Appendix — McMann v. Wright
Supreme Court brief1972
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4 1972
MICHAEL RODAK, JR. CLERK
In THE
Supreme Court of the United States
OCTOBER TERM, 1971
Si ekasieovs
DanteL McMann, Warden of Clinton Prison
Dannemora, New York,
Petitioner,
against
LawRENCE WILLIAM WRIGHT,
Respondent.
APPENDIX
Louis J. LerKow1tTz
Attorney General of the
State of New York
Attorney for Petitioner
80 Centre Street
New York, New York 10013
212 488-3289
TABLE OF CONTENTS
Appenpix A—Opinion of the United States Court of
Appeals for the Second Circuit, dated
IE 6.6 eS ownea adinu wee usa
Aprenpix B—Opinion of the United States District
Court for the Northern District of New
York, dated July 31, 1970 and orders
entered thereon, dated August 19, 1970
aprenpix C—Opinion of the United States Court of
Appeals for the Second Circuit, dated
December 19, 1967 ..................
Appenpix D—Opinion of the United States District
Court for the Northern District of New
York, dated August 31, 1966 .........
PAGE
la
22a
69a
APPENDIX A
pinion of the United States Court of Appea!s for the
Second Circuit, dated March 16, 1972.
UNITED STATES COURT OF APPEALS
For THE Seconp Circurr
4
iN
Nos. 95, 96—September Term, 1971.
Argued October 27, 1971 Decided March 16, 1972.)
Docket Nos. 35572, 35573
LawrkENCE WILLIAM WRicut,
Plaintiff-A ppellee,
—V.—
Danie McMann, Warden of Clinton Prison,
Defendant-A ppellant.
Untrep States or America ex rel.
Rosert MosHenr,
: Petitioner-Appellee,
J. Epwin LaVatez, Superintendent of
Clinton Correctional Facility,
Respondent-A ppellant.
efore:
Lumsarp, Hays and Oaxzs,
Circuit Judges.
Appeal from the decision and orders of the United States
strict Court for the Northern District of New York,
=
mc
2a
Appendia A.
James T. Foley, Judge, granting plaintiffs’ various requests
for equitable and legal relief under 42 U.S.C. § 1983.
Orders affirmed, modified, and reversed.
4
v
Berry D. Frreptanper, Waverly, New York
(Herman Schwartz, Buffalo, New York,
and William C. Scott, Jr., Portland, Ore.
gon, on the brief), for Appellee Lawrence
William Wright.
WutumM Benyetr Turner, San Francisco, Cali.
fornia (Jack Greenberg, Stanley A. Bass
New York, New York, and Alice Daniels
San Francisco, California, on the brief)
for Appellee Robert Mosher.
Het Horrman, Assistant Attorney Genera
(Louis J. Lefkowitz, Attorney General 0!
the State of New York, and Samuel A
Hirshowitz, First Assistant Attorney Gen
eral, on the brief), for Defendants-Appel
lants.
Lumparp, Circuit Judge:
Lawrence William Wright in March 1966 brought sui
under the Civil Rights Act, 42 U.S.C. § 1983, against appe
lant McMann in the Northern District of New Yor!
Wright’s pro se complaint alleged that Warden McMan
and other prison officials at the Clinton Correctional Faei
ity had deprived him of his constitutional rights durin
two periods of solitary confinement. The district court dis
missed the complaint on the alternate grounds that it we
insufficient to show any constitutional violation and th
it should have been brought first in the state courts. Th
court reversed, Wright v. McMann, 387 F.2d 519 (2d Ci
1967), finding that neither the doctrine of exhaustion ‘
3a
Appendia A.
state remedies nor the doctrine of federal abstention was
properly invoked.* This court also noted that Wright’s
daims, if true, were sufficient to make out a violation of
the Hight Amendment’s prohibition against cruel and un-
usual punishment. Remanded to the district court, Wright’s
cause came on for trial in October 1968.
Consolidated with Wright’s action was the Civil Rights
sit of appellee Robert Mosher, commenced in May 1967
against Warden McMann, for whom appellant LaVallee
was substituted when the latter became Superintendent of
(linton in January 1968. Mosher’s complaint tracked
Wright’s insofar as constitutional violations stemming
from segregated confinement were alleged: unlike Wright,
Mosher pursued only injunctive relief and did not claim
damages.
Judge Foley, sitting without a jury, heard testimony of
appellees, appellants, and their respective witnesses? for
seven days. He rendered decision on July 31, 1970, re-
prted at 321 F. Supp. 127, and entered two orders, on
August 19, 1970 (unreported), granting relief along the
following lines:
(a) Appellants were enjoined from all use of segregation
util they promulgated rules and regulations ensuring,
mong other things, that segregation cell facilities were
wequate to safeguard the health of occupants, that heat
*The propriety of invoking these doctrines in state prisoner
cases was recently considered and rejected by a majority of
the ju of this Circuit sitting in banc. Rodriguez v. McGinnis,
United States ex rel. Katzoff v. McGinnis, Kritsky v. McGinnis, Sec-
ind Circuit, decided Jan. 25, 1972, slip op. p. 1527. Disposition of
he instant case was accordingly postponed while that issue was under
sideration.
"In addition to Wright, Mosher, McMann, and LaVallee, nine
wher inmates and eleven other correctional officers presently or pre-
vously at Clinton Correctional Facility, Dannemora, New York, tes-
tied. In all, twenty-six witnesses testified, filling nearly 1600 pages
of transcript.
4a
Appendia A.
and ventilation were sufficient that nudity could not be
enforced solely as a disciplinary measure, and that provi.
sions be made for ‘‘surprise’’ inspection visits by trained
supervisory personnel.
(b) Appellants were further required to promulgate, and
submit for the district court’s approval, rules and regula.
tions governing procedures of prison disciplinary hear.
ings, and rules and regulations governing the condition of
psychiatric observation cells as well as the procedures used
to determine whether an inmate should be confined to such
a cell.
(c) As to Wright and Mosher specifically, appellants
were enjoined from placing either in segregated confine-
ment or otherwise punishing them so as to deprive them
of ‘‘good time’ or their ability to earn ‘‘good time”? with-
out affording them, inter alia, the following: prior notice
of the charge for which segregation might be suitable
punishment, the right to ‘‘appropriate’’ representation at
a hearing where Wright or Mosher could present his ver-
sion of the facts giving rise to the charge, and the right
to call witnesses and to have made a record of the pro-
ceedings.*
(d) As to Mosher alone, appellants were ordered not to
‘‘eensor or interfere in any way with any correspondence”
between him and his attorney. Judge Foley also ordered
restoration of 616 days of Mosher’s ‘‘good time,’’ 440 of
which had been revoked in prison disciplinary proceedings
during his confinement to segregation and 176 of which he
was prevented from earning because of such confinement. —
*If at such a hearing the decision was adverse to Wright or
Mosher, and segregation was deemed suitable, it could not be imposed
“UFO” (until further orders) but instead must provide for a deter-
minate length of confinement. The reasons for such a decision were
required to be reported, and the decision to be reviewed by the
warden. A further, formal means of administrative appeal was also
required.
——
5a
Appendia A.
(e) Wright was awarded $1500.00 compensatory damages
for his illegal confinement to segregation as against appel-
lant McMann.
(f) Appellants were also enjoined from confining Wright
or Mosher in psychiatric obesrvation cells for disciplinary
purposes or without psychiatric justification, and from pro-
hibiting inmates to give legal advice or assistance to each
other subject to reasonable regulation.
For the reasons set out below, we reverse those portions
of the district court’s orders requiring trial-type proce-
dures (para. ¢) or the promulgation of rules and regula-
tions either regarding trial-type procedures in prison disci-
plinary hearings (para. b) or governing the use and
facilities of segregation or psychiatric observation cells
(para. a); we modify that portion of the order enjoining
appellants from censoring or interfering in any way with
any correspondence between Mosher and his attorney
(para. d); and we affirm those portions of the orders re-
storing Mosher’s ‘‘good time’’ and awarding damages to
Wright (para. d and e). It should be without saying that,
where we have reversed the requirements that appellants
promulgate rules and regulations, appellants are under no
obligation to make submissions of any kind for the district
court’s approval. Appellants do not contest, and we find
warranted, and affirm, those portions of the orders below
prohibiting appellants from confining Wright or Mosher
to psychiatric observation cells for disciplinary purposes
or without psychiatric justification, and prohibiting ap-
pellants from denying inmates the opportunity to render
legal advice or assistance to each other subject to reason-
able regulation (para. f).
In reversing the original dismissal of Wright’s cause of
action this court noted that there would be ‘‘no hesitation
in holding that the debasing conditions to which Wright
claims to have been subjected . . . would, if established,
6a
Appendiz A.
constitute cruel and unusual punishment in violation of th
Eighth Amendment.’’ Wright v. McMamn, 387 F.2d at 525
Indeed, most of Wright’s allegations were subsequenth
established. Judge Foley found, and appellants do not her
contest, that for eleven days in 1965 and 21 days in 19%
Wright was kept, sometimes or always completely naked,
in a strip cell’’—that is, a cell barren of all furnishing say
a toilet and washbowl. Nudity was enforced to demean an
punish the inmate. No bedding of any kind was provided
forcing Wright to sleep on the concrete floor. His eye
glasses were taken from him, and he was provided neithe
soap, towels, nor toilet paper. Privileges were at a mini
mum during confinement to the strip cells, inmates so con
fined were required to jump to attention at the cell doo
whenever a guard passed, and the temperature during th
night was sufficiently cold to cause extreme discomfort t
the inmate sleeping naked on the concrete floor withouw
even a blanket. No program existed for cleansing the cel
from the time one inmate left until another arrived, an¢
provisions for occupant-inmates to scour the cell were in
adequate. The psychiatric observation cell had neither
toilet nor washbowl : occupants were required to coordinat
trips to the bathroom with the convenience of the guards
The practice at that time was ‘‘to put the rebellion:
prisoner in the hands of the guards under unsanitary con
ditions that would make him subservient and break hin
down,’’ 321 F. Supp. at 143.
As to Mosher, Judge Foley found that he was confined
to segregation for five months in 1967, that two month:
after his return to general population he was again placed
* Both the transcript and the lower court opinion indicate alter-
nately that Wright was nude either for the duration or for substantia
periods but not always, e.g., 321 F. Supp. at 140, 141.
7a
Appendiz A.
in segreation, where he spent a year,® for the same viola-
tion which caused him to be sent to segregation the first
time, vie., refusal to sign a ‘‘safety sheet”’ detailing safety
rules to be observed in prison workshops. Judge Foley
found Mosher sincere in his belief that his signature on
the sheet would constitute a waiver of prison liability were
he to be injured in the shop. Segregation cell conditions
were considerably less abhorrent than when Wright was
in occupancy.
These findings of the district court are amply supported
by the record and are not disputed on appeal. The parties
have joined issue primarily with respect to the various
forms of relief granted by the district court.
Our disposition is largely controlled by Sostre v. McGin-
ms, 442 F.2d 178 (2d Cir. 1971), decided subsequent to the
lower court ruling herein. In Sostre this court sitting in
banc considered, inter alia, the delicate balance between the
due process rights of state prisoners charged with infrac-
tions of prison rules and the necessity for the maintenance
ofprison order and security. The district court’s order that
trial-type procedures accompany prison disciplinary hear-
ings was reversed, in the main because the federal courts
are inappropriate to the task of weighing the effect of
daborate procedural safeguards on either the outcome of
aparticular hearing or prison morale in general, id. at 194-
%. Sostre thus mandates reversal of Judge Foley’s re-
quirement that appellants promulgate and adhere to rules
ad regulations regarding either trial-type procedures in
prison disciplinary hearings or procedures to be used in
determining whether an inmate should be confined to a
‘sychiatric observation cell. Sostre also indicated, however,
that a ‘minimally fair and rational’’ inquiry would require
ee
His lengthy confinement resulted in part from infractions com-
mitted while he was in segregation. See note 7 infra.
8a
Appendiz A.
observation of ‘‘such basic safeguards against arbitrariness
as adequate notice, an opportunity for the prisoner to reply
to charges lodged against him, and a reasonable investiga
tion into the relevant facts—at least in cases of substantial
discipline.’’ Jd. at 198, 203. In short, because we are loathe
to graft onto state prison disciplinary hearings a broad
panoply of procedural requirements does not mean that
rudimentary due process can be ignored at the caprice of
prison officials.‘
We think that Sostre also requires us to reverse the
lower court’s order prohibiting appellants from confining
any inmate to segregation or psychiatric observation cells
until rules and regulations regarding conditions of such
cells have been promulgated. Little purpose would b
served by yet another reiteration of the deplorable segre-
gation cell conditions extant as late as 1965 and 1966.
Suffice it to repeat what we said in the first Wright opinion:
We are of the view that civilized standards of
humane decency simply do not permit a man for a sub-
stantial period of time to be denuded and exposed to
the bitter cold of winter in northern New York State
and to be deprived of the basic elements of hygiene such
as soap and toilet paper. The subhuman conditions
alleged [and substantially proved] by Wright to exist
in the “‘strip cell’’ at Dannemora could only serve to
destroy completely the spirit and undermine the sanity
of the prisoner. The Eighth Amendment forbids treat
* The rules and regulations of the New York State Department of
. pose ge brine prison diocipt —
an attempt, ing to , to bring prison disciplinary hear-
a ae oe ee i in Sostre. See
7 N.Y.C. R.R. §§ 250-270. As with recent State efforts regarding
cell conditions and treatment of inmates, infra, we commend the
state for its responsiveness but say nothing, of course, as to the con-
stitutionality of the new rules.
er :
Appendiz A.
ment so foul, so inhuman and so violative of basic
concepts of decency. Trop v. Dulles, 356 U.S. 86... .
387 F.2d at 526 (footnotes omitted). Similarly, we noted in
Sostre that the conditions endured by Wright were ‘*truly
barbarous and inhumane,” 442 F.2d at 194 & n. 27. Other
courts have likewise found such conditions in violation of
the Eighth Amendment, ¢.g., Landman +. Royster, 333 F.
Supp. 621 (E.D. Va. 1971); Jones v. Wittenberg, 330 F.
Supp. 707 (N.D. Ohio 1971); Holt v. Sarver, 309 F. Supp.
92 (E.D. Ark. 1970), aff’d 442 F.2d 304 (8th Cir. 1971);
Knuckles v. Prasse, 302 F. Supp. 1036 (E.D. Pa. 1969),
of'd 435 F.2d 1255 (3rd Cir. 1970), cert. denied 403 U.S.
96 (1971); Hancock v. Avery, 301 F. Supp. 786 (M.D.
Tenn. 1969) ; Jordan v. Fitzharris, 257 F. Supp. 674 (N.D.
Calif. 1966).
Our decision to reverse is a reflection of concern for the
respective roles and responsibilities of federal courts and
state officials, and not in any way an approval of the in-
humane, degrading treatment occupants of segregation
vere forced to endure. Reversal is the more appropriate
teeause New York has on its own motion acted to remedy
pereeived deficiencies in treatment of inmates in general
«well as those confined to segregation or psychiatric ob-
wrvation cells. At oral argument, counsel for appellees,
won assurance by the state that the new rules of the De-
partment of Correctional Services apply to psychiatric ob-
ervation cells as well as to segregation cells, as much as
smeeded that the part of the district court’s order dealing
vith this matter was no longer needed.
We say nothing as to the constitutionality of the new
niles, but we note that the New York Correction Law was
mended in 1970 to provide that each inmate is “entitled
© clothing suited to the season and weather conditions
md to a sufficient quantity of wholesome and nutritious
a
10a
Appendiz A.
food,’’ that no inmate shall be subjected to degrading treat-
ment, that inmates confined to segregation cells “shall be
supplied with a sufficient quantity of wholesome and nutri-
tious food,” and that “adequate sanitary and other condi-
tions required for the health” of inmates in segregation
shall be maintained. The facility superintendent is also
required to make full reports regarding segregation in-
mates every five days to the commissioner. N.Y. Correc-
tion Law $137, McKinney’s Consol. Laws c. 43 (1971
Supp.)
The new rules of the Department of Correctional Serv-
ices provide that no cell is ever to be maintained “as a
place to subject an inmate to punitive confinement or con-
finement under degrading conditions,” that no inmate “is
ever to be confined in a place that is poorly lighted, poorly
ventilated, inadequately heated, or likely to be injurious
to his health,” that every cell is to be equipped with light-
ing sufficient to read by, and with washstand, toilet, bed,
and mattress (although they may be removed if there is
imminent danger that such furnishings will be destroyed
by the occupant or utilized to harm himself), that all in-
mates are entitled to personal hygiene supplies, cleansing
equipment for the cell, writing materials, eyeglasses, and
at least five books over and above legal materials. Provi-
sions are also made for showers and exercise of segrega-
tion cell inmates, and regularized procedures established
in the event an inmate is deprived of an otherwise re-
quired item or activity. The rules also provide that under
no circumstances is an inmate to be deprived of an item
or activity for the purpose of punishment or discipline.
7 N.Y.C.R.R. §§ 300.1-301.9.
This court in Sostre also weighed carefully the compet-
ing claims regarding censorship of communication, 442
F.2d at 199-201. The conclusion was that prison officials
lla
Appendiz A.
may not delete material from, withhold, or refuse to mail
8 commurication between an inmate and his attorney, or
a court, or public official, unless the inmate or his corre-
spondent abuses the access. Inmate allegations considered
false, repetitious or malicious by the prison authorities do
not amount to an abuse of access, which was defined in
Sostre in terms of transmittal of, contraband or the lay-
ing of plans for some unlawful scheme. Inasmuch as inter-
ference with inmate correspondence might be justifiable
uder such circumstances, we ‘‘necessarily rule{d] that
prison Officials may open and read all outgoing and in-
coming correspondence to and from” inmates, id. at 201.
