Appendix — Mancusi v. Al-Jundi
Supreme Court brief1991
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91-1
IN THE
Supreme Court of the United
Octoser TERM, 1991
VINCENT MANCUSI,
Petitioner,
VS.
AKIL AL-JUNDI, a/k/a Herbert Scott Deane; BIG BLACK, a/k/a Frank Smith;
ELIZABETH DURHAM, Mother and Legal Representative of Allen Durham,
deceased; LITHO LUNDY, Mother and Legal Representative of Charles Lundy,
deceased; THERESA HICKS, Widow and Legal Representative of Thomas Hicks,
deceased; ALICE McNEIL, Mother and Legal Representative of Lorenzo McNeil,
deceased; MARIA SANTOS, Mother and Legal Representative of Santiago Santos.
deceased; LAVERN BARKLEY, Mother and Legal Representative of L.D. Barkley,
deceased; JOMO JOKA OMOWALE, a/k/a Eric Thompson; VERNON
LAFRANQUE; ALFRED PLUMMER; HERBERT X. BLYDEN; JOSEPH LITTLE;
ROBIN PALMER; GEORGE “CHE” NIEVES; JAMES B. “RED” MURPHY;
THOMAS LOUK; PETER BUTLER; CHARLES “FLIP” CROWLEY; WILLIAM
MAYNARD, JR.; CALVIN HUDSON; KIMANTHI MPINGO, a/k/a Edward Dingle;
KENDU HAIKU, a/k/a Willie Stokes; OOJI KWESI SEKOU, a/k/a Chris Reed:
PHILLIP “WALD” SHIELDS; JEROME ROSENBERG; ALPHONSO ROSS;
FRANK LOTT; GARY RICHARD SUMPTER; OMAR SEKOU TOURE, a/k/a Otis
McGaughey; DACAJEWEIAH, a/k/a John Hill; and JOHNNIE BARNES, as Ad-
ministrator of the goods, chattels and credits which were of John Barnes, deceased,
on behalf of themselves and all others similarly situated,
Respondents.
PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT
APPENDIX
RicHarp E. Moor, Esq.
Counsel of Record
Attorney for Petitioner Vincent Mancusi
DAMON & MOREY
1000 Cathedral Place
298 Main Street
Buffalo, New York 14202
july 5, 1991 (716) 856-5500
TABLE OF CONTENTS
U.S. Court of Appeals for the Second Circuit
Decision dated 2/27/91 affirming in part and
reversing in part the District Court’s 6/26/90
Order denying Defendant Mancusi’s Motion
for Summary Judgment on grounds of
qualified immunity. Case remanded to
Sie Gime Se GI soe ov osc ee ce cewses:
Order of U.S. Court of Appeals for the
Second Circuit dated 4/18/91 denying
Defendant Mancusi’s Petition for Rehearing .
U.S. District Court Order dated 7/8/80 for
plaintiffs to show cause why czse should not
be dismissed for failure to prosecute ........
U.S. District Court Order dated 10/27/80
granting conditional dismissal and
decertification of class ....................
U.S. District Court Order dated 5/15/81
denying Defendant Mancusi’s Motion to
Dismiss for Failure to Prosecute............
U.S. District Court Order dated 4/2/87
denying Defendant Mancusi’s Motion to
Dismiss or to Decertify the Class...........
U.S. District Court Order dated 6/26/90
denying Defendants’ Motions for Summary
pS rey rr Mane ae eee
Notice of Motion dated 3/25/81 by Defendant
Mancusi to dismiss for failure of plaintiffs
to prosecute with supporting affidavit
ey CS te waa eae nw via vee 4 etn
Page
A-l
A-13
A-15
A-18
A-26
A-33
A-42
A-55
Page
I. Defendant Mancusi’s Motion for Summary
Judgment dated 1/13/86 to dismiss certain
causes of action and to decertify the class
with supporting affidavits (Mancusi &
Smyth) and memorandum on behalf of
Defendant Mancusi in support of motion toc
dismiss certain causes of action and other
ONE og ic vacances baee nee eee ees A-64
J. Additional affidavit of Theresa A. Smyth
dated 2/12/86 in support of Defendant
Mancusi’s motion to dismiss certain causes of
oobi anh Get GE Bi ei i vec cas eee A-96
K. Defendant Mancusi’s Motion for Summary
Judgment dated 3/20/90 with supporting
affidavits (Mancusi & Smyth) and
memorandum dismissing the Complaint
against him and in the alternative for a
ee | eer eee ee eee A-151
L. Post Argument Memorandum dated 5/31/90
in support of Defendant Mancusi’s Motion
for Summary Judgment and Affirmation of
Richard E. Moot, Esq. with exhibits in
further support thereof ................... A-188
M. Petition for Reargument and Suggestion for
Hearing En Banc dated 3/12/91 for
Defendant-Appellant Mancusi ............. A-262
N. Plaintiffs’ Pre-Trial Statement dated 4/30/91 . A-276
O. United States District Court, WDNY Docket
ene aro FPS st Se A-330
P. Victory and Rosenberg Affidavits filed May
BO, 2GGD ww oc cvcvuseep ates eee A-375
Q. Constitutional Provisions, Statutes and Rules
Pemeiees ....<cvscavitidiern ee A-380
A-]
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
+
Nos. 686, 687, 688—August Term 1990
Argued: January 10, 1991 Decided: February 27, 1991
Docket Nos. 90-2287, -2289, -2291
$<
AKIL AL-JUNDI, ET Alves
Plaintiffs-Appellees,
—
VINCENT MANCUSI, KARL PFEIL,
RUSSELL G. OSWALD,
Defendants-A ppellants,
THE ESTATE OF NELSON A. ROCKEFELLER, ET Felice
Defendants.
Before:
KAUFMAN, NEWMAN, and MCLAUGHLIN,
Circuit Judges.
—>—
Appeal by corrections officials from the June 26,
1990, order of the District Court for the Western Dis--
2193
A-2
trict of New York (John T. Elfvin, Judge) denying
motion for summary judgment on grounds of qualified
immunity in suit seeking damages for actions occurring
during and after the Attica prison riot.
Affirmed in part, reversed in part, and remanded.
Sa
JOHN H. STENGER, Buffalo, N.Y. (Kathy R.
Lamb, Jaeckle, Fleischmann & Mugel,
Buffalo, N.Y., on the brief), for
defendant-appellant Oswald.
RICHARD E. MOOT, Buffalo, N.Y. (Darryl
J. Colosi, Judith M. Bell, Moot &
Sprague, Buffalo, N.Y., on the brief),
for defendant-appellant Mancusi.
IRVING C. MAGHRAN, JrR., Buffalo, N.Y.
(Mahgran McCarthy & Flynn, Buffalo,
N.Y., on the brief), for defendant-
appellant Pfeil.
ELIZABETH M. FINK, Brooklyn, N.Y. (Den-
nis Cunningham, Brooklyn, N.Y.;
Michael E. Deutsch, Chicago, IIl., on
the brief), for plaintiffs-appellees.
ae
JON O. NEWMAN, Circuit Judge:
The issue on this appeal is whether three senior cor-
rections officials of the State of New York are entitled
to avoid trial, on grounds of qualified immunity, in a
suit brought by victims of the violence that occurred at
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the Attica Correctional Facility in 1971. See Inmates of
Attica Correctional Facility v. Rockefeller, 453 F.2d 12,
22-24 (2d Cir. 1971) (granting preliminary injunction
restraining state officials from engaging in torture, beat-
ings, and other physical abuse). The issue arises on an
appeal by Russell G. Oswald, former Corrections Com-
missioner, Vincent Mancusi, former Superintendent of
Attica, and Karl Pfeil, former Assistant Deputy Superin-
tendent of Attica, from the June 26, 1990, order of the
District Court for the Western District of New York
(John T. Elfvin, Judge) denying their motion seeking
summary judgment on grounds of qualified immunity.
We affirm in part, reverse in part, and remand for trial.
Background
The background facts underlying the tragic episode
with which the name ‘‘Attica’’ is likely to be forever
identified are by now familiar. We have set them forth
in our early decision upholding preliminary injunction,
Inmates of Attica Correctional Facility v. Rockefeller,
supra, and in our more recent decision affirming dis-
missal of the lawsuit against the estate of former Gover-
nor Rockefeller, A/-Jundi v. Estate of Rockefeller, 885
F.2d 1060 (2d Cir 1989). It suffices to recall that on
September 9, 1971, more than 1,200 inmates at Attica
rioted and seized control of portions of the prison, and
some of them seized corrections officers as hostages.
Some of the seized portions were retaken the same day,
but prisoners continued to occupy an area known as D-
Yard. On September 13, after negotiations failed,
Oswald received permission from the Governor to order
the State Police to retake the prison by force. The retak-
ing, Organized by the State Police, resulted in the deaths
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of ten hostages and twenty-nine prisoners. Afterwards,
several prisoners were the victims of brutal reprisals.
The amended complaint, filed in 1975, alleged denials
of constitutional rights arising from three phases of the
operation: the plan to retake the prison and the imple-
mentation of that plan, the brutality inflicted upon the
inmates thereafter as reprisals, and the prosecution of
inmates for crimes committed during the riot. By the
time the qualified immunity defense of the three appel-
lants was submitted for the ruling that is challenged on
this appeal, the first portion of the amended complaint
had been dismissed against Mancusi and Pfiel, and the
third portion had been dismissed against Pfiel. In the
immunity ruling, Judge Elfvin dismissed the third por-
tion against Oswald and Mancusi. Thus, what remains
for trial are the first portion (the planning) as against
Oswald and the second portion (the reprisals) as against
all three appellants.’ Whether qualified immunity was
established as a matter of law as to these aspects of the
amended complaint is the subject of this appeal.
Discussion
Qualified immunity is available on motion for sum-
mary judgment if it appears, from undisputed facts, that
an officer’s conduct did not violate constitutional rights
that were clearly established at the time of his actions,
or if it wa~ objectively reasonable for him to believe that
his actions did not violate such rights. See Anderson v.
1 In addition, the first and second portions of the amended complaint
are pending for trial as against the administrator of the estate of John
Monahan, formerly a State Police major who planned and led the
retaking of the prison. All other defendants have been dismissed for a
variety of reasons, many for lack of service.
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Creighton, 483 U.S. 635, 638-40 (1987); Harlow y.
Fitzgerald, 457 U.S. 800, 818-19 (1982); Robison vy. Via,
821 F.2d 913, 920-21 (2d Cir. 1987). Prisoners’ Eighth
Amendment right to be free from brutal treatment had
been recognized prior to the Attica riot, see Wright v.
McMann, 387 F.2d 519, 525-26 (2d Cir. 1967). The
Supreme Court has more recently cautioned that the
“‘deliberate indifference’’ standard applicable to pris-
oners’ medical claims does not apply to ‘‘making and
carrying out decisions involving the use of force to
restore order in the face of a prison disturbance.’’ Whit-
ley v. Albers. 475 U.S. 312, 320 (1986). In that context,
the test is ‘‘ ‘whether force was applied in a good faith
effort to maintain or restore discipline or maliciously
and sadistically for the very purpose of causing
harm.’ ’’ Jd. at 320-21 (quoting Johnson v. Glick, 481
F.2d 1028, 1033 (2d Cir.), cert. denied, 414 U.S. 1033
(1973)). This more exacting standard is imposed not to
foster brutality that results from deliberate indifference
but to lessen the risk of harm to both prisoners and
prison personnel that might result if those responsible
for restoring order in the context of prison riots became
hesitant to act promptly and effectively in apprehension
of liability too easily imposed.
Since the contours of the Eighth Amendment’s protec-
tion in the context of a prison riot were not authorita-
tively delineated until the Supreme Court’s 1986 decision
in Albers, it is arguable that qualified immunity insu-
lates appellants from liability for any consequences of
the decision to retake the prison and of the methods
used in the course of the retaking. But we do not under-
stand appellants’ argument to press so far, and we
would not find such an argument persuasive. Albers did
not recognize ‘‘a constitutional right that had not yet
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been declared,’’ see Procunier v. Navarette, 434 U.S.
555, 565 (1978). Rather, it narrowed the scope of a right
previously recognized. Thus, appellants cannot and do
not contend that they could not reasonably be expected
to know that there were constitutional limits on a prison
administrator’s response to a prison riot. However, they
can and do contend that the standard announced in
Albers governs this case, and they further assert that
they are entitled to immunity because it was objectively
reasonable for them to believe that their actions did not
violate the constitutional rights of the plaintiffs, as
refined in the Albers decision.
In assessing this claim, we cannot apply the height-
ened Albers standard indiscriminately to all aspects of
the conduct alleged to have been taken or condoned by
the appellants during the events at Attica. Albers
insisted that the ‘‘deliberate indifference’? standard
applicable to many Eighth Amendment claims of pris-
oners must give way in the prison riot context to the
‘‘wanton infliction of pain’’ standard when evaluating a
claim concerning the use of force in retaking a prison.
As the Court noted, from such considerations as ‘‘ ‘the
need for the application of force, the relationship
between the need and the amount of force that was
used, [and] the extent of injury inflicted,’. . . inferences
may be drawn as to whether the use of force could plau-
sibly have been thought necessary, or instead evinced
such wantonness with respect to ‘he unjustified infliction
of harm as is tantamount to a k..owing willingness that
it occur.’’ 475 U.S. at 321 (quoting District Court, 546
F. Supp. 726, 733 (D. Ore. 1982)). The use of force to
retake the prison is the essence of the first category of
the prisoners’ amended complaint, and there can be no
doubt that the Albers standard applies to all aspects of
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the decision to use force in accomplishing the task and
in the implementation of that decision. A/bers does not
mean that a prison riot affords prison administrators
limitless authority to employ any means, no matter how
brutal, to restore order. It does mean that the decision
to use force and the extent of force employed are to be
assessed, for purposes of asserted Eighth Amendment
violations, under the heightened standard of whether
injury and pain were wantonly inflicted ‘‘for the very
purpose of causing harm.’’ However, this heightened
standard, framed to assure prompt and effective action
to use necessary force to restore order, does not apply
to actions of prison officials unrelated to the decisions
about whether and how to use force for that purpose.
Thus, in this case, we will apply Albers faithfully to
those aspects of appellants’ conduct implicated in the
use of force to retake the Attica prison, but we will not
go beyond traditional Eighth Amendment standards in
assessing, for purposes of qualified immunity, those
aspects of their alleged conduct that are fairly separable
from decisions regarding the use of force.
Applying this approach, we turn to the first category
of the amended complaint, the allegations against
Oswald for his alleged role in the plan to retake the
prison. Oswald contends, in an argument focusing more
on liability than on the defense of immunity, that he
bears no responsibility for the adoption and impiemen-
tation of the retaking plan because the decision to order
a retaking was made by Governor Rockefeller and the
formulation and implementation of the specific plan for
the retaking was the responsibility of Major Monahan
of the State Police. If the liability aspects of the claim
against Oswald were before us on this limited appeal,
which concerns only the immunity defense, we would
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doubt that Oswald would be insulated from responsibil-
ity for lack of personal involvement. There appears to
be sufficient evidence to support findings that he was
the senior corrections official on the scene, that he was
aware of the retaking plan, and that he had discussed
with Monahan at least some of the specific details of the
plan.
However, with the exception of the planning for med-
ical care, the deficiencies in the recapture plan alleged
by the plaintiffs do not overcome the immunity defense,
assessed under the standards of Albers. For example,
Oswald is faulted because the plan did not include an
ultimatum to the prisoners prior ta the attack, because
he authorized an assault by a large force of armed men
even though the prisoners were first subjected to a bar-
rage of CS tear gas, and because he permitted correc-
tional officers to participate as ‘‘backup’’ to the state
police despite the extreme hostility the officers bore
toward the prisoners as a result of the takeover and the
threats to the hostages. Each of these aspects of the
plan, even if attributable to Oswald, might be found to
constitute negligence, and some might even be found to
show deliberate indifference to the likelihood that harm
would result. But, after A/bers that is not sufficient. To
establish liability, there must be evidence to show that
these aspects of the assault plan were included wantonly
for the purpose of inflicting pain, and to overcome the
immunity defense, there must be evidence permitting a
finding that it was not objectively reasonable for Oswald
to believe that the plan did not involve the wanton
inflicting of pain. The decision not to issue an ultima-
tum is precisely the sort of tactical matter on which
“neither judge nor jury [may] freely substitute their
judgment for that of officials who have made a consid-
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A-9
ered choice.’’ Albers, 475 U.S. at 322. The decision
required weighing the enhanced likelihood of surrender
against the enhanced likelihood of precipitating action
against the hostages and of enabling the prisoners to
improve their defense against the assault. Similarly,
whether to use 150 men, as Monahan determined to be
necessary, or to use fewer, as plaintiffs believe would
have been sufficient, is a choice carrying no inference as
to the wanton infliction of pain.
Closer to the line is the decision not to preclude the
use of corrections officers entirely from the assault, but
here again, tactical choices needed to be made; the use
of corrections officers, even as backup, posed a risk of
aggressive conduct, but the failure to use them posed a
risk of prolonging the battle between state police and
armed prisoners, with dire consequences for all con-
cerned. In terms of the immunity defense, we conclude
that no reasonable jury could find that Oswald did not
have objectively reasonable grounds for believing that
the decision to retake the prison and the plan for doing
so did not involve the wanton infliction of pain. The
defense of qualified immunity as to these portions of the
complaint must be upheld.
The alleged deficiency in planning for the medical
needs of the prisoners stands on a different footing.
Once it was decided to retake the prison by force, the
duty to make adequate provision for medical needs
arose to at least the same extent as it does with respect
to the normal operation of a prison. The Albers stan-
dard applies to the decision to use force and the means
selected for implementing that decision, but not to the
normal obligations of prison officials to meet the mini-
mal needs of those in their custody. Thus, Oswald can
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be found liable if evidence shows that he was deliber-
ately indifferent to the medical needs that could reason-
ably be expected to arise in the aftermath of the assault.
And Oswald can obtain immunity on a motion for sum-
mary judgment only if undisputed evidence shows that it
was objectively reasonable for him to believe that his
conduct, with respect to planning for medical needs, sat-
isfied at least the constitutional standards of Esteile v.
Gamble, 429 U.S. 97, 104 (1976) (deliberate indifference
to serious medical needs is cruel and unusual punish-
ment). See Martinez v. Mancusi, 443 F.2d 912 (2d Cir.
1970), cert. denied, 401 U.S. 983 (1971) (anticipating
standards of Estelle v. Gamble). We agree with Judge
Elfvin that the evidence of Oswald’s lack of attention to
planning for medical needs creates jury issues and pre-
cludes sustaining, as a matter of law, a qualified immu-
nity defense to this one aspect of the first portion of
plaintiffs’ allegations.
We turn next to the second portion of the amended
complaint, the allegations of condonation of brutal
reprisals against the prisoners after the prison was
retaken. There is no basis for applying the heightened
Albers standard to these allegations. The latitude
accorded prison officials in deciding when and how to
use force to retake a prison from rioting inmates has no
application to the summary infliction of brutal punish-
ment once the riot is quelled. As to such conduct, appel-
lants cannot establish an immunity defense on motion
for summary judgment if any evidence shows that it was
not objectively reasonable for them to believe that they
were adhering to the constitutional standards that apply
to prison officials in the administration of prison disci-
pline.
