Al-Jundi v. Estate of Rockefeller
| Citation | 885 F.2d 1060 |
| Decision Date | 15 September 1989 |
| Docket Number | D,AL-JUNDI,No. 1067,1067 |
| Parties | Akil, a/k/a Herbert Scott Deane; Big Black, a/k/a Frank Smith; Elizabeth Durham, Mother and Legal Representative of Allen Durham, deceased; Litho Lundy, Mother and Legal Representative of Charles Lundy, deceased; Theresa Hicks, Widow and Legal Representative of Thomas Hicks, deceased; Alice McNeil, Mother and Legal Representative of Lorenzo McNeil, deceased; Maria Santos, Mother and Legal Representative of Santiago Santos, deceased; Jomo Sekou Omowali, a/k/a Eric Thompson; Vernon LaFranque; Alfred Plummer; Herbert X. Blyden; Joseph Little; Robin Palmer; George "Che" Nieves; James B. "Red" Murphy; Thomas Louk; Peter Butler; Charles "Flip" Crowley; William A. Maynard, Jr.; Calvin Hudson; Kimanthi-Mpingo, a/k/a Edward Dingle; and Ken-Du, a/k/a Willie Stokes, on behalf of themselves and all others similarly situated, Plaintiffs, Akil Al-Jundi, Plaintiff-Appellant, v. The ESTATE OF Nelson ROCKEFELLER, Defendant-Appellee. ocket 88-2527. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Michael E. Deutsch, Chicago, Ill. (Dennis Cunningham, San Francisco, Cal., Elizabeth Fink, Brooklyn, N.Y., of counsel), for plaintiff-appellant.
William E. Jackson, New York City (Adlai S. Hardin, Jr., Richard H. White, Milbank, Tweed, Hadley & McCloy, New York City, of counsel), for defendant-appellee.
Before NEWMAN and MINER, Circuit Judges, and WARD, District Judge. *
Plaintiff-appellant Akil Al-Jundi appeals from a judgment entered in the United States District Court for the Western District of New York (Elfvin, J.) dismissing the section 1983 claims, see 42 U.S.C. Sec. 1983, asserted against the Estate of Nelson A. Rockefeller ("Estate") by the class of which Al-Jundi is a member. 1 See Al-Jundi v. Estate of Rockefeller, No. CIV-75-132E, 1988 WL 103346 (W.D.N.Y. Sept. 28, 1988). Al-Jundi, along with other parties named in the amended complaint, had instituted a class action against Governor Rockefeller, in his official and individual capacities, and other New York State officials and correctional personnel, based on defendants' roles in the quelling of the 1971 Attica prison uprising. The section 1983 claims were premised on violations of the cruel and unusual punishment clause of the eighth amendment and the due process and equal protection clauses of the fourteenth The district court granted summary judgment for the Estate, holding, inter alia, that, based on his limited participation in the retaking of the prison, Rockefeller had not violated plaintiffs' constitutional rights, and that, in any event, the Governor, and derivatively, the Estate, were immune from suit under the doctrine of qualified immunity. The court thereafter entered a final judgment, pursuant to Fed.R.Civ.P. 54(b), permitting plaintiffs to appeal the dismissal of the claims against the Estate. See Al-Jundi v. Estate of Rockefeller, No. CIV-75-132E, 1988 WL 128567 (W.D.N.Y. Nov. 30, 1988).
amendment. During the pendency of the action, the Estate was substituted "in the place and stead of defendant Rockefeller." Al-Jundi v. Rockefeller, 88 F.R.D. 244, 245 (W.D.N.Y.1980)
On appeal, Al-Jundi argues that summary judgment was improper, contending that material questions of fact exist concerning principally (1) the failure of the Governor to control and supervise the officers who conducted the armed assault of the prison; (2) information allegedly possessed by Rockefeller prior to the assault, which, he claims, indicates that a significant degree of danger would attend the use of force to rescue the hostages and retake the prison; and (3) a supposed nexus between the decision to retake the prison by force and Rockefeller's political aspirations. We conclude that Rockefeller did not violate the civil rights of any member of the plaintiff class, and, accordingly, we affirm.
On September 9, 1971 at approximately 8:45 AM, more than 1200 inmates at the Attica prison rioted, attacking and seizing as hostages forty-nine correction officers. Within less than two hours, the inmates were reported to be in control of a substantial segment of the prison, including a prison yard known as "D-Yard." Later that morning, state police and correction officers regained control over portions of the prison. Eventually, eleven hostages were released, but the inmates kept the others; one of the hostages who was released, Correction Officer William Quinn, died later from wounds inflicted by the inmates.
