# Appendix — Oswald v. Sostre > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0440%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1972 - **Citation:** 405 U.S. 978 ## Text « Ix THE cs . 9 | Supreme Court of the Hnited States ’ “3 OCTOBER TERM, 1971 ~ Pau D. McGrx NIs, Commissioner of” Correction of © the State of New York, et al., ~ : ° Petitioners, against i aie a " Martry Sostre, - Respondent. “Martin Sostre. -Petitioner, against Pati D. McGrynis, et al. “ : a . APPENDIX | ———$———_$$———— Lovis J. LerKowitz~ Attorney Genera] » Of the State of: New York _Attorne ‘vy for Petitioner-Respondent : -MeGinnis . , 80 Centre Street 4 is New York, New York aa ear : 212-488-7411 Rap sINOWITZ,: Bounpixn & Staxparp Attorneys for ” - Petitioner- Respondent Sostre . 30 East 42 St. a New York, N. Y. 10017 212—OX 7-8640 2» eet eo Ld TABLE OF CONTENTS” PAGE * ApPenpIx A—Opinion of the United States Court of | Appeals for the: Second Circuit, dated ebruary us Sg) SP et aie a la Appenpix B—Opirion and Order of the United. States ; _ District Court. for the Southern Dis- trict of New York ‘(Morttey, D.J.); dated Bey ee 62a APPENDIX C—Meimorandum Opiziion and Order ofthe — District Court: (MotLey, D.J.), dated June 12, 1970 kaha sig a Saws eaten -112a APPENDIX D—Memorand 1 Opinion, on Motion for ; Preliminar¥ Injunction, of the District Court (Morttey, D.J .), dated September Se ene: SO eae é oes \ Appendix A. ee “ UNITED STATES COURT OF APPEALS For THE SEcoND Circuit - No. 180—September erm, 1970; a (Argued to the- court in banc October 21, 1970. Decided. ie aoe February 24, 1971.) ae : Docket No. 35038 a ae ae ~ Martie Sosrre, , ; ; t Plaintiff-Appeliee, Si eda Lee eS ~ Paut D. McGrxts, Commissioner of Correetion 6f. the State of New York, Vixcext Mancusi, Warden of Attica’ Prison, and -Harotp W. Fo.erte, Warden of Green ‘— Haven Prison, Reger) eee Defendants-A ppellants. . Before: | aa ae ze ala Lumsarp, Chief Judge, - WartTERMAN, Senior Circuit Judge,* : / Moors, ,F r1enpy, Smitu, Kavrmay, Hays, ‘ANDERSON and FEINBERG, Circust Judges. ° Appeal from a: decision and order -of the United States ° = District Court for the Southern District of New York,’ - Motley, Judge, granting plaintiff punitive and compensa- _ tory damages and. injunctive relief, pursuant to the Civil — : Rights Act, 42 U.S.C. § 1983.** | La Pa | RS oes , +. . . . . . s . * Judge Waterman was_an active circuit judge at the.time the ° _ ,court commenced in-.banc. consideration of this ¢ase. - wl -** This decision is reported at-442 F.2d 178. - before his ‘liberty’ was taken. — ind 9a Appendix A, Apart from the events of the June 25 interview, Judge Motley also dismissed as one of Follette’s reasons for . continuing Sostre’s inea reeration in segregated confinement- | several items of ‘‘contraband”’ which F urfra. ; ' . ; 13a_ * 5 ppendix A. to the general population: but apart from the dessert his ‘ diet still consisted of 2800 to 3300 calories a day.’ Sostre remained in his cell at all times except fora brief period once each week to. shave and shower. An hour of exercise with four or five other, prisoners in a small, enclosed yard, open to the sky was a daily routine. But the record reveals that Sostre refused this privilege because he would not submit to a ‘strip search.’ Officials testified that it was necessary to subject prisoners to such an examination each | time they entered the exercise yard to prevent them from concealing’ on their bodies small bits. of wire or other material suitable for use as a Wveapon. Fas Hygienic conditions were at/least minimally adequate to permit Sostre to remain cleat and healthy. This, Sostre was allowed to shave and shower with hot water once each week. The furnishings of his normal-sized (6 ft.’x 8 ft.) , eell ineluded a toilet and a face bowl with running’ ¢old water, and he was provided with soap and a towel. The strictures on -Sostre’s intellectual fare were severe. : He could not buy or receive books, magazines or news- papers, and his access to the prison’s library collection-was limited to a selection among approximately _ thirty-five volumes, mostly-‘‘shoot-em-ups”’ as Sostre described them, - chosen by the prison guards. Still, light from a single bulb, controlled by the guards and usually turned on early in the morning and off at 10 p.m., was adequate for reading.» And although he could’ not attend school or watch television; as could the inmates in the general populatio® any material related to the law requested by him would be brought to his eell.. — - : : + Several prisoners who had served time in Green Haven’s \puni- tive segregation unit testified that more punishing than the depriva- tion of desserts’ was’ the loss of the opportumities available to the general -population to receive food packages from the outside. ta - borrow snacks from other prisoners, and to: earn pay with which to buy extra food from the prison commissary. Bp Ida. or se he ae : Appendix A. - 3. Length of Segregated Confinement Pursuant to the usual practice at Green Haven, Sostre- ‘ was sentenéed to ‘‘solitary’’ confinement for an, indefinite . period. According. to New York Correction Law Section, 140, ‘‘submissiveness’’? was to be the touchstone for his release. Follette testified that Sostre eould have- returned to the-general population either by successful pasticipation in group therapy or by agreeing to live by the- rules of the prison. Sostre’s contention is that he refused to agree to, obey rules that he considered an infrifgement of his con: — stitutional rights.. _ i C. Censorship and Possession of Literature ; . Defendant Follette censored Sostre’s ‘correspondence with Joan Franklin of the NAACP, the attorney of reeord representing Sostre on appeal from his conviction. Follette regularly excised from letters passing between Sostre and - Miss Franklin “objectionable” material—anything which | ‘in. his judgement was not rele vant to Sostre’s appéeal.?’? In .aecordance with Rule 47 of the Inmate Rule. Book whicl? restricts .inmates’ correspondence to persons en an ap- - proved mailing list, Warden Follette .in late September, 1968, refused to forward a letter from Sostre to the United States Post Office Inspector, in which Sostre complained of Green Haven’s practice’ of not returning t6 “prisoners re- ceipts for certified mail, The: distriet judge fotnd that” each of these actions violated Sostre’s: First Amendment right to freedom of speech. | pita aa ¢ About August 3, 1969, a month after-his release from ~~. Segregation, Sostre. was d@prived of the .use of ‘the prison exercise yard and the privilege of attending movies because he* possessed ‘‘inflammatory racist literature’? in-his. cell. The. gterature consisted of articles written hy Sostre Rim-_ _ self on paper properly in his possession. Most of ‘the ‘punished’ by confinement. to. hi ” . «Lppendix A, + . articles consisted of extracts from magazines ‘and -news- papers which Sostre was also permitted to have and read in his cell. The extracts ineluded quotations from, Mao Tse - Tung, poetry written by a prison inmate, the names of the officers, , the party program, and ‘rules’ of conduct of the Black Panther Party; the officers and-oath of allegiance of the Repuhtic of New-Af rica; a “program”? for Black Stu- dent Unions; and the poem “If We Must’ Die,’? by Claude McKay. In addition, guards found in Sostre’s cell an ar- ticte which he had written himself, entitled ‘‘Revolutionary ' Thoughts.”’ The district court found that Sostre’s punish- ment for possessing this material constituted another in- fringement of his freedom of expression.’ ! All. THe District Court’s OrpER Upon these ‘findings which we have necessarily sketched, | dudge Motley on Mav 14, 1970, entered the following order, dS . § . . bd « e Which because of. its complexity and importance to thes’ questions we Trust decide, We reproduce in full. The dis-° trict court subsequently granted a stay of ats order pend- ing appeal as to the bracketed portions, A stay as to the remainder of the order was denied, : It is now Orverep, that defendants Follette, Me- Gimiis and. .Mancusi, their employees, agents, succos- sors, and all persons in active concert and. participa- tion with them be, and they.are hereby, perpetually @l- joined\and restrained from: ~ —_——. released ‘from segregation .he was cell for several days; ostensibly because “dust” was found an his dell. bars, Although Judge. Motley. found that. this punishment reprasented “retaliation for his legal success,” no relief was predicated\on this finding and hefice the. incident nved not concern ws further. ae oh ee “On the date Sostre Was | * l6a Appendiv A. . , im a 1) Returning plaintiff to punitive segregation for ‘ charges previously preferred against him; ‘ 2) Placing plaintiff in punitive segregation or sub-. jecting him sto any other punishment as ‘a result of which he losds accrued good time credit or is unable to “earn good time credit, without: a. giving him, in advance of a hearing, a written ‘copy of -any charges made against him, citing the written rule or regulation which it is charged he has violated; e . b. granting him a recorded hearing before a dis- . mterested official where he will be entitled to cross- . . ° . ~¥ é examine his accusers and to call witnesses on lis own "behalf: Be ¢.-gfanting hini the right to. retain counsel or to ‘appoint a counsel substitute; ° d. giving him, in writing, the decision of the hearing ~ officer: in Which is. bri¢fly set forth the evidence upow which it is based, the reasons for the decision, and the legal basis for ‘the punishment imposed.” a [3) Censoriivg, refusing to mail or refusing to give to Sostre: 1) Any communication between Sostre and the follewmg—(a) any court; (b) any public official or ageney; (¢) anv Ipwyer: (d) his co-defendant in the criminal matter pending against -him: and, 2) Any letter-relating to any legal matter to or from any other intiate who requests the assistance.of Sostre in trans- tating’ that letter into Bnglish.] *A panel of this ‘court on July 10; 1970, expedited the appeal and granted « further stay of subparagraph 2 to the ‘extent that it was ‘limited to placing Sostre im punitive segregation for more than three days at ant’ one time or a total of more than ten days, - pending the hearing of this appeal. . ad - e , / lia A ppendix A. 4) Punishing Sostre for sharing with other inmate ~ his law books, law reviews, and other legal materials, and from refusing to permit Sostre to assist any other inmate in. any legal matter as long ax defendants have not provided any court approved alternative means of legal assistance for such inmates. D5) Punishing Sostre for havi ing in his possession political literature and-for se tting forth his politica! views orally. or in writing, except for violation of . reasonable rules approved by the court re culating fre: M3 dom of speech.] [It is further Oxvexrir that the above named defer: ants submit, within 90 days from the date of this order, for approval by this court, proposed rules a: a regulations governing the follow ing: ; Tt) the receipt, distribation. diseussion and writing | - of political literature: 2) al? future Viséiptinary charges and hearings with respect thereto where the possible punishments ine lude solitary confinément, punitive seer: ‘gation or any other segregation, and any other punishment in connection with which there is loss of, or im: thility to earn, good time eredit.] : it is further Orperep that the above named defend- ants and their agents eredit plaintiff with the 1 124!., days of good time credit which he was unable to earn while w rongfully incarcerated in punitive segregution from June 25, 1968 to July 2 2, 1969. : [It ie~frether Onvenep that the plainfiff. Martin Sostre, recover of the defendants, Warden Follette. and Commissioner McGinnis the sum of $13.020.00.] ts ot 3 ; 1Sa e ess : 4 . + Appendix” A. | IV. * PUNISHMENT For Pourtican BELIEFS axp Leceau Activities The question as to the propricty of withdrawing from incarcerated individuals constitutional privileges enjoyed by citizens of the community, ‘although troublesome, is not - ~hew to the courts. It is clear that in many respects the constitutionally protected freedoms enjoyed by ‘citizens- at-large may be withdrawn or constricted as to state pris- oners, so far as “justified by the considerations under- dying our penal system,’ Price y. Johnston, 334 U.S. 266, — 285.(1948). Federal courts have been reluctant to intrude themselves into the complex and delicate problems of prison administration. - Eig., (. S. er rel. Kuight v. Ragen, 337 F.2d 495 (7th Cir.), cert. denied. 380 b. S. 985 (164); Hatfield vy. Bailleaur, 290 F. 2d 652, 640 (9th Cir. 1961); Childs v. Pegelow, 321 F.2d 487 (4th Cir. 1963). The time’ is long since past, however. when a court might describe a prisoner as temporarily “a slave of the state,’’ Ruffin v. Commonwealth, 62 Va. (21 Gratt.), 790, 796, or treat him as such. Among those rights wot take from Sostre when he entered Attica, either ‘expressly or by neces- sary implication,”’ Coffin v. Reichard, 143 F. 2d 443, 445 (6th Cir. 1944), is freedom from discriminatory punish- ment inflicted solely because of his beliefs, whether: re- lizions or secular. Cooper v. Pate, 378 U.S. 546 (1904) (per curiam) (unlawful to withdraw prison privileges be- cause of inmate’s religious faith); see Lee y. Washington, 390 US. 333 (1968) (per curiam) (racial segregation) ; Fulwood v. Clemmer, 206 F. Supp. 370, 373-74 (D.C.D.C. 1962) (religious discrimination). Moreover, the Constitu- tion protects with special solicitude, a prisoner's ‘access to the courts. Er parte Hull, 312 U- S. 46 (1941): Johnson v. Avery, 395 U. S..483 (1969). Accordingly, Sostre’s lengthy 192 - Appendix A: confinement to segregation violated due process of law if, as ‘the district. court found, Warden Follette inflicted the punishment either because of Sostre’s militant political ideas or his litigation, past or threatened, against Follette or other state officials. , Sostre does not shrink from characterizing himself as-a “jailhouse lawyer’? and.the record before us does justice to this label, as does the history of Sostre’s earlier period of ‘~ confinement in New York prisons from 1952-64 follow- ing his first conviction for selling narecoties. It is not unré¢asonable to suppose, as the district court apparently did, that Warden Follétte was aware of Sostre’s Black. Mushjm activities during that period: of his solitary con- finement in Attica Prison for four years, resulting from his religious activism; and of his suecess in securing through earlier litigation before this court the recognition of certain constitutional liberties for state prisoners. See Pierce y. LaVallee, 293 F. 2d 255 (2d Cir. 1961): Sostre v. MeGinnis., 334 F.2d 906 (2d Cir), cert. denied, 379 U.S. 892. (]964). Sostre’s version of his June 25, 1968, interview with Follette, if believed, was a proper basis for Judge Motley ’s conclusion that Follette committed Sestre to segregation, if not in retaliation for his black militaney or past litigation, then at least to squelch Sostre’s threat to take Follette to court over his censorship of Sostre’s correspondence, Some substantiation for Sostre’s account might be inferred from Follette’s summary commitment of Sostre, without follow- ing the practice described in the New York Department of Correction’s Employees” Rule-Book (Rule 8.4). requiring trial by a ‘disciplinary officer or court.”’ | ’ On this evidence, we cannot conclude that the district judge was “clearly erroneous’ in attributing improper motives to- Follette, affording.as we mist ‘‘due regard... - to -the opportunity of the trial court to judve of. the * eredibility’’ of Sostre and Follette, F.R. Civ. P. 52(a). See Zenith Radio Corp. v. Hazeltine Research. Inc...395 U. S. ~ 20a a — ndix A. 1a (1969) (rey lew ing court may overturn finding if on the entire evidence it is left with the definite ; anid firm convie- tion that a mistake has been made). On the other hand, _ McGinnis was not privy to Follette’s interview with Sostre. ” The record is barren of any justification for attributing to. him, in sanctioning Sestre’s continued confine ‘ment, any more sinister motive than epprepmate deference to the judgment of Warden Follette. MeGinnis on the record before us, had no reason to suspect Follette of other than proper motivation.” : a : CreeL‘axp Uxuscan PuxisumMent _ A reflection of maturing se nsitivity in this country to the condition of some of our prisons may be seen in the. distriet court’s finding that deprivations stich as Sostre “endurtd for a vear may not again be inflicted on. New York State prisoners for longer-than fifteen dtays, and only then for serious violations of prison rules. Otherwise, Judge _ Motley held, such . punishment would run ‘ashoal of the “Kiehth Amendment prohibition of cruel and unusual pun- - ishment, as applied to the states through the due process suarantee of the Fourteenth Amendment, Robinson y. California, 376 U.S. 660 (1962). "We respect the outrage, ‘given form and content by scholarly research and re ‘flection, that underlay the expert testimony at trial of Sol Rubin, for many vears Counsel for the National Council on. Crime and De ‘Hinqueneyw, and Dr, Sevmour ‘Halleck, a psychiatrist at the University of - Wisconsin with long experie nee in state correctional prac- “AM Commissioner McXieende knew ‘or should have know n of he: Teagons gor Sostre’s confinement w: as communicated to him by Polls tte, see 312 -F. Supp. at 882. who of. course dil not relay Sostre’s version of the June 25, 1968 interview. 21a ; ‘ pie Appendix A. tices. “Mr. Rubin testified that- Sostre’s segregated en- vironment was degrading, _ dehumanizing, - conducive to inental derangement, and for these reasons ‘4 gross de- parture”’ from enlightened and progressive contemporary standards for the proper treatment of prison_immates. Dr. ‘Halleck feared] that the ‘isolation from human contact in punitive ‘segregation might cause prisoners to hallneinate a and to distort reality. Long-term isolation might have so, seriois an impact, in fact, as to ‘“‘destroy’’ a person's ‘mentality’. Dr. Halleck singled out for particular cen- | sure’ Green -Haven’s “eroup therapy’’ program, whose compulsory aspects he found repugnant to effective treat- ment of participants and’ indeed inconsistent With minimal standards of professionalism among tramed group coun- sellors.™ : Nor would candor permi@ us to dismiss these opinions as aberrational among those- views revealed’ in relevant sources referred to us by counsel or known to us through our own research. To the contrary, it would not be mis-- leading to-characterize many of the, opinions of plaintiff *s experts as fairly representative of the perspective -of ad- herents to the “new penology,”? see Knuckles NM. Prasse, 302 FL Supp. 1036, 1047-48 (E..D. Pa. 1969), the thrust of ° whese doctrine may be gauged by the preference for the adjective “correctional” rather than ‘penal’? as more ac- curatety indicating the proper function of a prison SVs- tem.” The rapidly rising standards in the field Of penol- *y " Dr. William C. Johnston, a psychiatrist and Director of Matta- Wan State Hospital for the criminally insane, With extensive ¢x- perience in dealing with mentally disturbed prisoners. rejected Dr. Halleck’s assessment. Dr. Johnston reported that he had in fact supervised a successful compulsory group counseling program while Director of Dannemora State Hospital. Dr. Johnston also did net agree with plaintiff's experts that segregated confinement \, ould hkely endanger prisoners’ sanity, '* Hearings on H.R. 6964. H. Subcomm. No. 3, Comm.-on the Jucictary, 89th, Cong., Ist Sess.. at 2 (May 20, 1965) (testimony -of Nicholas deB. Katzenbach )__ = »).) vee ehppenidiv A. oxy and corrections that Mr, Rubjn’ referred to in’ his testimony are reflected in a growing preeecupation with institutional strietures and techniques designed to ‘“rein- tegrate’’ prisoners with society or, in the jargon of the _ @Xperts, to “provide.” motivation for acquiring at con ‘Ventional role in a nort-delinquent setting.” Conjugal Visiting, daytime work or educational-release programs, vocational training, half-way houses, and inniate publiea- tion of prison newspapers are some of the vanguard Weapons in the **modern’? approach to prison administra- . tion, The key concepts are access and involvement of pris- oners with the free society ‘fon the outside’ Anathema to this perspective art perhaps more traditional ‘practices Which subject prisoners to ‘deprivation, degradation, sub- servience, and isolation,. in an'attempt to. “break” them and make them see the error of their Ways.’”® It is sug- 'SSee U. S. Burcau of Prisons, The Residential Center: Cor- rections in the Community (1970), ° i. "See, e.g., Garabedian, Challenyes for Coutemporary Correc- tions, 33 Fed. Prob. No.-1, at 3 (Mar. 1969) - Rachin, The Message Corrections Must Get Across, 34. Fed. Prob. No. 2, at- 3 (June 1970); Summary of The Report of the President's Task Force on Prisoner’ Rehabilitation (1970), 34 Fed. Prob. No, 3; at 3 (Sept. 1970). We do not ‘ignore New -.York’s active participation in this reform movement. See N.Y. ¢ ‘orrection Law Art. 26 ( Mchinney Supp. 1970)- (work release program ). . 15 . ; : os “Trailitional prisons, jails, and juvenile institutions are highly impersonal and authoritarian.e Mass handling, countless ways of humiliating the inmate in order to make-him subservient to rules and orders) special rules of behavior designed to maintain, social distance between keepers’ and inmates, frisking of in- mates, regimented movement te work: ‘at, and’ play, drab prison clothing, and similar aspects of daily life—all tend to depersonalize the inmate and reinforce his belief that authority — ‘is to be opposed, not cooperated with . 2 . Such an attitude is, ‘of course, antithetical to successfid reintegration.” - _« President's Commtission on Law Enforcement and Administra- tian of Justice, Task Force Re por: Corrections 11 (1967> (here- ina fter-cited as “Corrections” ¥ a 23a | - Appendix A. gested by many observers. that such techniques are count- er-productive, tending only to instill in most prisoners at- titudes hostile to rehabilitation, summarized by one author as “doubt, guilt, inadequacy, diffusion, self-absorption, apathy [and] despair.?? ” eit | We do not question, either, the relevance to an inquiry under the Kighth-Amendment of-opinions which may rep- resent a progressing sense of humaneness as well as a new ‘alculation as to the efficacy of penal practices. See Trop V. Dalles, 356 U.S. 86. 10] (1958) (Kighth Amendment in- vokes “the evolving standards of decency that mark the progress of a maturing society’’), For a federal court, however, to place a punishment hevond the power of a state to impose on an inmate is a drastic interference Witli.the state’s free political and ad- ministrative processes, It is not only that we. trained as Judges, lack expertise in .prison administration, Even a Jifetime of study in prison administration and several advanced degrees in the ‘field would not qualify us as a. federal court to command state officials to shun a poliey -. that they have decided is suitable because to us the choice — may seem unsound. or personally repugnant. As Judges, we are obliged to school ourselves in such objective sources as historical usage, see Wilkerson y. Utah, 99.0. S. 120 (1870), practices in other Jurisdictions, see Weems y, United States, 27 U. S. 549 (1910), and public opinion, see Robinson v. California, 370 U. S. 660, 666 (1962), he- Toré we may responsibly exercise the power of judicial re- ‘view to declare a punishment unconstitutional under the ‘ighth- Amendment. | Pace sae te ™ Chief Justice Burger, a persistent critic of our system of criminal justice Which, places every Protection. around an - accused - but seems -to abandon him when he is sentenced to prison, recently . Observed that “a man in a cage needs incentive. motivation, and something to look forward to.” U.S \ ews and World Report 32 (Dec. 14, 1970). a . . 2 > | . — A. Accordingly, we have in the past declined to find a Kighth Amendment violation unless the punishment: can @properly be termed “barbarous”? or ‘shocking to the. con- science”? See Church y. Ie Ys strom, 416 FF. 2d 4495451 (2d Cir. 1969), Although the conditions Sostre endured were 7 severe, We cannot agree ‘with the district court that they were **s0 foul, so inhuman, and so- violative of basic con- cepts of deceney,’? Wright v. McMann, 387 F. 2d 519 (2d Cir. 1967)? as re require that similar punishments be’ lim- ited in the future to any -particular length of time. Nor can we agree that Sostre’s own fong confinement—hows ever contrary’ such prolonged segregation may he to the views: of some expel rts—would have been ‘‘eruel and ‘unusual’? had Sostre in fact been confined for the reasons asserted by Warden Follette, rather than’ on aécount of his beliefs artd litigiousress, ‘ It is undisputed on this appeal that segregated’ confine- ment does not ‘itself violate the Constitution: See Burns Swenson, oe eos a Cir, Aug. 31, 1970) ; Plates yw Bishop, 409 F. 2d 1185 (Sth Cir.), cert. denied, 396 U.S. 915 (1969); Graham yv. Willingham, 384 F.2d! 307 (10th Ci * 1967): U.S. ex. rel. Knight vy. Ragen, 337 F.2d 425 (7th Se 1964), cert. denied, 380 Uy S. 985 (1965) ; Krist vy, Smith, 309 F. Supp. 497 (S. D. Ga. 1970) ; Roberts *. Barbosa, 227 F. Supp: 20 (S. D. Calif. 1964). Indeed, ~we learn that a similar form of confinement is probably used in almost every jurisdiction ‘inthis country and has heer described as one of ‘‘the main traditional disciplinary . oe . of our prison systems, | President’s Commission ah & F Dias LY, Semson. ing, A us (Sth- — Aug. 31, 1970) ( “base, inhuman, .and barbaric’ Moni Vv. 2 very, 301 F. Supp. 786 ‘791-92 (M.D. Tenn. 1969) Baer es “debasing, vi “violates basic standards of human decency” > Holt v. _ Sarver, 309 F. Supp. 362, 380 (E.D. Ark. 1970) | ened excessive, " “shocking or disgusting’) ; Jordan.v. Fitzharris, 257 F. Sup. 674 (N.D.-Calif. 1966 ) (“shocking and debased” “conditions justify court’ s interven- tion to “restore the primal rule of a civilized community”). da Appendix A, eae - on Law Enforcement and Administration of Justice, Task Force Report: Corrections 50-51 (1967): S. Rubin, et al. The Law of Criminal Corrections 293, (1963). Plaintiff has directed our attention to currently operative rules in: other jurisdictions Which limit the duration. of segregated | confinement, and to- several commentaries recommending “e- ’ % or approving such rules. In several states, however, in-~ carceration ‘in segregated cells seems to be for*an indef- inite period, as ‘it is in New York.*”. The federal practice aypears to be that prisoners shall be retained in solitary ‘for as-tong as necessary to: achieve the purposes in- - tended,’’ sometimes ‘indefinitely.’ Furthermore, ‘will. ful refusal to: obey an order or demonstrated defiance of eta meintsennne " i : "* Indeed, the first prisons in this country, widely imitated. in urope, were intended “to serve as place[s} for reflection ‘in soli- tude leading to repentance and redemption.” The Eastern State Penitentiary in Pefinsylvania (1829), where inmates lived; worked, and exercised without being permitted to talk with fellow prisoners “was copied abroad perhaps more than any other American inven- tion.” Corrections 3. ‘See, American Correctional Ass'n, Manual OK Correctional Standards 13 (3d ed. 1966) [hereinafter cited ‘as | “anual” |. | All forms of prjson punishment in this country .pale by camparison’ with those endured by Henri Charriere in ‘the ‘dungeons and: F reich Penal Colony’ described in his book Papillon (Morrow, 1970). a "See Tenn. Code Ann. § 41-707 (maximum 30 days solitary for each offense ) ; Corrections 210 (disciplinary confinement neraxt- mum 30 days); American Correctional Ass'n, Wennal 418 (punitive Segregation maximum 30 days); Imerican Lazw Institute, Model Penal Code § SO4Z (3%) (Proposed Official Draft 1962) (disciplinary: confinement maxinium 30 days). However, .compiirisons and extra- polations are hazifrdeus where. factual contexts are lacking. ‘For example, The . Ainerkkan Correctional Association, *\anig/ 419, would apparently not Proscribe indefinite. confinement to “adminis= trative segregation.” The practical distinction intended between “punitive” and “administra ive” segregation may or may not parallel that at Green Haven fete See “punitive” and “protective’ segregation. ; * o ; y * Mo.-Rev. Stat.’ § 216.405. tited in Burns v. Stecison, —— F. “24 —— €8th Cir. Aug. 31,. 1978); statutes cited elinerican Lazy Institute, Model Penal Code § 3087.6 n. 13 (Tent. Draft No, 12. 1960). Dine Stat er ae 26a ti‘ * Appendic A. « 2 _personnel acting in line of duty may constitute sufficient’ hasis for placing an imnate in segregation.’”!