Sostre v. Rockefeller, 68 Civ. 4058.

Citation312 F. Supp. 863
Decision Date14 May 1970
Docket NumberNo. 68 Civ. 4058.,68 Civ. 4058.
PartiesMartin SOSTRE, Plaintiff, v. Nelson A. ROCKEFELLER, Paul D. McGinnis, Vincent Mancusi and Harold W. Follette, Defendants.
CourtU.S. District Court — Southern District of New York

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Rabinowitz, Boudin & Standard, by Victor Rabinowitz and Kristin Glen, New York City, for plaintiff.

Louis J. Lefkowitz, Atty. Gen., State of New York, by Mark T. Walsh and Hillel Hoffman, Asst. Attys. Gen., New York City, for defendants.

OPINION

FINDINGS OF FACT, CONCLUSIONS OF LAW

MOTLEY, District Judge.

This is a civil rights action, 42 U.S.C. § 1983, 28 U.S.C. § 1343(3), brought by plaintiff, Martin Sostre, an "Afro-American citizen of the United States" and resident of Green Haven Prison against the Governor of New York, the Commissioner of Corrections and the Wardens of two New York State prisons.1

Mr. Sostre is no stranger to the New York State prison system, having already served twelve years, 1952-1964, four of which were spent in solitary confinement at Attica State Prison for Black Muslim activity. (T. 3, 7, 160-166). He is also no stranger to the federal courts with his civil rights complaints against New York prison officials. (T. 4). He secured for Black Muslim prisoners their rights to certain unrestricted religious liberties during his prior incarceration. Pierce, Sostre, Sa Marion v. La Vallee, 293 F.2d 233 (2d Cir. 1961) and Sostre v. McGinnis, 334 F.2d 906 (2d Cir.), cert. den., 379 U.S. 892, 85 S.Ct. 168, 13 L.Ed. 2d 96 (1964). His earlier legal activity also resulted in the elimination of some of the more outrageously inhumane aspects of solitary confinement in some of the state's prisons.2 (T. 163, 167).

Martin Sostre is again in prison. This time he is there pursuant to a sentence of 30-40 years, to be followed by a one year sentence and a sentence of 30 days for contempt of court, imposed upon him by the Supreme Court of New York, Erie County, on March 18, 1968. (Def. Proposed Finding of Fact No. 1 and Exh. A).

On the day of his sentence, he was immediately taken to Attica Prison where he remained overnight in a cell block which contained no other prisoners. (T. 5-6, 157-158). The next morning, he was taken in a "one-man draft" to Green Haven Prison. (T. 6, 538). According to the Deputy Warden in charge of Attica (the warden, a defendant here, being on vacation), he sought Sostre's removal from that prison as soon as possible. (T. 520). He, therefore, called the office of the Commissioner of Corrections of the State of New York and spoke to the Deputy Commissioner who approved the transfer. (T. 520-521; Def. Proposed Finding of Fact No. 11). The Deputy Warden of Attica testified vaguely and without substantiation as follows: "I thought it was best for the interests of the inmate and for the state that this man be transferred to another institution." (T. 521).

Immediately after his arrival at Attica, Sostre began a legal battle for reversal of his conviction.3 He sought to mail an application for a certificate of reasonable doubt to the state court which he had prepared prior to sentence, but the guard at Attica refused to mail the application. (T. 181-182, 638-640).

The next day, Sostre found himself in solitary confinement in Green Haven where he remained for several days. (T. 8-9, 11; Pl. Exh. 37 at 2; Def. Proposed Finding of Fact No. 13). He was then permitted to join the general population and to mail his application for a certificate of reasonable doubt. (T. 259-260).

However, shortly thereafter, on June 25, 1968, Sostre was back in solitary confinement (now called "punitive segregation" by defendants). He remained in such confinement until July 2, 1969, when he was returned to the general population pursuant to a temporary restraining order issued by this court in the present action, followed by a preliminary injunction. 309 F.Supp. 611 (S.D. N.Y. Sept. 4, 1969). A trial followed upon which were established the facts found herein and upon which the relief granted in this opinion is based.

On June 25, 1968, Sostre placed in the prison mail box for mailing to his attorney a letter with handwritten legal motions and other papers attached. One of these was a motion for change of venue of the trial of his codefendant, Mrs. Geraldine Robinson, who had not yet been tried, from Erie County (Buffalo). (T. 50, 53; Pl. Exh. 17). He was called to the office of defendant Follette, Warden of Green Haven Prison, who had the papers on his desk. The Warden asked Sostre whether he had a license to practice law, to which he replied in the negative. (T. 51). The Warden admittedly denied Sostre the right to prepare legal papers for his codefendant, since he was not a licensed attorney, and flatly refused to mail out the motion papers. (Def. Proposed Finding of Facts No. 24-25; T. 1240-1241).