Russell Oswald, then the New York State Commissioner of the Department of Correctional Services, arrived at the scene at about 2:15 PM on the day of the uprising. He had been given by Rockefeller "complete authority over and responsibility for" handling the crisis. Included among Oswald's responsibilities was the authority to conduct and, should they prove unsuccessful, terminate negotiations. He was charged also with the responsibility to decide whether a rescue operation was necessary and, if so, when to conduct it.
Upon arriving at the scene and being briefed by the superintendent of the prison, Oswald ordered that the effort to retake the prison by force be stopped, and decided instead to seek a negotiated end to the insurrection and release of the hostages. Negotiations commenced late in the afternoon of September 9. An Observers Committee, formed at the request of the prisoners, acted as mediator in the negotiations between the prisoners and Oswald. During the course of negotiations, which lasted until the morning of September 13, the inmates submitted a list of thirty-four demands, most of which sought improvements in prison conditions. Oswald agreed in substance to twenty-eight of the demands; the Governor approved Oswald's decision to accept those demands. Two demands that were disputed, however, were the inmates' requests for complete amnesty for all criminal acts committed during the insurrection and, for inmates desiring to leave the United States, transportation to "non-imperialist nations." The inmates rejected the twenty-eight point counter-proposal, holding out for amnesty and transportation.
By September 12, the impasse in the negotiations led to increased tensions in the prison. Two inmates were seriously injured, presumably by fellow prisoners; the rioters permitted one of the injured inmates to leave the prison yard. The death toll among hostages and inmates already had climbed to four. Meanwhile, as news of Officer Quinn's death was reported by At 9:35 PM on September 12, the Observers Committee met with Oswald and requested, as it had before, that Rockefeller come to Attica to help resolve the conflict; the Committee then dissolved itself. The Governor responded that his presence would serve no purpose, and that he would come only if the prisoners released the hostages and returned to their cells. In the meantime, Oswald decided that a final offer and plea to release the hostages would be made to the inmates the next morning (September 13), and that if the offer was not accepted, the hostages would have to be rescued and the prison recovered by the state police.
the media, the inmates hardened their demand for complete amnesty, which apparently had become the focal point of the discussions among the inmates, the Observers Committee and Oswald.
On September 13 at approximately 7:45 AM, Oswald delivered to the inmates a note expressing his desire to "achieve a peaceful resolution of the situation" and urging release of the hostages unharmed, help in restoring order to the facility, and a response within the hour. At about 9:00 AM, the inmates began parading eight of the hostages, who were bound and blindfolded, on various catwalks around the prison; each hostage was held, with a knife to his throat, by an inmate. Shortly thereafter, the inmates twice rejected Oswald's "urgent appeal." It was then that Oswald decided that the prison would have to be retaken and the hostages rescued.
A variety of factors, in addition to the events described above, led Oswald to conclude that further negotiation would prove fruitless and that the only alternative left was to retake the prison. He considered the "brutality" of the initial rioting; the parole records of the rebellious inmates, many of whom had been convicted of "vicious" crimes; the refusal of the inmates to release injured or sick hostages without "fresh" replacements; the fact that the inmates had access to, and actually had equipped themselves with, an arsenal of weapons; the fact that the inmates continuously were erecting barricades and other fortifications to impede any possible assault; and the concern that a rescue operation would become substantially more difficult were the hostages to be moved from the prison yard to one of the cell blocks. He thus sought and received authorization from the Governor to order the state police to plan and conduct an operation to rescue the hostages and retake the prison.
The actual plan for retaking the prison was formulated principally by Major Monahan of the state police, with the assistance of other state police and prison officials. Essentially, the plan consisted of sending into the prison a twenty-seven member rescue squad to secure the safety of the hostages. The squad was to be supported by two eighty-member teams entering the prison at various points of access. During the operation, a national guard helicopter was to drop tear gas onto the prison yard to immobilize the inmates and minimize violence, injury and loss of life.
The Governor played no role in either the formulation or implementation of the rescue plan. In fact, he had no advance knowledge of the plan chosen; he merely ratified the decisions to abandon negotiations and to devise instead a plan to retake the prison, by force if necessary. Later, he issued instructions that correction officers were to be excluded from the operation, because of their possible emotional...
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