren’t covered, or anything like that, and
the noise would carry on out to the street.
Q. Now, what, if anything, took place after you
placed him on the fourth tier, yard side? A. Well, when
I placed him on the fourth tier, yard side, he deliber-
ately tore off a locker off the wall.
(The Court) What?
(The Witness) A locker.
In each cell, we also have a wall locker, on the wall,
and this he was using to bang against the cell wall, on
the next cell, and he was hitting on the floor, banging,
and he had torn up the mattress, and everything.
All right, I went back up on the tier, and at this time
was the time for feed-up, it was around 11:30 in the day,
and it was causing disturbance on the other side.
So, I decided to bring him downstairs, this is when I
put him in the IC area.
76a
By Mr. Rosenthal:
(). And was any — did anyone help you to take him
to the IC area? A. Well, there’s a standard rule, we
always have another officer with us when we open the
door, so I did have another officer with me.
(223) Q. Would that be Officer Baylor? “. I don’t
recall, Baylor or Hendricks, it was one of v..e two.
q). All right.
Now, what transpired when you went down to the
isolated cell area? A. Well, we went down to the
isolated cell area, what I did, I handcuffed him, and he
walked of his own free will, nobody carried him
anywhere, and he was talking, you know, like he was
going to do harm to himself, tear this up and hurt
himself, so the first thing got into my mind, I say, well,
if he hurts himself it won’t be caused by my negligence,
so this is when I stripped him.
Q. And what, if anything, did you remove from the
cell? A. At that time, I removed his mattress, all his
clothes. Well, it’s a policy when you take a man down to
strip search him anyway, but I didn’t give him his
coveralls back, because he was talking about doing
harm to himself, and the only thing that he had in his
cell at that particular time was a toilet and the sink.
He had a light in the cell, it’s recessed in the wall
whereas he can't get to it to break the bulb to cut
himself with the glass.
Q. Now, why did you remove the mattress? (224)
A. Well, I've seen inmates take a mattress and tear it
up into strips and make a rope out of it and use it to
hang himself.
I'm not saying that he would hang himself, but it has
happened, you know.
Q. So, you took the mattress and clothes for what
reasons? A. For reasons he wouldn’t do harm to
himself.
See, at this time, I didn’t know him very well, this
was almost — I had just met him really that day, so I
eS wa ee
77a
didn’t know what type of personality or attitude he was,
you know.
Q. Did you return the next day when you went on
duty? A. The next day I did return and, actually, when
they put a man in IC, you have an officer in that area to
check. him every half hour, and the next day I did
return and take a look at him in the morning, always do
this myself.
@. Which shift were you working? A. 8:00 to 4:00.
Q. 8:00 in the morning to 4:00 in the afternoon? A.
Right.
@. And when you went back to check on Mr. McCray,
what, if anything, did you discover? A. When I went
back to check on this particular (225) inmate, actually,
when I went into the IC area, you know, the smell was
unbearable.
What he had done, he had defecated into a cup and
then smeared it all over himself and all over the cell
wall, and he had even wrote a name up there, his
nickname is Black Hawk, and he wrote this with this
human waste on the wall.
So, right away, I said to myself, I can’t put him back
up on the cellblock when he’s in that position he’s in
now. This is when I got hold of Mr. Musk, he was the
psychologist who comes over to the south wing.
After that, I had to shower him right away, and I had
two tier runners, and the tier runner is an inmate who
works in the area, to scrub the cell around.
@. And was Mr. McCray kept on isolation? A. He
was still in isolation.
Q. And do you recall when he was taken back to the
south wing? A. I think he stayed there two days and
he started acting all right, and I put him back up on the
tier, the third tier, I believe I put him on, 325 I believe it
was, that’s on the yard side, also.
Q. Now, at any time did you throw water on Mr.
McCray? A. Never did.
Q. At any time did you drag him down the steps? A.
He walked of his own free will.
78a
(226) Q. Well, what is the — strike that, please.
(Mr. Rosenthal) Your witness, Counsel.
CROSS EXAMINATION
By Mr. Morgan:
() Lt. Smith, this incident that you described as the
second day, that would have been November 21st, 1971,
when you went into the cell area, isolated area, and
found fecal matter spread on the walls? A. I'm not
sure what day it was, but it was the next day after he
came into the isolation cell.
(). You’re absolutely sure that this was during the
same period of time? A. Yes.
(. Mr. McCray has been in the isolated confinement
cell numerous occasions, hasn't he? A. Right.
Q. To your knowledge? A. Yes.
Q. But you’re absolutely sure that this particular
incident that you’re describing occurred on November
20th, or November 21st, rather, 1971, and it did not
occur at some later time? A. It occurred right after
that, the second day.
(). You're absolutely sure of that? A. Right.
(227) Q. Did you write up a report on that? A. I
should have, I’m not sure, because sometimes every-
thing happens at the same time and you don’t get a
chance to write reports, but, actually, he wasn’t doing
anything to harm anybody and I probably didn’t bring
that to any priority, because I think I was locking up
some more people at that time.
Q. Did you write up a disciplinary report on the
spreading fecal matter on the walls? A. That’s what
I'm talking about.
You see, him spreading this matter — I could have
done it, but him spreading this matter on the walls
wasn't harming anybody, it wasn’t a security risk, it
was just him, it was his matter, see, so no other person
got involved in it.
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79a
Q. Did you make a record of that in the south wing
log book? A. I might have. I had to call Mr. Musk, I
_ to make sure the psychologist came over the same
ay.
Q. Would you have made a notation in the log book of
those things? A. I should do it, I might have done it,
I’m not sure.
Q. If Dr. Musk had visited Mr. McCray in isolated
confinement, would there have been a record of that in
the — (228) wing log book? A. He makes his own
records.
Q. There would have been no record of that in the
south wing book? A. Usually, he comes over at
random, he comes over a day, maybe two or three days
from now, maybe two or three days in a row.
Q. Okay.
Now, can you identify this, Sgt. Smith, is this the
south wing log book? A. That’s one of them, there’s
more than one.
