Cohen v. Ciccone

Decision Date28 September 1970
Docket NumberCiv. A. No. 18122-3.
PartiesMeyer Harris COHEN, Petitioner, v. Dr. P. J. CICCONE, Director, United States Medical Center for Federal Prisoners, Springfield, Missouri, Respondent.
CourtU.S. District Court — Western District of Missouri

Gerald H. Lowther, Springfield, Mo., for petitioner.

Frederick O. Griffin, Jr., Asst. U. S. Atty., Kansas City, Mo., for respondent.


BECKER, Chief Judge.

Petitioner, a federal convict confined in the United States Medical Center for Federal Prisoners, petitions this Court for a writ of habeas corpus to terminate his current confinement in the Medical Center. Leave to proceed in forma pauperis has been previously granted.

Petitioner states that he was convicted of income tax evasion by a jury in the United States District Court for the Southern District of California; that he was sentenced on that conviction on July 1, 1961, to imprisonment for a term of fifteen years; that he appealed from the judgment of conviction and imposition of sentence to the United States Court of Appeals for the Ninth Circuit but the judgment was affirmed on appeal; that petitioner then sought certiorari in the United States Supreme Court, which was denied on February 14, 1962; that he has previously filed a petition or habeas corpus in this Court in which he sought to have the denial of his parole reviewed, but the petition was denied on January 17, 1970 (see Cohen v. United States Board of Parole (W.D.Mo.) Civil Action No. 18004-3); and that he was represented by counsel at his arraignment and plea, his trial, his sentencing, on appeal and in preparation, presentation or consideration of his postconviction motions.

Petitioner states the following as grounds for his contention that the conditions of his confinement violate his federally protected rights:

"(a) That petitioner's medical condition is of a severe and debilitating nature and that rehibilitation (sic) can only be accomplished through acute therapy and treatment which is only obtainable through private means necessitating release from confinement.
"(b) That petitioner's continued confinement is unnecessary for the protection of society and that the physical condition of petitioner is of such severity that his mental attitude and usefulness as a constractive (sic) member of society will be permanently impaired through continued confinement.
"(c) That petitioner has been threatened and his life put in jeopardy because of the present confinement and that the respondant (sic) has been negligent in the maintenance of petitioner's safety and well being. That continued confinement increases the danger to petitioner and it is cruel and unusual punishment to subject petitioner to a constant menance (sic) that cannot be alleniated (sic) because of respondants (sic) inability to protect petitioner."

After the filing of the show cause order, respondent's response to the show cause order and petitioner's traverse, an order was entered herein on May 20, 1970, denying the petition for habeas corpus. Thereafter, on motion of the petitioner to amend judgment and in the exercise of judicial discretion under Rule 59, F.R.Civ.P., the order of May 20, 1970, was vacated (because of petitioner's contention that he could show the factual merit of his claims). This cause was then set for a plenary evidentiary hearing at 11:00 a. m., July 10, 1970, at Springfield, Missouri.

On July 10, 1970, the hearing was held in the United States Courthouse, Springfield, Missouri. The evidence adduced therein proved the following facts. As was found by the United States District Court for the Northern District of Georgia in Cohen v. United States (N.D.Ga.), 252 F.Supp. 679, petitioner on August 14, 1963, sustained an injury to his skull through the negligence of the Government in permitting the escape from maximum security of a prisoner who struck petitioner with a lead pipe. Prior to that injury, petitioner had been a "tool room worker" in the federal Penitentiary in Atlanta. He was rated by his supervisors as a good and responsible worker. One of his supervisors had advised petitioner of his intent to recommend him for awards of "meritorious good time" under the provisions of § 4162, Title 18, United States Code, providing for awards of up to three days per month for the first year of his sentence and five days per month for the remainder of the sentence in the discretion of the Attorney General for prisoners whose work in prison industry is deemed to be especially meritorious. After the injury, petitioner was transferred to the Medical Center,1 where he is presently confined. Sometime in 1966, respondent suggested to petitioner that he learn how to type as part of petitioner's general program of rehabilitation. Petitioner thereupon was assigned to a typing position, but, after a brief period of training, petitioner requested, and was granted, permission to terminate the assignment. It was petitioner's testimony at the hearing herein that he requested permission to leave this assignment because one of the other typists had made homosexual advances toward him.2 Thereafter, petitioner made no further efforts to perform any labor or other activity within the institution (or to seek protection from homosexual advances in the typing room) which might have resulted in his being awarded meritorious good time under § 4162, supra.

