Appendix — Preiser v. Rodriguez

Supreme Court brief1973

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INDEX

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—JJ441.i 8 1a

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as eee Lives buat abaease 15a

ͤU—— / /// ip cis / œU⁵%—˙⁵—˙. 82a

ision of Court of Appeals Panel Reversing Dis-

JJ sesbsuiseianewndcareys 102a

“Memorandum-Decision and Order of October 28, 1969 103a

"District Court Opinion and Order (June 12, 1970) .. 104

“Order to In Banc (July 19,1971) . 1128

In Bone Opinion and Order (January 25, 1972) ..... IIa

Eugene Rodriguez

Docket Entries.

(Usrrep Sratzs Dusrmor Count, Norruerx Disraict oF

New York, 69 Cryn. 348)

Docket Entries.

PROCEEDINGS -

Sept. 29—Filed Complaint and/or Petition for Writ of

Habeas Corpus and Motion.

Oct. 6—Motion for Bail. One week for answering Affi-

davit. Decision reserved.

Oct. 9—Filed Affidavit in opposition to motion for bail.

Oct. 18—Filed Affidavit of personal service of Affidavit

on Eugene Rodriguez on October 10, 1969.

Oct. 16—Filed Summons served October 2, 1969 on Joseph

David, Deputy Comm. of Correction for Paul D.

McGinnis, Comm. of Corr.; served October 2,

1969 on Victor Zuckerman, Atty. Board of Pa-

role, for Russell G. Oswald, Chairman of the

Board of Parole; served Sept. 30, 1969 on Frank

Ryan, Head Clerk, for J. Edwin LaVallee, War-

den; served October 14, 1969 on Francis A. Ryan,

Head Clerk for J. Edwin LaVallee, Chairman of

the Board Prison; served October 2, 1969 on

Victor Zuckerman, Atty. New York State Board

of Parole; served October 2, 1969 on Joseph

David, Deputy Commissioner of Correction, New

York State Dept. of Correction.

Oct. 16—Filed Answer of Defendants.

Oct. 16—Filed Affidavit of Service personally of Answer

of Defendants.

Oct. 27—Writ of Habeas Corpus Ad Testificandum.

returnable October 31, 1969 at 10 A.M. at Albany,

New York.

ot tert

_ Bugene Rodrigues Docket Entries.

Oct. 27—Writ Issued and delivered to U. S. Marshal for

service.

Oct. 27—Filed Memorandum-Decision and Order—Fo-

ley, D. J. for an evidentiary hearing to be held

October 21, 1969 at Albany, N. Y. at 10 A.M.

Attorney Richard A. Kohn is duly assigned as

Attorney for plaintiff. The motion for bail is

denied. It is So Ordered—James T. Foley,

US.D.J. :

Oct. 30—Filed Writ of Habeas Corpus ad Testificandum

served October 28, 1969 on J. Edwin LavVallee,

Warden and Chairman of the Prison Board of

Clinton State Prison.

Oct. 31—Return of Writ of Habeas Corpus. (Pre-Trial

Conference 3 hrs.) Trial. Petitioner satisfied

with attorney assigned him and sufficient time to

discuss same. Writ continued until Monday

morning at 11:00 A.M. in Albany. Nov. 3 Trial

continued. Defendant moves for dismissal of

“petition on grounds stated. Motion denied on

jurisdictional grounds and reserve decision on

motion to dismiss on failure of proof. Briefs to

de filed with Judge Foley by Next Monday, No-

vember 10, 1969.

rette on behalf of Defend-

ants-Respondents.

Nov. 14—Filed Memorandum on Behalf of Plaintiff-Peti-

tioner.

Nov. 25—Filed Minutes of Hearing held October 31, 1969

before Hon. James T. Foley.

Eugene Rodrigues Docket Entries.

Date

Dec. 28—Filed Defendant’s Exhibit D—Inmates Rule

Book, State of New York Revised 9/1/68.

Dec. 28—Filed Defendant’s Exhibit E—State of N. Y.

Dept. of Correction Employees Rule Book.

Dec. 28—Filed Photostatic copies of Plaintiff’s Exhibits.

Dec, 28—Filed Memorandum-Decision and Order—Foley,

D. J. that the disallowance of 120 days and can-

cellation of 120 days good behavior credit time is

void and unlawful as violative of the provisions

of the Fourteenth Amendment of the United

States Constitution. The Commissioner of Cor-

rection of the State of New York is hereby di-

rected to restore the remaining period of good

time credit to the plaintiff. Such allowance will

entitle the plaintiff to release forthwith, etc. If

such release is not accomplished within a rea-

sonable time, the attorney for the plaintiff shall

submit a writ of habeas corpus to effect such

release. Judgment shall enter in favor of the

plaintiff granting the relief specifically outlined

herein and this decision is the judgment. Ir Is

So On D James T. Foley, U.S. D. J.

Dec. 24—Mailed notice re Judgment to: Richard A. Kohn,

Esq., 100 State St., Albany, N. T. 12201 and Hon.

Louis J. Lefkowitz, Atty. General, The Capitol,

Albany, N. T. 12224 Att: Mr. Timothy F.

O’Brien, Asst. Atty. General.

Jan, 6—Filed Notice of Appeal.

Jan. 1Burivanded Certified Record on Appeal consist.

ing of original papers to Clerk, USCA.

Jan. 147 Piled Recsipt—Clerk, U. S0. A. 2nd Circuit for

„

of Record on Appeal.

Jan. 30—Filed Exhibit A- Diseiplinary Report from Sing

Sing Prison 10/0/68.

Jan. 50— Filed Defendant’s Exhibit B—Disciplinary Re-

port from Sing Sing Prison —10/31/68.

Jan. 30 Filed Defendant’s Exhibit C—Letters of 11/1/68

from Deegan to Comm. McGinnis. |

Jan. 30—Filed ‘Defendant’s Exhibit F—Official compila-

tion of mnie of Dept. of Correction.

1 Ci e e Were Bees Conc,

Ferse Docxxr No. 34567)

1 870 Received record (original papers of District

Court)

2. 270 1 reg record (original papers

; 216.70 Filed Wound wud 3 record (original

papers of District Court)

9.1770 Filed order removing original Wed (appel -

lants)

Eugene Rodriguez Docket Entries.

- FILINGS—PROCEEDINGS

Filed 4 copies brief, appellants with proof of

service : 5

Filed order extending time to file notice re de-

ferred appendix to 3-30-70

Filed notice re deferred appendix

Filed motion for appointment on appeal

Filed affidavit of service by mail

Filed order granting motion of Richard A. Kohn

to be appointed as counsel for appellee

Filed brief, appellants with proof of service

Filed motion for calendar preference and early

argument date, etc. with proof of service

Filed order granting motion for preference and

for leave to file appendix; appellee shall file its

brief by 6-26-70 together with a motion to dis-

miss appeal; appellant’s reply brief by 7-10-70;

argument shall be heard 7-16-70

Filed appendix, appellants

Filed brief, appellee, with proof of service

(mailed 6-26-70)

Filed motion to dismiss with proof of service

(mailed 6-26-70)

Filed motion to file instanter brief of amici

curiae (N.A.A.C.P.)

Filed order granting motion to file brief amici

curiae (NAACP)

DATE _ ‘FILINGS—PROCREDINGS

7- 9.70 SR es fet: deals, NAA OF. with

proof of service

7-10-70 Filed affidavit in opposition to motion to dismiss

with proof of service

7-10-70 Filed reply brief, appellant with proof of service

7-16-70 Argument heard (By: Waterman, Moore &

Hays, CJJ) .

3. 3-71 Filed order denying motion to dismiss

3-16-71 Judgment Reversed, Hays, CJ

3-16-71 Dissenting in separate opinion, Waterman, CJ

3-16-71. Filed judgment

3-30-71 Filed petition for rehearing and rehearing in

bane with proof of service.

7-19-71 Filed order denying petition for rehearing

7-19.71 Filed order granting reconsideration in banc,

ete. ; the in bane proceedings in the three cases

are consolidated; if petitioners desire to file

further briefs, they may do so by 8-16-71; if

respondents desire to file further briefs, they

may do so by 9-13-71 further oral argu-

dered (consolidated with 35300 and 35253)

10.12.71 Filed order re in banc judges of the court and

85 members of the respective panels who have

taken senior status, will hear oral argument

11471 at 2 P. M. Room 506; if counsel desire

to file additional briefs on these subjects these

should be served and filed by 11-1-71 (& in

35253, 35300)

1-25-72

1.25.72

1-25-72

1.25.72

12872

1.28.72

1-25-72

Eugene Rodrigues Docket Entries.

FILINGS—PROCEEDINGS

Filed brief, appellants (on rehearing) with proof

of service (& in 35253 and 35300)

Argument heard (by: Friendly, ChJ, Waterman,

Moore, Smith, Kaufman, Hays, Feinberg,

Mansfield, Mulligan, Oakes & Timbers, CJJ)

(& in 35253 and 35300)

Judgments Affirmed, Friendly, Ch. J., (& in

35253, 35300)

Friendly, ChJ with whom Mulligan, CJ joins

concurring in separate opinion (& in 35253,

35300)

Waterman, CJ concurring in separate opinion

(& in 35253, 35300)

Smith, CJ concurring in separate opinion (& in

35253, 35300)

Kaufman, CJ concurring in separate opinion

(& in 35253, 35300)

Feinberg, CJ concurring in separate opinion

(& in 35253, 35300)

Mansfield, CJ concurring in separate opinion

(& in 35253, 35300)

Oakes, CJ concurring in separate opinion (& in

35253, 35300)

Timbers, CJ concurs in opinions of Smith, Kauf.

man & Feinberg (& in 35253, 35300)

2-18-72

4-28-72

6-20-72

6-23-72

Lumbard, CJ dissenting with whom Moore and

Hays concur in separate opinion (& in 35253,

35300)

Filed judgment (& in 35258, 35300)

led Mandate Gale) opinion on rehear-

ing and order

Filed itemized and verified bill of costs

Filed statement of costs

Tesned statement of costs

Filed notice of filing of petition for writ of cer-

tiorari (& in 35253, 35300)

Original record returned to district court (& in

35353, 35300)

Filed certified copy of order of Supreme Court

granting petition for writ of certiorari (& in

35353, 35300)

Complaint and Petition.

Bugene Rodriguez, plaintiff-petitioner (hereinafter called

the plaintiff), appearing pro-se respectfully alleges;

1. This action arises under the constitution of the United

States, in particular Art. 1, Section 9 Cl. 2 and the Fifth,

Sixth, Eighth, and Fourteenth Amendments thereto and

under 28 U.S.C. #2241, 2254 and 42 U.S.C. #1983.

The jurisdiction of this court is invoked under 28 U. S. C.

#13831, 1343 (3), 2241, 2254 and 42 U.S.C. * 1983 and under

Art. 1, Sec. 9, Cl. 2 of the Constitution and the Fifth, Sixth,

Eighth and Fourteenth Amendments thereto.

7 2. The matter in controversy, exclusive of interest and

costs, exceeds the sum of Ten Thousand ($10,000) Dollars.

3. Relief is sought herein for petitioners release, pur-

suant to a writ of habeas corpus, from unlawful custody

in violation of plaintiff’s constitutional rights; for a de-

claratory judgment pursuant to 28 U.S.C. #2201 and 2202

and for a preliminary and permanent injunction pursuant

to 28 U.S.C. 4 1651 and 42 U.S.C. 1983. Also plaintiff re-

quests that nominal bail be set pending the final deter-

mination of the within habeas corpus for the reason that

the issue may become moot if not conclusively determined

through all the courts and the plaintiff will suffer irrepair-

able damage,

. Precedent is had on such application for reasonable bail

pending final disposition of these specific issues in Daniels

vs. La Vallee, 69 Civil 118, U. S. D. C. Northern District

of New York.

4. Plaintiff, a natural born citizen of the United States,

was convicted after trial of Attempted Grand Larceny on

February 14th, 1967 and sentenced to an indeterminate

term of 144 to 4 years on February 14th 1967 in the Bronx

Supreme Court of Bronx County. He has served approxi-

10a

Complaint and Petition.

mately 2 years 8 months in prison, without probation or

parole, and is presently incarcerated at Clinton State

Prison, Dannemora, New Tork.

5. The individual defendants in this proceeding are sued

A. Paul D. McGinnis New York State Commissioner

of Correction, whose principal office is located in Albany,

New York, is charged with the duty of directing and super-

vising the activities of the defendant, Department of Cor-

rection, which administers the prisons and other correc-

tional institutions and programs of New York State, pur-

suant to the New York Correction Law (herein after Corr.

L. #5, GA, 112, et seq. The Commissioner of Correc-

tions is empowered to appoint the wardens of the various

state prisons, including Clinton State Prison who serve

under his direction, Corr. L. #234, 808 authorize the Com-

missioner of Corrections to formulate rules governing the

allowance or disallowance of reductions in prison terms

“for good conduct and for efficient and willing perform-

ance of duties assigned to . . . [prisoners] in prison or

penitentiary {hereinafter referred to as „good behavior

time eredit“ J.

B. J. Edwin La Vallee, Warden of Clinton State Prison,

is the person having direet and immediate custody of the

plaintiff. Pursuant to Corr. L. 235, 803, the defendant

La Vallee is charged with the duty of acting as Chairman

of the Prison Board’’ for Clinton State Prison, which

determines allowance or disallowance of good behavior

time credit.

C. Russell G. Oswald! whose principal office is located

in Albany, New York is Chairman of the defendant New

York State Board of Parole, which is empowered to de-

Sane e e for release on Pa-

lla

Complaint and Petition.

role; pursuant to Corr. L. #210, et seq., and to supervise

prisoners who have been released on parole or under the

“Statutory’’ or conditional release programs established

by Corr. L. #220, 234, 803; Penal Law #70,30, 70.40 and

described in greater detail in pargaraphs 6 & 7, infra.

6. Prior to September 1st, 1967, prisoners serving inde-

terminate sentences in New York State Prisons were eli-

gible to participate in the ‘‘statutory release program

pursuant to Corr. Law #230, which provided that a

prisoner serving an indeterminate sentence may earn up

to five (5) days per month but no more than two months

per year good behavior time’’ credit towards the re-

duction of his maximum time, thereby qualifying the

prisoner for mandatory release from prison under super-

vision of the Board of Parole after serving five-sixths of

the maximum term.

7. In 1967, the New York Legislature enacted Corr. L.

#803 and Penal L. #70.40 (B) establishing the ‘‘con-

ditional release’’ program, under which a prisoner serv-

ing an indeterminate term could earn up to 10 days per-

month good behavior time credit towards the reduction

of his maximum term, thereby qualifying him for manda-

tory release from prison under the supervision of the

Board of Parole after serving two-thirds of his maximum

sentence, provided such prisoner elected to participate in

the conditional release program and waived his rights

under the statutory release program above described.

8. Plaintiff did in fact so elect to participate in the

conditional release program and waived his rights under

the statutory release program, above described.

9. By virtue of the foregoing, plaintiff is therefore

fally qualified for and entitled to ‘‘conditional release

on October 10th, 1969.

12a

eee pies e defendants La Valle and Mc Ginnis, in viola.

have arbitrarily and Tee extended — —

B. ee een

good behavior time to which plaintiff is entitled under the

previously mentioned New York Statutes were cancelled

and revoked completely without Due Process of Law.

This specific issue is presently before the Courts for de-

termination. See Greenfield vs. Seafati (D. C. Moss), 277

F. Supp. 644; Aff’d per curiam, 390 U. S. 713; U. S. ex rel.

Cambell vs. Pate, 7th Cir., 401 F. 2nd 55.

11. The defendants La Valle and Mc Ginnis threaten

was illegally l by the defendants La Valle and Me

Ginnis.

A e e ot

a fair hearing at which plaintiff would have the assistance

of counsel and the opportunity to confront witnesses, pre-

sent evidence on his own behalf; and a specification of the

grounds and underlying facts upon which the defendant’s

determination was based.

B. e hen u bois in fact

nan . .

Ge: ‘On ‘information and belief, i den 9

deny, cancel and disallow good time behavior credit was

18a

Complaint and Petition.

arbitrary and capricious and an abuse of discretion, and

‘was part of a specific program of harassment, persecution,

oppression directed at the plaintiff because of the plain-

tiffs former position. Plaintiff was formerly an attorney,

State Assemblyman, and elected State Senator.

D. The harassment and persecution is clear when

plaintiff has been told at least 10 times by 4 prison officials

that the 4 months and 14 days less 10 days box time

will be immediately restored to him if plaintiff will testify

a8 to information concerning Sing Sing Prison. Said in-

formation being unknown to the plaintiff. Also plaintiff

has been told that he will be forced to lose every day of

fature good time for the same reason. Plaintiff has stated

that he had nothing to say and that he doesn’t know about

what they the defendants are asking and the threat to take

all his future good time and make him do day for day on

the maximum is abritrary and capricious, and an abuse of

discretion. It is also a program of harassment persecu-

tion and oppression directed specifically at the plaintiff.

12. All available and adequate State remedies have been

exhausted.

13. No prior application has been made for the relief

requested herein.

* Wherefore, plaintiff prays for the following relief:

1. That a judgment issue declaring that determination

of the defendants La Valle and Mc Ginnis and their agents

denying, cancelling and disallowing 4 months and 14 days

good behavior time credit towards plaintiffs conditional

release was void, illegal and in violation of the Fifth,

Sith and Fourteenth Amendments of the United States

Constitution for the reasons specified and set forth in

2. Restraining the defendants La Valle and Mc Ginnis

— from. denying, cancelling. or ‘disallowing

good behavior time credit towards conditional release with-

out adhering to procedural due process...

8. Issuing a writ of habeas corpus ing in de

fendant Mo Ginnis to order plaintiffs conditional release

from imprisonment.on. October 10¢h 1908.

4 T0 bet bail as of October 10th 1969 on the plaintiff

in a nominal amount pending the final determination of

all the issues to avoid the issue becoming moot to plaintiff

and order to avoid irreparable injury.

5. Granting auch other and further relief as to this

court may seem just and proper.

/8/ Eveuns Rovgicvurz

ae Rodriguez

era

n, New Tonk 12929

(Verified, September 25, 1969)

Answer.

Defendants, by their attorney, Louis J. Lefkowitz, Attor-

ney General of the State of New York, for an answer to

the complaint of the plaintiff herein, allege as follows:

Fmer Derense

The complaint fails to state a claim sufficient to establish

the jurisdiction of this Court oyer the subject matter.

