# Appendix — Mancusi v. Al-Jundi > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2396%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1991 - **Citation:** 502 U.S. 861 ## Text 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 ....— 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 2194 A-3 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 2195 A-4 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. 2196 A-5 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 2197 A-6 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 2198 A-7 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 2199 A-8 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- 2200 NS... 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 2201 A-10 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=_ A-11 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 A-12 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 A-13 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 ——— )». | —™ —— ee ae ee oe eee ee OT ee ee mi - qewerrrm: - § «- i+ s Y iz Ly 5 pe a ae aw a 2 1 Front Gate § B Catwalk and Tunnel 2 Administration Bldg. 10 C Catwalk and Tunnel 3 Annex 11. D Catwalk and Tunnel 4 A Block 12 Times Square 5 B Block 13 A Yard 6 © Block 14 B Yard 7 D Block 15 C Yard 8 A Catwalk and Tunnel 16 D Yard School Auditorium/ Chapel State Shop Ponderosa Coal Shack Commissary/ Garage Powerhouse Metal Shops AERIAL PHOTOGRAPH OF ATTICA CORRECTIONAL FACILITY. NUMBERS ARE KEYED TO LOCATIONS DISCUSSED IN THE REPORT. 25 26 27 28 29 30 31 E Block Laundry B Mess A Mess Kitchen/ Bake Shop Hospital Reception Center and Segregation Cells (HBZ) A-226 September 13, 1971 e vt ae ‘. Trench snl auaiaemetel oes wa : pe teteoper oe op J ET pst f- ~- D Block CBlock oo rtm, em I 2 ert & 0 Yard F'. oes: 3 ioanelcenr CYard AB AYerd z ° AT | o 06 : UnUneuuaetie at , UU lee mein Ka aaron - ° on roof and third floo OSS - | [ ] Attack unit and rescue one sae Le In tunnel Attack unit and rescue detall on catwalk tm September 13, 9:46 A.M. n——————é, i. A-227 JUDGE CURTIN’S DECISION 10/6/71 ... middle, namely, from trying to do what is inherently im- possible, prosecute both the inmates and the State Troopers and the correction officers. We simply say one or the other, he can’t do both. Obviously, he will stick to prosecuting the inmates. Therefore, we would ask that he not make any pretentions or prosecute anything else and not be permitted to. That is about all I think we have, your Honor. With respect to Mr. Eve, Mr. Ricotta was here yesterday and cross examined. MR. RICHMAN: Just one thing briefly, your Honor. Mr. Schwartz’s comments are totally - - - THE COURT: Mr. Richman, please. MR. RICHMAN: No, I just have one thing to say. We are not here to prosecute only inmates, your Honor. We are here to prosecute those crimes that come to our attention and I- - THE COURT: Mr. Richman, you have made this argument here again and again. It doesn’t help to make it again. Very well. First of all, I want to, and all through this proceeding we have had the need for immediate attention of attorneys for the plain- tiffs and also the defendants and I want to thank both sides for their cooperation with the Court and I certainly, as far as the attendance of witnesses, the conduct of the proceedings, the cooperation of the Marshals and everyone that is concerned with this very difficult problem, they have all been most cooperative. Then too, in this situation the Court has had the need from time to time to issue orders, quick orders. It was done because of the need for either instant relief or at least the opportunity to be heard, and again I want to thank the attorneys on both sides for the cooperation with the Court and getting informa- tion to the Court just as quickly as possible. It seemed to me to be important in this litigation to make a decision as soon as reasonably possible, make it one which would try to the best of my ability to cover the problems before es A-228 us and let the parties know, as far as I am concerned, this Court is concerned, so that if either side wanted to make appropriate application for appellate relief they could do so immediately. That is the reason why I have asked you to come here today so that I could make my decision from the bench rather than have it typed in a more formal fashion and filed, which you find usually takes a little more time. As we all know, this action was brought «under the Civil Rights Act. The Court has filed an order dated September 28, 1971, denying plaintiffs’ application in part. The Court must still decide whether a preliminary order should be granted enjoin- ing the destruction of legal material belonging to inmates of the Attica Correctional Facility; enjoining the abuse of inmates at the Attica institution; three, enjoining Assistant Attorney General Robert Fischer’s investigation of the events at Attica; four, appointing Federal monitors at the Attica institution, and five, permitting plaintiffs to maintain this action as a class action. Also pending is defendants’ motion to dismiss the complaint. The Civil Rights Act, passed by Congress shortly after the Civil War, provides a means of redress to any person deprived by state officials of a right guaranteed him by the United States Con- stitution. That person may bring an action in federal court for prospective relief or for monetary damages. See Monroe against Pape, 365 U.S. 167, decided in 1961. The remedies of the Civil Rights Act are available to persons incarcerated in state prisons. That would be the applicants in this case. See Cooper against Pate, 378 U.S. 546, decided in 1964. The jurisdiction of a federal court is limited, as stated above, by the requirement of the Act that the actions complained of amount to a deprivation of con- stitution rights, and in order for a court to grant injunctive and prospective relief as is sought here, there must be a continuing unconstitutional deprivation cr a threat of such continuation. Therefore, it is the task of this court to determine from the testimony presented to it whether there is presently a continua- tion of threat of continuation of unconstitutional action by state officials at the Attica Correctional Facility. A-229 Since the order of September 28, the court has had an op- portunity to listen to the testimony of prisoner witnesses, of Vin- cent Mancusi, Superintendent of Attica, of Clarence Jones, a member of the Goldman panel and of Assemblyman Arthur Eve, a member of the observer committee during the events of September 9th to 13th. The testimony is now closed and the court will now rule on the various motions pending before it. The proceedings before this court arose from the tragic prisoner uprising at Attica Correctional Facility beginning on September 9th and continuing to the morning of September 13, 1971. On the morning of the 13th, state troopers and correc- tional officers regained control at a cost of 10 guards and 32 prisoners dead and many guards and prisoners injured. The ques- tions before this court do not concern the riot itself or its sup- pression, but rather the treatment of prisoners beginning on the morning of the 13th. Also concerned is the investigation by state authorities into all the events connected with the problem. A brief summary of the various applications made to the court and the hearings held may help to explain the court’s decision. On the evening of September 13th, counsel for the inmates requested the court to issue a temporary restraining order di- recting prison officials to permit entry into Attica of attorneys and additional medical personnel and directing that no inmate be interrogated except in the presence of counsel and after he had been counselled by an attorney. The show cause order was made returnable the following morning, September 14th. The court reasoned at that time that this somewhat unusual order should be granted with an immediate return to the court because it was evident that the situation at Attica was tense and that because of the uprising as a class action. Defendants’ counsel also described the form which was being distributed to inmates describing their right to counsel. At that time the proceedings were adjourned until September 30th to hear testimony from plaintiffs’ witnesses. On September 28th, the court filed an interim order dismiss- ing some of plaintiffs’ claims for relief. The court felt that it A-230 was important to make the order at that time in order to guide the attorneys in the questioning of witnesses at the hearing on September 30th. The plaintiffs filed an immediate appeal from this order. On September 30th and October 4th, the court heard testimony from six inmates of the Attica Correctional Facility; Frank Lott, Roger Champen, Herbert Biyden, William Jackson, Charles Colvin and Gary Haynes. Several of the inmates testified that they had been beaten by correctional officers and state troopers on September 13th follow- ing the assault on the prison by state authorities. Some stated that they had run a gauntlet of correctional officers similar to the one described by the National Guardsman, Mr. Watson. William Jackson, a prisoner not involved in the events of September 9th to 13th, testified that while he was working on a cleanup detail on September 14th he had seen inmates being pushed past him and hit by correctional officers with billy clubs. One of the inmates was bloody and an officer referring to him by a racial epithet said that he had fallen down a flight of stairs. Some of the prisoners testified that in the days following the restoration of official control of the Attica facility they had been verbally abused and threatened with death, particularly by cor- rectional officers on the night