Marcelin v. Scott

• Decision Date: 10 January 1969
• Citation: 59 Misc.2d 38,298 N.Y.S.2d 43
• Parties: Harvey MARCELIN, Petitioner-Complainant, v. Joseph SCOTT et al., Respondent-Defendant.
• Court: New York Supreme Court

Page 43

298 N.Y.S.2d 43

59 Misc.2d 38

Harvey MARCELIN, Petitioner-Complainant, v. Joseph SCOTT et al., Respondent-Defendant.

Supreme Court, Clinton County.

Jan. 10, 1969.

Dale T. Tucker, Plattsburgh, for petitioner.

Louis J. Lefkowitz, Atty. Gen. (Charles H. Lewis, Asst. Atty. Gen., Plattsburgh, of counsel), for respondent.

DECISION

IRVING GOLDMAN, Judge.

The petitioner, Harvey Marcelin, is a prisoner at Clinton Prison in Dannemora under a life sentence for Murder, First Degree. He alleges that at various times, during his imprisonment, he has been subjected to solitary confinement under conditions so brutal as to be characterized as cruel and unusual punishment forbidden by both the State and Federal Constitutions. (New York Const. Art. 1, Sec. 5, U.S.Const. Amendment 8.) He seeks injunctive relief and other remedies against certain prison officials who have been allegedly mistreating him.

The question raised here is a jurisdictional one. Assuming the allegations contained in the petition to be true, has the Legislature provided the statutory procedure necessary to enable this Court to entertain proceedings as a competent forum for disposition of the issues raised? A search of the statutes and case law reveals no provision nor precedent relevant to the fact situation here.

The most authoritative pronouncement and observation on a situation whose facts are almost identical as these is contained in the recent opinion written by Judge Irving Kaufman of the U.S. Circuit Court of Appeals for the Second Circuit made December 19, 1967, in Wright v. McMann, 387 F.2d 519. There, the Court expressed serious doubt as to the adequacies of the procedures available in New York to enforce whatever rights a prisoner might have under the New York Constitution, stating

'And, in any event, in this suit for both legal and equitable relief it is only too clear that New York's remedies are inadequate.' (p. 523)

In response to the State of New York Attorney General's argument that he would not oppose, upon jurisdictional grounds, relief which the prisoner sought in a New York Court, Judge Kaufman responded in his opinion that '* * * jurisdiction is not conferred by the failure of the Attorney General to object.' Wright v. McMann, Cit. supra p. 524.

In his concurring opinion, Chief Judge Lumbard more emphatically pointed out that the New York Courts lacked necessary power to provide relief, if deserved, stating,

'It is clear that there is no administrative or judicial body with an unmistakable mandate to entertain an application by Wright for an order that would prevent recurrence of the treatment of which he complains. That the New York Court of Claims with leave of a judge of a supreme court may award damages is not enough. Thus, while all would agree that it is far better that the states should formulate, supervise and enforce their...