Rosenberg v. Meese

• Citation: 622 F. Supp. 1451
• Decision Date: 27 November 1985
• Docket Number: No. 85 Civ. 7634 (PKL).,85 Civ. 7634 (PKL).
• Parties: Susan ROSENBERG, Plaintiff, v. Edwin MEESE, III, Attorney General of the United States; Norman Carlson, Director of the Bureau of Prisons; Stephen Grzgorek, Regional Director of the Bureau of Prisons; and Douglas Lansing, Warden of the Metropolitan Correctional Center, New York City, Defendants.
• Court: U.S. District Court — Southern District of New York

622 F. Supp. 1451

Susan ROSENBERG, Plaintiff, v. Edwin MEESE, III, Attorney General of the United States; Norman Carlson, Director of the Bureau of Prisons; Stephen Grzgorek, Regional Director of the Bureau of Prisons; and Douglas Lansing, Warden of the Metropolitan Correctional Center, New York City, Defendants.

No. 85 Civ. 7634 (PKL).

United States District Court, S.D. New York.

November 27, 1985.

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Lubell & Lubell, New York City (Mary K. O'Melveny, of counsel), and Holmes & Tipograph, New York City (Judith L. Holmes, of counsel), for plaintiff.

Rudolph W. Giuliani, U.S. Atty. S.D. New York, New York City (Frederick M. Lawrence, Asst. U.S. Atty., of counsel), for defendants.

OPINION

LEISURE, District Judge:

This is an action for injunctive relief and damages. Plaintiff Susan Rosenberg ("Rosenberg") is a federal prisoner currently incarcerated at the Metropolitan Correctional Center in New York City ("MCC-NY"). Defendants, who have been sued both in their individual and official capacities, are: Edwin Meese, III, the Attorney General of the United States; Norman Carlson ("Carlson"), the Director of the Bureau of Prisons ("BOP"); Stephen Grzgorek, the Northeast Regional Director of the BOP; and Douglas Lansing, the Warden of MCC-NY.

Plaintiff seeks a preliminary and permanent injunction enjoining defendants, their agents, employees and those acting in concert with them, from designating Rosenberg to any Metropolitan Correctional Center ("MCC"). Plaintiff also seeks a preliminary and permanent injunction enjoining defendants, their agents, employees and those acting in concert with them, from basing any decisions regarding Rosenberg's conditions of confinement, treatment, security classification or designation on unproven allegations of criminal conduct. These claims for injunctive relief are based on the alleged violation of plaintiff's rights under the First, Fifth, Sixth and Eighth Amendments to the United States Constitution. Plaintiff further seeks a declaratory judgment declaring that defendants' actions have violated those constitutional rights. Finally, plaintiff seeks compensatory damages in the amount of $250,000, as well as punitive damages in the amount of $1,000,000. This Court's subject matter jurisdiction in this action, to the extent it exists, is primarily based on 28 U.S.C. § 1331.¹

Defendants have moved to dismiss the complaint as moot, and the Court has conducted an evidentiary hearing on plaintiff's motions for injunctive relief. At the present time, the following matters are before me: 1) whether plaintiff's complaint, in whole or in part, has been rendered moot by certain actions of the Bureau of Prisons; 2) whether, as to any claims which have not been rendered moot, a preliminary injunction should be granted; and 3) whether, as to any claims which have not been rendered moot, a permanent injunction should be ordered.

I. FACTS AND PROCEDURAL BACKGROUND

On November 24, 1982, Susan Rosenberg was named as a defendant in a superseding indictment filed in the United States District Court for the Southern District of New York (SSS 82 Cr. 312) (hereinafter referred to as the "Brinks indictment"). That indictment charged Rosenberg and ten other named defendants with, inter alia, participating in a criminal enterprise (allegedly known to its own members as "The Family") in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq.² Rosenberg herself was charged with two RICO counts (18 U.S.C. § 1962(c), (d)) and six counts of bank robbery (18 U.S.C. § 2113).³

Although a jury trial on the Brinks indictment took place during 1983,⁴ several defendants, including Rosenberg, were fugitives from justice and thus were not then tried.

