Petition — Ward v. Powell

; 8 ) gg 2. 1 ) 4 Office-Supreme Court, U.S.

oe FILED

In The JUN 2 1981

' Supreme Court of the Hniter Stateso=s

October Term, 1980

BENJAMIN WARD, individually and as

Commissioner of Correctional Services,

JANICE WARNE, individually and as

Superintendent of Bedford Hills

Correctional Facility, and PHYLLIS JOAN

CURRY, individually and as Superintendent

of Bedford Hills Correctional Facility,

Petitioners,

~against-

ELIZABETH POWELL, DALREE MAPP, KATHERINE

PURRINGTON, ALTHEA McDANIELS, PAULA HERBERT,

CYNDI REED, and MARGARET GATLING, on Behalf

of Themselves and all Others Similary Situated,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

ROBERT ABRAMS

Attorney General of the

State of New York

Attorney for Petitioners

The Capitol

Albany, New York 12224

Telephone (518) 474-8352

Dated: June I, 1981

SHIRLEY ADELSON SIEGEL

Solicitor General

FREDERICK R. WALSH

Assistant Attorney General

Of Counsel

i

Questions Presented

1. Does a prison inmate charged with serious misconduct which

could result in loss of good time or disciplinary confinement, havea

due process right not to be segregated for more than a fixed number

of days (here, seven days) pending investigation and the holding ofa

hearing on such charges?

2. Is it not clear error under Wolff v. McDonnell, 418 US 539

(1974), to require in all cases a written statement of reasons for

refusing to call a witness requested by the inmate to testify at his

disciplinary hearing?

3. Does due process require that Spanish speaking inmates be

given notices and statements in Spanish?

4. Is a correctional officer who witnessed or participated in

investigation of alleged misconduct disqualified from serving on the

disciplinary hearing panel?

TABLE OF CONTENTS

PAGE

Opinions Below......ccccccccccccccccccsroccccces |

Jurisdiction 2. .ccciccccccccccccccccevcccvcccceses 2

Constitutional and Statutory Provisions Involved .... 2

Statement of the Case .........ccccccccccceccscees 2

Reasons for Granting the Writ..........--+eeeeeees 5

COMCMBIOR 000 cccccdccscrcocceccccccscvcveseseces 12

Appendix A ocvscccccvcccccdcccvccscsseesdeeecees A-1l

ABDOREEEB oc cccccvvcvcdcsccvccccsssongsesreces A-3

AMPOndiX Coccccvccarccccccdecccveworesscccosers A-22

ASPUEE Dis vidicc ccksivccvcvcccvccdetccenecense’ A-27

Appendix EB... cccsivcccccecccovcccvovepecensocese A-71

Appendix Fon. ccccccccccccscccccccesscseceeueses A-73

ADDONS Ss 606 ecco ccacerdvécsctiocondvevandec-v.s A-80

ADDONGIE Go 5id vs ccdccciceverccsccncetesosecverecs A-82

ABDOREIE TE 6 ic cccccccddbenccdvetersewand bopnes'ec A-97

POOR J ii ccc vidarcecescccdepatvspodpvioen’ ao A-98

ii

TABLE OF AUTHORITIES

CASES PAGE

Baxter v Palmigiano, 425 US 308 (1976) ............ 7,8

Morrissey v Brewer, 408 US 471 (1972) .........006- 10

Powell v Ward, 392 F Supp 628 (1975), affd as mod 542 1-6, 8,

F2d 101 (1976); 487 F Supp 917 (1980), affd as 9, II

mod ... F2d __. (March 4, 1981): ....escccess

Simon v Eastern Kentucky Welfare Rights Organization

OOO Ue Be CAPTO). oc bee ee lence pe ieeeonskcee's 12

U.S. ex rel. Curtis Houston v Warden, Stateville

Correctional Center, 635 F2d 656 (1980) .......... 9

Warth v Seldin, 422 US 490 (1975) ..........cceeees 12

Wolff v Mc Donnell, 418 US 539 (1974) ........-005- 2, 4-12

Federal Statutes

PR AISG 12ST CS) iv ccc ec ctaiecddevevccsvenseoeses 2

NURIA ORR Sacco Soak cae desi conse 2

Federal Constitution

Fourteenth Amendment, first section ...............

New York Statutes

Correcuon Lilw; $197 (5). kc a's vicas cehbvies suisse dies 9

Correctional Law, § 137 (6) .......ceseeeeeeeceeces 9

iii

TABLE OF AUTHORITIES (cont’d.)

New York Rules and Regulations

TNYCRR Z251,6:(8) oc. vicccccdsccnccscsvvccseveces

TARR TORU ZOD Cb oS 486 tai s cacececereveadwoee

TIAA BOS UU) Vedic es vaweess eOh bee tees es

T NYCRR Part 253: 6.0 locccccscccccesccscnetecece

New York Constitution

BRAY, OM ios ior Gil nih diss dusweiees eee

Miscellaneous

Supreme Court Practice (Sth ed), Stern and Gressman

| ie ie RS) Ns Spa aera er ra ya a

PAGE

—-— $$ —— —-—

In The

Supreme Court of the United States

October Term, 1980

No.

BENJAMIN WARD, individually and as

Commissioner of Correctional Services,

JANICE WARNE, individually and as

Superintendent of Bedford Hills

Correctional Facility, and PHYLLIS JOAN

CURRY, individually and as Superintendent

of Bedford Hills Correctional Facility,

Petitioners,

-against-

ELIZABETH POWELL, DALREE MAPP, KATHERINE

PURRINGTON, ALTHEA McDANIELS, PAULA HERBERT,

CYNDI REED, and MARGARET GATLING, on Behalf

of Themselves and all Others Similarry

Situated,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Opinions Below

The opinion of the Court of Appeals below is not reported and is

reproduced as Appendix B to this petition. The opinion of the

United States District Court for the Southern District of New York

which was thus affirmed is reported at 487 F Supp 917 and is

reproduced as Appendix D. The opinion on the preliminary

injunction is reported at 392 F Supp 628, reproduced as Appendix

H, affirmed as modified, 542 F 2d 101, reproduced as Appendix F.

2

Jurisdiction

Jurisdiction is conferred on this Court by 28 USC S 1257 (3).

The decision of the Court of Appeals sought to be reviewed was

filed on March 4, 1981.

Constitutional and Statutory Provisions Involved

This case involves the first section of the Fourteenth Amendment

of the Constitution of the United States, which provides as follows:

“All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they reside.

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person

of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal

protection of the laws.” (Emphasis added.)

This case also involves the New York State Correction Law and

Regulations (Appendix I, J).

Statement of the Case

In 1975 the District Court for the Southern District of New York

(392 F Supp 628, App H) granted a preliminary injunction ina class

action brought pursuant to 42 USC, § 1983 to bring disciplinary

proceedings at a New York State prison for women known as

Bedford Hills Correctional Facility (“Bedford Hills”) which might

result in solitary confinement into conformity with due process

standards set forth ir, Wolff v Mc Donnell (418 US 539 [1974]). The

preliminary injunc.ion was modified and affirmed on appeal to the

Court below in 1976 (542 F2d 101, App F). In 1980 the District

Court held the superintendent of Bedford Hills in contempt for

failure to comply with the prior order and the injunction was made

permanent (App D). The Court below largely affirmed the District

Court order (App B).

New York law provides for two major types of prison disciplinary

proceedings: Adjustment Committee proceedings and Super-

intendent’s Proceedings, 7 New York Code of Rules and

3

Regulations (“NYCRR”) Parts 252, 253. As summarized WAS

“Adjustment Committee Proceedings are designed to

effectuate an inmate’s ‘understanding of and ad-

herence to’ the rules governing his behavior, 7

N.Y.C.R.R. § 252.5 (a), and are ’said to be marked by

flexibility and non-punitive intent.’ Powell v Ward,

supra, 292 F Supp at 629, quoting Crooks v Warne, 74

Civ. 2351, slip op. at 9 (S.D.N.Y. 1974) vacated, 516

F.2d 837 (2d Cir, 1975) (judgment for individual

inmate in Bedford Hills vacated in light of class relief in

Powell). The Superintendent’s Hearings are strictly

disciplinary in nature. 7 N.Y.C.R.R. § 253. See Powell

v Ward. supra, 392 F. Supp. at 629. Prior to May 19,

1975, beth types of proceedings could result in confine-

ment in a special housing unit or segregation unit. /d.

at 639 n.2. The May 19, 1975 amendments to 7

N.Y.C.R.R. §§ 252.3(f) and 252.5(e) revised the scope

of Adjustment Committee action such that the

Committee could order that an inmate be kept locked

in his cell for a period of time not to exceed two weeks,

§ 252.2 or that an inmate be confirmed to a special

housing unit, provided that the Committee immedi-

ately recommended that a Superintendent’s Proceed-

ing be held. § 252.5(e)(3). By implication, the 1975

amendment deprived the adjustment Committee of the

power to confine an inmate to a special housing unit

without an immediate recommendation that a Super-

intendent’s Proceeding be convened. The two-week

limitation on keeplocks was reduced to seven days in

amendments to § 252.2(e)(2) effective May 12, 1980.”

*The decision granting the preliminary injunction was rendered on

April 23, 1975 (392 F Supp 628), prior to the amendments in the

regulations noted above.

4

The decision of the Court below which is sought to be reviewed

described the 1975 order, as modified on appeal, as follows, (A7-8)

“The 1975 Order was designed to require that, in

disciplining inmates, defendants comply with the

procedural requirements set forth in Wolff v Mc-

Donnell, 418 U.S. 539 (1974). ***The 1975 Order

provided, in pertinent part, as follows:

“1. Defendants shall conduct all Adjustment

Committee or Superintendent’s Proceedings, or other

disciplinary proceedings that may result in an inmate

at Bedford Hills Correctional Facility being confined

in a Special Housing Unit or Segregation Unit, in

accordance with the following procedures:

a) Formal written notice of charges must be served on

the inmate at least 24 hours before the hearing;

b) The inmate shall be permitted to call witnesses on

her behalf provided that so doing does not jeopar-

dize institutional safety or correctional goals. The

written notice of charges served in accordance with

Paragraph 1(a), shall inform the inmate of her right

to call witnesses;

c) If permission to call a witness is denied, the party

conducting the hearing shall give the inmate a

written statement stating the reasons for the denial,

including the specific threat to institutional safety or

correctional goals presented by the witness;

d) At the conclusion of the hearing, the inmate shall be

given a written statement of the evidence relied on

and the reasons for any action taken;

e) No person who has participated in any investigation

of the acts complained of, or who was a witness to

those acts shall be a member of any Adjustment

Committee or Superintendent’s Proceeding relating

to those acts;

“2. If any inmate is confined to Special Housing or

segregation ‘pending investigation’ of charges, a

hearing must be held within seven days of the date of

5

her confinement. In unusual or emergency situations,

the seven-day requirement may be extended but only

with the permission of the Commissioner of Correc-

tional Services or his designee.”

In 1980 the District Court (App D) granted the plaintiffs’ motion

: for an order holding the facility’s superintendenin contempt for

widespread violations of the 1975 order and entered a permanent

injunction. The Court “clarified” the 1975 order to specify that

Spanish speaking inmates who cannot read or understand English

be given notices and statements in Spanish. The Court of Appeals

affirmed. It agreed with the District Court that the evidence of

defendants’ noncompliance with the 1975 order was clear and

convincing and held that the provisions of the contempt order were

within the bounds of the District Court’s discretion.*

Reasons for Granting the Writ

Wolff v McDonnell, 418 US 539 (1974), provides both a

philosophy and a working document defining minimum due

process standards to be observed in disciplining prison inmates

facing sanctions such as loss of good time or solitary confinement

(418 US at 571, fn).

In the litigation at bar the Court of Appeals for the Second

Circuit, inter alia, has imposed an inflexible rule relating to the

inmate’s right to call witnesses in plain disregard of this Court’s

decision in Wolff.

Furthermore, a novel due process right has been created by the

Courts below for the New York prison system, namely, a right not

to be kept in solitary confinement (or its equivalent) beyond a fixed

number of days, pending investigation and the holding of a hearing

on charges of serious misconduct. Petitioners submit that this

requirement seriously violates Wolff's hallmark of “mutual

*The Court below ordered expungement of the class records back to the

1975 Order. It affirmed the award of nominal damages only because “with

the exception of the existence of damaging prison records, which will be

expunged asa result of the 1980 Order, plaintiffs had not proven any actual

injury as a result of defendants’ noncompliance with the 1975 Order”.

be

: 6

accommodation between institutional needs and objectives and the

provisions of the Constitution that are of general application” (418

US at 556).

A.

The order of which petitioner Curry was ruled in contempt, which

sets a minimum constitutional standard for prison discipline in all

New York State correctional institutions, provides as to the calling

of witnesses: (A-7)

“b) The inmate shall be permitted to call witnesses on

her behalf provided that so doing does not

jeopardize institutional safety or correctional

goals. The written notice of charges served in

accordance with Paragraph I(a), shall inform the

inmate of her right to call witnesses;

“c) If permission to call a witness is denied, the party

conducting the hearing shall give the inmate a

written statement stating the reasons for the

denial, including the specific threat to institutional

safety or correctional goals presented by the

witness.” (Emphasis added.)

This standard, insofar as it requires a written explanation of the

denial, is clearly in conflict with Wolff.*

This Court in Wolff stated no more than that such a statement

*The fact that not all of the provisions of the 1975 order were appealed

does not prevent zeview by this Court of the entire 1975 Order. Supreme

Court Practice (5th ed.), Stern and Gressman (§ 2.2, p 53) states:

“Moreover, the Court on certiorari to review a final decree

can reach back and correct errors in the interlocutory

proceedings below even though no attempt was made to

secure review of the interlocutory decree or even though

such an attempt was made without success. Toledo Scale

Co. v Computing Scale Co., 261 U.S. 399, 418; Hamilton-

Brown Shoe Co. v. Wolf Bros. & Co., 240 U.S. 251, 257-258;

nover Shoe, Inc. v. United States Machinery Corp., 392

S. 481, 488, n. 6; Mercer v. Theriot, 377 U.S. 152, 153-

154.”

7

could be “useful” but firmly concluded that “{t]he better course at

this time, in a period where prison practices are diverse and

somewhat experimental, is to leave these matters to the sound

discretion of the officials of state prisons.” /d., at 569. The Court

stated:

“Although we do not prescribe it, it would be useful for

the Committee to state its reason for refusing to calla

witness, whether it be for irrelevance, lack of necessity

or the hazards presented in individual cases. Any less

Slexible rule appears untenable as a constitutional

matter, at least on the record made in this case. The

operation of a correctional institution is at best an

extraordinarily difficult undertaking. Many prison

officials, on the spot and with the responsibility for the

safety of inmates and staff, are reluctant to extend the

unqualified right to call witnesses; and in our view,

they must have the necessary discretion without being

subject to unduly crippling constitutional impedi-

ments. There is much play in the joints of the Due

Process Clause, and we stop short of imposing a more

demanding rule with respect to witnesses and docu-

ments.” /d., at 566-67. (Emphasis supplied).

The requirement in the Second Circuit that the notice of charges

“shall inform the inmate of her right to call witnesses” raises an

expectation of being permitted to “call” witnesses who will testify

live before inmates at disciplinary proceedings, absent a written

statement of institutional reasons for not permitting it. Where this

Court left the question open as a constitutional matter, the Second

Circuit has closed the door. The wisdom which led this Court “not

to prescribe” a rule requiring a statement of reasons for not

permitting witnesses to be “called” by the inmate, has been

overlooked; the rule has been prescribed.

The calling of witnesses leads to demand for confrontation and

cross-examination, which as this Court recognized, presents

“considerable potential for havoc inside the prison walls”. Wolff,

418 US at 567. See, also, Baxter v Palmigiano, 425 US 308, 320-22

(1976).

Baxter, supra, involved a similar situation where a Court of

8

Appeals, purporting to apply Wolff standards, held that failure to

set forth reasons in writing to inmates denied the privilege to

confront witnesses in disciplinary proceedings was prima facie

abuse of discretion. This Court rejected that reading of its opinion

in Wolff, stating as follows (425 US at 322):

“This conclusion is inconsistent with Wolff. We

characterized as ‘useful’, but did not require, written

reasons for denying inmates the limited right to call

witnesses in their defense.”

We submit that the Court of Appeals below committed a like

error.

This Court has not previously had occasion to pass on the

question whether minimal due process safeguards for a prisoner

charged with serious misconduct include a fixed time limit on

keeping him in solitary confinement (or the equivalent) pending

investigation and a hearing on such charges. We respectfully

submit that this novel question of constitutional right should be

settled by this Court.

The order in question, which purported to reflect the spirit as well

a ad of the Wolff guidelines (542 F2d at 102), provides in part:

“2. If any inmate is confined to Special Housing or

segregation ‘pending investigation’ of charges, a

hearing must be held within seven days of the date of

her confinement. In unusual or emergency situations,

the seven-day requirement may be extended but only

with the permission of the Commissioner of Cor-

rectional Services or his designee.”

This portion of the 1975 order as modified and as so modified,

affirmed by the Court of Appeals in 1976, was interpreted by the

Court of Appeals in the order below entered on March 4, 1981, to

mean that the hearing not only has to be commenced within seven

days, but that it must be concluded within that time to warrant

continued confinement where a full due process hearing has not yet

taken place and been completed. As the Court found no ambiguity

in the word “held”, it upheld the order finding the superintendent in

contempt of the 1975 provision.