° Such anal- | ogolls practices*” do not impel us to the conclusion that the Mighth Amendment forbids indefinite ‘confinement under the conditiows enditred by Sostre. for all the reasons as-- serted’ by Warden Follette until such time as the prisoner agrees’ to abide by prison rules—however counterprodue- tive asa correctional measure or however personally. ab- horrent the practiGe.may seem to some of us. In artving at this conclusion,* we. have considered © Bureau ef Prisons, Policy Statement: Inmate Discipline, No. 4400.5A, © 3c, App. B § 1.d (8) (July 2, 1970). . ** The Supreme Court has struck down a choice of punishments | only when the penalty was authorized in almost no ether civilized. jurisdiction, Trop v. Dulles,.356 U.S. 86 (1958) ; Weems.v. United States, 2YWU. S.. 349 (1910), or conflicted with moral. precepts” “universafly held,” Robinson v. California, 370 U.S: 660 (1962). See also Jackson v. Bishop, 404 F; 2d 371, 580-(8 Cir. 1968) (use of strap permitted in only two states, outlawed fn several). °8 Judge Feinberg expresses the view in his dissent, that “isola- tion of an adult prisoner for a sharply limited period as punishment _for.a serious breach of .prison discipline” would be constitutional. But then he ‘goes on to ask rhetorically whether solitary or segre- gated confinement “for two years instead of one, or for five years, or for ten, or more,” would be constitutional. We -have ‘made an effort to. suggest the .impracticality of setting any ‘specific time period for segregated confinement, beyond which ‘the punishment . would be “cruel and unusual.” In some instances, depending upon’ the conditions of the segregation, and the mental and physical health of the inrnate, five. days or even pne day niight prove to. be’ consti- tutionally intolérable. | We would ask our ‘dissenting brother in turn, would nine months; six months, or thrée months of segregated ° confinement be unconstitutional, without reference to the -circum- stances -of confinement ? “eo Sei aes Judge Feinberg is also properly_econcerned with “endless solitary confinement... unless the’ prisoner ‘gives in.’”’ Our résponse -is that we are concerned also. But one must: ask on what was it that Sostre was expected to “give in.” He was asked to show a change in his imransigent defiance. of several prison regulations, defiance which posed a credible threat to the security of the prison, "by attending group therapy sessions.” D@es it violate principles of fundamental decdney to insist that’a prisoner comply. with reason- able rules applicable to all similarly situated? . . Appendix A, ? : : ; a Sostre’s diet, the availability in his cell of at least rudi. mentary implements of personal hygiene,** the oppertunity for exercise® and, for participation ‘in group therapy,”’ tlie “In response to Judge Feinberg’s ‘dissent, we emphasize that no one testified that based on his observation ‘or as the result of a physical or psychological examination: of Sostre, le concluded that Sostre was being adversely affected or that his physical or mental health was threatened. We tiote that the record shows that a prison physician visted Sostre’s ‘segregation unit daily, and at no time did the physician observe, or did Sostre call to his. attention, any such effects, : cae : oats Indeed, the experts before the district court were in conflict even over. the hypothetical question whether the conditions that Sostre experienced in segregation would be dangerous to the’ sanity of “a prisoner.” See pp. 20-21a and in. 11, supra. On the basis of these conflicting expert opinions, ‘Judge Feinberg observes that the district court found as a ‘fact’ that these conditions “could only serve to ..... undermine the sanity of the. prisonér” . . . when imposed for more than. fifteen days. We-do not agree with out brother that we are required to declare this “finding” to’ he either right or wrong, either “clearly erroneous” or adequately supported by the record and therefore cocrect. We are not concerned here with conflicting testimony of witnesses to the same wnigue historical event, — The question, rather, Is a general one: Whether the Eighth Amend- “ment absolutely forbids ‘a state to use -A means. of discipline when there is no evidence of any physical or psychological injury. to the health ‘of the prisoner Who.- complains of the measure, and also when the opinions of. the experts as to the effects of the type of discipline are in conflict. To hold the district court: eithér aight. or wrong would be tantamount to ruling that either Dr, Halleck | or Dr. Johnston is’ right, and the other is, wrong. That i$ not Our function, nor was the function of theedistrict ‘court.’ It isea judgment among competing, rational polieies,’ a judgment therefore properly reservéd for decision by state ‘political and adnainistertive processes. See, e.g:, Ginsberg-v. New York, 390 U. S. 629, 642- 43 (1968). *° This element distinguishes the instant case from A’rist vy. Smith, 309 F. Supp. 497, 501 (S. D. Ga., 1970), where the court. found no constitutional® acceptable justifications for-sdenying sevre- gated prisoners a chance to exercise. OE , 5 “° In. view of the widely recognized and critical shortage of Specialists such as psychologists «in prison systems generally, it’ ’ (footnote continued on following page) o s ° s elim . ‘ A v - \ . . z 7 “ ’ ” Ps sf F . e Appendix A. . * prevision of at least’ some general reading matter from _, Te thy prisen library and of unlimited numbets of law hooks.’ an! the constant possibility of communication with other ~ceregated prisons. These factors in combination raised the: quality of Sostre’s segregated environment several * notches above those truly barbarous and inhuthane condi- tions heretofore condemnetl by ourselves and Ry other. . routs as “ernel and unpsnal," See Ford v. Board of Vancaers, AG FL 2A 987 (3rd Cir. 1969) (ne running water for wast J: bread and water diet exept one regular tal doch third day; held constitutional); Lawduaw \. « 70 FL 2d 135 (4th Cir. IN), cert. denied, aSS \ | otnote continued from -previons page mth! «lefy reality ti discount the valic of the qrotp therapy pre: m hbecguse of the ««hewhat limited framing and expetionce a Va keoke. Corrections 20S. * As mated above, pp? Mha-2la mul. faNtl, copra, the expert testimony at trial helow conflictes}. as lo ¢ . the Wnpect on the effectiveness of CTUUp sesetuars of | ctercing- pris. mer) jSArticspeatiom, - rt ‘ey... —— ¥. McMann, 387°F 24 519, 321 (24 Cir, 1o87, ~ Peenant alleged cellencrusted with excrement; plaintiff entirely faked 11 days, then clad only in thin upderwear: windows open thomg out. subfrerzing fight; prsemer slept on concrete flamer: no “ag? Aeeel, or toilet paper) se/fancock vo Avery, OL F. Supp. - “ee om MOK Tenn, 1909) (virtually no light or ventilation: hole s«- tor wastes flushed irregularly by guards; nowsap, tuwel, or walet at meyer, feo meals of bread? ome: full meat): Jordan v. Fitcharris, * 29 EeSapp. 674 (ND. Calif. 1966) (conditions similar to Hncock am! mewhgityenptisoner sept naked gm cumerete floor). iy . Sostte dors not allege that he wax arbitrarily. or dliscriminaterily - Guinithx ° of dlsase® by prison authigrities whik he was scuregate!. . See Falemod ¥ Clemmer, 206 F. Supp. 370 (D.CD.C. 1962) (plain- uff, atoony oerethings, unlawfully denied exercise of his teliginn while gorgated and mnproperly trassferred from privon to a jail : lewauee of his redigied ) Holt , v- Sarover, HPF. Suy » M2, ao eat WSEJ) Ark. 1970, i ptiamers subjSeted to arbitrary power af other .priseners). Ci. Jacksons Bishop, 44 P21 S71, 579 «Sth Cir. was) 6 fuente for prison antherities or courts to supervise ad- mhstritiers ¢f carperal punishment so as ta prevent Pxcesses }. ° ~ ye e : ° Pit one ‘ Procepvrat Dee Process * ~ Appendix A, = TLS. 920 (1967); Knuckles v. Prasse, 302 F- Supp. 1056 (ELD. Pa, 1969) (400 days segregation held ednstitutional ). Finally, we cannot agree with dudge Motley that even if New York might in an appropriate case subject a pris- oner to the conditions of Sostre’s segregated confinement, had Follette’s motives heen as he deseribed them, the pun- ishment woild in any event have been unconstitutionally dispreportionate to the offense. Were we to rule other- wise, we would deny to prison authorities the power to use an entirely ednstitutional means of discipline in response net only to a credible threat to the security of the, prison, but in response to a prisoper’s refusal to answer appre- priate questions put by prison authorities. and-to abey valid prison refrulations.” . : os VL ah divergence. of perspectives similar to these ye have seen in considertug the Eighth Amendment ixeue ix pre- sented in anoflicr form by the district court’ order that Sostre may not be punished in the future in «lppendix A, as a withdrawal of a “privilege”? rather than a ‘“‘right.0™ Mempa warns us that’ procedural formality may be re- quired in: the operation of the crimiualization and -inear- ceration process beyond the determination of guilt af trial. Thus, we do not doubt that Sostre’ was entitled te “due” process of law’? before-he was punished for an infraction of prison rules. The exaction of segregated: confinement was onerous indeed,” and the distinetion between a “right” and a **privilege’’—or, between ‘liberty’? and a ‘‘privi- lege’’ for that matter—is nowhere more meaningless than . behind prison walls.” The diffieult question, as always, is “ what process was due. In answering that question, we may * not uncritically adopt the holdings of decisions that take ‘ color from contexts where the -shadings are as different from the instant case as the cases we have dixeussed: é [Ajs a generalization, it can be said that due proe- ess embodies the differing rules of fair play, which through the years, have become associated with differ- ing types of proceedings. Whether the Constitution requires ‘that a particular right obtain in a specific " proeceding depends tipon a complexity of factors. The nature of the. alleged right involved, the nature of the proceeding, and the possible burden on that proceeding,- are all considerations which must be taken inte ae- - count. | . Pa! 4 "See Shapiro v. Thompson, 394 &. >. 618, 627 n. 6 (1969); ° ae Sherbert « Verner, 374 U.S. 398 «1 1963); Speiser ©. Randall, 357 U.S. 513 (1958) Slonaeher vo Rd of Educ, 3530 US. 551 ~ 11956). See generally, Van Alstene, The Demise of the Right- Privilege Distinction in-Constitutional Law, 81 Hare. 1 Kez. 1439 (1968). | 2 CF. Coffin v.. Reichard,.143 F241 443, 445 (6th Cir. 1944) ° ( pritoner entitled tye y rit of habeas corpus if deprive d of right lich makes imprisonment more burdensame than law allows}. See Note,.The Supreme Court, 1968 Tesm, 83 Harv, L. Rev. , 93. 197. (1969). : ote ? ath 9 ae oderad Appendix A. Heunah v. Larche, 363 C8. 420, 442 (1960). _ Beyond the process of guilt determination and initial in- carecration, courts have dixplaved gveater feluctanee to import all: the trappings of formal due process. Thus, a panel of this court has recently held that forma! trial-ty pre _due process is not a requirement ‘in connection with a parole release determination. Menechino ¥. Oswald, F. 2d —-(1970)." Like the relationship bet ween Mene- chino atid the parole board, Follette's relation to Sostre - Should nat be viewed as adversarial in the Satie Sense that a criminal-trial is adversarial. Certainly, formal rules of - evidence would be entirely inappropriate at s disciplinary proceeding. To dispose sensitively and. earef ully of each prisoner's unique case with due regard for the éffect of €ach decision on the total fabrie of the prison comtunity. prison authorities must have wide acvess to relevant in- * formation.” Sinee, in addition, there is no likelihood that substantial rights would be sacrificed if a prisoner failed. for example, to raise a Proper abjection or to take a timed v appeal, the need for legal skills is less aeate here than in Mempa, Townsend, or Hewett, Moreover; the evidenre as to whether the prizonerAias Violated a prison ‘regulation’ is likely to be simpler, mofe precise, and more readily at . hand than, for example, the évidenes bearing on the ques- tion whether welfare payments should be terminated. There is.correspondingly less need for CrOss-eXatiination and calling of witnesses, SA Most important, we think it inadvisable for ‘a federal court to pass judement one Way or another as to the truly * “ Followed in Lewis v. Rockefeller, ——~ F.2) - (Sept. 1, 1970). Cf, Sperling v. Fitzpatrick, 426 F.2d 1161 (2 Cir. 1970, +, © For similar reaGhi the Court in Williams v. New York, 337 UL S. 241 (1949), found po denial of due process when the appel lant was scitenced§ on the basis of “information supplied by wit- fiesses with whom the accused had not been contr mted and-ds to whom he had nu-opportenity for cross-eXamination.~ Sie Appendix AL : . ; . : ° eS ; hag : decisive consideration, whether formal due process require ments would be likely to help or to hinder in the state’s ‘endeavor to preserve order and discipline in its prisons and to return a rehabilitated individual to society. [It would he too siinplistie to disassociate the impact of punistliment ineted out after a disciplinary hearing from the method ‘by whfch the hearing itself is conducted. As one court has observed : “The dssociation between men in correetion iustitutions is closer and more fraught with physical danger and psychological pressures than is almost any other kind of association between human beings.’ Edwards v. Sard, . 2B. Sapp. 977, 981 (D.D.C. 1966). Lt is sad but true that the study. of the prison subculture by psychologists and sociologists has until recently been largely neglecteel. These who have lobked into the problem, however, do not vainsay the volatility of relationships among prisoners and prison officials. See, rh ae Corrections 46-ATY Gibbons, . Changing the Law Break: r 200-12 (1965). We would not presume to fashion a constitutional harness of nothing more than owir guesses. It would be mere specrlation for us to decree -that the effect: of equipping prisoners with mere elaborate constitutional Weapons against the admin- istration of discipline by prison authorities would be more- soothing to the prison atmosphere and. rehabilitative of the prisoner or, on the other hand, more disquieting and destructive of remedial ends. "Phis is a yudgment en- ye . - . » . » triisted to state officials, not -federal judges.” We are particularly unwiding to interfere with state administrative processes when reliable, detailed informa-" ~ = os * Peaintiff was not systematically denied safeguards afforded orto a transfer to a different state institytion. See Baxstrom v.filerold, 383-U.S. 107 (1966): Shone v. Maiae,. 406 F.2d S44 st Cir: 1969): Bolton v. Harris, 395 F.2d 642 (D.C. Cir. 196814. Schuster v. Herold, 410 F.2d 1071 (2d Cir.), cert. denied, 3%6 U.S. S47 41966). His. rehance “on those cases is Hoan-prisoners -- , MisplaceyY., 30a : al ppendix iA. tion or empirical studies are as seanty as they are onthe’ subject of prison disciplinary procedures. See Correctious at 16; D. Glaser, The Effectiveness of a Prison and Paroli System 172 (1964) (** prison discipline . . . has not re- “ceived extensive objective research by anvonté’’). Judge Learned Hand wisely instructed us, ‘[elonstitutions are * - deliberately made ‘difficult of amendment; mistaken’ read- ings of them cannot easily be corrected. Moreover, if they could be, constitutions: must -not degeherate into cade jnecums or codes: when they begin to do so, it iS a sign of a community unsure of itself and seeking protection — - against its own misgivines.”