Gomes v. Travisono

Decision Date16 January 1973
Docket NumberCiv. A. No. 4794.
Citation353 F. Supp. 457
PartiesDouglas GOMES et al. v. Anthony P. TRAVISONO, Individually and in his capacity as Director of the Department of Corrections for the State of Rhode Island, et al.
CourtU.S. District Court — District of Rhode Island

COPYRIGHT MATERIAL OMITTED

Cary J. Coen, John M. Roney, Gary Yesser, of Rhode Island Legal Services, Providence, R. I., Max Stern, Boston, Mass., Alton W. Wiley, Providence, R. I., for plaintiffs; Haywood Burns, National Conference of Black Lawyers, Stanley A. Bass, New York City, of counsel.

Richard J. Israel, Atty. Gen. of R. I., W. Slater Allen, Jr., Asst. Atty. Gen., Providence, R. I., for defendants.

OPINION

PETTINE, Chief Judge.

In a prison atmosphere of tension prevailing in the months after the Attica uprising, the Rhode Island Adult Correctional Institution on November 18, 1971 shipped eleven inmates out to federal and state prisons throughout the country. Suspected of involvement in a plot to disrupt the prison, the inmates were summarily transferred out of state late in the evening, without prior notice or opportunity to contact family or counsel. The inmates were not told the reason for the transfer nor were they given an opportunity to state why they should not be transferred. These transfers precipitated this civil rights action, brought by and on behalf of Rhode Island male prisoners, and challenging the constitutionality of out of state transfers per se and of the procedures under which such transfers are accomplished.

The named plaintiffs in this class action are inmates who have been transferred to prisons out of Rhode Island. All were transferred without their consent. Some were transferred to distant prisons in the federal system under the authority of 18 U.S.C. § 5003 and R.I.G. L. § 13-12-1 (1956, 1969 Reenactment). Others were transferred to prisons in other New England states under the New England Interstate Corrections Compact, R.I.G.L. § 13-11-1 et seq. Transfers are accomplished without advance written notice, without statement of reasons for the transfer, and without a hearing in the inmate's presence. Usually the inmate is not given any advance notice that he will be transferred.

The plaintiffs contend that involuntary removal of a prisoner from Rhode Island who was sentenced under Rhode Island law violates the Eighth Amendment's ban on cruel and unusual punishment. Alternatively they argue that an involuntary out-of-state transfer without prior notice and hearing violates the due process and equal protection clauses of the Fourteenth Amendment. Transfers without written rules and regulations guaranteeing access to counsel violate, they argue, the First, Sixth, and Fourteenth Amendments. Plaintiffs urge a finding that out-of-state transfers are illegal unless an investigation is made of the rehabilitative aspects of the receiving institution. Finally, they argue that the decision to transfer inmates on November 18, 1971, was irrational, arbitrary, and capricious, in violation of the Fourteenth Amendment.

Jurisdiction is based on 28 U.S.C. § 1343; the cause of action is based on 42 U.S.C.A. § 1983. A hearing was held on merged preliminary and permanent relief.

Defendants include the Director of the Department of Corrections and the Attorney General of Rhode Island, both of whom have the statutory authority to transfer inmates.1 No written standards govern the procedures for transfer nor are there any written regulations providing for the return to Rhode Island of transferred inmates for parole hearings or court proceedings.

Reconstruction of the events leading to the transfer is not difficult; reconstruction of the true causes of the transfer is uncertain; reconstruction of what actually was happening at the prison prior to the November 18, 1971 transfers is well nigh impossible. The testimony presents sharp conflicts of stories and these findings of fact necessarily depend on the Court's assessment of the credibility of witnesses.

The atmosphere at the Adult Correctional Institution in the Fall of 1971 was one of tension and confrontation. The uprising and bloody retaking of the prison at Attica, New York, in September of 1971, put both the staff and the inmates of the A.C.I. on edge. The correctional officers of the prison staged a work strike in late October, seeking stronger disciplinary measures. Racial tensions in the prison mounted and confrontations between militant black inmates and staff began to occur. A month before the November 18 transfers, blueprints and materials for making a bomb were found in the prison, and these exacerbated fears. Finally, many of the older, experienced correctional officers had retired and young, unseasoned officers were left at work in the prison.