9

We have been unable to find in any other Circuit a constitutional

standard comparable to this seven day rule imposed by the Second

Circuit. The rule appears to be uniquely applied to the New York

prison system. In fact, the Court of Appeals for the Seventh Circuit,

in a case involving an Illinois statute requiring that a disciplinary

hearing for prison inmates be commenced within eight days, held

that a two-month delay “dees not rise to constitutional propor-

tions.” U.S. ex rel. Curtis Houston v. Warden, Stateville

Corrrectional Center, 635 F2d 656, 659(1980). Thus, there appears

to be a direct conflict in interpretation of due process standards per

Wolff between the Second and the Seventh Circuits.

In extending due process requirements beyond those mandated

by this Court, the decision below fails to take into consideration the

status of the respondents as convicted felons. “Prison disciplinary

proceedings are not part of a criminal prosecution, and the full

panoply of rights due a defendant in such proceedings does not

apply.” (Wolff v McDonnell, supra, 418 US at 556.) To qualify as

constitutionally protectible “liberty”, the prisoner's interest must be

assured either by statute, judicial decree or regulation (id., at 557).

The respondents have no due process protected expectation not

to be keeplocked in their cells until charges can be investigated and

disposed of. New York State gives statutory authority to a

superintendent and his designees to confine inmates to their cells for

an unspecified period of time. Section 137, subd. 5 of the New York

Correction Law provides: “When any inmate or group of inmates,

shall* * * resist or disobey any lawful direction, the officers shall use

all suitable discipline, to secure the persons of the offenders ***.”

Al a 7 NYCRR 251.6(a) (App J) Section 137, subd. 6, provides:

“The superintendent of a correctional facility may

keep an inmate confined in a cell or room, apart from

the accommodations provided for inmates who are

participating in programs of the facility, for such

periods as may be necessary for maintenance of order

and discipline * **.” (Emphasis added.)

No statute nor regulation requires that a Superinvendent’s

Proceeding or an Adjustment Committee Hearing be conducted

10

within a certain period of time after an inmate is keeplocked or

assigned to a special housing unit.*

An Adjustment Committee is required to interview an inmate

confined to his cell or to a special housing unit at its first meeting

following the date of the confinement and may release the inmate or

hold him pending disposition of the matter by a Superintendent's

Proceeding. 7 NYCRR 252.3(f) (App J). The Adjustment

Committee is not required to recommend that a Superintendent's

Proceeding be held within any specific period of time (see 7 NYCRR

Part 252 (App J), nor do the regulations outlining the procedure for

the conduct of a Superintendent’s Proceeding require that it be held

at nay given time after an inmate is keeplocked to his cell or

confined to special housing (7 NYCRR Part 253) (App J).

Respondents do not have the same level of protected due process

interest as an inmate enjoying the “conditional liberty” of parole

who is facing parole revocation charges (Wolff v Mc Donnell, supra,

418 US at 561-562. As the latter have no due process right to a

hearing within a fixed number of days, a fortiori the respondents do

not. In Morrissey v Brewer (408 US 471 [1972]) this Court outlined

the minimal due process requirements for parole revocation to

include a “preliminary hearing * * * as promptly as convenient after

arrest while information is fresh and sources are available * * *” (id.,

at 485), and a ‘ual “revocation hearing*** tendered within a

reasonable time after the parolee is taken into custody * ** .”(/d., at

488; emphasis added.)

*The Court of Appeals in its 1976 opinion (542 F 2d at 103) stated that

an administrative directive of the New York Department of Correctional

Services on March 12, 1975 instructed all institutions to accord confined

prisoners an Adjustment Committee hearing within 3 days and a

Superintendent's Proceeding within 7 days of such special confinement in

the absence of exigent circumstances. The directive referred to was issued

by a deputy commissioner and counsel and merely provided that, “an

Adjustment Committee or Superintendent's Proceeding * * * shall be held

promptly” and further, “In the absence of exigent circumstances, as a

guideline: for inmates confined and awaiting an Adjustment Committee

proceeding or Superintendent's Proceeding, the Adjustment Committee

should be held within three days and the Superintendent's Proceeding

within seven days”. (Emphasis added.) Under New York law (Constitution

Art. IV § 8) the guideline did not have the force of a regulation and should

not be accorded any weight on the question here at issue.

11

Wolff v McDonnell (supra) involved Nebraska's disciplinary

scheme, under which in the case of serious misconduct an inmate's

good time credit may be ordered to “* * **be forfeited or withheld

and also that the person be confined in a disciplinary cell.” (418 US

at 546-47). Disciplinary confinement pending the hearing was

described as follows (id., at p 552):

“When a prisoner is isolated in solitary confinement,

there appear to be two different types of conditions to

which he may be exposed. He may be incarcerated

alone in the usual ‘disciplinary cell.’ with privileges

severely limited, for as long as ne-essary, or he may be

put in a “dry cell,’ which, unlike regular cells, contains

no sink or toilet.” (Emphasis supplied.)

This Court did not hold in Wo/ff that an inmate is entitled to a

disciplinary hearing within any particular period of time. “As long

as necessary” is the proper standard, but the Court below held

petitioner Curry in contempt for violating a fixed judicial standard

of seven days.

Cc.

On the question of representation of illiterate inmates, a category

comparable to non-English-speaking, this Court said in Wolff v

Mc Donnell (at p 570):

“Where an illiterate inmate is involved...or where

the complexity of the issue makes it unlikely that the

inmate will be able to collect and present the evidence

necessary for an adequate comprehension of the case,

he should be free to seek the aid of a fellow inmate, or if

that is forbidden, to have adequate substitute aid in the

form of help from the staff or from a sufficiently

competent inmate designated by the staff.”

Therefore, it was error for the Couit below to hold that “due

process requires that Spanish speaking inmates who cannot read or

understand English be given notices and statements in Spanish”.

The proper interpretation of this Court's due process standard is

that a Spanish-speaking inmate should be free to seek the aid of a

fellow inmate or a staff member who is bilingual to assist in the

12

preparation of his defense, a very different requirement from the

one imposed.

Finally, nothing in the record indicates that any of the named

plaintiffs is Spanish-speaking. It was error, therefore, to include

such a provision in the order. The named class representatives have

to “allege and show that they personally have been injured, not that

injury has been suffered by other identified members of the class to

which they belong” (Simon v Eastern Kentucky Welfare Rights

Organization, 426 US 26, 40, n 20 [1976], quoting Warth v Seldin,

422 US 490, 502 [1975]).

D.

The order in this litigation, purporting to comply with Wolff

standards, disqualifies anyone who has participated in the

investigation from membership on the hearing panel ( q I[e]). Such

an issue was not addressed in Wolff. This Court there considered

impartiality in the context of having various prison officials on the

panel, including as chairman the Associate Warden Custody, and

found “no warrant in the record presented here for concluding that

the Adjustment Committee presents such a hazard of arbitrary

decisionmaking that it should be held violative of due process of

law.”

Similarly, it is submitted that nothing was presented in the record

here warranting per se disqualification from membership on the

hearing panel of anyone involved with the investigation.

CONCLUSION

FOR THE FOREGOING REASONS, THE PETITION FORA

WRIT OF CERTIORARI SHOULD BE GRANTED.

Date: Albany, New York

June |, 1981

13

Respectfully submitted,

ROBERT ABRAMS

Attorney General of the

State of New York

Attorney for Petitioners

State Capitol

Albany, New York 12224

Telephone (518) 474-8352

SHIRLEY ADELSON SIEGEL

Solicitor General

FREDERICK R. WALSH

Assistant Attorney General

Of Counsel

A-l

APPENDIX A

United States Court of Appeals

FOR THE

SECOND CIRCUIT

At a stated Term of the United States Court of Appeals for the

Second Circuit, held at the United States Courthouse in the City of

New York, on the fourth day of March, one thousand nine hundred

and eighty-one.

Present: HON. IRVING R. KAUFMAN

HON. AMALYA L. KEARSE

HON. MYRON H. BRIGHT

Circuit Judges,

ELIZABETH POWELL, DALREE MAPP,

KATHERINE PURRINGTON, ALTHEA #80-2141

McDANIELS, PAULA HERBERT,

CYNDI REED, and MARGARET

GATLING, on Behalf of Themselves and all

Others Similarly Situated,

Plaintiffs-Appellees-Cross-Appellants

vs.

BENJAMIN WARD, Individually and as

Commissioner of Correctional Services,

JANICE WARNE, Individually and as

Superintendent of Bedford Hills

Correctional Facility, and PHYLLIS JOAN

CURRY, Individually and as Superinten-

dent of Bedford Hills Correctional Facility,

Defendants-Appellants-Cross-A ppellees

Appeal from the United States District Court for the Southern

District of New York

This cause came on to be heard on the transcript of record from

the United States District Court for the Southern District of New

York, and was argued by counsel.

A-2

ON CONSIDERATION WHEREOPF, it is now hereby ordered,

adjudged, and decreed that the order of said District Court be and it

hereby is affirmed as modified with costs to be taxed against

defendant-appellants in accordance with the opinion of this court.

A. DANIEL FUSARO, Clerk

by Edward J. Ghardaro

Deputy Clerk

A-3

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT MAK j 7 ic

+

No. 522-3—September Term, 1980

(Argued October 27, 1980 Decided March 4, 1981)

Docket Nos. 80-2141, -2162

+

ELIZABETH POWELL, DALREE MApP, KATHERINE Pur

RINGTON, ALTHEA MCDANIELS, PAULA HERBERT,

Cynpi REED, and MARGARET GATLING, on Behalf of

Themselves and all Others Similarly Situated,

o

Plaintiffs-Appellees-Cross-Appellants,

nl

BENJAMIN WarD, Individually and as Commissioner of

Correctional Services, JANICE WARNE, Individually

and as Superintendent of Bedford Hills Correctional

Facility, and PHYLLIS JOAN Curry, Individually and as

Superintendent of Bedford Hills Correctional Facility,

Defendants-A ppellants-Cross-Appellees.

~

Before:

KAUFMAN, KEARSE, and BRIGHT,*

Circuit Judges.

_ +

° Honorable Myron H. Bright, of the United States Court of Appeals

for the Eighth Circuit, sitting by designation.

3)

A-4

Appeal and cross-appeal from an order of the United

States District Court for the Southern District of New

York, Charles E. Stewart, Judge, 487 F. Supp. 917, that,

inter, alia, entered permanent injunction with respect to |

procedures to be followed in inmate disciplinary proceed-

ings, held superintendent of correctional facility in civil

contempt of preliminary injunction entered in 1975, or-

dered expungement of certain records, and appointed a

special master.

Affirmed as modified.

+

JupitH A. GorDON, Assistant Attorney

General, New York, New York (Robert

Abrams, Attorney General of the State of

New York, George D. Zuckerman, Assis-

tant Solicitor General, Robert A. Forte,

Assistant Attorney General, Mary Anne

B. Orenstein, Legal Assistant, New York,

New York, of counsel) for Appellant-

Cross Appellee

CHARLES J. TouHy, Bronx, New York (Eliza-

beth L. Koob, James S. Braude, Bronx,

New York, of counsel) for Appellee-

Cross Appellant

—

PER CURIAM:

Defendants-Appellants appeal from an order of the

United States District Court for the Southern District of

New York, Charles E. Stewart, Judge, dated April 29,

1980, as amended by an order dated May 1, 1980 (“the

A-5

1980 Order”), 487 F. Supp. 917, holding defendant Phyl-

lis Joan Curry in civil contempt of a preliminary injunc-

tion entered June 23, 1975, as modified by this Court on

appeal, 542 F.2d 101 (2d Cir. 1976) (“1975 Order” or

“Order”). The 1980 Order imposed a fine on Curry,

ordered the appointment of a special master to oversee

future compliance with the 1975 Order, ordered the ex-

pungement of certain records, and awarded plaintiffs

damages in the amount of $1 and reasonable attorneys’

fees. Plaintiffs have cross-appealed, contending, inter

alia, that Curry should have been held in criminal con-

tempt, that the expungement order was too limited, and

that plaintiffs were entitled to a larger award of damages.

We modify the 1980 Order with respect to the period

for which records are to be expunged and, as thus

modified, we affirm.

The plaintiffs and the class they represent are inmates

at New York’s Bedford Hills Correctional Facility (“Bed-

ford Hills”) who moved for an order holding defendant

Curry, the present Superintendent of Bedford Hills, in

contempt of the court’s 1975 Order governing disciplinary

proceedings against inmates at Bedford Hills. The cir-

cumstances that gave rise to the 1975 Order are fully set

forth in the prior opinions in this case, 392 F. Supp. 628

(S.D.N.Y. 1975), affirmed as modified, 542 F.2d 101 (2d

Cir. 1976), familiarity with which is assumed.

The 1975 Order was designed to require that, in disci-

plining inmates, defendants comply with the procedural

requirements set forth in Wolff v. McDonnell, 418 U.S.

539 (1974).' The types of discipline that were the focus of

! In Wolff v. McDonnell, the Court restated the principle that inmates

in a prisoa are protected by the Due Process Clause of the Fourteenth

Amendment. /d. at 556. The Court explicitly rejected the argument

that “the interest of prisoners in disciplinary procedures is not included

in that ‘liberty’ protected by the Fourteenth Amendment,” id. at

A-6

the Order are those that could result in any of the various

“special” confinements that exist at Bedford Hills. Spe-

cial confinements can result from either an Adjustment

Committee or a Superintendent’s Proceeding,’ and can

take the form of solitary confinement in a Segregation

Unit, restricted freedom in a Special Housing Unit? or the

556-57, and required that inmates subject to such procedures receive a

variety of due process rights, including advance notice of charges,

written statement of evidence relied upon, the right to call witnesses,

and ah impartial decision maker. /d. at 556-72.

2 New York law provides for two major types of prison disciplinary

proceedings: Adjustment Committee proceedings and Superintendent's

Proceedings. 7 N.Y.C.R.R. Parts 252, 253. Adjustment Committee

Proceedings are designed to effectuate an inmate's “understanding of

and adherence to” the rules governing his behavior, 7 N.Y.C.R.R.

§ 252.5(a), and are “said to be marked by flexibility and non-punitive

intent.” Powell v. Ward, supra, 392 F. Supp. at 629, quoting Crooks v.

Warne, 74 Civ. 2351, slip op. at 9 (S.D.N.Y. 1974) vacated, 516 F.2d

837 (2d Cir. 1975) (judgment for individual inmate in Bedford Hills

vacated in light of class relief in Powell). The Superintendent's

Hearings are strictly disciplinary in nature. 7 N.Y.C.R.R. § 253. See

Powell v. Ward, supra, 392 F. Supp. at 629. Prior to May 19, 1975,

both types of proceedings could result in confinement in a special

housing unit or segregation unit. /d. at 630 n.2. The May 19, 1975

amendments to 7 N.Y.C.R.R. §§ 252.3(f) and 252.5(e) revised the

scope of Adjustment Committee action such that the Committee could

order that an inmate be kept locked in his cell for a period of time not

to exceed two weeks, § 252.5(e)(2), or that an inmate be confined to a

special housing unit, provided that the Committee immediately recom-

mended that a Superintendent's Proceeding be held. § 252.5(e)(3). By

implication, the 1975 amendment deprived the Adjustment Committee

of the power to confine an inmate to a special housing unit without an

immediate recommendation that a Superintendent’s Proceeding be

convened. The two-week limitation on keeplocks was reduced to seven

days in amendments to § 252.5(e)(2) effective May 12, 1980.

3 Placement in either a Segregation Unit or a Special Housing Unit

removes a prisoner from the general inmate population. The former

places an inmate in solitary confinement. The latter allows inmates

who cannot commingle with the general inmate population to com-

mingle with each other. 7 N.Y.C.R.R. §§ 300.2(b) and (c). The district

court found the distinction to be minor and not relevant to the issues

raised in the class action. 392 F. Supp. 628, 630 n.2.

A-7

loss of right to leave a prison cell, called “keeplock.”* 487

F. Supp. at 925. The 1975 Order provided, in pertinent

part, as follows:

1. Defendants shall conduct all Adjustment Com-

mittee or Superintendent’s Proceedings, or other

disciplinary proceedings that may result in an inmate

at Bedford Hills Correctional Facility being confined

in a Special Housing Unit or Segregation Unit, in

accordance with the following procedures:

a) Formal written notice of charges must be

served on the inmate at least 24 hours before

the hearing;

b) The inmate shall be permitted to call wit-

nesses on her behalf provided that so doing

does not jeopardize institutional safety or

correctional goals. The written notice of

charges served in accordance with Paragraph

1(a), shall inform the inmate of her right to

call witnesses;

c) If permission to call a witness is denied, the

party conducting the hearing shall give the

inmate a written statement stating the reasons

for the denial, including the specific threat to

institutional safety or correctional goals pre-

sented by the witness.

4

Keeplock is as severe a form of discipline as the other special

confinements and potentially even more severe. The district court

observed that “(t]he testimony of prison officials and inmates alike

indicated that keeplock is the equivalent of solitary confinement, tr. at

316.” The court noted that “keeplock is sometimes more restrictive

than confinement in the Special Housing Unit, when shower, exercise

and other basic privileges are removed.” (citation omitted). 487 F.

Supp. ai 925.

A-8

d) At the conclusion of the hearing, the inmate

shall be given a written statement of the

evidence relied on and the reasons for any

action taken;

e) No person who has participated in any inves-

tigation of the acts complained of, or who

was a witness to those acts shall be a member

of any Adjustment Committee or Superinten-

dent’s Proceeding relating to those acts;

2. If any inmate is confined to Special Housing or

segregation “pending investigation” of charges, a

hearing must be held within seven days of the date of

her confinement. In unusual or emergency situations,

the seven-day requirement may be extended but only

with the permission of the Commissioner of Correc-

tional Services or his designee.

