Inmates of Attica Correctional Facility v. Rockefeller, No. 284

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: LUMBARD, MANSFIELD and OAKES, Circuit
• Citation: 453 F.2d 12
• Parties: INMATES OF the ATTICA CORRECTIONAL FACILITY et al., Plaintiffs-Appellants, v. Nelson ROCKEFELLER, Governor, State of New York, et al., Defendants-Appellees.
• Decision Date: 01 December 1971
• Docket Number: Dockets 71-1931,71-1994.,334,No. 284

453 F.2d 12 (1971)

INMATES OF the ATTICA CORRECTIONAL FACILITY et al., Plaintiffs-Appellants,
v.
Nelson ROCKEFELLER, Governor, State of New York, et al., Defendants-Appellees.

Nos. 284, 334, Dockets 71-1931, 71-1994.

United States Court of Appeals, Second Circuit.

Argued November 5, 1971.

Decided December 1, 1971.

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COPYRIGHT MATERIAL OMITTED

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Phylis Skloot Bamberger, William E. Hellerstein, New York City (Barbara Shapiro, The Legal Aid Society, New York City, Herman Schwartz, ACLU Prisoners Rights Project, Buffalo, N. Y., Stanley Bass, NAACP Legal & Educational Fund, Inc., Daniel Pachoda, National Lawyers Guild, Morton Stavis, Center for Constitutional Law, New York City, Vincent Doyle, Jr., Buffalo, N. Y., Haywood Burns, National Conference of Black Lawyers, New York City, on the brief), for appellants

Maxwell B. Spoont, Asst. Atty. Gen., State of N. Y. (Louis J. Lefkowitz, Atty. Gen., by Robert E. Fischer, Deputy Atty. Gen., David M. Richman, Roger W. Bradley, Asst. Attys. Gen. on the brief), for appellees.

Before LUMBARD, MANSFIELD and OAKES, Circuit Judges.

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MANSFIELD, Circuit Judge:

This appeal by certain prisoners of New York State's Attica Correctional Facility (Attica), a maximum security prison, seeks reversal of orders of the United States District Court for the Western District of New York entered on September 28, October 6 and 7, 1971, denying their application for a preliminary injunction restraining defendants from engaging in conduct allegedly violating plaintiffs' constitutional rights and dismissing their complaint insofar as it sought permanent injunctive relief and an order permitting it to be maintained as a class suit on behalf of all inmates, approximately 2,000 in number. Federal jurisdiction was invoked on the basis of 42 U.S.C. § 1983 and 28 U.S.C. § 1343. For the reasons hereinafter stated we affirm the district court's decision in part, reverse it in part, and remand the case for further proceedings in accordance with this decision.

The action is based upon events following the bloody recovery by New York State of control of Attica on September 13, 1971, at a cost of 43 lives, after unsuccessful negotiations to terminate peacefully a four-day inmates' riot. Beginning on September 9, 1971, certain inmates of Attica revolted, took over control of a portion of the prison known as Cellblock D, seized and held 38 correctional officers and civilian employees as hostages, presented a list of demands, which became the subject of negotiations with representatives of the State, and threatened to kill the hostages unless their demands were met. The riot continued until September 13, 1971, and was accompanied by criminal conduct on the part of some inmates, undoubtedly witnessed by others. One guard, William Quinn, a hostage removed from the prison before it was retaken, died of severe head injuries sustained during the uprising, and three inmates succumbed to knife wounds.

On the morning of September 13, 1971, New York State Police and other State employees, acting under the direction of the Commissioner of Corrections of the State of New York, regained control of Attica by armed force, resulting in the death of an additional 29 inmates and 10 hostages, injuries to numerous others (83 required surgical treatment) and destruction of property (in addition to that already destroyed in the uprising).

On the evening of September 13, 1971, a group of lawyers headed by Herman Schwartz, Esq., a professor of law at the University of Buffalo, acting as counsel for all inmates of Attica on the basis of having been attorney for some of them in prior unrelated proceedings, commenced an action in the United States District Court for the Western District of New York entitled "Inmates of Attica Correctional Facility, Plaintiffs, against Commissioner of Corrections Russell G. Oswald and Vincent Mancusi, Superintendent, Attica Correctional Facility."¹ They sought access to Attica and a preliminary injunction against interrogation of prisoners. On September 14, Judge Curtin denied the application after taking testimony of Walter Dunbar, Executive Deputy Commissioner of the New York State Department of Correctional Services, to the effect that no