Q. Well, referring you to Page 194, at the top of the
page, it’s dated 11/20/71, 8:00 to 4:00 shift. A. Yes.
Q. Would that be what had occurred on that day? A.
If it’s written in here, everything that happens is not
written in here.
Q. Is it normally your practice to write down
disturbances that occur in south wing? A. We try to, it
tepends. You see, sometimes there could be a major
disturbance happen some place else, most of the officers
have to leave one area and go where the excitement is
at, and some things never get down.
Q. Well, on this particular day, November 20, 1971,
do you see any notation there written by yourself, or
anyone (229) else, of any disturbance occurring on
south wing? A. No.
As a matter of fact, that’s not my handwriting, that’s
the clerk.
Q. Do you see anything there referring to Milton
McCray on November 20? A. No.
CE
80a
Q. There’s no notation here of Milton McCray
participating in a disturbance, is there, or causing a
disturbance? A. No, I didn’t say he participated in a
disturbance. The disturbance he was involved in was
his own.
Q. Well, you testified that when he was in his cell on
the third or fourth tier, yard side— A. Right.
Q. —that he was banging on his cell walls? A.
That's the reason why he was taken out of the cell.
Q. Yelling out the door, causing a disturbance? A.
Right, that was his disturbance, nobody else joined in.
q. Oh, I see.
Well, under those circumstances, why was it neces-
sary to take him out of his cell and put him in isolated
confinement? (230) A. Because if he stayed in that
area there, causing this noise, then I would have a
chain reaction and the other inmates may have joined
in and I would have really had a major disturbance.
In this case, I was dealing with one man, so, to me,
security wise, better to deal with one than twenty.
Q. It could have caused a disturbance, but at the time
when you moved him there was none? A. Right.
But even the inmates was yelling to move him.
Q. Lt. Smith, I show you the entries on the 8:00 to
4:00 shift, November 21st, 1971, which would have been
the next day, and I ask if there is anything there that
indicates anything about the Plaintiff, Mr.
McCray? A. Nothing in here.
Q. There’s nothing written there about his having
spread fecal matter on the walls of his cell? A. No, but
I don’t think he would deny it.
Q. Going back to the original incident, not the
incident you say occurred in the isolated confinement
area, this creating a disturbance incident.
Did you write up a disciplinary report on McCray for
that and submit it to the adjustment team for their
disposition? A. I’m not positive, I believe I did, but I’m
not (231) positive.
Sla
I know every time I move a man from a wing to an
isolated cell, I have to get it approved by a Captain, or
above.
Q. Right. A. To document it.
You just can’t put an inmate in isolation on your own
free will.
Q. Right.
Well, what I’m asking, Lt. Smith, is not whether you
got approval from the Captain, but whether or not you
wrote up a disciplinary ticket on Mr. McCray for a
violation of prison rules? A. I should have.
@. Do you recall whether or not you did? A. Well,
I’m not positive of that.
Q. Do you have any records here today that would
indicate that you did? A. No, I didn’t bring any
records.
Q. All right, if you wrote such a report, I assume it
— be in Mr. McCray’s file? <A. It should be in his
folder.
Q. Do you recall, Lt. Smith, going to an adjustment
team, or a disciplinary hearing in this case, perhaps
that would refresh your memory? (232) A. Well, his
cases, I never went to one of the hearings.
Q. You don’t recall testifying before an adjustment
board about creating a disturbance? A. Well, if I wrote
him up, I wouldn’t have to go there and testify, what I
put on paper should be sufficient.
Q. Lt. Smith, if you see a violation in the institution,
I assume it is your practice to write up a disciplinary
ticket? A. Right.
Q. Sgt. Smith, could you describe the isolated
confinement area physically? A. Well, it’s—
(Mr. Rosenthal) Your Honor, I object, unless counsel
is going to lead into something other than what Mr.
McCray said.
(Mr. Morgan) Well, Your Honor, we feel that this is
important for corroboration of what Mr. McCray said.
(The Court) Well, I'll permit it.
Sla
By Mr. Morgan:
(). Would you describe for us briefly, Lt. Smith, the
isolated confinement area, the cells, what's in the cells,
how large they are, and the doors? A. Well, the
isolation area had six cells, and I guess the cells are,
maybe, about, maybe ten by five, or ten by (233) seven
feet, I'm just guessing now.
They have a toilet and a sink, which are two separate
units. They have a light which is recessed at the back of
the cell, behind a thick glass which cannot be broken.
Water can be turned off in the back of the cell, you
know, just in case, maybe, the inmate starts flooding,
and it has a — maybe about as high as this first step
here, the same size the mattress is, and the mattress
goes on top of it.
The walls are made out of cement, so is the ceiling.
And then you have a grill door with maybe a twelve
inch opening in it by three and a half inches high for
food to be passed in to the inmate; and then you have a
solid wooden door on the front of that, which has a
peephole that you can — if the door happened to be
closed and locked, you can look and see how the inmate
is doing.
There’s a storeroom officer back there at all times
who takes the inventory of property when the man
comes in that area.
You see, we use that area, also, for incoming inmates,
to search and check them down, strip search.
(. Sgt. Smith, can you identify this piece of paper —
or Lt. Smith? A. Ahuh. This is — we use something
similar to this, (234) not exactly like this. This writing
on here is done by the clerk, that’s his handwriting.
(). Which clerk is that? A. His name—
(. No, I mean, where is he stationed in the institu-
tion? A. Stationed at the desk.
(). South wing desk? A. Yes, in the IC area.
Q. I see.
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Is this a report that was made by him on the day that
Mr. McCray was put into IC? A. It looks to me like his
writing, but we don't use this kind of — a different kind
of paper.
Q. Well, this is a Xerox copy.
Did you use it at that time? A. We don't have a form
made up like this at all.
Q. You've never seen this form before? A. Not this
particular form here.
We have a long yellow form.
Q. You are aware of these forms being used—
A. Not them, not that—
@. You've never seen these forms in the south
wing” A. Not that particular kind of form, no. We
have a long yellow form, and I'll show it to you any
time vou come (235) over to the Penitentiary.
