# Appendix — Preiser v. Rodriguez > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0135%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1973 - **Citation:** 411 U.S. 475 ## Text INDEX PAGE RopgicueEz: —JJ441.i 8 1a /// ¾ Ä—˙r—§Ü]. 9a 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. 3a 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. 4a 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) 5a 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) 6a 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- F 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 1-25-72 1.25.72 12872 1.28.72 1-25-72 7a 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 2-18-72 4-28-72 6-20-72 6-23-72 8a 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) 9a 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. Hi Ae 0 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 te ts 55 14 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, BA 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- 5 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 E 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 1 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 2 : 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 7 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. 4 * 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. 4+ * 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 i | i i i i li! 1 f f f cases involving forfeiture of good time, failed to 8 re BB. = 4 | i ; * + — ~ sod 2 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. © Section 2254(b) and (e) of Title 28 U.S.C. require state 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 i ee ote ron Uae eee receive for having dirty pictures in his cell (or for refusing ee 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. a 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 2 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 iE E a ‘‘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 f i 4 f l 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 : 2 f [fe 7 . . 5 i i 3 1 ef 11 5 i 1 ap = 82 52 a 1 8 K 2 171 if 2 400 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 9 — 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 —— 1 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 16 tt 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. 4 (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 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: : \ N. 2 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 7 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 1 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- 3 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 3 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 to 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 re 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. © The Petitioner i in this case has duly and timely applied 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 F 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- 7 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 75 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. 1 . 8 Da 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 P 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 : Fi 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 8a Diatrict Court Opinion (Avigust 18, 1970). 79 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 nt 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 4 * 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 Me 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 F 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- . be 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 e 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 2 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 — ar 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0135%3A1. Public record. Not legal advice.