? The Spirit of Liberty 179 — (1952). | : jh -Analogies and reconimendations ealled to our attention do not eo far te advance Sostre’s position. | Neither the. Model Penal Code ner the Manual of the-American Corre¢- tional Association would require confrontation and cross- examination, calling of Witnesses by the prisoner, counsel or counsel substitute, or a written statement of evidence and rationale.” “Similarly, Rhode Iskand has voluntarily adopted new disciplinary procedures for-its prisons, under: court supervision, Morris vic Travisoio, 310 F.Supp. S97 (DRA. 1970), which iafelude provisions for a hearing, advance written notice, and assistance by a’ prison officer, ‘“. but no other of the formal safeguards required by Judge Motley’s injunction. ~ Sostre” has referred us to. rules adopted for the Missouri State Penitentiary, under which prisoners are assisted during a disciplinary proceeding by . eunill. - 37 See American Law Institute, Model. Penal Code .§ 304.712) (Proposed Official Draft 1962) (before inflicting punishment, @ warden to be advised by disciphnary committee after “hearing” Where prisoner would appear after receiving ‘fhotice of charges): American Correctional’ Ass'n, Wayral*409° (expeditious hearing, adeqfate investigation, regular channel fer “appeal, written report of the infraction Tound ‘and .disposition ). , a Sba Sa - Appendix A. a member of the prison staff and where there; inust be a Written synunary of the disciplinary proceeding, including a statement of relevant evidence. Personnel Information Pamphlet: Riles and Proe cedures 3-4 (Sept. 1967 Ag: ain, however, there ix no provision for calling witnesses. or cross-examinition. © | : Indeed, it appears that,« eamong those practiées known to us, only in the federal correctional system must a formal proceeding, including each’ of the elements in the jdistriet court’s mandate, precede forfe iture of ‘good time allow- anées. Bureau of Prisdus, Policy Statement: Withhald ing Forfeiture, and Restoration of Good Time (No. 7400.6 See. 1, 1966). Notably, however, these formalities need wof accompany discipline that results in the ‘withholding of good time credit, as Judge Motley would requirg. ; We therefore find ourselves in disagreement ‘ith Judge Motley’s conclusion that each of the procedural elements - incorporated in her mandatory-injunetion are necessary constitutional ingredients of every proceeding resulting in serious discipline of a prisoner. In this rejecting Judge Motley’s conclusions, however,” we are not to be understood as disapproving the -judgment of many courts that eur. constitutional scheme does. not- contemplate’ that seciety may ¢ommit lawbreakers to the capricious and arbitrary — ~ Accord, Burns v. Stevenson, ° . (Sth Cirs August St, 1970): Plaintiff, an inmate of the Mieseen’ State “Penjtent} jary, as summarily committed, without a prior hearing, to segreg gated comfnement that was to last’ more than three years: An irivestiga- tive report was not filed until more thah.a month after Burns's coufinementt. At review. hearings held six. months after-he was -cegnnmutted,, and agai shortly Tefore his release, Burns appeared . but did not confront adverse witnesses, was not assisted, and apparently was not permstted to present evidence. . The court fetuid ne due process yiolatton. j , ' Ne = ine / b=. N ora / .d Appendix A. a, ‘actions of prison officials.’ If substantial deprivations are to _be visited upon a prisoner, it is wise that such action: should at least be premised on facts vationally determined, This is not a concept without meaning. In-most cases it would probably be. difficult. to find an inquiry minimally fair and rational unless the prisoner were confronted with ‘the aceusation, informed of the evidence agamst him, see Armstrong v. Manzo,.- 380 U.S. 945, 552 (1965) ; ; Mullane v. Central Hanover Bank ff Tr ust Co., 389 U.S. 306 (1950), — afforded a reasonable’ opportunity to explain his actions.* _ dee Nolan v. Scafati, 306 F. Supp. 1 (D. Mass. 1969) OWy-" “zanski.¥. ). ** See also, Shelton v. Board of Parole, 388 F.2d 567, 576 (D.C. Cir. 1967) (en bane}. Cf. Thompson v. Louis- rille, 362 U.S..199 (1960) (conviction supported by no evi- dence violates due process) ; U.S. ex rel. — v. Pate, . . *“A first tenet’ of our governmental, religious, and ¢éthi¢al . tradition is the intrinsic worth of every individual, no matter how degenerate. It is a radical departure from that.tradition to subject a defined class. of persons, even criminals, to a ‘regime in which their right to liberty is determined by officials wholly unaccountable - 3 the exercise of their power. ’ Corrections 83. See Hirsch-’ kop Mulemann, The-Unconstitutionality. of Prison Life, 55 Va. L. Rev. 793, 834 (1969). (discipline should be’ based-on “proven facts” and should be “ration lly related to the objective. sought”). | ‘The Court in Escoe v. Zerbst, 295 U.S. 490, 493 (1935) (Cardozo, J.) interpreting the federal probation law, adopted a similarly flexible solution: “Clearly the’ end and aim of an appear- anée before the cotitt must be to enable an accused probationer. to expl: in away the accusation, . . . This does not-mean that he may insigf upon a tréal in any strict sense. .-. . It does,mean that there , shall be an inquiry so fitted in its range to the needs of the occasion as te justify the conclusion that discretion has~not. heen abused PY the failure. of the inquisitor to carry the probe deeper.” - : Om appeal, ‘the order of the district’ court dismissing the com- . plaint in Nolan was reversed with instructions to take evidence to determine whether avy “assurances of elemental fairness” had i fact been afforded in the disciplinary action that was the object of plaintiff's suit. —— F.2¢ (Aug: 14, 1970). - ; : : ° conti ee 38a , Appendix A. e 401 F.2d 55, 57 (7th Cir, 1968) (‘‘thetrélevant facts... must not be... capriciously or unreliably determined ’’) + Dian vy. California Dept.of Corrections, 400 F.2d 340, 342 (9th Cir. : 1968) : Williams ¥V. Patterson, 389 F.2d 374 (10th Cir: | 1968) ; Howard v. Smyth, 865-F.2d 428. (4th Cir.) cert, dented, 385 “U.S. 988 (1966) (arbitrary. and serious. punishment of. activities closely related to “first amet ndme nt freedoms) : Jones v. Rivers, 838 F.2d 862, 874 (4th Cir: - 1964); Hyser v. Reed, supra, 318 F.2d at 242 (basic fairness requires that federal parole not be revoked arbitrarily) ; U. S. ex rel. A Wakeley ‘ve. Pennsylvania, 247 F. Supp. 7% 12 (B.D. Pa. 1965) (courts: in these cases must locate the -fSline that acparates ‘mere matters-6f discipline from arbitrary and cape viens disregard of human Fights”). = Pe “VIE Ris Hts oF CoMMUNICYMfIOoN AND Expression A, cies ne =) 2 ee ( The distaste With whieh some observers view protonge l segregated, confinement attaches as well ta that kind, of- isolation | flowing from restrictions on and. censorship of pr isoners’ correspondence :. — The harm censorship does -to rebsbilitatton enannot he gainsaid. Inmates lose contact with the outside world and beggme wary of placing intimate thoughts — "De fendyfits have ap pended to their brief on appeal new rules. - me} regul ations recently promulgated by the New York Department, of “Correction and. eff: sctive October 19,1970, governing, among other things, brisoner discipline in all state cotrectional institutions \shich dppear to provide some new procedural safeguards. ° We consider it l@appropriate to comment on the constitutional adequacy ‘ot the new procedures for: they were ——— after the events be- fore. us an this appeal. . eet Come 39a - Appendix A. or criticisms of the pfison in- letters. The ‘artificial increase of alienation from socicty is ill advised.* The values commonly associated with: free expression—- . an open, democratic marketplace of ideas, the self-develop-_ ment of individuals through self-expression, the alleviation . of tensions by their release in harsh words rather, than. hurled objects —these values. ‘that we esttem in a free’ society. do not turn. to dross in.an unfree one.. ‘Letter writing ‘keeps the: inmate in contact with. the outside world, helps to hold tm check some of thes morbidity and : hopelessness: produced by prison life and isolation, stimu- = lates his more natural and human impulses, and otherwise may make contributions to better’ mental ‘attitudes and -reformation.”’ Palmigiano v. Fravisono, — F. Supp. — (D.R.I.. Aug. 24, 1970). - Suppression of -dive rsity and dissenting Views is: probably not.less apt in a, prison than, elsewhere to. hasten the stagnation and bineizucratization - of. the institution* that indulges in. it. See T. Emerson, Toward a General’ Theory of the First . Amendment 3-15 (1966), rg Whatever wisdom Hep re. might be in such. reflection, ‘we cannot say with requisite certitude that the traditional and. common practice of prisons in imposing. many kinds of | controls on the correspondence of inmates, lacks Suppoya in any_ rational ‘and constitutionally acceptable coneg a prison system. See McCloskey ve. Maryland, 3X EI pgs IE ale \ ait ice (2, 74-75, (4th Cir. 1964) CS ontrol of the mail to and from - inmates is an‘essential ad junct of prison. -administration e See also, Diehl v. Wainwright, ies F 2d 1309 (5th -¢ ~“ A970); Abernathy v. ‘Cunningham 338 a Fs 2d 779 (4th Cir. 1968) ; United States. v. Stahl,393 E. 101: (7th Cir.) cert. denied, 393 U S879 (1968) ; o arey W. Settle, 351 F.2d 483. ° \ = s - *3 Singer; Ce? -sorship of Prisoners’ Mail and the see er, 56 AB., 4.J. 1031 (1970). a . sy . os a , Ee ae ete oe ? ; ‘ Mh .- ; ; ; am 8S . = oe — ¥ . . 7 " . Appendix re Ms be : . P eos : a * z ; ‘ 425 iwereir, ty We note that Sih«tre tlid net contest a Validity of Warden Follette’s actiog in strikife the nan ofthis gixter Trom the list of Sostre’s authored cor - 2 . + respondents after it was fece tne dt heat he Wiis txing? Wetteps ; nate sister ‘as Vhicles for unauthorized cobre-. ~*~ ° "+ Kpondetive, SH fu 4 xupra, “Discipline. aml prison onylér . ate suficiont interests fo jnstit Y stch rtvuletion ineklental —* * to the contest of prinoners” speech. See Moraes’, Coaper, \*: + Vel BN9): Brennan, Fhe Sapreme.Coart aid the” T= ie ° Me 2s Fiolige Lifer pretation ug the First Jerr nd im: wf, m . Nyt Mere. Lo Ree WU ods). +2 a ae a SS f Mui qeuchin te both dowie ard the ease law, hiwever® ge '* a> Petters adhlresged to amtirts, public officials, wr ah attornes - 5 whew at prisometetmttemrs the lexalityof vither"his eriags? Seg r 2 tl cone igtion or the conditions of hix ites tevration, Sew, : ee *'e.w.. Soha wh Ve ude mt, US, ist (18N)): Cochran ve fii a. * Ravwsas, NE US, 2G MM): Be parte ‘Hall, H2US. M6 ait oi STIs; Cah mga ®. Ts wow, HH F.2d 90, 907 (4th ir. > \} “1905) ete censorship pesmitted of mail between inmates “5k, awl court w ith jurisbetiin to hear prisoner's cong plainits) ; Lf 2g Mt losken & Maraland, supra: Stilleer vy. Rhay, 322 ee ee . ,* ss o . : : ¥ 'Resfections on the extent and caricter of privmers’ corre- é Steep hened send c8ar math ior seneership in n@atywm theyts hae * s Wino. Iew regarihea! as issherean mrident.” in the “conndiiact dof “yeml- i qo tist ets ‘nM gud the captred ol craninetre tats, activities, preeceupa- . ° tee and other felatharships thergin.” Ler y Vahaslé ~352 F 24 —— “WU UT1 Sth air, PaG5). ° a 2. .* | tig e . oe : ve - - 3 * ’ ; P , , - * ‘ % “ . . 2 =a : R - > ‘4 a = ; . ] . ° ; . . P as “* . = * oe . fe . ° . ” - : ° ~ te s Atte . e e - * . x Pe * j ¥ material Prot otherwisis protected comfnunciations merely because they believe the albevations to be repetitious, false, -Or tuglicions. Cee Nolan v. Scafati, - baie Fo% ha ~ (Ist Cig, 1975) (alisent some countervailing interest other than we that prisener’s letter contained *“Yes.? authorities may not prevent immate from secking lersrsal assistance); Fualwodd x ‘ Clomarer, 206-F. Supp. 370, 377 (DD M2) (right to seek redress of grievances was abridwed by. punishonent for alleged false. accusations about prison conditions in. prisoner's letter ‘of coutplaint to public officials), Accordingly, we agroe with Judge Moiley that it was - - Improper for Warden Follette tp delete material from eer- eee tespotdence between Sastre and Wie attorney merely be- - cause Foliette thought the material irrelevant Yo Sostre’s ae appeal of dis.conviction, We beliciw it’was also Wproper . for Pollette.to refuse te mail a letter of complaint to the | "Postal Inspector, We leave a more precise tlelineation of — - oe boundaries of this protection, far future cases, ‘We Heed omy add that qwhén We say there may be cases which ; WIN present lafionvalsent a sufiicient showing be the State that through’ *® . : ‘2 ° . * ae . a ” : iia. ee a : od pp udir A. * some other means it Provides prisoners with.an adequate substitute for: the “jailhouse law yer.” Cf. Ba parte Hult, 12 US. OG (1941) (state mMy mot regtire that habeas’ petition be appreved by a corrections official ‘to see that * it was?‘ properly drawn’): Gilmore turn for nominally fee -privileges at the inmates? private lentline library. see . } > oe. os ~ .* te . Pos ne che cas pe rnfit punishmengdor the mere eX pression wf those Jelie is. > One enn harelly ; . - » ston. ef. Fudirood SE Temmey. 20 F®, Supp. S70) (DD. lh. In the absenes of arbitrariness or discrimination. 7 seu lacksan Y. Godivin, 40 F2d av) (ath Cir’ 168): : Rivers -* + ie 2 PRanste r, OOO FR, a om (4th Cir, 166): Sewe liv. Pe a low, +e : ne mR P2d 23 (2a it, Gh), we lo net sav on this’ record eS tharw arden Polle tte would have « xee waded his lexitimate he Thus, ‘le ‘yal material . might he acquir™! either fren the prison ee library through the prisoner s own eut-lg sourees, or ®ven frean “ste lintel f with prior appre: al of prise edtictals. os ' The authoritarian “bass” inniate is ne chimera. See po tiows. The Court in Jahason \ elrery, 393 CLS 483. “4ASS 7 recognized that p@ison writ writers might occasion: lly menace viewed. o hecipline, See alse flat f ce fd \ Railleaur. ay F. A (32, 37 ! ‘lr . Cird qwert. demeel, 268 FS: 862 CIOL) (testimeny of prison offi e . -~ - . . ~ . . . cals that rules restricting access ta law look. were ‘designed tw forestall aggressive. inmates from slemiuating weaker ones}: . * - eakrof We liefs apart from their expres. . . Ine ligts enrtiess the” necessary corollary thi uo owe minis net . P . . : > 45 Appendiy a —— - authority if he had confiseated the writings that ‘gnardk . found in Sostre’s cell following -his-release from. seqreca- tion. Whatever doubts we niechit have as te the wisdem- of . seizing anu immate’s politieal writings. we would net ‘Tightly overturn a warden’s judgment that possession of- the writ- ines tniecht subvert prison diseipline if there existed the risk of theif circulation amon other prisomers.’ However, Sostre -was punished simply for payttine, his thoughts on paper. with no prior warning aml ne hint that’ he intended to spirit ‘the writings outside his cell. ‘Té sane- tier suet punishment, “even though in thy judgment of , prison officials the writings wei “inflammatory? "sand “racist,” ds if the instaht case, would permit prison au- thorities te manipulate and crush thoughts unde® the phase af regulation. The indimidating threat of. future similar e “punishment would chill a wide rapee of+ prisoner expres -slon, noe Himited to that expression avhic h Follette night in * fact Ve cim dayigereus enough to discipline. The danger of undetected discriminatory panishnient af ideas is partieu- -— larly aeute. in the absence of statutory standards te stride the: exercise of Foflette's diseretion. Sed. et. Co. y, . é Lowisiana, stall ty ~~ & . ah, oe a (Ito): Ne Tengiede r , St Sal. x o* “SUS US. “7 (1939).. Amv real threat te prison secnrfty that Nostre's PHasSesS Og of his writings might hawesposed? could have been mef by ‘eonfiseation: rather than purtish- nent, See Sheltow v. Ti ‘ker, M4 U.S, 479 (19007, Lax . - _-+-——— --—__. _ — all = * . me . bad . - - - ™A case of suppréssion woukl? however, Pquire us te decide the Tolew: mee of such doctrines as the “clearand present danger” = » test” that courts have. relied npon in other contexts te decide the vadidity of restraints operating dircetly upset the comtent of speech. See Scheack v. V wited State a, 2 US. 47 1919) ; Dow Y Parker 3) F.2d S16, 822 (3rd Cir, 19S) Ev [tjo "Rtiiy the profithition of religious literatur:, the prison officials piust prove that the ltera- ‘Ture creates a4 cher anil present danget of... some . .-. substantial interference with the orderty functioning of ‘the institutien™): Knuckles’ v. Prasse, 302 r Supp. 1936 6D. Pa. 1%): Beaks " *v. Havvacr, 234 F. Supp. 27 (ED. Va. son}. . rad » i ’ . re ~ . . e - . ¥ ‘ . 7 4oa ; ~ 2 Appendix A: ra . | oo) VEY: ee, CONCLUSION | -s » : * z e = aoell fe PL ; — : Beciuse of thetnature. of this case, the multitude and lev *s considered opinion and the injunctive and’ other: lief er: anted, we have -been compelled’ to engage in this protracted. exegesis. In light-of what. we. have set. forth eur conelusfons- follow. : o +f. aT he oe witty fie B \ a ‘o f. Although not necessary ta the dispokition of Sostre's complaint, the distriet court held’ that sederal elements of ‘trial. oe procedure, enumerated in its tder, were. re- quired by due process in every instance Af prisoney dis- a caiple xity of claims raised and the extent of Judge get cipline, resulting In witholding of good time credit: to the’ prisgner or loss of his opportunity to earn good time. Be- cause of the importance of the question to the-state of New York, and the pti asiet V with whith similar questions are being Ittigated j 1 district courts of this jurisdiction, we are compelted ta say that the district court Was in error. All of the ele iments of due process récited by the district -eourt are not necessary to ‘tlie constitutionality of every disciplinary action taken against a prisoner. In light of chs, we reverse the district’ sourt insofar as. it enjomed defendants and othe ‘rs from so disciplining Sostre that he ’ foses ace rned 2 Roi time credit or is unable to earn food time eredit without full compliance with alt the procedural sigps'set forth in Judge Motley’s injunction. We do not “thereby imply that diseipline-in New York prisons may -be adiinistered ark) rarily or capriciously. We would not liehthe condone7the ahse nee “of such basie safeeuards avainst arbitrariness as adequate. notice, an “opportunity for the prisoner to rebly to charges lodged against him, and a reason: uh le iInvestivation. into the relavant. facts—at ” Appe ndia Al. least in cases of substantial disciplime. However, as con- .- + sideration of Sostre’s -case- (loes* not ‘properly -raise any -question whether New York prisons regularly 0 r syste me atically ignore mittimal due nrocess reqitirements, we Must reverse the order of the district court that defendants sub- - init for its-approval, proposed rules and regulations gov- -erning future’ disciplinary actions. In this connection, we +. +. note that New York State has recently promulgated piles: and regulation , ag ‘3. There’ is ito cause for an iajanetion to, gra ee the - principles annowmneed in Johnson v. Arery, supra, since no - Infractions of those. prinaiples have.been shown. Johnson ; cheery permitted reasofiable rules regulating the con- dat of imuates-in assisting Other inmates mm legal pareo- coodings: Sostre has*net proved that the sules regulating en — . — v “* See note 42, supra. = eee - 4 5 2. Sa = " - ; ; — eb ppr gti ae . : ¥ his right ty assist other prisoners in-their lewal affairs Were unreasonable and that his punishment. was for violat- ing’ such rules, Therefore, we ust reverse the district court insofar as it enjoined interferences with Sostre’s translation of letters of felow-immates sinee he had failed == ®. focomply with the rile requiring that fie seek -permission of the'warden: For the same reason, we reverse the in- Junction ferinst punishing’ Sostre for sharine with other intuates: his Jaw hooks, daw reviews, and-other leva mate- rials, and from refusing’ to permit Sostre te assist any other inmate in any degal-matter. . ; eds We have heli that Sostre was improperly punished ' for Possession of coustifutionally. proteeted Hterature. We perceive noe reason, however, to sit political speech apart from other kinds of constitutionally protect@l speech” We therefore modify the district court order s6 as to enjoin defendanis. Pollette nl MeGinnis, their employees, agents, suevessdrs, and all persons in active-concert and participa- tion-pith then, from puntshing Sostre for having literature ‘in his possession and for setting forth his Views’ orally or In Writing, except for Violation of reasonable regulations. * We do not hereby enjoin Olieiads from taking reasonadle. Measures to prevent prisoners from inciting disturbanees - and otherwise to protect ‘the security and order of New Yark ‘prisous, consistent with prisoners” rights tv freedom: of expression, Also’ we do not believe that there is any need for the ext raordinary procedure requiripe defendants _to submit: rules “aid regulations governing the reeeipt, @is- *% A e * . ite ‘ es & ° i. = ‘tribution, discussion and writing of political literature for the-approval -of the district court. os Ate ». We-have no reason to coneltide that New York prison — - offieials will not abide by- the constitutional rights of pris- oners as we define them today. We have .refused to set - : 4 : . - ce b. bere Pim Credit, ; ; ; . . ‘Meare Damages : ne - : . ~ 49a Appendix ~A. ). statements’ ahout his- impending libe ‘ration, and (4) possession of several items of contraband in his cell.’ Sostre did not even deny the truth,of the first three of these accusations and the fourth was -suppqrtéd by “ample evidenve: Nevertheless Judge Notley aes Follette’s findings ‘and téstimony and found that Sostre Ww as not —— for any. of these- in- ’ fractions: | Observance of the correct, ind pitaciibes would lead in this casé te reversing the trial court = respect to all - relief granted. . . \* aT ‘ . ; i. bes ites Say { ‘Iti order to maintairi discipline prigon inmates niay be’ re quired to answer questions fully. and completely. See United Stdtes ex. rel.’ Sperling vs. Fitzgerald, 426 F2d 1161, 1165 (2d Cir,- 1970) (Lumbard, Ch. J., a | Se Bos if oes ‘ ae i . a eo ba 62a ~*~ Appendix B. UNITED STATES DISTRICT COURT SoUTHERN District or, New York . 68 Civil 4058 % vr . ~~, . * Martix Sostre, . is Pe Plaintiff, against . Netson A. Rockrrencer. Governor of the State of New York, Patw BD. McGixxis, Commissioner of Correction of the State of New York. Vixscest Maxcest: Warden of Attica Prison, and Haroty W. Fouverte; Warden of | Green Haven Prison, Defendants. . a * vv - Opixiex aNp Orver Daten May 14, 1970* Constance Baker Mortrey, DQ. _oThis is @ civil rights action, 42 U.S.C. ¢ 1983, 28 US.c. > 145(3),. brought “by plaintiff, Martin Sostre, an “* Afro-. - American citizen of the United States’’ and resident of (ireen Haven Prison against the Giovernor of New York, the Commissioner of ( ‘orrections and the Wardens of two NewYork State prisons.’ Mr. Sostre is mo stranger to the New-York State prison system, having already served twelve Vearg, 1952-1964, four of which were spent in solitary confinement at Attica State Prison for Black Muslim activity (T. 3.7; 160-166). Ii is also no stranger to the federal courts with his civil rights complaints against New York prison officials (T. 4). fe seeured for Black Muslim prisoners their rights to-cer- ¢ * This opinton is reported at 312 F. Supp. 863. 63a mas eed Appendix I. tain unrestricted religious liberties during-his: prior inear- cerations Pierce, Sostre, Sa Varion “« La Vallee,, 292 PF. 2d 255 (2d Uir. 1961) and Sostre y. MeGinnis, 334 F. 24 “906 (2d Cir.), cert. den. 379 U.S. Su? (1964). His earlier legal activity also resulted in the elimination of some of the more outrageousiy inhumane aspects of solitary con- finement in some of the state's prisons? (‘T. 163, 167). Martin Sostre is again in prison.” This time he is there ‘pursuant to a sentence of 30-40 years, to be followed by a one year sentence and a sentence of 30 days for contempt . of court, imposed upon hin hy the Supreme Court of New York, Erie County. on Maré 18. 1968. (Def, Proposed Finding of Facet No. 1 and Exh. A.) ahs On the day of his sentence, he was immediately taken. to Attiea PMson where he remained overnight in a el] block whieh contained no other prisoners ¢T. 5-6, 157-158). The next anorning, he. was taken in & *‘one-man draft*’ to Green Haven Prison (T. 6,.538), According to the Deputy Warden ‘in charge of Attica (the warden: a de- fendant here, being on vacation). he sought Nostre‘s removal froin that prison ax soon as possible (T. 520). He, therefore, called tlie offiee of thie Commissioner of Corrections of the State of New York and spoke to the Deputy Commissioner who approved the. transfer (T. 920-521; Def. Proposed Finding *of Fact No. 11). ~The Deputy Warden of Attica testified vaguely and Without substantiation as follows: **1 thought it was best for the ‘ interests of the inmate and for the state that -this man he transferred to another institution’* (T. 521). Immediately after his arrival at Attica, Sostre bedan a legal battle for reversal of his conviction. He sought to mail an ‘application, for a certificate of reasonable doubt to the state court which he had prepared prior to sentener: but the guard at Attica refused to mail the application (T. IS1-182. 638-640). | 64a. Appendix Bo. : .* The next day, Nostre found himself in solitary confine- nent in (ireen Haven enete he remained for several davs “(T.S-9,11: PL Exh. 37 at 2: Det: I *roposed Finding of Fact No. 13)., He was then pe Fel bora to join the general popu- lation and to mail his applic ation for a certificate of rea- sonable doubt (7. Oe VOU), ’ aot. _ However, shortly thereafter, on June 25, 1968, Sostre was baick in solitary.confinement (now called ‘minitive segye- gation’ by defendants). He remained in such confinement until July 27 1969, whe ‘no he was returned’ to the general population pursuit “toa teliporary restraining order is- sued by this court in fle present acfion, followed by a preliminary, injunetion. 309 FP, Supp. 611 (S.DINLY. Sept. “4, 1969). A trial followed upon which were established the faéts found herein and, upon which the relief f granted in this opinion is based. . On -fune 24, 1968S, Sestre placed in the prison mail box for nailing to his atterney-p letter with handwritten legal motions and other papers ‘attached. One of these was a motion for change of veriue of the trial of his codefendant, Mrs. Geraldine Robinson, who had not vet been tried, from rie County (Butfaloy (T. 50, 53: PL Exh. 17). Te was called to the office of defendant Follette, Warden of Green * Haven Prison, who had the papers on his’ desk. The War- den asked Sostre whether he kad a‘license ta practice law, to which he replied in the negative (T.51). The Warden admittedly denied Sostre the right to*prepare legal papers . for his codefendant, since he was not a dicensed attorney, and flatly refused to-mail out the motion papers (Def. \Proposed Finding of Facts No. 2425: T. 1240-1241). At the same time, Warden Follette questioned Sostre about a reference in his letter,to his attorney about an _ organization. known as RNA. (Republic of New Africa) ‘“Iwcause defendant Follefte-was conéerned about a state- ment in plaintiffs May 19, 1968-Tetter to his sister’? (Def. j .. : 65a - Appendix B. ‘Proposed Finding of Fact No. 28; T; 1241-1242; PL. Eh. 20K). This statement reads: : \ “As for me, there is no doubt in my mind whats9- ever that i will be out soon, either by having my appeal reversed in the courts or by being liberated hy the Universal Forces of L cp oa The fact that the mititarists of this country dre being defeated in Viet Nam and are already engaged with ‘an escalating re- bellion in this country by the oppressed Afro-Anieri- can people and their white allies are sure signs that the power structure is on its way out. They are now in their last days and soon they won't be able to oppress anybody because they themselves will. be bhe- fore the People’ s courts to be punished for their erimes against humanity as were the German war * —eriminals at Nuremberg.’? (PL Exh. 19; Def.. Pro- posed Finding of Faet No. 28.)_ ° ial It is undisputed that as a result of plaintiit's refusal to cease and desist from ‘practicing law’? in the institution, and his refusal to answer, questions about R.N.A., and because of the statement in plaintiff’s letter to his sister that ‘the would be leaving the institution, soon,’’ defend- ant Follette decided to plaée plaintiff in the punitive seg- regation, unit (Def. Proposed Finding of Fact No. 31; T. 1248-1249). re, ~The proof also established: 1) plaintiff received no prior written noice of the above charges which resulted jin his segregation; 2) there was no record made of the diseus- sion with‘the Warden; 3) defendant McGinnis, the Com. missioner of Corrections, was notified of plaintiff's con- finement and the reasons therefor -but took no action (T. 692-700; Pl. Exh. 29, 29A-F); 4) -plaintiff was not charged with violence, attempting to eseape, incitement to riot or any similar charge ; and 5). plaintiff remained in ~~ 3 ‘66a Appendix DB. segregation from June 20, 1968 until released by order of this court, more than a vear later, on July 2, 1969, The parties have stipulated that as a result of solitary , Confinement for more than a year, Sostre has lést ‘1241, dats of **good time’? credit, siniee under the rules a pris- ener in solitary cannot earn good time [N. Y. Correction “ Law (6 220, 234 (McKinney. 