Nieves v. Oswald

• Decision Date: 20 April 1973
• Docket Number: 737,Dockets 72-1974,72-2322.,No. 462,462
• Citation: 477 F.2d 1109
• Parties: George NIEVES et al., Plaintiffs-Appellants-Appellees, v. Russell G. OSWALD, Commissioner of Correctional Services, and Vincent R. Mancusi, Superintendent of Attica Correctional Facility, Defendants-Appellees-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

477 F.2d 1109 (1973)

George NIEVES et al., Plaintiffs-Appellants-Appellees, v. Russell G. OSWALD, Commissioner of Correctional Services, and Vincent R. Mancusi, Superintendent of Attica Correctional Facility, Defendants-Appellees-Appellants.

Nos. 462, 737, Dockets 72-1974, 72-2322.

United States Court of Appeals, Second Circuit.

Argued February 21, 1973.

Decided April 20, 1973.

Herman Schwartz, Buffalo, N. Y. (Edward I. Koren, ACLU Prison Rights Project, Buffalo, N. Y., Kenneth Kimerling, National Lawyers Guild, New York City, William E. Hellerstein, Legal Aid Society of New York, Morton Stavis, New York City, Stanley A. Bass, New York City, on the brief), for plaintiffs-appellants-appellees.

John H. Stenger, Sp. Asst. Atty. Gen., Buffalo, N. Y. (Louis J. Lefkowitz, Atty. Gen. of N. Y., on the brief), for defendants-appellees-appellants.

Before FEINBERG, MULLIGAN and TIMBERS, Circuit Judges.

FEINBERG, Circuit Judge:

Once again we find ourselves dealing with the complexities of 28 U.S.C. § 2281, which has the deceptively simple heading in the United States Code of "Injunction against enforcement of State statute; three-judge court required." That section and its "Federal statute" counterpart, 28 U.S.C. § 2282, have been accurately described as creating many problems "so complex as to be virtually beyond belief."¹ This case is a depressingly excellent example, since it presents not merely familiar and difficult problems of jurisdiction, but the added complexity of a last minute attempt to affect appellate review by a motion to withdraw the prayer for injunctive relief. So far as we know, this nuance is an addition to three-judge court esoterica in this circuit. See Part III infra. This litigation offers further proof, if such is needed, of the need for modification or repeal of the three-judge court statutory scheme.²

I

Appellants are nine prisoners at the Attica Correctional Facility who sue for themselves and on behalf of all other inmates who were at that institution at the time of the notorious prison revolt in September 1971, and who, as a result of alleged misconduct during that uprising, are subject to disciplinary hearings. Appellants are also possible targets of a special grand jury empaneled in November 1971 to investigate the unfortunate events at Attica. The complaint, brought under 42 U.S.C. § 1983 in the United States District Court for the Western District of New York, alleges that the conduct of disciplinary proceedings in New York prisons denies or threatens to deny them various rights guaranteed by the United States Constitution. The complaint prays for preliminary and permanent injunctive relief against the holding of disciplinary hearings and the imposition of punishment without certain procedural safeguards; declaratory and other relief is also sought.

In November 1971, defendants consented to a temporary stay of disciplinary hearings involving any charges against inmates arising from the events at Attica until the special grand jury made its report or until the merits of plaintiffs' action were determined. Plaintiffs moved to convene a three-judge court, as the complaint effectively sought to restrain "the enforcement, operation, or execution" of state regulations, 28 U.S.C. § 2281, which govern disciplinary proceedings in state prisons.³ In March 1972, Chief Judge John O. Henderson denied that motion as well as defendants' motion to dismiss the complaint for failure to state a claim upon which relief could be granted.⁴ In June 1972, the district court ruled against plaintiffs on the merits, except that it granted the plaintiff class limited rights to counsel, in order to protect their privilege against self-incrimination, including the right to consult with counsel prior to any proceeding and to have counsel present during those portions of the proceeding when the inmate is present. As to that, the court ordered injunctive relief. Plaintiffs appeal from denial of the application for a three-judge court⁵ and from denial of all but limited relief on the merits of their constitutional claims; defendants appeal from the ruling that permitted limited right to counsel. Because we believe that Judge Henderson improperly refused to convene a three-judge court,⁶ we do not reach the various contentions of the parties on the merits, and we reverse and remand for further proceedings.

II

In Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962) (per curiam), the Supreme Court stated that when an application for a three-judge court is addressed to a district judge, his inquiry is limited to determining (1) whether the constitutional question is substantial; (2) whether the complaint at least formally alleges a basis for equitable relief; and (3) whether the case otherwise comes within the requirements of the three-judge statute. If all criteria are established, the single judge must convene a statutory three-judge court. See Abele v. Markle, 452 F.2d 1121, 1126 (2d Cir. 1971).