Q. Where do you think I got this? A. Well, I don’t
_— where you got it at, but I notice you have Cell 232
on tnat.
(The Court) What about that?
_ (The Witness) That’s protective custody tier, and this
is not a protective custody man, I know that.
By Mr. Morgan:
Q. Sgt. Smith, can you identify this book, and,
specifically, this page?
(The Court) What is the number of it, Counsellor?
Has it got a number?
By Mr. Morgan:
Q. This is Page 41 of what book, Sgt. Smith? A.
That’s my writing.
Q. Is this your writing at the bottom? A. Yes, that’s
mine.
Q. Can you read what it says? A. It says, McCray
had a shower today, also put in—
(The Court) What?
Sda
(The Witness) It says, Milton McCray had a shower
today, and this is the 29th, also put in ICS at 1:00 p.m.
(The Court) Wait a minute, had a shower today, and
also, what?
(The Witness) Put in IC5 at 1:00 p.m.
(236) By Mr. Morgan:
Q. And this is Page 41 of what beok? A. The log
book, south wing desk.
(Mr. Morgan) Your Honor, the Plaintiff would move
to admit this book, or this page.
(The Court) Well, why don’t you all Xerox it and get it
back to him.
(Mr. Morgan) Fine.
(The Court) All right?
(Mr. Morgan) Yes, Your Honor.
(The Court) All right.
Let me see it, would you please?
(Handed.)
(The Court) This shows 11 20/71, Saturday. Right,
had shower today, also put in IC Number 5, what’s IC
Number 5?
(The Witness) That’s a punitive cell, which he was
referring to as the hole.
(The Court) Oh.
By Mr. Morgan:
Q. Sgt. Smith, are you familiar with the isolated
confinement log book? A. May I see that, too?
(Handed.)
(237) By Mr. Morgan:
Q. These are Xerox copies of pages from that book,
can you identify them, can you identify them as Xerox
copies of pages from that book? A. Ahuh.
Q. This is Page 9 of the isolated confinement log
book, Your Honor; and specifically directing your
Sa
attention to November 20th, 1971, 8:00 to 4:00
shift.? A. Ahuh.
(). What does it indicate there with regard to
Isolation Cell Number 5? A. It says, IC Number 5,
110563, Milton McCray. He was housed in the particu-
lar cell this particular date.
Q. And that’s your signature? A. That’s my signa-
ture.
(). Can you read the next entry? A. Down here?
Q. Yes.
Can you read the date and the shift and also the
entry? A. It says — well, the date I can’t make out, but
it says, check IC area, found all three inmates doing
okay. 9:00 o'clock, Milton McCray--
(The Court) 9:00 p.m., or what?
(The Witness) a.m., it should be. I guess it’s a.m.
(238) I think this is the 4:00 to 12:00 log here, splitted
his mattress and crawled between the cotton lining.
I think the 4:00 to 12:00 officer put this on, this is not
my writing at all, and this wasn’t signed, either.
By Mr. Morgan:
Q. Now, I show you Page 10 of the same book, Sgt.
Smith, referring your attention to 1121/71, the 8:00 to
4:00 shift again.
Again, Milton McCray is indicated in IC Number 5, is
that correct? A. Ahuh.
Q. And that’s your signature next to it, isn’t it? A.
No.
That’s 12:00 to 8:00 shift — oh, right here, yes.
Q. That’s your signature indicating Mr. McCray is in
Cell 5? A. Right.
q. Is there any notation there of any incidents
having occurred in Cell Number 5? A. That wouldn't
go in this book, all this book specifies is who is in what
cell.
Q. In other words, if Mr. McCray had _ spread
defecation on the walls of his cell, it would not appear
86a
in the IC log? A. If he had hung himself, it wouldn't be
in this log (239) here.
Q. Well, you've just read an entry where he had split
his mattress— A. I didn’t put that in there, it
shouldn't have been in there. The 4:00 to 12:00 officer
put this in there, and nobody signed it.
Q. But as far as your practice is, you would never
write anything in this log book except who was in the
cell? A. Right.
Q. And your entry indicates that Milton McCray was
in the cell on the 20th and 21st? A. Right.
If you keep looking through there, you'll see almost
exactly alike.
Q. All right, fine.
(Mr. Morgan) Your Honor, we would also like to
introduce these two pages, Pages 9 and 10, and, again,
they will have to be Xeroxed.
(The Court) All right, this is going to be number
what?
A Clerk) That's Page 41 of — what log book is
this’
(Mr. Rosenthal) The south wing.
(The Clerk) The south wing?
(The Witness) Yes.
(240) (The Clerk) Page 41 of south wing log book will
be Plaintiff's Exhibit Number 1.
(Document was marked Plaintiff's Exhibit No.
1.)
(The Court) In this case?
(The Clerk) Yes, sir.
And the other two pages—
(Mr. Morgan) These are from the isolated confine-
ment log book and I would assume that they would be—
(The Clerk) 2A and 2B.
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(Documents were marked Plaintiff's Exhibits
Nos. 2A and 2B.)
(The Court) 2A and 2B?
(The Clerk) Yes, sir.
(The Court) All right, Counsellor.
By Mr. Morgan:
Q. Lt. Smith, can you identify this? A. Yes, this is
the handbook for inmates, which was revised with the
blue book that you have there now.
Q. This was in effect in— A. July. ’71.
Q. This was in effect in November, 1971, wasn’t
it? A. When did this last one come out?
Q. The last one came out, I believe, after the riots last
summer. (241) A. We'll say it was in effect then.
Q. It was in effect.
Directing your attention specifically, Lt. Smith, to
Pages 22 through 30. A. Ahuh.
Q. That sets forth adjustment violations in the
institution? A. Right.
Q. Does it not? A. Right.
Q. And on Page 25, various adjustment procedures
are set forth, isn’t that correct? A. Ahuh.
(Mr. Morgan) Your Honor, we would introduce as
Exhibit 3 these Xerox pages from the book which Lt.
Smith has identified.
(The Clerk) Marked Plaintiff's Exhibit No. 3.