shift. It was stated that on one occasion about a dozen officers led by Deputy Superintendent went from cell to cell in HBZ or Housing Block Z hitting the bars of the cells with clubs, referring to the occupants by of- fensive racial terms and threatening that they would be killed. On other occasions correctional officers allegedly stuck guns through the bars or held guns to inmates’ heads. One prisoner, Charles Colvin, testified that during one such episode he was told to sign his name to several papers or he would be killed. He said that althoug> he was not informed of the papers’ contents he did as he had been instructed. = OD - ODO F- #0 Yes, this was prior to coming up the stairs, they were beating us and we come up the stairs and they were beating and pointing at the marking with the chalk and we had to run ____ through. Q Do you remember any of the names of the prisoners who were marked? A Well, I know for a fact that Champ was marked, a guy named Champ, Roger Champen was marked, and a few other guys I don’t know their names that were marked with chalk on their back. Q. All right. And these persons who were marked were beat especially heavy, is that what you are saying? A Yes, sir. Q And where were you placed then, what cell was this? A First I was placed in Cell Number 702. I don’t remember what company, but I was placed in Cell Number 2 with two other fellows. Q Which block? AA block. Q_ In A block? A Yes, sir, A block. A-245 Q_ And then would you describe what happened to you then? A Well, right after that, they came in there and they told me, an officer along with two State Troopers, the Correction Officer told me that he had my picture there on a card of some sort and he said they had orders to remove me and then after they took me down to Number 19 cell. THE COURT: Excuse me, Mr. Lott — THE WITNESS: Yes, sir. THE COURT: Is this the same day, the 13th? THE WITNESS: Yes, «.. Yes, sir. They said that he had orders to remove me so they moved me down to 19 cell and about half an hour later, they came and told me that they had orders to move me again and I asked them “why” and they said “well, we are getting rid of you”, just like that. And then they went and took me down to D block area, so I heard an officer say “all we got to do is throw some dirt over him”, and they took me in the yard there with the guns. Two state troopers and cor- rection officers with helmets, and they put a gun at my head and just about that time, a correction officer came from the hallway and hollered “bring him back, bring him back in”, so they took me back and put me in 19 cell and right after that they took me up to segregation in the institution. BY MR. PACHODA: Q Did the trooper say anything to you when he had the gun to your head? A_ No. The correction officer said “what’s the matter, you not going to pray”, and I didn’t say anything. He said “what's the matter, you not going to pray”, and I didn’t say nothing. Q Did the correction officer who came running out say anything? A-246 A Hedidn’t come running out. He spoke through the broken glass in the side of the hallway. He told them to bring me back and they brought me back from the ditch. Q Where were you placed then? A ThenI was placed in segregation on the roof there. I was in Housing Block Z. Q Is that also called HBZ? A HBZ, yes, sir. Q. And you have been located there since that time? A Yes, sir. Q Would you generally describe the conditions of your con- finement in segregation or HBZ as they exist today? A_ Yes. I would start off by saying the conditions as they ex- ist in HBZ are inhuman. We are constantly being harassed, mostly by the 8 P.M. to 8 A.M. correction officers with threats of death. This happened every night. You live at night in fear that this doesn’t happen and not myself, but they stuck a gun in another guy down the way, cell Number 5, they stuck a gun in his ceil, Assistant Deputy Warden, Car! Pfiel, came up one night A-247 HEARING 9/30/71 INMATE CHARLES COLVIN * *+ MR. RICHMAN: Excuse me, Judge. Would you ask the witness to speak up. MR. O'CONNOR: Speak a little louder. THE COURT: It is hard to hear in this room. Just take your time and speak up. You don’t have to speak right into that because otherwise it really blasts. Just speak up and take your time. BY MR. O’CONNOR: Q. The question I put to you, sir, what sentence? A. Three to ten years. THE COURT: You can move back a little bit, Mr. Colvin. All right. BY MR. O’CONNOR: Q. Presently what is the cel! and block number that you are confined to? A. A Block, 6 Company, 26 Cell. Q. Mr. Colvin, I take you back to the date of September 13, 1971. Were you in the vicinity known as D Yard on that date? A. Yes sir. Q. And did there come a time that you were taken from that location to A Yard? A. Yes sir. Q. A. Q. A-248 And that was at Attica State’s Prison, is that correct? Yes sir. Could you tell the Court what occurred to you at that date and time, please? A. I was taken from D Block into A Yard. I was told to get down on the ground, put my face into the ground and crawl. Q. A. Q. A. At that time can you tell the Court how you were dressed? I was fully dressed. Continue sir. I crawled about six or seven yards and then I was ap- proached by a correction officer. Q. A. o> © > © > You were crawling on the ground? Yes sir. Can you describe to the Court how you were crawling? I was on my belly, my face and my knees. And how were you moving yourself along the ground, sir? On my elbows, knees. You may continue. So as I was crawling four correction officers and a state trooper approached me and the correction officer said “Wherever bashee” and he said “Stand up”, and I stood up and he told me to strip and as I stripped — Q. By “strip” what do you mean? A. A-249 Take off all my clothes. After I stripped he took my watch from my wrist and he broke it and then the correction officer said “Well, you going to die now, you going to die”. Q. Will you please speak a little slower and clearer, please. What did he say? 4 A. The correction officer said “You going to die, nigger, you going to die”, and they begin to hit me with the sticks and so on. Q. When you say they began to hit you with the sticks, who began to hit you with the sticks? A. Q. A. Q. A. the w Q. or 0 Ff OO > A. The correction officer. They struck you on your body? Yes sir. You may continue. And he told me to go over there, put my head against all. He directed you to go someplace? Yes sir. Where, if you can recall, were you directed to go? Against the wall in A Yard. Did you go to that location? Yes sir. Did something take place at that location? Yes sir. 1 was told to put my head against the wall and put my hands on my, — I’m not sure what it was, — put my hand on my eyes. nT A-250 Who directed you to do this? Correction officer. And did you assume that position? Yes sir. How long were you in that position? rF OF © - © A long period of time. Q. At that time could you see what was going on in the yard around you? A. We was told not to look around the yard or our head would be blown off. Q. Did you have occasion to see anything at that time? A. No sir. Q. Now, did there come a time that you were removed from that location? A. Yes sir. - Q. Will yeu tell the Court what took place then? A. Well, I was moved from that spot and I had to put my hands against the wall this time and stand there longer than I did before. And then a state trooper came by, I believe with some kind of chalk or something and marked something on my back. Q. And at that time were you still against the wall? A. Yes sir. Q. Did there come a time that you were removed from that location? A. Yes sir. Were you tuken someplace? I was taken off the wall into A Block. And when you got to A Block, was that A Block — Door. Building? A Block door, yes sir. Did you see or observe anything at that time? Yes sir. I saw three or four inmates being beaten by of- ficers and state troopers. QO. A. Q. A. rF Oo Ff 0 fF © oO You say being beaten. How were they being beaten? Sticks, straps and so on. Were these inmates sitting or lying? They was running. Running where? Through the line, through the gauntlet lines. And where were these lines at? In the corridor. In the corridor of where, sir? A Block corridor. And you said they had lines? A-252 A. Yes sir. Q. Describe to the Court in your own words what these lines were like, what you observed at that time. A. Well, there was two sides to the line, correction officers + . . | — HEARING 9/30/71 VINCENT MANCUSI A-253 THE WITNESS: Yes, sir, I would. BY MR. HELLERSTEIN: Q. Are you aware of the fact, Mr. Mancusi, that on certain, on September 13th, certain inmates were marked with a piece of chalk in an “X” fashion by members of your correctional staff and state troopers? Do you have any information on that? A. Ihave become aware that this was done for purposes of identification. Q. Who authorized that that be done? A. I don’t know, sir. Q. Did it come as a surprise to you when you learned that it had beer done? MR. RICHMAN: I am going to object to that, Judge. The fact that it was done, it was done. THE COURT: “Were you surprised”. No, I will permit that. THE WITNESS: I checked to find out if it had been done. BY MR. HELLERSTEIN: Q. And what did you find out? A. It had. Q. On how many people? A. I don’t know. Q. By whom? A. I have been informed that it was a state police procedure. A-254 Q. Have you been informed as to the basis upon which that procedure was implemented? — A. From information I have received, it was for the pur- pose of identifying people who were involved as active participants. Q. When did the state troopers enter the premises? A. Sir? Q. When did the state troopers enter the premises? A. On 9-13 at the assault. If they were the