1975 Order at 1-2.

The present motion for contempt and other relief on

behalf of the class was filed in the spring of 1979.

Plaintiffs contended that defendants had failed to follow

the procedures mandated by the 1975 Order with respect

to Adjustment Committee proceedings and Superinten-

dent’s Proceedings.

District Court’s Findings of Noncompliance

The district court held several days of hearings on

plaintiffs’ motion; nine members of the plaintiff class

testified; more than a dozen affidavits were submitted;

approximately 500 pages of documents were received in

evidence. After evaluating all the evidence, Judge Stewart

found, in a thorough and thoughtful opinion, that Curry

had “failed to comply in significant respects with virtually

A-9

every provision of our order.” 487 F. Supp. at 933. In

particular the court found that the 1975 Order had been

violated in the following respects:

(1) Adjustment Committee proceedings: Despite

the express mention of the Adjustment Committee in

paragraph | of the 1975 Order, defendants had made

no effort to conduct any of the Adjustment Commit-

tee proceedings in accordance with the procedures

mandated by the 1975 Order.

(2) Notice of Charges: Defendants had failed to

give inmates notices that adequately disclosed the

substance of the offenses with which they were

charged,’ in violation of 4 1(a) of the 1975 Order.

The only specification of the nature of the offense

charged was citation to a code number; to find out

what offense is covered by the code number an

inmate must refer to the “Standards of Inmate Be-

havior” rule book, which (a) is not always readily

available to inmates, (b) often lists categories of

offenses in general or ambiguous terms, and (c) is

subject to varying interpretations by different prison

officials.

(3) Witnesses: Defendants had failed to notify

inmates that they may call witnesses to testify in their

behalf, in violation of ¢ 1(b) of the 1975 Order. In

addition, witnesses were not allowed to be present at

the hearing. To the extent that defendants inter-

viewed witnesses requested by inmates they did so

5 The court found also that notice was sometimes given less than

twenty-four hours in advance, in violation of ¢ I(a); indeed several

inmates testified that they did not receive notice until the hearing

began. The court found, however, that the substance of such notice as

was given was so unenlightening that the inmates’ due process rights

were not further eroded by the untimeliness. 487 F. Supp. at 926-27.

A-10

outside the presence of the inmate and tape-recorded

all or part of the interview; they did not normally

incorporate the interview into the record of the

hearing and they did not allow the inmate to hear the

tape or see a transcript of the interview. The court

ruled that 4 1(b) must be interpreted to allow wit-

nesses to be present at disciplinary proceedings unless

the appropriate officials determine that this would

jeopardize institutional safety or correctional goals;

in the latter circumstances, a written explanation

must be given to the inmate.

(4) Explanation of Denial of Request for Wit-

nesses: Defendants had not given inmates written

statements of their reasons for denying requests for

witnesses, in violation of ¢ 1(c) of the 1975 Order.

The court rejected defendants’ contention that ex-

planation is required only when the denial is based

on grounds of institutional safety or correctional

goals.

(5) Statement of Evidence and Reasons for Dispo-

sition: Defendants had failed, at the close of any

Adjustment Committee proceeding and at the close

of some Superintendent’s Proceedings, to give writ-

ten statements specifying the evidence relied on and

the reasons for any action taken, in violation of

q 1(d) of the 1975 Order. Some of the written state-

ments that had been given following Superintca-

dent’s Proceedings had been inadequate to disclose

the evidence relied on.

(6) Membership of the Hearing Committee: De-

fendants had allowed hearing officers to conduct

investigations of the acts complained of, and had

allowed persons involved in the relevant incident to

A-11

preside over the inmates’ hearing, in violation of

q 1(e) of the 1975 Order.

(7) Hearings Within Seven Days of Confinement:

Defendants had kept inmates confined in special

units for periods substantially longer than seven days

“pending investigation” of charges, in violation of

q 2 of the 1975 Order. The court rejected defendants’

contention that inmates could be kept so confined

indefinitely “pending investigation” so long as a

hearing was commenced within seven days of the

initial confinement.

(8) Notice in Spanish for Spanisn Speaking In-

mates: Defendants had given notices and statements

only in English although several inmates testified

that they did not speak or understand English and

could not fully understand what went on at the

hearing. The court therefore clarified the 1975 Order

to specify that due process requires that Spanish

speaking inmates who cannot read and understand

English be given notices and statements in Spanish.°

On the basis of these findings the court concluded that

although nearly five years had passed since the 1975

Order was issued, “the due process violations that were

enjoined at that time are still widespread.” 487 F. Supp.

935. The court found that defendants had in several

instances adopted interpretations of the 1975 Order that

Thus, in the 1980 Order, Judge Stewart ordered that 4 I(c) of the

1975 Order be amended so as to require explicitly that notice of

charges, statements of evidence relied on, and statements of reasons

for actions taken be given in Spanish to inmates who cannot read and

understand English. Defendants have challenged the district court's

findings on this issue only on the ground that the court lacked

jurisdiction to order this clarification, contending that no plaintiff

was, in fact, illiterate in English. We find that the evidence was

sufficient to support the clarification.

A-12

were at odds with both the clear language and the intent

of the Order, and that they had adopted procedures that

contravened provisions of the Order. The court noted that

this was not the first time it had been necessary to hold

that the procedures employed at Bedford Hills were not in

compliance with the 1975 Order.’

The court found that Curry had “not [been] reasonably

diligent in complying or even attempting to. comply with”

the 1975 Order. Jd. at 933. She had been Superintendent —

for some nine months before she even learned of the

existence of the Order, and apparently lacked sufficient

concern for the actual state of compliance efforts once

she did learn of the Order. While not questioning Curry’s

good faith, the court found inexcusable such ignorance

on the part of an official responsible for achieving com-

pliance with the Order.

Remedies Ordered

On the basis of all but two of the above findings* the

court held Curry in civil contempt of the 1975 Order.

Declining to find that her noncompliance was willful, the

7 Apparently the first intimation to the court that the 1975 Order was

not being obeyed came in December 1976, when three members of the

plaintiff class moved to hold then-Superintendent Warne in contempt

for noncompliance with the Order. The district court did not hold

Warne in contempt but ordered that all references to the incident that

gave rise to the motion be expunged from those plaintiffs’ correctional

facility and parole files. The court also awarded the plaintiffs attor-

neys’ fees and expressed its concern with the “indications” of noncom-

pliance with the 1975 order. 74 Civ. 4623, June 2, 1977 (order).

8 The court noted that its ruling of contempt was not based on those

parts of the 1975 Order that were less than clear at the time of the

defendants’ noncompliance—to wit, the requirement that witnesses be

allowed to be present at hearings pursuant to { 1(b), 487 F. Supp. at

928, n.10, and the requirement that notices and statements be given in

Spanish to inmates unable to read and understand English. /d. at 932

n.14.

A-13

court denied plaintiffs’ motion to hold Curry in criminal

contempt.

Seeking principally to cause defendants to achieve and

maintain disciplinary proceedings that are in accordance

with due process, the court ruled that the preliminary

injunction embodied in the 1975 Order “shall constitute

permanent injunctive relief,” and concluded that a fine

was necessary to demonstrate to defendants the serious-

ness of their noncompliance and “to generate the effort

necessary to bring about prompt and meaningful com-

pliance with [the 1975 Order] and the Constitution.” Jd.

at 935. Accordingly, the court imposed on Curry in her

capacity as Superintendent of Bedford Hills a fine of

$5000 to be paid within one month from the date of entry

of the 1980 Order, plus $1000 thereafter for every addi-

tional day of noncompliance. The court provided that the

contempt could be purged if compliance were achieved

within that thirty-day period. In addition, given Curry’s

lack of diligence and lack of concern for compliance with

the 1975 Order, the court determined to appoint a special

master to oversee compliance with the Order and report

periodically to the court concerning defendants’ progress.

In order to compensate the victims of the defendants’

noncompliance with the 1975 Order, the court ordered

that for the period between June 24, 1977 and the date of

the 1980 Order, the records of all Adjustment Committee

proceedings, and of such Superintendent’s Proceedings as

the special master finds violated the 1975 Order, be

expunged. The order of expungement excluded, on

grounds of res judicata, certain records of class member

Janie Harris, who had previously sought and been denied

expungement of those records in state court.

Finding that expungement would remedy a significant

portion of the injury suffered by the class as a result of

A-14

the noncompliance with the 1975 Order, and that plain-

tiffs had not adequately demonstrated any other ‘actual

injury, the court declined to award more than nominal

damages. The court ruled that plaintiffs were entitled

under 42 U.S.C. § 1988 to recover reasonable attorneys

fees.

Defendants have appealed from virtually all of the 1980

Order. Largely on the basis of their interpretation of the

1975 Order as not having application to Adjustment

Committee proceedings, they assert chiefly that the Order

was not sufficiently clear to support a finding of con-

tempt, and that the evidence of noncompliance was not

sufficiently clear and convincing to support the relief

ordered. Plaintiffs have cross-appealed, contending prin-

cipally that Curry should have been held in criminal

contempt, that all of plaintiff Harris’s records should be

included in the expungement order, that the period for

which inmate records should be expunged should begin

on June 23, 1975, and that the court should have awarded

them substantial compensatory and punitive damages. We

find no merit in any of defendants’ contentions. As to

plaintiffs’ arguments, we agree only that the period for

which expungement of records is ordered should be ex-

panded. In all other respects we find the 1980 Order was

proper. Few of the arguments made to us on appeal

require extended discussion.

A. Contempt

A court has the inherent power to hold a party in civil

contempt in order “to enforce compliance with an order

of the court or to compensate for losses or damages.”

McComb v. Jacksonville Paper Co., 336 U.S. 187, 191

(1949). See Vuitton et Fils S.A. v Carousel Handbags, 592

F.2d 126, 130 (2d Cir. 1979); Sunbeam Corp. v. Golden

A-15

Rule Appliance Co., 252 F.2d 467 (2d Cir. 1958). See

generally United States v. United Mine Workers, 330 U.S.

258, 302-04 (1947). The power may properly be exercised

only if the order is clear and unambiguous, /nternational

Longshoremen’s Ass’n v. Philadelphia Marine Trade

Ass'n, 389 U.S. 64, 75-76 (1967), the proof of noncom-

pliance is “clear and convincing,” NLRB v. Local 282,

International Brotherhood of Teamsters, 428 F.2d 994,

1001-02 (2d Cir. 1970), and the defendant has not “been

reasonably diligent and energetic in attempting to accom-

plish what was ordered.” Aspira of New York, Inc. v.

Board of Education, 423 F. Supp. 647, 654 (S.D.N.Y.

1976). We find that all of these prerequisites have been

satisfied. ;

Our review of the 1975 Order satisfies us that every

provision relied on by Judge Stewart to support the

contempt ruling is clear and unambiguous. Only two such

provisions are strenuously challenged by defendants.

Their principal contention is that the 1975 Order either

excluded or did not clearly include Adjustment Commit-

tee proceedings. This argument borders on the frivolous.

Paragraph | states, “Defendants shall conduct all Adjust-

ment Committee or Superintendents’ Proceedings, or

other disciplinary proceedings that may result in an in-

mate . . . being confined in a Special Housing Unit or

Segregation Unit, in accordance with the following proce-

dures . . . .” Defendants’ attempt to read “Adjust ent

Committee” out of the 1975 Order was charitably

described by the district court as “grammatical gymnas-

tics.” If, as defendants would have us believe, Adjust-

ment Committees do not have the power to order solitary

confinement or the like (so that the 1975 Order perhaps

should not have applied to Adjustment Committees),

their appropriate remedies were to appeal this portion of

A-16

the 1975 Order, which they did not do,” or to seek

modification of the Order in the district court, which they

have not done. Perhaps the reason they did neither is that

in fact Adjustment Committees in 1975 had the power to

order a keeplock for up to two weeks, and currently has

the power to order such confinement for up to seven

days. See note 2, supra. The district court noted that a

keeplock is sometimes even more restrictive than confine-

ment in a Special Housing Unit, see note 4, supra, and

this Court had held that such keeplocks provide the

necessary predicate for recognition of due process rights

under McDonnell. McKinnon v. Patterson, 568 F.2d 930

(2d Cir. 1977), cert. denied, 434 U.S. 1087 (1978). In any

event, the application of the 1975 Order to Adjustment

Committee proceedings is clear and unqualified.

Nor can defendants’ interpretation of paragraph 2 of

the 1975 Order as allowing indefinite special confinement,

so long as a hearing is merely commenced within seven

days, be accepted. Paragraph: 2 clearly requires a hearing

to be “held” within seven days, and provides a procedure

for emergency extensions. Both the Order and the prior

opinions in this case make it clear that the central concern

was protecting inmates from prolonged confinement prior

to a determination of charges. See 392 F. Supp. at 632;

see also 542 F.2d at 103. We reject defendants’ conten-

tions that this provision of the Order is ambiguous.

We agree also with the district court’s view that the

evidence of defendants’ noncompliance with the 1975

9 On appeal from the 1975 Order, defendants challenged only two

provisions. One related to the membership of Adjustment Committees

and Superintendent's Proceedings panels; the other related to the

then-inflexible time limitation on holding an inmate in special confine-

ment pending investigation. Both provisions were modified by this

Court. 542 F.2d at 102.

A-17

Order was clear and convincing.'® As to Adjustment

Committee proceedings, defendants concede that they

made no effort to institute the procedures set forth in the

1975 Order. Defendants also concede that on several

occasions they failed to advise inmates of their rights to

call witnesses, and that they never advised an inmate of

the basis of a decision not to call a requested witness. In

addition to these concessions, there was ample evidence

that defendants’ formal notices of charges were usually

inadequate to. disclose the substance of the offense

Defendants’ argument that the court's receipt of evidence from class

member Luz Santana was improper on grounds of res judicata is

untenable. In early 1978, Santana brought a proceeding under

N.Y.C.P.L.R. Article 78, claiming that her Superintendent's Proceed-

ing failed to conform with state rules and regulations and seeking

annulment of the Proceeding. Federal constitutional claims were not

asserted, and her petition was granted based on state law grounds.

Santana v. Superintendent, Bedford Hills Correctional Facility, No.

2877/77, March 13, 1978 (Article 78 Proceeding, Sup. Ct. Westchester

Co.). Res judicata thus does not bar Santana’s assertion here of her

claims based on the 1975 Order. See Ornstein v. Regan, $74 F.2d 115, -

117 (2d Cir. 1978).

A similar assertion as to Harris has greater merit. Harris, as

discussed infra, is barred by res judicata from obtaining here the

individual relief that was denied her in her Article 78 proceeding.

While the prior judgment against Harris does not preclude the class

from litigating its classwide claims, nor bar Harris from enjoying the

benefits of relief ordered on a classwide, rather than an individual,

basis, see Sledge v. J. P. Stevens & Co., 585 F.2d 625 (4th Cir. 1978),

cert. denied, 440 U.S. 981 (1979), we note that the district court

apparently referred to Harris as one of several inmates who had

testified that they were not notified of the right to call witnesses. In

Harris’s Article 78 proceeding, the court expressly found that she had

in fact received such notice. Harris was thus collaterally estopped from

relitigating this factual issue, see Restatement of Judgments § 68

(1942), and we see no basis for allowing the class to rely on Harris's

barred contention in support of classwide relief. Nevertheless, the

proof of defendants’ noncompliance with the 1975 Order is clear and

convincing even without Harris’ testimony. The district judge does not

appear to have placed great reliance on Harris’s testimony; his thor-

ough opinion cites to it only twice among the scores of transcript

citations, and her testimony was not the sole support for any proposi-

tion.

A-18

charged and were often untimely, as well as extensive

evidence of defendants’ failure at the close of disciplinary

proceedings to give the required written statements of the

evidence relied on and the reasons for the action taken.

There was also sufficient evidence—and no genuine dis-

pute—that the officials who conduct the disciplinary

hearings have sometimes been involved in the events

complained of or are allowed to conduct investigations

relating to the matter before them.'' And there was ample

evidence that inmates were kept in seclusion without a

determination of charges far longer than the seven days

permitted by the 1975 Order: the court cited several

instances ranging from thirteen to sixteen days, and we

note other evidence of such confinements for up to

twenty-two days.

Finally, the evidence was more than adequate to sup-

port the finding that Curry was not reasonably diligent in

attempting to ensure compliance with the 1975 Order. Her

“apparent ignorance” of the 1975 Order for nearly a year

after she assumed office, 487 F. Supp. at 934, her deter-

mination “apparently unilaterally and in the face of

contrary views of her predecessors and superiors, that the

language and spirit of the order could be ignored,” id. at

933, and her “apparent lack of concern for the actual

state of compliance efforts over the last few years,” id. at

935, are inexcusable.

In all the circumstances, the cc ‘rt’s ruling that Curry is

in civil contempt of the 1975 Order was entirely appropri-

i Defendants’ argument that there has been no clear and convincing

evidence that these hearing officers were not impartial is beside the

point. The Order sets clear procedural standards for defendants to

meet; defendants, equally clearly, have not met those standards. We

need look no farther in order to determine whether defendants have

complied with th order.

A-19

ate.'? The specific provisions of the contempt order are

clearly designed to induce compliance with the 1975

Order, and are well within the bounds of the court’s

appropriate exercise of its discretion. See Vuitton et Fils

S.A. v. Carousel Handbags, supra; Morgan v. Kerrigan,

530 F.2d 401, 427 (ist Cir.), cert. denied, 426 U.S. 935

(1976) (appointment of special master). See generally

United States v. United Mine Workers, supra.

