Nieves v. Oswald

• Decision Date: 30 January 1974
• Docket Number: No. 1077,Docket 73-1846.,1077
• Parties: George NIEVES et al., Plaintiffs-Appellants, v. Russell G. OSWALD, Commissioner of Correctional Services, Vincent R. Mancusi, Superintendent of Attica Correctional Facility, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

498 F.2d 802 (1974)

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

No. 1077, Docket 73-1846.

United States Court of Appeals, Second Circuit.

Argued July 19, 1973.

Decided January 30, 1974.

On Rehearing May 31, 1974.

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

John H. Stenger, Sp. Asst. Atty. Gen. Louis J. Lefkowitz, Atty. Gen., for defendants-appellants.

Before MOORE and OAKES, Circuit Judges, and TYLER,^* District Judge.

MOORE, Circuit Judge:

Between September 9 and 13, 1971, a disturbance by the inmates at the Attica Correctional Facility (Attica) resulted in many acts of violence and many deaths. A not unexpected aftermath has been an attempt to ascertain, both inside and outside prison walls, such persons as might have been responsible. Outside the prison a special grand jury was impaneled to consider possible criminal charges; inside the walls there remains the possibility of disciplinary hearings against inmates who took part in the disturbance.

Anticipating criminal and/or disciplinary action against them, nine¹ inmates, purporting to sue on behalf of all inmates of Attica subject to disciplinary hearings as a result of the events at Attica between September 9th and 13th, filed a complaint on November 16, 1971,² seeking injunctive relief against the holding of such hearings on the ground that adequate procedural safeguards had not been provided. A "declaration that the facts complained of are unconstitutional" was also sought.

Plaintiffs-appellants (as Petitioners) asked that a three-judge court be convened. This request was denied; on appeal the denial was reversed by this court and remanded, Nieves v. Oswald, 477 F.2d 1109 (2d Cir. 1973). On remand plaintiffs withdrew their request for an injunction. This left only the declaratory issue for the District Court's determination.

The District Court carefully considered each contention raised by plaintiffs, namely, (1) fear of self-incrimination in connection with matters pending before the special grand jury; (2) inability to be present to confront and cross-examine witnesses; (3) failure to require testimony under oath; (4) no opportunity to present evidence in own behalf; (5) lack of counsel or counsel substitute; (6) failure to provide an impartial tribunal; and (7) failure to provide for a written decision based upon substantial evidence. More specifically, the Court also dealt with charges that the rule allegedly violated was not made known to the inmate, that the rules were too general and vague, and that copies of the rules were not given to inmates.

The Court then proceeded to analyze the Rules (in order as they appear in the District Court's opinion, §§ 251.5, 252, 253, 253.2, 253.3, 253.4, 253.5, 270.2, 270.4, 260.4, 261, and 261.3). 7 N.Y.S. C.R.R. Chap. V.

In a rather lengthy opinion the trial court held, in substance, that to protect the inmate against self-incrimination which might arise in any disciplinary hearing, the inmate should have (1) an adequate opportunity to consult counsel prior to the proceeding; (2) a prison employee to assist the inmate designated pursuant to section 253.2 of the New York State Code of Rules and Regulations (N.Y.S.C.R.R.), Chapter V, Volume 7; (3) presence of counsel at the initial meeting between inmate and the designated employee to discuss and determine investigatory procedures; (4) a copy of the employee's written investigation report; and (5) counsel present during the hearing to consult with the inmate. The Court limited these safeguards by declaring that such counsel was not to have leave to "conduct his own personal investigation within the confines of the prison" or "to cross-examine witnesses nor to call witnesses in addition to those interviewed by the hearing officer."