agency that to itself decided to designate the people who were involved. A. The state police were in charge of the assauit. Q. Had this procedure with respect to marking “X’s” on peo- ple’s backs been checked with you? A. No, sir. Q. Had you ever heard of it prior to the time it was implemented? A. Had I heard of it prior to that? Q. Yes, sir. A. No, sir. Q. Do you know what official of the state troopers gave that order? Was it Mr. Williams? A. No, sir. I don’t know. When did you learn about this “X” procedure? Some days later. or 0 Do you recall who brought it to your attention? siiineseannenemaaeaasiaeinsiaaiemeaile A-255 A. I first heard it, I believe, in connection with a Thomas Hicks. Q. Do you recall who told you that? A. No, sir, I don’t. Q. Did you make any personal attempt to observe which people had been marked with an “X”? A. No, sir, I did not. Q. Did you express your opinion to anyone as to the propri- ety of that procedure? A. My opinion was not requested. Q. Is it your testimony that no correction officer did the marking, that it was only state troopers? No, sir, it is not. Q. Correction officers did? A. I don’t know. Q. You don’t know? A. I have no knowledge. © Would your personnel do that without an order from you A. Some members of the correctional staff were assigned to state police groups on the day of the assault and they could very well have been asked to do that and they would have done this. Q. You mentioned Thomas Hicks. Had he been marked with an “X”? A. I don’t know. That is the first name that I heard mentioned. A-256 Q. Well, how did you hear it mentioned, that he was marked or was not marked? A. It came at a pastime conversation that some lawyer or some attorney had said that outside the front gate of the prison. Q. So your knowledge about Hicks is what you heard some lawyer say outside of the prison? A. You asked me how I heard and I just — Q. Do you know whether the marking took place after the prison was secured on the 13th? A. No, sir, I don't. Q. Do you know what happened to those people who were marked? A. I have an assumption, but I don’t know. Q. Would you care to teil the Court your assumption? A. I assume that they were routed to HBZ or 1 or 6 Company. Q. So state troopers who were not on the premises before the 13th did the markings which then you assume resulted in at least some of the HB population being placed there. A. State troopers were on the premises from the 9th throughout the course of the riot. Q. Mr. Mancusi, the other day when we finished before the A-257 HEARING 10/4/71 INMATE HAYNES A. Yes sir. Q. And will you tell the Court how you got there? A. Yessir. I was told by a state trooper to go to A Block Yard, and which I did. THE COURT: Excuse me, Mr. Haynes. Were you in D Yard before? THE WITNESS: Yes sir. THE COURT: Were you in the D Block vicinity from roughly around the 9th to the 13th? MR. O'CONNOR: Your Honor, counsel at this time, in view of the stipulations made to the Court, would respectfully ask the Court — THE COURT: I think it is important to know were you in a cell from the period of a few days before the 13th? THE WITNESS: Was I in a cell? THE COURT: Were you in a cell or were you out in the D Block Yard area? THE WITNESS: Yes, I was in the D Block Yard. THE COURT: Yard? THE WITNESS: I was in the yard at all times. THE COURT: All right, fine. Go ahead, Mr. O’Connor. BY MR. O’CONNOR: A-258 Q. Now, would you tell the Court what took place at that time and at that date to the best of your recollection? A. I woke up early in the morning — Q. No, no. A. No? Q. The time you were in A Block Yard? A. Oh, from the time I was in — Q. A Block Yard. A. A Block Yard. As soon as I got to the yard, a state trooper didn’t really hit me, but tapped me on the shoulder with his stick and told me to lay face down on the ground and I did. He, — the same trooper later came, you know, a little while later because the yard was filling up, came over to me and kicked me in the side and told me to get moving with my hands on my head, face on the ground and start crawling across the yard, and so I did. And I crawled until I got to the other end of the yard and there I just laid. Q. And at that time did something else happen to you while you were laying on the ground in A Block Yard? A. Not when I was laying on the ground, but after laying there for a while, a state trooper came up to me and told me to stand up and strip. Q. When he said “Strip”, what did he mean, sir? A. He mentioned take my clothes off. He grabbed hold of my watch because I wasn’t undressing fast enough and he rip- ped that off and when I started unbuttoning my shirt, he said, you know, “To hell with unbuttoning it”, he said “Rip the but- tons off”, so I did, and after I undressed there was a line form- ing in the yard. A-259 Q. A line of what, sir? Composed of what? A. Of inmates. Q. How were they dressed? A. Everybody was stripped. Q. Do you mean naked? A. Naked, and he told me to join that line and I did. I followed the line along. It was heading for the A Block door into the A Block corridor and I was almost up to the door when an officer signaled me out, and pulled me aside to the left of the A Block door. He, — he says “What’s your name?”, and I said “It’s Haynes”. He says “You were on TV, weren't you?” Q. Based upon the conversation you had with the officer at that time, was anything done, sir? A. Yessir. He made me lay down on the ground on my back and put my ges up, you know, curled up, and he put a shotgun shell on my knee and he told me if I dropped it I was dead. Q. You mean you were laying on your back and how were you dressed at that time? A. I was naked. Q. You said your legs were bent? A. Yes, my legs were bent. Q. And there was a shotgun cartridge placed on tep of one knee? A. Yes sir, on top of the right knee. Q. Did you do this? rnc A. Q. A. Q. A-260 Yes sir. I was scared. And how long did you remain in that position? I was there, I would say for an hour, hour and a half. And during that period of time, that hour to hour and a half, did anything else take place? A. Yes sir. The state troopers up on top of the catwalk were spitting on me and dropping lit cigarettes. Q. Just a second, please, Mr. Haynes. You were laying on the ground in exactly what location of A Yard, if you can remember? A. I was to the left of A Block door on the ground, my head was resting, you know, touching the A Block corridor. Q. oO r 0 > Is there a catwalk close to you? There is a catwalk straight directly over my head. Was there anybody on the catwalk? Yes sir, there were state troopers there. And what, if anything, was done at that time? Civ. 1971-410 AFFIDAVIT I Jerome Rosenberg being duly sworn, says and deposes. That I lock in cell CW-19 located in HBZ, that on February 22, 1972 at about 1:30 or there about, Milton Jones another in- mate was brought pass my cell to go to the yard by two officers, subsequently within a minute thereafter inmate Jones was be- ing punched in the neck by officer Miller and another officer kneed him in the back and side. This occurred within five feet from my cell and I saw it all clearly shortly thereafter both of- ficers brought him back saying he wasn’t going to the yard, near his cell he was again pushed and hit, other inmates saw that, I could not, but I heard it. Inmate Jones locks in 11 cell. Subse- quently I called the one officer whom I did not know by name and asked him for his badge number and name. He asked me why, I explained that I was acting as and in the capacity of a legal advisor to the other inmate whom I saw you beat and that I was going to file charges against them in violation of an in- junction signed by Judge Curtin, whereas the officer said “fuck Curtin’s” order and the sergant said not to give my number or name. I give this true affidavit of my own free will. /s/Jerome Rosenberg Jerome Rosenberg # 21478 Box 149 Attica, NY 1401] Sworn to before me this 23 day of February 1972 /s/Edward V. Brady Edward V. Brady Notary Public, New York State Residing in Genesee County Commission Expires March 30, 1973 eee en A-262 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Nos. 686, 687, 688 - August Term 1990 Argued: January 10, 199] Decided: February 27, 1991 Docket Nos. 90-2287, -2289, -229] AKIL AL-JUNDI, et al., Plaintiffs-Appellees, «Ve VINCENT MANCUSI, KARL PFEIL, RUSSELL G. OSWALD, Defendants-Appellants, THE ESTATE OF NELSON A. ROCKEFELLER, et al., | Defendants. Before: KAUFMAN, NEWMAN, and McLAUGHLIN, Circuit Judges. PETITION FOR REARGUMENT AND SUGGESTION FOR HEARING IN BANC FOR DEFENDANT-APPELLANT VINCENT MANCUSI RICHARD E. MOOT DAMON & MOREY MICHELLE C. LOMBINO __ 1000 Cathedral Place 298 Main Street Buffalo, New York 14202 Dated: March 12, 1991 Telephone: (716) 856-5500 A-263 Reasons for Panel Rehearing 1. The panel misapprehended defendant Mancusi’s Argu- ment. Mancusi argued that the Supreme Court’s holding in Whitley v. Albers, 475 U.S. 312, 320 (1986) which protected Governor Rockefeller under the doctrine of qualified immunity from any liability for the alleged brutality and reprisals during the rehousing, a fortiori protected the defendant Mancusi. (Man- cusi Brief (“Man. Br.”) 11, 12.) The Governor put Major Monahan in charge of the retaking which included the return of the prisoners to their cells. This was when the reprisals allegedly took place. Mancusi had no command or authority over this phase of the retaking. (JA 94-101, 276, 790, 791.) His respon- sibility was custodial after the prisoners had been returned to their cells. (JA 467.) 