# Petition — Ward v. Powell > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2275%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 454 U.S. 832 ## Text ; 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2275%3A1. Public record. Not legal advice.