An Afro-American Society had become active at the A.C.I. It existed to promote the welfare of the black inmates, and most of its activities were geared to educational programs. The Society also attempted to find jobs for black inmates on their release from the A.C.I. Most of the convicted black inmates at the A.C.I. belong to the Society and it attempts to police its own members about compliance with prison rules. Dennis Gomes was President of the Society; Richard Harris, Vice-President; Frederick Taylor, Presidential Advisor; all were transferred on November 18, 1971. The Society felt that there were conditions in the prison regarding black inmates which needed to be remedied, and arranged a meeting with the Warden on November 8 to discuss their grievances.2 At the meeting a list of grievances was presented to the Warden, and some eight or nine of the items were discussed. The Warden seemed receptive enough and understanding. The meeting lasted a few hours, and when the Warden left, he agreed to meet again with inmates on the next Monday, November 15. The Warden took the list of grievances home with him and did not discuss them with others.

Undoubtedly for the reasons that follow, the Warden did not attend the November 15 meeting. The members of the Afro-American Society were concerned that the Warden had not come to the meeting, and, on November 16, the Society decided to send the Warden a letter. One letter was drafted and was rejected by the membership as being aggressive. The Society decided to contact the Warden and to try and continue the discussions.

The Warden had taken a few days off and when he returned to the prison on November 15 he was told by Deputy Warden Remillard and Assistant Warden Houle that there was a plot afoot.3 Remillard said he had information that the Afro-American Society was going to cause a serious disruption, which would be triggered by the presentation of "impossible demands," and that hostages might be taken. In conjunction with this disruption, several inmates would attempt to escape. The information was obtained from informants and prison personnel. There were, at least, several different versions of the plot, and the different versions were sometimes inconsistent. The Warden attempted to get eavesdropping devices so that he could check on the reported stories, but was unsuccessful.

During the next few days there were a series of meetings about the alleged plot which were attended by state and prison officials. On November 17 the decision to transfer was made, principally by Warden Howard, Remillard, Houle, and Sharkey. Warden Howard testified that thousands of factors go into the decision to transfer, including the inmate's rate of rehabilitation, his participation in treatment programs, his sentence, background, history, and family. The histories of a few of the eleven transferred had led the Warden, according to his testimony, to consider possible transfer of them before the plot allegations arose. It never occurred to the Warden that the "impossible demands" of the plotters might be nothing more than the list of grievances he received from the Afro-American Society.

Julio Costa, a guard at the A.C.I. and the advisor to the Afro-American Society, was close to the members of the Society. He attended the meeting with the Warden, and to his knowledge, the Society prepared no other lists of grievances than those presented to the Warden and prepared no list of demands. No member of the prison administration asked Mr. Costa whether he had heard of the alleged plot. Mr. Costa testified in Court that between November 1 and November 18 he never heard of any plot by the Society to disrupt or take hostages. He felt he was in a position to know of a plot if such existed.

The plaintiffs who testified all flatly denied any involvement in a plot to disrupt the prison or take hostages. All of them maintained that they were never told the reason for the transfers and knew of no reason.

Testimony of Leo Carroll, a sociologist who had been studying race relations at the prison and had become friendly with the Warden, throws considerable doubt on whether the Warden actually believed there was a conspiracy which threatened the prison. The recounting of Mr. Carroll's conversations with the Warden indicate that the momentum of the situation led the Warden to go along with the transfers, although he was doubtful of the conspiracy and would have wanted a more detailed investigation into the reports of a conspiracy.

Late in the evening of November 18, 1971, eleven inmates were individually taken from their cells; some were stripped to their underwear; were handcuffed, shackled, and chained; and were taken by state police car to prisons in other states. The eleven were Douglas Gomes, Dennis Gomes, Frederick Taylor, Henry Bussey, Thomas Goff, Gerard Ouimette, Richard Harris, Ronald Sweet, Ray Blais, Richard DeFreitas, and James Silvia. Eight of these inmates were suspected of involvement in the plot. Other inmates who were also named as plotters were not transferred. The reason given for this is that receiving institutions were found for only eleven inmates. Four of the transferred inmates were white; the...

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