Carter v. McGinnis, Civ. No. 1970-539.
| Decision Date | 15 December 1970 |
| Docket Number | Civ. No. 1970-539. |
| Citation | 320 F. Supp. 1092 |
| Parties | Henry CARTER, Harold Johnson a/k/a Hasson Sharrief el. Shabazz, Ellis Tanner, and Eric (Jomo) Thompson, Plaintiffs, v. Paul D. McGINNIS, Commissioner of Corrections of the State of New York, and Vincent R. Mancusi, Superintendent, Attica Correctional Facility, and correctional officer "John Doe," Defendants. |
| Court | U.S. District Court — Western District of New York |
Herman Schwartz, Buffalo, N. Y., American Civil Liberties Union, for plaintiffs.
Louis J. Lefkowitz, Atty. Gen., State of N. Y., Buffalo, N. Y. (Bedros Odian, Asst. Atty. Gen., of counsel), for defendants.
Plaintiffs are currently confined in the Segregation Unit1 of the Special Housing Unit Housing Block "Z" or HBZ at the Attica Correctional Facility. They now move for a preliminary injunction restraining the defendants from continuing their incarceration in HBZ, for the appointment of Herman Schwartz, Esq. as counsel, and for permission to proceed in forma pauperis. Plaintiffs further seek to maintain this as a class action. The motions for the appointment of Herman Schwartz, Esq. as counsel and for permission to proceed in forma pauperis are granted. For reasons that will be discussed further below, the motion that this proceed as a class action is denied.
Notwithstanding this court's firm belief that matters of prison administration and discipline are primarily within the authority and responsibility of the state, it is now settled beyond question—and the attorneys before the court have not debated the point—that claims of the kind presented here are within the jurisdiction of the federal courts under the Civil Rights Act (42 U.S.C. § 1983; 28 U.S.C. § 1343). Indeed, this court may not abstain from hearing and determining these claims. Davis v. Lindsay, 321 F.Supp. 1134 (S.D. N.Y.1970); Rodriguez v. McGinnis, 307 F.Supp. 627 (N.D.N.Y.1969); Wright v. McMann, 387 F.2d 519 (2d Cir. 1967); Monroe v. Page, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961).
An order to show cause and complaint were filed on November 25, 1970, and an amended complaint was filed on December 1, 1970. At argument on the return date, December 3, 1970, the defendants were unable to provide the court with any extensive information in response to plaintiffs' claims. Because of this, the court ordered further argument for December 7, 1970, and directed the defendants to produce at that time specific information.
On December 7, the defendants admitted certain pertinent claims of plaintiffs. On the basis of these admissions, the court directed counsel to arrange an informal settlement conference. Later that day, counsel reported that no settlement could be reached. The court requested both counsel to appear again on December 8.
On the 8th, counsel for the defendants repeated arguments and admissions made earlier. In an effort to discover the precise facts surrounding plaintiffs' claims, the court heard testimony of Attica Superintendent Vincent Mancusi. Harry Fritz, Superintendent of Auburn Correctional Facility, was in court but did not testify.
On November 2-4, 1970, a disturbance occurred at the Auburn Correctional Facility at Auburn, New York. While plaintiffs were inmates at Auburn on the above dates, their precise roles in the disturbance remain unclear and are still under investigation by state authorities. At the court's request, the defendants' counsel obtained affidavits from various Auburn personnel in an attempt to clarify and indirectly justify the plaintiffs' current form of incarceration.2
On November 4, 1970, a state of emergency was declared at Auburn. All inmates, including plaintiffs, were keep-locked. On November 11, Carter and Tanner were transferred to Attica Correctional Facility and immediately placed in segregation. Thompson and Johnson were similarly transferred and confined on November 7 and 9, respectively. All parties agree, and Attica Superintendent Vincent Mancusi so testified, that none of the plaintiffs was accorded a hearing at Auburn, or upon their reception at Attica. The affidavit of Vincent R. Mancusi, Superintendent of Attica, reveals that the plaintiffs were placed in HBZ because of telephone instructions received from the office of the Commissioner of Corrections. Later in the month, a further telephone call from the Commissioner's office directed that, when the plaintiffs next appeared before the Adjustment Committee, they were to be informed that their stay in segregation would henceforth depend upon their attitude and conduct.
