748 F.2d 783 (2nd Cir. 1984), 1156, Smith v. Coughlin

Docket Nº:1156, Docket 84-2015.
Citation:748 F.2d 783
Party Name:Lemuel SMITH, Plaintiff-Appellant, v. Thomas A. COUGHLIN, III, Commissioner of the New York State Department of Correctional Services; and Charles J. Scully, Superintendent of Green Haven Correctional Facility, individually and in their official capacities, Defendants-Appellees.
Case Date:November 16, 1984
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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748 F.2d 783 (2nd Cir. 1984)

Lemuel SMITH, Plaintiff-Appellant,


Thomas A. COUGHLIN, III, Commissioner of the New York State

Department of Correctional Services; and Charles J. Scully,

Superintendent of Green Haven Correctional Facility,

individually and in their official capacities, Defendants-Appellees.

No. 1156, Docket 84-2015.

United States Court of Appeals, Second Circuit

November 16, 1984

Argued May 7, 1984.

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Mark B. Gombiner, New York City (Mark B. Gombiner, Robert H. Gombiner, William M. Kunstler, Kunstler & Mason, New York City, of counsel), for plaintiff-appellant.

Tarquin Jay Bromley, New York City (Robert Abrams, Atty. Gen. of the State of N.Y., Melvyn R. Leventhal, Deputy First Asst. Atty. Gen., Barbara B. Butler, Asst. Atty. Gen., New York City, of counsel), for defendants-appellees.

Before OAKES, VAN GRAAFEILAND and PIERCE, Circuit Judges.

PIERCE, Circuit Judge:

In this appeal, prisoner Lemuel Smith challenges his confinement to a special Unit of Condemned Persons in a New York State correctional facility and the various concurrent restrictions imposed on him as a result of this confinement. We agree with the district court (1) that restrictions on visits by non-lawyers in the employ of his attorney violated appellant's constitutional rights and (2) that appellant's confinement and the limitations imposed upon him pursuant to state law are not otherwise unconstitutional. 577 F.Supp. 1055. We therefore affirm the order of the district court, but we remand to allow an award of nominal damages.


In May of 1981, Donna Payant, a Correction Officer, was murdered during her tour

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of duty at Green Haven Correctional Facility (hereinafter "Green Haven"), a state prison. At the time of Payant's murder, Lemuel Smith, the plaintiff-appellant herein, was confined at Green Haven serving two twenty-five year to life sentences for second degree murder. The State of New York charged Smith with Payant's murder. In April of 1983, after a jury trial, Smith was convicted of first degree murder. 1 In June of 1983, he was sentenced to death. 2 Following this sentencing, the state acting pursuant to N.Y.Correct.Law Sec. 650 (McKinney Supp.1983-84), transferred him to a special Unit of Condemned Persons ("UCP") at Green Haven where he was to remain until execution of his sentence. N.Y.Correct.Law Sec. 650 provides in part:

From the time of such delivery to such superintendent [of the prison in which the condemned person will be held], until the infliction of the punishment of death upon him, unless he shall be lawfully discharged from such imprisonment, the defendant shall be kept in a segregation unit at such state institution and no person shall be allowed access to him without an order of the court, except the officers of the prison, his counsel, his physician, a priest or minister of religion, if he shall desire one, and the members of his family.

Smith was confined to a cell in the UCP which measured approximately six feet by ten feet. 3 By stipulation the parties have agreed that the cell's lighting and ventilation were adequate. Outside the cell were a color television and an AM/FM radio to which Smith had access twenty-four hours each day. By summoning the on-duty correction officer, Smith could obtain personal or legal materials of his choice. At the end of the officer's shift, he was required to return any personal items or legal materials, but he could reobtain them from the next officer on duty.

He was permitted to leave his cell each day for exercise in a yard measuring approximately twenty yards square. He could enter the exercise yard at any time after 8:30 a.m. and remain there until approximately 3:30 p.m.