We therefore modify, to conform with Sostre, Judge
Foley’s order prohibiting censorship or interference “in
any way with any correspondence” between Mosher and
his attorney. Appellants may open and read correspond-
ence between Mosher and his attorney, but they may not
otherwise impede or interfere with it absent a clear abuse
of access such as Sostre discusses.
We are advised by appellants that the recent policy of
the Department of Correctional Services is to refrain even
from opening and reading inmate-attorney mail. While
this experimentation by the state indicates a willingness
to go beyond what Sostre required, we are not persuaded
that there is any need for the district court order to do
likewise. What the federal courts must or should order
and what the states are at liberty to essay are frequently
poles apart. It is best that the state be left free to abandon
its experiment and substitute other proper methods if it
should conclude that it is advisable to do so.
Mosher’s 616 days of ‘‘good time’’ were appropriately
restored to him by the district court. He was first con-
fined to segregation in 1967. After five months he was re-
leased to the general population, but two months later he
12a
Appendia A.
was returned upon repeat of the very violation for which
he was punished with segregation in the first place. His
second stay consumed a year, as he was confined ‘‘until
further orders’’ and prolonged matters with various rule
infractions while in segregation.’
Segregation conditions during Mosher’s tenancy, while
not ideal according to his testimony, especially in the cells
comprising Section 4 (the ‘‘strip cells’’), were nonetheless
considerably improved since Wright’s occupancy, and the
district court’s decision to restore lost ‘‘good time’? rested
on the finding that segregation was ‘‘grossly dispropor-
tionate for the offense committed’’ by Mosher. Judge
Foley also found ‘‘that procedural safeguards in this in-
stance might have averted or corrected this improper pun-
ishment,’’ and that the disproportionate initial punish-
ments were ‘‘clearly linked to the later violations in segre-
gation.”’ 321 F. Supp. at 145.
Ordinarily we would be most reluctant to find unconsti-
tutionally disproportionate the use of segregated confine-
ment as punishment. Prison officials, not federal judges,
are in day to day proximity or contact with the inmates
and are consequently better able to determine what pun-
ishment might or might not be appropriate to a particular
offense committed by a particular inmate. An offense rep-
resenting another in a series by one inmate might meet a
harsher response than the same offense committed by an
inmate with a ‘‘clean’”’ prison record. Or a prison official
might decide that a harsh punishment for a repeatedly dis-
ruptive inmate might, under the circumstances, simply
reinforce a cycle of offense and punishment which the
* While in segregation Mosher apparently yelled to other inmates
(4 charges), was insolent or loud (5 charges), possessed contraband
tobacco, and fruit (a banana), threw four slices of bread out
his window, and refused to stand at attention whenever a prison —
employee passed (8 charges). Exhibit E.
13a
Appendix A.
agacious employment of leniency might avoid. In short,
he inmate alleging disproportionate punishment will ordi-
arily have a heavy burden.°
Here, however, we think that Mosher has successfully
net this burden. His offense was his refusal to sign a
rison ‘‘safety sheet’’, a single piece of paper with a list
f precautions and instructions to be followed by inmates
ssigned to certain shops in the prison. The following cir-
umstances in combination persuade us that Judge Foley
ras correct in finding segregation a disproportionate re-
ponse to Mosher’s refusal to sign the sheet:
First, Judge Foley found as a fact, and it is not sug-
ested that this finding be disturbed on appeal, that
fosher believed in good faith that his signature would be
he equivalent of a waiver by him of his right to sue the
ison in the event he was injured while working in a
ison shop due to the negligence of prison officials. This
s important inasmuch as it bears on Mosher’s attitude
nd the character of his defiance; that is, Mosher was ap-
rently not making trouble for the sake of being a trouble-
naker.
Second, testimony by deposition of both Deputy Warden
DeLong and Warden McMann indicates that the sole pur-
nose of the safety sheet was simply to assure that inmates
vere familiar with shop safety regulations. Deputy War-
len DeLong upon whose immediate direction Mosher was
ent to segregation, testified that even if an inmate had
rad and understood the safety sheet he could not work
mtil he signed, and a refusal to sign was tantamount to a
tfusal to work in his eyes. We have been pointed to no
prison manual or rulebook authorizing such an interpreta-
* See also Knuckles v. Prasse, 302 F. Supp. 1036 (E.D. Pa. 1969),
of'd 435 F.2d 1255 (3d Cir. 1970), cert. denied 403 U.S. 936 (1971) ;
Graham v. Willingham, 384 F.2d 367 (1967).
l4a
Appendiz A.
tion of a refusal to sign or giving notice to an inmate that
such a refusal was a violation or might result in segrega-
tion.
Third, and perhaps most important, is Warden McMann’s
testimony that segregation as punishment for refusal to
sign the sheet was inappropriate. Indeed, he testified that
no punishment whatsoever was warranted; assignment to
‘‘idle’? population, where the inmate could not work and
earn extra money, was the ordinary consequence of an
‘‘offense’’ such as Mosher’s.
In short, for an act which even the warden found de-
serving of no punishment Mosher was disciplined with
the worst punishment the prison had to offer, and it has
nowhere been suggested that such a result came about
through anything other than the unfettered discretion of
the deputy warden. While the area of discretion of prison
officials is exceedingly broad, it is not limitless. Appellants
urge nothing more specific than that Deputy Warden
DeLong’s ‘‘personal experience’ with Mosher somehow
justified the use of ‘‘his discretion as a disciplinary officer
in sending Mosher to segregation.’’ Testimony from the
record is no more illuminating: on the day Mosher was
punished with segregation he had four previous offenses
in prison;*® that same day another inmate with six offenses
refused to work" and was punished by DeLong with depri-
vation of yard privileges for 15 days. When DeLong was
asked whether there was any reason for the difference in
the punishment, he replied, ‘‘I do not recall anything about
[the other inmate] nor do I recall anything in particular
® These offenses, none of them involving physical violence or
threat thereof, occurred over a period of three years, dating from
Mosher’s entry into the prison.
10 Mosher did not refuse to work. He merely refused to sign |
the safety sheet.
15a
Appendia A.
about Mosher at that particular time. The only thing I
can say is that due to the particular circumstances sur-
rounding the case at that time, this was my decision.’™
The word ‘‘discretion’’ is not talismanic. We think that
when an inmate is punished as severely as possible for an
act which the warden testifies deserves no sanctions what-
soever it behooves the punishing official to come forth with
some justification other than that ‘‘the particular circum-
stances’’ warranted such discipline.”
Sostre is by no means to the contrary. This court there
refused to find disproportionate punishment, noting its
reluctance to ‘‘deny to prison authorities the power to use
an entirely constitutional means of discipline in response
.. . toa prisoner’s refusal . . . to obey valid prison regu-
lations.’’ 442 F'. 2d at 194. In a footnote to that passage,
however, we said:
We stress the seriousness of the multiple offenses
charged against Sostre by Warden Follette . . . and
express no view as to the constitutionality of such
segregated confinement as Sostre experienced if it
were imposed for lesser offenses. Specifically, we ex-
press no view as to the constitutionality of such segre-
gated confinement if it had been imposed on account
of any one or any combination of the offenses charged
against Sostre other than all of them.
Id. n. 28.
Thus, although Sostre clearly holds that the federal
courts should be chary in entertaining inmate petitions
daiming unconstitutionally disproportionate punishment, it
is equally clear that Sostre recognizes that such a consti.
" Deposition of Perry J. DeLong, p. 117, Exhibit #2.
" See also Fulwood ve Clemmer, 206 F. Supp. 370 (D.D.C. 1962).
16a
Appendia A.
tutional violation might be made out under circumstances
more compelling than those present therein.
We turn finally to the award by the District Court of
$1500.00 damages in Wright’s favor against appellant
McMann. Reversal is urged on the ground that, although
Judge Foley specifically rejected a defense of good faith
or probable cause on the part of McMann, he made no
finding that McMann personally imposed the deprivations
that resulted in the unconstitutional treatment. To find
McMann liable when lower prison officials were directly
responsible for Wright’s treatment, it is argued, is to
assesss him under a theory of vicarious liability. We dis-
agree.
In the first place, although Judge Foley made no specific
findings to this effect, there is indeed evidence in the record
from which it could readily be inferred that McMann had
definite knowledge of the condition of the “strip cells.” As
both Judge Foley and this court in the first Wright opinion
pointed out, McMann’s Answer to Wright’s complaint
acknowledged pointblank that Wright’s treatment was com-
monplace. The Answer states:
It is the practice at Clinton Prison to place certain
inmates in what is known as a strip cell at the time of
their reception in segregation. . . . A strip cell has
only the bare necessities and at times the clothing is
taken from the prisoner and at night he is given a
blanket to sleep upon the floor.
Also indicative of McMann’s actual knowledge is the
uncontradicted testimony of Wright that, upon his written
complaint, F.B.I. officers interviewed him for several hours
in a library behind McMann’s office in 1965, and again upon
a subsequent complaint from Wright in 1966. During the
first interview, according to Wright, the federal officers
17a
Appendix A.
informed him that they had spoken with McMann as part
of their investigation of his complaint.
Wright also testified without contradiction that while he
was in segregation his complaints addressed to McMann
resulted in his glasses and certain legal materials being
restored to him. Furthermore, a letter sent to the commis-
sioner of correction by Wright, in which he thoroughly
detailed the conditions he was forced to endure in the
“strip cell,” passed through McMann’s office en route and
was read and initialed by him."
Thus there is abundant evidence from which to conclude
that McMann must have actually known of the strip cell
conditions at the time in question.* Furthermore, he was
charged with having such knowledge. Ultimate responsi-
bility for the operation of the segregation cells was his,
as is made clear from trial testimony, the Employees Rule
Book of the New York State Department of Correction then
in effect, and section 18, N.Y. Correction Law, McKinney’s
Consol. Laws c. 43 (1968), as amended L. 1970, ec. 476, 4 4
(1971 Supp.). Furthermore, section 114-a” of the New
York Correction Law required that the warden
shall cause to be kept a daily record of the proceedings
of the prison, in which shall be entered a note. . . of
every punishment inflicted on a prisoner, the nature
and amount thereof and by whom it was inflicted, and
also a memorandum of every well-founded complaint
* Exhibit 43 and Tr. 1463.
“While we might remand to the district court for more specific
findings in this matter, there is so much undisputed evidence in the
record that this course is unnecessary.
* This section has been amended in light of nomenclature changes,
» correctional facilities for prisons, inmate for prisoner, employee
for guard. The substance remains the same. N.Y. Correction Law
§114-a, McKinney’s Consol. Laws c. 43 (1971 Supp.).
a
18a
Appendia A.
made by any prisoner of bad or insufficient food, want
of clothing, or cruel or unjust treatment by a guard;...
As sgainst these directives that the warden exercise
respousibility for and be familiar with the treatment of
inmates, however, Judge Foley found that ‘‘there was a
design to avoid written rule-making in the Clinton segre-
gation unit’’ and that McMann made only ‘‘rare’’ visits to
the segregation cells, 321 F. Supp. at 143."* In short, apply-
ing the common law tort standard appropriate in § 1983
cases, that one is liable for the ‘‘natural consequences of
his actions,’? Monroe v. Pape, 365 U.S. 167, 187 (1967), we
think appellant McMann knew or should have known that
Wright was being forced to live under conditions described
previously by this court as ‘foul’? and ‘‘inhumane,”’ 387
F.2d at 526, and today held unconstitutional.
We think Wright should be properly compensated for
the suffering he had to endure, and recovery should not be
defeated by an attempt by the warden to shift responsibility
to inferiors when there is every reason to believe that he
was aware of segregation cell conditions and when respon-
sibility for permitting such conditions to exist was ulti-
mately, in any event, squarely his. We are not moved by
the suggestion that if we uphold liability today competent
persons tomorrow will refuse to become superintendents,
16 Judge Foley relied for this finding in part upon the following
testimony of appellant McMann:
Q. Now during your tenure as warden, during these four
yan. did you have occasion to visit the segregation units? A.
went there occasionally.
9. Well, how often would you say that is? A. Well, very
seldom, I don’t pretend I went there very often, I couldn’t tell
you how often.
Q. Did you go there—don’t you recall, can you make any
estimate as to how often you went there? A. It wouldn’t be
- by 4 more often than six months, sometimes longer.
r. ‘
—
19a
Appendix A.
as the title is presently designated. In the unlikely event
that a prospective superintendent in fact turns down an
offer for fear of personal liability, we think that the posi-
tion is probably better filled by someone determined to
supervise the facility so as to prevent the type of inmate
treatment giving rise to this lawsuit.
Oakes, Circuit Judge (concurring) :
I concur both in the result and in so much of Judge
Lumbard’s opinion that this opinion would be superfluous
if I did not rather fundamentally disagree with the lan-
guage of two parts of that opinion.
First, I believe it would be entirely appropriate—indeed
mandated by the due process clause—for a federal court,
oameenlegargn to require basic procedural safeguards
_ing ion with prison disciplinary proceedings or to
regulate conditions under which inmates are held in seg-
- tegation or observation cells. Sostre v. McGinnis, 442 F.2d
178 (2d Cir. 1971), petition for cert. filed, 40 U.S.L.W. 3080
(U.S. Aug. 8, 1971) (No. 71-246) does not go so far as to
hold otherwise although it rejected the orders made in that
case, 442 F.2d at 194, 198. Since Sostre was decided, other
courts have exercised under varying circumstances rather
broad supervision of particular prison systems to assure
—with rules by court order—that prisoners not be sub-
jected to the ‘‘capricious and arbitrary actions of prison
officials,’? as decried by Sostre, supra at 198. Holt v. Sarver,
442 F.2d 304 (8th Cir. 1971); Landman v. Royster, 333 F.
Supp. 621 (E.D. Va. 1971). The case is so old, however,
and so much has transpired since it was initiated—includ-
ing but not limited to the adoption of new rules by the New
York Department of Correctional Services and amendment
“of the New York Correction Law, as set forth in Judge
20a
Appendia A.
Lumbard’s opinion that it does not seem to me to be an
appropriate vehicle for federal court promulgation of mini-
mal correctional standards. Under appropriate circum.
stances, however, judicial intervention may be clearly war-
ranted—nay, required—and this it seems to me Judge
Lumbard’s opinion does not make sufficiently clear. Thus,
my own views as to federal judicial power accord closely
with those of Judges Waterman, Smith and Feinberg, re-
spectively concurring or concurring and dissenting in
Sostre, supra at 206 and 207, although I do not believe
this to be the appropriate case for its exercise.
I believe that Judge Lumbard’s opinion correctly inter-
prets Sostre in reference to censorship and communication
by an inmate with his counsel, even though cases since
Sostre have tended to take a view somewhat more protec-
tive of inmate rights. E.g., Nolan v. Fitepatrick, 451 F.4d
545 (1st Cir. 1971) ; Smith v. Robbins, 328 F. Supp. 162 (D.
Me. 1971). In view of the new policy of the Department of
Correctional Services to refrain from opening and reading
inmate-attorney mail, however, this is plainly not the case
in which this aspect of Sostre, 442 F.2d at 199-201, might
bear re-examination. Given appropriate circumstances,
however, I believe this court should not hesitate to accept
the invitation of Sostre to expound ‘‘a more precise deline-
ation of the boundaries of this protection . . . ,’’ 442 F.2d
178, and if in doing so we necessarily draw them somewhat
differently from Sostre itself, that is not impermissible.
See Note, Prison Mail Censorship and the First Amend-
ment, 81 Yale L.J. 87 (1972).
s
a
Hays, Circuit Judge, dissenting in part:
I dissent from the affirmance of the district court’s
restoration of good time to Mosher, and the award of
2la
Appendiz A.
damages to Wright against Warden McMann. In all other
respects I concur with Judge Lumbard’s opinion.
The restoration of good time to Mosher solely on the
grounds of the disproportionate length of his term in
segregation is an unwarranted extension of Sostre v.
McGinnis, 442 F.2d 178 (2d Cir. 1971), cert. denied, 40
US.L.W. 3431 (U.S. Feb. 28, 1972) (No. 71-246), and it
violates good sense as well. Unlike Sostre, Mosher was
not punished for engaging in constitutionally protected
activity, nor did his punishment constitute such extreme
physical abuse that the federal court was justified in inter-
vening. E.g., Haines v. Kerner, 40 U.S.L.W. 4156 (U.S.
Jan. 13, 1972) (No. 70-5025); Inmates of the Attica Cor-
rectional Facility v. Rockefeller, 453 F.2d 12 (2d Cir.
1971); Sostre v. McGinnis, swpra. When one considers
that we are powerless to reduce a prison sentence no mat-
ter how ‘‘disproportionate’’ the sentence may be to the
offense, see, e.g., Jones v. United States, —— F 24 ——
(2d Cir. Dee. 28, 1971) (No. 71-1381) (Hays, Circuit
Judge, concurring), there seems to be no adequate ground
for our reviewing the loss of good time solely because the
punishment appears excessive.
I also disagree with the majority’s affirmance of the
award of damages against McMann. The argument that
McMann is ‘‘charged with’’ knowledge because of his stat-
utory duties advances a theory of vicarious liability which
is inappropriate in civil rights cases. See Avins v. Man-
gum, 450 F.2d 932 (2d Cir. 1971).
