Sostre v. McGinnis

Citation442 F.2d 178
Decision Date24 February 1971
Docket NumberDocket 35038.,No. 180,180
PartiesMartin SOSTRE, Plaintiff-Appellee, v. Paul D. McGINNIS, Commissioner of Correction of the State of New York, Vincent Mancusi, Warden of Attica Prison, and Harold W. Follette, Warden of Green Haven Prison, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)



Kristin Booth Glen, New York City (Victor Rabinowitz, David Rosenberg, Rabinowitz, Boudin & Standard, New York City, of counsel), for appellee.

Hillel Hoffman, Asst. Atty. Gen., of N. Y. (Louis J. Lefkowitz, Atty. Gen., Samuel A. Hirshowitz, First Asst. Atty. Gen., and Mark T. Walsh, Asst. Atty. Gen., on the brief), for appellant.

William Bennett Turner, San Francisco, Cal. (Jack Greenberg, Stanley A. Bass, New York City, on the brief), amicus curiae, for the N.A.A.C.P. Legal Defense and Educational Fund, Inc., and the National Office for the Rights of the Indigent.

Haywood Burns, Lowell Johnston, Margaret Burnham, New York City, on the brief, amicus curiae, for The National Conference of Black Lawyers.

Before LUMBARD, Chief Judge, WATERMAN, Senior Circuit Judge,* and MOORE, FRIENDLY, SMITH, KAUFMAN, HAYS, ANDERSON and FEINBERG, Circuit Judges.

Argued to the court in banc October 21, 1970.

IRVING R. KAUFMAN, Circuit Judge:

We voted to hear the initial argument of this appeal en banc, a procedure we reserve for extraordinary circumstances, so that we might give plenary review to a complex of urgent social and political conflicts persistently seeking solution in the courts as legal problems, a phenomenon de Tocqueville commented upon many years ago. Democracy in America, vol. I at 290 (Vintage ed. 1945). The elaborate opinion and order below raise important questions concerning the federal constitutional rights of state prisoners which neither Supreme Court precedent nor our own past decisions have answered. The sparse authority from other courts is for the most part either inconclusive or conflicting.


This is an appeal from an order entered May 14, 1970, by Judge Motley, sitting in the Southern District of New York, 312 F.Supp. 863, which granted plaintiff Martin Sostre punitive and compensatory damages against defendants Follette and McGinnis as well as a wide variety of injunctive relief in his action pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983, and 28 U.S.C. §§ 1331, 1343(3). At the time Sostre filed his handwritten complaint, he was incarcerated in New York's Green Haven Prison (now called Green Haven Correctional Facility), serving a sentence of thirty to forty years for selling narcotics, followed by thirty days further imprisonment for contempt of court, imposed on him March 18, 1968. The original defendants included the Governor of New York as well as the State Commissioner of Correction, appellant McGinnis; the Warden of Green Haven, Harold W. Follette, who died shortly before the opinion below was entered;1 and the Warden of Attica Prison (now called Attica Correctional Facility), appellant Vincent Mancusi. Sostre had been confined for one night in Attica immediately after sentencing, them transferred the following day to Green Haven.

Sostre does not appeal from the dismissal by the district court of his action against the Governor, in which Sostre had asserted the Governor's complicity in racial discrimination in the administration of New York's prison system.

Because there was no finding below that Warden Mancusi had in any way violated Sostre's constitutional rights, the case against him should also have been dismissed. In refusing this dismissal, Judge Motley observed that Commissioner McGinnis "has the power to re-transfer Sostre to Attica." 312 F. Supp. at 877 n. 8. The relevance of this admitted fact escapes us. After bringing this law suit, Sostre was transferred to Wallkill State Prison, but we suppose that would not justify an injunction directed against the Warden there.

We agree with the district court that Sostre was not required as a precondition of maintaining this suit to perform the meaningless and plainly futile gesture of writing a letter to defendant McGinnis. See Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968) (per curiam); Eisen v. Eastman, 421 F.2d 560 (2d Cir. 1969). The record amply supports the district court's finding that the State Commissioner of Correction "had already been informed of the facts" and further enlightenment from Sostre himself could not have been expected to affect his attitude or his inaction.2 312 F.Supp. at 881-882. Nor is exhaustion of state legal or equitable remedies necessary to a Section 1983 action, which provides "a remedy in the federal courts supplementary to any remedy any State might have." McNeese v. Board of Education, 373 U.S. 668, 672, 83 S.Ct. 1433, 1435, 10 L.Ed.2d 622 (1963). See King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968); Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L. Ed.2d 647 (1967) (per curiam); Wright v. McMann, 387 F.2d 519, 522-523 (1967).