2202
SSS... _ ™m=_
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The prisoners make no claims that any of the appel-
lants personally participated in the reprisals or directly
ordered them to occur. With respect to Oswald, the
claim is that he received reports of brutality and must
have either observed brutality or deliberately avoided
seeing it when he toured the prison about one hour after
the assault ended, at a time when hundreds of inmates
were allegedly being beaten and brutalized. These allega-
tions find sufficient support in the evidence to withstand
a motion for summary judgment on the issue of quali-
fied immunity. With respect to Mancusi and Pfeil, one
prisoner has submitted an affidavit that he saw both
appellants observing brutal beatings being administered
to himself and other prisoners, and the affidavit of
another prisoner corroborates this account. Though
appellants urge that these affidavits, filed on the eve of
trial, are unworthy of belief, that argument is for the
jury. Indeed, there is considerable irony in the argument
of prison officials, who have in their custody scores of
prisoners convicted on the testimony of disreputable
criminals, that the testimony of criminals is incredible as
a matter of law when it accuses them of unconstitutional
conduct.
Appellants’ remaining contentions have nothing to do
with the defense of qualified immunity, which is the
subject of this interlocutory appeal, see Neu v. Cor-
coran, 869 F.2d 662, 664-65 (2d Cir.), cert. denied, 110
S. Ct. 66 (1989), and we decline to consider them. How-
ever, we do express our concern that this case should be
brought to trial at the earliest possible moment. At oral
argument counsel for the plaintiffs assured us that they
were ready for trial immediately following the disposi-
tion of this appeal. We urge the District Court to hold
2203
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them to that commitment and to tolerate no delays by
the defendants.
The order of the District Court is affirmed in part
and reversed in part, and the case is remanded for a
prompt trial. The mandate shall issue forthwith.
2204
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UNITED STATES COURT OF APPEALS
FOR THE
SECOND CIRCUIT
At a stated term if the United States Court of Appeals for
the Second Circuit, held at the United States Courthouse, in
the City of New York, on the eighteenth day of April, one thou-
sand nine hundred and ninety-one.
AKIL AL-JUNDI, aiso known as Herbert Scott
Deane; BIG BLACK, also known as Frank Smith;
ELIZABETH DURHAM, Mother and Legal
Representative of Allen Durham, deceased; LITHO
LUNDY, Mother and Legal Representative of Charles
Lundy, deceased; THERESA HICKS, Widow and
Legal Representative ot Thomas Hicks, deceased;
ALICE McNEIL, Mother and Legel Representative
of Lorenzo McNeil, deceased; MARIA SANTOS,
Mother and Legal Representative of Santiago San-
tos, deceased; LAVERNE BARKLEY, Mother and
Legal Representative of L.D. Barkley, deceased;
JOMO JOKA OMOWALE, also known as Eric
Thompson; VERNON LAFRANQUE; ALFRED
PLUMMER; HERBERT X. BLYDEN; JOSEPH LIT-
TLE; ROBIN PALMER; GEORGE “CHE” NIEVES;
JAMES B. “RED” MURPHY; THOMAS LOUK;
PETER BUTLER; CALVIN HUDSON; KIMANTHI
MPINGO, also known as Edward Dingle; KENDU
HAIKU, also known as Willie Stokes; OOJI KWESI
SEKOU, also known as Chris Reed; PHILLIP Docket No.
“WALD” SHIELDS; JEROME ROSENBERG; 90-2987 (L)
ALPHONSO ROSS; FRANK LOTT; GARY -9989
RICHARD SUMPTER; OMAR SEKOU TOURE, _ -999)
also known as Otis McGaughey; DACAJEWEIAH,
also known as John Hill; JOHNNIE BARNES, as Ad-
ministrator of the goods, chattels and credits which
were of John Barnes, deceased, on behalf of
themselves and all others similarly situated,
A-14
Plaintiffs-Appellees,
.
THE ESTATE OF NELSON A. ROCKEFELLER;
RUSSELL G. OSWALD; T. NORMAN HURD;
WALTER DUNBAR: WM. VAN EEKEREN; JOHN
C. MILLER; JOHN MONAHAN; JOHN C.
BAKER: A. C. O'HARA: VINCENT: KARL PFEIL;
ROBERT F. FISCHER; DALTON CARNEY:
WILLIAMS HENRY; J. C. MOOCHLER; A. T.
MALOVICH: ROBERT P. QUICK; W. L.
SHURTER: K. E. GELLERT: G. K. ELBERT; T.
N. KRUK: W. K. DILLON; M. K. HALLORAN:
K. S. CROUSE: R. J. DWYER: P. P. ZELINSKI;
G. R. TORAY: J. B. CONNELL; B. METHIG; D.
O. PARE; J. J. PATTERSON; J. W. McCARTHY;
D. O. ELLIS: E. M. BYRE; JOHN DOES, Nos.
1-100,
Defendants.
VINCENT MANCUSI, KARL PFEIL, RUSSELL
G. OSWALD,
Defendants-Appellants.
A petition for rehearing containing a suggestion that the ac-
tion be reheard in banc having been filed herein by Vincent
Mancusi
Upon consideration by the panel that decided the appeal, it is
Ordered that said petition for rehearing is DENIED.
It is further noted that the suggestion for rehearing in banc
has been transmitted to the judges of the court in regular active
service and to any other judge that heard the appeal and that
no such judge has requested that a vote be taken thereon.
/s/Elaine B. Goldsmith
ELAINE B. GOLDSMITH
Clerk
A-15
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
Akil Al-Jundi, etc., et al.
-VS- Civ-75-132
Nelson A. Rockefeller, etal.
SIR: Take notice that an ORDER was duly granted and
entered in the above entitled action, on the 9th day of July 1980.
Dated: Buffalo, New York
July 9, 1980
John K. Adams, Clerk
U.S. District Court
604 U.S. Courthouse
Buffalo, New York 14202
TO: Daniel L. Meyers, Esq.
Robert I. Cantor, Esq.
Robert Abrams, Esq.
Michael A. Gurda, Esq.
Bernard J. Malone, Jr., Esq.
Thomas M. Whalen, III, Esq.
Irving C. Maghran, Esq.
Damon, Morey, Sawyer & Moot
Jaeckle, Fleischmann & Mugel
A-16
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
AKIL AL-JUNDI, a/k/a Herbert Scott Deane;
BIG BLACK, a/k/a Frank Smith;
ELIZABETH DURHAM, Mother and Legal
Representative of Allen Durham, deceased;
LITHO LUNDY, Mother and Legal Represen-
tative of Charles Lundy, deceased; THERESA
HICKS, Widow and Legal Representative of
Thomas Hicks, deceased; ALICE McNEIL,
Mother and Legal Representative of Lorenzo
McNeil, deceased; MARIA SANTOS, Mother
and Legal Representative of Santiago Santos,
deceased; JOMO SEKOU OMOWALI, a/k/a
Eric Thompson; VERNON LaFRANQUE;
ALFRED PLUMMER; HERBERT X
BLYDEN; JOSEPH LITTLE; ROBIN
PALMER; GEORGE “CHE” NIEVES;
JAMES B. “RED” MURPHY; THOMAS
LOUK; PETER BUTLER; CHARLES
“FLIP” CROWLEY; WILLIAM A.
MAYNARD, JR.; CALVIN HUDSON;
KIMANTHI-MPINGO, a/k/a Edward Dingle;
and KEN-DU, a/k/a Willie Stokes, on behalf
of themselves and all others similarly situated,
Plaintiffs,
-VS-
NELSON A. ROCKEFELLER; RUSSELL A.
OSWALD; WALTER DUNBAR; JOHN C.
BAKER; A.C. O'HARA; JOHN MONAHAN;
JOHN C. MILLER; LEON VINCENT;
KARL PFEIL; ROBERT F. FISCHER; WIM
VAN EEKEREN; VINCENT MANCUSI;
JOHN DOES NOS. 1-100,
Defendants
CIV-75-132
ORDER TO
SHOW CAUSE
A-17
Upon the court’s own motion, counsel for plaintiffs is hereby
ORDERED to appear before me in Part II of this court at 9:00
a.m., August 4, 1980, to show cause, if there be any, why this
action should not be dismissed for failure to prosecute by reason
of plaintiffs’ failure to have filed interrogatories, requests to pro-
duce and/or notices of depositions no later than June 20, 1980,
such date being sixty days from my Order in open court April
21, 1980.
Dated: Buffalo, N. Y.
July 8, 1980
/s/John T. Elfvin
U.S.D.]J.
A-18
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
AKIL AL-JUNDI, a/k/a Herbert Scott Deane;
BIG BLACK, a/k/a’ Frank Smith;
ELIZABETH DURHAM, Mother and Legal
Representative of Allen Durham, deceased;
LITHO LUNDY, Mother and Legal Represen-
tative of Charles Lundy, deceased; THERESA
HICKS, Widow and Legal Representative of
Thomas Hicks, deceased; ALICE McNEIL,
Mother and Legal Representative of Lorenzo
McNeil, deceased; MARIA SANTOS, Mother
and Legal Representative of Santiago Santos,
deceased; JOMO SEKOU OMOWALIT, a/k/a
Eric Thompson; VERNON LaFRANQUE;
ALFRED PLUMMER; HERBERT X
BLYDEN; JOSEPH LITTLE; ROBIN
PALMER; GEORGE “CHE” NIEVES;
JAMES B. “RED” MURPHY; THOMAS
LOUK; PETER BUTLER; CHARLES
“FLIP” CROWLEY; WILLIAM A.
MAYNARD, JR.; CALVIN HUDSON;
KIMANTHI-MPINGO, a/k/a Edward Dingle; CIV-75-132
and KEN-DU, a/k/a Willie Stokes, on behalf MEMORANDUM
of themselves and all others similarly situated, and
ORDER
Plaintiffs,
-VS$-
NELSON A. ROCKEFELLER; RUSSELL A.
OSWALD; WALTER DUNBAR; JOHN C.
BAKER; A.C. O'HARA; JOHN MONAHAN;
JOHN C. MILLER; LEON VINCENT;
KARL PFEIL; ROBERT F. FISCHER; WIM
VAN EEKEREN; VINCENT MANCUSI;
JOHN DOES NOS. 1-100,
Defendants
A-19
Now before me in this protracted civil rights litigation are
three matters (two of which are very closely related): plaintiff's
motion under Fed.R.Civ.P. rule 25(a) to substitute the Estate
of Nelson A. Rockefeller (“the estate”) in the place and stead
of defendant Rockefeller, defendant Rockefeller’s related mo-
tion to dismiss and my Order directing plaintiffs to show cause
why this action should not be dismissed for failure to comply
with my order delivered in open court April 21, 1980 directing
plaintiffs to commence discovery within sixty days from such
date. I shall treat these issues in the above sequence.
Plaintiffs’ motion to substitute the estate for Rockefeller is op-
posed by all present defendants on grounds of untimeliness. Rule
25(a) requires that a motion to substitute be brought within
ninety days from the time a “statement of death” is made upon
the record. It is clear that plaintiffs’ motion to compel substitu-
tion was served on the executors of the estate, through a person
authorized by them to receive service, at least by March 18, 1980.
The statement of death at issue herein consists of an affidavit
sworn to November 7, 1979 by Assistant New York State Attorney
General Johr H. Stewart (then and until my order entered March
22, 1980, representing all defendants) and filed in this court
November 13, 1979. However, under Fed.R.Civ.P. rule 5 (incor-
porated by reference in rule 25(a)), a statement of death is not
served when sworn to or when filed with the court, but rather
when it is served upon opposing counsel. Defendants in their
arguments assume that such date was also November 7th;
however, Robert I. Cantor, Esq., plaintiffs’ attorney, swears that
the statement of death was received by Daniel J. Myers, Esq.
(another attorney for plaintiffs) on November 28, 1979 and that
the envelope containing such suggestion bore a postmark of
November 23, 1979. A xerographic copy of what Cantor states
to be the envelope in question is attached to Cantor’s affidavit;
the postmark on such letter contains an “I [love] New York” sym-
bol and thus would appear to have been affixed by the Attorney
General’s Office rather than by the United States Postal Ser-
vice. Stewart, in his reply affidavit, does not deny Cantor’s claim
that the statement of death was not served on plaintiffs by mail
until November 23rd. For purposes of this motion, then, I will
employ November 23, 1979 as the date of service. Ninety days
A-20
from November 23rd is February 21, 1980. Cantor claims that
he attempted to locate the executors of the estate beginning in
January 1980, that such endeavors were unsuccessful and that
an assistant in his firm thereupon contacted the law firm of
Milbank, Tweed, Hadley & McCloy (“Milbank”) in an attempt
to serve the executors. Cantor further claims that, after a delay
of several days, his assistant was advised by someone at Milbank
in early February that the Attorney General represented the
estate in connection with this suit. This assertion appears not
to have been contraverted by anyone connected with Milbank.
Cantor further claims that Stewart orally agreed February 15,
1980 to accept service on behaif of the executors. This last asser-
tion is flatly and vociferously denied by Stewart. It appears that
on or before February 15, 1980 Cantor was in possession of the
full names and addresses of the executors, had obtained leave
from me to serve them by means of a private process server and
could have effected timely service. The motion was, however,
mailed to Stewart, instead of being served on the executors
directly. Stewart claims that he never represented the estate, was
not authorized to accept service of process on its behalf and,
as noted above, did not agree to accept process. At least the first
two assertions appear to be true. The last is flatly controverted
by Cantor and clearly cannot be resolved by me on affidavit.
If I were to hold a hearing on this issue and conclude that Can-
tor’s version of the facts is correct, I might well conclude that
the consecutive statements, by Milbank that Stewart represented
the estate and by Stewart that he would accept process, would
estop the estate from denying timely service. However, I con-
clude that such an evidentiary investigation is not needed
because the statement of death served by mail November 23rd
did not meet the requirements of Fed.R.Civ.P. rule 25(a) and
therefore did not start running the ninety-day time period con-
tained therein.
Rule 25(a) states as follows:
“(1) If a party dies and the claim is not thereby ex-
tinguished, the court may order substitution of the
proper parties. The motion for substitution may be
a
A-21
made by any party or by the successors or represen-
tatives of the deceased party and, together with the
notice of hearing, shall be served on the parties as pro-
vided in Rule 5 and upon persons not parties in the
manner provided in Rule 4 for the service of a sum-
mons, and may be served in any judicial district.
Unless the motion for substitution is made not later
than 90 days after the death is suggested upon the
record by service of a statement of the fact of the death
as provided herein for the service of the motion, the
action shall be dismissed as to the deceased party.”
(Emphasis added.)
The rule carefully distinguishes between “parties” and “successors
or representatives of deceased parties,” and does not mention
“deceased parties” themselves. I therefore interpret rule 25 as
allowing a motion to substitute to be made either by the estate
of the deceased party (presumably acting through counsel for
the estate) or by any other party, but not by the deceased party
herself or himself (acting through counsel). See, Boggs v. Dravo
Corp., 532 F.2d 897, 900 (3rd Cir. 1976); Rende v. Kay, 415 F.2d
983, 985 (D.C. Cir. 1969). Rule 25 further requires that the state-
ment of death be served “as provided herein” for the service of
a motion. I interpret this expression as incorporating the same
limitations just referred to as to parties. Stewart in his state-
ment of death described himself as the attorney for the deceased
party (and not for other parties) and now declaims vigorously
that he was and is not counsel to the estate. Under the inter-
pretation just mentioned of rule 25, these assertions render the
statement of death filed by him a nullity.
There are at least two additional reasons why the estate should
be substituted. First, the statement of death did not list the
names of the executors of Rockefeller’s estate, although this in-
formation should have been readily available to Stewart. The
United States Court of Appeals for the District of Columbia Cir-
cuit has held that listing the successors or representatives of the
estate when such information was readily available to the per-
son making the statement was necessary to make the statement
SS. ™:™-™
-
A-36
this Court and by detailing what it believed to be the deficien-
cies of the proposed notice. Other defendants have not responded.
The plaintiffs’ failure to send the notice required under rule
23(c)(2) is found not to have prejudiced any defendant. In addi-
tion, notification at this stage in the litigaticn will not serve to
prejudice any rights of any member of the plaintiff class. Decer-
tification is not appropriate.
This Court agrees that the plaintiffs have not properly brought
forward the issue of the class notice. Suggestions and comments
of counsel would be helpful in determining an appropriate notice
and the appropriate means for its promulgation. The plaintiffs
shall have twenty days from the filing of this Memorandum and
Order in which to move for this Court’s approval of a proposed
class notice.
The plaintiffs and the Estate have both moved for an order
setting time limits for discovery. The plaintiffs, seeking to push
this action on to trial, propose that depositions be limited to fif-
teen per side, that a four-month period be provided for the par-
ties to make and settle requests for admissions and that an addi-
tional four months be provided to settle the contents of a final
pretrial order. November 13, 1985 affidavit of Elizabeth M. Fink,
Esq., 415. The Estate proposes that the scheduling order pro-
vide that all depositions of class members be completed within
one year and that all discovery be completed within eighteen
months after the date that notice is provided to the class members.
The knowledge of the individual plaintiffs in this action will
affect not only the determination of any damages, but also will
affect the decision whether the defendants, or particular defend-
ants, may be held liable for their actions or inactions. Further
discovery, including the possibility of numerous depositions, con-
cerning individual plaintiffs’ relevant knowledge and experience
may be appropriate. This Court, therefore, will not arbitrarily
limit the number of depositions each side may conduct. However,
some time limit for discovery which may have the concomitant
effect of limiting the number of depositions is entirely appropriate.
i nr a mi.
A-37
While the defendants’ asserted need to depose each of the ap-
proximately 1200 class members is excessive in light of the nature
of this litigation, a reasonable time should be provided for the
parties to determine from whom further discovery should be
sought and to obtain such. Any time limit, of course, must be
somewhat arbitrary. Given the nature of the Amended Com-
plaint, the number of parties in this action and the great amount
of time the parties have spent reviewing documents, this Court
directs that all discovery, including all depositions, shall be com-
pleted within seven months of the return date for the filing of
notices by individual plaintiffs opting out of the case and that
all motions to compel discovery shall be filed prior to termina-
tion of that seven-month period. The parties shall have ninety
days thereafter in which to serve requests for admissions. All mo-
tion to dismiss and/or for summary judgment shall be filed no
later than the end of this ninety-day period.
The Estate has moved to compel the plaintiffs to answer its
interrogatories and to respond to its requests for documents.
Although the answers have yet to be filed, it is this Court’s
understanding that the plaintiffs have answered. February 26,
1986 Reply Affidavit of Kelley A. Cornish, Esq. 411. As Cornish
indicates, if the defendants are not satisfied with the answers,
they must raise their objections in a separate motion to compel.