Haswmmmeree: Wises: ants:
Parsi tie
cccmaeall
—— oo
Vet ovmgam:
Teer favre. Tues ae
_e
Bim. jf oe > a mere 'trremm.
Vee ro-seremmetr
a Oe i dh Gat
een ET FRarerr
———
Ba
Appendiz B.
@ieeriet court has had a steady contact with
Sti gptieemer problems for many years; mainly consist-
| | of federal habeas corpus applications. See
v. LaVallee (NDNY) 224 F. Supp.
Court are located two such large
prisons, Auburn Prison, Auburn, N. Y.,
Pviees, Dannemora, N. Y., wherein are con-
eemvieted of the most serious crimes, many
lemg sentences. The increase in recent years
ef Glings by State prisoners has shifted
habeas corpus to civil rights claims under
Civil Rights Stafiites. (US ex rel. Han-
(i963) (ND Ill. ED) 223 F. Supp. 202; Jordan
z (8D Cal. SD) 257 F. Supp. 674 (1966) ; Han-
as Seery (MD Tenn.) 300 F. Supp. 786 (1969).
Wie Weaeht case started in this District Court inas-
= Weight was confined in Clinton Prison, Danne-
S. ¥.. by the filing of a complaint March 11, 1966.
i= eerving a sentence of one day to life under
i eumeieticn of three counts charging sodomy, two
and carnal abuse of a child. The
Brennan of this Court dismissed the Wright
tial opinion, reasoning there was
to him from the complaint to war-
the internal management of state
particularily so without application first to and
ef remedies in the State courts of New York.
expressed in his opinion full confidence
Courts would fashion conscientiously a
if none were precisely present in the New
to entertain and correct the horrible wrongs,
by plaintiff Wright during his confine-
at @ the punitive segregation section at Clinton Prison
bp wielations of prison rules and regulations. (Wright v.
Gilieee (NDNY) 257 F. Supp. 739 (Aug. 31, 1966)).
Hl
ltl
24a
Appendia B.
This ruling of dismissal by Judge Brennan was reversed
by the Court of Appeals, Second Circuit, in an opinion
that attracted nationwide attention in the news media. The
appellate opinion is referred to often in text and judicial
writings as an important one confirming the jurisdiction
and obligation of federal courts to entertain and decide
such claims. (Wright v. McMann, 2 Cir. 387 F. 2d 519
(Dee. 19, 1967)). Judge Kaufman in the majority opinion
established the proposition that State prisoners have the
right to seek federal relief ab initio if there is substance
to the claimed deprivation and violation of constitutional
rights under the Civil Rights Act during the prisoner’s
confinement. Judge Kaufman quoted verbatim a substan-
tial portion from Wright’s handwritten complaint describ-
ing in stirring and vivid prose disturbing conditions of
his confinement in a so-called ‘‘strip cell’’ in the segrega-
tion unit of Clinton Prison. Giving the credit that must
be accorded such allegations at the pleading stage, it was
held there was enough substance to warrant reversal and
remand for hearing of the issues. Judge Kaufman re
viewed New York’s remedies that might be applicable to
this kind of claim and decided such were inadequate for
full relief, and further decided a case of this kind was the
least likely candidate for abstention. (Wright, supra, at
pp. 524-525; Zwickler v. Koota, 389 US 241; McNeese v.
Bd. of Education, 373 US 668, 673-74). Chief Judge Lum-
bard concurred a separate opinion ‘‘albeit reluctantly”
with a statement appealing to me as a judge in a two-
judge United States District Court in which substantial
State prisoner business is never ending. (See Fay v. Noia,
372 US 391). Such free-wheeling filings by State pris-
oners are time consuming and uncontrollable as other liti-
gation may be. Judge Lumbard stated unequivocally in
Wright that he would hold if New York made provisions
for injunctive relief as well as the legal relief seemingly
25a
Appendia B.
available that the federal courts should abstain for a rea-
sonable period of time to allow the state courts to hear
the complaint and take appropriate action. Judge Lum-
bard decried the fact that the majority court ruling, in
which he reluctantly joined, would require a District Court
to write some of the rules regarding State prison admin-
istration for the treatment of recalcitrant prisoners. He
observed it was far better that the states should formu-
late, supervise and enforce their own rules regarding their
State prisons. I agree wholeheartedly. Disciplinary pro-
ceedings and their use inside prison walls it should be ob-
vious are matters of the utmost importance. I have found
in more than twenty-one years of experience with prison
grievances that in New York there is responsible attitude
when attention is directed to unfairness that might exist
for lack of appropriate and definite legal remedy to cor-
rect.
In regard to Clinton Prison inmates the acme of judicial
service is furnished. By order of Judges, Appellate Divi-
sion, Third Department, a regularly scheduled motion Ses-
sion is held once a month for ten months of the year at the
Prison by designated New York judges. The direction is
to hear applications for writs of habeas corpus or other
proceedings regarding detention or confinement. (See
Court Ex. 1). By Chapter 658 of the Laws of 1969, New
York, effective May 21, 1969, Section 79-c of the Civil
Rights Law (McKinney’s Consol. Laws of N. Y.), was
amended to confer upon an imprisoned convict the right
to injunctive relief for improper treatment where such
treatment constitutes a violation of constitutional rights.
The void and gap in New York remedies noted by Judge
Lumbard was thereby filled by this New York legislation,
and later New York Court ruling decided that the amend-
ment was to be given liberal construction and retroactive
application. (In re Marcelin v. Scott (App. Div., 3rd Dept.
26a
Appendia B.
Oct. 20, 1969) 33 AD 2d 588). However, the stages of
the two cases herein have advanced too far along the fed-
eral route. The doctrine of abstention, unfortunately, I
believe, seems more precarious today to apply than ever,
even though common sense and good judgment indicate
reliable and clear State remedies are now available that in
the interests of federal-state comity should I think be
accorded the first opportunity to rule upon claims of this
kind charging cruel punishment and constitutional depri-
vations. (Holmes v. N.Y.C. Housing Authority, 2 Cir.,
398 F. 2d, 262, 265-266; see also Houghton v. Shafer, 392
US 639). However, federal jurisdiction of these actions,
based upon provisions of the Civil Rights Act, 42 USC
1981, 1983, 1985(c), in my judgment, can no longer be
questioned under the precise appellate ruling of the Second
Cireuit in Wright. (See also U.S. ex rel. Rodriguez v.
McGinnis (NDNY) 307 F. Supp. 627; Cooper v. Pate, 378
U.S. 546; Brown v. Brown, 9 Cir. 368 F. 2d 992; Wiltsie
v. Calif., Dept. of Correction, 9 Cir., 406 F. 2d 515; Hill v.
Schneckloth, 9 Cir.. —— F. 2d, 3/11/70; pet. cert. filed
6/15/70, 38 U.S.L.W. 3525).
Plaintiff Mosher is serving a 40-60 year sentence that
he commenced in 1964 on his plea of guilty to Robbery
charges. I permitted the filing of his pro se complaint by
memorandum-decision and order dated May 19, 1967. The
claim involved similar assertions as those of Wright, in
that he was being confined in the segregation unit at Clin-
ton enduring cruel living conditions pursuant to adminis-
trative procedures and under reasons for such confinement
that he claims were violative of constitutional rights.
Paragraph 2 of the Mosher complaint alleges that punitive
segregation for his refusal, that he admits, to sign 4
“safety sheeet”, used in the institutional shops of the
prison resulted in punishment out of proportion to the
offense. Paragraph 4 refers to observation cell confine-
—epeeamamams ae
27a
Appendiz B.
ments. This cell and its purposes shall be described herein
later. Mosher claims the cell was used fraudulently by
segregation guards without any formalities being followed
and proper reason present when the segregation guards
became displeased with segregation inmates conduct and
wanted to make living conditions more unpleasant and
unbearable than those said to exist in disciplinary segrega-
tion. A series of letters to me followed from Mosher after
I permitted the filing of his complaint, and in accord with
the liberal and informal treatment this Court gives pro se
writings of State prisoners, some were filed formally as
supplemental to the complaint and others were retained
in the file in the Clerk’s office for reference. The griev-
ances in the letters run along the same lines as those in
the complaint except there is description of new incidents
that arose between Mosher and the guards in their daily
close contact during the segregation regimen. These events
resulted in continued segregation punishment for Mosher
and prolongation of Mosher’s confinement in segregation
for a considerable period of time.
Attorney Betty D. Friedlander who acted as attorney
for Wright on the appeal continued to act as his attorney
for the trial and its preparation. I requested William
Bennett Turner, an attorney with considerable experience
‘in matters of this kind to represent Plaintiff Mosher and
he willingly accepted such assignment and this Court is
appreciative. By formal order dated August 28, 1968, the
actions were directed to commence at joint trial on October
15, 1968, and such order noted that a satisfactory and pro-
ductive pretrial conference had been held with the attor-
neys. Extensive and productive discovery and deposition
procedures were permitted by me to be undertaken to the
fall extent permitted by the traditional liberality of the
Federal Rules of Civil Procedure. Depositions of eight
prison officials concerning their knowledge and experience
28a
Appendiz B.
at Clinton Prison were taken. Wardens McMann and La-
Vallee, Deputy Warden DeLong, Prison Psychiatrist Dr.
Freedman, Prison Physician Dr. Peda, several correction
officers (guards) with duty assignments in segregatiton
during the times in question, and one prisoner McIntyre
were deposed. These depositions were offered in evidence
at the trial and are marked as plaintiffs’ exhibits. (Plaintiff
exhibits are numbered; Defense exhibits are lettered, and
references herein to the trial record shall be the prefix R).
A trial record of 1566 pages were compiled in a trial that
covered seven trial days. At the end, I stated the trial had
been an education to me although I had experience of
twenty years with substantial numbers of State prisoner
eases (R. 1553). The recanvass and review of the volumi-
nous record that had to be done following delayed and sub-
stantial briefing fortifies this viewpoint. Time could be
taken because Wright was transferred from Clinton segre-
gation to another prison. Mosher was released from segre-
gation to general population in December 1968 at Clinton
Prison. The entire record of testimony and exhibits is a re-
vealing and eye-opening one in regard to certain aspects of
prison life in Clinton Prison. No matter the outcome finally
in this litigation, there is a comprehensive record of the tes-
timony of prisoners, obviously the difficult and troublesome
ones to handle, during long periods, in their eyeball con-
frontation with the guards who have the difficult assign-
ment to guard, feed and control them daily in a punitive
segregation cell where they were kept around the clock
with rare and short periods of release. One definite re-
lease from the segregation cell testified to was that the
segregation inmates were taken down to the shower room
along the gallery for their two-minute shower, as one pris-
oner estimated its time, every Sunday. The record is
fascinating, full of humor and pathos despite the sadness
of imprisonment, and as must be expected unfortunately
—
29a
Appendix B.
marred throughout with substantial inconsistencies and
contradictions, not only by prisoners but correction per-
sonnel, The record, and I had no appetite to undertake its
heavy burden no matter its interest, is a portrayal of the
real thing; it is prison life as it is, not a stage play or TV
or motion picture portrayal. In my judgment, it should
be read with care by the executive, legal, legislative and
correctional department heads of New York State Govern-
ment who ultimately must bear the responsibility to insure
New York State prisoners are treated humanely as I be-
lieve, being one, every citizen of New York wants and
expects. The exploration here by trained and able lawyers
opens up a facet of New York State prison discipline kept
covered too long from the public view. I think it was
assumed the public has little interest in the disciplining of
the confined criminal element of society or the manner in
which they are fed and clothed. However, it is clear that
State prisons, or even local jails have become more and
more, and rightly so, in this age proper subjects for seru-
tiny by representatives of the public and the courts when
necessary. The higher echelon of Prison management are
being held now to account and answer frequently about
these matters, (See J udges and Wardens: Teammates for
Rehabilitation, by U. S. District Judge George H. Boldt,
Judicature, The Journal of the American Judicature
Society, January, 1970, Vol. 53; State of Prisons in the
United States: 1870-1970; Negley K. Teeters, Ph.D., Fed-
eral Probation: A Journal of Correctional Philosophy
and Practice, Vol. XX XIII, December 1969). No longer can
prisons and their inmates be considered a closed society
with every internal disciplinary judgment to be blissfully
regarded as immune from the limelight that all public
agencies ordinarily are subject to. It does seem that the
fate and nature of confinement for persons convicted of
crime is of little concern to society in general. Many
30a
Appendia B.
have been smug by rationalizing that if unpleasant prob-
lems arise in the prisons, the prisoners brought it on them-
selves and the less public notice the better.
Security, of course, has been and should. be a paramount
objective in maximum security prisons. It is a primary
consideration I keep in mind throughout the decision I
make in these actions. That factor unquestionably must
be considered carefully when weighing the propriety and
reasonableness of judgments made in these tensest of sur-
roundings to uphold discipline and moral. Such decisions
have to be quickly made and their role in my opinion is
extremely important to guard against as much as humanly
possible, insurrection, riot and terrorizing jailbreak. (See
US ex rel. Wade v. Jackson (NDNY 1956) 144 F. Supp.
458; reversed 2 Cir., 256 F. 2d 7). The Wade case involved
the sensational New York Sing Sing jailbreak in 1941 in
which an unarmed guard was killed inside the prison, and
a police officer on a public street in Ossining, N. Y. Judge
Youngdahl described the gravity of the relationship so
well: ‘The association between men in correctional insti-
tutions 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
(DCDC) 250 F. Supp. 977, 981). However, there are risks
in every phase of human life and this State interest can
never justify treatment and procedures in prison confine-
ment proven violative of human decency and constitutional
rights. The judicial complacency of the past in regard to
these problems and cautions for courts to refrain when-
ever possible as I noted in Rodriguez v. McGinnis (NDNY)
307 F. Supp. 627, has been discarded. The Circuit Court
statements in review of this Wright v. McMann action are
further proof of the new attitude in these matters. The
New York Court of Appeals, responsive and progressive,
has been no different in its consideration of State prisoner
3la
Appendiz B,
problems. Several years ago that Court commented in
Brown v. Johnston, 9 NY 2d 482, at 485, that an individual
once validly convicted and placed under Department of
Correction jurisdiction is not to be divested of all rights
and unilaterally abandoned and forgotten by the remainder
of society. (See also Brabson v. Wilkins, 19 NY 2d 433).
Chief Justice Burger, a leader in the stimulation of new
interest in prison reforms, has stated that prisoners after
conviction cannot be considered as human rubbish and that
a visit to most prisons will make one a zealot for reform.
The diligent defense lawyers in these actions have supplied
new decisions passing upon civi! rights actions of prisoners
confined in State Prisons other than New York. (Holt et
al. v. Sarver (ED Ark.) 309 F. Supp. 362, 2/18/70, 38 US
Law Week 2462; Hancock v. Avery (MD Tenn.) 301 F.
Supp. 786; see also Jordan v. Fitzharris (ND Cal.) 257
F, Supp. 674; Burns v. Swenson (WD Mo. 288 F. Supp.
4), A unique approach by a Federal District Court to this
type problem involving a group of State prisoners confined
in Rhode Island is demonstrated recently by the decision
in Morris v. Travisono (D.C.R.I.) 310 F. Supp. 857 (1970).
The methods of consultation and conciliation were invoked.
There was complaint of alleged application of arbitrary
and discriminatory rules and procedures in the confinement
to punitive segregation for discipline. In a remarkable
innovation, the District Judge not only had opposing coun-
sel produce a tentative set of new rules but heard views and
considered responses regarding their draft and content
from the plaintiff prisoners also. Jurisdiction over the
case for 18 months was retained to oversee admir’ ation
of the new regulations for possible revision after prac-
tical application in the Prison. This is a long term super-
vision for a federal Court but I suppose the hope of final
voluntary settlement of prickly issues may make such a
program worth the attempt. The outcome should be of
aie
32a
Appendiz B.
great interest to all correction, legal and judicial officers,
both State and Federal.
This preface of review, philosophical and otherwise, is
set forth in an attempt to interest these executive, legisla-
tive, and legal heads of New York in the proposition that
possibly the Rules and Regulations promulgated for New
York prisons, particularly those relating to segregation
‘confinement and its living conditions and administrative
procedures for hearing and disposition of charges that lead
to this type confinement or other serious punishment, be
reviewed and updated to conform at least in principle if
not exact wording to those similar type rules and regula-
tions recommended by responsible sources and recognized
as progressive and in step with modern concepts. (See
Manual of Correctional Standards (Pl. Ex. 30); Missouri
State Penitentiary Rules & Procedures (Pl. Ex. 29) ; Task
Force Report on Corrections, issued May 1967 by Presi-
dent’s Commission on Law Enforcement & Administration
of Justice, excerpt thereof referred to in Wright v. Mc-
Mann, supra pg. 527).
There is no intention on my part to be critical of the
Department of Correction of New York, its personnel or
the Wardens and Deputy Wardens of the large maximum
security prison involved in this litigation. This record
demonstrates clearly that the Wardens and Deputy Ward-
ens advanced through the ranks during many years of
experience in a variety of correctional positions with the
active and daily problems of prison life. There is no ques-
tion in my mind of their personal and official dedication to
safeguarding the public interest or to their integrity. My
relationship with New York State Correctional personnel
in a great number of cases involving State Prisoners has
always been afforded an attitude of cooperation from them
in the processing of prisoner applications and the produc-
tion of prisoners when necessary at times and places where
—
33a
Appendix B.
this Federal Court sits, usually several hundred miles from
the Prisons. (See U. S. ex rel. Bruno v. Herold, 2 Cir. 408
F. 2d 125, fn. p. 130). That cooperation has never been
better demonstrated than during the trial of these actions
when nine prisoner witnesses and the two plaintiffs had to
be transported and kept in the Albany area to be available
at the appropriate time during a lengthy trial.
