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

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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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