Mancusi has moved to dismiss the causes of action designated
“Reprisals” and “Bad Faith Prosecutions” or, in the alternative,
to decertify those causes of action.? The motion rests upon the
claim that collateral estoppel bars such causes as they apply to
Mancusi. He also claims that requiring him to defend against
the charges of reprisals constitutes a denial of due process.
Mancusi has cited a number of cases in support of his conten-
tion that the plaintiffs are collaterally estopped. The decision in
* The causes of action for “Bad Faith Prosecutions” have not been certified
as class actions. Memorandum and Order dated October 30, 1979 and filed
October 3lst, p. 45; Memorandum and Order dated June 24, 1985 and filed
June 25th, p. 13.
A-38
Inmates of Attica Correctional Facility v. Rockefeller, 453 F.2d
12 (2d Cir. 1971), reversed this Court’s dismissal of a complaint
and directed it to impose an injunction preliminarily enjoining
brutalizing conduct by state personnel at the facility. That deci-
sion did not resolve the issues there presented and cannot serve
as a basis or collateral estoppel in this case. Inmates of Attica
Correctional Facility v. Rockefeller, 477 F.2d 375 (2d Cir. 1973),
concerned the alleged failure of state and federal authorities to
investigate and prosecute persons who were claimed to have
mistreated the plaintiffs. The appellate court found that such
injunctive relief should not be granted. The issues resolved in that
case are not those raised here. Nieves v. Oswald, 498 F.2d 802
(2d Cir. 1974), addressed the issue of the procedural due process
required in interrogating inmates subsequent to the uprisings.
That case is not read as having resolved any issue now raised.
These cases, therefore, fail to provide rounds for applying the
doctrine of collateral estoppel.
In United States ex rel. Walker v. Mancusi, 467 F.2d 5] (2d
Cir. 1972), the named plaintiffs, representing a class of prisoners
who had been segregated from the general inmate population
in the Attica facility and incarcerated in a special housing unit
known as “A Block, 6 Company,” claimed that the segregation
had violated their Eighth Amendment and Fourteenth Amend-
ment rights. It was determined that the segregation had not con-
stituted cruel and unusual punishment and had not violated the
plaintiffs’ equal protection or due process rights. Jd. at 53. The
plaintiffs in this action claim that segregation and punitive
segregations violated their rights under those amendments.
Amended Complaint 4460(f), 61(d). To the extent that the plain-
tiffs’ claims arise out of detentions in the “A Block, 6 Company”
and that those claims duplicate those already adjudicated in
United States ex rel. Walker v. Mancusi, supra, the claims are
barred by collateral estoppel. However, this Court lacks suffi-
ciently detailed information upon which to determine whether
the segregation here complained of is the same as that in United
States ex rel. Walker v. Mancusi. If collateral estoppel in fact ap-
plies, only discrete portions of the instant plaintiffs’ Amended
Complaint will be barred. The collateral estoppel issues raised
——— << LULU
A-39
by no means will result in the dismissal of the entire causes of
action for reprisals.
Mancusi has not directed this Court's attention to any deter-
mination which would collaterally estop the plaintiffs from pur-
suing their cause of action based on his claimed bad faith pro-
secutions. This Court, in its October 30, 1979 Memorandum and
Order, narrowed the scope of the Amended Complaint’s allega-
tion of bad faith prosecutions but found that the plaintiffs had
stated a cause of action against Mancusi. Dismissal at this time
is not appropriate. In addition, Mancusi’s due process arguments
are also not found to provide a basis for dismissal of this action
as it applies to him.
Finally, Mancusi argues that the class certified for the causes
of action for reprisals should be decertified because paragraphs
61 through 64 of the Amended Gemplaint state that they apply
only to certain members of the class. This Court noted in its Oc-
tober 31, 1979 Memorandum and Order that “[i]f, at a later point
in the lawsuit, it becomes apparent that fewer than all the class
members were subject to reprisals, a subclass can be defined.”
Nothing has changed since that decision. No basis is found at
this time to certify a subclass and no basis is provided to justify
the requested decertification.
The Attorney General of the State of New York has moved for
a protective order permitting the State to withhold certain
documents from discovery. The issues raised were discussed in
this Court’s Memorandum and Order dated June 24, 1985. Since
the issuance of that decision the State has labelled and cataloged
the material which it claims is privileged and has detailed the
privileges it asserts apply to each document. The seventy-eight
items for which an attorney's work-product privilege had
originally been claimed have been destroyed, apparently
’ It should be noted that Paragraph 60 of the Amended Complaint, which
also relates to reprisals, does not indicate that the actions complained of therein
affected only certain plaintiffs.
A-40
inadvertently. The motion as to these items, if not entirely mooted,
is denied without prejudice to its reassertion upon the possible
reconstruction of those documents. As to items of grand jury
testimony and records and volumes II and FI of the Meyer Report
and McKay Commission records, this Court finds no reason to
change the determinations made in its June 1985 Memorandum
and Order. These items remain protected from discovery until
such time as a party satisfies the concerns addressed in that deci-
sion and complies with its requirements as to these items.
The issue has been raised that the State has waived any
privilege by having disclosed to the plaintiffs items now claimed
as privileged. See Third Declaration of Richard E. Moot, Esq.
in Support of Motion by Defendant Vincent R. Mancusi for an
Extension of Time in Which to Examine Attica Documents, 445,
6. A troublesome problem exists whether the person who may
have revealed certain privileged items to the plaintiffs had the
power under the State's law to waive any privilege absent an order
issued by a court of the State. However, that issue need not be
addressed here. Edward J. Perry, Jr., Esq., avers that, while it
is possible and even probable that the plaintiffs’ attorney glanced
at or examined some of the items now claimed to be privileged,
he remembers no specific document reviewed by the plaintiff's
attorney which the State now claims is privileged. It must be
remembered that the plaintiffs’ attorney apparently reviewed tens
of thousands of documents. Under these circumstances and unless
the items for which a privilege has been claimed had been in
some manner particularly marked or noted by the plaintiffs’ at-
torney, no practicable way exists to determine the documents
which were reviewed and as to which a privilege is now asserted.
This Court is not prepared to order opened all files for which
a privilege is claimed simply based upon the claim that the plain-
tiff may have glanced at or reviewed some unidentified items.
Accordingly, it is hereby ORDERED (a) that the Estate’s mo-
tion to decertify the class is denied (as always, without prejudice),
(b) that the motions for a scheduling order are granted as noted
above in the final three sentences of the seventh paragraph hereof,
(c) that the Estate's motion to compel the plaintiffs to answer
A-4]
its interrogatories is denied as moot (the plaintiffs, however, are
directed to file their answers with the Clerk of this Court), (d)
that the Estate’s motion for fees is denied, (e) that the plaintiffs’
motion for a protective order is denied, (f) that Mancusi’s mo-
tion to dismiss or to decertify the class is denied, (g) that New
York’s motion for a protective order is denied without prejudice
and (h) that the plaintiffs shall have twenty days from the filing
of this Memorandum and Order to move for this Court’s approval
of a proposed class notice.
It is further hereby ORDERED that, in the interest of ex-
pediting discovery, this action is referred to the Honorable Ed-
mund F. Maxwell, United States Magistrate for the Western
District of New York, who, as authorized by rules 16 and 35 of
the Local Rules of Practice of this Court, shall schedule and
oversee conferences with the attorneys for the parties for the pur-
poses set out in Fed.R.Civ.P. rule 16 and shall hear and deter-
mine all nondispositive pretrial motions as authorized by 28 U.S.C.
§636(b)(1)(A).
ALL PAPERS ARE STILL TO BE FILED IN THE CLERK’s
OFFICE.
Dated: Buffalo, N. Y.
April 2 , 1987
/s/John T. Elfvin
(
US.D.J.
A-42
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
AKIL AL JUNDI a/k/a Herbert Scott Deane,
et al, -
Plaintiffs
VS. CIVIL 75-132E
THE ESTATE OF NELSON A.
ROCKEFELLER, et al,
Defendants.
SIR/MADAM: Take NOTICE OF AN ORDER, a JUDG-
MENT of which the within is a copy, duly granted in the above
entitled action on the 26 day of June, 1990, and entered in the
Office of the Clerk of the United States District Court, Western
District of New York, on the 26 day of June, 1990.
DATED: Buffalo, New York
June 27, 1990
MICHAEL J. KAPLAN, Clerk
United States District Court
Western District of New York
Buffalo, New York 14202
ce: Donald P. Berens, Jr., Esq.
Irving Maghran, Jr., Esq.
Richard Moot, Esq.
Michael E. Deutsch, Esq.
Joshua Effron, Esq.
John Stenger, Esq.
Elizabeth Fink, Esq.
Michael McCarthy, Esq.
——e—-——“CS*t:“‘“‘“CSOs—S—S—
A-43
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
AKIL AL-JUNDI, a/k/a Herbert Scott Deane;
BIG BLACK, a/k/a Frank Smith; ELIZABETH
DURHAM, Mother and Legal Representative
of Allen Durham, deceased; LITHO LUNDY,
Mother and Legal Representative of Charles
Lundy, deceased; THERESA HICKS, Widow
and Legal Representative of Thomas Hicks,
deceased; ALICE McNEIL, Mother and Legal
Representative of Lorenzo McNeil, deceased;
MARIA SANTOS, Mother and Legal Represen-
tative of Santiago Santos, deceased; LAVERNE
BARKLEY, Mother and Legal Representative
of L.D. BARKLEY, deceased; JOMO JOKA
OMOWALE, a/k/a Eric Thompson; VERNON
LAFRANQUE; ALFRED PLUMMER;
HERBERT X BLYDEN; JOSEPH LITTLE; CIV-75-132E
ROBIN PALMER; GEORGE “CHE” NIEVES;
JAMES B. “RED” MURPHY; THOMAS
LOUK; PETER BUTLER; CHARLES “FLIP”
CROWLEY; WILLIAM MAYNARD, JR;
CALVIN HUDSON; KIMANTHI MPINGO,
a/k/a Edward Dingle; KENDU HAIKU, a/k/a
Willie Stokes; OOJI KWESI SEKOU, a/k/a
Chris Reed; PHILLIP “WALD” SHIELDS;
JEROME ROSENBERG; ALPHONSO ROSS;
FRANK LOTT; GARY RICHARD HAYNES;
RAYMOND SUMPTER; OMAR SEKOU
TOURE a/k/a Otis McGaughey; DACA-
JEWEIAH, a/k/a John Hill; and JOHNNIE
BARNES, as the Administrator of the goods,
chattels and credits which were of John Barnes,
deceased, on behalf of themselves and all others
similarly situated, MEMORANDUM
and
Plaintiffs, ORDER
ee Se
A-44
-VE-
THE ESTATE OF NELSON A. ROCKE-
FELLER; RUSSELL G. OSWALD; T. NOR-
MAN HURD; WALTER DUNBAR; WIM VAN
EEKEREN; JOHN C. MILLER; JOHN
MONAHAN; JOHN C. BAKER; A.C. O'HARA;
VINCENT MANCUSI; LEON VINCENT:
CARL PFEIL; ROBERT F. FISCHER:
DALTON CARNEY: HENRY WILLIAMS; J.C.
MOOCHLER; A.T. MALOVICH; ROBERT P.
QUICK; W.L. SHURTER; K.E. GELLERT:
G.K. ELBET; T.N. KRUK; W.K. DILLON:
M.K. HALLORAN; K.S. CROUSE; R.J.
DWYER; PP. ZELINSKI; G.R. TORAY: J.B.
CONNELL; B. MUTHIG; D.O. PARR; J.J.
PATTERSON; J.W. McCARTHY: D.O. ELLIS:
E.M. BYRE; and JOHN DOES NOS. 1-100,
Defendants:
This is a civil rights class action suit arising out of an inmate
uprising at the Attica (N.Y.) Correctional Facility (“Attica”) in
September 1971. Each of defendants Russell A. Oswald (the
former Commissioner of New York’s Department of Correctional
Services), Vincent Mancusi (the former Attica Superintendent)
and Karl Pfeil (Mancusi’s Assistant Deputy) has presently moved
for summary judgment.
The undisputed background facts of the uprising are re-
counted in a prior decision in this matter and need be only
' Plaintiffs Durham, Lundy, Hicks, McNeil, Santos and Barkley have been
dismissed for lack of standing. Memorandum and Order, dated October 30,
1979, at p.21. Plaintiff Barnes has recently been added by consolidation of
a related suit. See Barnes v. State of New York. CIV-73-442E (W.D.NY. January
8, 1990). He had sued certain defendants which are not parties to this action
— viz, The State of New York, Paul D. McGinnis and The State Corrections
Committee. The claims against these defendants are deemed to have beer:
abandoned. Concerning the status of the various captioned defendants herein,
see fn.6 hereinbelow.
A-45
briefly summarized for purpose of the present motions. See Al-
Jundi v. Estate of Rockefeller, C1V-75-132E {W.D.N.Y. September
24, 1988), affd. 885 F.2d 1060, 1062-1065 (2d Cir. 1989).* More
than 1200 Attica inmates rioted and occupied certain areas of
the prison September 9, 1971. These inmates, or certain of them,
also took as hostages numerous corrections officers. Several areas
of the prison were re-captured that same day by corrections of-
ficers assisted by State Police officers,’ and the inmate take-over
was consolidated to certain limited areas, including a prison
space known as “D-Yard.” Commissioner Oswald arrived on the
scene in the afternoon of September 9th and negotiations be-
tween him and the inmates were commenced and continued for
several days until the morning of September 13th. It was then
that Oswald delivered a final plea to the inmates to release their
hostages and restore order. This plea was rejected. Oswald then
obtained authorization from the now-deceased Governor Nelson
Rockefeller to order the State Police to retake the prison, with
force if necessary.
The now-deceased Major John Monahan of the State Police
devised the plan for re-capturing Attica. The plan proved suc-
cessful in the sense that the prison was re-captured and order
was restored, but in the process ten hostages and twenty-nine
inmates lost their lives. Afterward, brutal reprisals allegedly were
inflicted on the prisoners.
The Amended Complaint, filed September 11, 1975,*
denominates eleven separate causes of action. The divisions
* Both this Court's decision and the appellate decision affirming such contain
detailed background discussions.
* Eleven hostages were rescued, one of whom later died of inmate-inflicted
wounds.
* The Amended Complaint is labelled by the plaintiffs simply “COMPLAINT-
CLASS ACTION,” but was their second pleading herein, filed of right, and
has been construed and regarded by this Court as their Amended Complaint.
See Memorandum and Order, dated October 30, 1979, at p.2 fn.2 & p.4 fn.3.
<<
A-46
among these counts are not readily comprehensible, whether
by defendants, by causes of action or by sequence of events,’
and hence this Court, in its prior orders, has endeavored to
establish a more natural division of the claims therein. The
Amended Complaint has been broken down sequentially into
“three sections.”
“The first deals with the plan to retake and the
actual retaking of the prison, the second complains
of the alleged “reprisals” that occurred after the
retaking and the third is concerned with the criminal
prosecution of inmates for their participation and
involvement ii: the events preceding and leading to
the armed retaking.” Al-Jundi v. Estate of Rockefeller,
supra, at p.2.
Moreover, it has been understood throughout this lengthy litiga-
tion that each of the various constitutional claims (brought under
the due process and equal protection clauses of the Fourteenth
Amendment, the cruel and unusual punishment proscription
of the Eighth Amendment, and the due process clause of the
Fifth Amendment), as well as the claims asserting a conspiracy
to deprive the plaintiffs of their civil rights under 42 U.S.C.
§1985(3), relates to each sequential section. See Al-Jundi v. Estate
of Rockefeller) supra, at p.2.
Pertinently, for purposes of the instant motions, the allega-
tions of the first section of the Amended Complaint have already
been dismissed as against Mancusi and Pfeil. See Memorandum
and Order, dated October 30, 1979, at p.40. Pfeil has also been
dismissed with relation to the allegations of the third section.
* So far as can be ascertained, all counts relate to all defendants, although
certain counts identify certain defendants by name as being among others.
Several counts reference identical constitutional and/or statutory provisions,
and the first count, aside from its substantive claim or claims, makes jurisdic-
tional allegations, and identifies the parties and “facts” common to all counts.
Finally the lattermost counts are largely one-sentence reallegations-by-
reference of earlier paragraphs labelled with different asserted causes of action.
A-47
Id., at pp. 33-36, 40. Each of the three sections remains operative
as to Oswald.*®
In support of their motions for summary judgment, each of
Oswald, Mancusi and Pfeil has asserted that he enjoys qualified
immunity from suit.’ They also argue that the undisputed
material facts do not support the plaintiffs’ constitutional claims
against them.
* As for the other defendants, the estate of the late Governor Rockefeller had
been substituted in his stead upon his death in 1979, and the estate was even-
tually dismissed on the basis of qualified immunity and the Governor's lack
of personal involvement in the events. Al-Jundi v. Estate of Rockefeller, supra.
Dunbar was dismissed for the plaintiff's failure to substitute his estate following
his death in 1975. Memorandum and Order, dated October 30, 1979, at pp.
7-8. Van Eekeren, Miller, Vincent, Hurd, Carney, Williams, Moochler,
Malovich, Quick, Shurter, Gellert, Elbet, Kruk, Dillon, Halloran, Crouse,
Dwyer, Zelinski, Toray, Connell, Muthig, Parr, Pa’ ‘erson, McCarthy, Ellis and
Byre were all dismissed for lack of service upon them of the Amended Com-
plaint. Id., at pp. 7, 14. New York Deputy Attorney General Fischer was
dismissed on the basis of prosecutorial immunity. /d., at pp. 28-29 and Order,
dated April 23, 1980. Baker was dismissed without opposition. Order, dated
Octcver 20, 1980. O'Hara was dismissed for lack of allegations of personal
involvement. Memorandum and Order, dated October 30, 1979, at p.40. And
the defendants Doe were all dismissed for the plaintiff's failure to substitute
named defendants within a reasonable period of time. Id., at p.15. Aside from
the three movants, the only remaining defendant is the late John Monahan,
whose estate might or might not be substituted depending on this Court's reso-
lution of a pending motion. See Memorandum and Order, dated June 14, 1990.
’ As an off-shoot of their qualified immunity defenses, each also contends that
an action asserting a deprivation of constitutional rights brought under 42
U.S.C. §1983 cannot lie against them, inasmuch as state officials acting in their
official capacities are not “persons” who may be sued within the contempla-
tion of section 1983. See Will v. Michigan Dept. of State Police (“Will”), 490
US. 109 S.Ct. 2304 (1989). This contention, however, is nothing more
than a warmed-over version of an Eleventh Amendment sovereign immunity
defense under a slightly variant theory. And these defendants have already
been dismissed from this suit in their official capacities. Memorandum and
Order, dated October 30, 1979, at pp. 15-16. Nothing in Will or the Eleventh
Amendment precludes a section 1983 suit against state officials in their in-
dividual capacities, which is precisely the footing upon which this suit against
these defendants presently stands.
olen
——~__
A-48
Because qualified immunity provides immunity from suit and
not merely a shield to liability — Al- Jundi v. Rockefeller, supra,
869 F.2d at 664; see Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)
(“even such pretrial matters as discovery are to be avoided if possi-
ble”) —, this Court will first address this defense before consider-
ing the adequacy of the facts to support the plaintiffs’ claims.