2. Defendant Mancusi never argued that the Victory and Rosenberg affidavits “are unworthy of belief’ because “the testimony of criminals is incredible as a matter of flaw when it accuses them [prison officials] of unconstitutional conduct.” It was instead defendant Mancusi’s argument: (i) that the affidavits were unworthy of belief as a matter of law because the overwhelming contem- porary evidence of eyewitnesses is to the contrary (Man. Br., 15); (ii) the affidavits were taken by plaintiffs’ counsel from their own clients only days prior to the argu- ment on the motion for summary judgment and more than eighteen years after the events recounted (Man. Br., 4,7); (iii) the affiants were interested parties in the ac- tion, each claiming to recover $1 million in damages on the basis of their affidavits (Man. Br., 9; JA 731); (iv) under the Supreme Court Celotex Trilogy (Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. A, A-264 2548, 91 L. Ed. 2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed 2d 202 (1986); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)), such affidavits can- not overcome years of discovery which produced no issue of fact. (Man. Br., 9.) 3. The panel overlooked the following undisputed facts: (i) the factual finding of the exhaustive MacKay Commission that Mr. Mancusi remained at this desk and did not have knowledge of the alleged reprisals (Man. Br., 16; JA 790-791); (ii) photographs which establish that neither A nor D Yard were visible from Mr. Mancusi’s office (JA 779, 804-805); (iii) the admission by plaintiffs’ counsel themselves in their prior memorandum that Mancusi never went into the prison on the day of the reprisals (Man. Br., 7; JA 779); (iv) that plaintiffs’ counsel studied millions of si documents for thousands of hours over 2 1/2 years but, absent the Victory and Rosenberg affidavits, had no evidence whatsoever that Mr. Mancusi left his office or had personal knowledge of the reprisals which allegedly took place while Major Monahan and the troopers were completing the retaking by returning the prisoners to their cells. (Man. Br., 5; JA 779.) Reasons for Rehearing In Banc 1. The application of the Albers qualified immunity doc- trine by the prior panel correctly granted qualified immunity to the Rockefeller Estate. The present panel misapplied the doc- trine in denying the same relief to defendant Mancusi. A-265 2. The panel failed to follow the Supreme Court’s teaching of the Celotex trilogy. In holding that the Victory and Rosenberg affidavits presented a question for the jury, the panel disregarded the overwhelming evidence that Mr. Mancusi did not witness the reprisals (including plaintiffs’ own earlier admissions) in favor of the non-probative affidavits. 3. The panel improperly failed to exercise its discretionary pendant jurisdiction to consider the other grounds for dismissal urged by defendant Mancusi. This case, if remanded for a trial which results in a verdict against the defendant Mancusi, will again require this Court to consider the sarne arguments for dismissal on behalf of Mr. Mancusi which the panel refused to entertain on this appeal. 4. The intervening trial will be lengthy, expensive and rekin- dle the Attica fires of racial hatred, al! to no avail if this Court ultimately concurs that this litigation now in its seventeenth year should long since have ended. 5. In any event, with the dismissal of this suit against Governor Rockefeller’s estate, any verdict against the remain- ing individual defendants would be a pyrrhic victory and pro- duce no meaningful result on behalf of the 1,200 members of the plaintiff class who seek $4 billion in damages. A verdict against defendant Mancusi, if ultimately affirmed upon appeal, would only wipe out the modest retirement savings of Mr. and Mrs. Mancusi and add the destruction of their personal lives to the other sufferings of the Attica rebellion. 6. The course which the panel’s decision has set for con- tinued litigation of this case will bring no meaningful good to the litigants on either side. The present decision, if not set aside and the case dismissed, also will bring public discredit to the Federal judicial system of which this Court is such an impor- tant part. The Pertinent Facts The overall factual setting of this case is best found, as the panel noted, in reading this Court’s prior opinions in Inmates A-266 of Attica Correctional Facility v. Rockefeller, 453 F. 2nd 12, 22-24 (2nd Circuit 1971) and Al-Jundi v. Estate of Rockefeller, 885 F. 2nd 1061 (2nd Circuit 1989) (“Rockefeller I”). The per- tinent facts for this Petition for Reargument and Suggestion for Hearing In Banc can be briefly stated. We begin with the names of the principal defendants and the role of each of them in the Attica rebellion. Governor Rockefeller — The Governor ordered the retaking by force. He put Major Monahan of the State Police in charge. (JA 34,35.) He was in constant telephone communication with his personal representative, Mr. Douglas, Secretary to the Gover- nor, who was at Attica throughout Saturday, Sunday and Mon- day, the day of the retaking. Mr. Douglas gave the Governor an eyewitness description over the telephone of what was hap- pening during this period. (JA 294.) Contemporary affidavits made following the rebellion stated that the Governor had been advised a massacre would likely result (JA 293) and that “rumors of inmate atrocities and the growing anger, frustration and racial hatred, any black skin inside the prison would be treated as enemy skin.” (JA 292.) The Governor is now dead. A prior panel in Rockefeller I held that the Rockefeller Estate, notwithstand- ing the Governor's control and knowledge of events, was pro- tected by the doctrine of qualified immunity. The Court in Rockefeller I dismissed all claims against the estate including damages for the alleged brutal reprisals carried out by Major Monahan’s men. Russell G. Oswald — was Commissioner of the Department of Correctional Services of the State of New York of which the Attica Correctional Facility was only a part. He was the senior corrections official on the scene. (Al-Jundi v. Mancusi, Pfeil, and Oswald, Nos. 686, 687, 688, slip op. at 2200 (2d Cir. February 27, 1991)). He is now dead, having died a few days after receiving news of the panel’s decision. He and his widow have no significant assets. Walter Dunbar — was Executive Deputy Commissioner of the Department of Correctional Services of the State of New A-267 York. As Mr. Oswald’s Deputy, he was in the prison during the retaking and the return of prisoners to their cells under the direc- tion of Major Monahan. He is now dead. His estate has not been made a party to the action. Wim Van Eekeren — was Deputy Commissioner for Programs at the Department of Correctional Services under Oswald. He was present at the scene during the events of the rebellion. His right arm and leg are paralyzed from a stroke and he requires a brace to walk. He was never properly served or made a party to the action. John C. Miller — was Chief Inspector of the Division of State Police and the top ranking State Police officer on the scene. He is now dead. His estate has not been substituted as a party. John Monahan — was Commander of Troop A of the New York State Police, Batavia, New York. He and the men under his command were ordered by the Governor to retake the prison and return the prisoners to their cells. He and his men were in control of D Yard where the rebellion was subdued and A Yard where the prisoners were stripped, searched and allegedly brutalized while being returned to their cells in the final phase of the retaking. Major Monahan is dead. Inconceivably, the District Court has elected to substitute his no-asset estate as a defendant in this action. Major General John C. Baker — was Commander of the Na- tional Guard of the State of New York and Chief of Staff to defendant Rockefeller. He was responsible for the medical care during the retaking. His Motion for Summary Judgment was “in all respects granted” and the complaint dismissed against him more than 10 years ago by order of the court dated Oc- tober 20, 1980. He has had several! strokes and is no longer able to testify. A. C. O’Hara — was Commissioner of the Office of General Services of the State of New York. He is dead and his estate has not been made a party. A-268 Vincent Mancusi — was Superintendent of the Attica Cor- rectional Facility. Superintendent Mancusi was replaced by Commissioner Oswald who took command of the Attica facili- ty when he arrived days before the retaking. (JA 276.) Mr. Man- cusi, under Oswald’s command, remained responsible for the custody of those prisoners who remained in their cells and were not a part of the rebellion. (JA 467.) The MacKay Commission, after interviewing 2,594 eyewitnesses, found as a fact that Superintendent Mancusi remained in his office throughout the retaking, including the return of the prisoners to their cells and that Mr. Mancusi had no knowledge of the reprisals. (JA 790,791.) Karl Pfeil — was Assistant Deputy Superintendent of the At- tica Correctional Facility. His role was to assist Superintendent Mancusi with respect to the custodial care of the inmates. Robert F. Fischer — was Deputy State Attorney General of the State of New York in charge of investigating the uprising and subsequent prosecutions. He and other named defendants are no longer parties to the action. The “bad faith prosecutions” which were allegedly the Deputy State Attorney General's responsibility have been dismissed. All other defendants — all other named defendants either were not made parties to the action or have subsequently been dismissed as parties. It can no longer be fairly said that this is a suit against “senior correction officials of the State of New York.” Al-Jundi v. Man- cusi, Pfeil, and Oswald, Nos. 686, 687, 688, slip op. at 2194. All of Mr. Mancusi’s superiors are