Szconp Derense

The complaint fails to state a claim against the defend-

ants upon which relief can be granted.

Tamp Derense

That any denial, cancellation or disallowance of good be-

havior time credit to the plaintiff by the defendants in con-

nection with plaintiff’s sentence in the Bronx Supreme

Court of Bronx County on February 14, 1967 was not in

violation of plaintiff’s constitutional rights under the Fifth,

Sixth and Fourteenth Amendments of the United States

Constitution nor was the same in violation of the plaintiff's

rights under the New York State Constitution nor in viola-

tion of any Federal or State statutes governing plaintiff’s

incarceration in any prison of the State of New York pur-

suant to said sentence.

Wauenerore, defendants respectfully pray that the com-

plaint herein be dismissed.

Lous J. Lzerxowrrz,

Attorney General of the

State of New York.

(Verified by J. E. LaVallee, October 14, 1969.)

16a

Memorandum-Decision and Order of

amen eh e

Woti Mise Fed 50 b

Hox. Lous J. Lzrxowrrz, Attorney General, State of New

York, Attorney for Defendants-Respondents.

Tntornr F. O BAN, Asst, Attorney General of Counsel.

James T. Forzy, D. J.

Mzmonanpum-Deormsi0n anp Onper

This plaintiff-petitioner—and it is very rare—filed a

civil rights complaint apparently with payment of the

statutory fee on September 29, 1969. Thereafter a mo-

tion for bail was filed that I made returnable on October

6, 1969, a regular motion day of this Court held in Albany.

In opposition to the motion for bail there has been filed

an affidavit of Assistant Attorney General O’Brien.

Therein it is stated the complaint was served upon a

Deputy Commissioner of Correction on October 2, 1969,

and I assume an answer to the claims of the complaint

has been or will be filed shortly to put the claims in issue.

It seems from the opposing affidavit to the motion for

bail the position taken for the respondents is that a hear-

ing is necessary for decision. It is stated: ‘“‘* and a

hearing as to any issues raised by said complaint and

answer will conclusively show that the plaintiff-petitioner

has not been deprived of any of his civil rights under the

United States Constitution, the New York State Con-

pipes ee State statutes relative to his

arceral i any prison of the State of New Tork.“

ie eee has been pressing for immediate hear-

ing, contending to be entitled to release, a hearing is

17a

Memorandum Deoision and Order of

Oetober 24, 1969.

e ce

, to represent the plaintiff-petitioner, and

duly assigned as his attorney.

cod probably power in this Distriet Court i in situa-

It is So Ordered.

‘Dated: October 24, 1969, Albany, N. Y.

James C. Forzy,

United States District Judge.

— fngety of tae Primer in fo

lowing a pattern of a that brought suocessful

results. & similar combined d I had direct

contact, with the case,—was filed in this Court in Daniel,

and U. S. ex rel. Daniel v. et al., in 69-CV-118,

and was lawyer-prepared by the firm of Rabionwitz, Boudin

& Standard, Attorneys in New York City. This same firm

recently obtained a preliminary injunction from District

Judge Motley, of the Southern District of New York, in

Sostre v. Rockefeller et al., 68 Civ. 4058, by decision dated

September 4, 1969, for an inmate of Green Haven Prison

New York, involving a claim based upon 28 U.S.C. 4 1343(3)

and 42 U.S. C. 41983, statutes upon which jurisdiction for

this action is based. Judge Motley stated flatly the Court

had jurisdiction. Applying the legal principles to be fol-

lowed in preliminary injunction applications, she ruled that

keeping the plaintiff Sostre in segregation for more than

a year on account of disciplinary charges may be totally

disproportionate to the offenses charged and thus violative

of the Eighth Amendment. It was stated that the plain-

tiff had demonstrated clear probability of success upon a

final determination of the merits. The injunction restrained

the Warden from holding the plaintiff in punitive segre-

gation and from depriving him of the rights and privileges

of the general prison population until final determination

with and Sostre was released from segregation. Reference

is made to this action and the preliminary ruling to indi-

198

District Court Opinion and Order

(December 23, 1969).

eate again that no matter the reluctance of the past, it is

now settled beyond question that claims of this kind alleg-

ing federal constitutional deprivation by State prisoners,

if not frivolous on their face, are within the jurisdiction

of the federal courts under the Civil Rights Act and must

be entertained and determined.

This fact should be recognized and accepted, be-

cause there és an increasing volunie of judicial writing and

comment to this effect. It is clear, as so well stated, that

we have come a long way from some earlier attitudes to-

ward rights of prisoners. (Jackson v. Godwin, 5 Cir., 400

F.2d 529.) Our own Cireuit in Wright v. McMann, 2 Cir.,

387 F. 2d 519, at page 522, the noted case that involved a

New York prisoner confined in segregation at Clinton

Prison, remarked that the older cases retain little vitality ;

that there is no longer any question a state prisoner may

bring an action under the Civil Rights Act, citing among

other cases, Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733,

12 L.Ed.2d 1030; and that the harshest blow to the old

“hands-off” doctrine was struck by Monroe v. Pape, 365

US. 167, 81 S.Ct. 473, 5 L. Ed. 2d 492. It is settled too that

the due process and equal protection processes of the Four-

teenth Amendment follow prisoners into prison. Washing-

ton v. Lee (D.C.N.D.Ala.), 263 F. Supp. 327, 331; aff’d per

curiam, 390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212). The

Givil Rights statutes, when relied upon for federal juris-

ion, do not require the exhaustion of state judicial reme-

dies. (Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20

L.Ed.2d 1319; D’Amico v. California, 389 U.S. 416, 88 S.Ct.

526, 19 L.Ed. 647; McNeese v. Board of Education, 373

TS. 668, 83 S.Ct. 1433, 10 L. Ed. 2d 622; Monroe v. Pape,

supra; Wright v. McMann, supra, 387 F.2d at p. 524).

Specifically, in this instance, although the Assistant At-

torney General tries to convert the complaint into solely a

be corpus petition that alone, of course, would entail

the usual requirement for exhaustion of state remedies,

20a

District Court Opinion and Order

{December 23, 1969).

to my mind the habeas corpus petition in the combination

here is merely a proper adjunct to insure full relief if the

plaintiff prevails in the dominant civil rights claim. (See

Bell v. Hood, 327 U.S. 678, 684, 66 S.Ct. 773, 90 L.Ed. 939;

Jones v. Peyton (E. D. Va.), 294 F Supp. 173; United States

ex rel. Stuart v. Yeager (D. C. New Jersey), 293 F. Supp.

1079; 28 US.C. $1651). Cases directly in point that sus-

tain in my judgment jurisdiction under the particular,

narrow claim and issues raised thereby by this plaintiff-

petitioner are: United States ex rel. Campbell v. Pate,

7 Cir., 401 F.2d 55, 57; Landman v. Peyton, 4 Cir. 370

Fad 135; Sewell v. Pegelow, 4 Cir., 291 F.2d 196).

These federal authorities are set forth not as com-

prehensive review of all the law on the subject. Such fed-

eral writings are referred to merely to give several exam-

ples that there is full recognition by the federal courts that

the primary authority and responsibility for prison admin-

istration and discipline remains, and should remain, with

the State administrative personnel, and that the federal

courts are never inclined to reach out to intrude unless,—

and this is an important unless“ that New York should

recognize,— is sufficient showing procedures and reg-

ulations exist that impair the constitutional rights of pris-

oners. (Jordan v. Fitzharris (N. D. California), 257

F.Supp. 674, 680; Baxstrom v. Herold, 383 U.S. 107, 86

S.Ct. 760, 15 L.Bd.24 620; United States ex rel. Schuster

v. Herold, 2 Cir., 410 F.2d 1071; cert. den. 396 U.S. 847,

S. Ot. 81, 24 L.Ed.2d 96.) This position is no more than

simple, Common anse dne that is in aeord with dhe

n desire for fairness within its prison systems and

such philosophy has been heralded in this day from a

variety of sources. The new Chief Justice of the United

States, Justiee Burger, in an address to the American Bar

Association, called for a comprehensive and profound ex-

amination into our penal system from beginning to end, and

2¹a

District Court Opinion and Order

‘ ‘(December 23, 1969).

among the details he thought should be examined are the

Standards and programs for release. (American Bar As-

sociation News, Vol. 14, p. 5). Chief Judge Lumbard in

his concurring opinion in Wright, supra, 387 F. ad at page

527, referred to—and I think recommended in effect to

New York—consideration of the hearing procedures and

safeguards set forth in the Task Force Report on Correc-

tions, issued in May 1967 by the President's Commission

on Law Enforcement and Administration of Justice. (See

also State Prisons and the Free Comunity, Judge Jiudice,

New York State Bar Journal, December 1969, p. 672.)

The President of the United States a short time ago

ealled for consideration of a ten-year program with enor-

mous appropriations to undertake search for improve-

ments in the federal penal system that may become models

for state corrections and prison administrators. Undeni-

_ ably, change is in the air and the handwriting on the wall

is big and black for all to see. States are making important

changes in regard to promulgation of effective, fair pro-

cedures where withholding, forfeiture and restoration of

good time is involved. (Burns v. Swenson (D.C.W.D.Mis-

souri), 288 F.Supp. 4.) To its eredit, it was developed at

the hearing in this action that effective March 1, 1969, the

New York State Department of Correction issued Re-

vised Procedures Covering Disciplinary Matters. Plain-

tiff's Ex. 8.) Such enlightened approach is heartwarming

to this District Court where increasing numbers of civil

rights claims of the kind here are being filed by State pris-

oners.

I am a firm believer that the blemishes and mistakes in

the procedures of the past are best corrected from within

dy adoption of fair and enlightened regulation and instruc-

tions bound to withstand attack in any court, and ulti-

mately lead to the reduction of such alleged grievances.

The Governor, the Correction Commissioner and the legal

22a,

(December 23, 1969).

advisors for the Commissioner of Correction and the War-

dens are the ones to lead the way. The best legal advice

is that which anticipates difficulty and counsels the cor-

rective measures that will reduce the challenge. A good

example is the statement in Wright, 387 F.2d at p. 528 by

Judge Lumbard: The Attorney General has advised us

that whatever may be the truth as to the condition of soli-

tary confinement in a strip cell in 1965 and 1966, such con-

ditions. do not now exist.“ Of course, the Wardens, it

seems, must have autonomy and wide authority for on-the-

spot decisions but no one would contend that Wardens or

their deputies should be permitted to become a law unto

themselves. I am aware there is at times a guarded, almost

hostile, attitude toward federal court intrusion into certain

aspects. of State Prison affairs. That state of mind is

unfortunate and the best way, I think, to dispel it is to

advise the lay correction officers, whom I have found to be

men of integrity and dedication, that new thinking in the

In this action, there is again set forth as an affirm-

ative Second Defense: The complaint fails to state a

claim. sufficient to establish the jurisdiction of this Court

over the subject-matter.’? As I have tried to indicate, in

my judgment, the defense is untenable and contrary to

established law. Further, it is contended that the claim

here regarding conditional release is in the same category

as a parole problem. However, as so ably pointed out by

‘the. appointed attorney for the plaintiff-petitioner, there

are solid and clear differences. Conditional release by ex-

press New York law is based upon computation of good

behavior time and in my judgment is mandatory grant by

C tt the priscanr 90 ves. (See Penal

Kinney’s Consol. Laws, e. 40, 70.3064) (a);

* | R The assertions for the Re-

23a

‘District Court Opinion and Order

‘(December 23; 1969).

time ‘credit may be granted or withheld at the pleasure of

“the Warden and the Prison Commutation Board is an-

swered by rulings in the New York Courts that such dis-

exstionary reductions cannot be arbitrarily withheld. (Peo-

ple ex rel. Stark v. Deegan (1968), 56 Misc.2d 567, 289

N. T. S. 2d 285; People ex. rel. Roy v. Murphy, 36 Mise.2d

501, 233 N.Y. 8.2d 282.) New Tork Courts have entertained

these challengers, and it may be that the doctrine of tempo-

rary abstention should be applied to veer these challenges

‘into the State Courts where I think they belong. However,

and it is a bleak outlook for this 2-Judge District Court,

‘the trend seems to the contrary. (Wright v. McMann, supra,

387 F.2d pgs. 524-525; McNeese v. Bd. of Education, 373

U.S. 668, 673-674, 83 S.Ct. 1433, 10 L. Ed. 2d 622; Zwickler

v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed. 2d 444.)

Judge Friendly in a very recent writing reviewed the great

expanse in the application of civil rights remedies to

myriad human problems unthought of in other days (Eisen

v. Eastman, 2 Cir., 421 F.2d 560, 11/28/69). Many ques-

tions remain unsettled in these actions. In this action my

decision which will be adverse to the State provides a ve-

diele for appeal which I invite and welcome in order that

at least some of the questions persistently raised by the

2 State may be answered as correct or incorrect.

The statutes of New York that apply to the grant or

E : withholding of good behavior time are set forth in Sec-

tion 803 of the New York Correction Law, McKinney’s

Consol. Laws, o. 43. Such section, subdivision 1, explicitly

legislates the requirement that good behavior time credit

may be withheld or revoked by the prison board for ‘‘bad

behavior, violation of institutional rules or failure to per-

korm properly in the duties or program assigned. Sub-

division 3 of the Section directs the Commissioner of Cor-

tection to promulgate rules and regulations in regard to

these matters and subdivision 4 says the withholding,

forfeiture, cancellation or restoration of such allowances

and shall not be reviewable if made in ac-

law. This subdivision emphasizes for me

. to be the final authority in

matters if is followed and also unquestion-

ee ae the:good time as the

‘administrative reviewing authority. In accord with

235 of the Correction. Law there is established a

Commutation Board with authority to review all

which good time has been forfeited by the dis-

or disallow any such good

ted. By Section 236 of the Correction Law

the provision highly important in my judgment

situation that directs the Board where the allow-

is withheld to x forward with their report to the

issi of Correction their reasons in writing for

disallowance x’’, This direction is contained in the

Miscellaneous Rules, 60.6(a), Regulations, Def. Nx. F.

In this action a hearing has been held, a satisfactory

record made and transcribed, Plaintiff was sentenced in

Bronx County to an indeterminate term of one and one-

half.to four years:on February 14, 1967. The plaintiff-pe-

titioner testified and the Head Clerk at Clinton Prison,

Damnemora, New York, was the sole witness for the Re-

spondents. There are a number of exhibits in this record

!!!.! ey ai

Set: ouplineny and: nesive.proenduzes tp the Now ‘York

1145

ne 21,

1968, while he was confined in Sing Sing Prison. The

separate disciplinary Action reports dated October 31,

FVV

25a

District Court Opinion and Order

(December 23, 1969).

traband letters written by his wife in his cell along with

other materials, and in the other having six pornographic

photographs of his wife in his possession received through

illegal channels. The judgment written in each instance is

60 days for a total of 120 days; the brief written comment

in one report is plaintiff’s refusal to disclose who had

arranged to get the contraband into him, the other states

he was adamant in refusal to disclose the method by which

pornographic materials were passed to him.

The plaintiff’s version given at the trial contradicts

these disciplinary reports. He testified he was never con-

fronted with written charges or the contraband. From the

beginning, and I so find, the questioning was solely in re-

gard to how he got the uncensored letters and photographs

into Sing Sing. The punishment effected seems different

from the judgment report, inasmuch as the plaintiff says

the decision was merely take him to the Box. (Tr. 29-

80.) After a two or three minute oral interview when the

plaintiff would not talk, he was told by the Deputy Warden

simply, he testified, ‘‘I am going to take 60 days for the

letters and 60 days for the pi „. (Tr. 31-38.) The

following day, plaintiff testified he was then transferred

to Clinton Prison at Dannemora, New York, where he was

‘immediately put in and kept in segregation from Novem-

ber to December. (Tr. 36.) The plaintiff testified he was

„brought before Warden LaVallee several times and told

im effect he was an educated man, that the Warden did not

like to keep him in the Box although plaintiff did not do

anything wrong at Clinton, but he had to be kept there as

part of a continuing investigation. (Tr. 44.) Plaintiff

testified this pattern continued and when he was brought

before the Commutation Board at Clinton Prison, which

Warden LaVallee headed, for a review of the forfeiture

of his good behavior time, he was again asked only by the

Warden if he was going to talk about how letters got into

: aa + Opinion ana rds

(December 28,1969).

Sing Sing and when he said he had nothing to say, he was

told to get out'. (Tr. 51.) The plaintiff’s estimate of

the time period for this reviewing board appearance was

These descriptions. undisputed except by the two State

report Exhibits give cause for concern that approved and

short cut procedures did not permit fair hearing or proper

consideration to such extent that would accord with or-

dinary due process requirements. Of course, it is under.

standable that maximum security prisons must employ

subtle methods at times to insure that the security is not

mary and swift procedures are necessary to process the

day-by-day disciplinary infractions, However, I am not

sure the disciplinary officer or an officer of a review board

able whether refusal to inform can reasonably come under

the category: of a violation of institutional rules when

court in

27a

District Court Opinion and Order

(December 23, 1969).

is merely a recommendation and it is not until the inmate

appears before the prison board that the time credit for-

feited is actually reviewed and finally assessed in whole

or in part. A most important step therefore in these safe-

of course, is the direction in Section 236 Correc-

‘tion Law that the board forward their reason, in writing,

to the Commissioner when a disallowance is upheld in

whole or in part. In this record it is practically admitted

that no reasons, in writing, were forwarded to the Com-

missioner, and I so find, (Tr. 18-20); (see also Pl. Ex. 9

for id.)

My conclusion is that the above omission is substantial

and deprived the plaintiff-petitioner of due process and

equal protection of the law. My finding are contained

herein. My judgment declared hereby is that the disallow-

ance of 120 days and cancellation of 120 days good behavior

eredit time is void and unlawful as violative of the provi-

sions of the Fourteenth Amendment of the United States

Constitution. The Commissioner of Correction of the State

of New York, a named respondent, is hereby directed to

restore the remaining period of good behavior time credit

to the plaintiff. Such allowance will entitle the plaintiff to

release forthwith. The release of the plaintiff, of course,

will be to parole supervision as required under New York

Jaw. If such release is not accomplished within a reason-

ble time, the attorney for the plaintiff shall submit a writ

of habeas corpus to effect such release. I hereby ac-

_ Knowledge my deep appreciation for the outstanding legal

‘assistance given by Attorney Kohn to this Court at the

bearing and by his competent and thorongh briefing in this

difficult and important matter, All exhibits I shall file with

this decision with the Clerk of this Court.

Judgment shall enter in favor of the plaintiff granting

the relief specifically outlined herein, and this decision is

the judgment.