The qualified immunity doctrine seeks to strike a balance bet-
ween protecting the rights of individuals, on the one hand, and
“the need to protect officials who are required to exercise their
discretion and the related public interest in encouraging the
vigorous exercise of official authority,” on the other. Butz v.
Economou, 488 U.S. 478, 506 (1978). Thus, “government officials
performing discretionary functions, generally are shielded from
liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982). “The contours of the right must be suffi-
ciently clear that a reasonable official would understand that
what he is doing violates the right. This is not to say that an offi-
cial action in question has previously been held unlawful, *** but
it is to say that in the light of pre-existing law the unlawfulness must
be apparent.” Anderson v. Creighton, 483 U.S. 635, 640 (1987).
The current state of the law is set forth in a 1986 decision,
Whitley v. Albers, 475 U.S. 312, wherein the Court enunciated
the “standard govern[ing] a prison inmate’s claim that prison
officials subjected him to cruel and unusual punishment by
shooting him during the course of their attempt to quell a prison
riot.” See id., at 314. It was first noted that “[n]ot every govern-
mental action affecting the interests or well-being of a prisoner
is subject to Eighth Amendment scrutiny ***.” Jd., at 319. “ ‘After
incarceration, only the “ ‘unnecessary and wanton infliction of
pain’” ... constitutes cruel and unusual punishment forbid-
den by the Eighth Amendment. ” Ibid. (quoting from Ingraham
v. Wright ,430 U.S. 651, 670 (1977)). In applying this standard
to a “prison security measure *** undertaken to resolve a disturb-
ance,” the Court determined that
“the question whether the measure taken inflicted un-
necessary and wanton pain and suffering ultimately
A-49
turns on ‘whether force was applied in a good faith
effort to maintain or restore discipline or maliciously
and sadistically for the very purpose of causing harm.’ ”
Id., at 320-321 (quoting from Johnson v. Glick, 481 F.2d
1028, 1033 (2d Cir.), cert. denied sub nom. Employee
Officer John v. Johnson, 414 U.S. 1033 (1973)).
Courts must determine on a summary judgment motion,
however, “whether the evidence goes beyond a mere dispute over
the reasonableness of a particular use of force or the existence
of arguably superior alternatives. Unless it appears that the
evidence, viewed in the light most favorable to the plaintiff, will
support a reliable inference of wantonness in the infliction of
pain ***, the case should not go to [trial].” See id., at 322 (dis-
cussing the approach on a motion for directed verdict); see also
Anderson v. Liberty Lobby, 317 U.S. 242 (1986) (equating the
standards for directed verdict and summary judgment motions.)
The factors to be considered in applying this approach include
(1) the need for the application of force, (2) the relationship
between such need and the amount of force employed and (3)
the extent of injury indicted thereby. Whitley v. Albers, supra
at 32]. “From such considerations inferences may be drawn as
to whether the use of force could plausibly have been thought
necessary, or instead evinced such wantonness with respect to
the unjustified infliction of harm as is tantamount to a know-
ing willingness that it occur.” [bid. But other factors, such as
the threat to the safety of prison staff and inmates and any ef-
forts to avoid or temper a forceful response, are “equally rele-
vant.” Ibid.
Although. Whitley v. Albers, supra, was not enunciated until
1986, its application of the cruel and unusual punishment clause
to prison officials’ efforts to quell an inmate uprising displays
nothing more esoteric than a common-sense approach to the
problem and, moreover, derives its inspiration from the ac-
cumulated wisdom of Eighth Amendment decisional law dating
well prior to September 1971. See Ingraham v. Wright, 430 U.S.
651, 670 (1977) (cited in Whitley v. Albers as authority for the
wantonness standard); Estelle v. Gamble, 429 U.S. 97, 103 (1976)
(relied upon in Ingraham v. Wright); Gregg v. Georgia, 428 U.S.
EEE
A-22
effective under rule 25, for otherwise an opposing party could
be put to an unfair burden of locating and serving the repre-
sentatives before the ninety-day period expired. Rende v. Kay,
supra, at 985; Advisory Committee Note to rule 25. Although
the executors of a prominent public figure like Rockefeller would
presumably be less difficult to locate than those of a less well
known private individual, it appears from Cantor’s affidavit that
a substantial amount of time herein was consumed, first, by at-
tempts to locate the executors themselves and then by efforts
to contact Milbank, none of which efforts would have been
necessary had the statement of death dated November 7, 1979
simply named the executors. For this reason I am persuaded to
adopt the reasoning of Rende. It has been repeatedly stated and
held that the reason rule 25(a) was amended to its current form
in 1963 was to avoid the harsh and unfair results that the former
inflexible version of rule 25 occasionally mandated. See, e.g.,
Advisory Committee Note to rule 25; Roscoe v. Roscoe, 379 F.2d
94, 99 (D.C. Cir. 1967). “[T]he 90-day period was not intended
to act as a bar to otherwise meritorious actions.” Staggers v. Otto
Gerdau Company, 359 F.2d 292, 296 (2d Cir. 1966). Adoption
of the Rende rule would, on the facts of this case, promote this
remedial flexibility. See, National Equipment Rental v.
Whitecraft Unlimited, 75 F.R.D. 507 (E.D.N.Y. 1977).
Additionally, if the statement filed by Stewart were held to
be effective, I would nonetheless hold that a sufficient showing
of excusable neglect had been made to qualify for an extension
of time under rule 6(b). Such a showing consists of a demonstra-
tion of good faith and “some reasonable basis fer noncompliance
with the time specified in the rules.” 4 Wright & Miller, Federal
Practice and Procedure: Civil §1165, at 622 (1969). In this cir-
cuit, especially in the rule 25 context, a successful showing is
more easily made when the opposing side has suffered no pre-
judice. See, e g., Yonofsky v. Wernick, 362 F.Supp. 1005, 1010-15
(S.D.N.Y. 1973). Inasmuch as Stewart mailed the motion to
substitute to the executors within a few days of its receipt and
Milbank (now formally named as the attorney for the estate)
had at least some knowledge of it at an even earlier time through
the contacts by Cantor’s office, no prejudice has been shown
or apparently could have resulted.
errr
A-23
As I have noted, Cantor by February 15th had the names and
addresses of the executors. He could easily have made timely
service upon them. Alternatively, he probably could have served
the Surrogate of Westchester County and also effected timely
service. Instead, he “served” the motion by mailing it to Stewart’s
office by reason, according to Cantor, of an oral agreement by
Stewart to accept service of process. Stewart, as noted above,
denies having ever so agreed. Accepting as true Stewart’s denial,
it appears that Cantor’s act was precisely the sort of unfortunate
blunder for which rule 6(b) was intended to make amends.
Plaintiffs could, on February 15th, have made timely service;
that they did not seems clearly due to excusuble neglect.
The estate further argues that plaintiffs’ motion must be
denied because service was not made upon all parties. At all
times in this litigation prior to March 22, 1980, the Attorney
General was counsel to all defendants. Mailing the moving
papers to Stewart was sufficient service of the motion under rule
5. The estate further invites me to exercise my discretion as shown
in the permissive language of rule 25(a)(1) to refuse to permit
the substitution even if technically timely. Although Rockefeller’s
demise was attended by considerable publicity and occurred
more than one year prior to the making of_the motion to
substitute his estate, in view of the quiescent status of this litiga-
tion prior to my Memorandum and Order of Octobe: 30, 1979
and the total absence of a showing of prejudice to administra-
tion or distribution of the estate on account of such delay (Cf.,
Anderson v. Yunkau, 329 U.S. 482 (1947)), I decline to exercise
such discretion.
For these reasons, plaintiffs’ motion to substitute the Estate
of Nelson A. Rockefeller in his place hereby is ORDERED
granted. Such disposition moots the motion by Rockefeller for
dismissal, which motion is accordingly hereby ORDERED
denied.
The final matter before me involves my Order to Show Cause
dated July 8, 1980, wherein counsel for plaintiffs was ordered
to show cause before me August 4, 1980 why this action should
A-24
not be dismissed fcr failure to commence discovery proceedings
as directed by my order in open court April 21, 1980. Counsel
for plaintiffs (who had earlier moved for leave to withdraw on
the grounds that he was unable adequately to represent plain-
tiff class herein) stated, and offered some proof, that he has
been engaged in attempting to locate new counsel for plaintiff
class. However, his only stated reason for his complete failure
to commence discovery as ordered by this court — that at least
some of the counsel with whom he was negotiating to assume
his responsibilities as counsel for plaintiffs were insisting that
they have charge of all future matters, including discovery —
completely fails to excuse his failure to obey the order of this
court or to apply for relief therefrom. This inexcusable failure,
combined with such previous lapses as the repeated failure to
effect service of the various pleadings in this action and the
admissions of counsel in connection with his motion to withdraw,
leads me inescapably to the conclusion that the named plain-
tiffs herein are not adequate representatives for the more than
1,200 persons they seek to represent: This requires that the class
action certification granted in my October 30, 1979 Memoran-
dum and Order be and it hereby is ORDERED revoked. Such
revocation is expressly without prejudice to the right of the named
plaintiffs to move again for class action certification at such time
as they may feel themselves to be adequate representatives; fur-
thermore, it is expressly ORDERED that such revocation does
not restart the running of the statute of limitations as to any
members of the plaintiff class not named as plaintiffs herein.’
' As an example (which would be far frorn determinative by itself), a motion
was returned before me October 20, 1980 seeking dismissal as to defendant
Baker. No one appeared in opposition or otherwise on behalf of plaintiff class
and the motion was granted.
* Because such revocation is without prejudice, such does no more than
return this action to its status prior to the actual granting of the motion
for class certification but after such motion had been made. In particular,
it is not intended that such revocation end the tolling of the statute of
limitations in effect as to all members of the class since the commencement
of this action.
A-25
For these same reasons, it is hereby ORDERED that this action
is dismissed for failure to prosecute and to obey my express orders
unless plaintiffs shall have appointed new counsel and such new
counsel shall have obtained my consent to his or their substitu-
tion in the place and stead of Robert I. Cantor, Esq., within
ninety days of the entry of this Memorandum and Order.
Dated: Buffalo, N. Y.
October 27, 1980
/s/John T. Elfvin
U.S.D.]J.
A-26
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
AKIL AL-JUNDI, a/k/a Herbert Scott Deane;
BIG BLACK, a/k/a Frank Smith;
ELIZABETH DURHAM, Mother and Legal
Representative of Allen Durham, deceased;
LITHO LUNDY, Mother and Legal Represen-
tative of Charles Lundy, deceased; THERESA
HICKS, Widow and Legal Representative of
Thomas Hicks, deceased; ALICE McNEIL,
Mother and Legal Representative of Lorenzo
McNeil, deceased; MARIA SANTOS, Mother
and Legal Representative of Santiago Santos,
deceased; JOMO SEKOU OMOWALI, a/k/a
Eric Thompson; VERNON LaF RANQUE;
ALFRED PLUMMER; HERBERT X
BLYDEN; JOSEPH LITTLE; ROBIN
PALMER; GEORGE “CHE” NIEVES;
JAMES B. “RED” MURPHY; THOMAS
LOUK: PETER BUTLER; CHARLES
“FLIP” CROWLEY; WILLIAM A.
MAYNARD, JR.; CALVIN HUDSON;
KIMANTHI-MPINGO, a/k/a Edward Dingle; CIV-75-132
and KEN-DU, a/k/a Willie Stokes, on behalf MEMORANDUM
of themselves and all others similarly situated, and
ORDER
Plaintiffs,
-VS-
NELSON A. ROCKEFELLER; RUSSELL A.
OSWALD; WALTER DUNBAR; JOHN C.
BAKER; A.C. O'HARA; JOHN MONAHAN;
JOHN C. MILLER; LEON VINCENT;
KARL PFEIL; ROBERT F. FISCHER; WIM
VAN EEKEREN; VINCENT MANCUSI;
JOHN DOES NOS. 1-100,
Defendants
A-27
Now before me in this protracted and convoluted civil rights
action arising from the September 1971 rebellion at the Attica
(N.Y.) Correctional Facility are several matters relating to my
Memorandum and Order entered October 27, 1980, amended
nunc pro tunc by my Order entered November 21, 1980, which
ordered the case dismissed unless plaintiffs commenced discovery,
in accordance with my order in open court April 21, 1980, within
120 days following October 27, 1980.
On the last day of such period, February 24, 1981, there were
filed with the Clerk of this District a large number of notices
to take depositions and requests to produce documents, pur-
portedly on behalf of the plaintiffs. Such notices and requests
(hereinafter simply called “notices”) were not hand-signed at
all and bore typewritten signatures as follows:
“ELIZABETH M. FINK, attorney for Akil Al-Jundi,
Oji Kwesi Sekou and Kimanthi M’Pingo.
“SUSAN CARPENTER, Attorney for plaintiffs.
“MARTIN R. STOLAR, Stolar Alterman &
Gulielmetti, P.C., Attorney for Alfred Plummer
“FRANK ‘BIG BLACK’ SMITH, pro se, c/o Polly
Eustis, Esq. [an associate of Elizabeth F ink, Esq. }
“JEROME ROSENBERG, pro se
“ELIZABETH A. GAYNES , ESQ., attorney for Jemo
Joka Omawale.”
The notices were accompanied by several documents, con-
sisting of (a) an affidavit by Daniel L. Meyers, Esq., consen-
ting to his being replaced by Fink and Carpenter, (b) an affidavit
by Akil Al-Jundi “advising” that Robert I. Cantor, Esq. was not
his attorney, “advising” that Elizabeth Fink is his attorney and
requesting her substitution for all purposes, (c) a hand-signed
letter from Martin R. Stolar, Esq. advising that he appears on
a
A-28
behalf of Alfred Plummer, and (d) a telegram from Elizabeth
Gaynes, Atty., “adopting” on behalf of her client, Jomo Joka
Omawale! “all motions filed by attorneys for plaintiffs” in this
action. None of these documents relating to the substitution,
except Stolar’s letter, was served on opposing counsel. On
February 27, 1981, I endorsed upon Meyers’s affidavit “Approved
and so ORDERED nunc pro tunc February 24, 1981.”
Shortly thereafter, defendants Rockefeller, Oswald, Mancusi,
Pfeil and Monahan moved individually to vacate my Order of
February 27, 1981, strike the notices filed and dismiss the ac-
tion for lack of prosecution.’ Oral argument was held on such
motions April 6, 1981. Such motions will be granted in part and
denied in part.
The grounds for the instant motions are tenable and
straightforward: that there has been no valid substitution of the
group of counsel signing the notices for those formerly of record
herein, that my order approving such substitution is therefore
erroneous, that these counsel are without authority to file these
notices, that accordingly these notices are null, void and of no
effect, and that, finally, there has been no compliance with my
October 27th Memorandum and Order as amended and that
this suit may and should therefore be dismissed for failure to
prosecute.
A discussion of this issue must begin with the fact that there
has from the commencement of this action been an unfortunate
degree of uncertainty as to the identity of plaintiffs’ counsel.
The original complaint herein bore the hand signature of Daniel
L. Meyers, and the typewritten “signatures” of Peter A. Joseph,
Jethro Eisenstein, and Richard M. Asche, all as “attorneys for
' Presumably the same individual named in the original complaint as Jomo
Sekou Omowali, and in the notices as Jemo Joka Omawaale.
* Defendant Pfeil also moved for a protective order objecting to the time and
place of the noticed depositions; at oral argument I denied this motion without
prejudice to its reassertion after the issue of substitution of counsel was resolved.
A-29
plaintiffs and members of the plaintiff class,” and the typewritten
signatures of Martin R. Stolar, Esq., as attorney for Alfred Plum-
mer, Herbert X. Blyden, plaintiff pro se, and Clark and Harley,
attorney [sic] for the Estate of Alonzo McNeil. The Amended
Complaint filed in this court bears the hand signatures of Daniel
L. Meyers, Esq., and of Richard M. Asche, Esq., and the typed
signatures of Dennis Cunningham, Esq. and Michael Deutsch,
Esq., all as “attorneys for plaintiffs,’ and the typed signatures
of Stolar, Blyden, and Clark and Harley. No objection was then
raised as to the adequacy of the original or amended complaints
under Fed.R.Civ.P. rule 11.
Severa! different attorneys have appeared in this suit at various
times in support of plaintiffs’ positions. A stipulation extending
defendants’ time to answer while this action was pending before
the Southern District of New York was signed for Daniel L.
Meyers by a Robert S. Markfield, Esq., whose relation to Meyers
is not known. An affidavit dated September 4, 1975 requesting
the appointment of a private process server was filed by a
Thomas J. Burke, Esq., described as an employee of the “Attica
Brothers Trial Office.” At oral argument on plaintiffs’ motions
for class certification and defendants’ motion to dismiss, plain-
tiffs were represented by Meyers and by one Abigail Pessen, Atty.
At a pretrial conference held before me in 1976, there appeared
Meyers, on behalf of all plaintiffs, and Elizabeth Gaynes, on
behalf of plaintiff Jomo Joko Omawale.’ More recently, Robert
I. Cantor, Esq., who, it appears, was then an associate of Meyers
but who did not so describe himself, filed November 30, 1979
a notice of appeal from my decision herein entered October 31,
1979. Cantor thereafter appeared several times as “one of the
attorneys” for plaintiffs. While it is perhaps regrettable that
tighter control has not been exercised over the representation
of plaintiffs and while I do not condone the failure of plain-
tiffs’ new purported counsel to follow the accepted practices and
* This is the spelling as transcribed by the court reporter. It appears to be yet
another variation of the names noted at note | supra. Gaynes did not subscribe
either complaint on behalf of this client.
A-30
the requirements of Local Rule 4, such failures are not par-
ticularly new herein, and have not previously been objected to.
I am also obliged to consider that plaintiffs, most of whom re-
main prisoners, have a severely limited choice of private counsel
and significant difficulties in communicating with such counsel.
Additionally, during oral argument on the instant motion,
Elizabeth Fink promised to obtain and file consents to her
substitution in place of Daniel Meyers as counsel from all the
named plaintiffs before the end of April 1981. Such promise was
complied with in part, as will be discussed infra.
It is clear that plaintiffs’ new counsel did not comply and,
in fact, seemed to make no serious effort to comply with the
requisites for substitution of counsel before filing the notices.
Substitution of counsel is a matter of fundamental importance;
it must therefore be decided by the client. A lawyer may not
properly delegate a matter, even to an associate in his office,
without at least the implied consent of the client. Express con-
sent is required for the substitution of counsel outside his firm.
No such consent was obtained prior to filing the notices herein.