now dead or the action has been dismissed against them. Only Mr. Mancusi and Mr. Pfeil remain as defendants individually (rather than in any official capacity). There is no claim against the State official or the State, nor can there be. Will v. Michigan Dept. of State Police, 109 S. Ct. 2304 (1989). The facts with respect to the defendant, Superintendent Man- cusi, are stated with particularity and without equivocation in A-269 his affidavit. (JA 94-101.) He was at no time personally involv- ed in the retaking of the prison or the return of the prisoners to their cells. (JA 46, 97, 276, 790, 791.) He had no knowledge of the alleged reprisals and brutality committed in D Yard or A Yard by men under the command of Major Monahan. (JA 790, 791.) His affidavit is in all respects sustained by the fac- tual finding of the MacKay Commission that he remained in his office and had no knowledge of the reprisals. (JA 790, 791.) The MacKay Commission finding on behalf of Superintendent Mancusi was supported by the interviews of 1,600 inmates, 400-450 correction officers, 270 State personnel who participated and had direct knowledge of the riot, 100 sheriffs, under-sheriffs and deputies who were inside the walls, Commissioner Oswald, Deputy Commissioner Dunbar, 24 citizen observers, 200 Na- tional Guardsmen and their commanding officer, General Baker, all of whom had firsthand knowledge of the material facts as well as Governor Rockefeller and his staff. (JA 796-802.) Moreover, plaintiffs’ counsel themselves earlier admitted that Mr. Mancusi was not in the prison or on the catwalk during the day when the reprisals took place. (JA 779.) Legal Argument The Albers doctrine, which a prior panel found in Rockefeller I protected the Governor's estate under the doctrine of qualified immunity, also protects the defendant Superintendent Mancusi. In an attempt to avoid this clear result, plaintiffs, for the first time in the seventeen year history of this litigation, clairn in direct contradiction to their own earlier admissions that Mr. Mancusi witnessed the reprisals. When weighed against all of the evidence ' The prompt trial ordered by the panel will not be so prompt if defendant Mancusi is given an opportunity to meet the last minute claim of the Victory and Rosenberg affidavits. A reasonable effort in preparation would require an attempt to interview these 2594 witnesses whose testimony supported the McKay finding that Mr. Mancusi never left his office. Counsel for defendant Mancusi stated at the argument that further discovery would be needed if the Victory and Rosenberg affidavits were found probative. A-270 in this case, plaintiffs’ abrupt change in position is revealed for what it is, a recent fabrication to avoid summary judgment. It should not be countenanced by this panel. All of the probative evidence submitted in this case shows that defendant Mancusi was not a witness to the reprisals. In addi- tion to Defendant Mancusi’s own affidavit and the findings of the MacKay Commission, plaintiffs’ counsel has admitted in its memorandum in opposition to the November 26, 1987 Motion for Summary Judgment of the Estate of Rockefeller that defen- dant Mancusi was not in the prison or on the catwalk during the day when the reprisals took place. (JA 779.) Plaintiffs’ counsel signed its memorandum pursuant to Rule ll of the Federai Rules of Civil Procedure thereby certifying that to the best of the signer’s knowledge, information and belief formed after reasonable inquiry it is well grounded in fact . . . and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. Rule 11 FRCP. Indeed, plaintiffs’ counsel have affirmatively stated that they examined millions of documents for thousands of hours over a 2-1/2 year period prior to making this admission. (JA 779.) This Court can accept these admissions by plaintiffs’ counsel as proof that Mancusi was not a witness to the reprisals. See, e.g., United States v. McKeon, 738 F.2d 26, 31 (2d Cir. 1984) (the law is quite clear that superseded pleadings constitute the admissions of a party-opponent and are admissible in the case in which they were originally filed as well as in any subsequent litigation in- volving that party); Kunglig Jarnvagsstyrelsen v. Dexter & Carpenter, 32 F.2d 195, 198 (2d Cir. 1929) (a pleading prepared by an attorney is an admission by one presumptively authoriz- ed to speak for his principal). Having made their admissions and having done so concededly after much examination, plaintiffs nonetheless now claim in A-271 direct contradiction of their earlier admissions, that Mancusi was on the catwalk. In alleged support of their new position, plaintiffs offer as evidence the perfunctory and self-serving af- fidavits of plaintiffs Victory and Rosenberg. Hence, plaintiffs completely contradict their earlier statements not on the basis of any newly discovered facts or testimony, but on their own conclusory statements which could have been raised by them during the 1987 Motion for Summary Judgment by the Estate of Rockefeller. Instead, in 1987, plaintiffs alleged “facts” which supported their theory of the case at the time. Today, they ap- parently find another version of the “facts” preferable for their present purposes. As this Court noted in McKeon, A party . . . cannot advance one version of the facts in its pleadings, conclude that its interests would be better served by a different version, safe in the belief that the trier of fact will never learn of the change in stories. United States v. McKeon, 738 F.2d, 31. In the present case, the plaintiffs have asked the panel to allow them this convenient alteration of the “facts.” By holding that the Rosenberg and Victory affidavits warrant a full-blown trial, the panel has allowed plaintiffs to defeat defendant Mancusi’s motion for summary judgment on the basis of alleged “evidence” which fails to meet the test of the Supreme Court’s Celotex trilogy. The Supreme Court’s decisions in the Celotex trilogy — Matsushita, 475 U.S. 574; Anderson, 477 U.S. 242; and Celotex, 477 U.S. 317 — are a “signal to the lower courts that summary judgment can be relied upon more so than in the past to weed out frivolous lawsuits and avoid wasteful trials.” 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure, §2727 (2d Ed. 1983), pocket part, 28 (1990). In Celotex, the Court held that summary judgment is not a disfavored procedural shortcut but a “just, speedy, and inexpensive” determination of every action. Celotex, 477 U.S., 327. The Court noted that A-272 Rule 56 must be construed with due regard not only for the rights of persons asserting claims and defenses that are adequately based in fact to have those claims and defenses tried by a jury, but also for the rights of persons opposing such claims and defenses to demonstrate in the manner provided by the rule, prior to trial, that the claims and defenses have no factual basis. Celotex, 477 U.S., 329. In Matsushita, the Court held that “If the factual context renders respondents’ claim implausible . . . respondents must come forward with more persuasive evidence to support their claim than would otherwise be necessary.” Matsushita, 475 U.S., 586. The Court also concluded that [Where the record taken as a whole could not lead a rational trier of the fact to find for the nonmoving party there is no “genuine issue for trial.” Jd., 586. In the present case, the factual context clearly requires plain- tiffs to come forward with more persuasive evidence than the Victory and Rosenberg affidavits. These affidavits are unworthy of belief as a matter of law not because they are the testimony of convicted criminals? but because the overwhelming evidence of 2,594 witnesses who testified reasonably contemporaneous- ly with the events of the rebellion are contrary to the self-serving affidavits of individual plaintiffs in the action which are made for the first time almost twenty years after the event. In Anderson, the last case in the Celotex trilogy, the Supreme Court rejected an argument that summary judgment can be defeated by any alleged evidence, regardless of its caliber or quantity. The Court held: ? An examination of all three defendant-appellants’ briefs and the transcript of oral argument will show that at no point did appellants make this argu- ment. It was an argument offered by Judge Newman during questioning from the bench. It has no support in the record. A-273 [There is no issue for trial unless there is sufficient evidence favoring the noumoving party for a jury to return a verdict for that party. . . If the evidence is merely colorable . . . or is not significantly probative . . . summary judgment may be granted. Anderson, 577 U.S., 249-250 [citations omitted]. The Victory and Rosenberg affidavits not only are not “significantly probative” but are at odds with plaintiffs’ earlier admissions. These affidavits are therefore insufficient to defeat defendant Mancusi’s motion for summary judgment. See, Albert- son v. T.J. Stevenson & Co., Inc., 749 F.2d 223, 228 (5th Cir. 1984) (the nonmovant cannot manufacture a disputed material fact where none exists. Thus, the nonmovant cannot defeat a motion for summary judgment by submitting an affidavit which directly contradicts, without explanation, his previous testimony). The Supreme Court also held in Anderson that the standard for granting summary judgment mirrors the standard for a direct verdict under Federal Rule of Civil Procedure 50(a), which is that the trial _ judge must direct a verdict if, under the governing law, there can be but one reasonable conclusion as to the verdict. Anderson, 477 U.S., 250. The overwhelming evidence con- stituting the record on this appeal is contrary to the Victory and Rosenberg affidavits. If