It is so ordered.

“ UNITED STATES COURT OF APPEALS

Fou an Snoop Cmovrs

No. — ‘Term, 1909

(Argued July 16, 1970 Doscided March 16, 1971.)

ee eee

—:—:.. ee Ae

ew rel, Kuczunz Rovzicunz,

Plaintiff-Appellee,

N ’ mt Ee

Pave D. MoGurmm, Commissioner of Correction; Russzi

G. Oswald, Chairman of the Board of Parole; J. Ehm

Lavi, Warden and Chairman of the Prison Board

of ‘Clinton State Prison; Naw York Srarn Boaxp or

Pinot; and ‘the Naw Tee ‘Stara’ Daranrmant or

* Cosamertom,

pei ig sek Defendants- A ppellunts.

Warm, Moons and n

Cirouit Judges.

Before:

PP.... tacsaeds seus

Oourt for the Northern’ District of New York, James I.

Foley, Chief Judge; ordering the reinstatement of 120 days

good behaivor credit withdrawn from appellee while he was

ae aes eee,

29a

Decision of Court of Appeals Panel Reversing

District Court.

Ricnamp A. Koun, Albany, N. T., for Appellee.

Baan Souorr, Asst. Attorney General (Louis

J. Lefkowits, Attorney General, Samuel A.

on the brief), for Appellant.

Hays, Circuit Judge: |

This is an appeal from an order of the United States

District Court for the Northern District of New York

in an action brought by a state prisoner under 28 U.S.C.

91343 (1964) and 42 U.S.C. $1983 (1964). After an evi-

2 hearing, the district court held that the cancella-

n by defendants of 120 days of plaintiff’s earned good

behavior time, was unconstitutionally imposed. The de-

5 nt Commissioner of Correction of the State of New

: Tork was ordered to restore the remaining period of good

_ behavior time credit to plaintiff. As a consequence of

_ this order plaintiff was released from prison on December

24, 1969, although remaining subject to the supervision of

the New York Board of Parole. We reverse the judgment

of the district court.

. In view of the basis for our disposition, only a brief

“summary of the facts is necessary. Rodriguez, having been

_ convicted in a New York state court of perjury and at-

~ tempted grand larceny, was sentenced to imprisonment for

_ an indeterminate term of from one and one-half years to

Tour years. Under New York law, a prisoner serving an

_ indeterminate sentence may elect to hp. in a con-

, ae

* Credit for such time would have reduced appellee’s period of in-

c carceration by 120 days.

30a

Dooision of Court of Appeals Panel Reversing

District Court.

ditional release program by which he may earn up to 10

days per month good behavior time credit toward the re-

duction of the maximum term of his sentence. Appellee

chose to elect this program. Optimally a prisoner so elect-

ing may be released under the supervision of the Board of

Parole, after having served but two-thirds of his maximum

sentence, Correction Law 4808 (McKinney 1968), Penal

Law §%§ 70.80(4) (a), 70.40(1) (a) and (b) (McKinney 1967);

accrued good behavior allowances so earned, however, may

at any time be withdrawn in whole or part for bad behavior

or for violation of institutional rules. Correction Law

5808 (1) (McKinney 1968). | :

Appellee was charged in two separate disciplinary action

reports, dated October 81, 1968, with possession in his

his wife, and with

days for the letters 60 days for the pictures. In the

„Remarks section of each judgment was a statement to

helle had refused to disclose how he had

li!

cases involving forfeiture of good time, failed to

8 re BB.

= 4 | i ;

* + — ~ sod

31a

Decision of Court of Appeals Panel Reversing

comply with a statute directing the Board to forward its

reasons for the disallowances of the good behavior time

in writing to the Commissioner of Correction and he char-

‘acterized this failure as the chief basis for his ruling. Cor-

_ Tection Law 5 236 (McKinney 1968). We cannot agree with

the trial judge’s view that questions of constitutional sig-

nificance are involved. *

ven if we were inclined to affirm the decision on the

merits we would be compelled to reverse on the ground that

appellee has failed to exhaust his state remedies.

prisoners who apply for federal habeas corpus to show

chat they have exhausted state remedies. State prisoners

are increasingly resorting to the Civil Rights statutes in

order to circumvent the requirements of Section 2254.

‘The present application, since it seeks release from cus-

tody, is in fact an application for habeas corpus. [Rle-

lease from penal custody is not an available remedy under

the Civil Rights Act.“ Peinado v. Adult Authority, 405

F.2d 1185, 1186 (9th Cir.), cert. denied, 395 U.S. 968 (1969).

In Johnson v. Walker, 317 F.2d 418, 419-20 (5th Cir. 1963)

the court said:

Use of the Civil Rights Statutes to secure release of

persons imprisoned by State Courts would thus have

the effect of repealing 28 U.S.C. C 2254; of course, such

was not the intent of Congress.“

The chief basis“ of the district court’s order is founded

on error. The provision of $236 of the Correction Law

under which the prison commutation boards forward their

reasons for disallowing good behavior time in writing to

the Commissioner of Correction is not‘ constitutionally re-

32a

Decision of Court of Appeals Panel Reversing

Moreover, a letter from Warden Deegan to Com-

missioner McGinnis dated November 1, 1968 (Defendant’s

Exhibit C') was sufficient to satisfy the statutory require-

ment, since it contained all the information that would

have been included in a letter from the Board to the Com-

missioner. In any case, even if the requirement of § 236

had federal significance, the most that appellee would be

entitled to is a decree ordering the board to forward a

report to the Commissioner.

Although punishment for refusing to reveal the sources

of his contraband would not reflect any constitutional in-

clear that Rodriguez did not lose his

f. ² NOY AARC NA

of the contraband. After the punishment was ordered he

was given an opportunity to reduce his lost good time

eredit by revealing the source of the contraband. This

procedure, commonly used in law enforcement efforts, cer-

tend does dad ene any, constitutional right.

The issue in this case is typical of the increasing number

ee ote ron Uae eee

receive for having dirty pictures in his cell (or for refusing

But if this court entertains actions of this kind it will en-

courage state prisoners who have any kind of “beef” to

bring such actions and the federal courts will end up sitting

ison boards of discipline in the state prisons.

The federal eourts should refuse to interfere with in-

1 state prison administration except in the most ex

33a

Decision of Court of Appeals Panel Reversing

District Court.

treme cases involving a shocking deprivation of funda-

mental rights. See, e. g., Church v. Hegstrom, 416 F. 2d 449,

450-51 (2d Cir. 1969); Wright v. McMann, 387 F.2d 519,

528 (2d Cir. 1967) (concurring opinion of Lumbard, CR J.);

Bostre v. McGinnis, 334 F.2d 906 (2d Cir.), cert. denied,

879 U.S. 892 (1964); Jackson v. Bishop, 404 F. 2d 571, 577

(8th Cir. 1968) (Blackmun, C.J.). A case such as the in-

At a minimum such cases should first be filtered through

the state prison administrative process and the state courts.

In Wright v. McMamn, Chief J udge Lumbard said:

“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 i improper treatment. I would

hold that if a state made provision for such relief in its

__courts the federal courts should abstain for a reason-

able period to allow the state courts to hear the com-

plaint and take appropriate action. I do not agree that

recent decisions of the Supreme Court mandate or were

intended to mandate action by federal courts in all

4 cases involving the treatment of prisoners in state

25 institutions without a suitable period of abstention

where state courts aré-empowered 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 so peculiarly a matter

in the discretion of the state, and the possibilities that

prisoners will file groundless and numerous complaints

in the federal courts are so obvious, that these cases

Zan

Decision of Court of Appeals Panel Reversing

raise ‘ ‘circumstances’ that make it appropriate

to them as an exception to the caveat or policy

Wm tedent courts.”

W end bend Bi ese bed bo berwe tb drty oni

ee eee ee eee eee r.

an application through state administrative or judicial

processes for the relief he seeks.

N —

Waterman, Circuit Judge (dissenting) :

I respectfully dissent. I would affirm the judgment en-

tered in the Northern District of New York.

In this action brought by a state prisoner under 28

U.S.C. § 1343 and 42 U.S.C. § 1983, Judge James T. Foley,

Chief Judge of the United States District Court for the

Northern District of New York, after an evidentiary hear.

ing in which the prisoner and the state officer defendants

testified and presented exhibits, adjudged that the cancel-

lation by defendants of 120 days of plaintiffs earned good

behavior time which, if not canceled, would have reduced

thaw crate pian As a consequence of this order

yee seg agonal eee

ork State Board of Parole, was entitled to an

e eee

Christmas Eve, 1969.

The facts are fully set forth in the able opinion filed

below by Judge Foley in Rodrigues v. McCinnis, 307 F.

35a

Decision of Court of Appeals Panel Reversing

District Court.

Sapp. 627 (N.D.N.Y. 1969), and need to be but briefly re-

iterated for the purpose of this dissenting opinion.

ee. 14, 1967, Rodriguez was sentenced in a New

State court to imprisonment for an indeterminate

: a of from one and one-half years to four years. Accord-

1 to New York law, a prisoner serving an indeterminate

en may elect to participate in a conditional release

program whereby he may earn up to 10 days per month

good behavior time credit toward the reduction of the maxi-

mum term of his sentence. Optimally, under this program,

a prisoner may be released, under the supervision of the

Board of Parole, from prison incarceration after having

served but two-thirds of his maximum sentence, Correction

Taw § 803, Penal Law 5 70.30 (4) (a), 70.40(1)(a) and (b),

ep pevrned..gned ‘behavior allowances so cerned may at

Jes). Appellee chose to elect the conditional release

On October 30, 1968, while he was imprisoned in Sing

Sing, Rodriguez was charged in a “disciplinary action” re-

port with having in his possession five uncensored, and

therefore contraband, letters written to him by his wife.

He was similarly charged on the following day with having

‘in his possession six uncensored pornographic photographs.

items were taken from him and turned over to the

. Warden. On October 31 it was adjudged by the

pen interrogator, the Principal Keeper, the Deputy

en, that 120 days of the prisoner’s earned good be-

Saag eee

the letters and 60 days for the pictures.” The judg-

entered on each of the reports set forth that appellee

ieee

36a

tae ee cana ne upon hearing appel-

lee’s testimony, discredited the “disciplinary action” re

ports to the following extent, 307 F. Supp. at 631:

3 version given at the trial contradicts

ee eee Hine e

It is clear that, as Judge Foley found, the real motive be

hind the continuing pattern of punishment, first the can

cellation: of the 120 days good behavior time earned by a

year’s good behavior at Sing Sing, second, the immediate

incarceration in the “Box” there for a day and a half, and

third; the prompt transfer to Clinton Prison following that

incareeration, where the confinement in segregation lasted

from entry there on November 1 until the first week in

December, was not designed to punish Rodriguez for his

possession of uncensored mail but rather was designed to

"The pertinent notations as to the eters flow

JupGMENT

„

. Remarks; neat fuses to disclose who had to get the

* arranged to get

1 /s/ R. Treanor

ee ee wate ci

eae erent emer eee e eee

; Jupement

0 days. Inmate was adamant in refusal to disclose method

ret *

Pictures held in Warden's office.

/s/ R. Treanor

Asst. Superintendent

37a

Decision of Court of Appeals Panel Reversing

District Court. .

‘compel him to disclose the channel through which he ob-

tained the uncensored items, or, as the majority says, to

“tattletale.”

i Judge Foley also found that the Commutation Board at

Clinton Prison, which reviews all cases in which good time

bas been forfeited by a disciplinary officer, failed to obey

te command of the New York statute, and did not forward

in writing to the Commissioner of Correction its reasons

8 ~ withholding appellee’s good behavior time. Correction

5 §§ 235, 236

Based on the above, the experienced district judge ex-

1 concern that this pattern of events may well not

ee comported with “ordinary due process requirements”

“and stated, . . I am mot sure the disciplinary officer or

an officer of a review board can assume legally the investi-

ive mantle and become prosecutor, judge and jury, and

n this instance really the Appellate Court of Review.” 307

. Supp. at 632. I share his concern.

The judge indicated, also, that “the chief basis” for his

decision was the failure of the prison commutation board

“to forward the reasons for its action to the Commissioner

and that this failure deprived appellee of due process and

poe protection of the law. Id.

Had Judge Foley foumd that the prison authorities had

Bo, Fenty proceeded against Rodriguez by confronting him with

a charge of violating priison rules in that he possessed un-

densored items, had givem him a full opportunity to answer

only those charges, and then had failed to forward to the

Commissioner of Correc:tion the reasons for taking away

a good behavior time as jpunishment for the infractions, I

would not consider such a statutory violation to constitute

duch a deprivation of dme process as to warrant a federal

tribunal in granting reliief. However, on the facts found

by Judge Foley, it is my belief that this panel has no

ther valid option but to conclude that the procedures ap-

1.80 3

‘‘tattletale’’

and to ineriminate others who might have aided him in re-

infraction, official at-

the visit was terminated.

refusal to

ing room. My wife was visiting me, and

pellee was subjected to in relation to the uncensored mail

did not meet the minimum constitutional requirement of

ow i thatthe end ofthe convertion with the PK

eee ee eee

ceiving the contraband.’ It is apparent from the severity of

“‘officially’? charged with that

tention soon focused on Rodrigues 's

89a

Decision of Court 105 Appeals Panel Reversing

District Court.

his punishment, first; the wiping away of a year’s accrued

credit for a year’s good behavior and the resulting assess-

ment of four months additional incarceration, and second,

“segregation ‘‘in the Boxes of the two prisons for a total

of more than 40 days, that the punitive measures were not

“inflicted for possession of uncensored letters and photo-

_ graphs but in order to coerce, him to tattletale and to

2 “Bing Sing information that would inculpate other residents of

ve “Tt Would oem, then; that the failure of the‘commutation

board to forward its reasons for its actions was merely a

part of the pattern of continued procedural dereliction

Judge Foley found, and, as the facts he found are not

“@learly erroneous, and, on the record, I am not convinced

_ was immediately taken away to the box there without any further

bearing. As to the confrontations at that prison, Rodriguez testified :

[fe

. .

i 3

171

400

Decision of Court of Appeale.Panel Reversing

adopted by dhe prison authorities. to obtain Rodrigues 's

77... the .ac-

eee

tion of this because he remained silent in the

face of interrogation was a violation of his fifth amend-

ment privileges against self-incrimination, citing Spevack

v. Klein, 385 U.S. 511 (1967). The defendants respond by

pointing out that Rodriguez at the hearing before Judge

Foley admitted having the uncensored items in his pos-

session and that his refusal to talk was not motivated by

any fear of criminal prosecution for possessing the items.

This is most assuredly so as to the possession of the con-

traband, but the prison authorities questions were not

directed at seeking a confession with respect to the contra-

band; no confession was necessary or needed, he was

‘caught with the goods.“ The questions were directed at

diseovering how the letters and photographs were smug-

gled past prison censors. The obvious import of the inter-

rogation ‘was the discovery of the identity of the ‘‘insider’’

or ““insiders’’ (prison guards, etc.) who must have enabled

— 8 Nu. Petial Law $20.00 and, for N.Y. Penal

4la

Decision of Court eee Panel Reversing

Distriot Court.

ofthe interrogation were twofold. The information sought

would not only open the door for a probable criminal

ge against a prison official but also, as Rodriguez would

also be a party to the official’s criminal act, a possible

criminal charge against Rodriguez.‘

Roc ez may have been motivated to remain silent

ly because of a fear of retaliation by his confederate,

whether a prison guard or other-prison employee, or even

another inmate. But the fifth amendment protection pro-

tects irrespective of the subjective motives that prompt one

tobe silent. If the information sought by officers may tend

to incriminate one who is being questioned, he has an abso-

Inte right to remain silent. Although ‘‘[a]nswers may be

compelled regardless of the privilege if there is immunity

from federal and state use of the compelled testimony or

its fruits in connection with a criminal prosecution against

peep ”? Gardner v. Broderick, 392 U.S. 273,

6 (1968), (citing cases), no immunity from prosecution

is offered in this case to Rodriguez. Nor is it any answer

y that if Rodriguez had talked under the compulsion

at the threats of segregation in the box and the loss of

good time credits such compulsion would have rendered his

statements or the fruits thereof ‘‘coerced’’ and therefore in-

Admissible against him in a criminal prosecution. See Gar-

v. State of New Jersey, 385 U.S. 493 (1967). Absent

ai assurance that his statements could not be used against

him, we cannot assume appellee was aware of any implicit

immunity he would enjoy if criminal charges for a com-

plicity in violation of law were brought against him. Cf.

Gardner v. Broderick, swpra at 278-279.

I would point out, therefore, that under the circumstances

Present in this case the fifth ‘amendment privilege against

——

a 185.05, 200.00, 20026, % G Penal Taw

42a

Decision of Court of Appeals Panel. Rever

re ‘Appeals Panel Reversing

PF... ter pes

_ punishment which | which obviously vas not imposed for the pos

hold the decision below by reliance upon it. With reference

to the iasue that it was presented to Judge Foley, his factual

findings are not clearly erroneous and his conclusion drawn

therefrom that appellee was deprived of due process seems

ee g werf L would —

43a

Denial of Petition for Rehearing.

A petition for a rehearing having been filed herein by

eounsel for the appellee.

"Upon consideration thereof, it is

ordered that said petition be and it hereby is Demin.

a Lzomazp P. Moon

. „Fr K Hivs

Circuit Judges

1 points I and III of the

= See my March 16, 1971 dissent as a panel mem-

Srerry R. Waterman

Circuit Judge

r Cotaiiaeniaie Dinan

on Nur ‘Youn, 70 Give 472)

1970 |

ane. Filed Petition for Writ of Habeas Corpus and

related papers

SG ned Gene to Shiv Guse returnable: Aug 11,

eee d me be ben de tie order that

apers be filed without

4 prep: 2 i.

13 Ree ba e aii Laci . Lefkowits,

Ay es e eae OO ea ee

service

„ 6. Wrtt kams & del'vd to Marshal for serviee

„% 7 Filed Return of Marshal re service of Writ af

Habeas Corpus on John T. Deegan, Warden of

Auburn Prison on Aug. 7, 1970

4% 11 Return of Order to Show Cause. Petitioner tes

tified in his own behalf. Continuance to Av

gust 18, 1970 at 2:00 P.M. in Auburn (Trial)

4% 18 Filed photostatic copy of Respondent’s Ex.

hibit A—Disciplinary Action 1/9/69

„% „ Filed photostatie copy of Respondent’s Ex-

hibit B—Disciplinary Action 1/9/69

„% „% Filed photostatic copy of Respondent’s Ex.

hibit C—Disciplinary Action 1/9/69

„% „% Filed photostatic copy of Respondent’s Ex.