B. Expungement

In all the circumstances, the court’s order that the

records of proceedings that did not comply with the 1975

Order be expunged was an appropriate remedy to com-

pensate plaintiffs for the continued violation of their

rights. However, challenges by plaintiffs to two aspects of

the court’s expungement order deserve attention.

First, the court excepted from its expungement order

certain records of class member Harris, on grounds that

Harris had already litigated (to an unsuccessful conclu-

sion) her entitlement to such expungement in a state order

proceeding pursuant to N.Y.C.P.L.R. Article 78. See note

10 supra. This ruling was correct. A prior state proceed-

ing, including an Article 78 proceeding, will preclude

relitigation of a civil rights claim in a federal court if the

state proceeding reached the federal constitutional issues

involved. Ornstein v. Regan, 574 F.2d 115, 117 (2d Cir.

1978); Ellentuck v. Klein, $70 F.2d 414, 422-25 (2d Cir.

1978); 8 Weinstein—Korn-Miller, New York Civil Prac-

2 Assuming that an appropriately clear order has obviously not been

complied with, a defendant should not be held in criminal contempt

unless the noncompliance is found beyond a reasonable doubt to have

been willful. United States v. Greyhound Corp., 508 F.2d 529, 531 (7th

Cir. 1974). In the present case the district court expressly declined to

find Curry’s noncompliance willful. A ruling of criminal contempt

would thus have been inappropriate.

A-20

tice, ¢ 7801.02 [4], n.10 (1971). The basis for Harris’s

Article 78 petition was the failure of defendants to obey

various provisions of the 1975 Order with respect to a

Superintendent’s Proceeding concerning her. The state

court assumed the applicability of the 1975 Order, but

found against Harris on the facts. Harris v. Curry, (Sup.

Ct. Westchester Co. June 15, 1979). Her attempt here to

have the records of that Superintendent’s Proceeding

expunged was properly held barred by res judicata.

Second, plaintiffs contend that the. court should have

ordered the expungement of records of offending pro-

ceedings dating back to June 23, 1975, the date of the

1975 Order, rather than just to June 24, 1977. We agree.

The court’s finding of noncompliance with the 1975

Order was not limited to the period following June 24,

1977, but rather related to the entire life of the 1975

Order. It appears that the court ordered the expungement

period to commence with the later date because it had

already entered an expungement order for the period

prior to June 24, 1977. See 487 F. Supp. at 936; see note

7, supra. However, the earlier expungement order related

to only three inmates, not to the class as a whole. In light

of defendants’ consistent noncompliance and the choice

of expungement as the means of redressing the resultant

injuries to the plaintiffs, we conclude that expungement

relief for the earlier period should be awarded on a

classwide basis. See Vuitton et Fils S.A.v. Carousel Hand-

bags, supra. Accordingly paragraphs 6 and 7 of the 1980

Order are modified to substitute “June 23, 1975” for

“June 24, 1977.”

C. Damages

Little need be said about the district court’s ruling as to

damages. It is settled that if actual injury is established,

A-21

an award of damages may not be withheld.'’ See Vuitton

et Fils S.A. v. Carousel Handbags, supra; Yanish v.

Barber, 232 F.2d 939, 947 (9th Cir. 1956). Judge Stewart

found, however, that with the exception of the existence

of damaging prison records, which will be expunged as a

result of the 1980 Order, plaintiffs had not adequately

proven any actual injury as a result of defendants’ non-

compliance with the 1975 Order. We cannot say that this

finding is clearly erroneous. We thus conclude that the

court’s award of nominal damages, in accordance with

the principle enunciated in Carey v. Piphus, 435 U.S. 247,

263 (1978), was proper.

The judgment of the district court is affirmed as

modified. Costs are awarded to the plaintiffs.

3 Curry claims that her position entitles her to immunity from a

damage award. As she was sued in her official capacity, Curry is

entitled to a “good faith” defense in a suit for damages brought under

42 U.S.C. § 1983. Wood v. Strickland, 420 U.S. 308, 317-22 (1975).

This defense is unavailing, however, if she knew or should have known

that her conduct violated a constitutional norm. Procunier v.

Navarette, 434 U.S. 555, 562 (1978). The 1975 Order and the litigation

leading to it put Curry and her predecessors on notice that the Order

was designed to require due process in Adjustment Committees and

Superintendent’s Proceedings. They knew or should have known,

therefore, that the noncompliant procedures used at Bedford Hills

violated the constitutional rights of the inmates at the facility. The

district court was correct in ruling that Curry is not immune from a

judgment for damages.

A-22

APPENDIX C

April 29, 1980 Order on Motion for Contempt

UNITED STATES DISTRICT

SOUTHERN DISTRICT OF

ELIZABETH POWELL, et al.,

Plaintiffs

~against- 74 Civ. 4628 (CES)

BENJAMIN WARD, et al., ORDER

Defendants.

STEWART, District Judge:

The parties have filed objections to our order of April 15, 1980. In

light of these objections, we have modified the order in several

respects. Paragraph 2(c) shall include Notice of Disciplinary

Proceedings in Spanish and a provision shall be included requiring

that the inmates and staff at Bedford Hills be notified of the entry of

the order and copies be posted or otherwise be made available to the

class.

Plaintiffs have objected to the stay of the provisions requiring the

expungement of records of disciplinary proceedings, claiming that

such a stay denied “Plaintiff any meaningful relief from defendant's

unconstitutional actions.” As we have stated in our memorandum

of April 15, 1980, if the expungement provision is not stayed

pending appeal, there may be no way to restore the status quo. In

our view, an appropriate balance can be struck between the

competing concerns of the parties by adding to paragraph 10 a

provision prohibiting the use of records of disciplinary proceedings

found to be in violation of our order pending determination of the

appeal.

A-23

Plaintiffs have also objected to the failure of our order to require

expungement of records of proceedings before June 24, 1977 that

were conducted in violation of the June 23, 1975 order. Although we

recognize that violations of the order prior to June 24, 1977 may in

fact have occurred, there is no strong showing of violations prior to

that time in the record. We are cognizant of the seriousness of our

findings concerning defendant's compliance and are unwilling to

impose a remedy in the absence of a clear showing that violations

had occurred.

Finally, plaintiffs complain that the order requires compliance

within sixty (60) days rather than thirty (30) days, as set forth in our

decision of February 27, 1980. Upon consideration, we have

concluded that sixty days is a reasonable amount of time within

which to achieve compliance with our order. To avoid confusion,

we have established specific dates by which compliance must be

achieved and reports musi be made to the Court.

The remaining objections have been considered at an earlier time.

Therefore, the order as modified and amended shall read as follows:

The action having come on for hearing before the Court without a

jury on March 29, 1979 and June 18, 19, 21, 25 and 29, 1970,

Honorable Charles E. Stewart, Jr., presiding, on plaintiff's motion

for an Order holding defendant Phyllis Curry, Superintendent of

Bedford Hills Correctional Facility, in civil and criminal contempt

for failing to comply with the preliminary injunction order entered

herein on June 23, 1975 and for other related relief, and the court

after due deliberation, on February 27, 1980, having issued its

decision thereon, it is

1. ORDERED that paragraphs | and 2 of the preliminary

injunction entered against defendants on June 23, 1975, modified by

the Court of Appeals, 542 F.2d 101 (2d Cir. 1976), and amended

below, shall constitute permanent injunctive relief; and it is further

2. ORDERED that paragraphs 1(b) and (c) shall read as follows:

(b) An inmate shall be permitted to call witnesses on her behalf

provided that so doing does not jeopardize institutional

safety or correctional goals. The written notice of charge in

accordance with paragraph I(a) shall inform the inmate of

her right to call witnesses. The witnesses called shall be

allowed to testify at the hearing in the presence of the inmate

A-24

unless the Hearing Officer determines that this will

jeopardize institutional safety or correctional goals. If an

inmate is not permitted to have witnesses present, the witness

may be interviewed out of the presence of the inmate and such

interview recorded. The record of the witness’ statement is to

be made available to the inmate at the hearing unless the

Hearing Office determines that so doing would jeopardize

institutional safety or correctional goals. Whenever a witness’

statement is refused an inmate, a written explanatior of such

denials shall be furnished to the inmate. If an inmate requests

a number of witnesses, and the Hearing Officer determines

that some of these witnesses are cumulative, those witnesses

may be excluded on that ground.

(c) Spanish speaking inmates who cannot read and understand

English must be given notice of charges and statements of

evidence relied upon and reasons for actions taken in Spanish

and provided with a translator who should be present at the

hearing; and it is further

3. ORDERED that defendant Phyllis Curry, as Superintendent

of Bedford Hills Correctional Facility, is held in civil contempt for

her failure to comply with this Court’s order of June 23, 1975; and it

is further

4. ORDERED that defendant Phyllis Curry in her capacity as

Superintendent of Bedford Hills Correctional Facility is fined the

sum of $5,000 to be paid on June 27, 1980, and $1,000 thereafter for

every additional day that Bedford Hills Correctional Facility is not

in compliance with this judgment and order, provided however that

the contempt finding may be purged and the fine revoked by the

Court if compliance is achieved as of June 27, 1980; and it if further

5. ORDERED that a Special Master be appointed to monitor

compliance with and implementation of this order. The function of

the Special Master shall be to ensure that all disciplinary

proceedings are conducted in compliance with this order and the

Court’s opinion of February 27, 1980.

(a) In order to carry out her duties, the Master or her delegates

shall have unlimited access to the premises of Bedford Hillis

Correctional Facility, and to any records, files or papers

maintained by the defendant.

(b) The Special Master shall have the authority to conduct

confidential interviews at any time with any staff member,

A-25

employee or inmate of Bedford Hills Correctional Facility.

The Special Master or her delegate may attend any

institutional meetings or proceedings.

(c) The Special Master shall be empowered to require written

reports from any staff members or employees at Bedford

Hills Correctional Facility concerning compliance with this

order. She may recommend procedures and propose forms to

the Superintendent to assist in achieving compliance with this

order.

(d) The Special Master shall be empowered to hold hearings and

to call witnesses as she deems necessary to carry out her

duties.

(e) The Special Master is authorized with prior approval of the

Court to select and hire such staff and consultsuch expert

consultants as are necessary to carry out her duties under this

order. Adequate offices, equipment and supplies shall be

made available by the defendants.

(f) The Special Master shall be allowed a reasonable fee to be

determined by the Court, for her services and the services of

any authorized assistants, and necessary expenses related to

the performance of those services. Such fees and expenses of

the Special Master shall be taxed as part of the costs of this

proceeding and assessed against the defendant in her official

capacity.

(g) The Special Master shall report to the Court on July 11, 1980

concerning defendant's compliance with this order. There-

after she shall report no less than every ninety (90) days

concerning the state of defendant's compliance with this

order; and it is further

6. ORDERED that the records of all Adjustment Committee

Proceedings for the period June 24, 1977 through the date of this

order by expunged by June 27, 1980; and it is further

7. ORDERED that the disciplinary records fo Superintendent's

Proceedings conducted between June 24, 1977 and the date of this

order that plaintiffs demonstrate to the Court to have been

conducted in violation of the order of June 23, 1975 as modified on

appeal shall be expunged, provided that the records of Janie Harris’

Superintendent’s Proceeding dated June 15, 1979 need not be

expunged. The Special Master shall hold hearings on such

A-26

Proceedings and report to the Court her findings and recommen-

dations; and it is further

8. ORDERED that defendant is to pay over one dollar to the

class; and it is further

9. ORDERED that upon due application plaintiffs’ attorneys

shall be entitled to reasonable attorneys’ fees and costs; and it is

further

10. ORDERED that upon the filing of a notice of appeal of this

judgment, paragraphs 6 and 7 of this order shall be stayed pending

determination of defendant's appeal, except that no Adjustment

Committee Proceedings, and no Superintendent's Proceeding

found to have been conducted in violation of the June 23, 1975

order shall be considered for any purpose pending determination of

any appeal; and it is further

11. ORDERED that within ten (10) days of the entry of this

Order, defendant Curry shall cause copies of this Order to be posted

in each building used to house inmates and in the legal library, and

shall make copies available to all employees at Bedford Hills. [*]

Chan bon “States District ae: :

DATED: New York, New York

April 29, 1980.

[*] Paragraph renumbered “11” in open court on April 29, 1980 and

by Amended Order dated May 1, 1980.

A-27

APPENDIX D

February 27, 1980 Memorandum Decision

on Motion for Contempt

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

ELIZABETH POWELL, et al.,

Plaintiffs,

~against-

BENJAMIN WARD, et al.,

Defendants.

74 Civ. 4628 (CESO

MEMORANDUM

DECISION

STEWART, District Judge:

Plaintiffs, inmates at the Bedford Hills

Correctional Facility (“Bedford Hills”) have

moved for an order holding defendant

Phyllis Curry, superintendent of Bedford

Hills, in contempt for failing to comply with

our Order issued on June 23, 1975.

Plaintiffs brought this action to enjoin the

officials at Bedford Hills from enforcing

prison disciplinary procedures unless and

until they comply with the guidelines set

forth by the Supreme Court in Wolff v.

McDonnell, 413 U.S. 539 (1974).' We

granted class certification on March 27,

1. In Wolff v. McDonnell, decided June 26, 1974,

the Supreme Court held that prisoners subject

to disciplinary proceedings must be accorded

the following rights: advance written notice of

charges to be given at least 24 hours before a

hearing, a written statement by the factfinders

of the evidence relied on and the reasons for

the disciplinary action, the right to call witness-

A-28

1975, defining class to include “all persons

who are now and who may be incarcerated

in Bedford Hills Correctional Facility” and

“who are or may be subject to Adjustment

Committee Proceedings or Superinten-

dent’s Proceedings at the Institution.”

Hearings were conducted, and we held

that “any disciplinary proceedings which

may result in placement in solitary con-

finement”, which included Adjustment

Committee Proceedings and Superinten-;

dent’s Proceedings, must conform to the

procedural requirements established by the

Supreme Court in Wolff v. McDonnell,

supra. We then found that defendants failed

to provide inmates facing Adjustment

Committee Proceedings with adequate

notice, opportunity to call witnesses, ex-

planation of the disposition, and statement

of the evidence relied upon in reaching the

disposition. There was also evidence show-

ing that inmates were placed in segregation

for as long as four weeks pending investi-

gation of charges against them and that the

official involved in an incident leading to a

disciplinary proceeding or a subsequent

investigation of that incident presided in

some instances over the disciplinary pro-

ceedings.

Although some of the safeguards set

forth in Wolff v. McDonnell, supra, were

generally followed in the Superintendent’s

Proceedings, some of the procedures were

never followed, such as providing inmates

es and present documentary evidence when do-

ing so does not jeopardize institutional safety

or correctional goals, and the right to counsel

where the inmate is illiterate or where the is-

sues are unusually complex. 418 U.S. at 563-

67, 569-70, 94 S.Ct. 2963, at 2978-80, 2981, 41

L.Ed.2d 935.

A-29

with the right to call witnesses, and others

were provided sporadically. See Powell v.

Ward, 392 F.Supp. 628 (S.D.N.Y.1975). We

concluded that injunctive relief was war-

ranted, and entered a preliminary injunc-

tion on June 23, 1975, which was modified

on appeal. Powell v. Ward, 542 F.2d 101

(2d Cir. 1976).?

In December of 1976 three members of

the plaintiff class moved to hold the super-

intendent of Bedford Hills in contempt for

failing to comply with the Court’s Order.

We ordered that the correctional and parole

files of the three inmates be expunged of

all reference to the incident giving rise to

the contempt motion, awarded plaintiffs at-

torneys’ fees, and noted that “this Court is

concerned by indications that our prior or-

der has not been fully complied with and

we will consider future violations of the

order as matters of utmost seriousness.”

Powell v. Ward, 74 Civ. 4628, June 24, 1977

(order).

In March of 1979 Carol Crooks, a member

of the plaintiff class brought this motion to

hold defendant Phyllis Curry in contempt

and for other related relief. After a one

day hearing, Crooks adjourned her motion

and a contempt motion on behalf of the

class was filed! Hearings were held in June

2. Defendants appealed only from the provi-

sions of the order concerning the membership

of the Adjustment Committee and Superintend-

ent’s Proceedings and the time an inmate may

be held in segregation pending investigation.

They did not challenge the order granting class

certification or the applicability of the Wolff

procedural requirements to the Adjustment

Committee. See Powell v. Ward, 542 F.2d 101

(2d Cir. 1976).

A-30

of 1979, and the parties subsequently sub-

mitted proposed findings of fact and conclu-

sions of law.

Class Certification

{1] Before determining whether the de-

fendant has failed to comply with our order

and if so whether her non-compliance con-

stitutes contempt, we must address defend-

ant’s contention that the class action order

is jurisdictionally defective insofar as it in-

eludes future inmates and future Adjust-

ment Committee and/or Superintendent’s

Proceedings. Defendant’s failure to chal-

lenge class certification in a timely manner

constitutes sufficient grounds for rejecting

defendants’ claim, especially in light of the

unfairness to the class which would result

from decertifying the class at this time.

We originally granted class certification on

March 27, 1975. Defendants did not oppose

certification at that time or during the trial

and did not raise any such objection on

appeal. Nor did defendants challenge the

validity of the class at the first contempt

hearing in 1977. We are reluctant to con-

sider at this late date the threshold question

of the validity of the class.