Additionally, under Local Rule 4, notice to the opposing counsel,
who may be substantially interested because of delays or other
factors, and an order of the court are required before a counsel
may withdraw, as Meyers sought to do here. In a case where
the clients had ordinary access, financial and physical, to
counsel, such failures would be wholly inexcusable. I would
dismiss the action for failure to comply with my October 27,
1980 Order, except for Blyden, who has been and remains pro
se, and Plummer, represented from the filing of the original com-
plaint herein by Martin Stolar, Esq. But, by reason of the
aforementioned special circumstances, as to those plaintiffs from
whom Fink has secured actual! consent or who have expressed
their desire to proceed pro se, I decline at the present time to
dismiss this suit; as to the others, however, unless Fink (or
Gaynes, in the case of Omowali) demonstrates promptly that
such plaintiffs consent to her acting for them and, not coinciden-
tally, that they have an interest in this suit (at least sufficient
to induce them to fill out a simple consent form) and properly
A-31
serve such upon defendants, this action must be dismissed. Ac-
cordingly, it is hereby
ORDERED that as to Al-Jundi, Smith, Plummer, Blyden,
Little, Palmer, Nieves, Crowley, Hudson, M’Pingo, Stokes, Sekou
and Rosenberg,’ defendants’ motions are denied; that permis-
sion is hereby given for plaintiffs Smith and Rosenberg to pro-
ceed pro se; that Fink is hereby substituted for Meyers as counsel
for plaintiffs Al-Jundi, Little, Palmer, Nieves, Crowley, Hudson,
M’Pingo, Stokes and Sekou.
However, it is further ORDERED that the claims of Mur-
phy, Louk, Butler, Maynard, Omowali, Lafranque, Shields, Ross,
Lott, Haynes, Sumpter, Toure and Dacajeweiah are dismissed
for failure to prosecute except for the claims of each of these
persons fcr whom there shall have been filed with the Clerk and
served upon opposing counsel within thirty days of the entry
of this Memorandum and Order a written form in which he
personally consents to the substitution as his counsel herein of
Fink (or Gaynes, in the case of Omowali) for Meyers.
Dated: Buffalo, N. Y.
May 15, 1981
/s/John T. Elfvin
U.S.D.]J.
* Plaintiffs Sekou, Shields, Rosenberg, Ross, Lott, Haynes, Sumpter, Toure and
Dacajeweiah were added by the amended complaint herein and therefore do
not appear in the caption.
A-32
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
Akil Al-Jundi, et al.
-VS- Civ-75-132E
Nelson A. Rockefeller, et al.
SIR: Take notice that an ORDER was duly granted and
entered in the above entitled action, on the 15th day of May 198]
————E7~~
A-33
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
AKIL AL-JUNDI, a/k/a Herbert Soctt Deane,
et al.,
Plaintiff,
VS CIV 75-132-E
THE ESTATE OF NELSON A.
ROCKEFELLER; RUSSELL A. OSWALD;
WALTER DUNDAR,; et al.,
Defendants.
SIR/MADAM: Take notice of an ORDER, of which the with.i
is a copy, duly granted in the within entitled action on the 2nd
day of April, 1987, and entered in the Office of the Clerk of
the United States District Court, Western District of New York
on the 3rd day of April, 1987
Dated: Buffalo, New York
April 3, 1987
EDWARD P. GUETH, JR., Clerk
United States District Court
Western District of New York
U.S. Court House
Buffalo, New York 14202
ce: Elizabeth M. Fink, Esq. Michael A. Gurda, Esq.
Susan E. Carpenter, Esq. Joshua J. Effron, Esq.
Dennis Cunningham, Esq. Richard Moot, Esq.
James I. Meyerson, Esq. Irving C. Maghran, Jr., Esq.
Joseph J. Heath, Esq. George C. Mantzoros, Esq.
Martin Stolar, Esq. John H. Stenger, Esq.
Elizabeth A. Gaynes, Esq. Donald P. Berens, Jr., Esq.
Herbert X. Blyden
Jerome Rosenberg
William E. Jackson, Esq
A-34
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
AKIL AL-JUNDI, a/k/a Herbert Scott Deane;
BIG BLACK, a/k/a Frank Smith; ELIZABETH
DURHAM, Mother and Legal Representative
of Allen Durham, deceased; LITHO LUNDY,
Mother and Legal Representative of Charles
Lundy, deceased; THERESA HICKS, Widow
and Legal Representative of Thomas Hicks,
deceased; ALICE McNEIL, Mother and Legal
Representative of Lorenzo McNeil, deceased;
MARIO SANTOS, Mother and Legal
Representative of Santiago Santos, deceased;
JOMO SEKOU OMOWALI, a/k/a Eric
Thompson; VERNON LaFRANQUE;
ALFRED PLUMMER; HERBERT X
BLYDEN; JOSEPH LITTLE; ROBIN
PALMER; GEORGE “CHE” NIEVES; JAMES
B. “RED” MURPHY; THOMAS LOUK; CIV-75-132E
PETER BUTLER; CHARLES “FLIP”
CROWLEY; WILLIAM A. MAYNARD, JR.;
CALVIN HUDSON; KIMANTHI-MPINGO,
a/k/a Edward Dingle; and KEN-DU, a/k/a
Willie Stokes, on behalf of themselves and all
others similarly situated,
Plaintiffs,
MEMORANDUM
-VS-
and
THE ESTATE OF NELSON A. ROCKE- ORDER
FELLER; RUSSELL A. OSWALD; WALTER
DUNBAR; JOHN C. BAKER; A.C. O'HARA;
JOHN MONAHAN; JOHN C. MILLER;
LEON VINCENT; KARL PFEIL; ROBERT
F. FISCHER; WIM VAN EEKEREN; VIN-
CENT MANCUSI; JOHN DOES NOS. 1-100,
Defendants
EE
A-35
A number of motions are presently pending in this civil rights
action springing from the September 1971 quelling of an upris-
ing at the Attica (N.Y.) Correctional Facility. The Estate of Nelson
Rockefeller (“the Estate”) has moved to decertify the plairitiff class,
to compel the plaintiffs to respond to its discovery requests and
for a scheduling order. Defendant Mancusi has moved for a par-
tial dismissal of the Amended Complaint or, alternatively, for
decertification of the plaintiff class as to those causes of action
against him designated “Reprisals” and “Bad Faith Prosecutions.”
The plaintiffs seek a protective order in connection with the
Estate’s discovery requests and also seek a scheduling order. The
Attorney General of the State of New York has moved for a pro-
tective order.
In a Memorandum and Order filed October 31, 1979 this Court
granted the plaintiffs’ motion for class action certification as to
the first eight causes of action alleged in the Amended Complaint!
The class, approved under Fed.R.Civ.P. rule 23(b)(3), consists of
all persons who were on September 13, 1971 inmates of the facility
and who then were present in “D-yard.” A subsequent finding
that the plaintiffs’ then counsel had failed to represent the plain-
tiffs adequately resulted in the October 27, 1980 revocation of
the certification. This Court June 24, 1985 granted the plain-
tiff's motion for recertification of the class, as initially certified.
The Estate has moved to decertify the class again because the
plaintiffs have failed to take steps to identify the individual class
members and to direct to the class members the notice required
under Fed.R.Civ.P. rule 23(c)(2). The plaintiffs have responded
by indicating that it is for a court to decide the proper cir-
cumstances for the giving of such notice and to issue an order
specifying the form and scope of the notice. Subsequent to the
hearing of the Estate's motion to decertify, the plaintiffs submitted
a proposed class notice. The Estate replied by indicating that the
issue of the proposed notice had not been properly brought before
' The plaintiffs denominated their amended pleading as their complaint. The
Amended Complaint was filed September 11, 1975 and it will be referred to
herein as the Amended Complaint.
A-50
153, 173 (1976) (relied upon in Estelle v. Gamble); Furman v.
Georgia, 409 U.S. 238, 392-393 (1972) (Burger C.J., dissenting)
(cited in Gregg v. Georgia); Louisiana ex rel. Francis v. Resweber,
329 U.S. 459, 463-464 (1947) (“abundantly clear” to Chief Justice
Burger therefrom “that the Court was disapproving the wan-
ton infliction of physical pain”); see also Wilkerson v. Utah, 99
U.S. 130, 135-136 (1878) (the “apparent seed,” in Burger’s evalua-
tion, of the Eighth Amendment ban against “unnecessary cruel-
ty’); cf., Rochin v. California, 342 U.S. 165, 172-173 (1952) (law
enforcement conduct that shocks the conscience” is violative of
due process). The defendants here, while not having had the
benefit of the instruction of Whitley v. Albers at the time of
the riot, should intuitively have been aware of the rule to be
gleaned therefrom. The law was not express in 1971, but it cer-
tainly was “apparent” within the meaning of qualified immunity
jurisprudence. See Anderson v. Creighton supra, at 640.
The plaintiffs urge that Oswald’s recommended approval of
the Monahan pian to recapture Attica was a wanton act under-
taken with callous disregard for its potential infliction of harm
upon the rioting inmates and their hostages. Specifically, they
allege that such plan failed to account for the “emotionally and
racially charged atmosphere prevailing among the members of
the assault force,” failed to provide an adequate command struc-
ture to ensure the application of force would not become ex-
cessive or vindictive, failed to warn the inmates of the imminence
of the assault or provide them with a means to surrender in the
face thereof and, finally, failed to make allowance for adequate
. medical care for persons injured during the assault. Amended
Complaint, 438. Monahan’s plan for re-taking D-Yard, accord-
ing to his account, was to involve two groups of seventy-five State
Police officers converging upon D-Yard armed with .38 caliber
handguns and shotguns loaded with “double-O” buckshot.
Accompanying them was to be an indeterminately-numbered
National Guard tear gas unit. Additionally, there were to be
six sharpshooters on the C-Block roof armed with .270 caliber
rifles to provide cover fire if needed. Prior to the assault, a Na-
tional Guard helicopter was to drop tear gas in D-Yard, while
behind the initial forces a twenty-five man State Police squad
accompanied by two corrections officers was to enter D-Yard
A-51
for purpose of identifying and rescuing hostages. These men were
armed comparably with the assault force. See Testimony of
Monahan before the New York State Special Commission on At-
tica (“McKay Commission”), April 25, 1972, at p.1604 (endors-
ing the description given by another witness, at pp.1580-1591,
as “very accurate”). Oswald’s understanding of the plan to re-
take the prison was derived from discussions with Monahan as
well as with Colonel John C. Miller and General A.C. O’Hara
of the State Police. See Testimony of Russell G. Oswald before
the Wyoming County (N.Y.) Grand Jury, September 18, 1972,
at p.56. He understood that two groups of approximately thirty
State Police officers would converge on D-Yard, that there were
to be sharpshooters on rooftops with highpowered rifles to pro-
vide cover fire if needed, that prior to the assault there was to
be a precision-dropping of tear gas by the National Guard by
helicopter into D-Yard, and that approximately twenty State
Police officers along with two corrections officers were to follow
the assault force for purpose of identifying the hostages. Ibid.
It appears, also, that Oswald gave some attention to providing
for medical care, such not being part of Monahan’s plan. He
remembers discussing it with Mancusi and O’Hara, but ultimate-
ly medical care was “left for the National Guard to work out.”
See Oswald testimony before the McKay Commission, supra,
April 28, 1972, at p.2723.
Neither Monahan’s nor Oswald's recollection of the plan
alludes to any warnings or ultimatums to be given the inmates
respecting the imminency of a forceful retaking of the prison.
Likewise neither makes any reference to a prospective chain of
command once the State Police were loosed upon the facility.
But, perhaps most tellingly, Oswald acknowledges that little at-
tention was given by him to the special medical needs which
might arise from such an operation and that, upon approving
the assault plan, he did not have any understanding of the
specific steps, if any, which had been or would be taken to pro-
vide medical care. Oswald’s understanding of the plan was
likewise vague concerning the size of the assault force which
was to descend on D-Yard. Monahan, according to his testimony,
devised a pair of 75-man units (150 men in all); Oswald
anticipated only sixty men. If Monahan is to be beiieved
A-52
concerning the specifications of his own plan, either Oswald
has misrecollected events, was woefully misinformed about this
aspect of the plan or was recklessly indifferent to its specifics.
This is a question of fact which cannot be resolved on Oswald's
instant motion. If Oswald was, in fact, recklessly uncertain of
the plan’s parameters at the time he approved it or if he recklessly
failed to consider issues impacting directly on the reasonableness
of the plan, and if its going awry was a reasonably foreseeable
result, then Oswald would properly share in the legal respon-
sibility for the ensuing carnage. His recklessness, in this setting,
would have been “ ‘so dangerous that [his] knowledge of the risk
can be inferred’ ” Whitley v. Albers. supra, at 321 (quoting from
Duckworth v. Franzen, 780 F.2d 645, 652 (7th Cir. 1985)).
As for the second section of the Amended Complaint, regard-
ing the plaintiff's’ claims that they were subjected to torturous
reprisals following the recapture of Attica, which barbarities
the movants allegedly witnessed but took no action within their
authority to halt — see Amended Complaint, 44 60-61 —,
Oswald asserts his lack of personal involvement and has been
joined in this argument by Mancusi and Pfeil. ~
It is undisputed that a great many, if not the vast majority
or all, of the Attica inmates were tortured by corrections of-
ficers after the prison was retaken and, further, it cannot
reasonably be contended that such cor.duct was permissable
under constitutional norms which were clearly-established even
in 1971. A “gauntlet” was erected in one of the prison
passageways whereby officials were positioned with clubs and
prisoners were made to run the length of the passageway, receiv-
ing blows and racial epithets along the way. See Inmates of At-
tica Correctional Facility v. Rockefeller, 453 F.2d 12, 16 (2d Cir.
1971). In other separate instances of abuse, continuing from
September 13th until at least September 16th, “[i]njured
prisoners, some on stretchers, were struck, prodded or beaten
with sticks, belts, bats or other weapons.” Jd., at 18-19. Some
inmates were “burned with matches, and others poked in the
genitals or arms with sticks.” Jd., at 19. The United States Court
of Appeals for the Second Circuit, in considering the question
of preliminary injunctive relief against reprisals back in
Nreetrenenenmemeemmenaeameaianieall
A-53
December 1971, characterized the corrections officers’ conduct
as “an orgy of brutality.” [bid. (accepting as true for its pur-
poses the testimony with respect to physical abuse of prisoners).
What is disputed respecting the instant movants is their par-
ticipation in such conduct.
Oswald has given conflicting accounts whether he had been
aware of the brutality and hence whether he could have
reasonably been expected to employ his authority as the Com-
missioner of the State Department of Corrections to put a halt
to it. Under oath in April 1972, Oswald stated that he had been
informed about the gauntlet while still physically present at At-
tica, but inasmuch as such exercise was “practically” completed
by such time and inasmuch as he believed “it was much like
a fraternity hazing,” he did nothing to stop it. See Oswald
testimony before the Mcaay Commission, supra, April 28, 1972,
at pp. 2720-2721. Eighteen years Oswald attested that he
“neither participated in, ordered nor knowingly permitted” any
of the alleged brutalities. Affidavit of Russell G. Oswald (sworn
to April 5, 1990), 420. the inconsistency in these accounts is itself
sufficient to establish a genuine issue of fact for trial as to
Oswald’s personal involvement in the reprisals. A supervising
official’s failure to remedy a constitutional infringement upon
learning of it personally involves the official in the wrong.
Williams v. Smith. 781 F.2d 319, 323 (2d Cir. 1986).
Mancusi also denies having participated in or having had per-
sonal knowledge of the reprisals. Affidavit of Vincent R. Man-
cusi (sworn to February 9, 1990), 44 9-10. The plaintiffs, however,
have pointed to evidence placing Mancusi in the Attica “com-
mand center” at relevant times, which should have made him
privy to reports of activities occurring in various areas of the
prison. See McKay Report, supra, at p.432 & fn.4. Two of the
plaintiffs have supplied affidavits, as well, attesting to having
seen the Attica Superintendent personally witness his underlings
commit brutalities. See Affidavit of Jerome Rosenberg (sworn to
May 3, 1990), 44 7-8; Affidavit of Albert Bictory (sworn to May
3, 1990), 44 3, 5. As with Oswald, triable issues of fact remain
respecting Mancusi’s involvement in the reprisals.
)
!
A-54
Assistant Deputy Superintendent Pfeil denies having observed
the torture of inmates as well, claiming not to have been in the
locations where such activities are said to have occurred. Affidavit
of Karl Pfeil (sworn to March 11, 1990), { 3. Earlier inquiries
into events, however, contradict this assertion — see McKay
Report, supra, at p.447 (placing Pfeil in A-Yard September 13,
1971, the place and date of alleged brutalities) — and, again,
two of the plaintiffs attest to having seen him witness reprisals.
See Rosenberg affidavit, supra, {4 7-8; Bictory affidavit, supra,
44 3, 5. Judgment respecting Pfeil’s liability for these reprisals
must also await trial.
Finally as to the third section of the Amended Complaint, con-
cerning the prosecutions brought against certain of the rioting
inmates, both Mancusi and Oswald plausibly deny having had
anything to do with such legal maneuvers (Pfeil, as noted, has
already been dismissed respecting the third section of the Amend-
ed Complaint) - see Oswald affidavit, supra, 421; Mancusi af-
fidavit, supra, 41l, — and the plaintiffs have been mute in
response. The third section suffers from a complete failure of proof
and as such will be dismissed as to Oswald and Mancusi. See
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Accordingly, it is hereby ORDERED that the third section of
the Amended Complaint is dismissed as to Oswald and Mancusi
but that these defendants’ motions for summary judgment, along
with that of defendant Pfeil, are otherwise denied.*
DATED: Buffalo, N.Y.
June 26, 1990
/s/John T. Elfvin
U.S.D.].
* These defendants have alternatively requested a determination in limine respec-
ting whether they had acted in their official or individual capacities in their
alleged actions. Such requests are frivolous and rest upon a miscomprehension
of immunity law. See footnote 7 hereinabove. They are likewise denied.
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
AKIL AL-JUNDI, et al
Plaintiffs
- VS CIVIL NO
75-132E
THE ESTATE OF NELSON A
ROCKEFELLER. et al
Defendants
NOTICE OF MOTION AND
SUPPORTING AFFIDAVIT
The defendant, VINCENT MANCUSI. pursuant to the
Federal Rules of Civil Procedure, hereby moves for orders grant-
ing the following relief:
l. Striking the purported substitution of plaintiffs’
counsel;
rt
Vacating this Court's order of February 24. 198].
which approved substitution of certain counsel:
3. Striking the Notices of Deposition and Requests
for Admission served by plaintiffs; and
4. Dismissing this action for failure of plaintiffs to
prosecute pursuant to this Court’s order dated Oc-
tober 27, 1980, as amended November 20. 1980
The grounds in support of this motion are:
A-56
Plaintiffs have utterly failed to properly substitute
new counsel and, consequently, the requests for
admissions served upon defendant, VINCENT
MANCUSI, as well as the notice of deposition, are
improper and so fail to comply with this Court's
order of October 27, 1980, as amended November
20, 1980, which directed that discovery be com-
menced as of February 24, 1981;
Since plaintiffs have failed to properly commence
discovery within the time required, this action
should be dismissed for failure to prosecute in ac-
cordance with this Court’s prior orders.
PLEASE TAKE NOTICE that the undersigned will bring the
above motion on for a hearing in Part II of this Court before
the Honorable John T. Elfvin, United States Court House, Buf-
falo, New York, on April 6, 1981, at 9:00 o'clock in the forenoon
of that day or as soon thereafter as counsel can be heard.