; hibit D—Disciplinary Action 1/9/69

Sd eg

146

& S

Filed photostatic copy of Respondent’s Ex-

hibit E—continuation sheet of disciplinary

action

Filed photostatic copy of Respondent’s Ex-

hibit F—re release date

Filed photostatic copy of Respondent’s Ex-

hibit G—Disciplinary Action 1/7/69

Trial continued from August 11, 1970. The re-

spondent is directed to restore 30 days good

time taken from petitioner for writing in his

diary. To restore 20 days good time lost due

to segregation. The respondent to correct

error in their record keeping which allowed

petitioner 10 days not entitled to. Petitioner

to be released forthwith. Two day stay to

allow. separation from Prison. Stay termi-

nates at 12 noon on the 20th day of August,

1970. :

Order—Port, J. directing Respondent to release

petitioner from Auburn State Prison, said re-

lease is stayed until not later than noon Au-

gust 20, 1970 to permit the proper and

necessary processing of said petitioner’s re-

lease—Oxperep—Edmund Port, U. S. D. J.

J udgment

Notice of Appeal

Minutes of Proceedings held August 18, 1970 at

Auburn, New Vork

Transcript of proceedings held Aug. 11, 1970 at

Auburn, N.Y.

(Umrrep Sratzs Count or Arr nate, Snoop Cmovrr,

: Dooxzr No. 35300)

8:19:70 e until

12:00 noon, 8-21-70; hearing on motion to be

had at 1100 m. 8-21-70; motion papers and

response to be filed on or before 10:00 a.m.

5 8.70 .

8-21-70 Filed motion for 6 stay

e een e tore

8-21-70 Filed ads in ‘opposition to motion for a

8-21-70 p . ay ia de

_ plied; brief of respondents-appellants be filed

‘by 31-10 and ‘that the brief of petitioner-

appelles be filed by 9-10, which briefs may be

N is set for argument week of

941470; in the event the Michael Katzoff

refused to agree in writing as above provided,

% ay ae for a stay is granted pend-

9270" Filed ‘brief, 8 with ies of service

. e e a

ment of appeal to 9-17-70 ©

9-10-70 Filed record (original papers of district court)

‘91470 Filed: order granting late filing of a separate

von

47a

Mi 1 .

- FILINGS——PROCEEDINGS

Filed copies appendix (Mailed 9-4-70) with

proof of service

Filed brief, appellee with proof of service

(mailed 9-10)

Argument heard (by: N Smith & Hays,

CJ) 5

Filed supplementary brief, appellee with proof

of service

Judgment Reversed Hays, CJ

Dissenting in separate opinion, Smith, CJ

Filed judgment (Vacatep 1-25-72)

Filed petition for rehearing and rehearing in

banc with proof of service

Filed order denying petition for rehearing

Filed order granting reconsideration in banc,

etc.; the in banc proceedings in the three

cases are consolidated; if petitioners desire

to file further briefs, they may do so by

8-16-71; if respondents desire to file further

briefs, they may do so by 9-13-71; further

oral argument will not be heard unless other-

wise order (consolidated with 34567 and

35253) (Filed in 34567)

Filed order re in banc—judges of the court and

members of the respective panels who have

taken senior status will hear oral argument

11-4-71 at 2 PM Room 506; if counsel desire

to file additional briefs on these subjects

these should be served and filed by 11-1-71

(& in 35253, 34567) (filed in 34567)

2-10-72

48a

Filed brief, petittion on rehearing in banc with

proof of service...

Filed brief, appellant (on rehearing) with proof

. in 94507)

Argument heard (by: Friendly, ChJ, Water-

man, Moore, Smith, Kaufman, Hays, Fein-

berg, Mansfield, Mulligan, Oakes & Timbers,

CJJ) (& in 35253 and 35300)

Issued Mandate (judgment; opinion on rehear-

ing and order)

49a

Affidavit of Poverty.

Srare 5 oF New Yorr W

Coury or Caruaa 5

4 2

— Karzorr, being duly sworn and deposed, hereby

states that: :

r gin mi: #7 42 2

5 = Pass JJ ͤ ͤ⁰y PET Ta Oe 5

3 r W c a

DOT Sty -

1) I am a citizen of the US, and am confined at the

Auburn State Prison, Auburn, New York 13022.

That because of my poverty, I am unable to prepay

the fees for the said action or suit, and that I am

a poor person.

That I am unable to give security for the same, and

that I own no real property.

That I believe I am entitled to the redress I seek

in this action.

That I make this affidavit in good faith, and out of

the necessity of preserving the constitutional rights

effecting life and liberty.

That I am seeking issuance of a writ of habeas

corpus against Paul D. McGinnis, Commissioner of

Corrections, and John T. Deegan, Warden, to com-

pel them to show cause why an additional forty

days of “good-time” should not be restored to me,

thereby effecting my immediate release from cus-

tody. The above mentioned officials, or their subor-

dinates, shall be made to appear before this Court,

and either affirm or deny petitioners allegations, as

annexed hereto, and grant the specific redress re-

quested by the petitioner.

That a “Subpoena Duces Tecum” shall be issued to

Warden Deegan, or his representative, for his ap-

pearance, and for the production of petitioner’s dis-

That he is a poor person, after such provision de

fining euch status: 28 U.S. C., Section 1915, Adkins

v. DuPont Co., 335 US 381 and prays for the above

relief as soon as humanly possible.

Respectfully submitted,

Mionam. Katzorr

Petitioner

Sworn to before me this

28 day of July, 1970.

N. Cratunce G. Stator

Notary Public, State of New York

ualified in Cayuga County #1343

ion Expires March 30,1972

‘Sla

Affidavit in Support: of Show Cause Order.

Comes now the petitioner,, Michael Katzoff, presently en-

‘ at the Auburn Prison, under a sentence of 1-3

yrs, kor Possession of a Weapon, sentenced by Justice

hweitzer, of the NYS Smpreme Court, NY County, on

me 17, 1968. Indictment No. 3999/67.

“first, being duly sworn under oath, deposes and says; that

Lem the petitioner in the above entitled action, and seek

dave to file the attached afffidavit, and as such, I have pre-

red this Petition to Proceed in forma pauperis, and know

. to be true, undler Penalty of Perjury.

The jurisdiction of this Court is invoked pursuant to 28

USO, Section 1343(a) for éinforcement of rights.

May it please this honormble Court, that petitioner here-

in, brings this application for writ of habeas corpus and

order to show cause, under Title 28, Sect. 1651, to compel

the respondents to show cmuse, sufficient in law, why they,

or their representatives, smould not be made to appear be-

fore this honorable Court, tto either deny or affirm petition-

ets allegations, as annexed! hereto.

ö MMIoRANL. Karzorr

i (Petitioner)

Sworn to before me this

* eee of July, 1970.

Crarznos G. Staxron

Notary Public

af State of New Yortk

Qualified in Cayuga Coumty 1343

Seema Expires March 30, 1972.

52a

_. Aifidavit in Support of Show Cause Order.

No Previous Application For The Relief Sought Herein

at whic e e on the

ned to Sing Prise a from July 1, 1968, until August

125 1 I wa. to Clinton Prison. During

ip hea py pea arm I was questioned

by L bepaty, Warden Tesincr, and one sergent, with regark

that it was a good way i

blaw off. See and:wan an,éxcellent form of seli-analyss

At Clinton, the diary was known of due to my introducing

its use to my group discussion leader and Parole Officer, the

latter, who was giving me individual counseling. Further

more, a8 I wrote my daily entries in the yard, in full view

of everyone, it was not something I was doing on the sly.

Prison officials at Clinton made remarks similar to those

Sing Sing.

‘Yn the latter Par of November, 1968, I was transferred

to Green Haven Prison, where I continued to maintain the

now four notebooks in since they checked with a sergent,

and I was then told if these diarys mention the actual

names of other inmates or prison employees, you won't be

able to take it with you, when you go home. But there

was no mention of there being anything wrong with main

taining the diary, or its being a violation of any departmen-

tal or institutional rule. All comments ‘made were of a

On January 7, e eee eee

Green Haven, I was informed that I was keep- locked

CCC

53a

Affidavit in Support of Show Cause Order.

‘I was not told why I was keep-locked. (I asked several offi-

ers, and was simply told, ‘‘you’ll find out tomorrow.) As

m cell was in a state of disarray, and all of my diarys were

‘missing, I assumed this was the basis of the situation.

On Wednesday, January 8, 1969, I was brought before the

Deputy Warden, Mr. Gilligan, who, after calling me a tor-

gent of vile and obscene names, simply said Take this Jew

stard to the Box, I’ll see him when I get around to it.“

go, I was sent to solitary confinement, without knowing

„ what I was charged with or how long I would be there.

as handcuffed, and roughly pushed along the prison cor-

Adlors leading to the elevator, and up to the segregation

facility.

On Friday, January 10, 1969, I was brought before Mr.

Gilligan again this time in a small room within the seg.

#acility.. He again launched a verbal diatribe against me,

d this time said ‘‘I’m sentencing you to solitary indefi-

ly, and revoke 12 days of good time from you!“ I was

told what, if any, specific charges were responsible for

being put into solitary, but when I asked, I was told

gs like ‘‘worry about important things, like going home

@ rather than in a pine box, or having a lobotomy per-

od due to emergency needs, eto.“

later learned that, on Friday, January, my brother

en removed from my visitor’s & correspondent’s list.

» saw the warden, got his explanation of my present cir-

unstances and then contacted my attorney, and family,

7 cing Same. . P

remained in solitary for two months, which caused an

ditional loss of 20 days good time. My attorney and

y spoke with the Warden (Follotte) Deputy Wardens

gan and Sawner) and several Dept. of Corrections

Officials, in an effort to gain my release from solitary. They

} Were, on several occasions, told the basic reason(s) why

A st the good time, and was put into segregation, and these

54a

Affidavit.in Support of Show Cause Order.

1.) Mentioned, in diary, that Asst. Deputy Warden

Sawner’s a cigar-smoking 8.0.B.” 3

2) Mentioned, in diary, that ‘‘Deputy Comm. Cain is a

3.) Mentioned, in diary, the thought of asking my

brother to bring in a recording device to take a visit

Du wais considered to be a mapiracy.

4.) Pasted my inmate’s rule book into my scrapbook

.. . Which was considered destruction of State Prop-

erty.”?

3 3 «dé : 8

: 8 eee ae S 8

2 K wh > oe r * 7

out 8 * 8

ay 5 3 2 PA ee ER SARS EFS 4

PFC a f

cdͤdkstssted bythe Metal detector at the gate—30 days.

s 8 r 2 . : Zt

* 7

55a

Affidavit in Support of Show Cause Order.

eee the original charges have been re- written,

the charge pertaining to the rule book dropped, the con-

spiracy”’ with my brother becomes an act already com-

“mitted, and the ‘derogatory remarks’? become vague and

non-specific.

Any attempts, on my part, to obtain specific information

-gegarding the lost time, appealing to the warden for a

chan to disprove or refute the charges, eto, were met

Hitch silence. A letter I wrots to the commissioner, was

3 by him apparantly because it was never

wmailed by the Prison Officials who worried about it’s con-

r „

. Courts, states in pertinent part,

no state of the U.S. shall abridge the privileges and

ities of citizens of the United States, nor deprive any

of life, liberty or property, without due process of

Title 28 U.S. C., Section 1343 states: The Distriet Courts

dall have original jurisdietion of any civil action au-

thorized by law to be commenced by any person: [3] to

red the deprivation, under color of any state law,

_Matate, ordinance, regulation, custom or usage, of any

if .

| 4. Affidavit from Mr. Paul Kateoff.

56a

Affidavit in Support of Show Cause Order.

6. Carbon. copy: of commutation Board's report tothe

92 eee erg eee ges Pe Ne

Pee ener etre, ‘discretionary

eS Gals ee Who nets e Seaton

ance With the severity of the case at hand. The

ence being that the judge must observe very

m and maximum punishment, which are

1 out in the Penal Code. The Prison Ad-

ministrators, on the other hand, have no such guide-lines to

follow. Ergo, these ‘‘discreationary Powers’’ often become

dictatorial Powers, and justice becomes non-existant, or

Tons secording to whim and/or state of mind, ete.

In the brief accompanying this writ, petitioner has out-

lined ‘the numerous ways in which he was denied equal

prot of the laws, and a denial of due

process, to the laws set down by the NYS

Tecislstes andl e Oorrections

| - Petitioner prays this honorable Court and God almighty,

for justice, and that an order to show cause be issued and

57a

“Subpoena, Duces Teoum.

M THE US DISTRICT COURT FOR THE

pees NORTHERN DIST. OF N.Y.

To: John T. Deegan, 2nd

Faul P. McGinnis, or

their representatives.

You are hereby commanded to appear in the US District

burt for the Northern District. of New York, at the

Meral Building, Utica, New York, on the day of

, 1970 at 10:00 am in the forenoon, to testify

@ case of USA ex Rel Michael Katzoff, Petitioner,

Paul D. McGinnis and John T. Deegan, Respondents,

und bring with you:

ae,

1) the disciplinary report regarding to the charges

= and actions taken, as outlined herein

2 the Original Commutation Board report to the Com-

~ missioner, regarding the restoration of good time, and

mme deferral of Petitioner’s release date, as a result

thereof.

#2) Any and all records pertaining to Petitioner's

_ disciplinary actions while at Green Haven Prison.

Tuis Subpoena is issued upon application of the above

ed Petitioner.

588

a . + to She 50 r

together with an application at proceed forma pauperis.

The petitioner alleges that “good time“ has been taker

from about due process of law. He alleges that if th

“good time” to which he claims entitlement was credite

Upon thie petition of Michael Katzoff, verified the 28t

day of July, 1970, itis

Onno that the petition and supporting papers herein

be filed by the Clerk without prepayment of fees; and i

* 2

. McGinnis, Commissioner of Cor

_ and Hon. Louis J. Lem

the » of New York, shov

59a

r S GAR-Otten tytte the

? . McGinnis, Commissioner of Corrections of

Stat of New York, John T. Deegan, Warden of Au-

fern State Prison, and Louis J. Lefkowitz, Attorney Gen-

‘of the State of New York, by depositing the same

if securely postpaid wrapper, addressed to the said per-

ms by United States mail, on or before August 5, 1970

Be pe due and sufficient service.

Senate Ponr

United States District Judge

: August 5, 1970

Auburn, New Tork

4 190 ‘Dist ; 4 c Hurt H ing.

ann e De! „

Tbe Court: But this is the Point of the situation, if th

„%„% Ge a NMR NN

«Ma. O'Brien: “He is scheduled to be released in Sep

The Court: September 2, he says.

Mr. O’Brien: Yes.

The Court: Why didn’t you apply for this relief bad

Mr. Katzoff: Well, Your Honor, approximately two

and a half months ago IL was was visited at Auburn Prison by

my attorney, and he mentioned the statement to tie at

that time that I was not aware of before, and the state

ment in essence is this, that he had spoken on several oc

supposedly told, and I quote, that the maintaining of :

diary per se is not a violation of any departmental or

institutional rule or regulation, therefore the entire inc

dent should be ruled as moot. I was not aware of any.

thing to this extent. (pp. 11-12). -

The Court: Of course, supposing you put a man in

ee inbawtelty, you are going to lose good time,

pat him in the day he comes in the institution and keep

him there, he will never get a chance to earn his good

time, will he?

Mr. O’Brien: Then he of course would have to resort

‘to the civil rights act and get his relief in that manner

2 8 41-42)

ree

6la

Excerpts from District Court Hearing.

2 The Court: r Geek kor

inately doesn’t afford the court an opportunity to per-

wm any lengthy study, If the plaintiff 01 or the petitioner

re is entitled to any relief, it would for the most im-

rte t purposes, at least, become moot if I were to take

the matter under advisement and try to give it the kind

ol study and analysis that either Judge Motley did in

the Sostri case or Judge Foley did in Rodrignez or

AN or that Judge Mansfield did in the Carouthers

ease. Those cases were brought at such a time so that

= permitted. of that period of study and lengthy and

—.— opinions which will be passed on by the Court.

1 think I have got to take a much more pragmatic ap-

f here. For that reason I am going to adjourn now

Drescess, rather I should say, for not more than an hour.

I will recess until 4:30. I have got my notes of the testi-

mony and I would like also the exhibits, and I will make

determination and announce it on the record.

: PPhetoapon a recess was taken, after which the hearing

* resumed.) (pp. 152-153)

District Court Opinion (August 18, 1970).

The following proceedings took place on the 18th day of

August, 1970 at the United States District Court, Northern

District of New York, Federal Building, Auburn, New York

Appearances: .

n a e by Lee A Wass

Eeq., Attorney for Petitioner.

Hon. Louis J. Lefkowitz, by Timothy O’Brien, Esq.

of counsel, Attorney for Paul D. McGinnis, eto.

The Capitol, Albany, New York.

The Court: I am going to ask the reporter to transcribe

the proceedings from this point on and they will constitute

the decision of the Court, the Findings of Fact and the

Conclusions of Law, and when the same are transcribed

are to be filed with the Clerk.

This is a proceeding brought by Michael Katzoff, Peti-

tioner, against Paul D. McGinnis, Commissioner of Correo-

tions and John T. Deegan, Warden of Auburn State Prison.

I believe that since the institution of the action, or shortly

before the institution of the action, the Correction Law was

amended, or it was amended earlier and effective shortly

before this time, changing the title of the Warden to Super-

intendent, and the State Prisons to Correctional Facilities,

is that correct, Mr. O’Brien?

Mr. O’Brien: That’s correct, Your Honor.

The Court: All right. The title of the action will be

The Petitioner is confined in the Correctional Facility

at Auburn, New York, formerly known as Auburn State

63a

District Court Opinion ( August 18, 1970).

Prison, in execution of a sentence of one to three years

imposed by the Supreme Court of New York County on or

about June 17, 1968; that at various times since then the

“execution of the sentence. In addition, the Petitioner was

‘gonfined in Sing Sing Prison.

It is the practice in the prison system of New York on

the admission of an inmate, or shortly thereafter, to pre-

pare an inmate record card, referred to as a warden’s card

or deputy warden’s card, copies of which are kept on file

in the warden’s office and in the deputy warden’s office.