Over the years at a number of hearings when State
prisoners were before me on the witness stand, I always
made it a point to inquire how they were being treated.
Ironically, and this is true mostly of the Clinton prisoners,
the answer was they were being treated all right. Several
whom I recall gave specific examples. I recall one show-
ing his new false teeth with pride, others telling about
obtaining the equivalent of a high school diploma, or
teaching and learning languages and art. These are small
things, of course, but they struck me as signs of humane-
ness. The prisoners were always dressed in well fitting
civilian clothing and none of them gave any appearance
that would lead to the slightest suspicion of physical mis-
treatment or undernourishment. Wright and Mosher had
similar appearance during the trial of these cases. Tes-
timony in this record from all the prisoners unequivocally
support the conclusion there are no serious grievances
they have as inmates in the so-called general population
at Clinton Prison (R 534, 1026, 1034). It should be noted
that plaintiffs, Wright and Mosher, in fact by their plead-
ings and testimony, aim their charges of alleged civil right
Wrongs mainly against Section 4, a unit of twelve cells,
located in a 48 cell disciplinary segregation building,
called the ‘‘Box’’? by inmates. There is also criticism
against several so-called “dark cells” in the segregation
building, and the observation cells located in a separate
building (See Photographs-Def. Exs. A thru K). Wright
testified that in 1967, conditions in segregation at Clinton
34a
Appendix B.
Prison vastly improved. (R 77-87, 170-175). To support
a finding that general population living conditions are all
right although not in this record, judicial notice is
stretched to refer to a book in the vein of a Baedeker
travel guide for United States Prisons. It is My Ameri-
can Prisons, by Parisian Jacques Angelvin, and was given
capsule review in Time Magazine, December 6, 1968 Issue,
p. 33. Dannemora (Clinton) as he appraised it from his
actual confinement is thus described:
“Dannemora: Scenically located on the Canadian bor-
der; cells resemble those at Sing Sing and are impecca-
bly clean ; siesta permitted between morning and afternoon
work periods; ice skating, bobsledding and skiing available
in season; clientele permitted to have their own gardens
(Angelvin was allowed to raise his own potatoes so as
not to have to eat frozen french fries); waiters in the
dining room attired in white hats, jackets and gloves.”
This description may seem in the nature of a spoof, far-
fetched and tongue in cheek. Mosher, however, at the
trial of these actions told about groups of prisoners al-
lotted little plots of ground in the Prison yard at Clinton
with facilities to store food and cooking utensils, with oil
drum stoves provided for outdoor cooking. Mosher testified
that at one time when in good graces he was selected as
foreman or court manager of one group of 12 or 13 that
had space in the North Yard for these unusual privileges
of being able to boil a pot of coffee and prepare outdoors
their own meal to their own liking (R 1009-1012). It was
a food episode that led to the compounding of Mosher’s
problems when confined in segregation. In segregation the
prisoners are fed in their cells by two guards coming
down the gallery or walking alongside the cells, pushing
a warm food wagon. The food as selected by each prisoner
in their individual cells is put in one or two bowls by
the guards who measure out the portions as the bowls
35a
Appendiz B.
are passed into the prisoner to eat from with a spoon.
The humor mixture in the sadness of any prison confine-
ment was the testimony of Mosher that one of ‘he serving
guards had the habit of “rubbing his nose and picking his
ears” before handing the food through the bars. Mosher
asked him if it was possible for him to use a napkin or
pick up the food in a spoon. Mosher said the guard
remarked, “What do you think, you are in the Waldorf-
Astoria” and Mosher’s reply was “No, far from it” (R
1032). Also, Mosher was complacent about the usual di-
rection given when taken to the segregation unit to take
off the prison clothes he wore regularly and was given
the segregation unit clothing. When asked if the segrega-
tion clothes fit by his attorney at this trial, he answered,
“They could have been better, you know, but I wasn’t
going anywhere, you know” (R 1020).
The submission of these actions is in the massive cate-
gory. Together with extensive briefing, there are filed
for Wright by number 250 Proposed Findings of Fact and
eleven Proposed Conclusions of Law. Proposed Findings
of Fact for Mosher number 254, with eight proposed Con-
dusions of Law. It has always been my custom and prac-
tice to make my findings in my own language and in my
own manner, endeavoring to state the fundamental findings
that I believe are involved by the issues presented. These
detailed findings for the plaintiffs, accurately keyed to the
record and exhibits, however, shall be filed with this deci-
sion as possibly being helpful, as I have found them, for
convenient reference and as an aid to those who may be
next to review and consider this substantial record.
Undoubtedly, the plaintiffs’ attorneys, to whom the
highest credit must be given for motives solely to promote
expertly through the channels of the law humanitarianism
in prison confinement, seck to use by unmatchable zeal
these Wright-Mosher actions as a vehicle for reform of
practically every deficiency and flaw that might exist in the
int eteestHaay Hy
i walt iii UF fig:
tt itt bile
Nici i if Hi
SES s tis mil it i il
Be
in the 4 Section of the
complained
and the strong writing in the
37a
Appendiz B.
simulated much other litigation from other prisoners who
are or have been confined therein.
As stated before, plaintiff Wright testified that in 1967
eeaditions in segregation had vastly improved since 1966
sheets, pillow-and bankets: shirt, pants and pair of socks
(B 1447-9, see also Ex. 22: par. 33). Plaintiff Mosher tes-
tified that two and one-half months before the hearing in
these actions before ue he was given broom, scrubbing
brushes, and hot water whereby he could thoroughly clean
his segregation cell as he wanted it (R 1041). Section 4
rarely be used (Ex. 1: pp. 26, 28; R 519, 1040, 1520; Ex. 2,
p. 55). Confinement in these two so-called “dark cells”
was unquestionably a cruel one, and it was testified to by
Warden LaVallee that their use has been discontinued
(RB 1499-1500). Revised Rules covering disciplinary mat-
ters and procedures were issued by Commissioner of Cor-
rection McGinnis, effective March 1, 1969 (Court Ex. 2).
It is extremely important to note that the New York Legis-
lature amended the Correction Law in many respects.
Most important to the issues here are the repeal of Sec-
tions 137, 138, 139 and 140 of such law by addition of a
new Section 137, particularly in subdivisions (5) and (6)
that direct proper treatment of any inmates and proper
38a
Appendiz B.
living conditions for those kept in segregation (Ch. 476,
Section 137, McKinney’s Session Laws of N. Y., effective
July 8, 1970). It is argued that these belated improve-
ments and changes should not warrant escape from respon-
sibility in this litigation but, to my mind, such should be
welcomed at least as signs of recognition in New York that
there must be change from past practices. As Justice
Frankfurter observed in his dissent in Henslee v. Union
Planters Bank (1948) 335 U. S. 595 at p. 600, “Wisdom
too often never comes, and so one ought not to reject it
merely because it comes late.”
President Bernard G. Segal of the American Bar Asso-
ciation observed in his recent article on the President’s
Page, June 1970—Issue—American Bar Assoc. Journal,
“The deficiencies in present correctional facilities and
programs have been adequately identified by a considerable
amount of inquiry and research, and specific reform pro-
posals for modern and enlightened programs—standards,
facilities, services—have been developed by authoritative
government and private sources. What is needed now is
a nationwide campaign to translate these recommenda-
tions into action”.
No one ever had and probably never will have all the
answers for these disciplinary problems. An eminent wit-
ness in this trial, James V. Bennett, testified the mainte-
nance of discipline in prisons is a very difficult, perplexing
problem (R 297). An extensive opinion with studied re-
search was handed down by United States District Judge
Motley that touches on practically every facet of New
York prison disciplinary procedures and punishment in
Sostre v. Rockefeller, McGinnis, Mancusi and Follette
(SDNY) —— F. Supp. ——,, 68 Civ. 4058, May 14, 1970,
38 U. S. Law Week 2619. Governor Rockefeller was
named only in one claim and that claim was dismissed
against all defendants. In the other claims, substantial
39a
Appendia B.
money damages were assessed against the other defend-
ants, Correction Commissioner and Wardens, and juris-
diction was retained to allow them an opportunity to sub-
mit for approval to the Judge proposed rules regarding
New York prison practices and disciplinary procedures
required by the opinion. One of the issues of great im-
portance, but not present here, was the right of prisoners
to freedom of political expression when confined. There
is scholarly and thorough réséarch of the problems of juris-
diction, immunity of the State officers and the compensa-
tory and punitive damage award, that may forge the way
for authoritative and definite rulings by higher judicial
authority. The District Courts in my opinion are in dire
need of further guidance in these areas. The hearing
requirements and procedures outlined by Judge Motley
to be promulgated and followed to accord with due process
are bound, I believe, to create serious divergence of view-
point. However, the dialogue, administrative and judicial,
that will now occur will be beneficial to obtain the sensible
and workable improvements in these prison ‘situations
earnestly desired by many. (See Nolan v. Scafati (DC
Mass.-1969), 306 F. Supp. 1; Roberts v. Pepersack (DC
Maryland-1966), 256 F. Supp. 415.
First, it is urged that the present actions may be treated
as class actions pursuant to Federal Rule of Civil Pro-
cedure 23 provisions, as applied in Jackson v. Bishop,
8 Cir., Blackmun, H. A., 404 F. 2d 571. The Jackson case
involved the use of a leather strap to flog the prisoner on
his bare buttocks as an approved disciplinary measure in
the Arkansas penal institutions. New York has definite
prohibition against physical punishment or abuse of any
prisoners. Sound writing indicates such conversion to
class action ordinarily is not appropriate nor so intended
to apply in mass tort cases where damages, liability and
defenses affect individuals in different ways. (Class Ac-
40a
Appendiz B.
tions-Wright-47 F.R.D. 169-185, at p. 179; see also Wash-
ington v. Lee (MD Ala.) 263 F. Supp. 327, 330-31, aff'd.
per cur. 390 U. S. 333; Green v. Wolf Corp., et al., 2 Cir.
406 F. 2d 291; the City of New York v. International Pipe
ete., 2 Cir., 410 F. 2d 295). These actions shall be treated
only as individual ones, tried together by consent. Plain-
tiff Wright seeks money damages in the amount of $10,-
000.00 and injunctive relief for the alleged violations of
his constitutional rights. Plaintiff Mosher seeks only in-
junctive relief and has waived expressly any claim for
award of money damages. The issues in each action shall
be discussed and decided separately. There is important
testimony and exhibits common and pertinent to both, but
essentially, in my judgment the number of issues necessary
to decide are relatively few, with focus of the search nar-
row inasmuch as it must remain reasonably within the
limits and purposes of the appellate remand decision by
the Cireuit Court of Appeals in Wright.
I
WRIGHT
The pattern for the Wright findings to be made is laid
out in the appellate writing:
‘We are of the view that civilized standards of
humane decency simply do not permit a man for a
substantial period of time to be denuded and exposed
to the bitter cold of winter in northern New York
State and to be deprived of the basic elements of
hygiene such as soap and toilet paper. The sub-
human conditions alleged by Wright to exist in the
‘strip cell’ at Dannemora could only serve to destroy
completely the spirit and undermine the sanity of the
prisoner. The Eighth Amendment forbids treatment
4la
Appendix B.
so foul, so inhuman and so violative of basic concepts
of decency. Trop v. Dulles, 356 U. S. 86, 100, 101.”
(Wright v. McMann, 2 Cir., 387 F. 2d 519, at 526).
Of course, this general statement must be related to the
particulars developed for Wright at the trial in order to
perform properly my function as the fact-finder regard-
ing the essential elements necessary to be proven to sup-
port his claim of deprivation ‘and violation of federal
constitutional rights and privileges. It should be em-
phasized from the record there is nothing to support a
contention that segregation for a period of time and under
proper conditions in a State prison to enforce discipline
is unconstitutional per se. Witness Bennett, with- long
experience as nationwide director of federal prisons,
testifying for the plaintiffs said it was perfectly proper
for a time, that we cannot abolish segregation cell blocks,
and that we have to have them even in this new day of
prison reforms (R. 255, 293). Dr. Joseph Satten, a
physician specializing in psychiatry, eminent also in this
field of study of prison confinement and its consequences,
and Chief of the division of law and psychiatry at the
Menninger Hospital and Foundation, training qualified
psychiatrists for correctional service, gave for this
record an illuminating discussion concerning confinement
problems in major prisons and its effect upon the human
inmates (R. 412-478). He did not rule out either the need
for punitive segregation confinement although he em-
phasized the care to be taken concerning its conditions
and the length of its use due to the serious impact it may
have upon certain prisoners due to their individual mental
and physical attitudes and capacities (R. 471-473). It is
interesting to note that this doctor who has devoted his
life to the study of prison confinement with extensive
Practical contact with and observation of many prisons
42a
Appendia B.
does not feel an inmate should be entitled to counsel when
charged with violation of prison rules and regulations
(R. 474).
I find with little difficulty from this record that in 1965
and in 1966 when Wright was confined to punitive segre-
gation, such confinement in view of certain living condi-
tions that existed then in the so-called ‘‘strip cell’’ and
in a state of complete nudity was cruel and unusual in-
fliction of punishment as that clause of the Eighth
Amendment to the United States Constitution should be
interpreted and applied. There is no preciseness to de-
fine and apply this constitutional prohibition but sensible
guide for assistance comes from an opinion of the highest
judicial authority in the land that: ‘‘The Amendment
must draw its meaning from the evolving standards of
decency that mark the progress of a maturing society.”
Trop v. Dulles, 356 U. S. 86, 99-101; see also Weems,
217 U. S. 3A9.
Together with the evidence in the record in my judgment
to support this finding of cruel and unusual punishment
inflicted upon Wright in 1965 and 1966 in certain periods
of his segregation confinement, there is the unusual
feature that the defendant Wardens’ Answer in the Wright
action filed in this Court April 26, 1966, admits several
elements that on their face give serious concern about the
segregation cell conditions under which Wright was con-
fined, and would be ones ordinarily involved in dispute.
The first affirmative defense describes Wright as a ‘‘glib
psychopath’’ (he has been confined to mental institutions
on several occasions) ; alleges that it was the practice dur-
ing those years to place certain inmates in what was known
as a strip cell at the time of their reception in segrega-
tion; that (and this clause is verbatim) a strip cell has
only the bare necessities and at times the clothing is taken
from the prisoner and at night he is given a blanket to sleep
43a
Appendiz B.
upon the floor; that the practice to keep a prisoner, first in
a strip cell, as admittedly Wright was kept for at least
some time, was routine treatment in the interests of
prisoner discipline and to minimize the dangerous propen-
sities certain prisoners’ might have in regard to their
person and the ordinary prison furnishings in a cell.
From this Answer itself, and it is noted in the Wright
Appellate opinion in fn. 15, the justification sought to be
established by the pleading that certain prisoners must be
kept in a strip cell because they may become violent, tear
the cell up, and so forth is destroyed by the admission that
it was routine for inmates when first received in segrega-
tion to put them in a strip cell. Unquestionably, the
stripping of the cell and the nudity of Wright was for
discipline, alone, and no facts are shown to support pos-
sible conduct on his part that would imperil himself or
the cell. Wright was placed in such barren confinement
nude, and I so find, when first received on February 18,
1965 and February 9, 1966. Therefore, I find it was done
purely for disciplinary purposes and not from any tend-
encies exhibited that gave reasonable grounds for fear of
suicide or destruction of prison property.
According to a single page, sparse interdepartmental
communication dated April 24, 1954, inmates placed in seg-
regation for disciplinary reasons other than for refusal to
work were to be placed in 4 Section upon arrival in segre-
gation for 30 days. (Ex. 19). Further, Rules for the op-
eration of segregation were issued by Deputy Warden
DeLong, August 9, 1967, as a reissue of the 1954 Rules.
(Ex. 22). A most important rule therein is No. 33: ‘‘In-
mates in a strip cell and observation cell will be issued
one each pad, blanket, shirt, pants and a pair of shoes.
(No shoe strings or belt will be issued).’? This instruc-
tion came after the Wright confinements.
In 1965 and 1966, the confinement that Wright complains
of was harsh and rugged in the 4 Section. Deputy Warden
44a
Appendia B.
DeLong described the activity of the day in this Section.
(Ex. 2: p. 133). Strip, at least during the times in ques-
tion, meant literally the everyday sense of that word. The
light bulbs were removed in the 4 Section, and the only
fixtures an inmate had in the cell during a long day were
a toilet and washbowl. Deputy Warden DeLong in his
deposition, explaining these features, said the inmate in
4 Section did not have a stool or anything to sit on; it
seems to have been the practice not to furnish a bedstead,
and in any event the bedding was removed during the day
from 7:30 A.M. to 10:00 P.M. (Ex. 2: pp. 37-47). There
was no radio or smoking privileges, and the reading mate-
rial was very limited. The inmates of 4 Section were on
their feet all day from 7:30 A.M. to 10:00 P.M. with no
place to sit except on the floor or toilet bowl. As noted
previously, they had to eat from a bowl with a spoon and
had to fashion their own way to handle the bowl to eat.
(R. 1028). Another requirement only for 4 Section was
that the inmates stand at attention at the door of their cell
in the 4 Section every time correction personnel of every
type would pass the cell upon the gallery. This was no
written rule, but such practice was enforced, (Ex. 2: pp.