However, in light of the importance of

the Article III requirements of existence of

case or controversy, we have considered de-

fendants’ claim and find it to be without

merit. Courts have approved certification

of classes which include future members,

Robertson v. National Basketball Associa-

tion, 389 F.Supp. 867, 897 (S.D.N.Y.1975),

especially in civil rights cases, where the

members of the class are usually “incapable

of specific enumeration.” Advisory Note to

A-31

Rule 23. See, e. g., Marcera v. Chinlund,

595 F.2d 1231, 1940 (2d Cir. 1977); Forts v.

Malcolm, 426 F.Supp. 464, 465 (S.D.N.Y.

1977); Baird v. Lynch, 390 F.Supp. 740

(W.D.Wis.1974); Wallace v. McDonald, 369

F.Supp. 180, 188 (S.D.N.Y.1973); Inmates

of Lycoming County Parish v. Strode, 79

F.R.D. 228 (M.D.Pa.1978); Tunin v. Ward,

78 F.R.D. 59 (S.D.N.Y.1978). Any class con-

sisting of the inmates confined at an insti-

tution is likely to include individuals who

were not identifiable at the time the class

was certified. In the prison context, where

any action taken will affect future inmates

and “the constant existence of a class of

persons suffering the deprivation is cer-

tain”, class certification including future

members is appropriate. Gerstein v. Pugh,

420 U.S. 103, 110~11, n.11, 95 S.Ct. 854, 861

n.11, 43 L.Ed.2d 54 (1974); Inmates of Ly-

coming County Prison v. Strode, 79 F.R.D.

at 231.

Mathews v. Diaz, 426 U.S. 67, 96 S.cy

1883, 48 L.Ed.2d 478 (1976), the case uy»,

which the defendants base their argument,

is not inconsistent with our decision uphold.

ing class certification. There, the Court

3. In cases where courts have denied class sta-

tus to future members, they have been con-

cerned primarily with the dangers of an amor-

phous, ill-defined class, such as unmanageabili-

ty, difficulty of notifying class members and

increased ;ossibility of inadequate representa-

tion as to some class members. See, eé. g.,

Edwards v. Schlesinger, 377 F.Supp. 1091 (D.D.

C.1974).

These issues are not present here, where plain-

tiffs’ counsel adequately represents the class

and where the boundaries and location of the

class are clear.

A-32

was concerned with the appropriateness of

class certification in a case brought under

the Social Security Act, which requires final

agency action by the Secretary of HEW

denying enrollment in a particular Medicare

program before a federal court can exercise

jurisdiction. See 42 U.S.C. § 405g). The

Supreme Court relied on the absence of

such final agency action as a basis for hold-

ing that a class defined to include those

who “will be denied enrollment” was too

broad. 426 U.S. at 71, n.3, 96 S.Ct. at 1887,

n.8. Those concerns are inapposite in the

instant case, which is brought under 42

U.S.C. § 1983. Therefore, we decline to

modify or vacate our class certification or-

der.

Res Judicata as to Inmates Santana and

Harris

Defendants argue that inmates Santana

and Harris may not be heard on this motion

because their “claims” were previously liti-

gated in Article 78 proceedings. Prior to

the institution of this contempt motion by

the class, Janie Harris brought an Article

78 proceeding under N.Y.C.P.L.R. § 7801

challenging the validity of the determina-

tion of a Superintendent's Proceeding dated

June 15, 1979 based on defendants’ failure

to permit her to call witnesses, to inform

petitioner of the factual circumstances sup-

porting the charge, to accurately inform her

of the testimony of inmate witnesses, and

to provide her with an impartial hearing

officer, in violation of our order in Powell v.

Ward. Her petition was denied. Inmate

Luz Santana filed an Article 78 petition for

relief from an adverse determination of @

A-33

Superintendent's Proceeding entered March

13, 1978. Her petition was granted based,

inter alia, on defendants’ failure to inter-

view an employee and to inform the inmate

of the factual circumstances supporting the

charge, and the absence in the record of

anything relating to the incident which al-

legedly occurred.

(2,3) The precise nature of defendants’

res judicata defense is not clear. Neither

Harris nor Santana have filed individual

claims in the instant case, and both are

proceeding as members of the class. The

class was not a party to the prior litigation,

and it is well established that an adverse

judgment cannot be asserted against a par-

ty unless there has been reasonable notice

of the claim against him and an opportunity

to be heard in opposition to that claim, as

required by the due process clauses of the

Constitution. Hansberry v. Lee, 311 U.S.

$2, 61 S.Ct. 115, 85 L.Ed. 22 (1940); Wil-

liamson v. Bethlehem Steel Corp., 468 F.2d

1201 (2d Cir. 1972). Therefore, the class is

not precluded from relitigating the issue of

the adequacy of the procedural safeguards

provided in Harris’ Superintendent’s Pro-

ceeding for purposes of determining wheth-

er defendants are in contempt of our order.

[4] We are particularly puzzled by the

assertion of Santana’s prior litigation as a

defense to the instant motion, in light of

the determination in the Article 78 proceed-

ing that defendants failed to provide neces-

sary procedural safeguards and Santana

was therefore entitled to relief. If this

judgment is to have any binding effect on

the determination of defendant’s compli-

A-34

ance with our order, it would be to estop

the defendant from challenging the find-

ings of the prior proceeding that defendants

failed to notify Santana of the specific

charges against her, to interview employ-

ees, to inform her of the factual circum-

stances supporting the charge or to give her ~

a written disposition stating the basis for

the decision. Santana v. Superintendent,

Bedford Hills Correctional Facility, January

27, 1978 (Article 78 proceeding). However,

in the absence of any pleadings or motions

by plaintiff invoking collateral estoppel as

to Santana’s proceedings, it is unnecessary

to determine whether the defendant is

bound by the determinations in that prior

litigation.

[5] It remains to determine whether

Santana and Harris are barred from class

membership or from obtaining specific re-

lief to the extent that their claims have

already been litigated. We note that the

issues before the state court only challenged

the validity of two Superintendent’s Pro-

ceedings and did not concern most of the

facts at issue or the relief sought in this

case. In any case, we find that the prior

judgments do not affect Santana’s or Har-

4. Collateral estoppél precludes relitigation of

issues that were actually, fully and necessarily

litigated in the prior proceeding. Restatement

of Judgments § 70, comment (b) (1942); Divine

v. Commissioner of Internal Revenue, 500 F.2d

1041 (2d Cir. 1974). The applicability of collat-

.¢ral estoppel here would depend on whether

the Second Circuit's abrogation of the doctrine

of mutuality were extended to this context.

See generally 1B Moore’s Federal Practice

0.412. It is unnecessary to reach that issue

here.

A-35

ris’ membership in the class or their entitle-

ment to class relief. A class action brought

under 23(b)(2) is specifically intended “to

reach situations where a party has taken

action or refused to take action with a class,

and final relief of an injunctive nature. .

settling the legality of the behavior with

respect to the class as a whole is appropri-

ate.” Committee Note of 1966 to Rule 23,

3B Moore’s Federal Practice 4 23.01{10—2].

A prerequisite to granting class certifica-

tion under 23(b\(2) in addition to the gener-

al requirements is that:

The party opposing the class has acted or

refused to act on grounds generally appli-

cable to the class, thereby making appro-

priate final injunctive relief with respect

to the class as a whole.

F.R.Civ.P., Rule 23(b)(2). The class is to be

treated as an entity, rather than as an

aggregate of individuals. See O. Fiss. The

Civil Rights Injunction (1978). There are

no opt out provisions for 23(b){2) class ac-

tions, and in any case it would be difficult

to exclude inmates from relief which is

designed to affect the practices and proce-

dures of the defendant.

The situation here is analogous to that in

Sledge v. J. P. Stevens Co., Inc., 585 F.2d

625 (4th Cir. 1978), where the court dis-

missed individual plaintiffs’ claims of dis-

crimination, but granted class relief for dis-

5. Even in 23(b)3) actions, for which there are

opt out provisions for potential class members,

the previous institution of an independent ac-

tion does not automatically exclude member-

ship in the class. See Supermarkets General

Corp. v. Grinnel Corp., 59 F.R.D. 512 (S.D.N.Y.

1973).

A-36

crimination. There, the court held that

“the judgment of dismissal did not strip

{the individuals] of any class membership,

and to the extent that they would personal-

ly benefit, directly or indirectly, from any

of the other remedies ordered by the dis-

trict court, they have not been denied such

benefits.” Id. at 637.

The prior litigation may affect Harris’

and Santana’s entitlement to individual re-

lief, such as expungement of records or

damages. Although there is some confu-

sion concerning the standard for determin-

ing whether res judicata bars subsequent

relief in civil rights cases, see Winters v.

Lavine, 574 F.2d 46, 55 (2d Cir. 1978), in the

most recent case dealing with this issue, the

Court of Appeals held that “where a consti-

tutional issue has been actually raised in

the state court, the litigant has made his

forum choice and may not relitigate that

issue in federal court.” Ornstein v. Regan,

574 F.2d 115, 117 (2d Cir. 1978). To deter-

mine whether a constitutional issue was

actually litigated, the Court considered the

extent to which the pleadings and the lower

court opinion referred to constitutional is-

sues and the scope of jurisdiction of the

state forum. Id.

Santana’s Article 78 proceeding con-

cerned whether her Superintendent’s Pro-

ceeding was conducted in accordance with 7

N.Y.C.R.R. Part 253. There was no men-

tion of violations of constitutional due proc-

ess or Powell v. Ward. Therefore, she did

not actually litigate the constitutional is-

sues now before us, and she is not barred

from individual relief such as damageg

should such relief be found to be warranted

A-37

Harris did litigate the constitutional j..

sues in her Article 78 proceeding. Sh.

based her claims for relief squarely on th.

order in Powell v. Ward. Unless it is deter.

mined that the limited scope of jurisdiction

of Article 78 proceedings precludes the ap-

plication of res judicata,® Harris is preclud-

ed from relitigating the issue of her entitle.

ment to individual relief for violations per-

taining to the Superintendent’s Proceeding

challenged at the Article 78 proceeding.

The Article 78 court had jurisdiction to

provide the individual relief Harris sought.

Therefore, we cannot hold that her claim

was not actually and fully litigated there,

and Harris is barred from relitigating her

entitlement to relief concerning the Super-

intendent’s Proceeding challenged in the

Article 78 proceeding.

Defendant’s Compliance with the Court Or-

der

The issue before us concerns the extent to

which the defendant has complied with our

order requiring conformance to the proce-

dural requirements set forth in Wolff v.

McDonnell, supra, and embodied in our or-

der. Based on the testimony and docu-

ments submitted at the hearings and depo-

sitions conducted in June of 1979, the affi-

davits submitted by the parties and all oth-

er material on the record concerning this

6. Article 78 proceedings can provide relief if it

is determined that “a determination has been

made in violation of a lawful procedure ”

or was “an abuse of discretion, including abuse

of discretion as to the nature or mode of disci-

pline imposed.”

A-38

issue, we make the following findings: "

Adjustment Committee

{6} The introductory section of para-

graph 1 of the order states that:

Defendants shall conduct all Adjustment

Committee or Superintendent’s Proceed-

ings, or other disciplinary proceedings

that may result in an inmate at Bedford

Hills Correctional Facility being confined

in a Special Housing Unit or Segregation

Unit, in accordance with the following

procedure. ;

Defendant Curry contends that this para-

graph does not require procedural safe-

guards to be instituted in Adjustment Com-

mittee Proceedings, and has indicated that

the administration at Bedford Hills treated

the order as applying solely to Superintend-

ent’s Proceedings, tr. at 356, 365, 644. De-

fendant’s position, which reads “Adjust-

ment Committee” out of the order, is based

at best on a strained interpretation of the

last phrase of the introductory paragraph.

The argument is that, because that last

phrase refers only to proceedings resulting

in confinement to Special Housing Unit or

segregation, that phrase qualifies the scope

of the order requiring procedural safe-

guards at Adjustment Committee Proceed-

ings. Specifically, defendant argues that

the safeguards are not applicable to pro-

ceedings that might result in keeplock,

which is twenty-four hours a day confine-

ment in one’s cell, often without privileges

or exercise, tr. at 12, 49, 52, 122. Also,

defendant argues, the Adjustment Commit-

7. These findings shall be considered findings of

facts and conclusions of law, in accordance

with Rule 52(a), F.R.Civ.P.

A-39

tee is not authorized to sentence an inmate

to the Special Housing Unit as a disposition

in a case. True, defendant concedes, fol-

lowing an Adjustment Committee Proceed-

ing an inmate may be detained in the Spe-

cial Housing Unit for a period of time pend-

ing a Superintendent’s Proceeding. But

the defendant suggests that, because the

officer on the floor, not the Adjustment

Committee, initially placed the inmate in

segregation and only the Superintendent’s

Proceeding can ultimately sentence the in-

mate to the Special Housing Unit, the Ad-

justment Committee’s decision to continue

an inmate’s detention in Special Housing

for as long as sixteen days does not fall

within the terms of the order, tr. at 17-18.

The defendant concludes that, because the

Adjustment Committee Proceedings never

result in such confinement as a disposition

and the order does not apply to keeplock,

the order does not apply to Adjustment

Committee Proceedings.

This complicated and somewhat tortured

presentation of the meaning of our order

does not in any way alter our long-standing

view that the order unequivocally applies to

Adjustment Committee Proceedings. The

language of the order is clear and unquali-

fied. Moreover, the findings of fact and

conclusions of law which were issued prior

to the order specifically enjoined the use of

Adjustment Committee Proceedings unless

and until due process safeguards were insti-

tuted. Powell v. Ward, 392 F.Supp. 628,

631 (S.D.N.Y.1975). Defendants never re-

quested a modification or clarification of

the scope of the order, nor was this issue

raised on appeal. We are inclined to view

A-40

defendant’s grammatical gymnastics as an

attempt to circumvent the impact of the

order.

Furthermore, defendant’s arguments ig-

nore the fundamental concern underlying

our decision in this case, namely, that the

substantial deprivation resulting from soli-

tary confinement of an inmate be based on

a fair impartial hearing. 392 F.Supp, at

629. The language relied on by the defend-

ant to limit the scope of the order was

intended to insure that all proceedings that

may result in solitary confinement were

within the scope of the order. The testimo-

ny of prison officials and inmates alike indi-

cated that keeplock is the equivalent of

solitary confinement, tr. at 316. Indeed,

keeplock is sometimes even more restrictive

unan confinement in the Special Housing

Unit, when shower, exercise and other basic

privileges are removed. Tr. at 49. Thus,

keeplock is clearly included in the language

and spirit of the order.®

8. This result is not contrary to recent authority

concerning the question of the applicability of

Wolff v. McDonnell, supra, notwithstanding

changes in the regulations concerning the pun-

ishments the Adjustment Committee is empow-

ered to impose. In McKinnon v. Patterson, the

Court of Appeals held that keeplock for a peri-

od of up to 2 weeks was a substantial depriva-

tion and left open the issue of whether 1 week

in keeplock would and of itself constitute a

substantial deprivation under the 14th Amend-

ment. 568 F.2d 930, 938 (2d Cir. 1977). Subse-

quently, the state modified its regulations so

that the maximum period of keeplock that

could be imposed was one week, 7 NYCRR

§ 304(1)(d). In our view, the possibility that

the Adjustment Committee can impose onc

week of keeplock or detain an inmate in the

Special Housing Unit pending a determination

A-41

We are equally unpersuaded by the argu-

ment that the Adjustment Committee can-

not sentence an inmate to the Special Hous-

ing Unit. Defendant Curry overlooks the

important consideration that inmates have

spent as long as sixteen days in solitary

confinement awaiting a Superintendent's

Hearing. A fair hearing after the fact does

not detract from the deprivation the inmate

has already suffered. Even though the Ad-

justment Committee does not sentence the

inmate, it makes a decision, based on the

information presented to it at the hearing,

that continued confinement is warranted.

Due process requires that, if such a substan-

tial deprivation is to be imposed on an in-

mate, a hearing conforming to the proce-

dural requirements established in Wolff v.

McDonnell, supra, is necessary?

of the Superintendent's Proceeding warrants

the application of Wolff v. McDonnell, to Ad-

justment Committee Proceedings. See McKin-

non Vv. Patterson, supra at 938; Powell v. Ward,

542 F.2d 101 (2d Cir. 1976); Crooks v. Warne,

516 F.2d 837 (2d Cir. 1975); United States ex

rel. Larkins v. Oswald, 510 F.2d 583 (2d Cir.

1975).

9. Furthermore, if the Adjustment Committee

recommends that a Superintendent's Proceed-

ing be held, a procedure that is required when

an inmate is confined in the special housins

unit, the reports and records of the Adjustmes!

Committee are deemed “incorporated into the

record of the (Superintendent's) Proceeding

and may be considered by the person conduct-

ing the proceeding without the necessity of

formally reading same into the record.” 7

NYCRR § 253.4(d). This possibility that the

Adjustment Committee Proceedings could be

used in the Superintendent's Proceeding #5

basis for the imposition of a substantial period

of isolation provides further support for the

necessity of providing Wolff v. McDonnell safe-

guards for the Adjustment Committee.

A-42

Thus it is clear from both the language

and spirit of our order that it applies to

Adjustment Committee Proceedings. It

must now be determined to what extent the

proceedings currently employed at Bedford

Hills comply with our order.

Notice

{7] Paragraph 1(a) of the order provides

that:

Formal written notice of charges must be

served on the inmate at least 24 hours

before the hearing.