On November 29, 1984, Rosenberg was arrested by the New Jersey police while she and a companion, Timothy Blunk, were attempting to gain access to a storage bin at a public storage facility in Cherry Hill, New Jersey, that Rosenberg had previously rented under an assumed name. Pursuant to a search warrant obtained the night of the arrest, a collection of weapons, explosives and ammunition were discovered in the storage bin, as well as in the car and U-Haul that Rosenberg and Blunk had driven to the facility. See Memorandum of the United States Regarding Sentencing in United States v. Susan Rosenberg, 84 Cr. 360 (D.N.J.) ("Presentence Memorandum") at 3-8.⁵

Although the charges in the Brinks indictment were still pending against Rosenberg, she was first tried on charges based on the November, 1984 incident in New Jersey. She and Timothy Blunk were brought to trial before the Honorable Frederick B. Lacey, United States District Judge of the District of New Jersey. On March 17, 1985, she was convicted by the jury of one count of conspiracy to possess firearms, explosives and false identification (18 U.S.C. § 371); three counts of possession of unregistered firearms (26 U.S.C. §§ 5861(d), 5871); one count of carrying explosives during the commission of a felony (18 U.S.C. § 844(h)(2)); and four counts relating to possession of false identification documents and counterfeit Social Security cards (18 U.S.C. § 1028; 42 U.S.C. § 408). On May 20, 1985, Judge Lacey sentenced Rosenberg to the maximum term of imprisonment on each count, a total of fifty-eight (58) years, the terms to run consecutively.

Following the imposition of sentence, Rosenberg was returned to MCC-NY, the same facility in which she had been incarcerated since December 1, 1984. In August, 1985, Rosenberg was informed by a member of the MCC-NY staff that she had been classified as a security level # 4 prisoner, and that she had been designated for incarceration at the Metropolitan Correctional Center in Chicago, Illinois ("MCC-Chicago"). See Rosenberg Affidavit in Support of Motion for Preliminary Injunction ("Rosenberg Affidavit") at 9. For the time being, however, she was being held in MCC-NY pending trial on the charges contained in the Brinks indictment.

On August 30, 1985, the government requested that an order of nolle prosequi be entered as to the charges pending against Rosenberg that were contained in the Brinks indictment, and this Court (per Duffy, D.J.) granted the government's request.

The government's decision to drop all charges against Rosenberg took her counsel somewhat by surprise, in part because they had anticipated using the time that their client would be on trial for the Brinks charges to consult with her regarding the appeal of her sentence by the New Jersey District Court. Now faced with Rosenberg's imminent transfer from MCC-NY, her counsel sought to postpone the satisfaction of Rosenberg's writ of detainer, since, if the writ were marked satisfied, there would be no obstacle to prevent her from being transferred to another penal institution in another state. On September 12, 1985, this Court (per Haight, D.J.) agreed to postpone satisfaction of the writ until October 1, 1985. Memorandum and Order, SSS82 Cr. 312 (CSH) (S.D.N.Y. September 12, 1985). In issuing that Order, Judge Haight stated that "counsel for Ms. Rosenberg informs me, and the Government does not dispute, that the Bureau of Prisons has designated Ms. Rosenberg to serve the 58-year sentence imposed by the New Jersey District Court at the Metropolitan Correctional Center, Chicago." Id. at 1.

The good-faith belief of Rosenberg and her counsel, alluded to by Judge Haight, that Rosenberg had been permanently designated to MCC-Chicago, was apparently the impetus for the present proceeding, which is a civil, rather than a criminal, action. On September 26, 1985, Rosenberg's counsel appeared before me with an order to show cause, asking me to grant a temporary restraining order that would enjoin defendants herein, or their agents from transferring her from MCC-NY to any other facility pending determination of her application for a preliminary injunction. In that application, Rosenberg also sought broad injunctive and legal relief, including, inter alia, a preliminary and permanent injunction enjoining the Bureau of Prisons from designating Susan Rosenberg to MCC-Chicago or any other MCC facility.

The essence of plaintiff Rosenberg's argument, as I understood it at the September 26 hearing, was that the BOP, by deciding that Rosenberg should serve the duration of her 58-year sentence in a short-term holding facility with severely limited educational and recreational activities,⁶ was acting unconstitutionally and was abusing its discretion. In response, however, the government informed this Court that the MCC-Chicago designation was no longer in effect, and suggested that plaintiff's fears of permanent designation to a short-term holding facility were ill-founded.⁷ Largely on the basis of such assurances, I declined to grant plaintiff's application for a TRO. I did, however, schedule a hearing in approximately two weeks on plaintiff's motions for preliminary and permanent injunctions (which motions, I suggested, and counsel for both sides agreed, would be consolidated by this Court).

When the parties in the present action appeared before me for a second time on October 10, 1985, I was informed of two significant developments. First, Susan Rosenberg had still not been transferred from MCC-NY, because Judge Haight had, in the interim, extended the date for satisfaction of Rosenberg's writ of detainer to October 14, 1985. See Order, SSS82 Cr. 312 (CSH) (S.D.N.Y. September 26, 1985). Second, Rosenberg had been officially designated to a Metropolitan Correctional Center in Tucson, Arizona ("MCC-Tucson").

At the October 10 hearing, it was the government's position that this redesignation to MCC-Tucson was dispositive of the entire matter before me. The government argued that even if, arguendo, longterm incarceration of a federal prisoner in MCC-NY or MCC-Chicago was impermissible, designation of Rosenberg to MCC-Tucson was "perfectly appropriate."...