1968); Pl. Exh. 1 at 5, PI. Exh. 31; Reply Brief of Def. at 20]. I a ‘There is-also no-veattispute as to the conditions: which. “Obtained in punitive segregation during plaintiff's year- long stay. There Was only one other person incarcerated in the same group of cells. as plaintiff (about four out of thirteen months) -from August 14, 1968 to Decomber 20, 1968 ( Def: Proposed Finding of Fact No. 55: T. 97-98). - One prisoner brought to solitary and placed in another sroup of cells committed suicide the next day (T. 127- 151, 400-406, °793, 839, 899-896, 905-906). Plaintiff was deprived of second portions of food (‘P. 887-888) and all desserts as a punishment tor the entire time (Def. Pro- posed Finding of Fact No. 41). He remained in his cell for 24 hours per day. He was allowed one hour per day of recreation in a small, completely enclosed yard. Sostre refused: this privilege because it Was conditioned upon submission, cach day, to a mandatory “strip frisk’? (eom- pletely naked) which included a rectal examination (Def. Proposed Finding of Facts Nos. 34-38; T. 88-90). He was permitted to shower and shave with hot water only once a week (Def. Proposed Finding of Facet No. 34). He Was not permitted to use the prison library, Tead news- papers. see movies, or attend school or training programs (T. 91-93, 96-97). He was: not allowed to work (T. 91). Prisoners in the general population who work are able to ° earn money with which they may purchase items from the O72 ; = Appendix BL. prison commissary, or purchase bodks, or subscribe to newspapers (T. 93). Prisoners in punitive segregation liave access to only a few novels and ‘shoot-’em ups”? Selected for them (T. 92- 95). But, as plamtiff and defend- ants* counsel put it, the crux of the matter is human isola- tion—the loss of “yrouys privi leges”? (T: 87-88, 1654166). Release from segregation is wholly within the discretion _of the Warden. However, a recommendation from a non- professional, so-called, group therapy counsellor might help (T. 134-136, 388, 773-774. 917, 921). . This court finds that punitive segregation under the conditions to which plamtiff was sulijected at Green Haven ix physically harsh, destructive ‘of, morale, dehumanizing in the sense that it is needlessly degrading, ard dangerous to the maintenance of sanity when continued for more than a short period of time which should certainly not exceed 15 days (T. 300, 317-320). After plaintiff was sent to solitary confinement on June _ 25,1968, his cell was searched. The Warden alleged in an affidavit filed on July 3, 1965. that the search revealed contraband. This consisted ‘of: 1) a letter from a eourt belonging to another inmate (whieh plaintiff was translat- ing into Spanish for that other inmate) (T. 66-67; Pl. Exh- 21); and 2) two small pieces -of emery paper (Pl. Exh. di, at 2; T. 683-684). A Disciplinary Report dated June 29, 1968 (Pl. Exh. 22-C) reeords that plaintiff was repri- ‘manded for possessing the letter.. There is no similar report regarding the emery paper, although the Warden alleged both items were found at the same time (Pl. Exh, 37, at 2).. The Warden claims that the eme ry paper was ‘adaptable for the fashioning of a key or lock picking .tool’’ (Pl. Exh. 37 at 2). Plaintiff denied ever having seen the emery paper before frial (T. 65-67). The court. believes plaintiff ’s testimony for the following reasons: 1) plaintiff was already in punitive segregation when the ‘emery paper was allegedly found in his cell: 2) the Disei- me ee - ‘ i aan under ‘his court- imposed+sentenee. 9% * * Before plaintiff could have been constitutionally. “sone teneed’’ to punitive segregation, he: was entitled to: 1)" written notiee of the charges against him (in advance _ a hearing) which’ designated the prison rule violated; 2) a hearing before ‘an’ impartial official at which he he a the right to cross-examine his accusers and ¢all witnesses im remattal; 3) a written record of the hearing, decision, rea- 4S . \4 re ita Appendic B, sons therefor and evidence relied upon; and 4) retain counsel or a Gauunsel substitute. A prisoner carries with him te prison his right to pro- cedural due process which ‘applies to charges for which he. may receive punstive segregation or any other punish- ment for which earned good time eredit may be revoked or the opportunity to earn good time eredit is denied. Therm is no place in our system of law -for reaching the result which occurred here without the safeguards listed above. Mem pa x. Rhay, 289 U.S. 128: (1967 ): lu re Gaalt. osc U.S. 1 (1967); Keut v. United States. 382 U. &. 34," 294 (1966) gd lewett v. State of North Carolina, 415 F. 2d 1316 (4th Cir. 1969); Shone v. State of Maine, 406 F. 2d “S44 (1st Cir.), racated as moot, 396-U. S. 6 (1969): cf. Talley 7. Ste phe WS, "247 F. Supp. 682, oso (RK. p® Ark. 1965).* Prisoners do not lose all of their rights under the Constitution when setiteneed to prison. Washington ¥- Lee, 263 F, Supp. 327 (M.D. Ala. 1966), aff 'd- per curiain. 390 U.S. 333 (1968); Sostre ¥. UeGinnis, 334 F. 24 324 F. 2d 906 (2d Cir.), cert. den., 379 U.~ S. 892° (1964); Piereé, Sostre, SaMarion.v. La Vallee, 293 F. 2d 233 (2d Cir. 1961). * And basie constitutional rights cannot be sacrificed, even in the case of prisoners, **in the interest of adminis- trative (fiicieney.”’ United States ex rel. Marcial v. Fay, . 247 =F. 2d 662, 669 (2d-Cir. 1957). cert denied, 355 . &. 915 (1958): Burns v. Sur ison, 288 F.Supp. 4(W. D. Mo. 158), wrod ifir d, 00 F, Supp. 759 (OW. D. Mo. 1969). See President *s Commission on Law Enforcement and Admin. istration of Justicé, Task Force Report: Corrections, 82.83 (1967): PBesident *s (‘ommission on Law Enforeement and Administration of Justice, The Challenge oF Crime in a- Free Society. 18] (1967). See also Barkin, The Emer- "In the? relate] cose of Jackson v. Bis lop, 40H ¥. 21 71 (Sth ir 198). the Eiehth ¢ ‘revit imstracted the districe court to en- ‘ A » @& mr dy Use of the strap. oa / ani Appendir BL =) gence of Correctional Law aud the Awareness of the Riahis of the Couricted, 45 Neb. Le Rev. 669 (1966): The Ameri- can Law Institute, Wodeb Penal Code. © 304.712) (Pre- posed Official Draft 1962). : III. Access to Coverts axp-Puceuec Orrictars _ The ‘efusal to mail the certitieate of reasonable doubt - immediately after plaintiff arrived at Attied and immedi- _ ately after his arrival at Green Haven was not .such -an unreasonable restriction of plaintiff’s rights as to require a finding of unconstitutional action by defendants in this respect. The certificate of redsonable doubt was mailed shortly after plaintiff's arrival at Green, Haven, “Ap- parently, the few days involved did not defeat plaintiff *s ‘Tight to file such a certificates since-no claim is made that - the delay interfered with the. timeliness of its filing. There is no quéstion that defendants cannot unreason-, ably ‘restriet the right of plaintiff to apply toe the state | court for” — cy. Joliuson v. elrery, supra; Ex parte Hull, 312 U.S. 46 (A941). A) right-of access to the courts is one se the rights a prisoner clearly retains. It is a precious right, and its ashninistrative ‘ly unfettered exer- ise may be of incaleulable importance in_ the protection -of richts « Ven more precious.”* ( ‘Aeman v. Peyton, 362 Pr. 2d WD. 907 (4th Cir.), cert. den., 385 tv. s » (TMi). See, Stiltner v. Rhay. ao? F. 3d 314. S16 (9th ¢ r. 1963). ceri, den. sub wom., Stiltuer v. Washingtoii, 376 7 Ss. fro (164). s ‘ s N.Y. 2d 433 (1960). which upheld the right ef the prior , Warden at Atfica Prison to intercept and withhold from al ppendix LR. - a, prisoner communications to and from an attorney deal- ing With matters other than ‘legality of detention and treatinent ces In short, the prisoner could write to his attorney about legal matters and treatment only. Brab- son, supra, at 437. The court in Brabson had also limited the prisoner's right to write to executive ollicials to **eom- plaints of unlawful treatment”, but it placed no limitation on anything written to a court by a prisoner. Jd. . -Plaintiff contends that defendants? arbitrary and capri- cious action with respect to his correspondence with his attorney vidlated not only his Fourteenth Amendment right as recognized by the case Jaw but also his Sixth Amendment right to the effective assistance of couns »}. This court agrees with, and adopts; the bibding! ond rationale, of the three dissenting judges (Keating, Ruld, Van Voorhis) in Brabson. supra. Judge Keating, who Wrote the ilissenting opinion, said: | I Ieli¢ve that these limitations -as well as the an: thority given the Warden unnecessarily. interfere with and endanger this prisoner's right to comimrnicate with his attorney and govermnental officials having either jurisdiction over the penal system or the. power and authority to correct conditions existing therein... . ee ae : . Judges and courts are not the only persons or ‘ agencies capable of granting relief to prisoners ¢om- plaining about the ewality of. their treatment. or *. detention. For this reason, 1 see no basis for «dis- ‘tingnishing between letters to courts, to the prisoner's attorney oy to government officiats. In all of these cases only the recipients of the letters should be per- mitted to determine Whether the contents avarrant their. ~ Tia | ppendix B. intervention and not the’ very person whose *jurisdie- tion and conduct are’ being questioned. - : * * * Exactly how the exercise of this right. will under- niine prison discipline and authority is not made clear The Attorney General alleges that ‘prisoners would be able to carry on unauthorized activities through “ comnanic ations from prisoners to their attorneys and’. thence to third parties.’? Uncensored ¢ ommnunications, however, presently occur on personal’ Visits to the. prison by the prisoner’s attorney and members of his - family, without any apparent undermining of prison discipline. In any‘event, tlie right of a prisoner to unexpurgated communications with. his attorney is so significant that itgoutweighs the danger of frustration of prison rules regarding outside activities in the rare. case where an attorney—an officer of the court—would assist a prisoner in avoiding legitimate prison regu- lations. ; + Judge Keating then went on to reiter ate, 2 as other courts had, that prisoners do retain certain ‘constitutional rights in prison: - The right of an individual to seck relief from egal tre: atment or to complain about unlawful conduct does not end when the doors of a prison close behind him. True it is that a person sentenced to a period of con- finement in a penal iistitution is necessarily deprived of many personal liberties. Yet there are certain ‘rights’so necessary and essential to prevent the abuse “of power and -iJlegal condyet that not even a prison sentence can annul them., As this court onee observed, ‘An individual, onee validly convicted ‘and placed under the jurisdiétion of the Department of Cor- eae A ppendix Bi. ~~ rection * is not to be divested of all the. soit and unalter ‘ably abandoned. and forgotten Ty the re- mainder of society.’ EP, ople ex rel. Brown ¥. Johu- ston, 9 N, x, 2d 482, 485, 215 N.YS. 2d 44, .46, 174 N. BK. 2de725, 726). Among the rights of which he may not be deprived ix the right to communicate, without interfe ‘rence, with officers of the. court and governmental offic ials ; with those persons capable of responding to calls for assist- ance, No valid reason, ‘other. than the shibhole th of prison (liseipline, has been adv anced for the denial of this right in the case before us. | believe that courts sheuld look behind i Inappropriate slogans so often of- fered up as ‘excuses for ignoring or abridging the constitutional rights, of our citizens. 19 N. Y. 2d at 438 440. See also, Fulwood vy. Clemmer, 206 FL Supp. 340, 376 (D.C.D.C. 1962): Burns v. Swe ‘USONs 300) F. Siipp. 759, 762.7W. D. Mo. 1969). Mor the foregoing reasons, Warden Follette’s refusal to mail plaintiff’s-letter to the United States Postal -In- Spector was also improper es IV. -Freepom or Por. ITICAL FE XPRESSION laintif?’s ye i is Te- lease from sala: wii ‘nt on July 2, 1969, plaintiff was charged with the possession of contraband found in \hont a month-after this court ordered his cell. This consisted of political literature, such as a list of officers of the Black Panther Party and Republic of New -Afriea, and’ ‘* Revolutionary Thoughts’ put on paper by plaintiff. Some of this matter was copied from bei ‘Wspapers and magazines Which had: heen legally — eukurly cireulated in the prison (TT. 71-77: Pl. Exh. 2: This information was characterized by the. Deputy W Boe as racist and, consequently, contraband (T. 1071-1073). \. Appendix B. : The Deputy W ardep found plaintiff gtuity of possession of such contraband and punished him by the denial of 60 days of yard time and movies (T. 1071- 1072; Pl. Exh. 29E). This action on the part ‘of defendants must. be considered in conjunction with the Warden's sending Sostre to solitary confmement initially heeause of the state- ment ‘made in,the letter to “his sister and because of . Sostre’ s refusal-to answer juestions about R.N. A. Thus. ; considered, there is no room for doubt that Sostre’s tréu-- bles with defendants’ steni-net-fromelgs acts.or threats to. prison security, but from iis political thoughts and beliefs, as expressed in the literature he reads and tte letters he. Writes (Pl Exh. 29, 29A- 29F;)... non-white wardens or de ‘puty wardens or commissioners Or,’ “de ‘puty coinmissioners of corrections. At Attica Prison, ‘under the. direction and control of de ‘fendant oe ‘Usi, it is ealleged, there iS a non-white population of 7 of all in- mates’ but-only one or two non-white phi Plaintiff alleges that as a result of the foregoing facts, non-white peisoners,. and especially Afro-American prisoners, are - Sangeet to dis¢rimination, persecution, and denial of their ‘basic human rights, and the hadges and ine ide ‘nts of slavery inv ‘jolation of the Thirteenth and Fourte enth Amendments (. Ame nded Complaint, paras. 20, 21). ae Fe Plaintiff alleged in his complaint that the defendant -"e % oO a" eitieeaacel L. ; Plaintiff, of course, = standing to challente any. ra- cially discriminatory practices pursued by state officials ij the state’s prisons where he resides and is subj&t to aN side. ‘Was mgton v. Lee, 263 F. Supp. 327 (M. —. Ala. 1966), afd per curiam, 390 U.S S. 333 (1968). Llowever, plaintiff has failed to. carry Mia’ burden of jroving, by a fair preponderance of the evidence, that the paltry murder of non-white guards and other personnel, acknowledged hy defendants, resulted from racial discriminati ion. avainst qualified applicants or a conspiracy to: der ny’ Dlacks and Puerto Ricans their-rights. | | Defendants ‘claimed that wardens, guards and other prison personnel “are appointed pursuant. to the. state*s civil service ‘system. Plaintiff offered no proeot to rehit this assertion.” Defendant also claimed that the low per- centage of non-white pe rsonnel at certain prisons—incliud- ine Green ‘Havew and Attic ‘a—results from the fact that they are located in upstate rural areas Where there are’ relative’ y few non-whites and Puerto Ricatis. © Non-whites and Puerto Ricans; ‘therefore. have not applied for posi- tions in those upstate prisons despite ‘ampaigns of re- 2cryutment, preferring assigniient ‘to Sing. Sing Prison Whieh is nearer to New York. ity. Plaintiff again offered ..