remanded for trial, there can be but one reasonable conclusion as to the verdict. Anderson dictates the same standard shall be applied here and that as a matter of law, the Victory and Rosenberg affidavits are not sufficient- ly probative to raise a genuine issue of fact. Defendant Man- cusi's Motion for Summary Judgment therefore should be granted. A-274 Conclusion The prior panel in Rockefeller | correctly afforded the Gover- nor the defense of qualified immunity. Mr. Mancusi is entitled to the same defense. Under the extraordinary circumstances of this case, the self- serving affidavits of individual plaintiffs are not sufficient to overcome the overwhelming testimony and the facts reported by the official MacKay report which was based upon contrary contemporary sworn testimony of 2,594 witnesses. Nor may these affidavits be used to contradict plaintiffs’ own prior admissions. It is respectfully urged that the defendant Mancusi be granted reargument of this appeal and it is further respectfully suggested that the hearing be in Banc. Dated: March 12, 199] /s/Richard E. Moot Richard E. Moot DAMON & MOREY 1000 Cathedral Place 298 Main Street Buffalo, New York 14202 (716) 856-5500 Attorneys for Defendant Vincent Mancusi A-275 CERTIFICATE OF SERVICE I, RICHARD E. MOOT certify that I served the Petition for Reargument and Suggestion of Hearing In Banc for defendant- appellant Vincent Mancusi on all counsel to this Appeal by mail- ing two copies of the same on March 12, 199] to each of them as their names and addresses appear below; Elizabeth M. Fink, Dennis Cunningham 294 Atlantic Avenue Brooklyn, New York 1120] Michael L. Deutsch People’s Law Office 1180 North Milwaukee Chicago, Illinois 60622 John H. Stenger Jaeckle, Fleischmann & Mugel 800 Norstar Building Buffalo, New York 14202 Irving C. Maghran, Jr. 1127 Liberty Building Buffalo, New York 14202 /s/Richard E. Moot Richard E. Moot Dated: March 12, 199] A-276 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK AKIL AL-JUNDI, et al., Plaintiffs, -V- Civil No. 75-132E THE ESTATE OF NELSON A. ROCKEFELLER, Defendants. PLAINTIFFS’ PRE-TRIAL STATEMENT Now come the plaintiffs, by their undersigned counsel, and submit the within pre-trial statement, pursuant to Rule 16(d) of the Local Rules for the Western District of New York. Plain- tiffs wish to draw the attention of the Court and defendants to the motion in limine contained in Section II-B-2 hereof, on page 33, and to notify the defense of plaintiffs’ intention to of- fer in evidence various official reports, listed in Sec. IV-II-I, at p.56, pursuant to Rules 803(8)(C) and 803(24). Additionally, plaintiffs request that, if they have not already done so, defendants be required by the Court to submit their own pre-trial statements, forthwith. I. STATEMENT OF FACTS A. Undisputed Facts 1. Defendant John Monahan was a major in the New York State Police and Commander in charge of Troop A, Batavia, New York. He formulated the assault plan, and was in direct command of the force of troopers, Genesee Park police and guards which stormed the D-Block yard at Attica Prison on 9/13/71. 2. After an issue arose about the respective jurisdiction of the State Police and Corrections Department officers, the local com- manders of the two agencies, Major Monahan and Warden Vin- cent Mancusi, co-executed the following written agreement: A-277 In order to clarify the orders concerning command, a joint operation is being carried on at the Attica Corr. Facility by the Dept. of Corr. Services and the State Police. In the event of the need for a custodial deci- sion, command remains with the Correctional employees, whereas in the need for command of police matters such as an assault thrust the command will rest with the State Police. Each agency will cooperate with each other .. all times. /s/ Vincent R. Mancusi /s/ John W. Monahan 3. As of September, 1971, there was a pre-set plan prescrib- ing use of the National Guard for the control of civil disorders with minimal violence, which was known to Monahan and other State Police officials, but was ignored in planning and executing the retaking of the prison. 4. The plan, known as “Operation Plan Skyhawk”, provided for strict limits on the use of deadly force, required strong com- mand supervision — particularly as to the use of weapons — and prohibited the use of .00 buckshot in shotguns. 5. The riot control training of the state police was limited to tactics for use in open areas, where rioters could be dispersed by using gas and batons. 6. The troopers had no training or practice in operations where they would function in squads or platoons. 7. Defendant Monahan knew the State Police had been given no training or practice to prepare them for firing weapons through teargas. 8. In carrying out the retaking plan, no effort was made by Monahan to screen the troopers who would participate in order to determine their individual suitability to be involved in the assault. A-278 9. Other than the .270 rifle marksmen who were selected sole- ly for their weapons prowess, all troopers were considered to be equally available and equally qualified for participation in the assault. 10. No inquiry was made by Monahan or those in his com- mand as to the individual troopers’ prior military or riot con- trol experience. 11. No attempt was made by Monahan or his command to identify individual troopers who had personal relationships with correctional officers or hostages. 12. Less than one-third of one per cent of the State Police were Black or Latin in September, 1971, and no Blacks or Latins were included in the Attica assault force. 13. Major Monahan’s assault plan did not provide for a prior warning to the prisoners that there would be an armed assault, and no warning was given. 14. The plan contained no provision or means for orders by commanders or supervisors which would start, stop, or other- wise control the use of gunfire by the officers in the various units, or “details”, of the assault force. 15. Few of the troopers had radios, and the large details con- tained no subordinate leaders to relay commands. Some detail commanders were not even aware which men were assigned to their command. 16. Since the troopers wore gas masks which were not equip- ped with communication devices, and no hand signals were ar- ranged, meaningful communication among members of the assault force was essentially impossible. 17. The detail commanders were the only ones in a position to receive orders to cease fire and it was physically impossible for them to communicate to other members. A-279 18. The decision to use force during the assault, including deadly force, was left to the discretion of each individual officer. 19. While some men were instructed to fire only at inmates engaged in overt, hostile acts, no one received any specific guidance as to what constituted such acts. 20. Briefing of the assault force was done in general terms to large groups en masse, with no effort or time allowed to en- sure that each man understood his obligations. Major Monahan established no specific procedure for instructing the individual troopers on the action and behavior expected of them during the assault. 21. The one order approved by Monahan which was widely disseminated was for officers to avoid hand to hand combat, so as to prevent at all costs any weapons being taken by prisoners. 22. Throughout the waiting days, numerous racist comments and threats were directed by the waiting assault force toward the rebelling inmates, the observers, and on several occasions even Commissioner Oswald. The exchange of abusive language between inmates on the catwalks and the troopers and correc- tion officers continued and escalated. 23. By the end of Saturday night, September 11, 1971, many troopers had become tired, restless, frustrated and increasingly angry. 24. On Sunday before the assault a Spanish-speaking prisoner in C-Block, who had traded abusive comments with a trooper the day before, was taken out of his cell and beaten up by a trooper while other police and correctional personnel stood by. 25. By Monday morning, the troopers and guards who would form the attack force were even more exhausted and frustrated, and further enraged by false rumors of atrocities against hostages by prisoners. A-280 26. Neither the defendants or anyone in their command took any steps to dispel these rumors, although they were fully aware that no hostages were harmed after the initial rebellion on September 9, 1971. 27. The hostages were interviewed by members of the press as late as September 12, 1971, and reaffirmed that they were being treated in a humane way. 28. The hostages when interviewed on September 12, 1971, expressed the belief that an armed assault would result in their deaths. 29. In approving the decision to retake the prison by force, Governor Rockefeller made one specific order as to its implemen- tation: that members of the Corrections Department were to be excluded from the assault force. The Governor believed it was “humanly impossible” for the prison guards not to be “emo- tionally involved”, because their colleagues had been injured and taken hostage, so that the risk of reprisals against the prisoners by the guards was too great. Just two guards were to accom- pany the assault force, solely to identify the hostages. 30. Major Monahan was specifically told of Gov. Rockefeller’s order by Supt. Miller, and considered it binding on him. 31. The State Police commanders were never given direct orders to exclude correction officers from entering the prison as part of the assault force. 32. Warden Mancusi and Coinmissioner Oswald were also specifically advised of the order excluding correction officers but never communicated that order to their subordinates. 