PLEASE TAKE FURTHER NOTICE that defendant, VIN-
CENT MANCUSI, requests oral argument on his motion.
DATED: Buffalo, New York
March 25, 198]
Yours, etc.,
DAMON, MOREY, SAWYER & MOOT
BY: /s/Brian P. Fitzgerald, Esq.
Brian P. Fitzgerald, Esq.
Attorneys for Defendant,
VINCENT MANCUSI
1600 Main Place Tower
Buffalo, New York 14202
(716) 856-5500
TO:
A-57
ELIZABETH M. FINK
Attorney for AKIL AL-JUNDI, OJI KWESI SEKOU
and KIMANTHI M’PINGO
351 Broadway
New York, New York 10013
SUSAN CARPENTER
Attorney for Plaintiffs
SUNY at Buffalo, Law School
John Lord O'Brian Hall
Amherst Campus
Buffalo, New York
MARTIN R. STOLAR,
STOLAR, ALTERMAN & GULIELMETTI, PC.
Attorneys for ALFRED PLUMMER
350 Broadway (Suite 1207)
New York, New York 10013
FRANK “BIG BLACK” SMITH
Pro Se
c/o Polly Eustis, Esq.
351 Broadway
New York, New York 10013
JEROME ROSENBERG
Pro Se
Ossining Correctional Facility
354 Hunter Street
Ossining, New York
ELIZABETH A. GAYNES, ESQ.
Attorney for JEMO JOKA OMAWALE
351 Broadway
New York, New York 10013
WILLIAM E. JACKSON, ESQ.
MILBANK, TWEED, HADLEY & McCLOY
Attorneys for ESTATE OF ROCKEFELLER
One Chase Manhattan Plaza
New York, New York 10005
A-58
JAECKLE, FLEISCHMANN & MUGEL
Attorneys for Defendant, OSWALD
700 Liberty Bank Building
Buffalo, New York 14202
MICHAEL A. GURDA, ESQ.
GURDA, GURDA & TATZ
Attorneys for Defendant, MONAHAN
41 Dolson Avenue, P.O. Box #578
Middletown, New York 10940
BERNARD J. MALONE, JR., ESQ.
HINMAN, STRAUB, PIGORS & MANNING
Attorneys for Defendant, O'HARA
90 State Street
Albany, New York 12207
IRVING C. MAGHRAN, JR., ESQ.
Maghran, McCarthy & Flynn
Attorneys for Defendant, PFEIL
1016 Ellicott Square Building
Buffalo, New York 14203
THOMAS M. WHALEN, III, ESQ.
COOPER, ERVING & SAVAGE
Attorneys for Defendant, BAKER
35 State Street
Albany, New York 12207
A-59
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ODO DO PDD DSS DSSS GHGS SSSSSSSSSSSSS66EESSS000CE6OCCCCCCs
AKIL AL-JUNDI, et al
Plaintiffs
- VS - CIVIL NO.
75-132
THE ESTATE OF NELSON A.
ROCKEFELLER, et al
Defendants
AFFIDAVIT IN SUPPORT OF MOTION
STATE OF NEW YORK
COUNTY OF ERIE ) SS
CITY OF BUFFALO )
BRIAN P. FITZGERALD, ESQ., being duly sworn, deposes
and says:
1. I am an attorney at law duly admitted to practice law in
the State of New York and am associated with the lawfirm of
DAMON, MOREY, SAWYER & MOOT, attorneys for the de-
fendant, VINCENT MANCUSI. herein. This affidavit is sub-
mitted in support of defendant, VINCENT MANCUSI’s mo-
tion for the following relief:
(a) striking the purported substitution of plaintiffs’
counsel;
(b) vacating this Court’s order of February 24, 198],
apparently approving the substitution of counsel:
A-60
(c) striking the notices of deposition and requests for
admissions served by plaintiffs; and,
(d) dismissing this action for failure to prosecute.
2. On August 4, 1980, only attorney ROBERT I. CANTOR,
appeared as attorney of record in this case for the plaintiffs in
response to this Court’s own order to show cause why this ac-
tion should not be dismissed. Since that time, no application
of any kind has been made by Mr. Robert I. Cantor to withdraw
as counsel in this case or to have counsel substituted for plaintiffs.
3. Despite this fact, various counsel now appear in this case
for various named plaintiffs, but in only one instance do we have
an affidavit of a named plaintiff that he has consented to the
substitution of ELIZABETH FINK as his counsel. (See affidavit
of AKIL Al-JUNDI, consenting to appointment of ELIZABETH
FINK as his counsel annexed hereto as Exhibit “A”.) All other
attorneys have appeared in this action only by reference of their
names on the notices of deposition and requests for admission
filed with this Court on February 24, 1981.
4. The notices of deposition and requests for admissions in-
dicate that ELIZABETH M. FINK is now the attorney for AKIL
AL-JUNDI, KIMANTHI-M’PINGO and OJI KWESI SEKOU.
However, there has been no affidavit or other papers filed by
either M’PINGO or SEKOU authorizing this substitution. The
named plaintiffs, BIG BLACK and JEROME ROSENBERG,
now appear as pro se, but there has been no affidavit or other
paper filed by either individual which would authorize this fact.
ELIZABETH GAYNES now appears as attorney for JEMO
JOKA OMOWALE, but there is no authorization filed by
OMOWALE. ALFRED PLUMMER appears to be represented
by MARTIN STOLAR, but no reason is offered as to why MAR-
TIN STOLAR, who appeared as representing ALFRED PLUM-
MER on the amended complaint, has not appeared before this
Court with respect to its Order to Show Cause or any other mo-
tions on prior occasions. Finally, SUSAN CARPENTER appears
as attorney for “Plaintiffs”, but there is absolutely no record or
paper on file which would indicate who she represents.
A-61
5. Of the twenty seven named plaintiffs in this action
therefore, only one, AL-JUNDI, has actually indicated his
authorization to have an attorney represent him. Even in this
instance, however, neither plaintiff, AL-JUNDI, or his attorney,
ROBERT I. CANTOR, has properly substituted counsel.
6. Clearly, the discovery papers filed on February 24, 1981,
should be stricken because no proper appearance has been made
on behalf of any plaintiff.
7. There has been absolutely no showing made by plaintiffs
or ROBERT I. CANTOR that notice of his withdrawal was
served on any counsel of record or on his attorney as required
by Local Rule 4(B).
WHEREFORE, defendant, VINCENT MANCUSI., respect-
fully requests that this Court issue an order striking the pur-
ported substitution of ELIZABETH FINK as counsel in this case,
striking the notices of deposition and requests for admissions
previously served, and dismissing this action for failure to
prosecute.
/s/Brian P. Fitzgerald
Brian P. Fitzgerald
Subscribed and sworn to before
me this 25th day of March, 1981.
/s/Miriam F. Nostro
MIRIAM F. NOSTRO
Notary Public, State of New York
Se
A-62
CERTIFICAIE AND AFFIDAVIT
OF SERVICE AND FILING
I, BRIAN P. FITZGERALD, ESQ., hereby certify and affirm
that the annexed notice of motion and supporting attorney's af-
fidavit on behalf of defendant, VINCENT MANCUSI, were filed
with the Court and served upon all counsel at their respective
addresses as shown above, on this 25th day of March, 1981.
/s/Brian P. Fitzgerald
Brian P. Fitzgerald
A-63
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
RS EE aoe Oe Se x
AKIL AL-JUNDI, et al.,
Plaintiffs, |
-against- | 75 Civ. 132
ESTATE OF NELSON A.
ROCKEFELLER, et al.,
Defendants :
sseshesasaiehaehcesaamtiiaaniiaidieimaaiiaimadididaitiaeiaen ends ie x
AFFIDAVIT SUBSTITUTION OF COUNSEL
STATE OF NEW YORK )
$S.:
COUNTY OF NEW YORK
AKIL AL-JUNDI, being duly sworn, deposes and says:
1. 1 am the lead named plaintiff in the above captioned mat-
ter and make this affidavit to advise this Court that Robert I.
Cantor is not my attorney.
2. I would like to further advise this Court that Elizabeth
M. Fink is my attorney and I request that she be so substituted
for all purposes.
Further affiant sayeth not.
/sAkil Al-Jundi
AKIL AL-JUNDI
Sworn to before me this
23rd day of February, 1981
/s/Polly Eustis
POLLY EUSTIS
NOTARY PUBLIC, STATE OF NEW YORK
No. 4616154, Qualified in New York County
Term Expires March 36, 1983
Exhibit A
A-64
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
AKIL AL-JUNDI, a/k/a Herbert Scott Deane, Civ. No. 75-132E
et al.,
Plaintiffs,
-VS-
THE ESTATE OF NELSON A.
ROCKEFELLER, et al.,
Defendants.
MOTION OF DEFENDANT, VINCENT R. MANCUSI, TO
DISMISS CERTAIN CAUSES OF ACTION AND OTHER
RELIEF
Defendant, VINCENT R. MANCUSI, pursuant to Rules 12
and 23 FRCP moves for an Order:
1. Dismissing as to Defendant Mancusi those causes of action
designated, “Reprisals” and “Bad Faith Prosecutions”.
2. In the alternative, decertifying those causes of action
designated, “Reprisals” and “Bad Faith Prosecutions”.
3. Denying all claim of privilege by the Attorney Genera! of
the State of New York with respect to Attica documents which
have previously been made available to or examined by Plain-
tiffs’ counsel.
The grounds for the motion are:
A-65
1. Members of the Plaintiff class are collaterally estopped and
barred from asserting the allegations with respect to “Reprisals”
in the Fifth through Eighth causes of action against Defendant
Mancusi. The allegations of reprisals were or should have- been
raised in the Walker v. Mancusi and Inmates of Attica Correc-
tional Facility v. Rockefeller I (1971) and II (1973).
2. Requiring Defendant Mancusi to defend against the same
and additional charges of reprisals now, fourteen years after the
event, constitutes a denial of due process.
3. The “Bad Faith Prosecutions” causes of action Ninth
through Eleventh were dismissed against Defendant Robert F
Fischer, the Special Prosecutor in charge of the prosecutions.
No further basis remains in the allegations of the Amended Com-
plaint to continue these causes of action against the Defendant
Vincent R. Mancusi who was a witness, not a member of the
prosecutorial staff in such proceedings. The bad faith prosecu-
tions are also barred by the second Inmates of Attica v.
Rockefeller II (1973) litigation.
4. The present class certification cannot apply to the
“Reprisals” causes of action. The amended complaint, on its face,
states in Paragraphs 6] and 64 that the reprisals causes of ac-
tion are only against “certain members” of the class.
5. The Attorney General has waived any privilege with respect
to Attica documents which were made available for examina-
tion by Plaintiffs’ counsel. Documents which Plaintiff's counsel
has examined and segregated, defense counsel may examine and
copy.
DATED: Buffalo, New York
January 13, 1986
Yours, etc.,
MOOT & SPRAGUE
A-66
By /s/ Richard E. Moot
RICHARD E. MOOT, ESQ.
Attorneys for the Defendant,
VINCENT R. MANCUSI
2300 Main Place Tower
Buffalo, NY 14202
Telephone: (716) 845-5200
TO: All Counsel Per Attached List
A-67
DISTRIBUTION LIST
Elizabeth M. Fink, Esq. Michael A. Gurda, Esq.
294 Atlantic Avenue Gurda, Gurda & Katz
Brooklyn, New York 11201 41 Dolson Avenue
P.O. Box 578
Susan E. Carpenter, Esq. Middletown, New York 10490
SUNY at Buffalo
School of Law John R. Stewart, Esq.
O'Brian Hall One Rodger Drive
Buffalo, New York 14260 Latham, New York 12110
Dennis Cunningham, Esq. Irving C. Maghran, Esq.
Michael E. Deutsch, Esq. Maghran, McCarthy & Flynn
Peoples’ Law Office 1127 Liberty Building
343 Suuth Dearborn Buffalo, New York 14202
Chicago, Illinois 60604
John H. Stenger, Esq.
James R. Meyerson, Esq. Jaeckle, Fleischmann & Muge!l
351 Broadway 700 Norstar Building
New York, New York 10013 Twelve Fountain Plaza
Buffalo, New York 14202
Joseph J. Heath, Esq.
472 South Salina Donald P. Berens, Jr., Esq.
Syracuse, New York 13202 Assistant Attorney General
439 Justice Building
~ Martin Stolar, Esq. Empire State Plaza
Stolar, Alterman & Gulielmetti Albany, New York 12224
350 Broadway, Suite 1207
New York, New York 10013 Edward Perry, Esq.
Assistant Attorney General
Herbert X. Blyden 439 Justice Building
59 Hedley Place Empire State Plaza
Buffalo, New York 14208 Albany, New York 12224
Kelley A. Cornish, Esq.
Milbank, Tweed, Hadley & McCloy
One Chase Manhattan Plaza
New York, New York 10005
OO
A-68
CERTIFICATE OF SERVICE AND FILING
I, RICHARD E. MOOT, ESQ., counsel for the Defendant,
Vincent R. Mancusi, certify that the Notice of Motion of Defen-
dant, Vincent R. Mancusi, to Dismiss Certain Causes of Action
and Other Relief with Supporting Affidavits of Vincent R. Man-
cusi and Theresa A. Smyth and the Supporting Memorandum
of Law were served upon all counsel of record and thereafter
filed with the Clerk of the United States District Court for the
Western District of New York.
DATED: Buffalo, New York
January 13, 1986
/s/ Richard E. Moot
RICHARD E. MOOT, ESQ.
A-69
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
AKIL AL-JUNDI, a/k/a Herbert Scott Deane, Civ. No. 75-132E
et al..
Plaintiffs,
THE ESTATE OF NELSON A.
ROCKEFELLER, et al.,
Defendants.
AFFIDAVIT OF VINCENT R. MANCUSI IN SUPPORT
OF MOTION TO DISMISS CERTAIN CAUSES OF AC-
TION AND FOR OTHER RELIEF
STATE OF FLORIDA
COUNTY OF LEE SS:
I—-VINCENT R. MANCUSI, make this affidavit in support
of the motion to dismiss certain causes of action and other relief
and further state:
1. I was Warden at the Attica Correctional Facility from
September of 1965 through March of 1972. During and follow-
ing the uprising at the Attica Correctional Facility, I was inter-
viewed, gave written statements, testified before various com-
missions and before various courts. This included being inter-
viewed by television, by magazine, and by newspaper reporters
as well as giving written statements to the Attorney General's
Office, to the State Police, and to the Jones Committee of the
New York State Assembly.
A-70
2. In addition, I was deposed in the property destruction cases
and testified before this Court in the Inmates case, before the
McKay Commission, before the Pepper Committee in the House
of Representatives, before the Jones Committee and before the
Grand Jury in Warsaw.
3. In repeated cases, I was named as defendant and accused
of reprisals, including the segregated confinement of prisoners,
following the retaking of the Attica Correctional Facility. To
the best of my knowledge, no judgment has ever been rendered
against me with regard to reprisals. I have been furnished a copy
of the affidavit by Theresa Smyth which I believe fairly describes
these prior suits against me.
4. Moreover, I am advised that on December 31, 1976, Gover-
nor Carey issued an executive order terminating all further pro-
ceedings against state officials and employees for any criminal
wrongdoing.
5. Extensive investigations, two grand jury inquiries and
repeated trials have failed to establish that I, at any time, was
responsible for the allegations of reprisals which are again al-
leged in this action.
6. Prior to the Attica uprising, I placed certain inmates in
segregated confinement following an uprising in which the par-
ticipation of that individual inmate was unclear. Specifically,
in November of 1970, a state emergency was declared at the
Auburn Correctional Facility and all inmates were keylocked.
During this same month, four inmates, by the names of Carter,
Tanner, Thompson and Johnson, were transferred to the Attica
Correctional! Facility and immediately placed in segregation
because their precise roles in the Auburn disturbance were
unclear. This segregation of inmates was questioned, upheld by
the District Court and subsequently affirmed by the U.S. Court
of Appeals. Carter v. McGinnis, 320 F. Supp. 1092 (W.D.N_Y.
1970), affd, 460 F.2d 1406 (2nd Cir. 1972).
A-71
7. Following the Attica uprising, Attica inmates were inten-
tionally segregated and placed in confinement based on their
particular participatigqn in the Attica uprising. Once again, the
segregated confinement of inmates following an uprising was
questioned, upheld by the District Court and subsequently af-
firmed by the United States Court of Appeals. United States ex
rel. Walker v. Mancusi, 338 F. Supp. 311 (W.D.N.Y. 1971), aff,
467 F.2d 51 (2nd Cir. 1972) and Inmates of Attica Correctional
Facility v. Rockefeller, 453 F.2d 12 (2nd Cir. 1971).
8. With limited means, I have not had the assistance of per-
sonal counsel with respect to the alleged accusations made
against me except for various deputy attorney generals and
Messrs. Stenger and Moot who, at different times, have been
assigned by te State of New York to represent me. Since my
retirement in 1972, I have had to live modestly also because of
limited means and am unable to satisfy even a single plaintiff's
claim for relief in the amount of $1,000,000.00 for compensatory
damages alone.
9. Moreover, I am now 7] years of age and have been retired
for over thirteen years. Any written documents, which were
prepared in connection with my position as Warden of Attica,
I left at the prison when I retired since I considered it the prop-
erty of the State of New York. I have kept no personal records
or documents of the events at Attica during or following the
uprising. Now, almost fourteen years afterwards, the details of
these events have become quite elusive to me. Although I do
recall some things with particularity, I can no longer recall the
details of this time except in general terms.
10. The passage of time, which is over fourteen years, and
the unavailability of documents and witnesses has now made
it impossible for me to again fully and fairly prove my defense
to these charges. I believe that I will be denied the due process
of law if required to attempt a defense to those charges again
at this late date.
DATED: January 13, 1986
—————— eee
A-72
/s/ Vincent R. Mancusi
VINCENT R. MANCUSI
Subscribed and sworn to before
me this 13th day of January, 1986
/s/ Linda G. Morgan
NOTARY PUBLIC
NOTARY PUBLIC STATE OF FLORIDA
MY COMMISSION EXP. JULY 9, 1989
BONDED THRU GENERAL INS. UND.
A-73
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
AKIL-AL JUNDI, a/k/a Herbert Scott Deane, Civ. No. 75-132E
et al.,
Plaintiffs,
-VS-
THE ESTATE OF NELSON A.
ROCKEFELLER, et al.,
Defendants.
AFFIDAVIT IN SUPPORT OF MOTION TO DISMISS
CERTAIN CAUSES OF ACTION AS AGAINST VINCENT
R. MANCUSI AND FOR OTHER RELIEF
STATE OF NEW YORK )
COUNTY OF ERIE ) Ss:
I, Theresa A. Smyth, make this affidavit in support of the
Motion to Dismiss Certain Causes of Action as Against Vincent
R. Mancusi and for other relief and further state:
1. I am legal assistant to Richard E. Moot, Esq., counsel for
defendant Vincent R. Mancusi in this action.