° ne proof to rebut this assertion. As to the situation at Groen ‘Haven, plaintiff, himself, testified that just after this suit was commeneed, a few -hew non-whites, were adi ted to tlie guard staff (FE. 1317 i- LISTS). From this evidence it may be inferred that plain: tiff’s claim is correct: but this evidence also tends to. SUS=_ tain. defendants’ PES that. they have heen. trving to 1- -eruit more.,non-whites. In this connection, it. should -be : noted that the prison doctor at Green Haven, who testified upon the trial, was a black man. This, again, tends to. sup- \ port. defendants’ claim of .non- discrimination. In any \event, in the absence ofa fair: prepenies rance of proof ‘of . \ ° . ?. S4a Appendix B. disefimination or- proof of failure to specially recruit, no relief can be granted as to this claim. The court does not ~- understand defehdants to dispute their duty to remedy the distorted situation by programs of special reeruitment. The third cause of action is, therefore, dismissed as to ‘0 parties.- Sinee. Governor Roe ‘kefeller was named only: this third -eause of action, relating to this alleged oan acy, and plaintiff’s case completely fails as to him, this “CASE as to him is dismissed.” “eo os a a VES eae Despite the language of the Second Circuit im Wright v. McMann, 387 Te. 2d 519 (1967), squarely upholding juris-* diction under 42 U.S.C; y 1983 ans 28° © .S.C. » 134503 in a suit for injunction and damages against Daniel Me- Mann, as Warden of Clinton State Prison, defendants Claim that this court is wholly’ without jurisdiction of the mstant suit for the same relief bee ause it is admittedly brought against defendants in their official capacities as ‘opposed to thetr individual capacities... It is, therefore, «tefendants say, a suit against. the state, long since barred by the Hleventh Amendment. In addition, de fendants claim that the Civil Rights Acts-did> not repeal the Eleventh Amendment and, consequentlt, a ‘state is not person Within the meaning of Section 1983. >In this connection, defendants called to the. court’s attention a recent Fig: — Cirewit ease, Zuckerman. v. Appellate Division, 421 F. ©6525 (1970), in which the eourt held that the ee ~Division,a New York Sti tee ourt, is nota ‘person’? within. the meaning of 42 U.S.C. § 1983. In so holding, the court relied upon Monsoe ve Pape, 305 U. §.-167 (1961), whieh: held that a niunicipality’ is nota “person ’ within Section So, and’ Williford. vy. California, 352 I. 2d 474 (9th 1965), holding that a state is not a ‘He ‘rson”? within the contemplation of Section 1983. Defendants, relying upon ¢ * ment.. “SSa eee Appendix B. ras Jf Zuckerman, argue that since pkaintiff genitits that hig, suit against defendants in. thei ir “official Gaypacitios is in reality, a sult against the State, the cart is Phivwine Without Jurisdiction under Setfion 1983. 28S U.S.C. S 1945(3);” « Plaintiff hes not sued the State of New York as’ did the plaintiff in Williford .. California, Supra, or any part of the judicial arm of a State as was the case in Zucker- man.” Plaintiff has sied indiv iduals, only, as state “officers. The question, therefore, is whether state officers, qua state officers, are. amenable to suit for injunction and damages under Seetion 19823 Tlie Ie eventh Auiohdnont to the Poderal Canstiteten has been construe biting a suit by a citizen. of a state against the of which he is'a citizen without itseonsent. Hans v. Louisiana, 134-U. S. 1 (1890) ; Pogue . . Terminal R. of A ane: State Docks De - oti. . 1S4 (1964) (dictum). The Fourteenth Amendment, on the other hand, pro-- vides that, . . . No’State shall-. .. / de ‘prive any person. of life, liberty, or property, without due process: of law: nor deny to.any person within its jurisdiction the equal protection of the taws.’’ Section By “ As ‘a result, enforcement of the Fourteenth Ainendment _ has invelved the Supreme Court in historic attempts to’ reconcile its*econstruction of the Eleventh Amendment with the unequivocal prohibitions . of . the Fourteenth Amend- A. THe EveventH AMENDMENT Ever since .hx parte Young, 209 U.S. 123 (1908) state attorneys general and other state officials have been regu- larly enjoined from enforcing state statutes whic h vidlate ‘the Fourteenth Amendment, despite the. Ele venth Amend: . ment, as a ‘result of a -Court-inade fiction. This, fiction, has lived: on, despite the Court’s) own immutable view ~ Be . f _stppendiv B. a thatethe Fourteenth. Amendment. is applicable only to “state action and not privat® action. C. Wright, Law of Federal Courts § 48 (2d ed. oe KK. Davis, 3 Adminis frateve Law Treatise 84 27M, 27.10 (Supp. 1965). The Court in Ee parte Younn rationalized that, when a’ state irial sets to enforee a state statute which violates a prohibition of the Fourteenth Amendynent, he is in’ that, eats striped of his offieial character, and ix subject in Iris person to the consequences Of his individual conduct, ? | SSa . ae Appendix B.. : a In Westberry, the District Court held that the Eleventh Amendment prohibited welfare recipients from suing the State Welfare Commissionér in his offigial capacity for. damages. The court conceded that the Fourteenth Amend- ment and Section 1983's enforcement of that Amendment supersedes the Eleventh Amendment in equitable actions, .. but ruled that such a doctrine should not be exiendéd to damage actions because actions at law would alTect state ‘treasuries. This court does not agree with the District Court’s analysis in Westherriy beequse it does not take -into account the effeet which the vast equity powers of-a.- federal. court may have upon state treasuries int enforei ine, _the Fourteenth Aaendinent, as demonstrated by ch v. County School Board of Prince E dward County, 377 U. 218 (1964). In Griffin, after rejecting. the Kk leventh pracy ment argument, the Couft held that it would he proper to force the reopening of public schools in Prince Edwayd County by + ‘requir| ing]: ‘the Supervisoys to exercise the power that is theirs to lev¥ taxes to raixe funds adequate . to reopen, opefate, and maintain . . . a.publie sehgol sys- tem” of that county. /diaf 233. — - = : An jnjunection that tells a state agency how it aust collect and spend its money inanifestly affects a. state’s treasury. Certainly, if the extraordinary remedy of an ‘injunction can be used against a -stute to carry out the mandate of the Fourteenth Amendment, then 1 the ordinary | ‘remedies at law can be used: e . From a practical point of view, a state pffic ial or a state commission or a state agency, and not the political entity called a state or one of its political subdivisions, | must be before. the court since, as the Supreme Court has already’. noted, a state can act only through its agents’ it can aet .in no other way, This,concept of state action has manifest practical judicial considerations embodied in it: If an- order is shiply issued against a state, who is résponsible? 892° ao ppe nd ix Be Is it the governor, the legislature, the judiciary? » How is” an injunction against a state enforced? Who is brought in on contempt proceedings for failure to comply with a damage award! Clearly, unless some state official or agency is specifically enjoined it is difficult to see how such an injunction ean be enforced. Sec, ¢.g., United’ States v. Mississippi, 380 U.S. 128, 141-142 (1965).. The same is also true with respect to a judgment for damages. If the jude- ment runs against a state qua-state, or a munic ipality. as . opposed to one of its Ollicials or agencies, how is*that judg- ment enforced? B.. Setrion 1983 Actions . In Monroe vs Pape, 365 U.S. 167 (1961), the Court held: “. . . that Congress has the power to enforce provisions of the Fourteenth Amendment against those who carry a Viadge of authority of a State and represent it in. some capacity, whethe . they act in accordance with’ their author- ity.or misuse it?) /doat 171-172. It then held that Con- gress, in cnnatina Section T9S83, meant to give a remedy to parties deprived of constitutional rights **by an official’ s ahuse of his position.”? Jd. at 172. 42 U.S.C. § 1983 provides: = ° Civil Action for Deprivation of Rights . Every ‘pe rson, Who, under — of any statute, oradi- nance, regulation, custom, or-usage, of ny State: or Territory, subjects, or causes to be subjec ted, any citi- * zen of the United Sfates or other. person within the jurisdiction thereof to the deprivation of any rights, + privileges, or immunities secured by the Constitution and laws, shall be liable to the pafty injured in an .action at law, suit in equity, or Y other proper proceed- ing for redress. ° rr Appendix B. In Monroe y. Pape, supra, at IST, the Caurt sidhieked to: the definition of the words ‘*under color of” state law as formulated in United States y. Classic, 313. U. S. 209, 326 (144) (in construing 18 U.S.C. > M2), and applied it to. Section 1983: fon . ** Misuse of. power, possessed hy virtue of state [aw - and made possible only because the. wrongdoer is: . clothed with the authority of state law, is action taken ‘under coler of? state _ 4 eee = ate Hho UL Sat S84, : lt expressly-rejected, once again, the contention thatthe phrasy ‘under calor of state law included only action taken by offi¢ials pursuant to state law. Jd. at I84,-185, The phrase, therefore, inelndes action taken by- state offi- citis yithout state autharigation. Accord, Kerr x. City of Chicago, —— F.2d —— (No. 17545) (7th Cir. Maréh | ee ISTO). 7 . The Court ‘in Monroe also , ruled that Section 19823: “. . . should be read against the hackground. of tort. lia- bility that makes a man responsible for the natural conse- quences of his actions.’ Jd. at 187. pee sa Finally, with respect to whether a municipality is a **per- “son” within the meaning of Section 19S, the Court held: “The response of the Congress to the proposal to make municipalities liable-for certain actions being brought with- in federal purview by . . . [1983]. was so antagonistic’ that we cannot believe that the word ‘person’ was used in - _ this .particular Act to inetude’ them.”’ fd. at 191.7% The . legislative history upon which this definition of *‘person’’ was based, revealed that “ ‘the House had solemnly de- cided that in their Judgment Congress had no eonstitu- tional power to impose any obligation upon .county and town: organizations, the mere “mstrumentalitrfor the aed- “—_ =. in a Jla- Appendia B. . ministration of state law.’ ** Jd. at 190 [quoting from Cong. Globe, 42nd Cong., Ist Sess, SU4].° That statement. can be read to mean tliat the House believed that although Con- gress could impose a liabilits on the states to respond in damages, as the principal, it could not Mpose any* such liability upon +‘the mere instrumentality for the adminis- tration of state law.”*| The Court expressly did wot reach the policy considerations underlying the opposite result, such as the meed for responsible defendants in suits against police officers. Id. at-191. And. most significantly for the™ instant cage, it did wot “reach the coustitutional question. whether Congress has the powrr to make municipalities _ lable for acts of its officers that violate the civil rights of individuals.’’ Jd. #t 191 (Emphasis added). . ; In this case, however, we are not dealing with a munici- pality. We are-dealing with state executive officials. It _ is clear that State officials, qua state officials, are “persons”? c’ equitable and legal relief. : Within. the contemplation of* Section 1983 because, as the Court said in “Mouroe, the purposé of that Section is to provide a remedy against **state officials’? who abuse their. power. And the Second Cireuit said in Kisen vy. Eastman, 421 F.-2d 560, 562-63 (2d Cir. 1969): ** Actions against a gavernimental official acting ‘under color of? statutes and. ordinances are what 42 U.S.C: » 1983 is mainly about.’” The ‘instant suit is an action alleging deprivation’ of ewfl rights—jt is one- wherein the rights and immunities are those comprising personal liberty.,.not dependent for their existence upon the infringement of ‘property rights. Eisen v. Eastman, supra, at 564. Therefore, this case falls squarely within the contemplation of Section 1983 and this court thus net only has ‘jurisdiétion, 28.U.S.C. § 1843(3), but the power, in a jurisdictional sense, to grant both The instant suit also predicates jurisdiction in this court on 2S U.S.C. § 1331, the general federal question jurisdic. ‘tion statute. In Bell y. Hood, 327 U.S. 678 (1 Court held: **And it is established practice for this junctions to protect rights safeguarded b - 9QPa + Appendia B. ‘ourt to sustain the jurisdiction of federal court? to Issue in- tution and to restrain individual state offiesg_from doing what the 14th Amendment forbtds the state to do. More- over, Where federally/protected rights have been invaded, it has been the ruleZrom the beginning that ceurts will -be alert to adjust their remedies so as to grant, the necées- sary relief”? Jd, at GS4.. - C. Exhaustion of Administrative Remedies The State has not seen fit to provide a plain, speedy and adequate adininistrative remedy.in a case-of this kind. The only administrative, remedy whieh Sostre had was to write a letter to the Commjssioner."’. However, this, would have been futile since the evidence shows that soon after Sostre was placed in punitive segregation the War- den, himself; advised the Commissioner of his actions with respect to Sostre. This was in early July L968 (T. G99). rom Mareh 19G8 to October 968, the Warden sent memo- randa and letters te the Commissioner revealing his ae- — - tions with respect to Sostre (PL. Exh. 29, 20A-29F). Phere hid been an inspector from the Commissioner’s office at the prison in September L9GS who made a special memo- ~randum to the file on conditions. in punitive segregation at Green Haven (Def. Exh. BB; T: 1163-1164). There was atso a general report. in’ September, 1968 regarding conditions at Green dlaven to the Commissioner (Def. Exh: AA) which also reported: on conditions in segregation. The. Commissioner took no action with regard to” Sostre or the Conditions in punitive segregation until after Sostre” filed his pro se complaint on October 15, 1968.) ‘The Com- . missioner then sent to the Warden a letter which had been . . 