Each plaintiff continues to be held in segregation. No charges have been brought against them, and they have not been informed of the reason(s) for their current state of confinement. According to Attica Correctional Facility records, the confinement in segregation is to continue until the investigation of the Auburn disturbance is completed, but no date has been set for its completion and none was offered in oral argument before this court.
Effective October 19, 1970, the New York State Department of Correction has promulgated new disciplinary rules and regulations, and the court takes judicial notice of them. Under these rules, and according to Superintendent Mancusi's testimony, plaintiffs were transferred to Attica as "detention admissions" Section 304.4(1) (b). A detention admission is one admitted to a special housing unit while awaiting an initial appearance before an adjustment committee. Section 304.1(3). Inmates may be so placed only under the written direction of a supervisory officer designated by the superintendent. Section 304.2(2). Section 304.4(2) further points out:
In the case of a detention admission that occurs upon receipt of a transferred inmate from another institution, the purpose of such detention shall be solely to ascertain the manner in which the inmate will conduct himself in the present correctional facility * * *
Under Subdivision (3) of Section 304.4, an adjustment committee must interview the detention admissions at the committee's first meeting following the date of admission. According to this same section, the committee's procedure shall be in accordance with Section 252.3(6), which provides in pertinent part:
If the committee is not prepared to make a disposition at its first meeting, the committee shall decide at that time whether the inmate is to be released from such confinement or is to remain in confinement pending disposition of the matter. Where the committee directs that the inmate shall remain in confinement pending disposition, the committee shall interview the inmate again at least once each week during the period of confinement until disposition is made.
Section 252.5, entitled "Adjustment Committee Action", provides:
The objective of adjustment committee action shall be to secure the inmate's understanding of and adherence to the Department's rules and policies governing inmate behavior.
Section 252.5 further provides that the action taken by the committee shall be "based upon the evaluation of the inmate's attitude," and the committee is directed to point out "the elements of the inmate's behavior or attitude that it deems to be unsatisfactory." Where an inmate is unresponsive to the directions of the committee, it may impose restrictions. The most severe restriction is as follows:
Where the inmate's behavior is such that his presence in a general housing unit disrupts the order and discipline of that unit or is inconsistent with the best interests of the facility or of the inmate, confinement in a special housing unit may be imposed for a specified period not exceeding one week. * * * Successive extensions of the period of a restriction or restrictions may be made as many times as necessary so long as the committee interviews the inmate at least once during the period and during each extension of the period. Sections 252.5(5) and (6).
Finally, where an inmate persists in failure to follow the instructions of the committee, or where the committee deems that formal findings and punitive sanctions are appropriate, a superintendent's proceeding can be recommended. Section 252.6. Such a proceeding involves additional procedural safeguards for the inmate (Sections 253.2-253.4), and provides that additional penalties may be imposed (Section 253.5).
The defendants have provided this court with the following Attica Correctional Facility records of each of the plaintiffs: Inmate Misbehavior Reports, Adjustment Committee Reports, Superintendent's Reports on Review of Adjustment Committee Reports, and the necessary Adjustment Committee Reappearance Reports. In each instance, the Reappearance Report is followed by a Superintendent's Report on Review of the Adjustment Committee Report.
With respect to each plaintiff, the Inmate Misbehavior Report describes the breach of discipline or "Incident" in this language: "For investigation of disturbance at Auburn Correctional Facility." Where the form asks for a description of the inmate's role in the incident, each form is marked "Unknown." Again, with respect to each plaintiff, the first Adjustment Committee Report contains the following: "Comments on review of report and inmate file: Recently arrived from Auburn." And the disposition in each is "continue in HBZ segregation, pending further investigation." The period of continued confinement, which must be specified according to Section 252.5, is unmentioned. Whether the plaintiffs were notified of any specific charges against them is not apparent from the Adjustment Committee Reports. Where the Committee is directed to describe the inmate's attitude, Thompson is described as "good attitude," Johnson as "poor attitude," and these spaces on Carter and Tanner are left blank.
The Superintendent's reports on reviewing the committee's reports merely indicate...
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