108, 110, 133-34; R. 69, 532, 597, 1021, 1066, 1234). Deputy
Warden DeLong said standing at attention would help
them sleep at night. (R. 1233). Wright was kept for a
number of days in 3 Section completely nude, and the seg-
rezation cell in which he was confined was stripped of all
furnishings, leaving only the toilet and sink. (R. 158-61,
70, 368, 571, 1193, 1220-1, 1535; Ex. 6: p. 12; Ex. 9: p. 8;
Ex. 39: pp. 168, 248; Ex. 41: p. 22). Section 3 was used
for strip cell confinement when so ordered in the same
manner as 4 Section strip cell. I find that nudity was def-
initely used as part of the disciplinary punishment with the
thought to demean, if nudity so does. I also find that part
of the strip cell treatment was to keep the cell in not too
45a
Appendix B.
clean a condition. The strip cell inmate was only furnished
a rag and insufficient scouring powder to clean it with. No
program to clean it between inhabitants existed. (Ex. 2:
pp. 69, 174, 653, 1022, 1236). Warden McMann changed
certain customs of nudity and cell conditions, after he
found out about Wright. (R. 1192-3, 1220, 1256-8, 1448-9,
1457). Eyeglasses were taken from strip cell inmates, and
were taken from Wright for a period of days; this prac-
tice being changed in 1967, (R. 88-9; Ex. 5: p. 31). I find
that Wright was deprived of hygienic implemen‘s inside
the strip cell, i.e. those common to every day life, such as
soap, towel and toilet paper, and that these things would
be kept on the window sills outside the strip cells, only to
be handed in by the correction officers upon request aecord-
ing to the testimony of Warden McMann. (R. 1459). Under
this arrangement, it is not difficult to believe, and I so find
that at times these requests would be ignored either de-
liberately or by reason of the guards being unavailable at
the propitious time, and I find as testified to by Wright
and several inmates that on occasion they had to use their
hand to finish their toilet use. (R. 327, 481, 545, 571). In
the observation cell where Wright was confined in April
1965, there was no toilet or sink in the cell, and the pro-
cedure to go to the bathroom was more complicated in
that when the call of nature came the inmate had to at
times wait for the one guard engaged in making his
rounds to call in another guard to accompany Wright to
the toilet facility. (R. 191-2; 647).
Of course, the temperature maintained in 4 Segregation
Unit during the winter months is very important when the
finding is made that Wright was kept completely nude in
1965 for 11 days and had to sleep on the cement floor with-
out bed or mattress, and was kept nude under the same
conditions for 21 days commencing in February 1966. (R.
61, 70-71, 77, 79, 231; 130, 149, 1145-6, 1192, 1306-07, 1348,
1390; Ex, 43).
46a
Appendia B.
Deputy Warden DeLong admits Wright was nude for 8
days in 1966 (R. 1248). Correction officer Kennedy, often
in charge in 4 Segregation, said Wright was nude in 1965
(Ex. 6: 22). Wright said for first two days in 1965 there
was no heat in the radiator in his cell (each segregation
cell has its own radiator); that in the late afternoon shift
the windows were open and making it very cold, although
his estimate was that the temperature in his cell was 35°-
40°, and not a sub-zero temperature (R. 225-232, 527-528,
575). I am quick to say there is no intent on my part
to imply that sleeping on a concrete floor with no blanket
or mattress, may not in itself be inhumane unless good
reason from violent conduct of an inmate justifies such
type of treatment—unquestionably harsh. The eminence
of Director Bennett was recognized in Jackson v. Bishop
(DCED), Arkansas 268 F. Supp. 804, 813, and from his
long experience he testified that at times an inmate might
become a suicidal risk, uncontrollable and violent, that tak-
ing the clothing away might be necessary, although in the
federal prison system an inmate may be deprived of cloth-
ing only when so prescribed by a medical officer (R. 260).
Director Bennett gave sensible reasons why the standing
at attention at the door cells might be needed for short
periods of time to check the segregation inmates if not
done for pure harassment (R. 268). He said that an in-
mate can properly be deprived of his bed and sheets if he
uses them improperly or he is continuously abusive, but
he should never be required to sleep on a bare floor (R.
266-267).
In paragraph 12 of his complaint, filed on March 11,
1966, Wright claims he was ‘‘ without clothing and entirely
nude for several days’’ during his 1965 segregation con-
finement, after which he was given what he describes as 8
thin pair of underwear. In regard to the 1966 confine-
ment, he seems to claim nudity during most of the time he
47a
Appendiz B.
was left in the 4 Section, asserting the sub-freezing tem-
peratures caused by the deliberate opening of windows by
the guards during both confinements. The Almighty could
not penetrate the contradictions in this record in that re-
gard and the testimony concerning heat is practically in
the same impenetrable category. Seven guards testified
the temperature was always comfortable, and much of
their testimony was that it was so comfortable they worked
in their shirtsleeves during the hours when temperature
is in serious dispute (R. 1140, 1196, 1275, 1318, 1386, 1433).
However, there was an unexplained lack of a thermome-
ter in the regregation unit to support the guards’ feeling
of comfort, and most important to me I find support for
Wright’s and other inmates testimony that the cells were
kept cold at times for discipline by the lack of any entry
in the log books about the prevailing temperatures during
certain portions of the day. This seems to me an effective
way to insure proper temperature by imposing as a routine
obligation upon the guards to log the heat temperature at
certain times of the day and night in the log book. I ac-
cept, at least in regard to Wright, particularly when com-
bined with his nudity and lack of pad or mattress, that the
temperature was cold to an inhumane degree, and caused
extreme discomfort (R. 70, 227-8, 527-8, 576, 654-5;
Ex. 9: 8; Ex. 39: 66). So I find Wright was kept nude for
11 days without bed or mattress under cold conditions for
several nights of those days although a radiator in the cell
was turned on after two days, and he was kept nude in
1966 in 4 Segregation Section under similar conditions for
certain portions of 21 days (R. 225, 230, 128-9, 130, 149).
There are a number of matters about which proof was
taken and concerning which the dedicated attorneys for
the plaintiffs want considered as issues under the frame-
work of the pleadings in both these actions but I am not so
inclined. Many of these issues are peripheral to and not
48a
Appendiz B.
directly involved I believe reasonably under the Wright-
Mosher challenges. Proposed Findings of Fact, Con-
clusions and detailed decree has been submitted in their
regard. Generally, I do consider it unwise that in these
days of prison reform on its own the State does not make
certain changes, but such thinking on my part does not
create federal constitutional issue. The question of legal
assistance by one prisoner to another has been finally
settled by the United States Supreme Court in Johnson v.
Avery, 393 U. S. 483. Such assistance can no longer be
prohibited, but can be reasonably regulated by the prison
officials. In regard to such problems at Clinton Prison,
United States District Judge Palmieri of the Southern
District of New York has ruled that it is clear that legal
assistance of prisoners by other prisoners in preparation
of legal papers, as well as access to law books, are not
prohibited, but simply subject to reasonable regulation
and control by the Warden. Such ruling I accept as con-
trolling here. (U. S. ex rel. Scott v. LaVallee (SDNY),
69 Civ. 2627, 10/28/69.) The deprivation of Wright of his
Bible he claims he wanted while in his segregation cell
for several days, and the custom not to allow him or
other segregation inmates to attend corporate religious
services, I do not find ascend to the proportion of federal
constitutional violation under this record. (See Cooper
v. Pate, 378 U. S. 546.) It does seem to me that if any
inmates at any time should be allowed reasonable access to
religious texts, ceremonies, and counsel, if they are sincere,
they surely should be those confined in the segregation unit
for incorrigibility and infraction of Prison rules. Wright
testified he had a Catholic Chaplain visit him in segrega-
tion in 1965 and received ashes from that Chaplain in
1966 (R. 407-408). I do find that a doctor with an inmate
orderly visited and made the rounds of every segregation
cell daily. The plaintiffs’ attorneys contend there should
49a
Appendiz B.
also be at least periodic visits by one of the prison
psychiatrists, and also that the guidance and counsel-
ing services available rendered by program to the general
population should be provided for segregation prisoners.
I agree again that if there is any place the need for these
services should be apparent is in the Segregation Unit
and I would think New York would voluntarily begin to so
act in eccord with modern prison practices and standards.
The power placed in one man, the Deputy Warden, to
decide the disciplinary charges and punishment, is an
awesome one but I am not going to go so far as to dictate
by judicial fiat that a three-man disciplinary committee is
constitutionally necessary to so determine. The eminent
experts in the trial of these actions did not so contend as
an absolute, except to say as is true that three minds may
be better than one (R. 473-4). However, in this regard,
appropriate and plain rules unquestionably should be
promulgated to safeguard that the one man decision-
maker, the Deputy Warden, or the three-man disciplinary
Board, if such is created, have procedural written rules
with sensible guidelines not only for the hearing role,
practically judicial, but also with proper and timely ave-
nues provided for review and formal appeal from dis-
ciplinary decisions that it is clear from this record have
the most serious consequences upon a prisoner’s im-
prisonment and release date. In this respect, it seems to
me that the directive of Judge Motley for rules and regula-
tions to be submitted on that aspect is sufficient to ac-
complish the relief sought here. At the time Judge Motley
set for the submission of new rules and procedures, or
whenever so submitted to her, I hereby accept as the ap-
Propriate time such submission be made to me of new
rules for disciplinary hearings and review. Jurisdiction is
retained for this compliance. There should also be more
detailed rules written for confinement in observation cell,
50a
Appendiz B.
a direct issue here, that shall only be used for psychiatric
observation unless extreme circumstances dictate other-
wise. I believe it is wrong for the Deputy Warden to
have the power to hand down UFO sentences, which mean
until further orders. Such allow the Sword of Damocles
to hang for considerable periods of time and unquéstion-
ably must cause mental aggravation and unrest in a
prisoner’s mind solely because of indefiniteness. For this
record, Correction Officer Kennedy testified he knew of
inmates confined in segregation for two years (R. 1328).
Deputy Warden DeLong, who apparently has imposed
peremptorily a great number of segregation confinement
sentences, mostly indefinite, testified in his deposition,
quite boastfully as I read it, that if the prisoner in
segregation did not come around to the unwritten criteria
he wanted, such criteria being subjective and derived from
custom, he had the discretion under certain circumstances
to keep a prisoner in segregation during his whole term
(Ex. 2: 165). This power, considering that disciplinary
officers as Judges, are not divinely inspired to be infallible,
must be curtailed by reasonable written regulation of
higher authority. This looseness in the imposition of
serious discipline punishment is particularly questionable
when weighed with the fact there are no official written
channels for authoritative and formal review and appeal.
Such safeguards are deemed essential and recommended
by responsible sources. (A Manual of Correctional
Standards, Ex. 30: p. 410; Edwards v. Duncan, 4 Cir., 355
F. 2d 993, 994-5.) There is promise of some improvement
by the Revised Procedure covering Disciplinary Matters
issued February 21, 1969, by Commissioner McGinnis
(Court Ex. 2), but I do direct that another look be taken
and further improvements be added to conform to a greater
extent with procedures recommended by competent sources
and adopted in other States. To repeat, rules for dis-
5la
Appendix B.
ciplinary proceeding are to be submitted to Judge Motley
within a certain time period, and if her direction stands,
and such is done the new rules should also be submitted
to me for approval in these actions. I also find that the
interference with the attorney-client relationship involving
both Wright and Mosher violated their due process rights.
As Judge Motley did, I adopt the view of J udge Keating,
dissenting for the three dissenters in Brabson v. Wilkins,
19 N. Y. 2d 433 (1967). There is no support for the fears
that unhampered lawyer-prisoner correspondence may en-
danger security. There are rules for confinement to the
observation cell (Ex. 22), particularly covering confine-
ment by an employee during night periods to such cells,
but these rules should be redrafted and submitted to me
for approval being considered a direct issue involved here.
extreme circumstances concerning Wright and Mosher to
be used as a launching pad to correct every administra-
ive and confinement fault in the New York State Prison
system. Those pleas should be pressed upon the Gov-
ernor, Attorney General, Correction Commissioner, and
proper legislative Committees of New York. The basis for
any intrusion here at all is restricted to the power of fed-
eral courts to intrude when civil rights are violated by fed-
eral constitutional deprivations or violations. I seek to
52a
Appendia B.
impose self-restraint upon my judicial power as herein I
recommend to others who judge. I want the disciplinary
administrative personnel who really assume the function
of a Judge to so act when hearing charges and make seri-
ous decisions that cause severe confinement and resulting
loss of other privileges and rights that may affect parole
and conditional release. In the main, of course, my find-
ing for Wright and the conclusion that his constitutional
rights were violated is based primarily upon the combina-
tion of the living conditions that he had to endure for
periods of time in 1965 and 1966. At that time there was
a design in my judgment to avoid written rule-making in
the Clinton segregation unit, to put the rebellious prisoner
in the hands of the guards under unsanitary conditions
that would make him subservient and break him down into
a submissive and conforming attitude that was thought in
reasonably good faith, I am sure, as being necessary to
maintain security and overall maintenance of discipline.
There is no doubt that these motivations became part of
the system and were handed down by those who had
handled prison inmates for years. Unfortunately, it is
true that a number of prisoners remain just as desperate
and violent inside as outside a Prison and stern measures
must be taken which judgment when necessary I do not
intend to challenge. The record here bears out a reluct-
ance, however, to indulge in much rule making for segre-
gation confinement, and the Wardens made rare visits to
such area of the prison (R. 1447). Such rules and sur-
prise visits seem essential to insure humane treatment no
matter the provocation. To the credit of Warden McMann,
he made major corrections in the 4 Segregation Section
when certain conditions came to his attention (R. 1448-9).
The money damages to be awarded Wright as seems
prevalent in the application of all legal principles in these
claims under the Civil Rights statute enters a complicated
_— —
53a
Appendix B.
phase of judicial writing. J udge Motley covered the lead-
ing cases to the date of her decision, May 14, 1970, in
Sostre v. Rockefeller, et al., supra. Generally, the com-
pensatory damages are to be governed by federal stand-
ards. (42 USCA 1983; Sullivan v. Little Hunting Park,
Inc., 396 U. S. 229, 239; Pierson v. Ray, 386 U. S. 547;
_ Basista v. Weir, 3 Cir., 340 F. 2d 74, 87). Supreme Court
Justice Brennan expanded upon these writings, concur-
ring in part and dissenting in part, in Adickes v. Kress
& Co., —— U. S. —, June 1, 1970, stating that the fed-
eral courts are duty-bound to enrich the jurisprudence of
$1983 by looking to remedies of the State wherein they
sit. The practical guide I think is contained in Monroe v.
Pape, 365 U. S. 167, 187 to the effect § 1983 should be read
against the background of tort liability that makes a man
responsbile for the natural consequences of his actions.
Conventional principles of damages, in my experience
never too difficult to apply, fit the situation here. Chief
Judge Lumbard recently with ease used the traditional
elements of compensatory damage while sitting as a Dis-
trict Judge in Connecticut in Arroyo v. Walsh, et al., Civ.
Action No. 13, 100, awarding $2500.00 damages for al-
leged excessive force by police in making an arrest.
I do not minimize the discomfort Wright had to undergo.
However, we do not have the usual propositions of doctor
bills, loss of wages, physical injury and possible. future
physical impairment. Wright is a big, strapping man, and
although he testified that under the rigors of his confine-
ment in the cold when nude he lost weight, there is no sup-
port for that except his testimony and I refuse to so find.
Loss of sleep is believable under the conditions I find ex-
isted for periods of the night hours. There are no medical
records to substantiate his claims of swollen legs and so
forth (R. 80-87). The doctor did pass his cell daily and
there is no record I am aware of with such complaints.
54a
Appendix B.
I award no punitive damages because such are justified
only as a retributive or deterrent measure. Green v. Wolf
Corp. 2 Cir., 406 F. 2d 291. Also, to be applied is the
statement of Justice Brennan in Adickes, supra, that a
defendant, such as the Warden here, must act with actual
knowledge he was violating a right secured by the Consti-
tution and laws or acted with reckless disregard of whether
he was thus violating such right. Although I do not find
sufficient to uphold the good faith or probable cause de-
fense, there is not enough in my judgment to find deliber-
ateness or recklessness on the Warden’s part to award
punitive damages. Further, because of the examples |
have noted of correction and improvement in New York
prison conditions that relate to issues of this kind, and the
legislative and correctional attitude to update and improve
to eonform to modern penological surveys and studies,
there is no need in my judgment for deterrent measures.
The dark cells are changed to such extent that their use
although necessary in certain circumstances would be mini-
mal. Neither Wright or Mosher were ever so confined.
The injunctive relief I grant, and in each action, the attor-
neys for each plaintiff, have submitted separate elaborate
decrees for detailed relief with many similar provisions.
Any decree of injunctive relief should be limited to the
relief granted specifically in this decision, and should not
entail or cover projections for other relief that I do not
decide herein.
My conclusions of law for Wright are that the Court has
jurisdiction; his confinement under the conditions as de-
seribed herein in 1965 and 1966 in 4 Segregation Unit at
Clinton Prison, Dannemora, N. Y., constituted eruel end
inhuman punishment in violation of the Eighth and Four-
teenth Amendments; that rules are to be submitted as
herein noted that will limit carefully confinements to the
‘observation cell’? to which Wright was confined ; permit
legal assistance among inmates to each other, and prohibit
55a
Appendix B.
interference with attorney-client correspondence. That
plaintiff Wright is entitled to compensatory damages in
the amount of $1500 together with the costs and expenses
set forth in plaintiff’s Wright proposed decree in para-
graph VII. Jurisdiction shall be retained to insure com-
pliance with the directions herein regarding promulgation
and enforcement of proposed rules to attain these purposes.