(Document was marked Plaintiff's Exhibit No.
3.)
By Mr. Morgan:
Q. Those pages provide the procedure for disciplinary
hearings in the institution, don’t they, Lt. Smith? A.
Supposed to.
Q. Can you identify this, Lt. Smith? A. Ahuh.
(242) Q. Could you explain to the Court what that
is? A. This is an Administrative Directive put out by
the Deputy Commissioner, James Jordan.
SAa
What it does is pointing out that punitive or isolation
cells will be used only when an inmate is emotionally
disruptive, and used for a cooling off period, and it can
be enforced from one hour up to the time the inmate is
reasonably calm enough to go to a segregation area.
So, 1 mean, that could be one hour to 90 hours,
depends upon the inmate.
(). Directing your attention to the last paragraph
where it states:
The psychologist psychiatrist should be contacted
immediately after the confinement of the inmate, and
the inmate should be evaluated within a twenty-four
hour period. A. Right.
(). My question is, first, in this particular case, did
vou within 24 hours of 1:00 o'clock on 11/20 71 contact
a psychologist or a psychiatrist and inform him or her
that Milton McCray was in isolation? <A. I explained
to vou not long ago that after the human waste, I called
the next morning, it was less than 24 hours.
q. And at that time, the inmate was evaluated? A.
Whatever he did, I don’t know what he did, he
went (243) back there, talked to him.
Q. You’re absolutely sure that on this particular
oceasion, Milton McCray spread his own waste in
that ceil? A. Well, he was the only one in there at that
time, so I imagine it would have to be him.
Q. Couldn't have been a different time? A. Well,
when he went in the cell, there wasn’t any waste on the
walls and there wasn’t on him, so where it came from, I
don't know.
(Mr. Morgan) We will introduce this, Your Honor, we
would move to introduce this as Plaintiffs Exhibit
Number 4. I think.
(The Clerk) A Xerox copy.
(Mr. Morgan) This is a Xerox copy of the Administra-
tive Directive.
(Document was marked Plaintiff's Exhibit No.
4.)
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By Mr. Morgan:
Q. Mr. Smith, or Lt. Smith, I'm sorry, during this
period of time when you were Sergeant in charge of the
south wing area, did you have the authority to place an
inmate in the isolated confinement area? A. Right, I
then notified my immediate supervisor.
(The Court) Wait a minute, excuse me.
What did you say?
(244) (The Witness) I said, yes, and then I notified my
immediate supervisor.
By Mr. Morgan:
Q. Are there any written policies or regulations of the
south wing that indicate how long a person is to be kept
in isolated confinement? A. I think you just showed
me that, didn’t you?
Q. That policy is a directive of the Division of
Correction, my question is whether there are any
specific policies of the south wing, internal institutional
policies, that govern how long a person is to be kept in
the isolated confinement area? A. Well, we only have a
verbal thing, that was from word of mouth, that a man
shouldn’t stay in there for three days.
Q. And was that— A. And with me, I’ve always had
a policy of my own, not to keep a man over but one
night, the next day, you know, depends on the man.
Q. Lt. Smith, do you recall testifying in a deposition
in this case on June 7th, 1973? A. Right.
Q. I read to you from Page—
(The Court) June the 7th, Counsellor?
(Mr. Morgan) June 7th of 1973, yes, Your Honor.
(245) (The Court) Ahuh.
By Mr. Morgan:
Q. I read to you from Page 11 of that deposition:
Question, do you know how long McCray spent in
that confinement at that time?
Answer, I don’t know. It’s a policy with me, I don’t
keep a man in there over three days, if I had seen he
90a
was improving | would take him out and put him back
up on the cellblock.
Your testimony here today is that it was the
institution’s policy that a man would not be kept there
for three days, but that it was your personal policy that
you would not keep a man there more than one day, is
that correct? A. Right.
Q. In your deposition, you testified, it was a policy
with me, I didn’t keep a man in there over three
days. A. Depending on the man, and some people,
being as you are on the subject, some men, like McCray
himself, came back to live in the IC area, he lived there
tor a matter of months.
(The Court) He did what?
(The Witness) He lived in the IC area.
(The Court) What did he do, what did you say?
(The Witness) Let me explain this to you, Judge.
(246) (Mr. Rosenthal) Lived, Your Honor.
(The Witness) He lived there, Judge.
He lived there, sir. Now, after I got to know Milton
McCray pretty well, he always called me and talked to
me, so we ‘alked like normal men would talk, and he
asked me one day could he come down to the IC area
and live there and do his time there, and his, of course,
personal belongings, like his law, court papers, which is
about four boxes full, so at that time I wasn’t up tight
for a cell of this type.
(The Court) What?
(The Witness) At this particular time, I didn’t need
this type cell because I didn’t have any problems, so I
permitted him to go in there and live, if he wanted to, so
this was his choice.
(The Court) Well, this was after this incident, wasn’t
it?
(The Witness) Right.
I mean, beings we were talking about the area, IC
area, the number of days a man stayed there, but on his
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Qla
own request, if I didn’t need a cell and you wanted to
live in there, it’s perfectly all right with me.
By Mr. Morgan:
Q. Well, on this particular occasion when Mr.
McCray requested to live in these cells, did he not also
request to live in his cell with a mattress? (247) A.
Then he had a mattress, because I just told you a
minute ago, we used to talk, he had calmed down
enough that he had learned a little about me, I had
— a little about him, so we corresponded like men
should.
So, he asked my permission, could he come down to
live in the IC area. So, I said, why do you want to live
there? He said, I can be away from this noise and I can
do my legal work. So, I said, good enough.
So, every morning, down in the area doing his legal
work. He asked me for paper and pencil and writing
material, which I gave him myself.
Q. Sgt. Smith, on that occasion you’re describing, Mr.
McCray had his clothes in his cell, didn’t he? A. Had
his clothes and anything else he might want, right.
Q. In other words, his cell during that period of time
was exactly the same as the cell in the south wing,
except he was in a different area? A. Right.