2. Under the direction and supervision of Richard E. Moot,
I did library and Lexis computer-assisted research to identify
all actions arising out of the 1971 Attica uprising and the names
of all plaintiffs having brought such actions. Thereafter, I limited
this search to those actions naming Vincent R. Mancusi as a
defendant.
A-74
3. With regard to the actions naming Mr. Mancusi as a de-
fendant, the search identified, in addition to the instant Al-Jundi
action, Inmates of Attica Correctional Facility v. Rockefeller
I, 453 F.2d 12 (2nd Cir. 1971), Inmates of Attica Correctional
Facility v. Rockefeller II, 477 F.2d 375 (2nd Cir. 1973), United
States ex rel. Walker v. Mancusi, 467 F.2d 51 (2nd Cir. 1972)
and Nieves v. Oswald, 498 F.2d 802 (2nd Cir. 1974). Of these
actions, both Al-Jundi is and Walker was a class action. The
class in Walker was certified as including all inmates of the At-
tica Correctiona! Facility. The present class in Al-Jundi is cer-
tified as including all inmates present in D Yard at the time of
the uprising.
4. In Al-Jundi, pursuant to this Court’s Order of 7/21/81, there
are sixteen named plaintiffs and, pursuant to this Court’s Order
of 10/30/79, five named defendants (See Exhibit A). Eight of
these same sixteen plaintiffs have, in other actions, including
the above-referenced ones, named Mr. Mancusi as a defendant
and sought relief in various courts, including the United States
District Court for the Western and Southern Districts and the
United States Court of Appeals for the Second Circuit. The relief
requested included judgment against Mr. Mancusi by reason of
alleged wrongdoing and reprisals with respect to the Attica
uprising.
5. For example, Herbert X. Blvden was a named plaintiff in
Inmates I (See Exhibit B). Frank Smith and Edward Dingle were
named plaintiffs in Inmates II (See Exhibit C). Joseph Little
was a named plaintiff in Nieves (See Exhibit D). Peter Butler
was a named plaintiff.in Inmates I and Inmates I] (See Exhibits
B and C). Both George Nieves and Raymond Sumpter were
named plaintiffs in Nieves and Walker (See Exhibits D and E).
Lastly, Calvin Hudson was a named plaintiff in Walker (See Ex-
hibit E). Mr. Mancusi was a named defendant in each of these
actions.
6. Quotations from these cases, with respect to Mr. Mancusi,
are set forth for the convenience of the Court as follows:
times
A-75
He (Judge Curtin) found that although racial slurs,
nighttime harassment, threats and other improper
conduct had continued, there was almost no evidence
of physical abuse or brutality after September 14th,
and that the Superintendent Mancusi and others in
charge had not countenanced the physical abuses or
threats on the part of their subordinates.
Inmates of Attica Correctional Facility v.
Rockefeller I 453 F.2d 12, 19 (2nd Cir. 1971).
Superintendent Mancusi, on the other hand,
countered that neither he nor any members of his staff
had engaged in the interrogation of inmates and that
he had ordered his staff not to engage in such inter-
rogation. As far as he knew, the only interrogation of
inmates conducted at Attica was that carried on by
Deputy Attorney General Fischer and his staff and
by the inmates’ own counsel.
Id. at 18
The Superintendent (Mancusi) reviewed each case,
informed each inmate of the evidence against him and
gave him the opportunity to consent to continued
restricted confinement or to reply to the evidence
against him. Substantial evidence of good cause for
continued segregated confinement was found as to al]
except four prisoners who were released to the general
population.
United States ex rel. Walker v. Mancusi, 467 F.2d
51, 53 (2nd Cir. 1972).
7. In short, Herbert X. Blyden, Frank Smith, Edward Dingle,
Joseph Little, Peter Butler, George Nieves, Raymond Sumpter,
and Calvin Hudson have made allegations of wrongdoing and
reprisals, arising from the 1971 Attica uprising, against Mr. Man-
cusi and they have been litigated. Now, these same plaintiffs
A-76
come once again to litigate allegations of wrongdoing and
reprisals, arising from the 1971 Attica uprising, against Mr.
Mancusi.
#.. Moreover, in my initial search, I identified sixteen actions
in the New York State Court of Claims (See Exhibit F). I have
been abie to examine five of these complaints and each alleges
general wrongdoing on the part of the State of New York and
Mr. Mancusi under which the plaintiff has an opportunity to
prove wrongful reprisals.
9. Two of these Court of Claims claimants have, in other ac-
tions, sought relief against Mr. Mancusi as named plaintiffs.
Specifically, Gilberto Gonzales was a named plaintiff in Inmates
I (See Exhibit B) and Jomo Joko Omowale is now a named plain-
tiff in Al-Jundi (See Exhibit A). However, all of these claimants
in the New York State Court of Claims have sought relief before
against Mr. Mancusi as part of the class in the Walker class ac-
tion and are now seeking relief again against Mr. Mancusi as
part of the class in the Al-Jundi action presently before this
Court.
/s/ Theresa A. Smyth
Theresa A. Smyth
Subscribed and sworn to before me,
this 12th day of January, 1986
/s/ Victoria M. Kuzenko
Notary Public
VICTORIA M. KUZENKO
Notary Public, State of New York
Qualified in Erie County
My Commission Expires March 30, 1987
a
Al-Jundi v. Estate of
Nelson A. Rockefeller.
Civ. No. 75-132E
Plaintiffs
Akil Al-Jundi, a/k/a Herbert Scoti Deane
Big Black, a/k/a Frank Smith
Jomo Joko Omowale, a/k/a Eric Thompson
Alfred Plummer
Herbert X. Blyden
Joseph Little
Robin Palmer
George “Che” Nieves
Peter Butler
Charles “Flip” Crowley
Calvin Hudson
Kimanthi M’Pingo, a/k/a Edward Dingle
Kendu Haiku, a/k/a Willie Stokes
Oojikwesi Sekou, a/k/a Chris Reed
Jerome Rosenberg
Raymond Sumpter
Defendants
Estate of Nelson A. Rockefeller
Russell G. Oswald
John Monahan
Vincent Mancusi
Karl Pfeil
John Does, Nos. 1-100
EXHIBIT A
A-78
Inmates of Attica Correctional
Facility v. Rockefeller I,
453 F.2d 12 (2nd Cir. 1971)
Plaintiffs
Mariano Gonzales
Peter Butler
Herbert X. Blyden
Richard Clark
Roger Champen
William Jackson
Ernest Holley
Defendants
Nelson Rockefeller
Russell G. Oswald
Vincent Mancusi
EXHIBIT 5
A-79
Inmates of Attica Correctional
Facility v. Rockefeller II, 477
F.2d 375 (2nd Cir. 1973)
Plaintiffs
Peter Butler
Richard X. Clark
Roger Champen
Gary R. Haynes
Lawrence Killebrew
David R. Smith
Frank Smith
Edward Dingle
Robert L. Robinson
Wayne Trimmer
Elizabeth Durham for Allen Durham
Arthur O. Eve
Defendants
Nelson A. Rockefeller
Russell Oswald
Walter E. Dunbar
Vincent R. Mancusi
Henry Williams
John and Richard Doe
Robert E. Fischer
Louis Lefkowitz
Judge Carmen
R. Kenneth Schroeder, Jr.
Edmund Maxwell
EXHIBIT C
A-80
Nieves v. Oswald,
498 F.2d 802 (2nd Cir. 1974)
Plaintiffs
George (Che) Nieves
Raymond Sumpter
Stephen Merkel
Jacques Roberts
Henry Pelow
William Ortiz
Andres Figueroa
Joseph Little
Clarence Hick:
Defendants
Russell Oswald
Vincent R. Mancusi
EXHIBIT D
United States ex rel. Walker v. Mancusi.
338 F. Supp. 311 (W.D.N.Y. 1971), affd, 467
F.2d 51 (2nd Cir. 1972)
Plaintiffs
Harold Walker
Wayne Trimmer
Raymond Sumpter
Steven Garrett
Harry Kyle
Thomas Lewis
Richard Fisher
James Murphy
Calvin Hudson
Richard J. Wright
Edward Todd
William R. Broome
George (Che) Nieves
Rich Bilello
Rafael (Ray) Soto
Richard Jones
Charles Colvin
Verdell Turner
Defendant
Vincent R. Mancusi
EXHIBIT E
Stephen Merkel
Allah Dihu
Bernard Stroble
John Delgado
Thomas Frozier
Jacque Roberts
William Bennett
Wilbur Johnson
Henry Pelow
Anthony Williams
Michael Stranys
Phillip Geryea
William Schappell
Peter Rodriquez
Luis M. Quintana
Steven Barney
Clarence Hunter
A-82
N.Y.S. Court of Claims
Attica Actions
Prince v. State of New York (No. 54953)
Jones v. State of New York (No. 54960)
Wright v. State of New York (No. 55052)
McCoy v. State of New York (No. 57003)
Tarallo v. State of New York (No. 57158)
McPhilomy v. State of New York (No. 57167)
Kerber v. State of New York (No. 57619)
Walls v. State of New York (No. 57710)
Gray v. State of New York (No. 57775)
Picket v. State of New York (No. 57777)
Lopez v. State of New York (No. 57866)
Buster v. State of New York (No. 58355-A)
Gonzales v. State of New York (No. 58865)
Miles v. State of New York (No. 58941)
Louk v. State of New York (No. 59112)
Omowale v. State of New York (No. 59593)
EXHIBIT F
A-83
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
AKIL AL-JUNDI, a/k/a Herbert Scott Deane,
et al..
Plaintiffs,
-VS- Civ. No. 75-132E
THE ESTATE OF NELSON A.
ROCKEFELLER, et al.,
Defendants.
Memorandum On Behalf Of Defendant,
Vincent R. Mancusi, In Support Of Motion To Dismiss
Certain Causes Of Action And Other Relief
Introductory Statement
Three motions on behalf of the Defendant, Vincent R. Man-
cusi, are before this Court. Two of the motions, those of Oc-
tober 24, 1985 and December 23, 1985 seek an extension of time
to examine the Attica documents. Counsel for Defendant Man-
cusi has been assigned the task on behalf of all Defendants of
overseeing the examination, numbering, indexing and copying
of the Attica documents. Although nominally brought on behalf
of Defendant Mancusi, the requested extension is for the benefit
of all Defendants.
The first motion of October 24, 1985 related to the Room 4502
documents covered by paragraphs | through 6 of the Stipula-
tion and Order of the Court of August 5, 1985. The second mo-
tion to extend the time for examination of Attica documents of
December 23, 1985 related to the Main Room documents,
covered by paragraphs 7 through 12 of the Stipulation and Order
of the Court of August 5, 1985.
A-84
Counsel for the Plaintiffs has opposed these motions and fil-
ed an additional motion for a Rule 16 Order setting a schedule
for pretrial discovery and date for trial together with a motion
for a protective order pursuant to Rude 26.
In response to the Plaintiffs’ motion, Defendant Mancusi, on
January 13, 1986, moves for an Order:
1. Dismissing as to Defendant Mancusi those causes
of action designated “Reprisals” and “Bad Faith
Prosecutions”.
2. In the alternative, decertifying those causes of
action designated, “Reprisals” and “Bad Faith
Prosecutions”.
3. Denying all claims of privilege by the Attorney
General of the State of New York with respect to At-
tica documents which have previously been made
available to or examined by Plaintiffs’ counsel.
With respect to the Plaintiffs’ motion and the discovery and
privilege questions raised by all the parties, Defendant Man-
cusi relies upon the motions, affidavits and memoranda of the
other Defendants. Additionaily, Defendant Mancusi’s relies upon
the affidavits of Richard E. Moot, Esq. of October 24, 1985,
November 7, 1985 and December 17, 1985 which set forth the
difficulties that the Defendants have experienced with respect
to the examination of Attica documents. From these affidavits,
it appears that the matter of the Attorney General’s unfounded
claim of privilege is quite simple. Those documents, which the
Attorney General has permitted Plaintiffs’ counsel to examine,
Defendants’ counsel may also examine. Documents which both
parties to the litigation have examined may be copied for use
on depositions and in preparation for trial. The question is fac-
tual, not legal, and is fully covered in paragraphs 5 and 6 of
the Moot Affidavit of December 17, 1985. Admissibility or the
form of an appropriate order of confidentiality may await the
trial.
A-85
The Present Memorandum
The present Memorandum is concerned solely with two nar-
row questions:
1. Is the individual Defendant, Mancusi, entitled
to dismissal of those causes of action designated
“Reprisals” and “Bad Faith Prosecutions” upon the
grounds t..at the Plaintiffs have had a full and fair
opportunity, in prior litigation, to prove those
allegations?
2. Should the causes of action designated “Reprisals”
and “Bad Faith Prosecutions” be decertified as class
actions on the grounds that the complaint itself and
the undisputed facts are that such causes of action only
relate to “certain members” of the class?
Mancusi Motion to Dismiss
“Reprisals” and “Bad Faith Prosecutions” Allegations
In 1971, Judges Curtin and Henderson, on repeated occasions,
heard Attica testimony. United States of America ex rel. Walker
v. Mancusi, 338 F. Supp. 311 (W.D.N.Y. 1971) and Inmates of
Attica Correctional Facility v. Rockefeller I, 453 F.2d 12 (2nd
cir. 1971). Additional testimony was taken in the Southern
District of New York Inmates of Attica Correctional Facility v.
Rockefeller II], 477 F.2d 375 (2nd Cir. 1973). When the events
were fresh and the testimony contemporary and accurate, Defen-
dant Mancusi was twice exonerated from any culpability with
respect to reprisals and bad faith prosecutions.
The charges of “physical abuse, ‘punishment’, verbal abuse,
racial slurs, threats, destruction of property and other harm upon
the plaintiffs” and placing “at least 100 members of the plain-
tiff class in segregated cells” as detailed in paragraphs 59 and
60 of the present Amended Complaint, were twice considered
by the Court of Appeals and twice Defendant Mancusi was ex-
onerated. In Inmates of Attica Correctional Facility v.
A-86
Rockefeller I, the Second Circuit, referring to the findings of
Judge Curtin, said:
“He (Judge Curtin) found that although racial slurs,
nighttime harassment, threats and other improper
conduct had continued, there was almost no evidence
of physical abuse or brutality after September 14th,
and that the Superintendent Mancusi and others in
charge had not countenanced the physical abuses or
threats on the part of their subordinates.”
Inmates of Attica Correctional Facility v. Rockefeller, 453 F.2d
12, 19 (2nd Cir. 1971). The question of bad faith prosecutions
was the subject matter of Inmates of Attica Correctional Facility
v. Rockefeller II, 477 F.2d 375 (2nd Cir. 1973). Dismissal of the
prisoners’ claims against State officials was dismissed by the Sec-
ond Circuit with the statement, “We agree that the extraordinary
relief sought cannot be granted in the situation here presented.”
Id. page 377.
The subject of segregation and improper confinement alleg-
ed in sub-paragraph (f) of paragraph 60 of the present Com-
plaint was the subject of appeal in Unites States ex rel. Walker
v. Mancusi, 467 F.2d 51 (2nd Cir. 1972) where the Court found,
at page 53:
“The Superintendent (Mancusi) reviewed each case,
informed each inmate of the evidence against him and
gave him the opportunity to consent to continued
restricted confinement or to reply to the evidence
against him. Substantial evidence of good cause for
continued segregated confinement was found as to all
except four prisoners who were released to the general
population.”
This Court, in its prior Decision of October 30, 1979, made
the traditional distinction between res judicata and collateral
estoppel; res judicata being a final judgment on the merits of
an action, Cromwell v. County of Sac, 94 U.S. 351, 352, 24 L.Ed.
_ a
A-87
195 (1876), and collateral estoppel precluding relitigation of a
decided issue of fact or law necessary to the prior judgment (issue
preclusion), Montana v. United States, 440 U.S. 147, 153, 99 S.Ct.
970, 973, 95 L. Ed.2d, 210 (1979).
In the same Order, this Court invited the parties to raise col-
lateral estoppel to exclude the issues previously litigated in cases
arising out of Attica. Defendant Mancusi has done so with
respect to reprisals and bad faith prosecutions. The Smyth Af-
fidavit sets forth such prior Attica cases with attached exhibits
of the named inmates and Defendants, showing Defendant Man-
cusi as a party in each. Unquestionably, the issue of reprisals
was litigated in those cases.
In its reference to collateral estoppel issues, the Court, in its
Decision of October 30, 1979, cited Mastracchio v. Ricci, 498
F.2d 1257 (1st Cir. 1974), cert. denied, 420 U.S. 909 (1975) which
holds that:
“It now appears well established that when a civil
rights action is brought in federal court which pres: Its
the same issue as was decided in a prior state civil ac-
tion, that prior state judgment may have a collateral
estoppel (or res judicata) effect upon the federal suit
.. [and] the same is true if the prior civil action was
in federal court ..”
Mastracchio, supra, 1259-1260.
The First Circuit states further that “the same principles have
been applied by a number of courts to the situation where the
prior judgment is a state criminal conviction ..”, and cites
various Court of Appeals opinions to the same effect. Mastrac-
chio, supra, 1260.
The United States Supreme Court, in Allen v. McCurry, 449
U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d, 308 (1986), certified the
Mastracchio rule. McCurry, after being convicted in a state court
criminal proceeding, brought a §1983 action grounded in a viola-
tion of his Fourth Amendment rights.
A-88
In referring to the distinction between res judicata and col-
lateral estoppel made in Cromwell and Montana, respectively,
the Supreme Court enumerated the underlying theories which
justify the doctrines of res judicata and collateral estoppel as:
relieving parties of the cost and vexation of multiple lawsuits,
conserving judicial resourc ss, encouraging reliance on adjudica-
tion by preventing inconsistent decisions, and promoting comi-
ty between state and federal courts. Allen, supra, 449 U.S., at
95-96, 101 S.Ct., at 415. Certainly, these arguments can be ad-
vanced to support the application of collateral estoppel in
Al-Jundi.
While acknowledging that “every Court of Appeals that has
squarely decided the question has held that collateral estoppel
applies when §1983 plaintiffs attempt to relitigate in federal
court issues decided against them in state criminal proceedings”,
the Supreme Court held that “there is, in short, no reason to
believe that Congress intended to provide a person claiming a
federal right an unrestricted opportunity to relitigate an issue
already decided in state court simply because the issue arose
in a state proceeding in which he would rather not have been
engaged at all.” Allen, 449 US., at 102-105, 101 S.Ct., at 419-420.
The question of “Bad Faith Prosecutions” stands on a separate
and distinct factual footing. The Court, in its October 30, 1979
Order, dismissed the bad faith prosecutions against the Special
Prosecutor, Robert Fischer. Nothing in the Complaint or prior
Attica litigation suggests in any way that Defendant Mancusi,
who retired in March 1972, six months following the uprising,
was in any way responsible for the bad faith prosecutions.