As part of that record, and in the early part of the execu-

‘tion of the sentence, the prison authorities determine and

‘post on the card the maximum expiration date and the

‘ponditional release date for the particular inmate. In the

‘ease of the Petitioner, his maximum expiration date is

June 14, 1971. His conditional release date was fixed as

gue 14, 1970. That date is the date upon which he will

o entitled to conditional release under the provisions of

te Penal and Correction Laws of the State of New York

if he duly applies for such conditional release.

oy Throughout a prisoner’s incarceration, in the event of

action taken against him by the institution

siesnlting in a loss. of good time, that so-called loss of

good time is added to the tentative conditional release date.

dn the first instance, the institutional procedure provides

5 ta determination of judgment on disciplinary action

; is tentative. Those tentative judgments are subse-

reviewed by a Prison Board who makes a recom-

ion to the Commissioner with reference to the

64a

District Court Opinion (August 18, 1970).

The prison or institution Board, to determine the good

time allowances to be made to the Petitioner, met on or

about February 11, 1970 and made u report to the Commis-

sioner: of Correction, a copy of which is designated as

Respondents’ Exhibit F, — on also

attached to the petition herein.

‘During the Petitioner’s incarceration on a soinbet of

occasions he was disciplined: as a result of alleged infrac-

tions of prison rules. The disciplinary judgments material

to this proceeding all occurred on or about January 7, 1969,

or January 9, 1969;:except for a judgment on or about Sep-

tember 1, 1968, which resulted in the loss of ten-days good

time, and a judgment of March 24, 1969, which resulted in

inthe es ef gaed:time on those two oceasions is not seri-

ously questioned. The: ten-day loss of good time with

eae oss ge e gam eee er w. 1968 of

of books, charged on March 24, 1969, and resulting in the

loss of thirty days good time, I find that the charge was

properly made, prosecuted and the loss of good time did

not result from any violation of any constitutional rights

of the Petitioner.

On or about January 7, 1969, the Petitioner was charged

1 it charges Katof the Petitioner, with

- Containing derogatory statements about

of this institution, and making state

— diary about his sexual desires towards Miss

65a

District Court Opinion (August 18, 1970).

would appear that this nmate would force his attentions

a de pleaded guilty to it and that the judgment was that

er wafined i in segregetion, without a stated time limita-

— — the Petitiorer from his appearance, gentle

demeanor, background, interest, does not impress the

Court. I find that there is no rule or regulation of any of

* institutions of the State of New York that prevent the

Veping of a diary. I find that this diary was commenced

the prisoner’s first incarceration, which I believe was

Sing Sing; that portions of the diary were taken with

2 Sing Sing to Dannemora, from Dannemora to

Haven State Prison before they were confiscated.

that the prison Officials subject all entering inmates

8 u careful scrutiny in addition to their persons, to the

gings with which they come. The officials at all of the

institutions at which these diaries were maintained knew

the diaries prior to the time that they were confiscated

mi the time the Petitioner was charged with their main-

lance as a violation. There is no evidence that the con-

a ol the Petitioner's diaries was in any way publicized

im or published among the prison population. The

Vording in the diary on the basis of the proof in this case

mastituted nothing more than the recording of the

bughts of the Petitioner. The Prison Board, in consider-

0 the lost good time assessed for infractions, considered

otal of 160 days plus 28 days not earned. The 28 days

earned result from the inability of a prisoner to earn

Hod time under certain conditions, such as being sent to

Wgregation or keep locked, I believe, as a disciplinary

ure. Of the 28 days the Petitioner lost on ~~"

66a

District Court Opiniow (August 18,1970).

charge made on January

denced by Respondents’.

and the 30 days

an entry headed 1-9-69 Van Vlack Writ and Dep. Comm

67a

District Court Opinion (August 18, 1970).

2 is no evidence that the diary or that portion of it

tin to the derogatory remarks about Deputy Commis-

0 Cain in which he was ealed ee in the diary, was

1 i to any of the prison population.

2. O'Brien: Would you mind making a finding with

ject to the fact that employees, correction officers of the

jon, did however read this information?

e Court: Yes, I so find, and L. will give you an oppor-

ity when I am through to supplement the findings.

the important thing with reference to calling the Deputy

missioner a creep, however, is that there was no ref-

nee to that in the report to the Commissioner, that is,

lat is where the confusion between interpreting the in-

's record card and the individual disciplinary action

reuant to the judgment relating to the charge of Jan-

7 as indicated in Respondents’ Exhibit G, the Peti-

zer was confined to segregation for approximately two

mnths; that as a result of the two-months confinement in

81 eg tion, the Petitioner suffered a loss of twenty days

d time.

I may be repeating myzelf, but at the risk of doing so,

n Board met on or about February 11, 1970 and

81 1 100 days out of 188 days of good time tentatively

der eee eee They stated as their rea-

Continuous disciplinary reports. See over.“ I find

. ———— —

dle that while the reason is terse, it is adequate to

yise:the Commissioner of the reason for not restoring

sof the good time, or for restoring that part that was

I think that covers the factual situation in the case.

r counsel have any suggested amendments or addi-

: te proponed ode Ft the dings nT hae J

—

68a

District Court Opinion (August 18, 1970).

Mr. Michaels: No, your Honor.

Mr. O'Brien: . 75

The Court: ere Now T am going to the Conch

sions of Law: 822

. dations ef: the-adtion pirebent tot

I e ee eee Re

1651 and 2241, ete.

— Ming ‘asnieand with: the Liberality

which a pro se petitioner in prison is entitled. I regard i

as a petition alleging a violation of his civil rights and

asking for writ of habeas corpus as incidental to the @

forcement of any judgment to which he might be entitled

Due process, of course, is related to the cireumstanca

concerning which it is applied. In the case of prisoner,

recognizing the necessity of the authorities to maintain

discipline, recognizing their expertise and recognizing th

desirability of avoiding interference with their administra.

tion of the prison system, the degree of due process to he

applied is of a minimal nature. I feel that the procedural

due process under the circumstances, on the basis of th

evidenee T have heat was sat established by the Petitions

to be insufficient. -

However, regardless of We umount of dus process,

which he is entitled, a minimum wonld require that he no

be punished for acts which are not a violation of any prison

rule or regulation. I am satisfied that the rules and regu

lations that govern the management of our penal institu

tions have been drawn by experts and have been drawn in

sufficient detail to cover in some manner any act which

would be disruptive of the good discipline, management and

purposes of the institution, and when the respondents fail

to point to any regulation which is violated, then the person

has not been afforded due process under that charge.

In addition, the writing in a diary, unpublished, to my

mind is little different than thinking thoughts, I can’t con-

69a

District Court Opinion (August 18, 1970).

‘ive of the thinking of any thoughts being the basis of

Wisciplinary

none—segregation

—————

under the decided cases cruel and unusual punishment. As

sult, the twenty days that was lost by the Petitioner

from the segregation, that was taken from him in

4 n that the charge concerning writing deroga-

' — in an improper and derogatory manner about

pommissioner Cain, and for which 30 days lost time was

en, violates the Petitioner’s constitutional rights to due

cess and equal protection of the law.

T conclude that the Petitioner is entitled to a judgment

irecting the respondent Commissioner to restore the 90

lays lost time—

Mr. O’Brien: It has already been restored, Judge.

The Court: I am aware of that, to restore the 90 days—

. O’Brien: May I ask the purpose of the direction:

The Court: I think it will become clear if you permit

to finish.

ir. O’Brien: I am sorry.

(The Reporter read back the last paragraph as above

pet,

The Court: 5 from the charge set forth in

Pespondents’ Exhibit G and to restore the 20 days lost time

hich . from the two months in segregation imposed

700

District Couct Opinion (August 18, 1970).

as punishment for the charge set forth in Respondents’

Exhibit d and for the 80 days loot time imposed as arora

cut ‘wad titlltled ———— time-s

Mr. O’Brien: The Court please, it is not a determination

of the Commissioner, it is 4 determination af the Prison

Commutation Board.

Tho Court: A is that’ they. merely

recommend to the Commissioner.

Mr. O’Brien: No, they do not, the Prison Commutation

Board makes the determination and merely sends in a

report giving reasons to the Commissioner for such deter-

mination. It is not a recommendation.

The Court: Then I will phrase the judgment—the re.

spondents or the officers or agents acting under their au-

thority should be directed to correct the records to reflect

the corrections in the loss of good time made in these con-

clusions, In doing so, it is understood that the respondents

have already granted to the Petitioner the 90 days relating

ee Exhibit G—is

that your position? ek

Mr. O’Brien: Well, I don’t

what do you mean?

The Court: I mean it is your position that he shouldn't

be credited with the 90 days twice? .

Mr. O’Brien: My position is the Court is ruling on some-

thing here which doesn’t require a ruling.

The Court: I don’t want to give him credit for time

he didn't lose twice. Now, is it your position that he

already, by action of the Prison Board, received credit f

the 90 days lost time!

Mr. O’Brien: Tes, your Honor, in fact in his petiti

he asked for a maximum of 40 days, and the Court here i

ruling on 90 days, and the proof is undisputed that thi

with the Court’s—

Tla

District: Court Opinion (August 18, 1970).

0 days that a disciplinary officer imposed, was wiped out

‘Bye Prison Commutation Board.

he Court: All right; if that is the position of the State,

“of the respondent, then I don’t want to confuse the records

“gr give them credit for it more than once.

Mr. Michaels: Your Honor, just so—I conferred with

Mr. Katzoff, I believe we could stipulate to that.

The Court: All right, stipulate to what?

Mr. Michaels: That we are talking about the same time

Gist tins already been restored to him.

che Court: All right, if it has been restored it has

‘been restored and that is so stipulated?

Mr. Michaels: Yes.

The Court: All right. So that it is stipulated then that

‘the only good time in issue here is the 20 days of lost

good time resulting from the confinement in segregation

‘tad the 30 days imposed—well, it wasn’t 30 days imposed

in the conspiracy—the 30 days imposed in relation to

Commissioner Cain.

. Michaels: That is the position of the relator, your

Honor.

he Court: Is that correct? If there is any question

wont it, read the statement back.

BP 22 5 Reporter read back the above statement as re-

06 led )

1 O'Brien: I believe that’s right your Honor, 30

Mays that was imposed upon him for writing these derog-

ory remarks about Commissioner Cain, that was a pun-

ish wherein 30 days lost time that he had conceivably

alr earned was taken away from him.

2 The Court: All right.

Mr. O’Brien: And since the 90 days, the other punish-

80 far as good time is concerned that was taken

away from him, was 90 days for this other activity, com-

ion, I believe, that having been restored, the only

720

District Court Opinion (August 18, 1970).

other point in issue would be the 20 days that he lost as

the result of being in segregation for 60 days and not

The Court: So what is im issue then is the 20 days,

the 90 days and the 30 days; that would be a total of 140

days, and the State’s contention is that they have already

credited 100 days against that? . ee

Mr. O’Brien: And that has been stipulated to, I believe.

The Court: That has been stipulated, is that correct?

Mr. Michaels: We stipulate to the 90 days believe

110 came in as something else, I think the 10 days was

picked up from something else. 5 4

The Court: That is the 90 and 20, it is 110.

Mr. Michaels: I don’t have the Exhibit in front of me

I recall 90 and 10 having been restored, I don’t remember

where that 10 days was restored from. .

Mr. O’Brien; That was the one making the pass, on

which: there is no dispute, so he got the benefit of that

without asking for it. 1

Mr. Michaels: I agree with your Honor. I don't agree

on the exact arithmetic.

The Court: I don’t want any equivocation, I want to

know what is stipulated so I can draw conclusions. As

I understand it now, it is stipulated that the lost time in

question is the 20 days of lost-time resulting from the

segregation, the 90 days of lost time resulting from the

charges of Exhibit d and the 30 days of lost time resulting

from the charges in Exhibit D, which make a total of 140

days. That 100 days have been credited, leaving 40 days

at issue, is that correct? = : ‘

Mr, Michaels: Tes, we agree with that. i

The Court: Is that the stipulation now?

The Court: I am not trying to make the stipulation, I

—

73a

District Court Opinion (August 18, 1970).

(Mr: O Brien: Actually, Judge, I am afraid you get a

far aſield here, because as far as the restoration, if

irt is relying on this Exhibit here, the 90 days that

restored to him on the back here includes within it the

ze of writing a diary containing derogatory remarks

ntaining . statements about the administra-

‘of this institution, and so forth, and it is 90 days.

low that fits the Exhibit G and it fits the warden’s card.

That 90 days is no problem.

Ar. O’Brien: Of course the State’s position here is

hat these mere notations on the back of this Exhibit here

not have the force and effect of these disciplinary

mne Court: That is exactly—

Mr. O’Brien: It is merely a notation made by some

erk to total up the time.

he Court: That is exactly the finding I make. I find

iat this is an error because it doesn’t correspond with

pecific charges.

Ar. O’Brien: But our position is that even if it is a

prical error it isn’t such an error that the Court should

leider in arriving at its determination with respect to

iether or not this individual has been afforded his rights

Wer the Constitution.

Court: I am not, except that by putting something

he back of this slip—for instance, the brother, the

@iarge relating to the brother is recorded on the back

this Exhibit as 30 days. Now, I find as a fact that there

no such penalty imposed in relation to the brother.

T4a

District Court Opinion (August 18, 1970).

The Court: No, my determination is not based on that

Mr, O’Brien: Not upon the question of rights.

~ Mr..O’Brien: It would seem the other way to me.

The Court: Just the oontrary. My determination is

District Court Opinion (August 18, 1970).

| Mr. OBrien: But it is this same charge or the punish-

at therefor that was forgiven in toto, that is why

ik the Court need not make a determination.

eee rene determination.

. O’Brien: This I don’t understand.

gurt: Well, I am not concerned about that. What

pncerned about is whether or not we have got a

a here of any Kind es that 1 know what we are

ifr. O'Brien: I would be willing to stipulate that insofar

is petitioner is concerned, the only thing that he

ls deprived of in respect to time that he was entitled

rn would be a period of 30 days and a period of 20

5 all I can see, and I would be willing to

I won’t stipulate that he should

: No, Well, you are saying exactly what I

saying right along, 30 and 20 is 50, not 40.

g are asking me for a stipulation.

e 90 Buyé'ot good

.. .

sined in Exhibit G, and in addition, 10 days of good time

uch was taken away as a result of a charge on or about

1, 1968 of making a pass in the visiting room,

if pas: is that the State’s contention?

. O’Brien: That's correct, your Honor.

a Court: All right. Then that clears the situation

ow Ti ta tt het er oo vil

District Court Opinion (August 18, 1970).

(The Reporter read back as directed.)

The Court: All right, now change that and take that ou

a judgment requiring the appropriate officials to recomputt

his lost or his good time and conditional release date

by giving him credit for the 20 days and the 30 daj:

hereinabove referred to.

In determining that release date, the authorities ani

respondents are not to be bound by an apparent error thal

was maile in caleulating his release date as September?

after giving him 100 days restoration of good time.

The findings of fact should include a finding that th

Prison Board determined that the revised release date vn

September 2, 1970. This was an obvious error in com

putation. The revised date, according to the testimony

should have been September 12.

District Court Opinion (August 18, 1970).

any errors, but to have the authorities compute a correct

release date based on the credits to which the Court has

‘found the prisoner entitled. According to the Court's

mputation, by restoring 20-days good time referred to

M -OBrient I think it is quite obvious.

~ Mr. O’Brien: I believe that is correct, your Honor, and

en assuming that the 10 days was placed back on.

mhe Court: I am assuming that.

Mr. O’Brien: Tes, the conditional release date would be

de first week in August.

The Court: Some time early in August, yes.

Now let me ask you, itis apparent from what I have said

a judgment should be entered directing his release,

‘is, on conditional release subject to the provisions of

be conditional release forthwith. Now I am appreciative

3 8 fact that you just can’t—I assume there is some kind

T processing that has to be done. Now, can that be com-

i by tomorrow!

sion held off the record.)

» Court: All right then, I will find, I will adjudge

he is entitled to a judgment under which he is entitled

is release forthwith, the judgment to be stayed for not

ue than 2 days to give the prison officials the opportunity

bax > through the necessary processing.

wi prepare an order right now and have it served on

ja. That is what I propose doing. I wouldn't want you to

20 t otherwise.

aa, are there any suggestions in relations to the findings

onclusions !

Bt OBrien: I would like to take an exception.

Court: You are given an exception to everything

Thave said from the minute I opened my mouth. You have

‘Bot an exception to everything I said.

—

4 Te

Diatrict Court Opinion (Avigust 18, 1970).

District Court Opinion (August 18, 1970).

Mr. O’Brien: And even conceding that prison employees

‘Who may see this, andi whose morale may be affected by it,

“for instance, a correcition officer may come across a diary

‘Which he might have) to look into for security purposes,

‘The Court: I dom’t think I have any such evidence.

“Whe only evidence I have got is that they did look at it.

oo I don't wish to try the case over, but—

he Court: I made the finding—now a minute ago you

were talking about tine recording device, that is disposed

because it was moott.

Mr. O’Brien: The» bringing of the diary is moot, that

as my point.

The Court: No, it isn't, because that related as well to

Con Cain. There was an addition of 30 days.

Ur. O’Brien: I weould like to request the Court for a

stay to enabble the respondents to apply to the

Second Circuit for a sstay.

wn he Court: I will sstay it for 2 days that I have stayed it

it order to permit thee prison authorities that is, today is

Tuesday, it is stayedi until Thursday noon to permit the

prison authorities thee opportunity to process the prisoner

get him on parolee.

oe O’Brien: Wovuld your Honor be willing to give us

ttl Thursday noon: to make application to the Second

Rrouit for a stay?

©The Court: I don’’t think you need my permission, but

fean’t see any needd for a stay. The man is going on

role, you can alwayys pull him back.

‘Mr. O’Brien: Judage Motley stayed her decision.

‘The Court: I don’t think Sostre was ready to get out.

don't think he will bbe ready to get out for a long time.

“Mr. O’Brien: In aany event we may apply to the Second

The Court: Certaiinly. If a judge of the Court of Ap-

Wels teen this orders shonld be stayed, there is nothing t

80a

District Court Opinion (August 18, 1970).

prevent you from getting a stay. As a matter of fact, I am

not a8 sensitive as the prison authorities, you can do it and

call me a few names at the same time. 4

Mr. O Brien: We wouldn't do that, bat I am wondering

if we would have an order to go to the Second Cireuit with

he Court: I don't know about that. He is on parole

Suppose it was September 2, you would let him out and he

would be on parole, and if he violated it you would get him

back. If the judgment is to be stayed, I think you have

time enough to get it. In any event, I will treat this as u

application’ for a stay and it is denied beyond the time

ted. : 9

Now, gentlemen, if I can impose on you for just a few

minutes 1 will go in Chambers and dictate a judgment 80

that—this will be a very short judgment.

