U.S. ex rel. Larkins v. Oswald

• Decision Date: 24 January 1975
• Docket Number: D,No. 313,313
• Citation: 510 F.2d 583
• Parties: UNITED STATES of America ex rel. Tyrone B. LARKINS, Appellee, v. Russell G. OSWALD, Commissioner of Corrections of New York State, et al., Appellants. ocket 74--1885.
• Court: U.S. Court of Appeals — Second Circuit

Page 583

510 F.2d 583

UNITED STATES of America ex rel. Tyrone B. LARKINS, Appellee, v. Russell G. OSWALD, Commissioner of Corrections of New York

State, et al., Appellants.

No. 313, Docket 74--1885.

United States Court of Appeals, Second Circuit.

Argued Oct. 24, 1974.

Decided Jan. 24, 1975.

Margery Evans Reifler, Deputy Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of N.Y., Samuel A. Hirshowitz, First Asst. Atty. Gen., of counsel), for appellants.

E. Thomas Boyle (William J. Gallagher, The Legal Aid Society, Federal Defender Services Unit, New York City, of counsel), for appellee.

Before WATERMAN, OAKES and GURFEIN, Circuit Judges.

OAKES, Circuit Judge:

This case is a nice example of the wisdom of Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), holding that in prison disciplinary proceedings minimal due process requires advance written notice of the charges to the inmate no less than 24 hours before his appearance before the adjustment committee, together with a written statement by the factfinders as to the evidence relied upon and the reasons for the disciplinary action. ¹ It comes to us by way of appeal from the United States District Court for the Western District of New York, John T. Curtin, Judge, following a $1,000 award by a jury for damages in a civil rights action by an inmate arising out of his solitary confinement for 12 days at Attica Prison (more properly known as Attica Correctional Facility) for possession of 'revolutionary' papers in his cell. Liability was determined by the court, upon cross motions for summary judgment, in the light of Sostre v. McGinnis, 442 F.2d 178, 202--203 (2d Cir. 1971) (en banc), cert. denied, 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740; 405 U.S. 978, 92 S.Ct. 1190, 31 L.Ed.2d 254 (1972), which holds, inter alia, that a prisoner cannot be punished for possessing political papers. All of the defendant-appellants claim that there were material issues of fact in dispute so that summary judgment should not have been granted and that the jury award of $1,000 damages was grossly excessive. Commissioner Oswald and Warden Montanye each claim that they were not personally liable. We affirm the judgment.

The rule of law is, of course, that summary judgment can be granted only if there is no genuine issue as to any material fact. Fed.R.Civ.P. 56(c); Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962); Doehler Metal Furniture Co. v. United States, 149 F.2d 130, 135 (2d Cir. 1945). At the same time summary judgment as a useful procedural tool is not to be discarded on the the flimsiest of excuses- ; the issues of fact must be genuine, not sham. See Dressler v. MV Sandpiper, 331 F.2d 130, 132, 133 (2d Cir. 1964); 6 J. Moore, Federal Practice 56.15(1.-02) (Supp.1973) at 53 (2d ed. 1948).

Here it appears from the pleadings and the documentary material submitted by the appellants themselves that appellee, Larkins, a life inmate of Attica Correctional Facility, was on or about June 7, 1972, confined in isolation, Housing Block 'Z' (HBZ), on a misbehavior report for having inflammatory and revolutionary papers in his possession on June 6, 1972. He was ordered to be confined for seven days by the 'Attica Adjustment Committee,' the prison disciplinary committee, of which appellants Clor and Elmore were members. Appellee was actually confined for 12 days and no explanation has been given for the additional confinement.

The 'Inmate Misbehavior Report to Superintendent' Montanye, which was signed by Correction Officer Amico and endorsed by Correction Officer Tiede, explains that at 3:00 p.m., June 6, 1972, 'upon observing this man in the yard with a group of inmates Officer Tiede and myself frisked this man's cell and found Black Pantor (sic) Party papers and revolutionary papers in his cell (copies are attached).' The Inmate Misbehavior Report went on to mention 'Larry Tinsley 27825 10/27 in with group of known Black Panthers, cell was frisked, contraband found.' ²

The 'Adjustment Committee Report' on Larkins signed by its chairman, Lt. Clor, says, under the heading 'Inmate's Explanation and Attitude,' 'Inmate appears belligerant and uncooperative toward institutional policies--believes in revolution--inmate admits affiliaties to Black Panter Party (sic).' There is no space provided on the Adjustment Committee Report for entering the charges or findings other than 'Disposition . . . (specify) Confinement in HBZ for 7 days with loss of yard and recreation.'