He could receive various visitors daily. He was allowed contact visits with his attorney, a nurse or doctor (one of whom saw him each day) and a priest (who weekly ministered to him). He was allowed regular non-contact visits with a prison psychiatrist, members of his family, and four additional clergy. He was not allowed visits with lay religious advisors nor was he permitted visits with friends or others--such as the press or persons employed by his attorney--except by order of the court. In addition, he was not allowed to attend congregate religious services.

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Shortly after his confinement to the UCP, Smith commenced this action in the federal district court pursuant to 42 U.S.C. Sec. 1983 alleging violation of his first, fifth, sixth, eighth, and fourteenth amendment rights. Specifically, he contended that his confinement to the UCP and the various associated restrictions on his behavior (1) deprived him of a liberty interest without due process of law, (2) subjected him to cruel and unusual punishment, (3) denied him equal protection of the laws, (4) denied him freedom of speech and religion, and (5) deprived him of access to the courts. Smith moved for a preliminary injunction. The parties stipulated certain facts, and the district court ordered that a hearing be held on those that remained in dispute.

During a three day hearing, Smith testified that he was dissatisfied with conditions in the UCP and that he desired contact visits with his mother, friends, and paralegal personnel, interaction with fellow inmates, the right to attend congregate religious services, and the right to keep legal papers in his cell. He also testified that he had suffered psychological damage as a result of his isolation. Two experts testified as to conditions on other death rows, as did one New York State prisoner who had previously been under sentence of death. Smith's psychiatrist testified that he was treating Smith for a minor "anxiety disorder" and that conditions in the UCP might aggravate this condition.

Defendants presented two witnesses: Arthur Leonardo, Deputy Commissioner for Facility Operations, New York State Department of Corrections, and defendant Charles Scully, Superintendent of Green Haven. They testified that the UCP had been established in accordance with the mandate of N.Y.Correct.Law Sec. 650. They offered several explanations for the UCP's existence and the restrictions imposed on prisoners confined therein. First, they noted that because a person sentenced to death has little reason to fear ordinary disciplinary action, condemned prisoners pose a special danger to other inmates. Second, they testified that the condemned person was a likely target for attacks by inmates seeking to establish a reputation for dangerousness by harming notorious prisoners. Third, they testified that condemned persons posed a greater suicide risk.

Following this hearing, the district judge denied Smith's request for a preliminary injunction and reserved decision as to the granting of permanent relief. Both parties agreed that no further testimony was needed to resolve factual issues. Thereupon, in a thorough opinion, the district court made findings of fact and conclusions of law and ruled on Smith's request for a permanent injunction. The court denied the relief sought except that it ordered defendants to allow Smith to have non-contact visits with paralegal personnel in the employ of his attorney.

Plaintiff timely filed a notice of appeal, and this Court heard oral argument. Approximately two months after argument of the appeal, but before we had issued any decision, the Court of Appeals of the State of New York declared the statute under which plaintiff was sentenced to death unconstitutional; it vacated Smith's sentence of death; it reduced his conviction to one of second degree murder; and it remanded the case to the state trial court for resentencing. Consequently, Smith, no longer under sentence of death, was released from the UCP. These events alter somewhat the posture of the matter that we must decide. Because the district court addressed the factual situation that existed prior to Smith's release from the UCP, and because our review is consequently similarly limited, Smith's claims for injunctive relief based on those facts are now moot. 4 Therefore, we direct our discussion of this case's merits to Smith's damage claim alone.

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Due Process

On appeal, Smith first contends that his confinement to the UCP without a prior hearing deprived him of a liberty interest without due process of law. We find this argument to be without merit.

The United States Constitution does not create any protected liberty interest in remaining in the general prison population. Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983); Sher v. Coughlin, 739 F.2d 77 (2d Cir.1984). "As long as the conditions or degree of confinement to which the prisoner is...

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