The time limits for submission of new rules and regulations
that pertain to the matters herein where I made express
direction shall be submitted to the Court and served within
30 days on the paintiffs’ attorneys, who shall have ten
days to object with right to hearing to be fixed by the
Court, if necessary. I have tried to make clear that the
time period for proposed new rules and regulations for
disciplinary hearings, their decision, review and appeal
shall be geared by New York to the submission at the same
time as that fixed by Judge Motley. A decree in conform-
ance herewith, if agreed upon, shall be submitted for sig-
nature and filing, and if not so agreed upon, to be settled
upon five days notice.
II
MosHER
I have less difficulty with the claim of this plaintiff than
with Wright. The claim requests no money damages and
ironically at the trial there was not the great complaint
by Mosher about living conditions in 4 Section, except, of
course, his first confinement there took place in 1967. He
was not confined nude nor on his part did he make much
during his testimony concerning the heat conditions.
Mosher, and I find him a believable witness although
obviously explosive and fiery, spent five months in segrega-
tion in 1967. He was released in September 1967, and on
December 14, 1967, for violation of the same rule was sent
56a
Appendia B.
back to segregation under the usual UFO (until further
order) indeterminate sentence where he was then confined
for another year. During the last segregation confinement,
Mosher was kept for five months in the 4 Section, which
although improved was still severe in its living conditions
(R. 1087-8). The trigger for Mosher’s first confinement
to segregation that caused the second one, revolved around
his failure to sign a so-called “safety sheet” in both in-
stances (R. 1017-8; Ex. 11; 1036-7). This regulation to
sign a “safety sheet” was said to be a method to insure
that every prisoner read the safety rules before working
in the prison shops. I find that Mosher sincerely felt that
such document would waive his right to sue the State of
New York for damages for personal injuries caused by
negligence and that is why he refused to sign (R. 1018-9,
1061, 1077, 1201). The lawyers and I at the trial could not
agree as to the legal significance or construction that might
be given to the “safety sheet” and the possible extent of
waiver of rights, and Warden LaVallee testifying in Court
said he would have no objection to addition of words to the
sheet that the inmate was not waiving rights for personal
injury claims against State (R. 1518-19). More important
is the testimony of Warden McMann that he did not believe
failure to sign the sheet called for disciplinary action at
all (Ex. 3: 28-29). Director Bennett testified the segrega-
tion sentence was inappropriate punishment (R. 243-7).
Other inmates who refused to sign only lost yard and com-
missary privileges (Ex. 14: March 28, December 14, 1967).
With reliance on this type testimony, I find that the origi-
nal confinement to segregation of Mosher and its pro-
longation was grossly disproportionate punishment for the
offense committed by him. I also find that procedural
safeguards with meaningful review and formal right to
appeal in this instance might have averted or corrected
this improper punishment. (See Armstrong v. Manzo, 380
U. S. 545, 552; Ex. 2: 77-81, 96-7; Ex. 3: 20, 21). I find
57a
Appendix B.
that these confinements to punitive segregation being un-
constitutionally disproportionate in the beginning are
linked clearly to the later violations in segregation. The
connection I find is such that the “good time” lost by
Mosher resulting from the first segregation confinement
earried through to the other segregation charges and con-
finement and he is entitled to its restoration. Such total
good time loss shall be computed by days recited in the
decree to be submitted by Mosher. (See Rodriguez v. Me-
Ginnis, et al., (NDNY), 307 F. Supp. 627; appeal taken for
defendants, argued and under consideration by Court of
Appeals, Second Circuit). The same ruling rule herein
regarding the observation cell and correspondence.with an
attorney in the Wright discussion apply to Mosher. The
procedural considerations that caused Mosher’s confine-
ment affect Mosher much more than Wright, and the de-
cree for Mosher to be submitted shall incorporate as
acceptable Paragraph 9; subdivisions (b), (ec) and (d) of
the proposed Mosher decree filed. (See Goldberg v. Kelly,
397 U. S. 254). The time limits are to be the same and
should be geared when necessary to the rule and regula-
tion submission requested by Judge Motley. I should note
that in this record and in exhibits there is contained the
foulest of language. In some parts of our society such
language is the popular one of the day. I do not intend to
enter that thicket. As one guard stated, guards and in-
mates indulge in expletives, and I believe the language is
choice on both sides. I can only recommend for reading
an article in the FBI Law Enforcement Bulletin, January
1970, entitled “Explosive Words and Phrases”. The gist
is law enforcement officers particularly must train them-
selves to exercise superior restraint and patience no mat-
ter the provocation.
My conclusions of law are there is jurisdiction in this
Court of the Mosher claim; his Eighth and Fourteenth
Amendments constitutional rights were violated by reason
58a
Appendia B.
of disproportionate punishment for offenses committed in
violation of prison rules; that the “good time” loss re-
sulting from infractions and related ones discussed herein
shall be restored; that he is entitled to injunctive relief
to the extent only indicated herein. The time limits set
in the Wright action apply here. The decree for Mosher
should contain the same provisions for award of costs and
expenses as in Wright. The decree shall be submitted if
consented to, otherwise settled on five days notice.
In conclusion, I must say reaching decision in these ac-
tions has been a difficult task. The issues, many of them
probably borderline for consideration in a federal court
were numerous and filled with legal complications. The
consequences of abrupt and arrogant interference had to
be weighed and balanced with the compelling interest to
uphold federal constitutional rights in accord with modern
precepts. The balance must be kept true as Justice Cardozo
said, and there must be equal understanding of the prison
administration problems as well as those of the inmates.
The problems will work out if fairness and firmness be-
come dominant principles in prison discipline, and due
regard is given to the immense studies and program rec-
ommendations now available as guides.
The exhibits herein, except the five Log Books (Ex. 38,
39, 40, 41, 42), shall be filed with the Clerk of the Court
with this decision at Utica, New York. The Assistant At-
torney General attaches security importance to the Log
Books and they shall be retained in my Chambers at
Albany, to be delivered to a representative for the defend-
ants at their convenience.
It is So Ordered.
Dated: July 31, 1970, Albany, New York.
James T. FOLey,
United States District Judge.
59a
Appendix B.
Memorandum-Decision and Order Entered by
Foley, D.J., on August 19, 1970.
James T. Forey, D. J.
lle.
| MEmorRANDUM-DECISION AND ORDER
Aug. 19, 1970
In the above actions, my memorandum-decision and order
dated July 31, 1970, after lengthy discussion of the issues,
directed in each action that separate decrees be submitted
in accordance with my findings and conclusions for signa-
ture, if consented to, otherwise to be settled on five days
notice.
Tn each action, Attorney Turner for Mosher and Attor-
ney Friedlander for Wright have submitted decrees with
a formal notice of settlement designated for August 12,
1970. I have reviewed the decrees and have made the
changes therein that in my judgment bring them into con-
formance with the rulings I made directly or intended by
my expressions in the memorandum-decision and order of
July 31, 1970.
The separate original decrees with additions, deletions
and certain portions stricken are signed and shall be
mailed as of this date to the Clerk of the District Court at
Utica for filing. For convenience, a mailing list of the
attorneys is herewith furnished and the Clerk is directed
after filing of the decrees to mail Xeroxed ccpies of both
to said attorneys and to me for my files at Albany, N. Y.
It is So Ordered.
Dated: August 19, 1970, Albany, New York.
James T. Fotey,
United States District Judge.
60a
Appendix B.
Decree, dated August 19, 1970 (Mosher).
UNITED STATES DISTRICT COURT,
NortHern District or New York.
67-Crv-174
Unrrep States or America ex rel. Ropert MosHer,
Vs.
How. J. Epwirn La Vatiez, Warden of Clinton Prison,
Dannemora, N. Y.,
Defendant.
DECREE
This action having come on for trial before the Court,
sitting without a jury, and the issues having heen duly
tried and decision rendered on July 31, 1970, it is hereby:
OxverED, ApJupGED and Dercreep as follows:
I. Injunctive Relief
Defendant, his agents, employees, successors and all
others under his control or acting in concert with him, are
hereby enjoined as follows:
A. Disciplinary Procedures
1. Defendant shall not confine plaintiff to puni-
tive segregation or subject him to any other punishment as
a result of which he may lose accrued “good time” credit
or be unable to earn “good time” credit without affording
him at least the following rights:
6la
Appendiz B.
(a) Adequate prior notice of the charge
against him and the possibility that he may be sent
to segregation or lose good time.
(b) Fair hearing procedures, including the
right to appropriate representation, to present his
version of the facts, to challenge the facts constitut-
ing the charge, to call witnesses where the facts are
disputed and to have an adequate record made of the
proceedings.
(c) Where the decision is made to send plain-
tiff to segregation, an indeterminate sentence shall
not be imposed but plaintiff shall be told the exact
length of his term; in addition, the reasons for such
decision shall be recorded and the decision shall be
reviewed by the Warden before it becomes final. A
regular and formal means of administrative appeal
shall be provided from the decisions of the discipli-
nary board and the Warden.
2. Defendant shall promulgate and act in accord-
ance with reasonable rules and regulations governing
prison disciplinary proceedings. Defendant shall submit
proposed rules and regulations to the Court and counsel
for plaintiff at the same time as the Department of Correc-
tion submits such rules and regulations to the District
Court for the Southern District of New York in Sostre v.
Rockefeller, 68 Civ. 4058. Plaintiff’s attorney shall have 10
days thereafter to submit and serve objections, if any, to
the rules and regulations. If objections are presented, they
may be considered at a hearing to be fixed by the Court.
B. Restoration of Good Time
Defendant shall forthwith restore to plaintiff 616
days of good time, comprising 440 days of accrued good
62a
Appendia B.
time taken from plaintiff in disciplinary proceedings dur-
ing confinements to punitive segregation in 1967 and 1968
and 176 days which plaintiff was barred from earning
because of such confinements.
a
C. Observation Cells
1. Plaintiff shall not be confined in any psychi- —
atric observation cell for disciplinary purposes or without
psychiatric justification.
2. Defendant shall promulgate and act in accord-
ance with reasonable rules and regulations governing (a)
the conditions which prevail in psychiatric observation
cells and (b) the procedures used in determining whether
to confine an inmate in such a cell. Defendant shall submit
proposed rules and regulations to the Court and counsel
. for plaintiff within 30 days after the entry of this decree.
Plaintiff’s attorney shall have 10 days thereafter to sub-
mit and serve objections, if any, to the rules and regula-
tions. If objections are presented, they may be considered
at a hearing to be fixed by the Court.
D. Attorney-Client Correspondence
Defendant shall not censor or interfere in any
way with any correspondence between plaintiff and his
attorney.
E. Inmate Legal Assistance
Defendant shall permit inmates to render legal
advice or assistance to each other. Defendant may, how-
ever, promulgate reasonable rules and regulations govern-
ing the time, place and manner of rendering legal assist-
ance among inmates.
—
63a
Appendix B.
Il. Costs and Expenses
The costs of this action shall be borne by defendant.
The costs shall include (a) the costs of the depositions
introduced in evidence, (b) the traveling expenses and
reasonable fees of the two expert witnesses who testified
on behalf of plaintiff, and (c) the reasonable traveling
expenses of appointed counsel for the purpose of taking
depositions and attending the: trial. The parties are di-
rected to attempt to agree on the amount of such costs;
application to the Court may be made if agreement cannot
be reached.
III. Retention of Jurisdiction
The Court retains jurisdiction of the case for the
purpose of supervising compliance with this decree.
Dated: August 19, 1970, Albany, N. Y.
JAMEs T. Foxy,
United States District Judge.
Approved as to form:
Louis J. LerKowrrz, Attorney General
by Timothy F. O’Brien,
Attorney for Defendant.
Wiu1am Bennett Turner,
Attorney for Plaintiff.
64a
Appendia B.
Decree, dated August 19, 1970 (Wright).
UNITED STATES DISTRICT COURT,
Norrrers Disrrrcr or New Yorn.
Civil No. 66-CV-77
4
bs
Lawnence Wrasam Wriont,
Plaintiff,
vs.
How. Daxter, MoMaxx, Wanorw or Croxton Parison,
Daxxrmors, New Yorr,
Defendant.
Derorer.
This action having come on for trial before the Court,
sitting without a jory, and the issues having been duly
tried and decision rendered on July 31, 1970, it is hereby:
Onoeren, anscnorn and prcrren as follows:
1. Injunctive Relief
Defendant, his agents, employees, snecessor and ail
others under his control or acting im concert with him, are
hereby enjoined as follows:
A. Operation of Segregation Cell Flock
1. Plaintiff shall not be confined to punitive segregation
and its use by defendant or his snecessor is hereby em
jomed until the defendant shall promulgate and insure
enforcement of rales and regulations which shall provide
for the following:
65a
Appendix RB.
(a) Facilities in segregation cells which shall he
sufficient to safeguard the health and physieal well-
heing of the occupants, which facilities shall inelnde at
a minimum adeqnate furnishings, and sanitary facili-
ties and implements.
(b) Provisions to insnre maintenance of adeqnate
heat and ventilation in the segregation cel] block.
(¢) Adeqnate clothing shall he provided for aren.
pants. Enforced mndity solely as a disciplinary meas.
ure shall he forbidden.
(¢) Ocenpants shall not be deprived of eye-glasses,
dentures or of any other prosthetie necessary for
health or comfort, as a diseiplinary measnre.
(f) Ocenpants shall he granted the right to corre.
spond freely with their attorneys, such correspond-
ence shall not he censored.
(h) Regular inspection of the segregation cel] hlock
by adequately trained supervisory personnel, along
with an established routine for imannonneed inspec-
tion visits by snch personnel to the segregation cel]
block.
(j) Uniformity of reports concerning the day to
day operation of the segregation unit, such records to
he maintained in conformity with acceptable stand.
ards which shall guarantee the reliahility and aecenracy
of the reports.
B. Procedures for Imposition of Sentence to Pumitine
Segregation
I. Defendant or his snecessor shall not confine plaintiff
6 punitive segregation or any similar type of punishment
resulting in his isolation from the prison popniation and
—
66a
Appendix B.
loss of accrued good-tirze credit or inability to earn good-
time credit without affording him at least the following
rights:
(a) Adequate prior notice of the charge against
him and the possibility that he may be sent to segre-
gation or lose good time.
(b) Fair hearing procedures, including the right to
appropriate representation, to present his version of
the facts, to challenge the facts constituting the
charge, to call witnesses where the facts are disputed
and to have an adequate record made of the pro-
ceedings.
(c) Where the decision is made to send plaintiff to
segregation, an indeterminate sentence shall not be
imposed but plaintiff shall be told the exact length
of his term; in addition, the reasons for such decision
shall be recorded, and the decision shall be reviewed
by the Warden before it becomes final. A regular
and formal means of administrative appeal shall be
provided from the decision of the disciplinary board
and the Warden.
9. Defendant shall promulgate and act in accordance
with reasonable rules and regulations governing prison
disciplinary proceedings. Defendant shall submit pro-
posed rules and regulations to the Court and counsel for
plaintiff at the same time as the Department of Correction
submit such rules and regulations to the District Court for
the Southern District of New York in Sostre v. Rockefel-
ler, 68 Civ. 4058. Plaintiff’s attorney shall have 10 days
thereafter to submit and serve objections, if any, to the
rules and regulations. If objections are presented, they
may be considered at a hearing to be fixed by the Court.
ea
67a
Appendix B.
C. Observation Cells
1. Plaintiff shall not be confined in any psychiatric ob-
servation cell for disciplinary purposes or without psy-
chiatric justification.
2. Defendant shall promulgate and act in accordance
with reasonable rules and regulations governing (a) the
conditions which prevail in psychiatric observation cells
and (b) the procedures used in determining whether to
confine an inmate in such a cell. Defendant shall submit
proposed rules and regulations to the Court and counsel
for plaintiff within 30 days after the entry of this decree.
Plaintiff ’s attorney shall have 10 days thereafter to sub-
mit and serve objections, if any, to the rules and regula-
tions. If objections are presented, they may be consid-
ered at a hearing to be fixed by the Court.
D. Inmate Legal Assistance
Defendant shall permit inmates to render legal advice
or assistance to each other. Defendant may, h- vever,
promulgate reasonable rules and regulations governing the
time, place and manner of rendering legal assistance
among inmates.
Il. Compensatory Damages
Defendant shall pay to the plaintiff the sum of $1,500.00
compensatory damages.
III. Costs and Expenses
The costs of this action shall be borne by defendant.
The costs shall include (a) the costs of the depositions in-
troduced in evidence, (b) the traveling expenses and rea-
68a.
Appendix B.
sonable fees of the two expert witnesses who testified on
behalf of plaintiff, and (c) the reasonable traveling ex-
penses of appointed counsel for the purpose of taking
depositions and attending the trial. The parties are di-
rected to attempt to agree on the amount of such costs;
application to the Court may be made if agreement cannot
be reached.
IV. Retention of Jurisdiction
The Court retains jurisdiction of the case for the pur-
pose of supervising compliance with this decree.
Dated: August 19, 1970, Albany, N. Y.
James T. Forey,
United States District Judge.
69a
APPENDIX C
Opinion of the United States Court of Appeals for the
Second Circuit, dated December 19, 1967.*
Unirep Srares Court or APPEALS
FOR THE Seconp Crircurr
Lawrence WitLiAM WricHt,
Appellant,
against
DanteL McMann, as Warden of Clinton State Prison,
Appellee.