Q. Now, the time we’re talking about, Mr. McCray
was in the cell without any clothes at all, is that
correct? A. Correct.
Q. Without a mattress? A. Right.
Q. Without anything else in his cell? (248) Right,
because he had displayed himself differently then.
Q. I see.
But on the occasion when Mr. McCray put himself
there voluntarily, to get away from the noise— A.
That was different.
Q. —he had exactly the same conditions of confine-
ment as had he been on the south wing? A. Right.
Maybe a little better.
(The Court) Is that right, Mr. McCray?
va
(Plaintiff McCray) All except — to a degree.
(The Court) What?
(Plaintiff McCray) To a degree, yes. I mean, as far as
the conditions of the cell at that particular time.
I didn’t volunteer to go in the hole, that part he’s
exaggerating on.
(Mr. Morgan) Your Honor, we'll be glad to have Mr.
McCray testify.
(The Court) Yes, we'll have him testify to everything
he has got.
(Mr. Morgan) Your Honor, in case there’s any
confusion about this point, we’re not challenging these
cells per se as a place in which to live, we’re merely
saying that a person cannot be put in them under the
conditions Mr. McCray was put in them.
(249) (The Witness) I would like to say something
about that, too.
(Mr. Morgan) Well, Lt. Smith, you have to respond to
my questions, if you don’t mind.
(The Court) Well, are you going to be a little while?
I think we might as well go to lunch and come back at
2:00.
(Mr. Morgan) I wouldn’t expect to be too much longer,
Your Honor.
(The Court) Well, I think maybe that’s best, and then
we'll go on to the other things we have to do.
All right.
(Mr. Morgan) Your Honor, if the Court would have no
objection, the Plaintiff would prefer to litigate the
Rutherford case on Thursday, if possible. We would
prefer to have some time to further discuss that case.
(The Court) What about Burrell?
(Mr. Morgan) Well, Your Honor, I think the Burrell
case is not going to take all day Thursday and I think
Mr. Rutherford’s case—
(The Court) Well, if it does like this, it will, won’t it?
Qa
(Mr. Morgan) Well, no, Your Honor, I think if we can
start at 10:00 o'clock, we'd be finished by the
lunch (250) break, in the Burrell case.
(The Court) Is that all right with you, Mr. McCray?
(Plaintiff McCray) I think so.
If he thinks so, I think he’s better qualified than I am
to decide.
(Mr. Morgan) We would prefer to have that extra day.
(The Court) All right, we'll talk about it when we
come back, I can’t give my life to Mr. McCray.
(Whereupon, at 1:05 o’clock p.m., a luncheon recess
was taken until 2:00 o'clock p.m.)
(251) AFTERNOON SESSION
(Met, pursuant to the taking of the recess, at 2:15
o'clock p.m.)
LT. BERNARD DAVID SMITH,
resumed the witness stand, and, having been previously
duly sworn, testified further, as follows:
(The Clerk) Just be seated, Lieutenant, you are still
under oath, sir.
CROSS EXAMINATION (Resumed)
(Mr. Morgan) Your Honor, with regard to the case
against Mr. Rutherford, Mr. Rosenthal and I talked
about it during the break, and I suggested, and I think
Mr. Rosenthal has no objection, if we could take that
case at 10:00 o’clock on Thursday morning, we feel it
would take no more than half an hour to litigate that
case, and the Plaintiff would certainly appreciate
having that time, if possible.
(Mr. Rosenthal) For the record, Your Honor, Mr.
Rutherford is here, we are prepared to go ahead, but
— to whatever the Plaintiff and/or the Court
decide.
(The Court) Well, why do you want to take it at that
time?
Y4ta
(Mr. Morgan) On Thursday, Your Honor?
Well, quite frankly, Your Honor, the problem has been
that we are dealing here with four separate cases.
(252) (The Court) I know that.
(Mr. Morgan) And, quite frankly, we are not as well
prepared in the Rutherford case as we would hope to be.
I think we could go ahead today because the factual
issues are very simple.
(The Court) Just whether he got it or didn’t get it,
isn't it?
(Mr. Morgan) Well, that’s pretty much it, Your Honor,
but I think we could do it in a more organized and
orderly fashion if we could have the time between now
and Thursday morning.
wy Court) How long is the Burrell case going to
take?
(Mr. Morgan) Your Honor, in the Burrell case, the
Plaintiff would testify and Dr. Gould would testify on
his behalf, I don’t know what witnesses the Defendant
would call.
(Mr. Rosenthal) Your Honor please, we would have
the Defendant and a minimum of one additional
witness or probably two. I’m not sure we would finish
that in one day, Your Honor, to be quite frank with you,
and I’m basing that upon the time — of course, we did
get a little late start today, but the time this case has
taken with just, basically, Plaintiff and the Defendant.
If the Plaintiff intends to have the doctor and the
Plaintiff, and I know we (253) will have an absolute
minimum of two witnesses, I’m reasonably sure the
case would probably go over to Friday.
(The Court) Well, Mr. Morgan, what kind of — what
are you looking for in the Rutherford case, that you
haven't got already?
(Mr. Morgan) Well, Your Honor, I think probably the
facts in the case we could stipulate to, Mr. Rosenthal
and I, we haven't discussed exactly what records we
would stipulate to except that I would think anything in
Wa
the court files the Defendants would have no objection
to entering as evidence here, and that’s pretty much our
case.
We have no other evidence, other than Mr. McCray’s
testimony that he mailed certain petitions in to the
court, received certain letters back from the court, but
the court files—
(The Court) It only involves one case, doesn't it, that
he claims to have mailed in?
(Mr. Morgan) It involves two, I believe, Your Honor,
two complaints that were mailed to the court and not
docketed.
(Mr. Rosenthal) My recollection was that there was
one, Your Honor, from the pleadings, but I may be
mistaken, also.
(The Court) Was what?
(Mr. Rosenthal) Just one, if I recall correctly, from the
pleadings, there was just one writ or petition that (254)
the Plaintiff sent in that he alleges was not properly
docketed.