For Adjustment Committee Proceedings,

the defendant's current policy is to provide

inmates with a Notice of Report. This

form indicates the inmate’s name and sta-

tus, a code number of the offense with

which the inmate is charged, the location,

time and date of the incident, and the sig-

nature of the investigating officer. (Exhib-

it E.) The offense indicated by the code

number is not included on the form. To

find out the offense category referred to by

the code number, the inmate must refer to

the “Standards of Inmate Behavior” rule

book, which is not always readily available

to inmates. Tr. at 163, 399, 546. Once she

obtains a copy of the rule book, the inmate

is not necessarily much better informed of

the nature of the charges against her. The

prohibited behavior to which the code num-

ber refers is often general and ambiguous.

For example, 1.25 is “disturbance, creation,

participation, or inciting others to partici-

pate (threat to security or order); 3.00 is

“any violation of posted and distributed

local facility rules or procedures.” A par-

ticularly troubling example of the generali-

ty of the code numbers is 1.90—“refusing to

A-43

obey a direct order.” The inmate may have

no knowledge of which order is involved.

These categorical definitions of inmate

offenses do not satisfy the notice require-

ment set forth in Wolff and embodied in

our order. The purpose of the notice re-

quirements is to inform the inmate of the

charges and enable her to marshall the

facts and prepare a defense. Wolff v.

McDonnell, supra, 418 U.S. at 564, 94 S.Ct.

at 2978. An inmate gains little insight into

the nature of the charges and factual alle-

gations against her from knowledge of the

offense category with which she is charged.

One prison official testified that different

officers may interpret the rules differently,

so that the inmate is not always sure of the

nature of the charges against her, tr. at

58-60. If an inmate is unable to obtain

access to an inmate rule book, it is possible

that she would have no knowledge of the

nature of the charges against her until the

proceeding itself. To rely on the inmate’s

knowledge of the incident in which she was

involved as the basis for adequate notice, as

suggested by the defendant, tr. at 402,

would severely undercut the constitutional-

ly mandated principle of due process on

which the notice requirement is based. See

Wolff v. McDonnell, 418 U.S. at 572, 94

S.Ct. at 2982. Therefore, we find that the

form of notice currently provided to in-

mates facing Adjustment Committee Pro-

ceedings does not comply with the notice

requirements of the order.

There was also some testimony indicating

that inmates do not always receive the no-

tice of hearing twenty-four hours in ad-

vance. As a general practice, inmates are

A-44

provided with the notice of report at least

twenty-four hours in advance, but several

inmates testified that they did not receive

notice until the hearing began, tr. at 105,

165, 177-78, and there was testimony indi-

cating that, on occasion, an additional

charge was added at the hearing, without

prior notice to the inmate, tr. at 178. How-

ever, in light of the inadequacy of the no-

tice actually provided, the inmates due

process rights have not been significantly

altered by the timing of the notice.

The established procedure for notifying

inmates facing Superintendent's Proceedings

of the charges against them is to provide a

Superintendent’s Proceeding Formal Charge

at least twenty-four hours before the hearings

is scheduled. This form notifies the inmate

that a charge has been filed and a Superin-

tendent’s proceeding has been scheduled,

furnishes the name and title of the official

who will preside, and provides a space in

which to state the code number and category

of the charge and specify the factual basis for

that charge. The evidence presented indicates

that the inmates are generally provided with

sufficiently detailed notice to satisfy the

requirements of the order. The officer

involved generally includes a factual descrip-

tion of the incident leading to the charges.

See, e.g., Exhibit HHHHH. There was

evidence, however, that on several occasions

defendant failed to provide any notice, or that

the terms of the notice provided were so

vague and ambiguous that the inmate would

not reasonably be expected to ascertain the

conduct at issue. See, e.g., tr. at 132. Notice to

Luz Santana, Exhibit T (inmate charged with

“planning to start something in the yard” and

A-45

“meeting attorneys to participate in what-

ever”).

Similarly, although the defendant, as a

general matter, does provide notice at least

24 hours before the proceeding, there were

instances where charges were added at the

hearing, or where the inmate did not re-

ceive formal charges until the hearing. See

dep. tr. at 52; testimony of Anderson at 50;

Harris tr. at 234.

Witnesses

Paragraph 1(b) provides that:

The inmate shall be permitted to call

witnesses on her behalf provided that so

doing does not jeopardize institutional

safety or correctional goals. The written

notice of charges served in accordance

with paragraph 1(c) shall inform the in-

mate of her right to call witnesses.

It is undisputed that inmates are not

permitted to call witnesses to testify in

their presence at a hearing. Tr. at 433 and

570. Inmates facing Superintendent’s Pro-

ceedings have the right to request the

Hearing Officer to interview witnesses out-

side the presence of the inmate. Tr. at

412-413. The interviews with inmates are

tape recorded, but not transcribed. In-

mates requesting witnesses are not permit-

ted to hear the tape, tr. at 571. The gener-

al policy is to inform inmates of their right

to request that witnesses be interviewed by

typing the following statement on the For-

mal Charge: “The inmate shall be permit-

ted to call witnesses on her behalf provided

that so doing does not jeopardize institu-

tional safety or correctional goals.” Plain-

tiff’s Exhibit 15.

A-46

The evidence presented at the hearing

shows that the practice has deviated some-

what from the policy just described. In a

number of instances, the formal charge

failed to inform the inmate of the right to

call witnesses, see, e. g. tr. at 53, Exhibits

10, 24, 27, 45, UUUU, and several inmates

testified that they were never notified of

that right. See, e. g. tr. at 42, 102, 199.

The Deputy Superintendent for Security

testified that a request for witnesses was

never denied cn the basis that the testifying

inmate would jeopardize institutional secur-

ity or correctional goals. Tr. at 603. Wit-

ness interviews appear to have been denied

because the inmate pleaded guilty to the

charges, tr. at 631, and because the inter-

views were determined to be unnecessary,

irrelevant or cumulative, tr. at 103, 431, 631.

One inmate testified that she was asked to

select the most pertinent witness, and only

that one would be interviewed, tr. at 574,

604, 6382; Exhibits 37 and 38.

The policy and practice regarding wit-

nesses in Adjustment Committee Proceed-

ings reflects defendants’ erroneous assump-

tion that our order does not apply to Ad-

justment Committee Proceedings. The Su-

perintendent testified that inmates do not

have the right to call witnesses at Adjust-

ment Committee Proceedings, tr. at 433.

Not surprisingly, the notice of hearing does

not inform witnesses of this right. Several

inmates testified that they did not know

that they could call witnesses for Adjust-

ment Committee Proceedings, tr. at 31, 162,

251. It is unclear from the record whether

defendants have interviewed witnesses in

the event an inmate facing Adjustment

A-47

Committee Proceedings does make a re-

quest.

There is no question that the failure to

notify inmates that they may call witnesses

‘to testify in their behalf is a clear violation

of our order. To the extent that the de-

fendant has denied any Witnesses in Adjust-

ment Committee Proceedings, these actions

also constitute non-compliance.

Plaintiffs also contend that defendants’

refusal to allow witnesses to testify at the

hearing in the presence of the inmate con-

stitutes a violation of our order. Defend-

ants argue that the order requires only that

witnesses be interviewed. The current poli-

cy is to interview witnesses outside the

presence of the inmate. The interviews arc

tape recorded. There was testimony indi-

cating that the tape recorder is turned on

and off during the hearing. We are also

troubled by evidence that the witness is

cross-examined, rather than questioned.

Tr. at 44, 81. Inmates do not normally

receive transcripts of the hearing, nor are

they permitted to hear the tape. Tr. at 48.

The interview is not incorporated into the

record of the hearing.

The issue of whether the order requires

witnesses’ presence at hearings has caused

some confusion on prior occasions. See

Powell v. Ward, Memorandum Decision,

April 9, 1975. Before we can determine

whether the current practice satisfies the

requirements of our order, it is necessary to

clarify the meaning of the provision con-

cerning the right to call witnesses.” In

10. In light of the uncertainty surrounding this

aspect of the order, any related finding of non-

compliance will not be consideration as a bas!s

for contempt.

A-48

Wolff v. McDonnell, supra, the Supreme

Court held that

“the inmate facing disciplinary proceed-

ings should be allowed to call witnesses

and present documentary evidence in his

defense when permitting him to do so

will not be unduly hazardous to institu-

tional safety or correctional goals. Ordi-

narily, the right to present evidence is

basic to a fair hearing; but the unre-

stricted right to call witnesses from the

prison population carries obvious poten-

tial for disruption and for interference

with the swift punishment that in indi-

vidual cases may be essential to carrying

out the correctional program of the insti-

tution. . . . [hJjere we must balance

the inmate’s interest in avoiding loss [of

good time] against the needs of the pris-

on, and some amount of flexibility and

accommodation is required.”

Wolff v. McDonnell, 418 U.S. at 566, 94

S.Ct. at 2679.

We are not persuaded that Wolff sup-

ports a blanket policy against allowing 't-

nesses to be present at the hearing. The

Court appears to have contemplated indi-

vidualized determinations of the potential

threat to security created by the presence

of the inmate at the interview. True, pris-

on administrators are to be given broad

discretion in determining whether such a

threat exists. Wolff at 566, 94 S.Ct. at

2979. But administrative necessity does not

require a blanket rule which precludes the

presence of witnesses when there are no

countervailing concerns warranting that

prohibition. Requiring prison officials to

determine on an individual basis whether

A-49

witnesses can be present encourages them

to exercise their discretion to strike the

appropriate balance between the prisoner's

right to call witnesses and the prison’s need

to maintain order.

This determination takes on added signif-

icance when considered in conjunction with

the policy at Bedford Hills concerning in-

vestigations. If an inmate requests that

witnesses be interviewed, her disciplinary

proceeding is adjourned until those inter-

views have been completed. Inmates held

in segregation pending the outcome of the

hearing, have been held in segregation for

as long as sixteen days while their witness-

es are interviewed. By allowing witnesses

to appear at the hearing in appropriate

situations to be determined by the prison

officials according to their discretion, the

hearing process is likely to be expedited.

When it is determined that possible haz-

ards to institutional safety or correctional

goals preclude a witness’ presence at the

hearing, the prison officials may interview

her out of the presence of the inmate.

However to enable the inmate to present a

defense, she should, under ordinary circum-

stances, be permitted to listen to the tape or

read the transcript, unless the prison offi-

cials determine that this would also jeopar-

dize institutional safety or correctional

goals. One inmate, Robin Anderson, didn’t

even know whether requested witnesses

had been interviewed. Tr. at 43. This pro-

cedure would also reduce the possibility of

inaccuracies in the description of witness’

testimony to inmates, a problem which

“rose in a disciplinary proceeding involving

ol Crooks. See Exhibit P.

A-50

In sum, to comply with section 1(b), wit-

nesses must be allowed to be present at

disciplinary proceedings, unless the appro-

priate officials determine that this would

jeopardize institutional safety or correction-

al goals." If an inmate is not permitted to

have witnesses present, the interview may

be conducted out of her presence and tape

recorded. The tape or transcript of the

interview, which is to be considered part of

the record of the hearing, is to be made

available to the inmate prior to or at the

hearing, unless prison officials determine

that this too would jeopardize institutional

safety or correctional goals. In either case,

a written explanation of the denial of wit-

nesses is to be given to the inmate.

Plaintiffs also argue that defendant vio-

lated our order by limiting the number of

witnesses to be interviewed. There was

testimony that prison officials had, on occa-

sion, denied all of an inmate’s requests for

witnesses, or required an inmate to select

the most pertinent witness, tr. at 574-75.

These decisions do not fall within the excep-

tion in the order to the requirement that

inmates be permitted to call witnesses to

testify in their behalf, and no other justifi-

cation for denying witnesses was provided.

Contrary to plaintiffs’ contention, this does

not mean that prison officials may not limit

the number of witnesses to be called under

any circumstances. If an inmate requests

an unreasonable number of witnesses, and

1. The Department of Corrections and the for-

mer superintendent of Bedford Hills interpreted

our order and Wolff to require the presence of

witnesses. See Exhibits 21 and 24.

A-S1

prison officials determine that some of

these witnesses are cumulative, witnesses

may be excluded on that ground. Witness-

es may also be excluded if the hearing

officer determines that their involvement

will jeopardize institutional safety or cor-

rectional goals.

Written Explanation of Denial of Request

for Witnesses

Section 1(c) of the order provides

If permission to call a witness is denied,

the party conducting the hearing shall

give the inmate a written statement stat-

ing the reasons for the denial, including

the specific threat to institutional safety

or correctional goals presented by the

witness.

It was not disputed that statements of

the reasons for denying requests for wit-

nesses have not been given to inmates, tr.

at 603. One prison official testified that

they did not believe the written statement

was necessary because witnesses had never

been denied on the grounds that they

presented a threat to institutional safety or

correctional goals. Contrary to defendant’s

contention, the requirement of a written

statement is not restricted to denials based

on institutional safety or correctional goals,

but requires a written statement whenever

a request for witnesses is denied. Defend-

ant’s failure to give inmates written state-

ments of reasons for the denial of witnesses

is another instance of non-compliance with

our order.

Written Statement of Evidence and Rea-

sons for Disposition

Section 1(d) of the order states:

A-52

At the conclusion of the hearing, the in-

mate shall be given a written statement

of the evidence relied on and the reasons

for any action taken.

Inmates are not given any written dispo-

sition after an Adjustment Committee Pro-

ceeding, tr. at 31, 106, 168, 252, 464. The

current practice is to inform the inmate

orally of the discipline imposed and to for-

ward a written report of the charges and

the decision to the Deputy Superintendent

of Security and the prison service unit for

inclusion in the inrnate’s files. This proce-

dure does not sutisfy Section 1(d) of the

order.

The general practice in Superintendent's

Proceedings is to provide inmates with a

Superintendent’s Hearing Statement of Ev-

idence and Reason for Disposition. When

the presiding official properly completes the

form and gives it to the inmate at the

completion of the hearing, this procedure

complies with Section 1(d) of the order. On

at least some occasions, however, inmates

have not received this statement at all, or

have received them well after the hearing

was terminated, tr. at 35, 57 and 272. For

instance, Luz Santana stated that she had

not received any written dispositions after

three separate Superintendent's Proceed-

ings, and Robin Anderson received her writ-

ten statement four months after the hear-

ing, after several requests.

The completed statements of evidence re-

lied upon submitted to the Court by both

parties indicate that the forms themselves

are inadequately completed. As plaintiffs

point out, the statement of evidence relied

A-53

upon most often consists of a list of the

source of the information presented to the

hearing board. For example, one state-

ment lists as evidence relied upon “misbe-

havior reports, discussion at Superintend-

ent’s Proceeding. Interview with Sgt.

Pompellone re: charges and information re:

C. O. Young and inmate Robin Anderson.”

Another statement merely says “reports

from C. O. Stephen and C. 0. Young.” This

information does not “protect the inmate

against collateral consequences based on a

misunderstanding of the nature of the orig-

inal proceeding.” Wolff v. McDonnell, 418

U.S. at 565, 94 S.Ct. at 2979. Nor is the

inmate likely to be aided in “propounding

his own cause or defending himself to oth-

ers,” id., especially because the inmate does

not have access to some of the reports upon

which the decision may be based.

Some of the statements of the reason for

the disposition also fail to adequately in-

form the inmate and other decision makers

who may rely on this information of the

basis of the decision, although hearing offi-

cers were more thorough in providing this

information than the statements of evi-

dence. In some instances, however, the

hearing officer merely restated the offense

the inmate was found to have committed.

See, e. g. Exhibit 12, p. 5; Exhibit JJJ;

Exhibit 39.

The Department of Corrections aptly set

forth the degree of specificity necessary to

comply with our order:

In order to comply with Powell v. Ward,

it will be necessary to detail the evidence.

Evidence can basically be described as the

A-54

facts which tend to prove or disprove the

charges presented. Pusthovines: it will

be necessary to give the reasons for the

action taken (disposition). In other

words, the rationale for a particular re-

striction, confinement, or other penalty

being imposed [sic].

Exhibits 23 and 24, Memo. As of now, the

responsible officials have not consistently

met this standard.

Membership of the Hearing Committee

Section 1(e) of the order provides:

No person who has participated in any

investigation of the acts complained of, or

who was a witness to those acts shall be a

member of any Adjustment Committee or

Superintendent’s Proceeding relating to

those acts.

On occasion, officers who were involved in

the incident underlying the charge were

also a member of the disciplinary board in

that case. For example, Carol Crooks testi-

fied that the officer presiding over her

hearing of December 20, 1977 was involved

in the relevant incident, tr. at 650. On the

basis of the record, it is difficult to assess

the degree of such non-compliance. We

note that the policy that the Adjustment

Committee investigates any incident that

comes before them, 7 NYCRR § 253.4; tr.

at 569, is likely to increase the likelihood

that an involved official will preside over a

related disciplinary proceeding.

There is a more general problem with the

current policy of allowing members of the

Adjustment Committee or Superintendent's

Hearing to investigate the incident, a policy

A-55

which is embodied in the department’s reg-

ulations. See 7 NYCRR § 253.3, 253.4; tr.

at 569. There was testimony that the per-

son who assists the inmate at the hearing is

authorized to conduct the investigation as

well. Whether or not these people actually

performed that function, the evidence es-

tablishes that ‘he hearing officers do con-

duct investigations. This procedure is in

yg conflict with Section 1(e) of the or-

er.