Mr. O’Brien: Like a writ of habeas corpus, I suppose.

The Court: It will be a direction and a judgment and

direction so that the officials, so that the warden will have

(Discussion held off the record.)

The Court: Here's what you can do on the exhibits

Let it appear that the attorney for the respondent and

prison officials have asked for the original records. I have

xeroxed copies which are a little better than the wet copies

that you have. I will substitute those for the originals

with the understanding that if the originals are needed in

the Court of Appeals that they will be supplied, of course.

(Thereupon, a short recess was taken after which the

The Court: Let the record show that I am handing to

the Clerk for filmg an original judgment signed by the

Court in this matter, together with a signed copy for filing

with the Clerk’s office. |

81a

District Court Opinion (August 18, 1970).

The Clerk is directed to file the same. I also have copies

or counsel. I want a copy for Mr. Grattan, I want a copy

ie Petitioner, 3 additional copies, and I ask you to

ertity them and then deliver them to the parties now.

fat should take care of your requirements, Mr. Grattan.

_i will direct the Clerk to serve a certified duplicate origi-

wl copy of the decree on Mr. Grattan, certified copy on

counsel for the respondents and a certified copy on the

Wusel for the Petitioner for the- Petitioner's use.

Let the record show that the service was done in accord-

ance with the Caurt's direction, and we stand adjourned to

‘This is to certify that the foregoing record is a true and

wourate transcript of the proceedings had at the time and

ola noted in the heading hereof.

Martm L. 3

Official Reporter

United States District Court

Northern District of New York

82a

attorneys, and the court having dictated the findings of

fact and conelnsions of law on the record, and having ö.

rected that they be transcribed and filed with the Clerk a

Oxperen, Apsupczp and Donau that the respondents

restore to the petitioner upon petitioner’s records the fol.

lowing good time in addition to the 100 days restored by

the prison board:

1. Twenty days of lost good time resulting from being

placed in segregation for à period of about two month

commencing on or about January 8, 1969,

2, Thirty days of lost good time resulting from charge

contained in respondent's Exhibit D, dated January 9, 1963,

relating to the maintenance of a diary, and it is farther

Oxpznep, Ansupcsp and Drop that the respondents

correct the records to indicate the conditional release date

of the petitioner in accordance with the restoration of the

above good time, and it is further

Oxpznep, Apsupozp and Denz that the respondent §

John T. Deegan, Warden of Auburn State Prison, nov

designated as Superintendent of Auburn Correctional Fa

cility be directed to release the petitioner from said insti

tution or facility pursuant to the statutes, rulings, and regu

lations governing the release of an inmate on conditional

release forthwith, and said release is stayed until not later

83a

Order of August 18, 1970.

than noon August 20, 1970 to permit the proper and neces-

eee of said petitioner’s release.

S/ Epmunp Post

United States District Judge

Dated: August 18, 1970, Auburn, New Tork

Be “T certify. that

rir bi BBE b APPEALS

7 Fos Tax Bre Cmour

No. 255— September Term, 1970.

(Argued September 17, 1970 Decided March 29, 1971)

Docket No. 35800

Unrrep Srarzs or An, ex rel.

State ‘of New York, and Jou» T. Dezcan, Warden d

the Auburn State Prison, Auburn, New York,

Respondents-A ppellant.

Farenviy, Smrrn and Hays,

Before:

mund Port, Judge, ordering under 42 U.S.C. § 1983 (1960

the reinstatement of 50 days good behavior credit with

drawn from appellee while he was a prisoner in a Nev

York State prison and directing his release in accordant

with the laws and regulations of New York.

Reversed.

(| +

85a

‘Decision of Court of Appeals Panel Reversing

District Court.

igh Haman Scuwartz, Buffalo, New York (Lee

er Michaels, Auburn, New York, on the brief),

a for Appellee.

i Lovis J. Lerxowrrz, Attorney General of the

. State of New York Timothy F. O’Brien,

2 a Assistant Attorney General, on the a

1 Pe . for e ‘EE

Bars, Circuit Judge:

This is an appeal from an order of the United States

: Distr ct Court for the Northern District of New York in

An action brought by a state prisoner under 42 U.S.C.

Z . 83 (1964). Following an evidentiary hearing, the dis-

= 3 found that the loss of 50 days of appellee's

12 arned good behavior time was unconstitutionally imposed.

The appellant Commissioner of Corrections of the State of

w York was ordered to credit the 50 days of good be-

‘ ‘hey Mor time to appellee and appellee was ordered released

in accordance with the laws and regulations of New York.

We reverse the judgment of the district court.

Appellee Katzoff was sentenced to three years imprison-

mt following his conviction in a New York State court

122 possession of a dangerous weapon. Under New

Zor: Correction Law § 803 (McKinney 1968 & Supp. 1970)

penal Law §§ 70.30(4) (2), 70.40 (1) (a) and (b) by Me-

Linne y 1967), prisoners are allowed to participate in a con-

: ito nal release program by which they may earn up to 10

ty iy per month good behavior time credit toward reduction

bf the maximum term of their sentences. Optimally, & pris-

ber 80 electing may be released under the supervision of

Board of Parole after having served approximately

othirds of his maximum sentence (i.e., 20 days out of

sary 30). Good behavior allowances, however, may be

86a

Decision of Court of Appeals Panel Reversing

withdrawn at any time in whole or in part for bad be

havior.or for violation of institutional rules. N. Y. Corree

7 Deputy Warden Gilligan

x good time for these diary en-

f a diary (a fact conceded by the State) and that punish

ment for entries in a private diary violated appellee’s oon.

stitutional, rights to due process, equal protection of the

„ and freedom of thought. The court also found that

i segregation for writing in his diary

punishment and ordered that

87a

Decision of Court of Appeals Panel Reversing

District Court.

less constitutional arguments, for we find that appellee

has failed to exhaust his state remedies as required by

% U.S.C. § 2254(b) (Supp. 1959-1967) and therefore re-

verse the decision of the district court.

Although the district court stated that it regarded ap-

pellee’s petition as alleging a violation of his civil rights

id asking for a writ of habeas corpus only as incidental

ene of ee might issue, we

that appellee in seeking release from custody was in

» applying for a writ of habeas corpus. There is no

a for limiting the concept of habeas corpus to attacks

a —. e

3 is d from a failure to allow release according to

1 from a penal custody is not an available

en the Civil Rights Act.” Peinado v. Adult

of Department of Corrections, 405 F.2d 1185,

§ (Oth der) ort. denied, 395 U.S 968 (1969); Johnson

” , 317 F.2d 418, 419-20 (5th Cir. 1963). In our

008: DD McGinnis, Docket No. 34567,

I — suntan Ws

mer, we stated that the ‘‘present application, since it

u release from custody, is in fact an application for

a ben corpus.”

As an application for a writ of habeas corpus, the peti-

nis eren because there is no allegation that appellee

d his state remedies in accordance with the re-

of 28 U.S.C. §$2254(b) (Supp. 1959-1967).

ff has made no application whatsoever to the state

and there is no showing that an adequate state

iiedy is not available. There is no reason to believe that

ther New York prison officials may impose the disci-

in question here under New York law (Correction

w §236 (McKinney 1968) ), and the New York and Fed-

i Constitutions. Appellee's argument that the proxim-

88a

5 Distri Court.

ity of the prisoner's release renders state processes in

effective to protect his constitutional rights assumes with

out justification that state oburts will be less responsive

J7%%%FFFCC nee iei aedacs! note: There is

no authority for the proposition that the proximity of re

FC ene

pere er a het te Agel

Ane ice .

res, Grant Judge 8 :

‘dissent. Sp e ii ber a l right

ation for failure to exhaust state remedies because of the

requifement of 28 U.8.0. 4 2254(b). The appel

lant is not ng to s the validity of his sen

33 Walker, 817 F.2d 418 (5 Cir: 1963)

y, 406 F.2d 1185 (9 Cir. 1969).

‘of this court in Sostre .

„01 1971), squarely holds

ut ‘where a state prisoner is deprived of statutory gool

time as @ penalty for his conduct, at least in a case in

volving rst amendment rights, the federal courts have

the power to order that it be restored. To make the avail.

ability of this-remedy turn on the fortuitousness of the

n timing in filing bis section 1983 claim makes no

sense in terms of either logic or judicial efficiency.

A civil ‘rights plaintiff is is ‘entitled to choose a federal

forum. “If relief such en restoration of good time earned

of ‘entitling’ him to immediate

release, it should not deprive him of thet choice McNeese

„ Board of Educatton, 373 U.S. 668, 672 (1963); Bell v.

ng SH 1.8: 618, 68 (1946); Domico v California, 38

US. 416 (1967); Hancdck v. Avery, 301 F. Supp. 786

e 821 F. Supp. 68

Nett e e

89a

Denial of Petition for Rehearing.

tic for a rehearing having been filed herein by

consideration thereof, it is

that said petition be and it hereby is denied.

HxxkT J. Fatenpiy

Henry J. Friendly

Pav R. Hays

Paul R. Hays Circuit Judges

ent. I would grant the petition.

J. Joserx Smira

U.S.D.J.

90a

John Kritsky

Docket Entries.

(UNITED STATES DISTRICT COURT,

Norrazen Distaicr or New York,

69 Civil 276)

DATE

1969 PROCEEDINGS

Aug. 11—Filed Complaint and Petition for a Writ of

Habeas Corpus

Sept. 3—Filed Affidavit of Poverty

Sept. 8—Filed Memorandum-Decision and Order—Foley,

D. J. ing application to proceed in

forma pa particularly the service fee

which he is unable to pay. It is So Ordered

—James T. Foley, U.S.D.J.

Sept. 8—Issued Summons—1 Orig. and 6 Copies and de

livered to U. S. Marshal for service

Sept. 16—Filed Notice of Motion for an Admission to Bail,

Affidavit in mig. gen of Motion for Plaintiff.

Petitioner in nest for bail and Aff.

davit of Service by Mail

Sept. 18—Filed Application for Bail

Sept. 18—Filed Memorandum-Decision and Order—Foley,

D.J. returnable October 6, 1969 at Albany,

N. T. The Clerk of the Court is directed

to add the motion to the motion calendar

for that date. It is So Ordered—James T.

Foley, U.S.D.J.

Oct. 2—Filed Summons served September 29, 1969 on

John R. C Deputy Commissioner of

9la

John Kritsky Docket Entries.

PROCEEDINGS

man of the Board of Parole, New York

State; served September 29, 1969 on John

R. Caine, ty Commissioner, New York

State t of Correction; served

September 30, 1969 on Frank Ryan, Head

Clerk for J. Edwin LaValle, Chairman of

the Prison Board

Oct. 6—Piled Affidavit of Defendants-Respondents in

Oct.

Oot.

Opposition to Motion for Bail

6—Filed Petition for bail ete.

6—Motion for Bail. Decision reserved

16—Filed Affidavit of Service of Affidavit on John

Kritsky

16—Filed Answer of Defendants —

16—Filed Affidavit of Service of Answer personally

on John Kritsky

29—Filed Memorandum-Decision and Order—Foley,

D. J. denying motion for bail. An eviden-

tiary hearing is to be held November 14,

1969 at Albany, N. Y. at 10 A.M. Richard

A. Kohn, Esq. is appointed as counsel for

plaintiff-petitioner. A Writ of Habeas Cor-

pus Ad Testificandum will issue for produc-

tion of — — at the hearing.

It is So Ordered— James T. Foley, U. S. D. J.

29—Writ issued and delivered to U. S. Marshal for

service

6—Filed Writ of Habeas Co Ad Testificandum

served November 4, on Harold Cor-

coran, N Warden for J. Edwin LaVal-

lee, Warden ;

14 —Filed inquiry re motion pending application for

bail (phone HPK)

925

John Kritsky Docket Entries.

DATE

1969 PROCEEDINGS

Nov. 17—Trial. Return of Writ of Habeas Corpus~

"4 i Mr. O’Bria

e N. ene held November 14

1969 at Al

30—Filed Memorandum on Behalf of Plaintiff

. 11—Filed Stipulation to ee, Ae. erron

in transcript of hearing, and letter fron

Judge Foley re same

Feb. W Order correcting Transcript of Hearing

ley, DJ, and copy of Judge Foley’s letter

7 N 10, 1970 re same

June 15—Filed Plaintiff’s Exhibit No. 1 (State of N. J.

‘ of Correction Notice of Ele

tion Under Correction Law Section)

June 15—Filed Plaintiff’s Exhibit No. 2 (Clinton Prism

Interdepartmental Communication)

June 15—Filed Plaintiff’s: Exhibit No. 3 (Clinton Prisa

Interdepartmental Communication)

June 15—Filed Plaintiff’s Exhibit No. 4 (Prison Comm

tation Board Conditional Releases 10/68)

June 15—Filed Plaintiff’s Exhibit No. 5 (Prison Comm

tation Board July 21, 1967)

93a

John Kritsky Docket Entries.

DATE

1970 PROCEEDINGS

June 15—Filed Defendant's Exhibit B (Inmates’ Rule

Book)

Jone 15—Filed Defendant’s Exhibit C (photostatic copy

. of letter dated October 10, 1968 to Hon.

Paul D. McGinnis, Commissioner of Cor-

— rection from J. E. La Vallee, Warden

June 15—Filed Memorandum- Decision and Order Foley,

aie D.J. the Commissioner of Correction is di-

ca rected to restore the behavior time

credit of 590 days to plaintiff; such resto-

ration will entitle plaintiff to release forth-

with to parole supervision under his Con-

ditional release election. If plaintiff is not

released forthwith, the attorney for plain-

tiff shall submit a writ of habeas corpus to

effect the release. All exhibits shall be filed

wes We in the Clerk's Office at

i udgment shall enter granting the

relief to the plaintiff particularly set forth

in the above paragraph. This decision con-

stitutes the judgment. It is So Ordered—

James T. Foley, U.S.D.J.

2—Filed Notice of Appeal of State of New York

(UNITED STATES COURT OF APPEALS,

94a

Jobe Keitshy Docket Entries.

Szcomp Cmovrr,

Docket No. 35253)

PROCEEDINGS

Received record (original papers of distri

court)

Filed record (original papers of district cour!

Filed order removing original record, appellay

Filed order extending time to file appellant’

brief & appendix to 10-1-70

Filed appendix with proof of service

Filed brief, appellant with proof of service

Filed: motion for assignment of counsel wi

proof of service

Filed order granting motion assigning Ric

A. Kohn as counsel for e *

Filed order adjourning argument of appeal

1-471

Filed brief, appellee

Filed supplemental brief, appellee

Filed volume of exhibits (4 copies)

t heard (by: Lumbard ChJ, Moore!

Smith, CJJ)

95a

John Kritsky Docket Entries.

PROCEEDINGS

Filed order re in judges of the court and

the respective panels who have

ior status will hear oral argument

11-4-71 at 2 P.M. Room 506; if counsel de-

sire to file additional briefs on these sub-

jects these ‘should be served and filed by

1-1-71 (filed in 34567) (& in 35300)

Filed supplementary brief, appellee with proof

of service

Filed brief, appellants (on rehearing) with

proof of service (Filed in 34567)

Argument heard (by: Friendly, ChJ, Water-

n, Moore, Smith, Kaufman, Hays, Fein-

berg, Mansfield, Mulli Oakes, & Tim-

bers, CJJ) (& in 35253 and 35300)

Filed itemized and verified bill of costs

Issued Mandate (judgment)

Filed statement of costs

Issued statement of costs

Original record returned to district court

2. The matter 1 ebe exclusive of interest and

costs, exceeds. the sum of Ten Thousand ($10,000) Dollars

8. Relief is sought herein for petitioner’s release, pur

suant to a Writ of Habeas Corpus from unlawful custody

in violation of plaintiff's constitutional rights; for a De

claratory Judgment pursuant to 28 U.S.C. F 2201 and 228

and for preliminary and permanent injunction pursuant

to 28 U.S.C. § 1651 and 42 U.S.C. $1983.

in their official capacity :

97a

Complaint and Petition.

sul D. McGinnis, New York State Commissioner of

a F. New

sharged with the duty of directing and supervising

vitie s of the defendant, Department of Correction,

dministers the prisons and other correctional insti-

and programs of New York State, pursuant to

‘ork Correction Law (hereinafter “Corr. L.”) §§ 5,

2 et seg. The Commissioner of Correction is also

red to appoint the wardens of the various state

inaluding Clinton State Prison, who serve under

eral direction. Corr. L. §§ 234, 803 authorize the

wsioner of Correction to formulate rules governing

nce or disallowance of reductions in prison terms

od conduct and for efficient and willing performance

ss assigned to... (prisoners) in prison or peniten-

13 referred to as ‘good befavior time

‘Bawin LaVallee, Warden of Clinton State Prison,

person having direct and immediate custody of the

tiff. Parcnant to Corr. L. §§ 235, 803, the defendant

0 e is charged with the duty of acting as chairman

he “Prison Board” of Clinton State Prison, which de-

s allowance or disallowance of good behavior time

en d. Oswald, whose principal office is located

Alb ny, New York, is chairman of the defendant New

State Board of Parole, which is empowered to deter-

4 the qualifications of prisoners for release on parole

255 to Corr. L. § 210 et seg. and to supervise prison-

» have been released on parole or under the ‘‘statu-

ory” or conditional release“ programs established by

8 220, 234, 808, Penal L. §§ 70.30, 70.40, and de-

in greater detail in paragraphs 6 and 7, infra.

Complaint and Petition.

4 Prior wo September i, 1967, prisoners serving

determinate sentences in New York State Prisons wey

eligible to participate in the “Statutory Release”

serving an indeterminate’ sentence may earn up to {

JFF a2

mrengerr teamed gr ww teed sou lee

Fre ager road nce Roh gt guns tegen rect:

the conditional release program and waived his right

under the statutory release program, above described.

4 Plaintiff did tn fact’ 50 elect to participate in Ge

conditional program and waived his rights under th

statutory release program.

9. By virtue of the foregoing, simatic

fully qualified for and entitled to “Conditional Release’

on February 22, 1909. Plaintiff is ‘now spproximately:t

error orf» sandstone gece brea i

10. The derendants La Valles aud MeGinnis, in violatia

of plaintiffs constitutional rights to due process of lav

and against cruel and unusual punishment have denied

cancelled and disallowed good behavior time credit toward

99a

Complaint and Petition.

conditional release, amounting to 939 days, to which plain-

tif is entitled, and have thereby arbitrarily and capri-

igusly extended plaintiff's prison term to October 1, 1971.