33. Instead, Mancusi gave the order that corrections officers were to accompany the troopers as “back-up”, and to act or fire only when directed to do so by a member of the State Police. 34. Major Monahan obtained the CS gas and the helicopter which dropped the gas from the National Guard. He did not ask for or obtain anything else from the National Guard, not military expertise, ammunition, weapons, or supplies. A-281 35. The CS gas used in the helicopter drop was known to in- capacitate humans in 10-15 seconds by putting them “on the ground”, leaving them immobilized and defenseless. 36. Major Monahan knew that his assault plan offered no hope of preventing the prisoners from harming or killing the hostages if they wished to do so. 37. The prisoners in D yard had no firearms. 38. The troopers and guards began shooting at the same mo- ment the gas was dropped into the yard by helicopter. 39. The second helicopter did not begin to broadcast the state- ment, wi.ich directed the prisoners to put their hands on their heads and surrender, and assured them they would “not be harmed”, until well after the shooting was underway. 40. The warning was given only in English even though the defendants knew that there were a substantial number of prisoners who spoke only Spanish. 41. The State Police used shotgun shells loaded with .00 buckshot, the largest gauge. One round of .00 buckshot con- tains 9-12 pellets. Fired at a distance of 50 yards, three to five of the pellets will go wide of a human target. The pellets would eventually spread in a 30 yard radius. In the crowded and con- fined area of D yard, the firing of such ammunition was cer- tain to hit unintended victims. 42. Major Monahan made no request that less lethal bird- shot be obtained, and made no other order as to type of am- munition to be used. 43. Major Monahan’s assault plan contained no specific safeguards to avoid hitting unresisting inmates with stray gunfire. 44. State Police sharpshooters used .270 caliber, unjacketed (dum dum) bullets, which are designed to explode into fragments upon impact, so as to cause maximum damage and gaping in- ternal wounds to human targets. They are outlawed by the Geneva Convention. A-282 45. Major Monahan was aware of the nature of this ammunition. 46. The shooting lasted between for at least six minutes. Thirty-nine people, including 29 prisoners and 10 hostages were killed or died !ater, and an additional 85 prisoners and five hostages were wounded, so that more than ten percent of the people in the yard were struck with gunfire. The majority of the wounded were hit in the yard with stray .00 pellets. 47. State Police records show that between 2,349 and 3,132 lethal bullets or pellets, including eight rounds of .357, 27 rounds of .38, 68 rounds of .270, and 261 rounds of 12-gauge .00, were fired in or into the prison yard. 48. Forty-six .00 pellets were removed from 32 bodies. .357 magnum pistol slugs were removed from 3 bodies. Fourteen .270 high caliber bullets were removed from 14 bodies. Four single shotgun slugs, known as “deerslugs”, were removed from three bodies. 49. The troopers themselves acknowledged firing 364 rounds, correction officers 74 rounds, Genesee County Park personnel 12 rounds. 50. Only the National Guard, which did no firing, made a physical inventory of ammunition provided and returned. 51. Monahan’s assault plan provided no procedures for deter- mining individual accountability for shots fired, or which of- ficers carried which weapons or were issued which ammuni- tion, thus assuring anonymity to members of the assault force from subsequent identification by ballistic examinations. 52. New York State Police Manual required each trooper to account for each shot he fires. 53. The police failed to follow their standard procedure for collecting and tagging expended cartridges at Attica. 54. The state police failed to follow their standard procedures for executing standardized forms regulating the use of weapons. A-283 55. The state police video and photo documentation failed to record the shooting by the assault force. 56. Omitted. 57. The state troopers and correction officers who fired their weapons gave exaggerated, embellished and fabricated accounts of the circumstances surrounding their discharge of weapons. 58. In one instance Monahan was part of a decision to allow a State Trooper (Barbolini) who had admitted that he lied about a weapon he said he seized from an inmate, and fabricated a story of why he shot and killed an inmate, to simply resign with no further action against him. 59. Supervisory and investigative personnel including Monahan ignored standard state police procedure when they failed to record the locations of the dead and wounded, and the ammunition recovered, they buried all of the physical evidence left in D yard, thereby ruining it. 60. Supervisory and investigative personnel including Major Monahan allowed individual troopers to move items found in the yard. 61. Major Monahan burned the writings, memoranda, notes, correspondence and other materials pertaining to Attica which he had in his possession, including his notes on the assault plan, in the fireplace in his home after the discharge of the Grand Jury, despite his knowledge that he was a defendant in the instant case and other civil lawsuits relating to the assault which were still pending. 62. Russell Oswald was the Commissioner of Corrections for the State of New York, the ultimate man in charge of all state operations at Attica during the days between September 9 and 18, 1971. 63. Vincent Mancusi was the warden at Attica Prison and was the direct supervisor of all correctional employees at Attica Prison between September 9-18, 1971. A-284 64. Both Oswald and Mancusi were privy to discussions of the possible storming of the prison yard during the first four days of the rebellion, and to the plan for retaking ultimately devised by Major Monahan. In particular, they knew of the firepower which would be unleashed against the prisoners in D yard. 65. Oswald knew of the tension, resentment and deteriorating morale of the assault force. 66. Oswald himself was the object of taunts and racial in- sults from Attica corrections officers for his initial decisiun to negotiate with the prisoners. 67. Oswald knew of the rumors of supposed atrocities by prisoners against hostages which were circulating among members of the assault force. 68. Oswald knew that these rumors of atrocities were false but did nothing to counteract them. 69. Oswald understood and expected that the assault would result in deaths and injuries. 70. Oswald's only act to prepare for the medical needs which would arise from the assault was to speak with Mancusi about the availability of the prison doctors, Sternberg and Williams. 71. Oswald knew that one of the main grievances of the rebell- ing inmates was the incompetent and contemptuous medical care provided by these doctors. 72. Williams and Sternberg were the only doctors present at Attica at the time of the assault. 73. Dr. Williams was not told there would be an armed assault or what if anything to expect in the aftermath of an assault. He was not consulted about what types of equipment, supplies or medicines might be necessary. A-285 74. Oswald said he assumed the National Guard wouid also provide medical care, but he took no steps to confirm that ex- pectation with any officiai of the Guard itself, or to ensure that the National Guard medical teams or other outside doctors would be at the prison when the assault began. 75. The National Guard medical team was still on its way to the prison when the order was given to begin the assault, and did not arrive until after the shooting was over. 76. General Baker, commander of the Guard, was never spoken to by General O’Hara or anyone else on behalf of Mr. Oswald about arranging medical care prior to the assault. 77. The National Guard was never assigned any specific area of responsibility, or asked to be responsible for preparing medical facilities for the wounded and injured. They had received no briefing or information as to the nature of the assault or the medical problems it was expected to cause, and thus had no in- dication of the medical resources which would be needed to deal with the aftermath of the assault. 78. No arrangement was made to have medical supplies available immediately after the assault; no blood, blood plasma or surgical equipment were available, and no arrangements had been made to provide them. 79. Dr. Worthington Schenk, chief of surgery at Meyer Memorial Hospital, the outside hospital to which prisoners with serious medical problems were normally taken, was not con- tacted about the potential need for medical and surgical ser- vices until Warden Mancusi telephoned him on Monday morn- ing, at least one half hour after the assault. 80. In the phone call, Defendant Mancusi did not give Dr. Schenk any information about the nature or specifics of the disaster-type medical situation which had arisen in the wake of the widespread shooting during the assauit. Instead he simply requested the doctor to come out to the prison to assess the situation. A-286 81. When Dr. Schenk arrived, at about 11:00 a.m., he saw immediately that he would need several surgical teams and far more equipment, supplies and drugs than were available. 82. It was close to 1:00 p.m. when the necessary equipment and personnel arrived from Meyer Memorial, and it took the doctors another hour to set up and prepare for the first emergen- cy operations. 83. Even after the surgical equipment had been set up, there was space for no more than three operations to go on at the same time. Consequently, many inmates with gunshot wounds were not operated on until the next day. 84. There was no running water in the prison hospital on the morning of the assault. 