(The Court) Well, why don’t we take what testimony
we can in that case today, Mr. Rutherford is over here,
we can take that, and if you want to put on something
on Thursday, you can do it, okay?
(Mr. Morgan) All right, sir.
At the conclusion of this case?
(The Court) Yes.
(Mr. Morgan) Fine.
(The Court) All right.
(Mr. Morgan) Maybe Mr. Rutherford could just be on
call, unless he wants to watch the rest of this case, we
have no objection to that.
(The Court) Well, we’ve got some other people to go on
here.
Mr. Rutherford, what do you want to, stay over here
or do you want to go back?
Ya
1 hate to bring you back and forth, that’s all I'm
thinking about.
(Mr. Rutherford) Your Honor, I']] do whatever counsel
and Your Honor thinks best.
(The Court) How much longer are you going to be in
this thing, do you think?
(Mr. Rosenthal) Weil, if Your Honor please, we
would (255) have as of this moment no redirect of Lt.
Smith and I think we are rapidly approaching the end
of cross-examination by Mr. Morgan, but we do have in
the courtroom Major Mills and Warden McCallan for
the purposes of substantiating the matters in the letter
of October 17, 1972.
Now, assuming that the examination on direct, Your
Honor, would go merely to this letter, the contents and
the information thereof. and I assume that cross-
examination would be limited to those points, which
would not be that long.
(The Court) All right.
Well, then that means about an hour, Mr. Rutherford.
do you want to stay around?
(Mr. Rutherford) I'll wait, Your Honor.
(The Court) You may get something over there that
should be filed, and then file it and you can be back
over here.
That's all right.
(Mr. Rutherford) Thank you, Your Honor.
(Discussion off the record.)
(Mr. Morgan) Your Honor, prior to the break, there
were some articles of evidence that we had to have
Xeroxed and during the break I submitted those to the
Clerk and they have since been filed.
(256) (The Court) All right.
(Mr. Morgan) In addition to that, the Plaintiffs and
the Defendants have stipulated to Plaintiff's Exhibit 5,
I believe, which is a notice of offense and adjustment
team report.
97a
(The Court) What is it?
(The Clerk) Notice of offense.
(Mr. Morgan) Notice of offense, Your Honor, dated
November 20th, 1971, and an adjustment team report
dated the same day.
(The Clerk) Marked Plaintiff's Exhibit No. 5.
(Document was marked Plaintiff's Exhibit No.
5.)
(Mr. Rosenthal) For the record, Your Honor, instead
of a stipulation, I think it would be better to state that
we have no objections.
(Mr. Morgan) Fine.
In addition to that, Your Honor, during the initial
stage of cross-examination of Lt. Smith, I showed him
and he identified and read from Pages 194 through 197
of the south wing log book, and although I don’t think I
formally introduced those pages into evidence at that
— I would like to do so now, we have Xerox copies of
them.
(The Clerk) The south wing log book.
(Mr. Morgan) This is the south wing log book,
Pages (257) 194 and—
(The Court) Well, we did introduce that, didn’t we, Mr.
Graham?
(The Clerk) We have Page 41, Your Honor.
(The Court) Oh, this is different?
(Mr. Morgan) We have Page 41 of the south wing desk
book, I think.
(The Court) Oh.
(Mr. Morgan) This is the log book, and we also have
Pages 9 and 10 of the isolated confinement log book.
(The Court) Well, I thought those were in.
(The Clerk) This will be marked Plaintiff's Exhibit
Number 6.
(The Court) What is it?
YSa
(The Clerk) 6, sir.
(Document was marked Plaintiff's Exhibit No.
6.)
By Mr. Morgan:
Q. Lt. Smith, can you identify this document? A.
This document here?
Q. This entire package.
(Mr. Morgan) For the record, this is a package of
about one and a half inches in width, it’s a file with a
sheaf of papers in it.
(The Witness) It looks like a folder to me.
(258) By Mr. Morgan:
Q. The base file from the institution on Mr.
McCray? A. Right. That’s his there, it looks like.
Q. All right, sir.
I direct your attention to a sheet of paper placed in
approximately the middle of the base file with Milton
McCray’s name on it and the institutional number
110563 with a notation, received 12/30/71, and I’m
asking if you can identify the writing there? A. It
looks like the clerk’s writing.
q. The south wing clerk? A. Right, his writing looks
like that.
Q. Can you read the writing? A. It says, placed in
IC Number 3, at own request.
(The Court) Placed in IC, what?
‘The Witness) Number 3, at own request.
That's the third cell in the IC area.
(The Court) What's the date of it?
(The Witness) 12/30/71, and—
(Mr. Rosenthal) Your Honor please, unless there is
some relevancy, December 30th, it’s six weeks later.
(The Witness) According to this thing — I'll read the
whole thing all over again.
(Mr. Mergan) Well, we feel this is proper cross-
examination, Your Honor.
GY4a
(259) (The Witness) Wait a minute. Placed in IC3 at
own request. Defecated and spread throughout cell,
ordered to MO.
(The Court) And did what?
(The Witness) Defecated again.
(The Court) Yes.
(The Witness) Which I was talking about earlier.
By Mr. Morgan:
Q. Well, Lt. Smith, it does not say, defecated
again. A. I’m saying this.
Q. All right.
Do you recall two incidents of Mr. McCray defecating
in his cell between November 20, 1971, and December
30, 1971? A. The only incident I recall is one, I don’t
recall this one here, but it’s possible, it could have
happened.
Q. Isn't it possible that this is the incident to which
you were referring? A. No, because, actually, he did it
numerous times, but the times before that he had done
it, I don’t know anything about. I did read somewhere
in his base file.
(. In any event, this is an incident of his defecating
in the isolation area cell on 12/30/71? A. Well, as I
said before, things that should be documented, every-
thing is not documented like it should be, and (260) it
may be an error on my part.
Q. But this particular instance was documented? A.
That particular one was documented by the clerk.
Q. Now, on the incident that you described this
morning, I believe that would have been November
21st, 1971? A. Ahuh.
@. When you went to his cell in the morning, I believe
you testified, and you witnessed his defecation on the
walls of the cell and the name, Black Hawk, spelled
out? A. Yes.