“Ii, The defendants LaVallee and McGinnis threatened

mola y and unjustly imprison and detain the

ti ee eee

ation of plaintiff's constitutional rights under the Fifth

x and Fourteenth Amendments in that such denial,

cancellation and disallowance of good behavior time credit

— effected by the defendants LaVallee and Mc-

2 —

Without affording plaintiff notice of any charges or

2 r hearing at which plaintiff would have the assistance

of “counsel and the opportunity to confront witnesses

gainst him and present evidence on his own behalf; and

pspecification of the grounds and underlying facts upon

rhe defendants’ determination was based;

61) Without substantial evidence or even a basis in fact

port the determination; and

Gili) Have established a discriminatory policy against

tas old law prisoner (those sentenced under the old penal

tole of New York State), of which plaintiff is ideally

presentative; have subjected plaintiff to repeated pun-

ent for the same acts; have subjected plaintiff to a

double-stands rd of punishment; have deprived plaintiff of

Au ‘protection from repeated punishment, while in con-

mast, the new law prisoner (those sentenced under the

lew Penal Code of N.Y.S., effective September 1, 1967)

KE from repeated punishment for the same acts.

Bh behavior is afar cry from acting in accordance with

i justice, and fairness; and

Said determination to deny, cancel and disallow

fied time behavior credit was arbitrary and capricious

12. All available and adequate state remedies have bea

exhausted.

13. No prior application has been made for the relid

requested herein.

Waunzrosz plaintiff prays for the following relief:

ior time credit toward conditional release was void illegal

and in violation of the Fifth, Sixth and Fourteent

Amendments for the reasons specified and set forth i

Paragraph 13, supra.

2. Restraining the defendants LaVallee and McGinnis

and their agents from denying, cancelling or disallowiy

good behavior time credit toward conditional release with

out adhering to procedural due process;

3. Issuing a Writ of Habeas Corpus requiring the de

fendant McGinnis to order plaintiff’s conditional releax

from imprisonment forthwith of a corrected computation;

and

10la

Complaint and Petition.

34. Granting such other and further relief as this Court

deem appropriate.

pha By Jokx Karrsxy—#37729

* Box “BR”

227 Dannemora, New York, 12929

ganic is true to his knowledge and experience

ding such unwarranted treatment, and punishment,

ted, and this petition is submitted in good faith, and

u redress of law and protection of the law there-

Joun Kurrskx

Plaintiff-Petitioner pro se

8. orn to before me this

s day of August, 1969.

Fnaxcis A. Ryan,

3 FRANOIS A. Rrax,

~ Notary Public,

* Clinton Co., State of New York.

Commission Expires March 30, 1970.

Defendants, by their attorney, Louis J. Lefkowitz, At

torney General of the State of New York, for an answer

to the complaint of the plaintiff herein, allege as follows:

First Dns

The complaint fails to state a claim sufficient to establish

the jurisdiction of this Court over the subject matter.

Szoonp Dranse

The complaint fails to state a claim against the defend

ants upon which relief can be granted.

Tarp Dsrenss

That any denial, cancellation or disallowance of good

behavior time credit to the plaintiff by the defendants in

connection with plaintiff’s sentence as a second felony of-

fender in the General Sessions Court of New York County

on June 24, 1957 was not in violation of plaintiff's const

tutional rights under the Fifth, Sixth and Fourteenth

Amendments of the United States Constitution nor wa

the same in violation of the plaintiff’s rights under the

New York State Constitution nor in violation of any Fed

eral or State statutes governing plaintiff’s incarceratio

in any prison of the State of New York pursuant to said

sentence,

Wuaesrone, defendants respectfully pray that the com

plaint herein be dismissed.

Lous J. LarxowrrTz

Attorney General of the

State of New York

Attorney for Defendants-Respondents

The Capitol

Albany, New York 12224

(Verified by J. Edwin LaVallee on October 14, 1969.)

By memorandum-decision and order dated September 5,

1969, the plaintiff-petitioner was authorized to proceed in

forma pauperis in order to have served the complaint, for

which he had paid the statutory filing fee. The present

motion to decide is for bail pending determination of the

issue, and was made returnable by me at a regular motion

day, October 6, 1969. There is an opposition affidavit to

the grant of bail filed in behalf of the respondents.

“Phe motion for bail is denied. The power is probably

isherent in this Court, but is rarely exercised. (See U. S.

rel Epton v. Nenna, (SDNY), 281 F. Supp. 388). An

@videntiary hearing which does not seem to meet with any

Wrious opposition from the State is hereby fixed, to be

A in the main courtroom, Federal Post Office Building,

iibany,'N. V., on Friday, November 14, 1969, at 10:00 A. M.

iitorney Richard A. Kohn, 100 State Street, Albany, N. L.,

at my request, has agreed to represent the plaintiff-peti-

joner, and is now assigned as his counsel, A Writ of

labeas Corpus Ad Testificandum has been prepared and

Dated: October 28, 1969

James T. Foxzy,

United States District Judge.

104a

District Court Opinion and Order (June 12, 1970),

James T. Forar, Chief Judge. .

The plaintiff filed a handwritten complaint based ups

the civil rights statutes and petition for habeas corpus i

the same combined form with similar issues as filed ij

gn omy v. McGinnis (N.D.N.¥.—December, 1969) 3

F. Supp. 627, that after trial I ruled upon in favor

Rodriguez. He paid the $15.00 filing fee and thereafter

granted leave to pfoscoute his action in forma paupeti

Attorney Richard A: Kohn, who appeared for Rod: igue

agreed to act as counsel for plaintiff, for which g 3

C ˙ as'dhete to ore

— ——ñ

expenses. Attorney Kohn represented the plaintiff at f

hearing held and submitted a substantial brief in his behal

on the law and facts after the transcript was available

Transcription of the minutes of the hearing unders

ably took some time and caused delay in the briefing. Tw

court reporters in this busy two Judge Court, where r

‘have the flow also of other purely federal and importa

private and government civil and criminal cases as othe

District Courts do, place substantial burdens upon them it

the coverage of our large geographical area to the sam

extent as it does upon the Judges deluged with state pre

oner applications of every kind. Pressures of other wort

that I thought should be given priority prevented on my

part the speedy disposition we try to give State prisoner

applications where immediate liberty may be at stake

However, the filing in this Court of a substantial numbet

of civil rights complaints for every grievance imaginabk

by New York State. prisoners in recent years has slowed

„7

time. However, in my judgment, the other numerous ani

" substantial eases filed in this District Court in bebalf d

important private and governmental interests have the

right to be processed, heard and decided also with reasor-

1050

* Court Opinion and Order (June 12, 1970).

patch. I reaffirm my statements in Rodriguez that

ee y firm belief it would best serve the interest of justice

ed and be sensible if little abstention were

ath rized when proper in the federal courts to allow a

iy yanned and recognized competent State Court system

— these civil rights claims that primarily involve

sterests, problems and concerns (See Wright v. Mc-

387 F.2d 519, at 528, N ur Judge Lumbard con-

AX satisfac P

bs is he n shall be to the transcript of it. In the com-

he ait ruts» gent deren u.

of 939 days good behavior time toward the

release he elected formally for under certain

statutory provisions was adjudged in such man-

to be violative of constitutional rights of due process

i iposing cruel and unusual punishment. (Pl. Ex. 1,

-803(1), N.Y. Correction law (McKinney’s Consol.

5 0. 0 43, 1968 ed.); New York Penal Law, 70.30 (4) (a);

5, (b), (McKinney’s Consol. Laws, c. 40, 1967 ed.).

ie position of the Assistant Attorney General in behalf

1 he defendants i is the same as that taken and offered in

oz, supra. The contentions (1) there is not juris-

“under 28 U.S.C. § 1843(3), as so invoked to enter-

the civil rights claim authorized by 42 U.S.C. & 1983,

4 “that conditional release is in the same category as

e, being a matter of grace to be withheld at will, are

Wered in my Rodriguez writing in relation thereto and

ed to by reference herein. (See also the differ-

be n. parole and conditional release Task Force

ort on Oerrsstian, issued by the President's Commis-

n Law Enforcement and Administration of Justice,

in Rodriguez, I pointed out that New York rulings

y held that discretionary reductions for good be-

tine cannot be arbitrarily withheld. (People ex rel.

hy Deegan (1968) 56 Mise. 2d 567, 289 N.Y.S.2d 285;

2 "=. yk & 2 = — 2 *

106a

District Court Opinion and Order (Jame 12, 1970).

People ex rel. Roy v. Murphy (1962) 36 Mise.2d 501,

503-504; 233 N. T. S. 2d 382). Inasmuch as New York 4

adamant in arguing need for exhaustion of state remedi

and lack of jurisdiction in a problem of this kind ec

ing State Aft/guieh Wadi aMblagultss DineDloseall wcishmalite 15

ally, appeal is invited again to be expedited that may set

once and for all these questions that by now must be rip

for federal appellate review and rulings. Such appell

guidance will be of great assistance to this District Com

in the planning and management of its calendars. (80

Sostre v. Rockefeller et al., 312 F.Supp. 863, (S. D. N. I.

68 Civ. 4058 Motley, J.) decided May 14, 1970).

The challenge of the petitioner who was produced i

Albany on a writ of habeas corpus from Clinton Pris

two hundred miles away, was reduced before the heari

after conference with his attorney from 939 days dis

lowed to 590 days. This good time disallowance was tn.

narrowed to a single episode, unquestionably a serien

one, that océurred in Auburn State Prison during Mard

1962. Two witnesses testified at the hearing, the plainti

who in my judgment was as articulate a witness who con

be heard and who gave his version of the serious incidet

in which he was admittedly involved, and that led to th

judgment of the Principal Keeper set forth in Plainii

. fashion: To eee

| 107a

_ District Court Opinion and Order (June 12, 1970).

ative methods followed by the so-called Prison

tation Board to comply with the statutory review

n when good time forfeiture is reviewed and not

i (Tr. 75 et seq., §§ 234, 235, 236, N.Y.Corr. Law;

OR. R. (Correction—Codes, Rules & Regulation,

). Ryan with a long experience in Prison adminis-

yn evidenced familiarity with all the procedures and

hes as he testified sat when necessary as a member of

lommatation Board and was able to tell the full details

way it actually operates and arrives at decision.

Tr. 96-105.)

—— Kritsky was convicted in the former Court

Gel Sessions of New Tork County of Robbery First

oa May 1, 1957. He was sentenced to an indeter-

. » term of 15-18 years. At the time of sentence, he

abot 22 years of age and has been now more than 13

rs in prison confinement.

‘serious incident referred to previously was described

J ky in his testimony that stands in every respect

entradicted i in this record by other testimony concern-

8 circumstances of its happening. It seems that in

i the prisoners at Auburn in a protest move that

ita! ky said occurred throughout the entire State prison

u in an effort to persuade the New York legislature

nt by legislation ten days off the maximum sentence

2 duld enable some prisoners to gain earlier release.

tr. 8-29). Apparently, this protest later bore fruit and

legislation came into being (See also People ex rel.

mte v. Warden (1961) 9 N.Y.2d 216, 213 N.Y.S8.2d 55,

IN.E.2d 784). Kritsky characterized the conduct of the

Qners as peaceful and said it consisted only of the pris-

rs Featering and staying in their cells and refusing to

bout to go to their work or other type assignments in

daily prison routine. The protest by their action lasted

Bt one and a half days. The prisoners were warned

if they did not come out of their cells by a certain time

fy would lose one year good time and Kritsky said about

1080

District Court Opinion and Order (June 12, 1970).

ness of this entire affair, no matter how laudable the pu

poses, because it is evident prison discipline and ome

could be in great peril if protest movements, so oom

place and at times upsetting to some in these days, wer

to be given free rein in prison systems where firmness ani

application of quick and adequate discipline is clearly a

essential to safeguard the security of a large prison ani

circumvent the start or spread of possible riot and rebe.

lion. No court would want to interfere with these delicat

—

109a

8 District Court Opinion and Order (June 12, 1970).

The Court: Wait a minute. He said, ‘How do you

‘plead?’ |

The Witness: I said, ‘Not guilty.’

The Court: All right.

‘The Witness: I attempted to speak and he inter-

rupted and said, “That will be all.’ And I replied,

ia <2

He said, ‘Yes,’ »? a

; judgment, this hearing, 3 I accept it as truthfully

bed i by the plaintiff, falls far short of the fundamen-

rness expected of due process requirements, no mat-

need for summary disposition.

endant's Exhibit A, measuring by ruler about 514”

is entitled ‘‘Disciplinary Action.’’ It contains in

abbreviated form the charges against plaintiff, the

tantial judgment rendered against him, and remarks

he disciplinary hearing officer, the Principal Keeper.

remarks without a single reference or elaboration of

kind to person or record concludes ‘‘ Advocated blood-

ied and burning place. There is only a dash in a large

ace before the word guilty which is difficult to accept as

alid admission of guilt by reason of record regularity

| * ew of the flat contradiction by the plaintiff.

| 5 Due process is an elusive concept but there is set-

2 d satisfactory guides to discern its absence or pres-

ee. What is due process depends on the circumstances

it varies with the subject matter and necessities of the

‘@imation. (Moyer v. Peabody (Holmes, J.) 212 U.S. 78,

: 2 ) S.0t. 235, 53 L. Ed. 410). A hearing to accord with

process must be given at a meaningful time and in a

Saningful manner. (Armstrong v. Manzo, 380 U.S. 545,

2 §.Ct., 1187, 14 L. Ed. 2d 62). Under the concepts of

. day, it has been stated the decision maker

n reasons for the determination, indicate the

videnc wee relied upon, and an impartial decision maker is

. (Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011,

10a

District Court Opinion ‘and Order.(June 12,1970).

25 LId. ad 287, 3/23/70)... The right to be heard befor

being condemned to suffer grievous loss of any kind is

principle basic to our society. (Joint Anti-Fascist Com

mittee v. McGrath, 341 U.S. 123, 168, 71 S. Ct. 624, 95 L. d

817). Applying these principles, I am constrained to ruk

there was a lack of due process that resulted in grievous

loss to plaintiff by reason of continued confinement.

and Administration of Justice, at p. 13. I would think

sufficient and fair the four requisites outlined by Judge

Wysanski in Nolan v. Scafati (D. C. Mass.) 306 F.Supp. 1,3

for proper procedure before prisoner such as plaintiff is

subjected to a serious penalty. (See also Landman v. Pey.

ton (4 Cir. 1966) 370 F.2d 135). The ruling herein is also

not to be construed as one to the effect that unrestricted

was not being Try. t rs 8 ay ie pee „

but was sent for another purpose. (Tr. 102). In my judg

ment, the record in this case shows the importance this

Illa

_ District Court Opinion and Order (June 12, 1970).

report of reasons might have in relation to the review by

Commissioner of the disallowance by the Commutation

Board. There is a progress report made by Correction

Officer Burke that evaluates the conduct of the plaintiff

ind his willingness to work attitude in the most praise-

y terms. (Tr. 107, 108.) Some of the terms are that

plaintiff is oourteous, cooperative, well behaved with good

sttitude toward society and authority, who does not need

xtra supervision and was a very exceptional worker. The

sisal directly contradicts the one contained in the let-

ad Warden. Unfortunately, it is established that

this

I Commutation Board ordinarily would not have

progress report of a guard who was in the closest of

contact with plaintiff.

M findings of fact are set forth above. My conclusion

is that the plaintiff in the imposition of the lost time pun-

ishment and segregation was not accorded due process. My

judgment declared hereby is that the disallowance of 590

days good behavior time resulting therefrom is void and

mlawful as violative of the provisions of the Fourteenth

imendment of the United States Constitution. The Com-

issioner of Correction, a named defendant, is directed

by to restore the good behavior time eredit to plain-

tiff; such restoration will entitle plaintiff to release forth-

with to parole supervision under his Conditional release

dection. If plaintiff is not released forthwith, the attorney

for plaintiff shall submit a writ of habeas corpus to effect

the release. All exhibits shall be filed with this decision in

the Clerk’s office at Utica.

Judgment shall enter granting the relief to the plaintiff

parti ly set forth in the above paragraph. This deci-

sion constitutes the judgment.

207

112a

Order to In Bane (July 19, 1971).

Fetitions for rehearing in the first two mentioned cases

were denied by the r. ectiv ‘panels, with Judge Water

man dissenting in the Rodrigues case and Judge Smit

diere n in the Ke sane.” “Doh Wegsstions of

petitioners and at the request of these judges, a poll of the

judges in active service was taken and a majority voted

St eet wad a

A maj of judges in active service has also voted

tis igi Cdadbacitite i Wako Oh tha thicd case abo

mentioned, which involves à similar issue.

In bane proceedings in the three cases are consolidated

If petitioners desire to file further briefs, they may do w

on or before August 16, 1971. If respondents desire to

file further briefs, they may do so on or before September

13, 1971. The in banc court will consist of the judges in

active service on the date of decision along with memben

of the respective panels who have taken senior status

Further oral argument will not be heard unless otherwise

ordered.

Hewry J. Frrmenpiy

Chief Judge

1133

In Bane Opinions and Order (January 25, 1972).

_| “UNITED STATES COURT OF APPEALS,

3 _ For rae Szconp Cmourr.

mber Term, 1970; Nos. 354, 355 and 356

September Term, 1971.

gue to the in banc court November 4, 1971

: decided January 25, 1972.)

Docket Nos. 34567, 35300 and 35253

Ropaicvns, and the Usrrap Srares or America

ex rel. Evcenn Ron,

Petitioner-Appellee,

0 ‘ V.

aot D. MoGnrwis, Commissioner of Correction; RusseL.

warn, Chairman of the Board of Parole; J. Epwix

an, Warden and Chairman of the Prison Board

of Clinton State Prison; New Yorx Sratz Boarp or

Fon; and the New Yorx Starz Deparrment or

* pare Respondents-Appellants.

Bes 2

55 _ Usrrep Srares er rel. Mionant Karaorr,

N 5 Petitioner-Appellee,

. D. MoGurwis, Commissioner of Correction of the

Mate of New York and Jonn T. Dercan, Warden of

y aburr State Prison, Auburn, New York,

Respondents-Appellants.

114

pinion.and Order (January 95, 1972).

b Jou Karrxr, ak Dera, Seer AMERICA

el. Joun Kurrsxy,

amm,

Pius. D. nge geg Comminioner of Crction: 8 an

G. Osw. Chairman of Cake ahi Rader Pd

Laval, Warden of Clinton Sta Prisca: 2 Ya

Mur or Connnorion.