Nor is this problem of non-compliance

remedied by the procedure adopted by the

defendants, apparently to avoid changing

their policy, of postponing the investigation

until after the hearing is commenced, tr. at

465, Exhibit 30. Our concern in issuing

this provision was that the hearing officer

remain impartial, Holfield v. Power Chemi-

cal Company, Inc., 382 F.Supp. 388, at 392.

The formality of convening and adjourning

the disciplinary proceedings does not dimin-

ish the possibility that an investigation of

the incident by the hearing officer may

‘affect his or her neutrality in rendering a

disposition.

We do not as a matter of general princi-

ple, consider interviews of witnesses re-

quested by an inmate conducted out of her

presence and tape-recorded to constitute in-

vestigations within the meaning of our or-

der. These interviews would ordinarily be

conducted by the hearing officer at the

12. This practice has resulted in problems relat-

ing to the defendant's compliance with the re-

quirement of a hearing within seven days of

confinement. Inmates have been confined for

substantial periods “pending investigation” of

the requested witnesses.

A-56

proceeding. It was reasonable under the

circumstances for the prison officials to

treat witness interviews as part of the hear-

ing, and to the extent that current practices

create the possibility of bias or unfairness,

these problems are more appropriately ad-

dressed in the section dealing with the in-

mate’s right to call witnesses in her behalf.

Hearing Within Seven Days of Confine-

ment

Section 2 of the order as modified by the

Court of Appeals provides:

If any inmate is confined to Special

Housing or Segregation “pending investi-

gation” of charges, a hearing must be

held within seven days of the date of her

confinement. In unusual or emergency

situations, the seven-day requirement

may be extended but only with the per-

mission of the Commission of Correction-

al Services or his designee.

Adjustment Committee Proceedings and

Superintendent's Proceedings are generally

commenced within seven days of the in-

mate’s confinement, although there were

isolated instances in which the hearing was

opened later. For example, Robin Ander-

son’s Superintendent’s Proceeding was ini-

tiated a day late, tr. 625, Exhibits SS and

TT.

However, a serious problem concerning

confinement “pending investigation” re-

mains. In a number of instances, the hear-

ings were not completed within seven days

of confinement. For example, Robin An-

derson was confined for 13 days and. then. _

acquitted of the charges; another inmate

was in SHU for 16 days before a disposition

A-57

was rendered, tr. at 264; Luz Santana was

confined for 15 or 16 days before a disposi-

tion was rendered, tr. at 519. See Exhibit

44. In none of these cases did prison offi-

cials obtain the permission of the Commis-

sioner based on the existence of exigent

circumstances.

Defendant argues that our order requires

only that the hearing be opened within sev-

en days. We do not agree. We originally

found in Powell v. Ward that inmates were

being confined “pending investigation” for

significant periods of time. As we stated

earlier, the fact that a hearing is convened

and adjourned “pending investigation” does

not alter the pivotal fact that inmates are

subject to confinement for substantial peri-

ods before any determination is made that

such confinement is required. The order, as

modified, provides prison officials with the

flexibility necessary to deal with unusual or

emergency situations, and still protects in-

mates’ due process rights. It becomes par-

ticularly important to ensure swift disposi-

tion of cases where the inmate has been

confined pending a determination in light

of the practice at Bedford Hills of fairly

routinely confining inmates following inci-

dents leading to disciplinary proceedings.”

Therefore, we find that defendant’s fail-

ure to complete proceedings within 7 days

of the inmate’s confinement constitutes a

violation of Section 3 of the order.

13. We recognize that prison officials may con-

fine inmates without a hearing when the in-

mate is violent or otherwise threaten institu-

tional security, as long as a hearing follows as

soon as practicable. See McKinnon v. Patter-

son, 568 F.2d at 939 n.10.

A-58

Failure to Provide Interpreters for Spanish

Speaking Inmates

(8] Plaintiffs contend that the defend-

ant’s failure to provide Spanish speaking

inmates with notice and statements in

Spanish violates Sections l(a) and 1(d) of

the order. It was not disputed that notice

and statements are given only in English,

tr. at 463-64. Several inmates testified

that they did not speak or understand Eng-

lish, and that they could not understand the

notice or statements given to them, nor

could they understand fully what went on

at the hearing, tr. at 180-134.

Although prison officials’ responsibility to

provide comprehensible notice to Spanish

speaking inmates was not dealt with direct-

ly by the Supreme Court in Wolff v.

McDonnell, supra, the Court’s treatment of

illiterate inmates is instructive. The Court

required prison officials to provide an op-

portunity for aid to such inmates in under-

standing the written communications and

aiding her at the hearing, 418 U.S. at 570,

94 S.Ct. at 2981. The emphasis was on

enabling the inmate to comprehend the case

so that she is able to collect and present

evidence. These considerations are equally

pressing in the situation currently before

us. Unless Spanish speaking inmates un-

derstand and can communicate with the

hearing board, they are being denied the

due process protections guaranteed in

Wolff. Therefore, we find that due process

requires that Spanish speaking inmates who

cannot read and understand English must

be given notice and statements in Spanish

A-59

or provided with a translator, who should

be present at the hearing in any case."

Accordingly, we find that defendant has

failed to comply with our order requiring

the institution of procedural safeguards in

all disciplinary proceedings that may result

in confinement of an inmate in segregation.

Contempt

Plaintiffs have moved for a finding of

civil and criminal contempt for failure to

comply with the order.

[9-11] “Broadly speaking, a civil con-

tempt is a failure of a litigant to do some-

thing ordered to be done by a court in a

civil action for the benefit of the opposing

party therein.” Walling v. Crane, 158 F.2d

80, 83 (5th Cir. 1946). “While a finding of

civil contempt should follow only from

‘clear and convincing proof’, NLRB v. Local

282, International Brotherhood of Team-

sters, 428 F.2d 994, 1001-02 (2d Cir. 1970);

. « «y the violation need not be wilful

to evoke such a remedial determination.

NLRB v. Local 282, supra at 1001;” Aspira

of N.Y. v. Board of Education of City of

New York, 423 F.Supp. 647, 653-54 (S.D.N.

Y.1976). The re vant question has been

determined to be “whether defendants have

been reasonably diligent and energetic in

attempting to accomplish what was or-

dered.” Aspira, 423 F.Supp. at 654, citing

cases. Inability to comply, if shown clearly

and categorically by defendants, is a valid

defense to a civil contempt motion. United

14. In light of the fact that this requirement has

not before been articulated, we do not consider

defendant's non-compliance as support for the

contempt motion.

A-60

States v. Bryan, 339 U.S. 323, 330-34, 70

S.Ct. 724, 94 L.Ed. 884 (1950). However,

“where the court determines that ‘defend-

ants violated their obligations under the

decree by failures of diligence, effective

control, and steadfast purpose to effectuate

the prescribed goals,’ contempt findings are

in order.” Palmigiano v. Garrahy, 448

F.Supp. 659, 670 (D.R.1.1978), citing Aspira,

423 F.Supp. at 651. In such cases, a finding

of civil contempt is necessary “to preserve

and enforce the rights of private parties to

suits, and to compel obedience to orders and

decrees made to enforce the rights and ad-

minister the remedies to which the court

has found them to be entitled.” Palmigiano

v. Garrahy, 448 F.Supp. at 670, citing In re

Nevitt, 117 F. 448, 458 (8th Cir. 1902).

(12,13) A finding of criminal contempt

is punitive rather than remedial in nature,

and is intended “to preserve the power and

vindicate the dignity of the courts, and to

punish for disobedience of their orders.” In

re Nevitt, 117 F. at 458. The Court, the

U.S. Attorney or an attorney appointed by

the Court for this purpose, may prosecute a

criminal contempt motion. F.R.Crim.P.,

Rule 42(b). “Wilfulness . . . is an

element of criminal contempt and must be

proved beyond a reasonable doubt. United

States v. Greyhound Corp., 508 F.2d 529,

581 (7th Cir. 1974). There must be shown

to be “a volitional act done by one who

knows or who should reasonably be aware

that his conduct is wrongful.” Id. at 531-

32.

In the case before us, we are concerned

first and foremost with achieving and main-

taining disciplinary proceedings which are

A-61

in accordance with the constitution. Con-

tinued non-compliance prolongs the harm to

inmates caused by deprivation of funda-

mental rights without due process of law.

We have found that the defendant has

failed to comply in significant respects with

virtually every provision of our order. This

is not the first time it was necessary to hold

that the procedures employed at Bedford

Hills did not comply with our order. We

are troubled by the defendant’s lack of dili-

gence and commitment in taking the steps

necessary to achieve compliance.

The defendant’s treatment of the court

order as it applies to Adjustment Commit-

tee Proceedings is the most obvious and

disturbing instance of the defendant’s lack

of reasonable diligence. The original opin-

ion explicitly addresses and resolves the

question of the applicability of our order to

Adjustment Committee Proceedings. The

accompanying order unambiguously applies

to Adjustment Committee Proceedings.

There was no appeal from the provision, nor

was there any request for reconsideration

or modification. The defendant deter-

mined, apparently unilaterally and in the

face of contrary views of her predecessors

and superiors, that the language and spirit

of the order could be ignored. This action

strongly influences our view that the de-

fendant was not reasonably diligent in com-

plying or even attempting to comply with

our order.

This determination is further evidenced

by the defendant’s response to the provi-

sions of ‘the order requiring an impartial

hearing officer and a hearing within 7 days

of confinement. The interpretations pro-

A-62

posed by the defendant strain both the lan-

guage and intent of the order. We are left

with the impression that, rather than mak-

ing all reasonable efforts to afford inmates

the required due process protections, the

defendant jnstituted superficial changes in

policy that cut off consideration of the ne-

cessity of altering basic practices to comply

with the letter and spirit of the order.

Our view is not altered by the fact that

Superintendent Curry “consulted with her

attorney”, “searched for relevant material,”

and “called a staff meeting with her three

Deputy Superintendents”, at which the Su-

perintendent went over the Order “point by

point”. The most troubling areas of non-

compliance stem not from failure of staff to

comply with valid procedures, but from

those procedures adopted by the defendant

that contravene the provisions of the order.

Furthermore, although the defendant's ef-

forts certainly indicate that she was con-

cerned about the possibility of non-compli-

ance, these efforts do not satisfy her re-

sponsibilities “to marshall [available re-

sources], assert [her] high authority, and

demand the results needed from subordi-

nate persons . . . in order to effectu-

ate the course of action required by the

{order].” Aspira, 423 F.Supp. at 654. Her

responsibility did not end with the delega-

tion of duties, nor was it sufficient to follow

up “by reviewing the papers in Superin-

tendent’s Proceedings to the extent she had

time available.” Defendants’ Memorandum

of Law at 30." More active involvement

15. There was reason for concern because mem-

oranda in defendant's files from the Depart-

mental Review Board indicated that current

practice did not conform to our order. See

Exhibits 21, 23, 24, 25.

A-63

and supervision was and is necessary to

bring about a change in procedures that are

basic to the prison routine.

[14] We are also disturbed by the de-

fendant’s apparent ignorance of the exist-

ence of our order until September 1978.°

Although Superintendent Curry was not

personally involved in defendants’ compli-

ance efforts from the outset, the Superin-

tendent at Bedford Hills assumed responsi-

bility for achieving compliance with our

order from the time the order was entered.

We do not question Superintendent Curry's

good faith, but the inevitable succession of

officials in public office does not excuse

non-compliance. See Palmigiano v. Gar-

rahy, 448 F.Supp. at 673.

This is not a case in which the defendant

has demonstrated inability to comply with

our order. Bedford Hills had a pre-existing

duty to institute many of the procedures

required by our order. There was no show-

ing of undue hardship or inadequate re-

sources to comply with the order.

{15] For these reasons, we are forced to

conclude that the defendant was not “rea-

sonably diligent” in attempting to comply

with the June 23, 1975 order. We decline to

find that defendant’s non-compliance was

wilful, and we do not intend to punish the

defendant for her failure to achieve compli-

ance. Our finding of civil contempt is sole-

ly remedial in purpose. Defendant’s failure

to maintain minimum procedural safe-

guards in the face of a court order not only

* Phyllis Curry assumed the position of Superin-

tendent at Bedford Hills in December, 1977:

A-64

deprives plaintiffs of their constitutional

rights, but is also likely to contribute to

their sense of the arbitrariness of discipli-

nary proceedings which due process safe-

guards are intended to reduce. We there-

fore conclude that a sanction and related

relief is necessary.

The Remedy

(16,17) “Generally, the sanctions im-

posed after a finding of civil contempt

serve two functions: to coerce future com-

pliance and to remedy past noncompliance.

See generally United States v. United Mine

Workers, 330 U.S. 258, 302-04, 67 S.Ct. 677,

91 L.Ed. 884 (1947). . . .. So far as

the first of these functions is concerned, the

district judge sitting in equity is vested

with wide discretion in fashioning a reme-

dy.” Vuitton et Fils S.A. v. Carousel Hand-

bags, 592 F.2d 126, 130 (2d Cir. 1979). In

assessing the appropriate character of the

remedy, we “must then consider the charac-

ter and magnitude of the harm threatened,

and the probable effectiveness of any sug-

gested sanction in bringing about the result

desired.” United States v. United Mine

Workers, 330 U.S. at 304, 67 S.Ct. at 701.

{18] We have already discussed the ir-

reparable harm caused plaintiffs by the

continuing deprivation of their constitution-

al rights. It is almost five years since the

order was first issued, and the due process

violations that were enjoined at that time

are still widespread. We conclude that a

fine is necessary to demonstrate to the de-

fendants the seriousness with which we

view their continued non-compliance and to

A-65

generate the effort necessary to bring

about prompt and meaningful compliance

with our order and the Constitution. We

will therefore impose on defendant Curry in

her capacity as Superintendent of Bedford

Hills Correctional Facility a fine of 5,000

dollars to be paid one month from the date

of entry of our order, and 1,000 dollars

thereafter for every additional day that the

defendant is not in substantial compliance.

The contempt finding may be purged if

defendant achieves compliance with our or-

der within that 30-day period. In that

event, the Court may quash the contempt

citation and revoke the fine. Palmigiano v.

Garrahy, 448 F.Supp. at 672; Hamilton v.

Love, D.C., 358 F.Supp. 338, 348; 361

F.Supp. 1235 (D.Ark.1973).

{19} Defendant's ignorance of the exist-

ence of the order until September of 1978

and apparent lack of concern for the actual

state of compliance efforts over the last

few years leads us to conclude that the

appointment of a special master is warrant-

ed to oversee the compliance process and to

report to the Court on a periodic basis con-

cerning defendant's progress. Courts have

inherent authority to appoint nonjudicial

officers to aid in carrying out their judicial

functions. See Ex Parte Peterson, 253 U.S.

300, 40 S.Ct. 543, 64 L.Ed. 919 (1919). In

addition, Rule 53, F.R.Civ.P., establishes a

statutory basis for the appointment of a

master. Masters have been used in the

prison context, when prison officials were

unable or unwilling to comply with a court

order, to provide expert assistance, to serve

as a visible reminder of the court's jurisdic-

tion, and to serve as “the eyes and ears of

A-66

the Court.” Palmigiano v. Garrahy, 443

F.Supp. 956, 986 (D.R.1.1977); see also Jor-

dan v. Wolke, 75 F.R.D. 696 (E.D. Wis.1977);

Jones v. Wittenberg, 73 F.R.D, 82, 85 (N.D.

Ohio 1976). We think that compliance ef-

forts here will be expedited by the appoint-

ment of a master to monitor compliance

until we are satisfied that the due proces

protections required by our order have been

incorporated into the prison routine.

Therefore, the parties are to include in the

proposed order to be submitted hereunder

provisions specifying the duties and powers

of the master.

[20] The imposition of the fine and ap-

pointment of the master serve the function

of achieving future compliance. It remains

“to make reparation to the injured party

and restore the parties to the position they

would have held had the injunction been

obeyed.” Vuitton et Fils S.A. v. Carousel

Handbags, 592 F.2d at 130. “The court ‘has

not merely the power but the duty to ren-

der a decree which will so far as possible

eliminate the discriminatory effects of the

past as well as bar like discrimination in the

future.’” Carter v. Jury Commission, 396

U.S. 320, 340, 90 S.Ct. 518, 529, 24 L.Ed.2d

549 (1970). Where, as here, there is likely

to be continuing effects from the use of

records of unconstitutional disciplinary pro-

ceedings,"* and plaintiffs’ due process rights

were clearly established at the time the

violations occurred, it is appropriate to re-

16. These records are relied upon in making a

range of decisions concerning inmates’ future

rights and privileges, e. g., parole, furloughs,

visitations.

A-67

quire the expungement of the records of all

disciplinary proceedings conducted in viola-

tion of our order. See Chapman v. Pickett,

586 F.2d 22 (7th Cir. 1978); Ware v. Heyne,

575 F.2d 593 (7th Cir. 1978); McKinnon v.

Patterson, 568 F.2d 930 (2d Cir. 1977). We

have found that defendant's policy and

practice concerning Adjustment Committee

Proceedings violates the provisions of our

order, and that some practices in Superin-

tendent’s Proceedings violated our order as

well. These findings relate to events which

followed an earlier expungement order is-

sued on June 24, 1977 to remedy violations

occurring prior to that time. Therefore, for

disciplinary proceedings since June 24, 1977,

defendant is to expunge the records of all

Adjustment Committee Proceedings and in

addition, those Superintendent’s Proceed-

ings that plaintiffs demonstrate to the Spe-

cial Master have been conducted in viola-

tion of the order. The Special Master ap-

pointed in this case shall hold hearings on

this issue, and report to the Court concern-

ing his findings and recommendations.