Petitioner further testified at the hearing herein that he considered the physical therapy and the medical treatment given him in the Medical Center to be satisfactory and that he had nothing to complain of in respect to the treatment given him by Dr. Ciccone and the other personnel treating and supervising him in the Medical Center.3 He thereby expressly abandoned at the hearing his factual claims of inadequate medical treatment and of cruel and unusual punishment. His counsel formally disclaimed these factual contentions at the hearing with petitioner's approval.

The evidence further showed that petitioner had faithfully performed the daily physical exercises which his physical therapist prescribed and had maintained a good rapport with the physical therapist; that petitioner had been kept in solitary confinement for his personal security for considerable periods of time4 during his confinement in the Medical Center; that petitioner was given extra food and other unusual amenities during these and at other times; and that petitioner was capable of performing, with minimal facility, such routine clerical tasks as writing his name and making check marks in appropriate places, and that he could depress the keys of a typewriter with the digits of his right hand. In this regard, the evidence showed that petitioner, because of the level of his disability (which, at the time of the hearing, included the partial immobility and spasticity of his left arm and leg and difficulty of flexion) would not be capable of learning to type with the efficiency required in the commercial world but could type and perform minor clerical tasks which would benefit the institution and which would supplement petitioner's daily physical exercises as therapy for petitioner's physical condition.

In his petition herein, petitioner contended that he is entitled to release on the ground that his continued confinement, because of alleged inadequate medical treatment and inadequate protection from certain "menaces" from which the prison personnel cannot protect him, constitutes cruel and unusual punishment; that therefore he should be entitled to an early release to secure adequate treatment and personal security on his own. The evidence adduced at the hearing herein, as noted above, does not support any claim of inadequate medical treatment or cruel and unusual punishment.5 And as stated above, petitioner expressly abandoned those claims at the hearing herein. Further, it is well settled that this Court could not order the release of petitioner as a matter of clemency. Matters of commutation of sentence, pardon or parole are solely within the province of the Executive Department of the Government. Holliday v. Settle (W.D.Mo.), 218 F.Supp. 738, and cases therein cited. If changed circumstances entitle a prisoner to clemency, "that must come from other than the Judicial Department of the Government." United States v. Patti (C.A.3), 291 F.2d 745, 746. Further, if this petition can be considered a successive petition for habeas corpus seeking review of the Parole Board's refusal to grant parole on the grounds that such a denial is a violation of petitioner's right to be free from cruel and unusual punishment, it is still not cognizable in this Court especially when the basic claim of cruel and unusual punishment has been abandoned, as in this case. As stated in the order dismissing Civil Action No. 18004-3, this contention based on the refusal to grant a parole is one which should be raised in a petition in the United States District Court for the District of Columbia, naming the Board of Parole as respondent. See Langston v. Ciccone (W.D.Mo.), 313 F.Supp. 56, and cases therein cited.

Petitioner's principal contention in the brief submitted by his counsel following the hearing of July 10, 1970, is that it is a denial of petitioner's right to equal protection of the laws to be denied meritorious good time under § 4162, supra, when it was through the negligence of the Government that his ability to earn the meritorious good time had been lost. The theory asserted by petitioner in this regard is a substantial one deserving consideration in a case in which a petitioner had been earning meritorious good time and was thereafter prevented from continuing to earn good time through the fault of the Government or wherein he otherwise indicated a predisposition to work in institutional operations but was prevented from doing so by the fault of the Government. As outlined above, however, the evidence adduced herein does not...

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3 cases
  • LaMagna v. United States Bureau of Prisons, Civ. No. B 79-270.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • 16 Julio 1980
    ...prisoners to accomplish work which will simultaneously benefit the institution and promote the inmate's rehabilitation. Cohen v. Ciccone, 318 F.Supp. 831 (W.D.Mo. 1970). Unlike statutory good time, the size of the extra good time award varies with the service performed, not with the length ......
  • Margiotta v. Brennan, 91-1299
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 10 Septiembre 1992 which would simultaneously benefit the penal institution and promote the rehabilitation of the prisoner." Cohen v. Ciccone, 318 F.Supp. 831, 836 (W.D.Mo.1970); see also LaMagna, 494 F.Supp. at In analyzing an equal protection claim, a court must determine first whether the claim involv......
  • Smith v. Swenson, Civ. A. No. 1495.
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • 6 Mayo 1971 which, under applicable federal standards, are not the subjects of federal rights until the good time or pay is earned. Cohen v. Ciccone (W.D.Mo.) 318 F.Supp. 831. Plaintiff speaks of the "equal right to have a razor and a mirror and a television set and radio" in his cell. But denial o......

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