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investigations had as yet been instituted by correctional personnel at Attica. It was further elicited that Governor Rockefeller, upon the recommendation of Hon. Harry D. Goldman, Presiding Justice of the Appellate Division, Fourth Department, had appointed a panel of five impartial observers who would visit and examine conditions at Attica "to the end that the public at large may be assured that the constitutional rights of the inmates are being protected."² Accordingly Judge Curtin denied preliminary injunctive relief for failure to make a sufficient showing of immediate need

Two days later Governor Rockefeller appointed Deputy Attorney General Robert E. Fischer to investigate any crimes committed at Attica during and after the period of the uprising.³ Beginning in the latter part of September, Fischer and several members of his staff began interrogation of Attica inmates.

On September 16, 1971, Judge Curtin reopened the application for temporary injunctive relief upon Mr. Schwartz's submission of an affidavit to the effect that counsel were being denied access to Attica for the purpose of giving legal advice to their clients, and upon his further oral statement that he had been approached by a person (Watson) with "newly discovered evidence" showing the need for access in order to protect the constitutional rights of inmates. Testimony was then taken from James Watson, a 24-year old National Guardsman and a student at Buffalo Law School, regarding reprisals taken by correctional officers against inmates immediately after the uprising had been quelled, including physical abuse, assaults, forcing of prisoners to run a gauntlet of correctional officers who struck them as they passed through, threats, racial slurs and obscenities, which he had witnessed on September 13, 1971, when he and 100 members of his company were sent into Attica to restore order immediately following its being recaptured. Following this hearing, the inmates' purported counsel were permitted by the Commissioner of Corrections to interview inmates daily at the rate of approximately 20 per day (or a total of about 100) during the five-day period from September 17 to 21 inclusive, with the assurance that such interviews could be continued.

On September 23 plaintiffs' counsel applied to the district court for an order (1) enjoining defendants' interrogation of inmates except after each inmate had "consulted with counsel and thereafter only in the presence of counsel," (2) enjoining

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destruction, confiscation and disposal of plaintiffs' personal property, including briefs, transcripts, correspondence, etc., (3) requiring defendants to deposit with the court all photographs and films relating to the "disturbance" at Attica during the period September 9-13, (4) declaring that the action might be maintained as a class suit pursuant to Rule 23, F.R.Civ.P., (5) furnishing plaintiffs' counsel with the "name, prison number and present whereabouts of each member of the class of plaintiffs," (6) requiring defendants to provide plaintiffs' counsel with autopsy and other reports regarding persons killed in connection with the Attica uprising, and (7) appointing federal monitors, who would have free access throughout Attica, to insure enforcement of the injunction against interrogation of inmates and destruction of their property

On September 25, 1971, defendants applied for an order pursuant to Rules 23 (c) (1) and 12 (b) (6), F.R.Civ.P., dismissing the complaint for failure to state grounds for maintenance of the action as a class suit and for failure to state a claim entitling plaintiffs to relief.⁴

At a hearing held on September 27, 1971, by Judge Curtin upon the foregoing applications, defendants disclosed that in recognition of plaintiffs' right to consult with counsel before being interrogated by representatives of the Attorney General's office with respect to the Attica uprising, Fischer had distributed to all inmates a notice in English and Spanish dated September 24, 1971 (a copy of which in English is printed in a footnote),⁵ advising each inmate of his right to speak to a lawyer before being questioned by a representative of the Attorney General's office and giving him the option of writing the name and address of his lawyer so that the lawyer might be informed or asking the court to appoint a lawyer to speak with him. Furthermore, as a result of arrangements made by the Goldman Panel, three

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rooms were made available daily in Attica for attorney-client interviews, despite the cramped conditions resulting from damage to B, D and E Cellblocks which required transfer of inmates to other Blocks or to other prisons. These rooms have been available for such purpose eight hours a day except for Saturdays and Sundays, when attorneys may have access for six hours a day. As a result 195 interviews took place during the period from September 17 through October 2

The district court denied plaintiffs' demand for an injunction against interrogation of prisoners except after being advised by, or in the presence of, counsel, referring to the foregoing notice and pointing out that facilities had been made available for counsel to interview inmates and that if defendants' interrogations violated inmates' rights, objections might be raised in state court upon an attempt by the State to use any information received in a criminal or other proceeding. He concluded that "until plaintiffs can be more specific with regard to how these interviewing circumstances constitute a denial of effective assistance of counsel, of equal protection of the laws, and of the right to be free from cruel and unusual punishment, plaintiffs' demand for...