In short, the Court held that: "To condone a procedure whereby an inmate goes into those proceedings uninformed or ill advised as to the dangers involved, then makes an incriminating statement and is left with the sole remedy of a pretrial suppression hearing, appears to this Court to be inconsistent with the requirements of due process when received in the context of the present situation." Having satisfied itself that counsel was required, the Court granted the right, subject to certain limitations. The trial Court concluded that the "defendants are permanently enjoined from conducting any and all disciplinary hearings concerning charges against inmates arising from their claimed participation in the events at Attica between September 9 through 13, 1971, inclusive, unless and until such inmates are provided the assistance of retained or appointed counsel to act in the capacity detailed in this opinion." The Court, noting our en banc decision in Sostre v. McGinnis, 442 F.2d 178 (2d Cir.), cert. denied, 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740 (1971), 405 U.S. 978, 92 S.Ct. 1190, 31 L.Ed.2d 254 (1972), qualifies its opinion with the caveat that it "should not be considered as holding that the right to counsel is required in all cases of prison disciplinary proceedings."

The case now comes to us on appeal both by plaintiffs who inveigh against the limitations placed by the trial court on the "due process safeguards" that were granted and by defendants who object to that portion of the court's opinion which grants the prisoners the assistance of counsel.

Because it is not known at this time what, if any, charges may be leveled against these particular inmates, the District Court's opinion must, of necessity, have been somewhat hypothetical in character. The Court stated:

Although the services thus provided may afford the inmate an alternative means of establishing a defense to the disciplinary charge, it does little to protect him from self-incrimination, either through ignorance or otherwise, as far as possible criminal charges of murder, kidnaping and the like which may flow from his involvement in the September revolt.

During the course of those disciplinary hearings, there must certainly come a time when a determination has to be made concerning what statements on his part may or may not be incriminating and what conduct on his part may or may not be consistent with a defense to the potential criminal charges presently under investigation by the special grand jury. These are determinations not to be made by an untrained layman but rather by a qualified attorney competent in that area of law.

Thus it is evident that the Court was addressing itself to procedural safeguards in serious cases such as "charges of murder, kidnaping and the like."

In our view, this case now on appeal for the second time is at this stage in a troublesomely obscure posture. In part, this is due to the fact that events relevant to the issues have occurred since the District Court's order; also the class as defined below may not properly recognize certain sub-classes with different problems and "standing". Furthermore, on November 26, 1971 and again on May 21, 1973, after the decision of the "April panel" of this Court, 477 F.2d 1109 (1973), counsel stipulated to a temporary stay of disciplinary hearings respecting plaintiffs' class. According to the trial Court, the November 26, 1971 stay of such hearings was to continue "until the special Wyoming County grand jury has made its report or until the merits of this action have been determined." This language is not entirely clear, but it suggests the possibility that counsel agreed on behalf of the State that the State would suspend all disciplinary hearings until the Wyoming County grand jury hands up its presentments or expires by operation of law. Indeed, the actual language of counsel for the State, who first proposed a stay, on November 26, 1971, to us more clearly indicates that this was and still may be the essential posture of the State of New York:

Mr. Stenger: . . . Now, what I would like to propose, your Honor, is this, appreciating the dilemma because of the pending criminal investigation, I am authorized to state that the respondent will consent to a temporary injunction of a limited degree, namely, that no administrative disciplinary hearings will be heard as against any charges arising from the Attica insurrection up until such time as the grand jury, now about to convene and sit, has returned a report and any indictments, and the actual targets of that investigation are known.

The Court: You mean a final report?

Mr. Stenger: Yes, or until such time as this action is determined. In other words, we will relieve voluntarily any of these inmates of the dilemma by not proceeding, under the Court\'s direction, with the holding of any administrative hearings where they may be placed in this position that has been suggested, until such time as it is known whether they are the target of investigation or not, and, of course, at that time when it is known, we should be free to go ahead with those who are not a target, and then we can discuss continuation of an injunction as to those who have been determined to be a target. We are prepared and willing to consent to that, pursuant to the Court\'s direction, and I think that will solve the temporary dilemma in which these people find themselves with regard to this one point. So as far as the request for injunctive relief of a temporary nature, I will make that concession on behalf of the respondent.

. . . . . .

In light of this language and of developments before the special grand jury, therefore, it may still be the precise position of the State of New York that: (1) it will proceed with disciplinary hearings against those plaintiffs and class members...