The 'Indeterminate--Punishment Record' indicates that on 6/6/72 Larkins' punishment was 'K.L. in HBZ 7 days w/no yd or rec' and his offense was that he '(h)ad in his poss. revolutionary papers, Black Panther Party Papers.' The undisputed facts further indicate that the two papers found in Larkins' cell consisted of an undelivered handwritten letter to 'Bro. Bob' reprinted in the footnote ³ in its entirety and a somewhat lengthier handwritten document in two parts, the first entitled 'Central--Revolutionary Format' and the second 'Black Panther Party Ten Point Program--Platform.' The 'Central--Revolutionary Format' describes a 'gurrilla's (sic)' organization including a 'heavy weapons crew' and 'rescue and recovery unit' and states that 'this committee's primary objective at this point is revolutionary-political education'; it sets forth the 'revolutionary-educational curriculum' including political, social, cultural and economic indoctrination and 'military-industrial complex,' all of which are said to constitute a 'tactical intelligence combat unit.' The Black Panther Party Ten Point Program or Platform states some constructive, some not so constructive (or, indeed, destructive) objectives for black people to espouse. If all to be considered is the foregoing there is no genuine issue of fact.

The appellants contend, however, that certain facts alleged in supplementary affidavits filed by Lt. Clor and Correction Officers Amico and Tiede must be taken into account and that these affidavits show

that plaintiff was also charged with advocating the disruption of the institution to the inmates he had met in the yard; that the content of the material taken from his cell (especially the letter) indicated that it was meant to be disseminated to others; and that plaintiff's attitude toward institutional policies was belligerent and uncooperative.

Appellants' Brief at 7.

There is no doubt that the supplementary affidavits do to some extent support the three propositions advanced by appellants. Correction Officer Amico's affidavit avers that he 'was familiar with Larkin's (sic) past at the institution' and 'knew that he was an active leader in instigating dissent . . . constantly defied institutional rules and policies . . . encouraged other inmates to be defiant . . . and . . . was pursuing a persistent course of disturbing the tranquility of the institution.' Officer Amico also said that with the memory of the Attica riot 'vivid' in his mind he was fearful that the meeting among six inmates at which Larkins was speaking (prior to the search of his cell) 'was a sign that some problems was (sic) in the stage of development.' Officer Amico's affidavit, however, states nothing as to the charges or the findings except that '(i)n the disciplinary proceeding for Larkins', he readily admitted that he was affiliated with the Black Panter (sic) and that he believed in Revolution.'

Correction Officer Tiede stated that he came upon six inmates in A yard with Larkins standing and five inmates sitting around a table, and that '(a)s I approached, the inmate (Larkins) stopped speaking.' He added that 'realizing that it was unusual for six (6) inmates to be gathered in a group and one (1) of them appearing to be lecturing the other five (5) as if in a study group,' he joined Officer Amico and proceeded to the cells of Larkins and Tinsley. In Larkins' cell '(w)e found certain inflamatory (sic) documents. . . .' He also says nothing about the charges or findings.

Lt. Clor's affidavit is the only one which refers to the charges, in language set forth in the footnote, ⁴ but makes no reference to any findings of the Adjustment Committee (which consisted of appellant Elmore and Correction Officer Brimmer in addition to Clor himself), except to say that the Committee's 'discretion' was exercised 'with the full realization of Larkins' procedural due process rights' and that 'everyone concerned acted within the scope of their lawful authority. . . .'

Thus, if Wolff v. McDonnell, supra, were to be applied retroactively there would be no question whatsoever that summary judgment would be proper since nothing indicates that there was any written notice of the charges to Larkins or that there were any findings by the Adjustment Committee or reasons stated in connection therewith. While Wolff v. McDonnell is not to be applied retroactively, 418 U.S. at 573, 94 S.Ct. 2963, our own Sostre v. McGinnis, supra, indicates that some elements of due process, including being 'confronted with the accusation' and 'informed of the evidence against him,' were applicable to the prison disciplinary proceedings that here took place. 442 F.2d at 196--199, especially at 198. We need not determine, however, whether due process under Sostre required either written findings by the Adjustment Committee as to what Larkins was being punished for or some written statement of charges. ⁵ Nor do we need to determine the question of liability solely on the basis that Larkins was actually confined in segregation for 12 days when in fact his disciplinary proceedings called for confinement only for seven. The variety of possible charges, the erroneously long confinement are all part and parcel of an internal disciplinary system which doubtlessly contributed to the Attica riot in the first instance (see Attica: The Official Report of the New York State Special Commission on Attica (Bantam ed. 1972) 74--79), which...