%
v
Docket No. 31023
Argued Nov. 24, 1967
Decided Dec. 19, 1967
Before Lumparp, Chief Judge, Kaurman and FEINBERG,
Cireuit Judges.
Irvine R. Kaurmay, Circuit Judge:
We are called upon to decide whether allegations con-
tained in a complaint filed by an inmate in a state prison,
if true, evidence treatment constituting ‘‘cruel and un-
usual punishment”’ in violation of the Eighth Amendment
of the Constitution of the United States.
Lawrence William Wright, an inmate of Clinton State
Prison at Dannemora, New York,’ appeals from a dis-
* This case is reported at 387 F.2d 519.
* Appellant currently is serving an indeterminate sentence of from
one day to life, following a 1963 conviction for certain sexual of-
fenses. See Peeople v. Wright, 22 A.D.2d 754, 253 N.Y.S.2d 653
(4th Dept. 1964), affirmed, 16 N.Y.2d 736, 262 N.Y.S.2d 113 (1965),
cert. denied sub nom. Wright v. New York, 384 U.S. 972, 86 S.Ct.
1864, 16 L.Ed.2d 683 (1966).
70a
Appendix C.
missal of his complaint without a hearing by the District
Court for the Northern District of New York, Brennan, J.,
257 F.Supp. 739 (N.D.N.Y.1966). The complaint, brought
under the Civil Rights Act* and seeking an injunction and
$10,000 damages for alleged violations of rights secured to
Wright by the Constitution of the United States, was dis-
missed on the grounds that it failed to make a sufficient
showing of the denial of Wright’s constitutional rights, or,
alternatively, that Wright’s remedy, if any, lay in the New
York courts. We reverse and remand to the District Court.
I.
The complaint (prepared by appellant without the for-
mal assistance of counsel) alieges* that on February 18,
1965, the Deputy Warden, acting on behalf of Warden
McMann, the defendant, placed Wright in the solitary
confinement unit of the prison for an alleged violation of
a prison regulation. The core of Wright’s charge seems
to be based on the claim that upon reception in solitary
confinement, he was placed first in what is known in prison
jargon as a ‘‘strip cell,’’ where all sorts of cruelties were
visited upon him. The conditions to wiaich Wright alleg-
edly was subjected in this cell are best described in his
language:
[T]he said solitary confinement cell wherein plaintiff
was placed was dirty, filthy and unsanitary, without
adequate heat and virtually barren; the toilet and
sink were encrusted with slime, dirt and human ex-
2 This suit is brought under 42 U.S.C. §§ 1981, 1983, 1985(3).
Jurisdiction is based on 28 U.S.C. § 1343.
3 Of course, on appeal from the granting of a motion to dismiss,
we must accept the allegations in the complaint as true. Cooper v.
Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964).
Tla
Appendix C.
cremental residue superimposed thereon; plaintiff
was without clothing and entirely nude for several
days [elsewhere said to be 11 days] until he was given
a thin pair of underwear to put on; plaintiff was un-
able to keep himself clean or perform normal hygienic
functions as he was denied the use of soap, towel,
toilet paper, tooth brush, comb, and other hygienic
implements and utensils therefore; plaintiff was com-
pelled under threat of violence, assault or other in-
creased punishments to remain standing at military
attention in front of his cell door each time an officer
appeared from 7:30 A.M. to 10:00 P.M. every day,
and he was not permitted to sleep during the said
hours under the pain and threat of being beaten or
ctherwise disciplined therefore; the windows in front
of his confinement cell were opened wide throughout
the evening and night hours of each day during sub-
freezing temperatures causing plaintiff to be exposed
to the cold air and winter weather without clothing
or other means of protecting himself or to escape the
detrimental effects thereof; and the said solitary con-
finement cell was used as a means of subjecting piain-
tiff to oppression, excessively harsh, cruel and inhu-
man treatment specifically forbidden by the EKighth
Amendment to the United States Constitution. (Com-
plaint, 12.)
In other filed papers Wright states that this ‘*strip
cell”? was completely barren of furniture with the excep-
tin of a sink and toilet, He goes on to state that he was
forced to sleep completely nude on the cold rough con-
crete floor and that the cell was so cold and uncomfortable
that it was impossible for him to sleep for more than an
hour or two without having to stand and move about in
order to keep warm. He adds thai food was served to
him in bowls placed on the floor of his ceil and that he
72a
Appendiaz C.
was forced to handle and eat his rations without even the
semblance of cleanliness. He describes the cell as fetid
and reeking from the stench of the bodily wastes of pre-
vious occupants which he says covered the floor, the sink,
and the toilet.
Wright was continuously kept in this cell until March
23, 1965—a total of 33 days. A year later, he again was
placed in a ‘‘strip cell,’’ this time for 21 consecutive days,
for violating a prison rule.‘
Il.
Until recently the federal courts refused to review
charges instituted under the Civil Rights Act and arising
out of state prison disciplinary procedures. The pris-
oners, instead, were left to pursue whatever remedies were
available in the state courts.° The oft repeated reasons
+ What that rule is, we are not told. Wright’s pro se brief on
appeal states that he received no advance notice from the prison
authorities of the charges against him, and was not permitted to call
witnesses, to confront his accusers, or to speak or defend himself
in any manner.
Wright claims also that he was assaulted by various prison guards
in the course of being placed in the “strip cell,” and that while in the
cell he was not permitted to possess his personal Bible and prayer
books nor to see the prison chaplain or Episcopal minister. In addi-
tion, he states that for several months he was not permitted to attend
Sunday Protestant church services held for the benefit of the inmates.
And, according to him, the Warden maliciously placed him in a
psychiatric observation cell from April 12 to April 15, 1965, to deter
him from making complaints to judicial and other authorities. Lastly,
Wright alleges that he was deprived of all his law books and legal
materials for a short period of time, and that some of these materials
were withheld from him throughout the entire period of his first
confinement in the “strip cell,” although he was then engaged in
appealing his conviction.
5 See cases cited in Pierce v. LaVallee, 293 F.2d 233, 234-235
(2d Cir. 1961).
73a
Appendix C.
used to justify this result were (a) that the Eighth Amend-
ment’s prohibition against cruel and unusual punishment
did not apply to the states, (b) a reluctance to interfere in
the internal discipline of state prisons, and (c) the need
to utilize state remedies in the first instance. See Redding
v. Pate, 220 F.Supp. 124, 126 (N.D.111.1963).
Recent decisions, however, have demonstrated a sharp
alteration in the judicial attitude toward these rationales
and today the older cases retain little vitality. Indeed,
there is no longer any question that a state prisoner may
bring an action under the Civil Rights Act. Cooper v.
Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964).
Any lingering uncertainty over the applicability of the
Eighth Amendment to the States was laid to rest by Robin-
son v. State of California, 370 U.S. 660, 82 S.Ct. 1417, 8
L.Ed.2d 758 (1962). And, while federal courts are sensi-
tive to the problems created by judicial interference in the
internal discipline of state prisons, in appropriate cases
they will not hesitate to intervene. Pierce vy. LaVallee,
293 F.2d 233 (2d Cir. 1961); Howard v. Smyth, 365 F.2d
428 (4th Cir.), cert. denied, 385 U.S. 988, 87 S.Ct. 599, 17
L.Ed.2d 449 (1966) ; Jordan v. Fitzharris, 257 F.Supp. 674
(N.D.Cal.1966); Fulwood v. Clemmer, 206 F.Supp. 370
(D.D.C.1962) ; Talley v. Stephens, 247 F.Supp. 683 (E.D.
Ark.1965).
The harshest blow to the old ‘“‘heads-off”? doctrine was
struck by Monroe y. Pape, 365 U.S. 167, 81 S.Ct. 473, 5
L.Ed.2d 492 (1961). There, in an action under the Civil
Rights Act to recover money damages against city police
officers for violating rights secured by the Fourteenth
Amendment, the Court held that exhaustion of state veme-
dies was not a condition precedent to accepting jurisdiction.
Any remaining belief in the vitality of the exhaustion prin-
ciple was dispelled when the concurrent jurisdiction of the
federal courts in cases under the Act was reaffirmed in clear
T4a
Appendiz C.
terms in McNeese v. Board of Education, 373 U.S. 668, 83
S.Ct. 1433, 10 L.Ed.2d 622 (1963). The Court quoted with
approval the language of Judge Murrah in Stapleton v.
Mitchell, 60 F.Supp. 51 (D.Kan.1945) : “We yet like to
believe that wherever the Federal courts sit, human rights
under the Federal Constitution are always a proper sub-
ject for adjudication, and that we have not the right to
decline the exercise of that jurisdiction simply because the
rights asserted may be adjudicated in some other forum.”
Id. 373 U.S. at 674, 83 S.Ct. at 1437, n. 6. It is appropriate
to note. however, that recently we had occasion to observe
that the Supreme Court did not intend Monroe and Mc-
Neese to abrogate the historic principle that federal courts
will not entertain a suit in equity when “plain, adequate
and complete” remedy may be had at law. Potwora v.
Dillon, 386 F.2d 74 (2d Cir. 1967). Of course, Monroe
settled beyond cavil that exhaustion is not required when
only legal relief is sought. And, in any event, in this suit
for both legal and equitable relief it is only too clear that
New York’s remedies are inadequate.°
Indeed, until relatively recently it was clear that
Wright could not even have prosecuted a claim in a New
York Court because New York’s civil death statute’ im-
posed a complete bar to suits by prisoners while incarcer-
ated. See, e.g., Green v. State of New York, 278 N.Y. 15,
14 N.E.2d 833 (1938); Burns v. City of New York, 21 A.D.
2d 767, 250 N.Y.S.2d 680 (ist Dept. 1964). Since the
® Various descriptions of “adequate” have been given, although in
somewhat different contexts: “adequate in theory” and “available in
practice,” Monroe v. Pape, supra, at 183, 81 S.Ct. 473: “plain,
adequate and complete,” Potwora v. Dillon, supra; “plain, speedy,
and efficient,” American Law Institute, Study of the Division of
Jurisdiction Between State and Federal Courts, proposed 28 U.S.C.
§1371(c) (3) (Tent. Draft No. 4, 1966).
* Formerly § 510 of the Penal Law; now § 79 of the Civil Rights
Law, McKinney’s Consol. Laws, c. 6.
-—
75a
Appendix C.
amendment of section 6-b of the Correction Law* in 1962
McKinney’s Consol. Laws, c. 43, a right of action (with
leave of a Supreme Court Judge) is afforded for the re-
covery in the New York Court of Claims of damages re-
sulting from injuries inflicted by an employee or officer of
a state prison.’ But the Court of Claims possesses limited
jurisdiction and may award only money damages. New
York Constitution, Art. 6, § 9. - Section 6-b thus is of no
aid to Wright in his quest for an injunction to prevent a
recurrence of the brutalities he charges. And money dam-
ages are small consolation for a man serving a potentially
long sentence and complaining of debasing prison condi-
tons which he endured and fears he might have to endure
again.
We are told that the so-called Black Muslim cases” sug-
gest another possible remedy in the state courts, for in
those cases prisoners succeeded in proceedings under Arti-
* Section 6-b now provides:
No civil action shall be brought in any court against the commis-
sioner * * * of correction or an officer or employee of a state
prison * * * in his personal capacity, for alleged damages because of
act done or failure to perform any act, while discharging his
duties, without leave of judge of a supreme court, first had
and obtained. Any such officer or employee in any such action shall
not be liable for damages if he shall have acted in good faith, with
reasonable care and upon probable cause.
Any just claim for damages against such commissioner, officer or
employee for which the state would be legally or equitably liable,
shall be brought and maintained in the court of claims as a claim
against the state.
*This assumes that §6-b supersedes pro tanto the civil death
Statute, a matter on which the New York courts have not ruled. In-
we are not referred to a single instance in which this section
was utilized.
.
Shaw v. McGinnis, 14 N.Y.2d 864, 251 N.Y.S.2d 971, 200
N.E.2d 636 (1964); Brown v. McGinnis, 10 N.Y.2d 531, 225
N.Y.S.2d 497, 180 N.E.2d 791 (1962).
7 _ «
Appendiz C.
cle 78 of New York’s former Civil Practice Act* for man-
damus to compel prison authorities to comply with section
610 of the Correction Law guaranteering religious freedom
to prisoners. Thus, the Attorney General argues that since
Article 78 proceedings are available to enforce compliance
with statutory duties, Wright has an effective remedy.
He suggests that Wright should be compelled to bring such
a proceeding to enforce section 139 of the Correction Law
which forbids prison officials from using unnecessary force.
But our answer to this is that an Article 78 proceeding
could not provide complete relief because Wright’s charges
are much broader than a mere claim of unjustifiable assault
by a prison official.”
We are not unmindful of Art. 1, Sec. 5 of New York’s
Constitution, which forbids cruel and unusual punishment.
But we have not been cited to any case, nor has our inde-
pendent research disclosed any, in which an inmate has
challenged prison conditions under this provision. And,
it is not clear that an adequate procedure is available in
New York to enforce whatever rights are guaranteed un-
der this provision.”
The Attorney General of New York has advised us that
he would not oppose upon jurisdictional grounds any re-
lief which Wright might seek in the New York Courts.
41 This provision is similar to Article 78 of New York’s present
Civil Practice Law and Rules.
12 In addition, we have been cited to no case nor have we un-
covered any in our research in which a proceeding was brought under
Article 78 to force compliance with § 139. is remedy is too
nebulous for us to say it is clearly available.
13 What procedure was employed in Brabson v. Wilkins, 45
Misc.2d 286, 256 N.Y.S.2d 693 (SupCt.1965), modified, 25 A-D.2d
610, 267 N.Y.S.2d 580 (4th Dept. 1966), affirmed, 19 N.Y.2d 433,
280 N.Y.S.2d 561, 227 N.E.2d 383 (1967), does not appear from
the reports, although a claim of “cruel and inhuman” medical treat-
ment was considered.
—
Appendiz C.
However, we do not understand the Attorney General’s
position to be that Wright is clearly afforded an adequate
remedy under the cases and statutes that have been cited.
In any event, jurisdiction is not conferred by the failure
of the Attorney General to object.
Accordingly, it seems to us that the New York Courts
would conclude that they lack jurisdiction over Wright’s
prayer for injunctive relief. And so we have grave doubt
as to the existence of a state remedy adequat in either
theory or practice. See McNeese v. Board of Education,
supra, 373 U.S. at 674-676, 83 S.Ct. 1433.
III.
We turn now to the abstention doctrine which has
been urged upon us and which we believe has little rele-
vance to this case. Cf. Potwora v. Dillon, supra at p. 86
of 386 F.2d n. 5. The principle—which oceasionally is
confused with the ‘‘exhaustion of state remedy’’ tenet—
was first fashioned in an opinion by Mr. Justice Frank-
furter, Railroad Comm’n of Texas v. Pullman Co., 312
U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), and was de-
signed to avoid needless constitutional adjudication.
Moreover, if appropriately applied it showed due regard
by the federal courts for the sovereignty of the states.
But we cannot ignore that its application gives rise to
some sacrifice of the individual’s right to federal adjudi-
cation, see Note, Federal-Question Abstention: Justice
Frankfurter’s Doctrine in an Activist Era, 80 Harv.L.Rev.
604, 605, 606 (1967) (hereinafter Note, Federal-Question
Abstention), and the latest pronouncement on the subject
by the Supreme Court emphasizes that the doctrine is to
be applied ‘‘only in narrowly limited ‘special circum-
stances.’’’ Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391,
United States v. Livingston, 179 F.Supp. 9, 12-13 (E.D.
aa
78a
Appendiz C.
S.C.1959), affirmed, 364 U.S. 281, 80 S.Ct. 1611, 4 L.Ed.2d
1719 (1960), and quoted with approval in Zwickler y.
Koota, supra, 389 U.S. at p. 244, 88 S.Ct. at 397; Note,
Federal-Question Abstention, supra, especially at 604 n. 3.
While the doctrine has not been entirely abnegated
and instances may still arise in which it will be appro-
priate, see Harrison v. NAACP, 360 U.S. 167, 79 S.Ct.
1025, 3 L.Ed.2d 1152 (1959) ; Railroad Comm’n v. Pullman
Co., supra,” it is reasonable to conclude that cases involv.
ing vital questions of civil rights are the least likely can-
didates for abstention, e. g., McNeese v. Board of Educa-
tion, supra, 373 U.S. at 673-674, 83 S.Ct. 1433. See Note,
Federal-Question Abstention, supra at 607-608. And, in
the instant case ‘‘the federal right [is not] in any way
entangled in a skein of state law that must be untangled
before the federal case can proceed.’’ McNeese v. Board
of Education, supra, 373 U.S. at 674, 83 S.Ct. at 1437. In-
deed, the objectives of the Civil Rights Act would be de-
feated if we decided that this federal claim grounded on
an alleged violation of the federal constitution would have
to stagnate in the federal court until some nebulous or
nonexistent remedy was pursued like a will-o’-the-wisp in
the state court. See England v. Louisiana State Board
of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.
2d 440 (1964).
The Task Force Report on Corrections of the Presi-
dent’s Commission on Law Enforcement and Administra-
tion of Justice, cited in our Brother Lumbard’s separate
concurring opinion, articulates precisely why we are com-
pelled to act in an area so peculiarly within the concern
of the states. Recognizing our duty not to require Wright
** As we said in Powell v. Workmen’s Compensation Bd., 327
F.2d 131, 135-136 (2d Cir. 1964), “these were cases * * * designed
to stay federal injunctive relief pending clarification of state law by
its authorized expositors.”
79a
Appendix C.
to seek relief in the state courts and not to abstain, we
turn to the merits of his Kighth Amendment claim.