100a
(). In defecation in the cell, was there anyone else
there with you at that time? A. Officer Hendricks was
there, and I don’t know any other officers that were
there, but I did get the tier runner to come there for
clean-up, his waste material.
Q. Is Officer Hendricks still there, a Correctional
Officer at the Penitentiary? A. Right.
Q. Did you have an opportunity to discuss this
matter with Officer Hendricks before you testified
today? A. No.
Q. You also testified that after this incident you
requested that the psychologist, Dr. Musk, a Mr. Musk,
see Mr. McCray, is that correct? A. That’s what I said.
(261) Q. Now, when did that occur? A. The same
day that he defecated on the wall.
Q. And when did Mr. Musk come to the isolated
confinement area and see Mr. McCray?
(The Court) How do you spell this?
(The Witness) M-u-s-k.
He came prior to the noon feeding, you know, the
noon meal, which starts at 11:30.
By Mr. Morgan:
Q. Did you talk to Mr. Musk at that time? A. I told
him who I wanted him to see, so he talked to Milton
McCray.
Q. And the very next day, Mr. McCray was released
from isolated confinement? A. I believe he was.
(. Was he released by you personally? <A. Well, he
was put back up on the tier.
_ Q. Sgt. Smith, going back to the beginning of this
incident on the tier, you said Mr. McCray was making a
disturbance and causing some noise, did Mr. McCray
say anything to you when you went to his cell? A.
Well, the first cell he was in, or are you talking about
the second cell?
_Q. The second occasion. (262) A. The second occa-
sion, when I put him down in the IC area.
10la
Q. Just before you put him in the IC area, did you
have occasion to talk to Mr. McCray? A. He was
making derogatory statements to me, but that happens
all the time, but with any derogatory statement he was
talking about doing harm to himself, this is the reason
why I disrobed him when I took him down, for
precautions, of hurting himself.
Q. What specific harm was he suggesting he would
do to himslef? A. Well, he didn’t make any specific
harm, but he said he wasn’t going to do any time in the
south wing, he would rather die than do time in the
south wing, and so, that was enough for me to see that
he might do something to injure himself, that’s why I
took precautions.
Q. Isn’t it true that he asked you about his law books
and requested— A. Yes, he asked that all the time, the
minute he comes in the door he asks that.
Q. Was there any reason why you couldn’t have
given him his law books on that day? A. Yes.
Q. Why was that? A. When he first came over to the
south wing area, (263) nobody had had time to pick
his law books up from his previous cell and inventory
what he had, so when a man first comes in the south
wing area, he comes in himself. The law books, and
what have you, follow.
Q. Didn’t you testify that he had been on south wing
since the 17th of November? A. Yes, he came on the
17th of November.
Q. Well, that would have been three days, does it
normally take more than three days? A. It may takea
week.
Q. For his personal belongings? A. That’s right, it
depends on how many people come over that particular
time.
Q. I see.
Didn’t Mr. McCray ask if he could have a shower at
that time? A. He had a shower.
LO2a
| Q. He had been given a shower, a delousing shower.
isn't that correct? A. There wasn’t any such thing as a
delousing shower.
When he came over the first day, we didn’t know
about his prescriptions. The following day, the hospital
sent over his prescriptions for a medical shower. He
was getting medical showers frequently, at least once a
day, or (264) something. If a day, he missed a medical
shower because of something happening in the institu-
tion, we'd call him down and give him a medical
shower, and he was also given his little plastic
container to apply to his body when he got through
showering.
Q. You're talking general terms, now, you're not
talking about— A. About him, talking about him.
Q. You’re not talking about that specific day? A.
hon en day he got a shower, he had defecated on
imself.
—Q. No, I'm talking about the day on which he was put
into IC. A. The day he was put into IC, he didn’t get a
shower, not to my knowledge, he didn’t.
(The Court) He didn't what?
(The Witness) He didn’t get a shower, the day he was
put into IC. The day he was put into IC, the same day
he came into the south wing.
Bl iy Court) Didn't he come in the south wing on the
ith’
(The Witness) I believe it was the 17th, I’m not
positive, the date.
By Mr. Morgan:
Q. Well, Lt. Smith, the 17th was three days before
the (265) 20th, and the 20th is the day he was put into
[C, therefore. he couldn't have been put into IC the
same day he came to the south wing, could he? A.
What — sure, he could be put into IC the same day he
come to south wing, but what day— :
Q. That’s not what happened to Mr. McCray. A.
What day was that on, was that a Saturday?
103a
Q. I don’t know.
(The Court) Here it is, what day was it on, it says up
top, doesn’t it?
Let me see those exhibits.
(Handed.)
(Mr. Rosenthal) Your Honor please, I have a ’71
calendar here.
(The Court) It is a Saturday, I know that.
(Mr. Rosenthal) Yes, sir, it was a Saturday.
(The Witness) Well, that explains itself.
Saturdays is one of the shower days for the whole
wing, so every time a man gets a shower, especially
IC. we document it. We document it for the purpose, if
he refuses one and turns around Monday and makes a
complaint that he didn’t get one—
By Mr. Morgan:
Q. All right, do you normally work on Sundays, Sgt.
Smith, — Lt. Smith? (266) A. Right.
Q. You do work Sundays? A. Right.
Q. During this period of time, were you working on
Sundays? A. I don’t recall.
Q. You just testified that you recall going in the IC
area the very next day, which was a Sunday. A. The
next day is Sunday.
This is why I asked you, was the next day a Sunday.
Q. Well, the 20th, Mr. Rosenthal tells us, wasa— A.
Now, wait a minute, you said he came in the wing on
the 17th?
Q. It’s your testimony, Sgt. Smith. A. I mean, you
said this, I said the next day I called the psychologist.
Now. whether it was Saturday, or Wednesday, or
Thursday, I’m not sure.
Q. That would have been the day following the day
he was put into IC? A. Correct.
104a
Q. My question is, assuming that had been a Sunday,
would you have been on duty that day? A. That
particular Sunday, I don’t know.