Furthermore, the Second Circuit, in Inmates of Attica Cor-
rectional Facility v. Rockefeller I, 453 F.2d 12, 18 (2nd Cir. 1971),
found:
“Superintendent Mancusi, on the other hand,
countered that neither he nor any members of his staff
had engaged in the interrogation of inmates and that
he had ordered his staff not to engage in such inter-
rogation. As far as he knew, the only interrogation of
A-89
inmates conducted at Attica was that carried on by
Deputy Attorney General Fischer and his staff and
by the inmates’ own counsel.”
With respect to Defendant Mancusi’s individual and narrow mo-
tion for dismissal, the rationale and the test is clear:
“To preclude parties from contesting matters that
they have had a full and fair opportunity to litigate,
protects their adversaries from the expense and
vexation attending multiple lawsuits, conserves
judicial resources, and fosters reliance on judicial ac-
tion by minimizing the possibility of inconsistent
decisions.”
Montana v. U.S., 99 S.Ct. 970, 973 (1979).
The conclusion is equally clear. Plaintiffs have had more than
a full and fair opportunity in prior litigation to prove the allega-
tions of “Reprisals” and “Bad Faith Prosecutions”.
Due Process
The same considerations of due process which supported
Governor Carey’s findings and grant of amnesty on December
31, 1976 also support Defendant Mancusi’s motion for dismissal.
For 13 years, Mr. Mancusi has been retired. He has testified
in repeated cases, extensive investigations., two Grand Jury in-
quiries and repeated special inquiries. All of his records and notes
have been the property of the State and have not been properly
preserved. As Governor Carey’s proclamation states:
“These independent investigations ... have
documented: ... the failure to properly plan for the
preservation of evidence and to properly collect it once
the retaking had ended.”
(See Page 2 of Exhibit A to this Memorandum.)
A-90
Class Certification
In the alternative, Defendant Mancusi has moved to decer-
tify the “Reprisals” causes of action. The Court’s Order of Oc-
tober 30, 1979 certified the class in the present case for the first
eight causes of action, “The Plan”, “The Assault” and “Reprisals”
as:
“The class shall be comprised of all persons who were,
on September 13, 1971, inmates of the Attica Correc-
tional Facility, Wyoming County, New York, and who
were present in D-Yard of Attica on such date.”
After decertifying the class for inadequate representation, the
class was recertified by the Court’s Order of June 24, 1985.
Although such class certification may, in subsequent testimony,
be sustained with respect to the allegations of the present
amended complaint dealing with “The Plan” and “The Assault”,
such certification cannot be sustained with respect to “Reprisals”.
Like “Bad Faith Prosecutions”, which the Court has correctly
excluded from the class certification, the question of “Reprisals”
is individual and not a matter of class wrong or certification.
Some of the prisoners in D-Yard on the day of the uprising may
have participated in the uprising; others may not have. With
respect to some subsequent segregated confinement, disciplinary
action may have been appropriate. With respect to others not
participating in the uprising but present in the yard at the time,
subsequent disciplinary proceedings would be inappropriate.
Class certification, with respect to the remaining charges against
Defendant Mancusi, “Reprisals” and “Bad Faith Prosecutions’,
are not warranted.
The question was considered in Inmates of Attica Correctional
Facility v. Rockefeller I, 453 F.2d 12, 24 where the Court held:
“In regard to the counsel claim, we affirm the District
Court’s denial of the Plaintiffs’ application to maintain
the suit as a class action. As to that issue, Plaintiffs
A-91
have failed to satisfy certain essential requirement
prescribed by Rule 23 F.R. Civ. P., as conditions prece-
dent to the prosecution of a lawsuit as a class suit.
Although Plaintiffs present some common questions
of law and fact, it is by no means clear that their
claims are typical or representative of all members of
the purported class, i.e., the Inmates of Attica, or that
they will adequately protect the interests of all in-
mates. On the contrary, sharp conflicts of interest exist
between inmates. Some did not participate at all in
the uprising, while others did. Some may be threaten-
ed with State prosecution, while others will not. Some,
therefore, may be called upon to testify with respect
to criminal acts committed by others, and may even
desire to do so, while others may desire the opposite.”
In accord with the decisions which have considered the ques-
tion of class certification for reprisals, Plaintiffs’ counsel, in the
present Amended Complaint, concedes that not all members
of the present recertified class, inmates in D-Yard on September
13, 1971, were the subject of reprisals. Paragraph 61 expressly
states: “Certain members of the class were isolated and singled
out for special summary punishment, reprisals and retaliation
... Further, in paragraph 64, the Amended Complaint alleges:
“Certain members of the class were denied parole on technical
grounds and denied good time maliciously and as a reprisal for
being in D-Yard.” With respect to physical injury and therefore,
the denial of appropriate care, the Amended Complaint expressly
states that the alleged wrongs refer to only one-half the class.
Paragraph 67 alleges: “The cruel and inhuman reprisals against
Plaintiff class resulted in physical wounds to one-half the class.
The wounds included abrasions, contusions, lacerations, frac-
tured ribs, broken elbows, a broken arm, nose and infected skull.”
Both the prior considerations of the class-action question by
the courts and the express allegations of the present amended
complaint require the same result. The present class certifica-
tion cannot apply with respect to the remaining allegations
against Defendant Mancusi which are limited to “Reprisals” and
“Bad Faith Prosecutions”.
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Conclusion
It is time to put the remaining charges of “Reprisals” and “Bad
Faith Prosecutions” against Defendant Mancusi to rest. At the
time of the events, Warden Mancusi testified forthrightly and
completely at length and upon repeated trials and other occa-
sions with respect to the Attica events.
Plaintiffs have had more than a full and fair opportunity to
prove the limited and remaining allegations of “Reprisals” and
“Bad Faith Prosecutions” on the part of the retired Warden, Vin-
cent R. Mancusi.
The District Courts and Court ot Appeals found no acts of
“Reprisals” or “Bad Faith Prosecutions” which would warrant
the present suit.
The Plaintiffs’ oft-delayed, on-again, off-again twelve-year
prosecution of their complaint against the long-ago retired
Warden should now be dismissed.
DATED: Buffalo, New York
January 13, 1986
Respectfully submitted,
MOOT & SPRAGUE
By: /s/Richard E. Moot
RICHARD E. MOOT, ESQ.
Attorneys for Defendant, MANCUSI
2300 Main Place Tower
Buffalo, NY 14202
Telephone: (716) 845-5200
Of Counsel:
Mark C. Butler, Esq.
A-93
THE NEW YORK TIMES
December 31, 1976
P. Alo
“TEXT OF THE STATEMENT BY CAREY ON
INQUIRIES INTO ATTICA UPRISING”
(Following is the text of a statement by Gov. Carey on the in-
vestigations into the uprising at Attica in 1971:)
The Governor of the State of New York has the constitutional
responsibility to “take care that the laws are faithfully executed.”
That responsibility places a constitutional imperative upon the
Governor to insure equal justice for all citizens of the state. No
government can command the confidence and respect of its peo-
ple without a first commitment to the principle and practice
of evenhanded justice.
The facts and circumstances recounted in the reports of
Special Deputy Attorneys General Meyer and Scotti make it
irrefutably clear that the state, through its highest officials,
failed abysmally in upholding this principle in the handling
of Attica investigation and prosecution in the first half of this
decade. Due to insensitivity to their constitutional respon-
sibilities, equal justice by way of further prosecutions is no longer
possible.
Two independent investigators that I caused to be appointed
have documented the one-sided nature of the prosecutions. The
failure to take early and vigilant action to insure a vigorous,
thorough and impartial investigation and prosecution of all
crimes committed during the tragic five days in September
renders futile any further attempts to secure even a semblance
of equal justice now through further prosecution. These inde-
pendent investigations and another have documented:
— The failure to properly plan the assault and to properly
instruct the men (Meyer Report p. 8; McKay pp. 341-366).
A-94
— The failure to properly plan for the preservation of evidence
and to properly collect it once the retaking had ended (Meyer
Report p. 8, 51; Scotti’s statement to the court 2/26/76 p. 6-7).
— The failure to properly budget and administer the in-
vestigation (Meyer Report p. 9, 75-77).
— The failure to perceive these deficiencies at the outset of
the investigation and to take whatever action could have been
taken to develop evidence pertaining to possible crimes by law-
enforcement personnel (Meyer Report p. 48, 54, 119-20; Scot-
ti’s statement to the court 2-26/76 p. 6).
‘Abundantly Clear’
The two independent investigations have made it abundant-
ly clear to me that these repeated failures have effectively
precluded the possibility now of bringing to justice, by trial or
disciplinary action, any armed personnel who were misdirected
or abused their authority in the retaking of the facility and
rehousing of the inmates.
During the months since I received these reports, I have per-
sonally read, reviewed and analyzed all of the materials with
respect to the Attica uprising, retaking, investigations and pro-
secutions. In so doing, I have come to the most distressing, in-
deed the most disappointing moment in my tenure as Gover-
nor of this state. For I now must conclude that the conduct of
this investigation and prosecution has been such that we now
confront the real possibility that the law itself may well fall in-
to disrespect. Hence, I have concluded that, as Governor, I have
the final responsibility to bring this tragic affair to a conclu-
sion which, however unsatisfactory, will foster respect for our
system of justice as one capable of recognizing and correcting
its wrongs.
In addition, beyond what I see as my constitutional responsi-
bilities, as an elected leader of our state, I am moved to recognize
that Attica has been a tragedy of immeasurable proportions,
A-95
unalterably affecting countless lives. Too many families have
grieved, too many have suffered deprivations, too many have
lived their lives in uncertainty waiting for the long nightmare
to end. For over five years and with hundreds of thousands of
dollars and countless man-hours we have followed the path of
investigation and accusation. We have succeeded in dividing and
polarizing the people of the state without satisfying the quest
for justice in this tragedy. To continue in this course, I believe,
would be merely to prolong the agony with no better hope of
a just and abiding conclusion.
‘A Time to “Close the Book” ’
Attica lurks as a dark shadow over our system of justice. The
time has come to firmly and finally close the book on this unhap-
py chapter of our history as a just and humane state.
I am therefore accepting the recommendations of Superinten-
dent Connelie and Commissioner Ward that no disciplinary ac-
tion be commenced against the 20 state officers and employees
identified by Mr. Scotti. I also accept the recommendation of
Mr. Scotti that six inmates convicted of crimes committed at
Attica be granted a pardon for these convictions. In addition,
I am extending clemency to the two other inmates convicted
of Attica-related crimes — one will be pardoned, and the At-
tica related sentence of the other will be commuted, making
him eligible for parole.
These actions should not be construed as a reflection of a lack
of culpability for the conduct at issue. Rather, these actions are
in recognition that there does exist a larger wrong which
transcends the wrongful acts of individuals caught in the
seamless web into which the tragedy of Attica has spun itself.
They are in recognition of the immutable principle in our society
that the state itself should not sanction the maintenance of legal
proceedings out of harmony with the principles of equal justice.
A-96
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
AKIL AJ-JUNDI, a/k/a Herbert Scott Deane,
et al.,
Plaintiffs,
VS. Civ. No. 75-132E
THE ESTATE OF NELSON A.
ROCKEFELLER, et al.,
Defendants.
ADDITIONAL AFFIDAVIT OF THERESA A. SMYTH
IN SUPPORT OF MOTION TO DISMISS CERTAIN
CAUSES OF ACTIOIN AND OTHER RELIEF
STATE OF NEW YORK )
COUNTY OF ERIE ) Ss:
I, THERESA A. SMYTH, make this additional affidavit in
support of the Motion to Dismiss Certain Causes of Action as
Against Vincent R. Mancusi and Other Relief and further state:
1. I am Legal Assistant to Richard E. Moot, Esq., counsel for
Defendant Vincent R. Mancusi in this action.
2. On January 16, 1986, three days after the writing and fil-
ing of my first Affidavit, John H. Stenger, Esq., counsel for
Defendant Oswald in the present action, was able to retrieve,
from warehouse storage, his Inmates I files which contained the
reports of United States Magistrate Edmund F. Maxwell on the
contempt proceedings initiated for the violation of Judge Cur-
tin’s injunction as granted on December 14, 1971 and amended
on December 21, 1971. The following day, our office received
copies of these same five reports. (See Exhibit A)
3. Vincent R. Mancusi was Warden at the Attica Correctional
Facility from September of 1965 until he retired in March of
A-97
1972. From a review of the reports of Magistrate Maxwell, the
contemptuous act in Misc. Crim. A occurred on February 22,
1972, in Misc. Crim. B on January 27, 1972, in Misc. Crim. C
on February 20, 1972, in Misc. Crim. D on April 3, 1972, and
in Misc. Crim. E on February 7, 1972. Thus, Mr. Mancusi was
Warden at the time during which four of the alleged acts of
contempt occurred.
4. Petitioners and supporting witnesses, involved in these con-
tempt proceedings, are not unfamiliar to this Court. All have
played various roles in other actions arising from the 1971 At-
tica uprising as either named plaintiffs or members of the plain-
tiffs class. For example, Mariano Gonzales, petitioner in Misc.
Crim. C and witness in Misc. Crim. A, was a named Plaintiff
in Inmates I and is currently a claimant in the New York State
Court of Claims. Harold Walker, a witness in Misc. Crim C,
was a named plaintiff in the Walker case. Roger Champen, a
witness in Misc. Crim. E, was a named plaintiff in Innates I],
Lastly, Steven Merkel and Raymond Sumpter, both supporting
witnesses in Misc. Crim. C, were also both named plaintiffs in
the Nieves and Walker cases.
5. Once again, these same complaining inmates are before
this Court in the present action as either named plaintiffs or
members of the plaintiff class. Specifically, Jerome Rosenberg
and George Nieves testified in Misc. Crim. A. Frank Smith,
Calvin Hudson, and Raymond Sumpter testified ii Misc. Crim.
C. Herbert Scott Deane testified in Misc. Crim. E. All six of
these inmates are presently before this Court as named plain-
tiffs in Al-Jundi.
6. In all five of the contempt proceedings initiated, petitioners
claimed and inmates supported, through testimony and af-
fidavits, allegations of physical and verbal abuse in violation
of Judge Curtin’s injunction. After careful consideration of the
testimony and affidavits submitted, Magistrate Maxwell] found
that, in all but Misc. Crim. A, there was not sufficient credible
evidence to believe that the alleged acts occurred as claimed by
petitioners and thus, no probable cause existed to commence
formal criminal contempt proceedings.
A-98
7. In Misc. Crim. A, Magistrate Maxwell found that, “while
the evidence did not satisfy him beyond a reasonable doubt as
to the happening of the incident, probable cause did exist which
would justify the commencement of formal criminal contempt
proceedings”. Thereafter, a jury trial was scheduled to be held
before Judge Curtin. However, complaining inmates refused to
testify at such a trial and the charges were subsequently
dismissed.
8. In accordance with the testimony given before and con-
clusions reached by Magistrate Maxwell, there was little evidence
that incidents of physical or verbal abuse were occurring either
during the time that Mr. Mancusi was Warden at Attica or after
he retired. Moreover, petitioners and complaining inmates had
a “full and fair” opportunity, in Misc. Crim. A, to prove allega-
tions of reprisals and they did not do so. Now, these same in-
mates once again make the same allegations, in paragraph 58
through 67 of the Second Amended Complaint in Al-Jundi, of
physical and verbal abuse.
9. Furthermore, under the direction and with the assistance
of Richard E. Moot, Esq., I began reviewing all transcripts of
proceedings in the Inmates I file (Civ. No. 1971-410) at the Clerk’s
Office. Before my review was completed, the Clerk’s Office
returned the file to storage. I have since been advised that its
retrieval from the New Jersey warehouse will take up to two
weeks.
10. From my initial review, it was clear that extensive
testimony with regard to physical and verbal abuse was given
before Judge Curtin in Inmates I. Thus, the same inmates now
come before this Court as plaintiffs to testify once again to the
same incidents as testified to over ten years ago before both Judge
Curtin and Magistrate Maxwell.
ll. On Mr. Moot’s instructions, I have again requested the
return of the Inmates I] file to the Clerk’s Office so that I can
A-99
cite specific instances from the transcripts in support of the
above.
/s/Theresa A. Smyth
THERESA A. SMYTH
Subscribed and sworn to
before me this 12th day of
February, 1986.
/s/ Victoria M. Kuzenko
NOTARY PUBLIC
VICTORIA M. KUZENKO
Notary Public , State of New York
Qualified in Erie County
My Commission Expires March 30, 1987
A-100
CERTIFICATE OF SERVICE AND FILING
I, Richard E. Moot, Esq., Counsel for the defendant Vincent
R. Mancusi, certify that the above Additional Affidavit of
Theresa A. Smyth in Support of Motion to Dismiss Certain
Causes of Action and Other Relief was served upon all counsel
of record and thereafter filed with the Clerk of The United States
District Court for the Western District of New York.
Dated: Buffalo, New York
February 12, 1986
s/Richard E. Moot
Richard E. Moot, Esq.
A-101
JAECKLE, FLEISCHMANN & MUGEL
Attorneys at Law
Norstar Building
Twelve Fountain Plaza
Buffalo, New York 14202-2222
716-856-0600
JOHN H. STENGER
PARTNER January 16, 1986
Richard E. Moot, Esq.
Moot & Sprague
2300 Main Place Tower
Buffalo, New York 14202
Dear Rit:
We have now been able to secure the return from dead storage
of the Attica files I spoke to you about.
There were five separate contempt proceedings initiated and
I am enclosing copies of the reports of the Magistrate with regard
to each of these proceedings.
It appears from the dates of the incidents that most if not
all did occur when Mr. Mancusi was Superintendent and this
material may be of assistance to you.
You will notice that further proceedings were ordered only
with respect to Proceeding A pertaining to Officers Miller and
Wade. A jury trial was scheduled in their case before Judge Cur-
tin but the charges were disrnissed when the complaining in-
mates indicated that they would refuse to testify at such a trial.
Please let me know if I can be of any further assistance with
regard to these matters.
Very truly yours,
s/John H. Stenger
JOHN H. STENGER
JHS:sm
Enc.
A-102
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
In the Matter
of
The Application of MILTON JONES, for com-
mencement of Criminal Contempt Pro- Miscellaneous
ceedings against CORRECTION OFFICER Criminal A
CHARLES MILLER and ONE UNKNOWN
EMPLOYEE of the ATTICA CORREC-
TIONAL FACILITY, believed to be COR-
RECTION OFFICER JAMES WADE
APPEARANCES: JOHN T. ELFVIN, ESQ.,
United States Attorney,
By RICHARD J. ARCARA, ESQ.,
Assistant United States Attorney,
And CARLTON STOIBER, ESQ. and
MICHAEL FERGUSON, ESQ., Attorneys,
Department of Justice,
Appearing on behalf of the Government
LOUIS J. LEFKOWITZ, ESQ.,
Attorney General of the State of New York,
By JOHN H. STENGER, ESQ.,
Special Assistant Attorney General,
700 Liberty Bank Building,
Buffalo, New York
Appearing on behalf of the Respondents
Milton Jones, an inmate of the Attica Correctionai Facility,
has alleged that on February 22, 1972, while in the west gallery
of the third floor of Housing Block Z in the Reception Building
at Attica, he was struck
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.