Moreover, because Sostre "is not challenging the validity of his sentence with the ultimate object of obtaining release" from prison, Hancock v. Avery, 301 F.Supp. 786, 791 (M.D.Tenn.1969), his Section 1983 petition is clearly not a mere sham procedure to avoid the exhaustion requirement of the federal habeas corpus statute, 28 U.S.C. § 2254(b), (c). Cf. Smartt v. Avery, 411 F.2d 408 (6th Cir. 1967); Kalec v. Adamowski, 406 F.2d 536 (7th Cir. 1969); Peinado v. Adult Auth., 405 F.2d 1185, 1186 (9th Cir.), cert. denied, 395 U.S. 968, 89 S.Ct. 2116, 23 L.Ed.2d 755 (1969); Johnson v. Walker, 317 F.2d 418, 419-420 (5th Cir. 1963); King v. McGinnis, 289 F. Supp. 466 (S.D.N.Y.1968).

A. Circumstances of Sostre's Commitment to Punitive Segregation

On June 25, 1968, Warden Follette ordered that Sostre be committed pursuant to Section 140 of the New York Correction Law, McKinney's Consol. Laws, c. 43,3 to "solitary confinement" (the words in the statute) or "punitive segregation" (the term adopted by Judge Motley and by the parties on appeal, which we will use for that reason and also because he was not as isolated in his segregation as "solitary" would imply). The parties vigorously disagree as to the considerations that motivated Follette to inflict this punishment.

On June 25, 1968, the day he put Sostre in segregation, Follette called Sostre to his office. At this meeting, Follette questioned Sostre about his attempt that morning to mail to an attorney, Miss Joan Franklin of the National Association for the Advancement of Colored People, a letter with handwritten legal papers attached, including a motion for use in the trial of Mrs. Geraldine Robinson. Mrs. Robinson is described by Judge Motley and the parties on appeal as Sostre's "codefendant." Although she was joined with Sostre in the indictment which resulted in Sostre's imprisonment, they were not tried together. Follette told Sostre "he must confine his legal activities to his own incarceration" and accordingly that the motion would not be mailed. Follette explained that he objected to Sostre's attempt to "practice law" without a license. Sostre believed that he had a right to mail legal papers in behalf of Mrs. Robinson and refused to assure Follette, as Follette requested, that he would discontinue attempting to mail such documents through normal prison channels.

During the same interview, Follette questioned Sostre about a reference to an organization known as "R.N.A.," mentioned by Sostre in his letter to Miss Franklin and to which Sostre had referred in earlier correspondence. "R.N. A." in fact referred to the Republic of New Africa, which Sostre identified at the trial before Judge Motley as a black liberation or black separatist organization. Sostre disputed Follettee's tstimony that Sostre had lied about R.N.A. at the June 25 interview by persistently claiming at that time that it was a "federal agency * * * `Recovery National Administration' or something like this." Sostre did admit, as Follette asserted at trial, that after responding to a few questions Sostre refused to discuss R.N.A. further. The plaintiff's justification for his silence was that Follette had persisted in labelling R.N. A. a "subversive organization." Sostre "clammed up," as he testified, to avoid antagonizing Follette by further explaining or defending R.N.A.

Follette testified without contradiction that the organization known as the Republic of New Africa was of sufficient concern to him to have been the object of an investigation before the interview with Sostre. Follette feared that "this organization was a cloak for an attempt to organize prison inmates for riot and insurrection," based on information obtained from the F.B.I. and the New York State and Buffalo City Police. "The possibility of insurrection at Green Haven" was a "major fear" to Follette at all times, but particularly so in June, 1968. Security at the prison had been weakened, in Follette's view, by an exceptionally high turnover of correction officers, approaching a rate of about fifty percent each year. An influx of new officers had not yet been cleared through the New York State Identification and Intelligence System. Moreover, Sostre had exacerbated Follette's concern with the possibility of major disorder because of a statement in a letter that Sostre had written to his sister, dated May 19, 1968:

As for me, there is no doubt in my mind whatsoever that I will be out soon, either by having my appeal reversed in the courts or by being liberated by the Universal Forces of Liberation.

This sentence is included in a broad indictment of militarism and oppression in this country and a prediction that "the power structure" would soon be overthrown.

Follette insists that his decision to commit Sostre to segregation reflected (1)...

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