Q. Sgt. Smith, you testified that you went into the IC
area the following day— (267) A. Listen—
Q. —and saw what you saw. Now, you're testifying
that you don’t recall whether you were on duty that
day. A. Well, you listen.
If the day he came in the wing was a Saturday, I was
working Sunday. If it had been a Thursday, I’m not
positive I was working Sunday, or not.
Do you understand that?
Q. Is the isolated confinement area supervised by a
correctional guard, officer? A. I explained to you
earlier.
Q. How is it supervised? A. An officer that works
back there in the storeroom, by the name of Hendricks,
he’s back there five days a week.
Q. Does he sit in that area all the time? A. He’s in
there, unless he’s needed elsewhere.
@. From where the guard post is in that particular
area, can he see into all the cells? A. He’s about 15 feet
away from them.
Q. From each of the cells? A. The cells are all in
front of him, he’s facing them.
Q. He could see in Cell Number 5, couldn’t he? A.
He could see in Cell Number 5, 4, 3,—
Q. If an inmate was in Cell Number 5 doing bodily
harm (268) to himself, Sgt. Hendricks could see that,
couldn't he? A. Right, and then he has to check them
every half hour, anyway.
Q. Are there any written regulations or policy, Sgt.
Smith, that guide you when you put an inmate — or
during this period of time, at least, that would have
guided you when you put an inmate into isolated
confinement concerning whether he was to receive a
mattress, or not? A..I explained that to you once, but
I'll do it again.
105a
If an inmate is going to do some harm to himself, I
remove the mattress.
If he’s not attempting to do any bodily harm to
himself, he gets a mattress when he goes in. Also, a pair
of coveralls.
Q. Well, my question, Sgt. Smith, was whether or not
there was any written policy or regulations at this
period of time concerning— A. No, it’s not a written
regulation, you have to use your own judgment in a lot
of incidents.
Q. From your own experience? A. Rig!it.
Q. Was Mr. McCray, when he was put in isolated
confinement, given any reading materials? A. When
he was first put in, I didn’t give him anything.
(269) Q. Is there any reason why he couldn't have
had reading materials, in your judgment? A. Well, like
I said, when I put him in the first time, I stripped him of
everything because he was talking about doing bodily
harm to himself, so that means he didn’t get reading
materials, books, pencils, or anything.
Q. From your experience in the institution, Sgt.
Smith, have you ever had personal knowledge of an
inmate doing bodily harm to himself with a book? A.
No, but in my personal experience I’ve cut an inmate
_—_ that had hung himself by strips off a mattress, or
sneets.
Q. But you never had that kind of occasion with
regard to a book, have you? A. No.
Q@. Was Mr. McCray given a blanket? A. Nothing,
nothing.
Q. Did you testify, Lt. Smith, that Mr. McCray’s
clothing was removed before he was put into isolated
confinement? <A. You're playing games with me, I just
explained—
Q. Well, I believe you testified on direct examination
that his clothing was not removed. A. I told you, when
I brought him down he was talking about doing bodily
harm to himself. I stripped him, stripped, (270) that
means no clothes.
106a
Q. In the same deposition that I referred to before, Lt.
Smith, on June 7, 1973, on pages 7 and 8, my question
was, at the bottom of the page:
Did McCray have clothes on when you put him in?
Referring to IC.
Your Answer:
Right.
(Mr. Rosenthal) Objection, Your Honor, because it
doesn’t say, referring to IC, in the deposition.
(Mr. Morgan) Well, if we want to read back through
the whole deposition, I think we can agree that that’s
what we were discussing.
Do you want to start back further?
(Mr. Rosenthal) Read the whole thing.
(Mr. Morgan) Well, we would have to begin back at
the middle of Page 6.
(Mr. Rosenthal) Well, I think that’s all right, if you
continue 7 and 8, I think the Lieutenant explains
himself.
(Mr. Morgan) All right, fine.
Beginning on Page 7. Okay.
Did McCray have clothes on when you put him in?
Answer, right.
Question, he did?
Answer, ahuh.
(271) Question, wasn’t stripped?
Answer, no, at that time he wasn’t stripped, he hada
set of coveralls on.
Question, was he stripped later?
Now, I don’t remember, I’m not for sure whether he
was stripped later, or not.
By Mr. Morgan:
Q. Now, your testimony here today is that before you
put him in the cell, he was stripped, because you felt he
was to do bodily harm to himself? A. Right, and,
107a
listen, when he first came in, when an inmate first
comes in a segregated area, he automatically goes in
IC, that’s any inmate.
Q@. No— A. Now, listen.
_ And then he’s searched, he’s stripped of all his
institutional clothing and puts or a set of green
coveralls and he goes on the tier.
Q. Yes. A. If I bring him back down to IC to be
housed for some infraction that — or something he was
going to do to himself, if I thought he was going to
do some harm to himself, then I would strip him
completely and leave him stripped.
Q. Yes. A. And I think that should answer that, too.
(272) Q. And that’s what you did in Mr. McCray’s
case? A. Right.
Q. And what you said in your deposition was
incorrect then? A. It seems to me like, when he first
came in IC, he had clothes on, you understand, he came
in, he had clothes on.
Q. After you brought him down from the tier, he had
his coveralls on, right? A. Correct. On the tier he had
his coveralls on.
Q. Right. A. Correct. And then when I put him back
in IC for housing, he had nothing on.
Q. In your deposition, Sgt. Smith, at Page 8, you
stated in answer to my question:
Wasn't stripped?
No, at that time, he wasn’t stripped. He had a set of
coveralls on.
Was he stripped later?
Now, | don’t remember, I’m not for sure whether he
was stripped later, or not. A. Well, I did strip him
later, but when he first came there he wasn’t stripped.
Q. In other words, your statement in your deposition,
I’m not sure whether he was stripped later, or not—
(273) A. And after think about what really
108a
happened the following day, I remember him being
stripped, and then the next day I came in he had a
mattress, which Officer Green gave him on 4:00 to
12:00.
Q. Well, in any event, it’s your b
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