Whether these criteria were met in this case depends in turn on the allegations of the complaint, see Goosby v. Osser, 409 U.S. 512, 521 n. 7, 93 S.Ct. 854, 860, 35 L.Ed.2d 36 (1973), all of which are deemed to be true. Id. Plaintiffs claim that the procedures governing disciplinary hearings commenced or to be commenced—procedures required by New York regulations cited at note 3 supra—are constitutionally deficient in, inter alia, the following respects: Inmates are denied an opportunity to present witnesses in their defense and to confront adverse witnesses against them, since they are not permitted to be present when adverse testimony is taken; the rules governing prisoner conduct are so vague as to be void; the testimony of adverse witnesses is unsworn; inmates are not given Miranda-type warnings even though statements made in disciplinary proceedings may be used in subsequent criminal prosecutions; inmates are denied assistance of counsel or of effective counsel substitute; inmates receive inadequate notice of the rule allegedly violated, of the rules under which fact-finding is to be had, and of the precise facts underlying the charges; and inmates are denied a decision by an unbiased decision-maker and are not accorded a written opinion by the deciding tribunal based upon substantial evidence.

As Judge Henderson perceived in his June 1972 decision on the merits, plaintiffs' constitutional attack is really based on two distinct theories. Most broadly, plaintiffs challenge the application of the regulations, which do not require the above-claimed procedural safeguards, to any serious disciplinary proceeding in state prisons. Indirectly, by raising questions of self-incrimination, plaintiffs also challenge on a somewhat narrower basis the absence of these safeguards when inmates are threatened, as are plaintiffs, with prison-disciplinary and subsequent criminal proceedings. Judge Henderson believed that neither theory required a three-judge court. While his March 1972 opinion denying plaintiffs' motion to convene did not squarely address the first, more general, theory, his later opinion reflects his conclusion that the constitutional questions thus raised were insubstantial. As to the narrower theory, he concluded in the earlier opinion that it failed to satisfy the requirements of section 2281, as the claim raised "not . . . a question of state-wide concern, but rather only local concern precipitated as a result of the unusual . . . occurrences at Attica." We think both conclusions were erroneous.

Turning to plaintiffs' broader theory, an insubstantial federal question is presented if the claim is "`obviously without merit' or because `its unsoundness so clearly results from the previous decisions of the Supreme Court as to foreclose the subject . . . .'" Ex Parte Poresky, 290 U.S. 30, 32, 54 S.Ct. 3, 4, 78 L.Ed. 152 (1933) (citations omitted). Decisions of this court, binding as they are on the district courts within this circuit, whether they be of the single or three-judge variety, may also foreclose a constitutional challenge as insubstantial. See Lewis v. Rockefeller, 431 F.2d 368, 371 (2d Cir. 1970). Judge Henderson believed that plaintiffs' more general constitutional attack was "a mirror image of the arguments presented to and rejected" by this court, sitting en banc, in Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971), cert. denied, 404 U.S. 1049, 92 S.Ct. 719, 30 L. Ed.2d 740 (1972) and 405 U.S. 978, 92 S.Ct. 1190, 31 L.Ed.2d 254 (1972). We do not believe, however, that our decision in Sostre renders plaintiffs' constitutional theory "essentially fictitious" or "wholly insubstantial," Bailey v. Patterson, 369 U.S. 31, 33, 82 S.Ct. 549, 7 L. Ed.2d 512 (1962), or "obviously without merit," Ex Parte Poresky, supra. As the Supreme Court has only recently informed us:

The limiting words "wholly" and "obviously" have cogent legal significance. In the context of the effect of prior decisions upon the substantiality of constitutional claims, those words import that claims are constitutionally insubstantial only if the prior decisions inescapably render the claims frivolous; previous decisions which merely render claims of doubtful or questionable merit do not render them insubstantial for the purposes of 28 U.S.C. § 2281.

Goosby v. Osser, supra, 409 U.S. at 518, 93 S.Ct. at 858.

Applying these guidelines here, we note first that Sostre disclaimed comment on "the constitutional adequacy" of the state regulations now before us. 442 F.2d at 199 n. 42. Moreover, not all the procedural guarantees here sought were expressly considered by us in Sostre, although we did reject the claim that due process necessarily entitled a prisoner to all of the following protections: legal counsel, confrontation, cross-examination, right to call witnesses, and "a written statement of evidence and rationale." Id. at 196-198. While Judge Kaufman's opinion did not specifically...