IV.
Historically, the Eighth Amendment’s ban on cruel
and unusual punishment was aimed at preventing a recur-
rence of torture and barbarous punishments, such as pil-
lorying, disemboweling, decapitation, and drawing and
quartering—all too prevalent during the reign of the
Stuarts. Note, The Cruel and Unusual Punishment Clause
and the Substantive Criminal Law, 79 Harv.L.Rev. 635,
636-637 (1966). By the nineteenth century the provision
was believed to be virtually obsolete because the punish-
ments sought to be exterminated had long passed. In
1910, however, the Supreme Court revitalized the pro-
hibition against cruel and unusual punishment. Noting
that a ‘‘principle, to be vital, must be capable of wider
application than the mischief which gave it birth,’’ the
Court held that the Eighth Amendment ‘‘is not fastened
to the obsolete but may acquire meaning as public opinion
becomes enlightened by a humane justice.” Weems v.
United States, 217 U.S. 349, 373, 378, 30 S.Ct. 544, 551, 553,
54 L.Ed. 793 (1910).
We have no hesitancy in holding that the debasing condi-
tions to which Wright claims to have been subjected, and
recited in part I of this opinion, would, if established, con-
stitute cruel and unusual punishment in violation of the
Eighth Amendment. They offend more than “‘some fas-
tidious squeamishness or private sentimentalism.’’ Rochin
v. People of California, 342 U.S. 165, 172, 72 S.Ct. 205, 209,
% L.Ed. 183 (1952). Indeed, the Assistant Attorney Gen-
eral of New York with commendable candor conceded dur-
ing argument before us that the conditions, if they were
as Wright alleged, were ‘terrible’? and ‘‘should not be
permitted to exist.’’
80a
Appendiz C.
While the disciplinary policies of the federal prisons
would not necessarily have a bearing, ipso facto, in deter-
ing whether state prison authorties have so exceeded the
bounds of propriety as to have violated the Eighth Amend-
ment, it is of some interest that the directives of the
United States Bureau of Prisons on the treatment of pris-
oners in solitary confinement do not permit the conditions
Wright alleges. They require that ‘‘the quarters used for
segregation shall be well ventilated, adequately lighted,
appropriately heated and maintained in a sanitary condi-
tion at all times’’; an inmate can be deprived of clothing
only when prescribed by the Chief Medical Officer for
medical or psychiatric reasons; and toilet tissue, tooth
brush, comb, etc. are not to be denied a segregated inmate.
United States Bureau of Prisons, Policy Statement 7400.5,
appendix A, p. 2 (November 28, 1966).
We are of the view that civilized standards of humane
decency simply do not permit a man for a substantial pe-
riod of time to be denuded and exposed to the bitter cold
of winter in northern New York State and to be deprived
of the basic elements of hygiene such as soap and toilet
paper.** The subhuman conditions alleged by Wright to
%8 The Warden’s answer states that “A strip cell is a necessary
part of prison discipline owing to the fact that a prisoner when being
punished for breach of prison discipline is placed in solitary con-
finement or segregation, he often becomes violent and destroys prop-
erty, tears the cell up, sets fires and otherwise conducts himself
as to be dangerous to himself and others. The strip cell is only used
to avoid the dangerous consequences of placing a prisoner in a seg-
regated area immediately upon his being sentenced to such punish-
ment.” But apparently no determination was made that this particu-
lar prisoner was or would have become violent. Indeed, the Warden's
answer admits that “The treatment of Wright was strictly routine
treatment for a violation of prison discipline * * *.”
We do not rule out the possibility that in exceptional circum-
stances it might be necessary to take from a prisoner all objects
with which he could harm himself or others. If such circumstances
were present in this case, they may, of course, be brought to the
attention of the District Court to which this case is being remanded.
8la
Appendiz C.
exist in the ‘‘strip cell’? at Dannemora could only serve
to destroy completely the spirit and undermine the sanity
of the prisoner. The Eighth Amendment forbids treat-
ment so foul, so inhuman and so violative of basic con-
cepts of decency. Trop v. Dulles, 356 U.S. 86, 100, 101,
78 S.Ct. 590, 597, 598, 2 L.Ed. 2d 596 (1958)."*
e:
While we recognize that our decision in this case’’
may result in some increase in the filing of similar com-
16 Conditions in many respects similar to those alleged here were
held to violate the Eighth Amendment in Jordan v. Fitzharris, 257
F.Supp. 674 (N.D.Cal.1966). Chief Judge Harris’ comments are
relevant here: “when * * * the responsible prison authorities in the
use of the strip cells have abandoned elemental concepts of decency
by permitting conditions to prevail of a shocking and debased nature,
then the courts must intervene—and intervene promptly—to restore
the primal rules of a civilized community in accord with the man-
date of the Constitution of the United States.” Id. at 680.
** What we have said makes it plain that the dismissal of the
complaint must be reversed and the case remanded for a hearing.
We do not deem it necessary to adjudicate at this time whether
Wright was deprived unreasonably of access to the courts or of the
opportunity to exercise his religious beliefs. See Sewell v. Pegelow,
291 F.2d 196, 198 (4th Cir. 1961). The answers to these questions
depend on finding a proper accommodation between two factors—on
the one hand, the wide discretion which must be afforded prison
officials in coping with the disciplinary problems they inevitably face,
and on the other hand, the increasing judicial recognition that pris-
oners are not wholly bereft of constitutional rights. See United
States ex rel. Yaris v. Shaugnessy, 112 F.Supp. 143, 144 (S.D.N.Y.
1953) ; Note, Constitutional Rights of Prisoners: The Developing
Law, 110 U.Pa.L.Rev. 985, 986, 987 (1962). On the mere complaint
and answer before us we cannot say whether the deprivations (other
than the cruel and unusual punishment claim) to which Wright was
subjected were, if true, arbitrary punishments, see Howard v. Smyth,
supra, or the result of a proper application of prison discipline.
or example, we can conceive of circumstances that would justify
a refusal to permit a particular prisoner to attend a religious service.
(footnote continued on following page)
cm
82a
Appendiz C.
plaints in the district courts, we cannot flinch from our
clear responsibility to protect rights secured by the Fed-
eral Constitution. United States ex rel. Marcial v. Fay,
247 F.2d 662, 669 (2d Cir. 1957), cert. denied, 355 U.S. 915,
78 S.Ct. 342, 2 L.Ed.2d 274 (1958); Hardwick v. Hurley,
289 F.2d 529 (7th Cir. 1961); Sewell v. Pegelow, 291 F.2d
196, 198 (4th Cir. 1961).*
The dismissal of the complaint is reversed and the case
remanded to the District Court for further proceedings
not inconsistent with this opinion.
Lumsarp, Chief Judge (concurring) :
I must concur, albeit reluctantly, in the action of the
court which requires that the district court hear the
charges made in Wright’s complaint. The failure of New
York to provide a forum whereby the state will listen to
(footnote continued from preceding page)
See United States ex rel. Cleggett v. Pate, 229 F.Supp. 818, 819-821
(N.D.II1.1964). It may be more difficult to justify depriving a pris-
oner of a Bible, prayer book and access to the prison chaplain.
We also note that the withholding of all legal materials from
Wright for the first few days of confinement in the “strip cell” may
be reasonable, Hatfield vy. Bailleaux, 290 F.2d 632, 637-638 (9th
Cir.), cert. denied, 368 U.S. 862, 82 S.Ct. 105, 7 L.Ed.2d 59 (1961),
but withholding for 36 days materials such as the trial record that
might be essential for the prosecution of a pending appeal seems
dubious. These matters, however, are for the District Judge to deter-
mine after a hearing.
18 In order that our holding not be misunderstood or distorted,
we hasten to add that we have concerned ourselves only with the
facts presented on this appeal; and we do not even suggest that all
disputes over prison discipline rise to Eighth Amendment propor-
tions. Certainly, we do not intend to interfere with appropriate state
prison discipline nor to suggest that district judges should become
referees in prisoner-guard disputes of every nature or description
Cullum v. California Department of Corrections, 267 F.Supp. 524
SS a Childs v. Pegelow, 321 F.2d 487 (4th Cir. 1963),
cert. denied, 376 U.S. 932, 84 S.Ct. 702, 11 L.Ed.2d 652 (1964);
Landman v. Peyton, 370 F.2d 135, 141 (4th Cir. 1966).
83a
Appendix C.
complaints of those whom it imprisons leaves us no choice
but to open the doors of the federal courts to such prison-
ers who make claims of cruel and oppressive treatment
which, if true, would establish violation of constitutional
rights. The reasons why the federal courts must act in
an area which is so peculiarly the concern of the states,
and for which provisions should be made by them, are
well set forth in the Task Force Report on Corrections
issued in May 1967 by the President’s Commission on
Law Enforcement and Administration of Justice. At page
13, the Report states, in regard to safeguards for protec-
tion of prisoners against “brutal treatment”:
“* * * A fortiori offenders should have recourse
against corrupt or brutal treatment and against the
deprivation of minimal rights to worship and the like.
“Legal requisites in this area remain almost en-
tirely undefined. Certainly one approach to a sensible
reconciliation of interests is through the develop-
ment of adequate administrative procedures within
correctional systems themselves. Hearings involving
the offender, review of decisions by persons removed
from the immediate situation, explicit policy guide-
lines and standards, and adequate records to support
decisions are examples of lines that should be followed.
The adequacy of recourse for grievances against offi-
cials should be subject to the oversight of some exter-
nal authority.
“‘The continued neglect of this task by corrections
may, as it has in the case of police procedures, make
it difficult for courts to do anything but write their
own rules. The necessity of procedural safeguards
should not be viewed as antithetical to the treatment
concerns of corrections. The existence of procedures
both fair in fact and perceived to be fair by offenders
is surely consonant with the ‘colloborative regime’
84a
Appendiz C.
emphasized as desirable by modern corrections, in
which staff and offenders are not cast as opponents
but are united in a common effort aimed at rehabili-
tation. In a prison no less than in society as a whole,
respect for and cooperation with authority requires
the guaranty of fairness.’’
It is clear that there is no administrative or judicial
body with an unmistakable mandate to entertain an appli-
cation by Wright for an order that would prevent recur-
rence of the treatment of which he complains. That the
New York Court of Claims with leave of a judge of a su-
preme court may award damages is not enough. Thus,
while all would agree that it is far better that the states
should formulate, supervise and enforce their own rules
for the treatment of recalcitrant prisoners, we are faced
with asking a district court to write some of the rules.
We are not called upon this time to decide whether
Wright would be heard upon his constitutional claims in
federal court without first applying for statutory relief
in a state court if the New York legislature had given to
inmates of its prisons the right to apply for injunctive
relief against improper treatment. I would hold that if
a state made provision for such relief in its courts the
federal courts should abstain for a reasonable period to
allow the state courts to hear the complaint and take
appropriate action. I do not agree that recent decisions
‘of the Supreme Court mandate or were intended to man-
date action by federal courts in all cases involving the
treatment of prisoners in state institutions, without a suit-
able period of abstention where state courts are empow-
ered to hear the case and where there is reason to believe
that the state would grant relief if the complaint were
well founded. The disciplining of state prisoners is s0
peculiarly a matter in the discretion of the state, and
85a
Appendix C.
the possibilities that prisoners will file groundless and
numerous complaints in the federal courts are so obvious,
that these cases raise ‘‘special circumstances”’ that make
it appropriate to treat them as an exception to the caveat
or policy against abstention by federal courts. As it is
not certain that New York will entertain a request to en-
join improper correctional treatment and it only affords
money damages after the fact, the federal courts have a
duty to listen and to act if it be shown that constitutional
rights are-being disregarded.
In fairness to New York we must make it clear that
we do not, by our action, credit Wright’s charges; we do
no more than say that he must be given an opportunity
to prove them. The flood of petitions filed by state pris-
oners is a constant reminder that the great majority of
prisoners are prone to make whatever charge they have
reason to believe will get them a hearing, with little or
no regard for the truth of their allegations or what they
may hope to prove.
But courts are established to hear complaints and to
listen to all those which may have substance, however
small may be the proportion of those which have ‘merit.
There is no doubt that Wright was placed in solitary con-
finement: the only question is whether the condition of
that confinement went beyond those limits which are con-
stitutionally permissible. [I agree with Judge Kaufman’s
conclusion that if the allegations in the complaint are
proved, Wright has been subjected to cruel and unusual
punishment proscribed by the Eighth Amendment. The
Attorney General has advised us that whatever may be
the truth as to the condition of solitary confinement in
a strip cell in 1965 and 1966, such conditions do not now
exist. However, under the circumstances of this case
Wright is entitled to a hearing in the district court.
86a
APPENDIX D
Memorandum-Decision and Order of Brennan, D.J.,
dated August 31, 1966, Dismissing Appellee
Wright’s Complaint.*
UNITED STATES DISTRICT COURT,
NortHern District or New York.
’.
v
LAWRENCE WILLIAM WRIGHT,
Plaintiff,
versus
DANIEL McMann, as Warden of Clinton State Prison,
Defendant.
Civ. No. 66-CV-77
Appearances:
Lawrence Wituiam Wricut, Petitioner Pro Se.
HonoraBte Louis J. Lerxowitz, Attorney General, State of
New York, Attorney for Defendant, Albany, New York.
Wim D. Brestnuan, Esq., Assistant Atty. General, Of
Counsel.
Motion To Dismiss CompLaInt
Submitted July 29, 1966 Decided August 31, 1966
MemoranpuM DEcIsION AND ORDER
Brennan, District Judge
Defendant moves to dismiss the complaint for failure
to state a claim upon which relief may be granted. The
* This decision is reported at 257 F. Supp. 739.
87a
Appendia D.
ultimate question here requires the determination of the
legal sufficiency of the use of the Civil Rights Act as the
basis of the court’s jurisdiction in an action at law by a
state court prisoner, based upon alleged mistreatment in
the execution of punishment for breaches of rules designed
to maintain prison discipline.
This is one of the continuous flood of applications by
state prisoners which seek some form of relief, from the
federal courts, apparently occasioned by the expanded
concept of an individual’s constitutional rights as de-
lineated in recent authoritative decisions. That the vast
majority of such applications are without merit does not
relieve the court from the burden imposed. Rather it
creates a situation which threatens to engulf especially
small two-judge district courts within whose territorial
jurisdiction a large number of state prisoners are con-
fined. Hither more rigid guide lines must be furnished
to such courts or the practice of a denial without memo or
explanation will follow if judicial business is to be per-
formed within a reasonably expedient time period. It is
sufficient to refer to the five page opinion of Judge Hall
in Roberts v. Barbosa, 227 F. Supp. 20, as an example of
the type of action which prompts the above statements.
In that litigation, the state-confined plaintiff, in a fifty
page complaint, sought a judgment of over $2,500,000
against forty-four defendants, including jailers, judges and
jurors, basing his right of recovery upon alleged encroach-
ments upon his civil rights.
It is noted that plaintiffs in this district, similarly
situated, are no longer content with a declaration of their
rights but additionally seek large money judgments ap-
parently invoking a jury trial with its attendant expense
and delay. This strategy may well be designed to avoid
the requirement that the state administrative remedies
must be exhausted as held in U. S. ex rel. Wakeley y.
88a
Appendiz D.
Commonwealth of Penn., 247 F. Supp. 7 even though the
literal reading of Supreme Court decisions might other-
wise indicate. Under such conditions, the appointment of
counsel, the procurement of witnesses and the disruption
of prison routine pose practical problems where, as hero,
such a trial must be held at a place two hundred or more
miles from plaintiff’s place of confinement. The attractive-
ness of suing one’s jailer at the expense of the Government
is apparent even if the chance of recovery is small.
In justice to the plaintiff, it should be stated that his
complaint, although rather lengthy, may be said generally
to be well and neatly prepared and his supporting briefs
or memos indicate an understanding of the legal problems
presented, together with more than the ordinary legal
research to be expected from a layman. This results
without doubt from plaintiff’s intelligence and experience
together with the acknowledged aid of the “Legal Aid
Clinie” of Cornell University. Correspondence with the
plaintiff also shows a definite waiver of counsel in the
matter of this motion similar to plaintiff’s like waiver in
the Appellate Division in his appeal cited below. The
pertinent background of facts is set out below.
Plaintiff is presently confined at Clinton State Prison,
a maximum security penal institution located at Danne-
mora, New York under a sentence of from one day to life,
imposed upon his conviction by a jury verdict of three
counts of sodomy, two counts of assault and carnal abuse
of a child. An eleven year old boy was apparently the
complainant. Peo. v. Wright, 16 N. Y. 2d 736. The judg-
ment was affirmed October 29, 1964 with a short memo.
Peo. v. Wright, 22 A. D. 2d 754 and by the Court of Appeals
on July 9, 1965. Peo. v. Wright, supra. The Supreme
Court denied certiorari June 6, 1966. Wright v. New York,
384 U. S. 972.
The present lengthy complaint is summarized as fol-
lows. Jurisdiction is based solely upon the provisions of
89a
Appendiz D.
28 U.S.C. 1343, 42 U.S.C. 1981, 1983 and 1985. Two
separate incidents furnish the background for plaintiff's
claim for relief. On February 18, 1965, plaintiff was
confined in “solitary confinement” upon the direction of
the Deputy Warden because of a violation of a prison
regulation. In the course of carrying out the order, two
named officers of the institution assaulted plaintiff by
“slapping, striking and kicking him”. Profane language
was used by the officers who threatened him with violence
and he was placed in a barren, dirty and unsanitary deten-
tion cell without
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