Jackson v. Ward
| Decision Date | 13 September 1978 |
| Docket Number | Civ-1971-131,Civ-1972-12,Civ-1971-101,No. Civ-1969-435,Civ-1972-11,Civ-1972-23 and Civ-1973-289.,Civ-1969-435 |
| Citation | 458 F. Supp. 546 |
| Parties | Lawrence A. JACKSON, Auburn State Prison, Auburn, New York, Frank Cole, Green Haven State Prison, Stormville, New York, Floyd L. Couse, Auburn State Prison, Auburn, New York, Edward J. Bardo, Attica State Prison, Attica, New York, Thomas Hazelton, Green Haven State Prison, Stormville, New York, Warren Scarberry, Attica State Prison, Attica, New York, the Mattachine Society, the Fortune Society, Plaintiffs, v. Benjamin WARD, Commissioner of Correction of the State of New York, Governor Alfred E. Smith Office Building, State Office Building, Albany, New York, Harold J. Smith, Superintendent of the Attica Correctional Facility, Attica, New York, Robert J. Henderson, Superintendent of the Auburn Correctional Facility, Auburn, New York, Leon Vincent, Superintendent of the Green Haven Correctional Facility, Stormville, New York, Individually and in their official capacities, Defendants. Joseph P. LITTLE and Richard Clark, Petitioners, v. Vincent R. MANCUSI, Superintendent of Attica Correctional Facility, and William A. Dickinson, Educational Supervisor and Censor, Respondents. Calvin JOHNSON, Plaintiff, v. Vincent R. MANCUSI, Superintendent, Attica Correctional Facility, Defendant. Application of Carl JONES. Application of Gary R. HAYNES. George NIEVES, Petitioner, v. School Supervisor Mr. DICKERSON, Respondent. Application of Edward VOGT and Charles Jackson. |
| Court | U.S. District Court — Western District of New York |
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Herman Schwartz and Edward I. Koren, Washington, D. C., for plaintiffs.
Louis J. Lefkowitz, Atty. Gen. of State of N. Y. (Douglas S. Cream, Asst. Atty. Gen., Buffalo, N. Y., of counsel), for defendants.
When this civil rights action under 42 U.S.C. § 1983 was first filed with the court on November 26, 1969, six named inmates and the Mattachine and Fortune Societies challenged the guidelines and procedures of the New York Department of Correctional Services governing the review by corrections officials and the receipt of literature by inmates in New York State correctional facilities. Plaintiffs sought a declaratory judgment and preliminary and permanent injunctive relief against the Commissioner of Correction and the wardens of the Attica, Auburn, and Green Haven State Prisons.
Plaintiffs originally complained that the defendants had continually denied them access to certain books, magazines, newspapers, and other publications including Arthur Koestler's The Ghost in the Machine, Peter Gay's The Enlightenment, Erik Erikson's Youth and Crisis, Claude Lévi-Strauss' The Savage Mind, Marshall McLuhan's Understanding Media, Charles Silberman's Crisis in Black and White, the Fortune Society's Newsletter, Psychology Today, and National Geographic. Plaintiffs alleged that such denials were arbitrary, discriminatory, based solely on whim and caprice, and deliberately repressive. The complaint alleged that the denials were not based on any objectively valid criteria and were not rationally related to goals of the prison system. Plaintiffs also alleged that the denials had been made without the establishment of and compliance with any objective and valid procedures for screening publications coming into the penal institutions. In additional causes of action, the plaintiffs alleged that defendants had adopted policies and engaged in practices that prohibited the plaintiffs from corresponding with anyone that was not approved by the defendants and that they had thus been prohibited from corresponding with public figures, religious leaders, governmental units, friends and relatives. Plaintiffs alleged that it was the defendants' regular practice to censor all mail coming into New York's penal institutions, including legal mail and correspondence with the courts. Plaintiffs sought injunctive relief against the continuation of these policies and sought the establishment of objective and rational policies as well as appropriate implementing procedures.
By my order of December 21, 1970, I recognized that it was appropriate for this lawsuit to proceed as a class action. In the original complaint, plaintiffs had sued on their own behalf and "in behalf of all other inmates in prisons under the authority of the Commissioner of Correction and the other defendants."
Since the original action was instituted, Benjamin Ward has become the Commissioner of New York State Department of Correctional Services, Harold J. Smith has become the Superintendent of the Attica Correctional Facility, Robert J. Henderson has become the Superintendent of the Auburn Correctional Facility, and Leon Vincent has become Superintendent of the Green Haven Correctional Facility. These individuals, as successors in office of the original and succeeding named defendants, are hereby substituted as the defendants in this action.
After the original action was filed, related actions were filed by a number of pro se inmate litigants. Extended negotiations among the parties, several meetings with this court, and decisions by other courts led to substantial revisions of the challenged practices and procedures.
However, the Bulletin contained the following proviso:
There are, however, some inmates whose emotional instability and antisocial attitudes are such that the consumption1 of certain reading material may lead to individual behavior or behavior by groups of inmates which threaten the safety and security of the institution for both staff and other inmates, and which deter the operation of a therapeutic program.
Administrative Bulletin No. 2 then set forth seven guidelines governing the acceptability of literature for inmates:
The Bulletin specified that a review committee was to be established by the Superintendent of each correctional facility to consider the publications which had been challenged as unacceptable. This review committee was then to report its recommendations to the Superintendent of the facility who in turn was directed to forward the committee's report and his decision to the Commissioner of Correctional Services. The Commissioner's office would then investigate further and would confer with the Superintendent before a final decision was reached. In the interim, the preliminary decision of the Superintendent was to be in effect. Bulletin No. 2 established certain time limits for the actions by the review committee, the Superintendent, and the Commissioner's office.
Responding to the order of Judge Mansfield in Sostre v. Otis, 330 F.Supp. 941 (S.D. N.Y.1971), the Department of Correctional Services issued a new set of regulations dated September 7, 1971, amending Administrative Bulletin No. 2.
Judge Mansfield had concluded that the procedures set forth in Administrative Bulletin No. 2 "would not satisfy the requirements of due process were it the mechanism by which censorship was imposed on literature in a free society outside prison walls." Id. at 944. He noted that the procedure was deficient in these respects: first, it was completely ex parte: notice need not be given either to the literature's publisher or to the inmate; second, it failed to place on the censors the burden of showing that censored literature was not "protected" and it seemed to permit a final restraint without any judicial determination; third, those affected by the censorship were not allowed an opportunity to be heard. He recognized that "certain literature may pose such a clear and present danger to the security of a prison, or to the rehabilitation of prisoners, that it should be censored." Id. He then ruled that inmates were entitled to the rudimentary due process protections of (1) notice, (2) some opportunity to object, either personally or in writing, and (3) a decision by a body that could be expected to act fairly. Judge Mansfield concluded that requirement (3) had been satisfied by existing procedures but he found that the essential elements of notice and an opportunity to be heard were lacking.
Administrative Bulletin No. 2, as amended, provided an additional guideline which read:
8. The publication should not be of such a nature as to depict, describe or teach methods and procedures for the acquisition of certain physical manipulations and skills which expertise will, in the opinion of Department authorities, constitute a threat to the safety, welfare and health of other inmates and...
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...consequences followed dissemination of that report. Amicus Curiae at 9 n. 19. Similarly, during the litigation in Jackson v. Ward, 458 F.Supp. 546 (W.D.N.Y. 1978), prison officials abandoned their censorship claims as to 51 publications without adverse reaction. Amicus Curiae at 9 n. 20. It......
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