85. Regardless of any assessment by the doctors, each case of a prisoner with an injury requiring hospital care had to be per- sonally reviewed and approved by Warden Mancusi before the prisoner could be released for transportation to Meyer Hospital. The process was so lengthy that the first prisoner did not arrive at the hospital until 5:30 in the evening of the day of the assault, almost eight hours after the shootings. 86. Extensive preparations were made to ensure prompt medical attention for the hostages after the assault, including separate ambulances manned by medical personnel for each in- dividual hostage, which were waiting outside the prison to im- mediately remove them to local hospitals, whose staffs had been alerted and were awaiting their arrival. 87. Defendants would not consider ordering removal of wounded prisoners for treatment at the nearby local hospitals, despite their proximity and apparent readiness to deal with in- juries which occurred in the retaking. 88. Oswald was aware of the serious potential for physical reprisals against the prisoners in the retaking of the prison and rehousing of the prisoners. He knew of the prisoners’ claim that A-287 there had been brutal retaliations the year before after a minor disturbance at the Auburn prison, and he knew in particular that fear of reprisals, and guarantees of protection against them, was the main concern of the prisoners in the negotiations. 89. Oswald specifically knew that the reason the correction officers were to be kept out of the assault was concern about their ability to control their rage against the prisoners, but he established no plan for the supervision of the officers during the rehousing of the prisoners. 90. Oswald established no process to brief corrections officers as to their responsibility to act with restraint, or to screen cor- rection officers who were emotionally unfit to participate in the rehousing process. 91. Eight days after the assault, members of the Goldman Commission examined 700 inmates who had been in the yard on September 13, 1971, and determined that 45% of those ex- amined still bore physical bruises, lacerations, broken bones, and other marks on their bodies, in evidence of the physical reprisals they had suffered. 92. All inmates had their personal property destroyed, in- cluding but not limited to eyeglasses, false teeth, watches and irreplaceable legal papers. 93. Oswald personally toured the prison about an hour after the shooting. He later falsely told the McKay Commission that he had not gone inside until about 4:00 p.m. 94. Oswald was told by Robert Douglass in the presence of John Dunne that Dunne, on a tour of the yard shortly after noon on Monday, had observed acts of brutality against the defenseless prisoners; Douglass admonished Oswald on the importance of avoiding further reprisals. 95. Dunne was “shocked, disgusted and horrified” by what he saw. A-288 96. No action was taken by officials in response to Dunne’s report. 97. Commissioner Oswald characterized the brutalization of the prisoners in the A-Tunnel gauntlet as “a good, old-fashioned fraternity hazing”. 98. Warden Mancusi was the direct supervisor in charge of the correction officers and the rehousing process. 99. Mancusi knew that the correction officers were emotional- ly upset before the assault. 100. Mancusi failed to establish any plan to supervise the rehousing of the prisoners, or any policy of briefing the correc- tion officers prior to the rehousing operation. 101. Mancusi allowed his correction officers to join in the assault, as “backup” to the state troopers, despite the Gover- nor’s order that they should be excluded because of their emo- tional condition. 102. Mancusi ordered that the alleged ringleaders be marked with an X on their back and transferred to HBZ. 103. After the assault, Mancusi saw a nude prisoner being run towards “Z” housing block, but he failed to make any personal inquiry as to what was happening. 104. Mancusi received several reports of guard “over-reaction” while he was in the administration office. 105. Numerous other reports of brutality and improper con- duct were radioed to the administration office. 106. Defendant Karl Pfeil was the Assistant Deputy Superintendent, a top subordinate of Warden Mancusi. He was specifically assigned to supervise the rehousing of prisoners. A-289 107. Pfeil went to A yard for half an hour, at about 11:00 a.m. on the morning of September 13. He then went to identify the dead hostages. Then he went home, and returned at about 6:00 p.m. 108. The National Guard medics who were in the prison all day on the September 13, 1971, witnessed countless acts of brutality, including but not limited to the beatings with sticks, clubs, gun butts and screwdrivers, the gauntlets in A block, A tunnel and on the way to HBZ, beatings in the hospital, and the torture of a number of plaintiffs. 109. Mancusi and Pfeil toured the prison throughout the night of September 13, 1971 through September 14, 1971. 110. Pfeil was on duty at the prison on the night of the 13th, and refused to obey a federal court order granting access to the prison to a number of doctors and lawyers. 111. Oswald, Monahan, Mancusi and Pfeil all stayed at the prison for several days after the rebellion. All defendants were on duty at the prison through September 18, 1971. B. Disputed Facts 1. After giving the order for the assault to begin, Commis- sioner Oswald retired to a locked office in the administration building, and — except for a tour inside the prison about an hour after the assault ended — washed his hands of any responsibi- lity for anything which happened to the prisoners, including but not limited to the planning for the obvious medical needs of the wounded and injured prisoners, and failing to prevent interference and delay of seriously needed medical care for numerous prisoners. 2. Beginning immediately after the assault, corrections of- ficers and to a lesser extent state troopers and sheriffs’ deputies engaged in frequent and systematic acts of brutality and retribu- tion against prisoners. A-290 3. Oswald deliberstely concealed his early inspection tour from the McKay Commission in order to escape blame for the tor- ture and reprisals which were then taking place. 4. Monahan formulated and implemented the assault plan without concern for the protection of the prisoners from the wan- ton infliction of pain and suffering. 5. Monahan was present inside the prison for several hours after the assault, and witnessed most of the brutality. 6. Monahan presided over the destruction and non- preservation of physical evidence by the state police. 7. Photographic and videotape evidence of the assault was altered and tampered with afterwards, in aid of the coverup. 8. Supervisory and investigative personnel including Monahan encouraged the assault force shooters to give exaggerated, embellished and fabricated accounts of the circumstances sur- rounding the firing of their weapons, and facilitated efforts to cover-up unjustified killings. 9. Beginning as soon as the assault was finished, Warden Man- cusi closely supervised all activities of the prison staff from a command post in his office in the administration building, per his agreement with Major Monahan. 10. Prisoners were herded through a tunnel and then systematically brutalized and knocked to the ground as they entered A-block yard. They were then required to strip naked and stand in a long line with their hands on their heads until they could enter the A-block tunnel. 11. Once in the tunnel, where the floor was wet and strewn with broken glass, the prisoners were forced to run, walk or craw] through a gauntlet of club-wielding officers who beat them as they went towards the cellblock. 12. Both Oswald and Mancusi learned of the gauntlet in the A-Block tunnel, but failed to take any steps to stop it. A-291 13. When the prisoners reached A-block, another waiting group of officers, striking them repeatedly with fists and clubs, escorted them to cells on the first, second and third floors. 14. Prisoners specially singled out as alleged “ringleaders” were forced to run a similar gauntlet of officers arrayed in a row on the sidewalk in front of the reception building, on their way to Housing Block Z (“HBZ”). These inmates were repeatedly struck with fists sticks, boots, and other weapons as they ran through this gauntlet. 15. Mancusi observed and was told of the torture and brutality committed against the inmates assigned to HBZ and he did nothing to stop it. 16. Soon after the shooting stopped, plaintiff Frank B.B. Smith, falsely accused of castrating a hostage, was forced to lie naked on a table in A-block yard, with his head, arms and legs hang- ing off the edges. A football was placed under his chin by of- ficers, who told him that he would be killed if it fell to the ground, and who then proceeded beat and strike him, and burn him at various points on his body with cigarettes and shell cas- ings heated with fire, over a period of some four hours. 17. The hostage that Frank Smith was accused of castrating was Michael Smith who was shot by an automatic weapon and was operated on for his gunshot wounds by 1] a.m. 18. After Frank Smith was taken off the table he was brutaliz- ed by guards and troopers at several places within the prison, including the hospital, for several more hours. 19. Mancusi, Monahan, Oswald and Pfeil knew of the tor- ture of Frank Smith and took no steps to stop it. 20. Plaintiff Jerome R [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2396%3A2. Public record. Not legal advice.