[21] Plaintiffs also seek damages to

compensate for injury suffered as a result

of violations of the order. Plaintiffs who

have suffered harm because of a violation

of the terms of a decree are to be awarded

damages to the extent they are established.

Vuitton et Fils S.A. v. Carousel Handbags,

592 F.2d at 130. Although defendant is

entitled to the qualified immunity accorded

officials in Scheuer v. Rhodes, 416 U.S. 232,

94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) and

Wood v. Strickland, 420 U.S. 308, 95 S.Ct.

992, 43 L.Ed.2d 214 (1975), the immunity

defense is unavailing here, where “the con-

A-68

stitutional right allegedly infringed was

clearly established at, the time of [her] chal-

lenged conduct,” “she knew or should have

known of that right, and [she] knew or

should have known that [her] conduct vio-

lated the constitutional norm.” Procunier

v. Navarette, 434 U.S. 555, 562, 98 S.Ct. 855,

860, 55 L.Ed.2d 24 (1978).

[22-24] To recover damages in a civil

contempt action, plaintiffs must show that

they suffered actual injury. Damages are

not “presumed to flow from every depriva-

tion of procedural due process.” Carey v.

Piphus, 435 U.S. 247, 268, 98 S.Ct. 1042,

1052, 55 L.Ed.2d 252 (1977). Moreover, in-

jury caused by a justified deprivation, in-

cluding distress, does not justify awarding

compensatory damages. 435 U.S. at 264, 98

S.Ct. at 1052.

Here, a significant portion of the harm to

plaintiffs will be remedied by our order

requiring the expungement of records of

disciplinary proceedings that violated our

order. With respect to the mental and

emotional harm allegedly suffered by plain-

tiffs, there has not been a sufficient show-

ing of injury actually suffered by individu-

als whose due process rights were violated.

Although plaintiffs argue in their memo-

randum that such harm occurred, little if

any testimony concerning actual injury was

presented. Furthermore, there is a ques-

tion as to which members of the class are

actually seeking damages (e. g. the entire

class, the inmates who testified at the hear-

ing, those who submitted affidavits).

[25] Even though plaintiffs have not

shown actual injury sufficient to support a

A-69

substantial damage award, they are entitled

to a nominal award to vindicate the depri-

vation of their rights, because of the “im-

portance to organized society that procedur-

al due process be observed.” Carey v. Pi-

phus, 435 U.S. at 266, 98 S.Ct. at 1054.

Respondents are thus entitled to nominal

damages not to exceed one dollar from de-

fendant.

Attorneys Fees

[26] Plaintiffs have requested attorneys

fees for services performed in litigating this

motion. Under the Civil Rights Attorney’s

Fees Awards Act of 1976, 42 U.S.C. § 1988,

in an action to enforce a provision of 42

U.S.C. § 1983 “the court, in its discretion,

may allow the prevailing party, other than

the United States, a reasonable attorney's

fee.” We find that plaintiffs’ counsel is

entitled to recover fees in this case. See

Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565,

57 L.Ed.2d 522 (1978); Mid-Hudson Legal

Services, Inc. v. G. & U., Inc., 578 F.2d 34

(2d Cir. 1978). Counsel shall submit affida-

vits in accordance with the standards set

forth in City of Detroit v. Grinnell Corp.,

495 F.2d 448 (2d Cir. 1974) and Beazer V.

New York Transit Authority, 558 F.2d 97

(2d Cir. 1977).

Conclusion

We have found that defendant failed to

comply with our order, that plaintiffs have

been irreparably harmed and that the harm

is of a continuing nature such that injune-

tive relief is necessary. Therefore, the pre-

liminary injunction entered on June 23,

A-70

1975 shall constitute permanent injunctive

relief.

Plaintiffs are directed to submit an order

in ten days. Defendants may submit-objec-

tions thereto and any proposed counter-or-

der five days thereafter.

So ordered.

A-71

APPENDIX E

June 23, 1975 Order as Modified by the September 17, 1976

Opinion of the Court of Appeals

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

EILZABETH POWELL, et al.,

Plaintiffs,

~against- ORDER

BENJAMIN WARD, et al.,

Defendants.

This action having come on for hearing before the Court on

November 27, December 3, 4, 13 and 16, 1974, Hon, Charles E.

Stewart, Jr. presiding, on Plaintiffs’ Motion for a preliminary

injunction, and the Court, on April 23, 1975, having rendered its

findings of fact and conclusions of law, IT IS ORDERED THAT:

1. Defendants shall conduct all Adjustment Committee or

Superintendent's Proceedings , or other disciplinary proceedings

that may result in an inmate at Bedford Hills Correctional Facility

being confined in a Special Housing Unit or Segregation Unit, in

accordance with the following procedures:

(a) Formal written notice of charges must be served on the

inmate at least 24 hours before the hearing;

(b) The inmate shall be permitted to call witnesses on her behalf

provided that so doing does not jeopardize institutional

safety or correctional goals. The written notice of charges

served in accordance with Paragraph | (a), shall inform the

inmate of her right to call witnesses;

(c) If permission to call a witness is denied, the party conducting

the hearing shall give the inmate a written statement stating

the reasons for the denial, including the specific threat to

institutional safety or corrrectional goals presented by the

witness.

(d) At the conclusion of the hearing, the inmate shall be given a

written statement of the evidence relied on and the reasons

A-72

for any action taken;

(e) No person who has participated in any investigation of the

acts complained of, or who was a witness to those acts shall be

a member of any Adjustment Committee or Superintendent's

Proceeding relating to those acts;

(f) Neither the Deputy Superintendent for Security, nor any

person whose job involves direct responsibility for institu-

tional security, shall be a member of any Adjustment

Committee or Superintendent's Proceeding at which an

inmate is charged with an act which purportedly threatens the

security of the prison. [*]

2. If any inmate is confined to Special Housing or segregation

“pending investigation” of charges, a hearing must be held within

seven days of the date of her confinement. [In unusual or emergency

situations, the seven-day requirement may be extended but only

with the permission of the Commissioner of Correctional Services

or his designee. }+

3. Counsel for Plaintiffs shall notify all members of the Class of

the entry of this order. Plaintiffs’ counsel shall deliver to Defendant

WARNE sufficient copies of the Notice annexed as Exhibit “A”,

describing this order and the Court's opinion dated April 23, 1975,

so that the Notice may be posted as set forth in Paragraph 4.

4, Defendant Warne shall cause copies of the Notice to be placed

and affixed in conspicuous places in each building used to house

inmates, including the hospital building, the legal library, and the

reading library.

(*] Sub-paragraph (f) was deleted on defendants’ appeal to the United

States Court of Appeals for the Second Circuit. 542 F.2d 101, 104 (1976).

+Text in brackets was added on defendants’ appeal to the United States

Court of Appeals for the Second Circuit. 542 F.2d at 104,

A-73

APPENDIX F

POWELL v. WARD

Cite as 542 F.24 101 (1976)

Elizabeth POWELL et al.,

Plaintiffs-Appellees,

v.

Benjamin WARD, Commissioner of Correc-

tional Services and Janice Warne, Indi-

vidually, and as Superintendent of Bed-

ford Hills Correctional Facility, Defend-

ants-Appellants.

No. 527, Docket 75-2107.

United States Court of Appeals,

Second Circuit.

Argued May 10, 1976.

Decided Sept. 17, 1976

Prisoners brought class action to re-

quire officials of two state women’s prisons

to bring disciplinary proceedings into con-

formity with procedural due process re-

quirements. The United States District

Court for the Southern District of New

York, Charles E. Stewart, J., 392 F.Supp.

628, issued a preliminary injunction applica-

ble to inmates at one of the facilities, and

prison officials appealed, challenging only

two provisions of the injunction. The Court

of Appeals, Newman, District Judge, sitting

by designation, held that prison officials

responsible for maintaining security were

not disqualified solely by the nature of their

positions from adjudicating allegations of

breaches of prison security; and that the

order was modified to allow extension, in

unusual or emergency situations, of the re-

A-74

quirement that hearings for those confined

to segregation pending investigation of

charges be held within seven days of such

confinement.

Affirmed as modified.

1. Administrative Law and Procedure

e314

Though, in sorne circumstances, the na-

ture of one’s position or the relationship

between that position and the outcome of

adjudications disqualifies person from serv-

ing with the impartiality mandated by the

due process clause, fact that decision maker

has responsibilities to uphold standards of

conduct does not inevitably mean that he is

disqualified from adjudicating allegations

that those standards have been breached.

2. Prisons e13

Prison officials responsible for main-

taining security are not disqualified solely

by the nature of their positions from adju-

dicating allegations that prison’s security

has been breached.

3. Prisons @13

Apart from constitutional require-

ments, advisability of giving prison offi-

cials, who are responsible for maintaining

prison security, tasks related to adjudicat-

ing allegations of breaches of prison securi-

ty is matter for decision by state legislators

and administrators.

4. Prisons 13

District court's order that hearings for

prisoners confined in special confinement at

state prisons for women pending investiga-

tion of charges must be held within seven

A-75

days of such confinement was modified to

allow extension of the seven-day require-

ment in unusual or emergency situations,

but only with permission of the Commis-

sioner of Correctional Services.

5. Prisons @13

Normal maximum time for giving no-

tice of charges to specially confined prison-

ers and normal minimum time for a discipli-

nary hearing after such notice are not to be

combined to create a maximum period of

prehearing confinement.

Stephen M. Latimer, Bronx Legal Serv-

ices Corp., New York City (Donald Grajales,

Project Director, New York City, on the

brief), for plaintiffs-appellees.

Margery Evans Reifler, Asst. Atty. Gen.,

New York City (Louis J. Lefkowitz, Atty.

Gen., Samuel A. Hirshowitz, First Asst.

Atty. Gen., New York City, on the brief),

for defendants-appellants.

Before MOORE and TIMBERS, Circuit

Judges, and NEWMAN, District Judge.*

NEWMAN, District Judge:

In this class action brought on behalf of

prisoners at New York’s two state prisons

for women to bring disciplinary proceedings

into conformity with the procedural due

process standards enunciated in Wolff v.

McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41

L.Ed.2d 935 (1974), Judge Stewart issued a

preliminary injunction applicable to the

* Of the United States District Court, District of

Connecticut, sitting by designation.

A-76

sub-class of prisoners at the Bedford Hills

Correctional Facility. Powell v. Ward, 392

F.Supp. 628 (S.D.N.Y.1974). This appeal '

by defendant prison officials challenged

only two provisions of that carefully drawn

injunction: paragraph 1(f), concerning the

membership of an Adjustment Committee

or Superintendent’s Proceeding in certain

instances, and paragraph 2, concerning the

time an inmate may be held in segregation

pending a disciplinary hearing.

1. Applying the due process requirement

of an impartial fact-finder, Judge Stewart

ordered that no person who has participated

in the investigation of acts complained of or

who has been a witness to such acts could

be a member of an Adjustment Committee

or Superintendent’s Proceeding relating to

those acts. Defendants do not challenge

this requirement. They do object to the

disqualification. of “the Deputy Superin-

tendent for Security and any person whose

job involves direct responsibility for institu-

tional security” from membership of an Ad-

justment Committee or Superintendent's

Proceeding “at which an inmate is charged

with an act Which purportedly threatens

the security of the prison.” Preliminary

Injunction, paragraph 1(f). While making

no finding that the Deputy Superintendent

for Security was actually biased with re-

1. This appeal was initially before a different

panel of this Court, which returned the case to

the Clerk's office for reassignment in light of

appellants’ then pending motion for reargu-

ment in the District Court to seek reconsidera-

tion of the two matters raised on appeal. After

receiving papers and hearing oral argument,

the District Court declined to modify its order.

A-77

spect to any prisoners charged with breach-

es of prison security, the District Court

apparently concluded that the nature of her

position and that of others with responsibil-

ity for institutional security created a risk

of bias sufficient to disqualify such persons

from determining allegations of misconduct

that threatens the security of the prison.

{1-3] In some circumstances the nature

of one’s position or the relationship between

that position and the outcome of adjudica-

tions disqualifies a person from serving

with the impartiality mandated by the Due

Process Clause. See, e. g., Ward v. Village

of Monrceville, 409 U.S. 57, 93 S.Ct. 80, 34

L.Ed.2d 267 (1972); Tumey v. Ohio, 273

U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927).

But the fact that a decision-maker has re-

sponsibilities to uphold standards of conduct

does not inevitably mean that he is disquali-

fied from adjudicating allegations that

those standards have been breached. See,

Hortonville Joint School District No. 1 v.

Hortonville Education Assn., 426 U.S. 482,

96 S.Ct. 2308, 49 L.Ed.2d 1 (1976); With-

row v. Larkin, 421 U.S. 35, 95 S.Ct. 1456,

43 L.Ed.2d 712 (1975). In Wolff v. Me-

Donnell, supra, the Supreme Court reject-

ed a due process challenge to the impar-

tiality of a prison discipline committee

whose chairman was the Associate Warden

for Custody. See also Meyers v. Alidredge,

492 F.2d 296, 306 (3d Cir.1974); Braxton v.

Carlson, 483 F.2d 933 (3d Cir.1973). We

conclude that prison officials responsible for

maintaining security are not disqualified by

the Due Process Clause from adjudicating

allegations of breaches of prison security

A-78

solely by the nature of their positions.*

Apart from constitutional requirements, the

advisability of giving such persons adjudica-

tory tasks of this nature is a matter for

decision by state legislators and administra-

tors who, of course, need not be satisfied

with merely meeting the minimum stan-

dards of the Constitution.

2. To prevent recurrence of instances of

prolonged segregation prior to disciplinary

hearings, Judge Stewart ordered that hear-

ings for those confined to Special Housing

or segregation pending investigation of

charges must be held within seven days of

such confinement. Prior to the injunction,

the New York Department of Correctional

Services had on March 12, 1975, instructed

all institutions to accord confined prisoners

an Adjustment Committee hearing within

three days and a Superintendent’s Proceed-

ing within seven days of such special con-

finement. The administrative directive

specifies these time limits “in the absence

of exigent circumstances.” © Defendants’

only challenge to the District Court’s seven-

2. Plaintiffs assert that the Deputy Superintend-

ent for Security should be disqualified for rea-

sons apart from the nature of her responsibil-

ities. They find “incredible” her testimony that

following her return from vacation, she had no

Specific duties with respect to the disturbance

that occurred during her vacation and out of

which arose many of the charges of misconduct

brought against the plaintiffs. They also point

to testimony by one of the plaintiffs critical of

the Deputy Superintendent. There is no indi-

cation that the District Court doubted the Dep-

uty Superintendent's testimony nor found the

type of hostile relationship that in some con-

texts would warrant disqualification. Cf. May-

berry v. Pennsylvania, 400 U.S. 455, 91 S.Ct.

499, 27 L.Ed.2d 532 (1971).

A-79

day limit is the lack of an exception for

truly exigent circumstances, Citing an ex-

ample of a disturbance involving a substan-

tial number of inmates or violence, defend-

ants urge that the injunction be modified to

permit the seven-day limit to Le extended

“in unusual or emergency situations

but only with the permission of the Com-

missioner of Correctional Services or his

designee.” (Letter from appellants’ coun-

sel, April 28, 1976).

[4,5] While we are not unmindful of

plaintiffs’ concern that a safety valve for

emergency circumstances is capable of

abuse, we think the suggested modification,

fixing responsibility for exceptions at a re-

sponsible level of the Department, is conso-

nant with the flexible standards of the Due

Process Clause.’ Plaintiffs may seek fur-

ther relief if experience indicates that

“emergency circumstances” are being found

in unexceptional cases.

Accordingly, the order appealed from is

modified by deletion of paragraph 1(f) and

by adding to paragraph 2 the following:

“In unusual or emergency situations, the

seven-day requirement may be extended

but only with the permission of the Com-

missioner of Correctional Services or his

designee.”

Affirmed as modified.

A-80

APPENDIX G

June 23, 1975 Order

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

ELIZABETH POWELL, et al.,

Plaintiffs,

eibadi: 74 Civ. 4628

BENJAMIN WARD, et al., ORDER

Defendants.

This action having come on for hearing before the Court on

November 27, December 3, 4, 13 and 16, 1974, Hon. Charles E.

Stewart, Jr. presiding, on Plaintiffs’ Motion for a preliminary

injunction, and the Court, on April 23, 1975, having rendered its

findings of fact and conclusions of law, IT IS ORDERED THAT:

1. Defendants shall conduct all Adjustment Committee or

Superintendent’s Proceedings, or other disciplinary proceedings

that may result in an inmate at Bedford Hiils Correctional Facility

being confined in a Special Housing Unit or Segregation Unit, in

accordance with the following procedures:

(a) Formal written notice of charges must be served on the

inmate at least 24 hours before the hearing;

(b) The inmate shall be permitted to call witnesses on her behalf

provided that so doing does not jeopardize institutional

safety or correctional goals. The written notice of | (a), shall

inform the inmate of her right to call witnesses;

(c) If permission to call a witness is denied, the party conducting

the hearing shall give the inmate a written statement stating

the reasons for the denial, including the specific threat to

institutional safety or correctional goals presented by the

witness.

(d) At the conclusion of the hearing, the inmate shall be given a

written statement of the evidence relied on and the reasons

for any action taken;

A-81

(e) No person who has participated in any investigation of the

acts complained of, or who was a witness to those acts

shall be a member of any Adjustment Committee or

Superintendent’s Proceeding relating to those acts;

(f) Neither the Deputy Superintendent for Security, no

This text is long and has been trimmed here. Open the source document for the complete record.