5 4 | Respondents-A ppellams,

Before: : |

| Farmnviy, Chief Judge,

E 2 Moorz, Surrn,

UFMAN ¥8, Fersperc, Mansrie.p,

7 Morziaan, Oaxes and Tr«sens,

Circuit Judges:

is ‘ , *

The District Court for the Northern District of Nev

York having, by order dated December 23, 1969, directed

the release of petitioner Eugene Rodriguez, on the ground

that he was unconstitutionally deprived of good behavior

time credit, in an opinion reported at 307 F. Supp. 62,

and a panel of this court by decision dated March 16,

1971, slip opinions 4745, September Term 1969, having

reversed said order by a divided vote;

The District Court for the Northern District of Nev

York having, by order dated August 18, 1970, directed .

e waren Michael Katzoff, on the ground th

he was itiot of good behavior tine

credit, and this court by decision dated March 29, 1%

46h e, having reversed said order by a divi

Wm — 11 on 18 LAW Mach. No. 5 72

115

Is Bane Opinion and Order (January 25, 1972).

me District Court for the Northern Distriet of New

York having by order dated June 12, 1970, directed the re-

ease of petitioner John Kritsky, on the ground that he

n unconstitutionally deprived of good behavior time

edit, and this court having heard but not decided the

ten appeal therefrom;

his court, by order dated July 19, 1971, having directed

# the appeals in such cases be rgheard in banc, the three

tals being consolidated for argument since they pre-

d the same legal issue, before an in banc court which

wuld consist of the judges who should be in active service

the date of decisions along with members of the respec-

who had taken senior status, and the court hav-

g received further briefs and heard oral argument, it is

that the said judgments of the District Court

be the Northern District of New York be and they hereby

upon consideration of the merits and upon the

rity of Wilwording v. Swenson, No. 70-5308, decided

‘the Supreme Court of the United States on December

7s, Hewny J. Frrenpty.

Henry J. Friendly, Chief Judge

7 25, 1972.

, Chief Judge, with whom Motiican, Circuit

, joins concurring:

; * gh I had previously voted for reversal in these

nit seemed to me that once Wilwording v. Swenson

‘de sided by the Supreme Court on December 14, 1971.

. 8: W. 3277, the proper course for the in banc court

4 Bs efter the orders of the district court without writ-

and to leave it to the State of New York to

possible distinctions by petitions for éertiorari.

116a

In Banc Opinion and Order (January 25, 1972).

requirement sprang, and Dye v. Johnson, 338 U.S. %

(1949), reversing per curiam, 175 F.2d 250 (3 Cir. 1949}

On the other hand, I cannot accept the conclusion that i

such petitions are properly viewed as invoking 42 USC

§ 1983, a federal court can require exhaustion of star

judicial remedies, if these are available. This is not simph

because of the Supreme Court. pronouncements which e

cept for the summary dispositions in Houghton v. Shafer,

392 U.S. 639 (1968) and in Wilwording v. Swenson, wen

not in state prisoner cases, but because abstention wodl

mean abdication in any case where the state afforded:

fair hearing, whether the proper constitutional standard

were applied or not. See England v. Louisiana Stak

Board f Medical Examiners, 375 U.S. 411 (1968); Lack.

wanna Police Benevolent Ass’n v. Balen, 446 F.2d 52 f

Cir. 1971), and cases there cited.

The right answer, it seems to me, is that, under the broad

scope the Supreme Court has given to the ‘‘Great Writ”

as enacted by the Act of 1867, 14 Stat. 385, all state pri

oner petitions complaining of the length or manner of e

tody, however phrased, are in fact petitions for babes

corpus in behalf of a person in custody pursuant to th

judgment of a state court... on the ground that he isi

custody in violation of the Constitution or laws of th

United States. Jones v. Cunningham, 371 U.S. 236, 28

. 117

i Bono Opinion and Order (January 25, 1972).

(1963); Walker v. Waimoright, 390 U.S. 335 (1968); Pey-

dom v. Rowe, 391 U.S. 54 (1968); Johnson v. Avery, 393

a 483 (1969). If they are, 28 U.S.C. 4 2254 (b) forbids a

' ler: I court from proceeding in the first instance unless

ppears that the applicant has exhausted the remedies

able in the courts of the State, or that there is either

sence of available State corrective process or the

lence of circumstances rendering such process ineffec-

to protect the rights of the prisoner’’—an exception

siently broad to enable a federal court to look at what

e courts actually do. Because of the inapplicability

i in habeas corpus, recognition that such peti-

Ry *

ä eee

mer who has not received satisfaction at the hands of

tte court can return to the federal court for a final

dera say concerning the appropriate legal standard,

uch the federal court will be bound by proper state

=. ul findings, I recognize that a number of cases, in-

ng Houghton v. Shafer, supra, and Jackson v. Bishop,

ad 571 (8 Cir. 1968), cited by the Court in Wilword-

itions s of custody come under 42 U.S.C. $1983 and 28

- §1343(3) rather than under 28 U.S.C. § 2254. But

me was not there raised, and the problem of such

applications had not yet reached its present di-

this is the correct analysis, I do not understand how

ite prisoner who is entitled to relief by habeas corpus

r 28 U.S.C. $2254 can opt out of that section, with its

der requirement of exhaustion of state remedies

mn these are available, simply by styling his petition as

ader the Civil Rights Act. But Wilwording seems to

ate that he can. For that reason I am constrained to

orders of the district court.

118a

In Bane Opinion and Order (January 25,1972).

Warmn, Cireuit Judge (concurring) :

I concur in the affirmance of the judgments below and

in the opinions of my brothers Smith, Kaufman, Feinberg

and Oakes. And see my statement filed in Rodrigues ¥,

McGinnis et al. (2 Cir. March 16, 1971).

Surrn, Cireuit Judge (concurring) :

J concur in the affirmance of the judgments below and in

the opinions of my brothers Kaufman, Feinberg and Oakes.

As indicated in my dissent to the panel opinion in Katzof,

441 Fd 558, 560, I would not hold that either abstention

in deference to the state courts or exhaustion under the

requirements of 28 U.S.C. § 2254(b) in habeas corpus x

tions may bar a prisoner from his choice of a federal foram

in a Civil rights action. I had thought that this was ree

sonably ‘plain from McNeese v. Board of Education, 31

U.S. 668, 672 (1963), Damico v. California, 389 U.S. 46

(1967), Houghton v. Shafer, 392 U.S. 639 (1968), and ow

own course in Sostre v. McGiemis, 442 F.2d 178 (2d Cir.

1971). Wüwording v. Swenson, —— U.S. , Dee. 14,

Moreover, I question the desirability of even attempting

to lighten our burden by stifling or delaying prisoners’

complaints of unconstitutional abuse. It may be an oner-

ons burden, especially in the districts where large state

prisons are located. Many petitions are poorly prepared

eonf using and méndacious. They do take the time of bun

courts. But these cases now before us demonstrate that

‘among them are some of substance, a circumstance whith

males the’ effort’ worthwhile. It would be far better to

provide’ more wssistance in the districts which contain

119a

In Banc Opinion and Order (January 25, 1972).

issues than to deny redress:within the federal court system

He : ati

8 2 +

Kavruan, Circuit Judge (concurring) :

‘he question which was presented to this court in banc

“whe a state prisoner must exhaust state judicial

remedies before he can bring an action for equitable relief

mider 42 U.S.C. § 1983, where his complaint charges that

fate prison officials have deprived him of fundamental

personal rights. My unwavering answer to that question

was that exhaustion is not required. Moreover, I agreed

Chief Judge Friendly that it was appropriate to dis-

of these cases without opinions because of the Su-

ns Court’s clear and unconditional holding in Wilword-

ag v. Swenson, 40 U.S.L.W. 3277 (Dec. 14, 1971). Since my

rs have chosen to file opinions explaining their posi-

1 believe it is necessary for me to state the reasons

the views I held. :

Wilwording the Supreme Court instructed that:

| prisoners are not held to any stricter standard of

tion than other civil rights plaintiffs.” Thi

ent was based on its decisions beginning with

! v. Pape, 365 U.S. 167, 188 (1961), where the Su-

Court held that the federal remedy provided by

aee3 “is supplementary to the state remedy, and the

need not be first sought and refused before the fed-

: one is invoked.” See also McNeese v. Board of Edu

mon, 373 U.S. 668 (1963) ; Damico v. California, 389 US.

(1967) ; Houghton v. Shafer, 392 U.S. 639 (1968). I

iso that Wilwording emphasized that the result in no

spend oa upon the

120a

In Banc.Opinion and Order (January 25, 1972).

I believe, however, that I should state candidly that]

did not construe Wilwording as a ground breaking des

sion. The opinion instead indicates the Court's clear det

erence to the doctrine of stare decisis. See Monroe x,

Pope, 365 U.S. at 192 (Harlan, J., concurring). And it v

our adherence to the principles principles gleaned from the earlie

Supreme Court desisions that led us to conclude in ou

recent in banc decision in Sostre v. McGinnis, 442 F. 2d 155

182 2d Cir. 1971), that exhaustion of state legal or

table remedies is not a prerequisite for a state prisoner

to maintain a § 1983, action.

I do not intend to argue with statistics indicating thal

prisoner petitions are on the rise; nor shall I pretend t

this condition is pleasing to Judges. But I cannot belier

that federal jurisdiction in cases involving prisoner rights

is any more offensive to the state than federal j i

in the areas 6f police procedures for search, arrest and

detention, Monroe v. Pape, supra, or . uve

v. Board of Education, supra, or welfare, Damico

fornia, supra, or public housing, .

Housing Authority, 398 F.2d 262 (2d Cir. me ae len

= rel

12la

In Bane Opinion and Order (January 25, 1972).

ap: Court’s decision in Wilwording will not

PPP cor-

tion requirement, codified in 28 U.S.C. 4 2254(b),

nec with prisoner challenges to the validity

mrt convictions or sentences. See Sostre v. Me-

2 F.2d at 182. See also Fay v. Noia, 372 U.S. 391,

W; Parker, Limiting the Abuse of Habeas Cor-

P. 171, 172-73 (1948). Collateral attack on a

court adjudication is toto caelo from an untried

nal claim unrelated to a prior proceeding. Under

mstances, I see no basis for radically expanding

of § 2254(b) or, to put it another way, for con-

ng that Congress intended by that section to carve

. 1 to 9 1983 for state prisoners challenging

a of their constitutional rights during confine-

id stating a valid claim for equitable relief. Indeed,

ia sponte. construction by the Supreme Court of Wil

aad 8 petition as a complaint under 41983 clearly

that state prisoners alleging deprivation of con-

u rights by prison officials are not forced to mold

pelaim for relief in the form of a petition for a writ

i corpus. I find it difficult to believe that the

y Specifically confronted with the alternative modes

ng, overlooked or did not consider fully the inter-

28 U.S. C. 92254 (b) and 42 U. S. C. § 1983.

with Judges Kaufman and Smith that under the

there is simply no basis for requiring these

ners to exhaust state judicial remedies as a con-

bringing an action for equitable relief under 42

. And 1 further agree with them and with

4 li. with: the views. expressed brothers in their

fe concurrences with this opinion ww

122a

In Bone Opinion and Order (January 25, 1972).

2411

“Te Bere Opinion ond Ovéer (Jemary 26 972).

We v. Dollinger, 277 F.2d 739, 742 (2d Cir. en banc

0), efd., 365 U.S. 458 (1961). Upon the prisoner’s

ng that the state would not offer a reasonably prompt

ür Dr on the other hand, the federal court would

mired to proceed.

. of New York state courts to apply fed-

titutional principles is not disputed. In most in-

pe their. facilities are closer to the state prison in

ai the prisoner-plaintiff is located (and where regular

rt than is the nearest federal

hermore the state court is in a position to in-

Ba — on the part of essential state per-

0%. local and state police, clerks, sheriffs, court

‘and officers of state and county departments)

is the federal court. For example, unless Wilwording

ad, suits for injunctive relief by prisoners of one

York’s largest institutions, Clinton Prison, Dan-

mora, Clinton County, must be heard by the United

District Court for the Northern District of New

(ork, -is located in Albany, 180 miles away. The

in federal judge, with only two holding cells and two

. —

fringing prisoner-plaintiffs and other prisoner-witnesses

ma min trip in federal custody. By way of

ontra the New York Supreme Court for Clinton County,

' ni nt » calendar problem, is equipped to hold

in 4 8 county courthouse or in the prison itself.

3 to which state prisoners’ habeas corpus peti-

hav been dressed up in a § 1983 suit of clothes, often

ly with a view to the prisoner’s availing himself of the

ge of scenery offered by federal facilities, is attested

y st tistics compiled by the Administrative Office of

Jnited States Courts. The 1971 Annual Report of its

2 reveals (Table 14, II- 48) that from 1968 to 1971

| prisoners’ habeas corpus petitions in the United

e district courts increased 30%, whereas civil rights

ae —

124

In Banc Opinion ond Order (January 25, 1972).

suits ineréased 170%, atid that from 1970 to 1971 ma

en corpus ‘yetitions -Getiined 16%, while’ such: Ga

rights petitions increased 43.6%.

Oaxns, Circwit Judge (concurring) :

. Fhe ir wo inlet th Jean beter 40

the opinions of Judges Smith and Kaufman, agreeing u

J do with the original reasoning of Judge Waterman ints

dissent in Rodrigues v. McGinnis, Docket No. 34567 u

Cir., Mar. 16, 1971), and Judge Smith in his dissent i

Cateof v. McGinnis, 441 F.2d 558, 560 (2d Cir. 1971). 1

is not my impression that the federal courts are being over.

whelmed with frivolous prisoners’ petitions—indeed, mary

have been highly meritorious But I agree with Judg

Feinberg that if the courts were so burdened, judicial legs

lation is not the appropriate method of meeting the pw

lem.

To the extent that the dissenting opinion of Judge Ia

bard and the concurring opinions of Chief Judge Friendy

and Judge Mansfield make arguments directed to the Cm

gresé that warrant further reply, that reply, it seems tom

may more appropriately be made in some place other tha

# judicial opinion. To the extent that those same op

8 125a

ae In Banc Opinion and Order (January 25, 1972).

‘Timm; Circuit Judge (dissenting), with whom Moone

fat Hare, Circuit Judges, concur:

Eures petitioners seek federal court orders which would

Giréct state prison authorities to take action to correct

allegedly unconstitutional treatment.

Katzoff, formerly an inmate of Green Haven

Facility serving a sentence of one to three

Qorrection: Facility serving a term of one and one-half

hour years for the crimes of perjury and attempted

arceny, complains that the state unconstitutionally can-

ed good time for either possession of contraband or

efasal to disclose its source.

donn Kritsky, presently an inmate of Clinton Correc-

imal Facility serving a sentence of 15 to 18 years for

‘etime of armed robbery, complains of unconstitutional

‘@Pprivation of good time because of his participation in an

Mate strike at Auburn Correctional Facility.

‘AN these actions were brought under 42 U.S.C. § 1983,

in each case the district court granted relief to the

‘Pitioner. I would reverse the orders of the district courts

4 remand with directions to stay further proceedings

iding a hearing of the claims in the state court.

senor to Wilwording v. Swenson, decided December 14,

#71, 40 U.S.L.W. 3277, I had hoped that these three cases

de resolved, consistent with Supreme Court author-

requirement of exhaustion of state remedies as a

Miition precedent to a cause of action in the federal

Hurts under the Civil Rights Act by a state prisoner seek-

126a

In Bano Opinion ond Order (January 25, 1972).

ing equitable relief from allegedly unconstitutional prism

conditions or sanctions. Wilwordmg suggests the con

trary, but it dealt with an inmate in a Missouri prison aad

Missouri apparently makes no provision for hearing and

eases in its courts. I still think there is room to hold that

a District Court in New Tork which does provide m

adequate remedy in its courts for the redress of legitimate

prisoner complainte’—should refrain from hearing such

case until the state court has acted thereon, so long a

on-going physical brutality is not involved, as it was in Is

mates of Attica v. Rockefeller, decided by this court De

oember 1, 1971, slip op. p. 739.

I am not unmindful that what the Court has said per

curiam in Wilwording follows much that was said along

the same lines in Monroe v. Pape, 365 U.S. 167 (1961),

MeNeese v. Board of Education, 373 U.S. 668 (1963),

Damico.v. California, 389.U.8. 416 (1967), and Houghton

v. Shafer, 392 U.S. 639 (1968). Only in Houghton, hov.

ever, was the petitioner serving a sentence in a state

prison, and it does not appear from the record what, if

any, remedies were available to Houghton in the Pennsyl

vania state court. In any event, the Court did not pass.

the considerations which seem to me to compel the conclt-

sion that the federal courts should not hear these cases in

the first instance where the state courte are ready, willing

and able to give relief.

way Wikwording, v. Swenson, 40 U.S. L. W. 3277 (Dec. 14,

Law §79-c, McKinney’s Consol. Laws c. 6

0h ti ats dein nrg

127a

Is Bane Opinion and Order (January 25, 1972).

‘The resolution of differences between inmates and jail-

er in state prisons is peculiarly à matter of state interest

aid concern. These matters can better be determined by

the state court which is nearby and available for immedi-

ue resolution of such disputes. For some years justices

‘of the Supreme Court of the State of New York, the high-

ést trial court of general jurisdiction, have held court in

eoartrooms within the confines of the prisons. Thus the

etit prisoner and any necessary witnesses can be

heard with a minimum of risk and expense. By contrast,

whe in the federal courts requires that prisoners

mast be moved considerable distances under circumstances

presenting a danger of escape and injury to members of

tie public, to say nothing of substantial expense to the

"Recent unrest and dissatisfaction in New York state

prisons reached a tragic climax at Attica Correctional

Facility where a four-day inmate uprising took a death toll

of 1 hostages and 32 inmates. Allowing a state prisoner

the choice of being heard in a federal court would seem an

obvious. means of exacerbating relations between state

rs and their jailers. Obviously the holding of a

Maring at a distant federal court is a far greater interrup-

ion of prison life and routine than a hearing inside a state

rison by a state judge. Sostre v. McGinnis, 442 F.2d 178

ir. 1971) (en banc), is a good example of what may

frequently be involved in a federal court hearing. That

ase was tried before Judge Motley in the Southern Dis-

fet of New York during seven days of trial extending

tom Weds y, October 29, 1969 to Friday, November 7,

In addition to Sostre, who was brought fr

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