6), the - the Consti- | 93a - -Eppendi, i. written to him. by a private citizen on behalf of Sostre in ‘which he requested the Warden to ‘give [him] com. ° plete information so that [he'] may he in a pogition to more — adequately answer [the | inquiry’? (PL Exh. 30). There is no dispute that the Cosmmissionér was fully advised of the treatment afforded: Sostre and of Sostre’s condition in segregation but never took any action AT. 700). The Second Cireuit said in Eisen v. Eastman, supra, at 569, that exhaustion of state administrative remedies is not required, in actions under Section 1983. where the administrative, remedy is Landiowiante or where it is cer- tainly or probably futile, citing Houghton v. Shafer, 392: U. S. 639 (1968). In this case, as in Houghton, the de- ‘fendants, ineliding the Commissioner, take the position “that the rules were validly and correctly applied to peti- tioner. The only récourse available to plaintiff was to write a letter to the Commissioner, the very person to whom the Warden. had already reported and. who takes this position.” In a case such as this, where the ‘ person with the power to act has already been informed of the facts, it would be **to demand a futile act’? to require an aggrieved person t6é first appeal to such person before resorting to.a federal court for relief. “Houghton at 640. VII. Ixuunctrive Revier The eases in which injunctions have been-issued against ; . . ° : % * « state officials for violating Fourteenth Amendment rights in the last two decades are legion. Such injunctions issue, as a matter of fight, where a violation of constitutional rights has been proved. This court has no discretion to deny injunctive relief.to a person who clearly establishes, after a trial on the merits. that he ‘is being denied his: constitutional rights. Cf. Henry v. Greenville Airport Commission, et _al., 284 F. 2d 631 (4th Cir. 1960). In addi- tion, the court's s decree, where warrante ‘d, may provide for ~ Pa) 94a- Appendix B. the retention of jurisdiction to insure that the injunetive order is earr ied out in an orderly fashion, Brown v. Board this. of Education wf Topeka, 349 U.S. 294 (1955); Clemous v. .~ Board of - ‘Education of Hills ‘boro, 228 FL 2d 853, 859-860 (6th Cir). cert. den, 350 U.S. 1006 (1956), or to ajlow for . ‘= the amendment of state rules to conform with the decree, : Sostre v. McGinnis, supra, at 912-913. However, the in- “junetion must issue. , se , * _ _* Defendants Follette, Me(linnis, an Maneusi will be en-. ‘joined from returnims plaintiff to punitive segregation for charges previougly preferred against him. They will be further enjoined from pkiecing ‘plaintiff ip punitive segre- ; gation or subjecting hjm to gny other punishment as a re- sult of which he loses acerued good time credit or is unable . to earn good time credit, without: : wi é . ‘ ; . 1) Giving him, in.adyatice‘of a hearing, a written copy - *. - . / of any charges made against him, citing the wriéten rule ae ee -or regulation which it is charged he hax*violated ; 2) - Granting him a. recorded hearing before a disinter- . ested official w he “re he will be entitled to cross- examine his ‘ accusers and to eall witnesses on his own behalf; a - : 3) Granting him the right to: retain counsel or-to ap- a point a counsel substitute ; ‘ : 4) Giving hin, in. writing, the decix ston of. ihe bearinie officer in‘which is briefly set forth the evidence upon which it ix based, the reasons for the decision, and the legal basis for the. punishme nt imposed. ‘ ea Defendants will be required to credit plaintiff ith the « ‘ i244! devs of good thine credit ‘whic hohe wassunable to” earn while wrongfully incarcerated in punitive segregation from June 25, F9GS to July 2 1960. °° tee Tar Defendants will be required to submit proposed rules and -. 4 regulgtions governing: future disciplinary charges and. Fe \ . it . \ doa ° \ ° he . a Appendix BR. hearings where, the possible punishments include punitive segregation or gther loss of, or inability to earn, good time credit. “See Sostre v. McGinnis, supra, at 9123"cf. ln re. Gaull, supra, ; \. oF. Defendants Follette, McGinnis, and Mancusi will also he permanently enjoined from censoring, refusing to mall, or refusing to give to Sostre: 1) Any communication be- tween Sostre and. the following—(a) any court ; (b) any public official or ageney; (¢) any lawyer; (Ad) his code- fendant in the alae matter pending againet\ shim; and, 2) Any letter relating to any legal matter to or from’ any other imnate of Green Haven who requests the assistance of Sostre in translating thet letter inte English. « Defendants will also ke permanently enjoined from pune. ishing Sostre for sharing with other immates his law: hooks. law revjews, and other legal materials. and Trom refusing: to permit Sostre to assist any other Inmate in any legal matter as long as defendants have not provided any alterna- tive aneans of leg: il assistance for such inmates. -|Sostre, of course, may not receive compensation in any fern. for furnishing such: assistance or for lending law. books or other property, There was no claim here that’ Sostre re- ce dived any-suclr compensation. | | . * The complaint’ alleged that plaintiff had heen cuhdecton to, punitive segregation “because of his participation ‘in tlie black, liberation movement and because of his state- ments concerning the racist and oppressive nature of the prison sv ste mt, as directed and operated by the defendants: and others’ * (Amended Complaint, para! 19). - This court has found that jilaintiff was punished because of his politi- cal views, which the prison authorities find offensive, under the pretext that Sostre had yolated prison rules and regu: lations. At onsequently, defendants Follette, McGinnis, and Maneusi will be en joined from punishing, Sostre for having in his possession political literature and for setting forth his politieal views orally-or in writing, except’ for viola- be pie e $ “mental anguish. § -"OGa Bperner RB. —4 - . tion of reasonable rules approved by the-court regulating freedom of speech. Defendants will ‘be required to submit * proposed rues and regulations governing the ree eipt, dis- tribution, discussion and writing of political literature for court approval. Vill. Damaccs’ tras The: final issue’ ins this’ case ‘is plaintiff” s prayer for $1.: 200,000 ‘damages. As dise ‘ussed above, plaintiff’s right te recover damages against state ‘officials in, their. official ‘apacities, who* ‘Violate rights secured to him by he Four- teenth Amendment, is provided for hy 42 U.S.C. $1983. The ev idence shows that plaintiff was seibsiecteal to puni- tive segregation Without due process of law for more than one year under conditions which violate pgesent standards of decency, The court finds that such -eruel and unusual punishment: over the-long period’ of time involyed here _ fesuted in injury to plaintiff as follows: 1) severe physical , = ations, i.c¢., loss of energy-giving food and loss of, exe rcise, 2) ne edivas degradation, 3) loss of work oppor- tunities of a re habilitativefnature, 4) loss of money. which might have been earned by working, 5) loss of schooling and training. opportunities, 6) loss of self-improvement through reading hooks ¢f one’s own choice, and.7) great ‘Therefore, the court ‘awards plaintiff $25.00 per day for every day spent in punitive segregation (372 days), or a total of $9,500 coyipensatory damages against defendants Follette ‘and MeGinnis. **Compensatory damages for dep- rivation of a federal right are governed by federal — ards, as provided by Congress in 42 U.S.Ce § ree Sidlivan., v. Little Hunting Park; Inc.; 396 U.S. 299, 239 ; (1969): Basista v. Weir, 340°F. 2d 74, 87 (3rd oy it. 1905). ~ The bad faith and malice toward Sostre (based in large part upon political disagreement with. him J. that motivated ° ‘ ‘A A ae , Ss ‘ ° “ \ _ a ' eS ery 2 EE %, Ms a So ppendig: B -* 12 Set hoes RE Follett to put: plaintiff: in punitive segregation and, in ioe -, effect, to ‘throw the key away,” and M¢éGinnis’ failure to- act after being notified of Sostre’s confinement as early as July 1968; are suite reprehensible ;.an award: of exemplary daniages is in-order.’ Basista v. Weir, supra, at S7-88; “accard, Hague vy. € ‘ommittee for. Industrial Organization, 101 F. 2d 774; 789 (sad Cir, 1939), modified on other growids, 307° U.S. 496 (1939) : Antelope 'v. George, 211 ¥. | } Supp: 657. (D. Fdaho 962); See. also ‘Comment, Civil | - red Actions for Damages Under the Federal Civil Rights Stat- utes, 45 Texas L. Rev. 1015 (1967). Otherwise, these _- malicious acts and acts of studied omissiog” might recur: + ° . : " ; , cy ; ps —_ - RR pi eee ; in the future. Mise 2 The Court, therefore,’ awards the additional sum of ) $10.00 per ‘day, or a total of $3,720 in punitive damages os -against defendants Follette"and McGinnis. ee . Additional support for the proposition that damage .ae-. - tions against state officials in their: official capacities are maintainable uhder Seetion: 1983, and for the award nidde here, way be garnered from. those ‘ases in which damages , have been actually recovered against state officials sO named, Rhoads. y, Horvat, 270 -F. Supp. 307 (D. Cole. = ae 1967) ($5000 compensatory’ pnd: $2500 punitive damages . ‘ for 30-45 ‘ininute false imprisonment by county sheriff and - “ deputy) ; Rolfe Vv. County. Board of Edugation of Linéoku: . * * Go., Tenn:, 391 F. 26 77 ‘(Oth Cir. 1968}. ($3,473.60 and x2 oe $2,563.31 compensatory damages, respectivel ¥, and* $250 . iF colinsel fees each, for two teachers dismissed: by superin- - d 7. terkdent of schools and.county hoard of education) ; Rackley mae v. School District No. 5, Orangeburg Co., 8S. C., 258 F. Supp... a | 676 (D. Sa Car. 1966) ($4,064.61 compensatory. damages — > a for disimisgal of teacher). >> Ce etn a al ¥ an Similar support’ may’ be predicated’ upon those . eases ce naming offigials as sueh,.in Which the right~to damages. fi under Sectidn 1983 hasbeen expressly recognized. Wen > ce ‘, Stanly Counky Board of Education, 378, F. 2d 27. (4th Cir. “ i oe \ | oe . " 2c > . 7 | aoe e i ” o, . “ae. } per wiz ve MMi) (actual damages oftle real wleded: for distaissal of teacher): Sauth ¢. Kieugd of Educetiog, wo F.2d aot (Sth Cir. igs) fd. teucherd: ¢ ‘Ramberh 1 v. Nendersourille City - Pintrd at "Education. A FL oad Iso (4th Cir, 1) C7, teacher) : Johuse mx. p Saery 4 FL 2d ny (4th Cir, 14H)). cegt. dew U.S. “to (hime) (ld. teacher whose contract wits Her renewed): Willigas v. Sumter Se hail Distviet, 25 oF. Sapp. 307 (1. So. Car. 114s) (settle order “agrecing on . . damnas ees, “none ‘tary re li. et cetera’); Washqwaton © OR- - cial & meat St wog raphe: rl PF. Supp. (45 (EOD. Wa. ifMas) - (action bY prisoner to compel Purnighing of tyanseript ine contuplisune e with previous cour, orders: ** Even if he petoal sleanagee Ss dre sustduied, neudindl and punitive damages may be refine resi” dd. mt 47 i: Mar shall ve Sawer, OU F.2d 6 (oth © ir. INR) (action. by rambler, charging blacklist- ime, aeajnst eovester, canvng board and cominission andl members thereof, and ofrs : ev manded for determinateen of daugagze claims: siehises purest judement. on merits Tor de- * te ipGints-aff ff, iS BE ld 105 (1MM)). i ee Then there are those eases in- ‘which the Tight to sevk See. - them FINS ranediys fas been upheld. American Federation . OP Stat, Co. .. ond Muu. Employee ¢v. Woedward 406 'F. 2d my ‘(Sth Cir. [4H (detion for damages and injunctive re- lief againgt City € ouupissaoner who discharged emplovers for joining labor union): W rights. HeMann, supra (action for STQ0Q0 datages: and injunctive te ‘lie ' agaist Warden of Clinton d’rison). Moyeove ‘r, there are the suits for Penec for dépriva- tion ‘eat constitutional righis brought against state officials ‘ under the federal question jurisdiction statute, whieh the Supreme Court held inaintainable, and which support thee award macde here Nirow ¥ fir rudon, 273 U.S. 556 41927) ‘(shit for SNMP damnazeers for denigl of Fight fo vete in pri-. mare election; jurisdiction, base! on Violation of Four- teenth Autonthinent f: Wiley v. Studer, 179 GS. SS CLO) isuit for $20") tdamaices tar denial of rischt to tote for nsf aff’ a “Utta ; - : . Apt wilix fi. embers of Congress, ad on Teelera! constitutions! provision). Ps - . Finally, if it can be said that Congfess has net prov ished a damage retendy dturainst state officials in their official saan: under Section 1983: and further, that there is ne other Tede ral remedy because Mourhe ¥. Pape, supra, left the question open, or heeause of the Eleventh Ame ond. mewt, thew this court looks to Ne@ York's remedy (New York ortection Law > 6-1 and New York Cott of Claims _Aet $8), as provijed by 42 USC. 6 1988." to fil this - de ice ‘ney in federak lew. Sullivan v. Litft Hanting Pack, * [ne 360.8 B. : eae (18 SY): Basista v. Weir, supra; Pritch- ard ©. Smith, 259 F. 15 (Sth Cir, 1961): Brazier v. ( ‘berra. ol B 2 on ( 21 -( 1NG1 ). : .« °° When we look ag New Yaok’s pemedty we -finil that New York has waived-its Hleventh -Anme ndnient -immutmnify, if it ever hagl any, as to Fourteenth Amendment actions, and has %pecitienlls provitled for =yit by state prisoners against correction officials in their oft ‘ial capacities, but has alse provided for certain defenses to such suits. The court = would dorraw here, if necessary, New York’s waiver of . indpunity but. not its: defenses, As the Court tak! im Brazier: * Cherry, supra? . Thus 4 £1988 declares a simple, dircet, OE ae test : what is needed in’ the particular ease” under scrutiny fo make the «iv il rights statutes-fully effec. tive? The answer to that inqniry is then* matehed against (a) feclevat law and if it is foynd wanting the court must ‘look to (bh) state law currently in effect. . * To whagever wxtent (b) helps, it is antomatically avail- able, not heeanse it ix procedure rather, than substanee, Z bt tarpune « ONETESS “SAYS , 50. da. at 10 ; * ; he ‘Cor, 1967). cert. den. os U. s. . . ~~. e . 10s * . Appe ndix RB.” - ee The Supreme Court ha rend inte Spetion 1s actions certinn comiunon ty aM iam ie sand defenses. In Pierson Raw, 3860S. DAT CGT. the ¢ ‘ourte he MT that thte com own law immamity ef Judes from suits for Aamases for jets performed in the course of theirofticial duties, applic . "te Seetion LISS getions. Tt also held that police aiflicers, atthowech not enjoving the sane inannvaenit are entitled to the comynon law «lefense of probable cause and-gcood faith whew sie “l for-damavges tinder Seetion JOS. 5 The question whe ther all state officials have ‘camplete On partial wmninnits has heen dee ‘ied by this Cirenit. In Aibson vy, Le une, stad Mh a (2d Cir. 1966). the ‘court | * held that st: ite commen lew immunities afforded fo judee = could not, consistently with Secti [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_IA40385606_0440%3A1. Public record. Not legal advice.