At the same time, Warden Follette questioned Sostre about a reference in his letter to his attorney about an organization known as R.N.A. (Republic of New Africa) "because defendant Follette was concerned about a statement in plaintiff's May 19, 1968 letter to his sister." (Def. Proposed Finding of Fact No. 28; T. 1241-1242; Pl. Exh. 29F). This statement reads:

"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. The fact that the militarists of this country are being defeated in Viet Nam and are already engaged with an escalating rebellion in this country by the oppressed Afro-American people and their white allies are sure signs that the power structure is on its way out. They are now in their last days and soon they won't be able to oppress anybody because they themselves will be before the People's courts to be punished for their crimes against humanity as were the German war criminals at Nuremberg." (Pl. Exh. 19; Def. Proposed Finding of Fact No. 28).

It is undisputed that as a result of plaintiff's refusal to cease and desist from "practicing law" in the institution, and his refusal to answer questions about R.N.A., and because of the statement in plaintiff's letter to his sister that "he would be leaving the institution soon," defendant Follette decided to place plaintiff in the punitive segregation unit. (Def. Proposed Finding of Fact No. 31; T. 1248-1249).

The proof also established: 1) plaintiff received no prior written notice of the above charges which resulted in his segregation; 2) there was no record made of the discussion with the Warden; 3) defendant McGinnis, the Commissioner of Corrections, was notified of plaintiff's confinement and the reasons therefor but took no action (T. 692-700; Pl. Exh. 29, 29A-F); 4) plaintiff was not charged with violence, attempting to escape, incitement to riot or any similar charge; and 5) plaintiff remained in segregation from June 25, 1968 until released by order of this court, more than a year later, on July 2, 1969.4

The parties have stipulated that as a result of solitary confinement for more than a year, Sostre has lost 124 1/3 days of "good time" credit, since under the rules a prisoner in solitary cannot earn good time. N.Y.Correction Law §§ 230, 234 (McKinney's Consol.Laws c. 43, 1968); Pl. Exh. 1 at 5, Pl. Exh. 31; Reply Brief of Def. at 20.

There is also no real dispute as to the conditions which obtained in punitive segregation during plaintiff's yearlong stay. There was only one other person incarcerated in the same group of cells as plaintiff (about four out of thirteen months) from August 14, 1968 to December 20, 1968. (Def. Proposed Finding of Fact No. 55; T. 97-98). One prisoner brought to solitary and placed in another group of cells committed suicide the next day. (T. 127-131, 400-406, 793, 839, 895-896, 905-906). Plaintiff was deprived of second portions of food (T. 887-888) and all desserts as a punishment for the entire time. (Def. Proposed Finding of Fact No. 41). He remained in his cell for 24 hours per day. He was allowed one hour per day of recreation in a small, completely enclosed yard. Sostre refused this privilege because it was conditioned upon submission, each day to a mandatory "strip frisk" (completely naked) which included a rectal examination. (Def. Proposed Finding of Facts No. 37-38; T. 88-90). He was permitted to shower and shave with hot water only once a week. (Def. Proposed Finding of Fact No. 34). He was not permitted to use the prison library, read newspapers, see movies, or attend school or training programs. (T. 91-93, 96-97). He was not allowed to work. (T. 91). Prisoners in the general population who work are able to earn money with which they may purchase items from the prison commissary, or purchase books, or subscribe to newspapers. (T. 93). Prisoners in punitive segregation have access to only a few novels and "shoot-'em ups" selected for them. (T. 92-93). But, as plaintiff and defendants' counsel put it, the crux of the matter is human isolation—the loss of "group privileges." (T. 87-88, 165-166). Release from segregation is wholly within the discretion of the Warden. However, a recommendation from a non-professional, so-called, group therapy counsellor might help. (T. 134-136, 388, 773-774, 917, 921).

This court finds that punitive segregation under the conditions to which plaintiff was subjected at Green Haven is physically harsh, destructive of morale, dehumanizing in the sense that it is needlessly degrading, and dangerous to the maintenance of sanity when continued for more than a short period of time which should certainly not exceed 15 days. (T. 300, 317-320).

After plaintiff was sent to solitary confinement on June 25, 1968, his cell was searched. The Warden alleged in an affidavit filed on July 3, 1969 that the search revealed contraband. This consisted of: 1) a letter from a court belonging to another inmate (which plaintiff was translating into Spanish for that other inmate (...

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