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May 14, 1970

Martin SOSTRE, Plaintiff,
Nelson A. ROCKEFELLER, Paul D. McGinnis, Vincent Mancusi and Harold W. Follette, Defendants

Motley, District Judge.

The opinion of the court was delivered by: MOTLEY


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. *fn1"

 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. *fn2" (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. *fn3" 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. *fn4"

 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 (T. 66-67; Pl. Exh. 21); and 2) two small pieces of emery paper. (Pl. Exh. 37, at 2; T. 683-684). A Disciplinary Report dated June 25, 1968 (Pl. Exh. 22-C) records that plaintiff was reprimanded for possessing the letter. There is no similar report regarding the emery paper, although the Warden alleged both items were found at the same time. (Pl. Exh. 37, at 2). The Warden claims that the emery paper was "adaptable for the fashioning of a key or lock picking tool." (Pl. Exh. 37, at 2). Plaintiff denied ever having seen the emery paper before trial. (T. 65-67). The court believes plaintiff's testimony for the following reasons: 1) plaintiff was already in punitive segregation when the emery paper was allegedly found in his cell; 2) the Disciplinary Report of June 25, 1968 does not contain this charge (Pl. Exh. 22-C); 3) the first written recordation of any such charge against Sostre does not appear until October 29, 1968, shortly after Sostre filed his pro se complaint in this action on October 15, 1968 (Pl. Exh. 29-F); 4) defendants have not requested this court to make any finding with respect to the emery paper in their proposed findings of fact. On June 25, 1968, search of Sostre's cell also revealed that he was lending his law books to other inmates, after removing therefrom a stamp identifying these books (which turned out to be copies of the Harvard Law Review) as belonging to Sostre. (Follette Dep. 62-64, 117). This along with the two preceding charges was one of the charges originally put forth by defendants as a reason for Sostre's confinement but dropped upon the trial (T. 1248-1249, 683-684).

 The day after plaintiff's court-ordered release from segregation, July 3, 1969, he was again disciplined. This time he was charged with having dust on his cell bars. The punishment was to confine him to his cell for several days. Again, plaintiff denied this charge, claiming he was so charged and punished in order that he would miss the regular July 4th celebration. This celebration would have brought Sostre in contact with prisoners from another part of the prison. Such contact is permitted only once a year on July 4. (T. 78-79). This court finds that this charge and punishment were imposed upon Sostre in retaliation for his legal success.

 On or about August 3, 1969, plaintiff was again disciplined for having "inflammatory racist literature" in his cell. The punishment was deprivation of yard and movie privileges for 60 days. (T. 74-77, 1071-1073). The so-called "inflammatory racist literature" consisted of handwritten political articles by Sostre, some of which contained excerpts from articles printed in newspapers and magazines in general circulation in the prison (T. 72-77; Pl. Exh. 23) and lists of officers of the Black Panther Party and the Republic of New Africa, copied from similar articles in Esquire and other magazines. (T. 72).

 All of plaintiff's letters to and from his attorney, Joan Franklin, were censored by the Warden. He excised therefrom everything which he believed was not directly related to Sostre's immediate case. (Pl. Exh. 3, 4, 7, 8, 10, 12, 13, 14, 19-23, 29-30, 33-38; Follette Dep. at 69, 70, 136, 139). And a letter to the Postal Inspector of the United States Post Office complaining about plaintiff's failure to receive receipts for certified mail was also not mailed by the Warden. (Pl. Exh. 11; T. 35).

 This court finds from all of the facts and circumstances of this case, as set forth above, that Sostre was sent to punitive segregation and kept there until released by court order not because of any serious infraction of the rules of prison discipline, or even for any minor infraction, but because Sostre was being punished specially by the Warden because of his legal and Black Muslim activities during his 1952-1964 incarceration, because of his threat to file a law suit against the Warden to secure his right to unrestricted correspondence with his attorney and to aid his codefendant (T. 52; Def. Post Trial Brief at 20, 32) and because he is, unquestionably, a black militant who persists in writing and expressing his militant and radical ideas in prison. (T. 71-77, 1316-1319; Pl. Exh. 23).

 I. Cruel and Unusual Punishment

 Plaintiff claims that his confinement to punitive segregation for an indefinite period of time amounted to cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments to the Constitution, arising not only from the reasons for his confinement and the length of his confinement, but also from the conditions of his confinement. *fn5" This court agrees and so holds. See Wright v. McMann, 387 F.2d 519 (2d Cir. 1967).

 Prisoners at Green Haven may prepare legal papers for themselves. There is no rule of the prison which prohibits inmates from preparing legal papers for their non-inmate codefendants. However, the rules do bar inmates, except upon approval of the Warden, from assisting "other inmates in the preparation of legal papers." (Pl. Exh. 1, Rule 21, Inmates' Rule Book). The Warden claims he relied upon the decision of the New York Court of Appeals in Brabson v. Wilkins, 19 N.Y. 2d 433, 280 N.Y.S. 2d 561, 227 N.E. 2d 383 (1967), in denying plaintiff the right to prepare and mail out a motion for his codefendant and in punishing him for this act. In Brabson, the majority expressly refused to follow the decision of the District Court in Johnson v. Avery, 252 F. Supp. 783 (M.D. Tenn. 1966), upholding the right of a state prisoner to prepare a federal writ of habeas corpus for another state prisoner. In Johnson, the prisoner-plaintiff who had prepared the writ had been sent to solitary confinement. He was ordered released by the District Court. Subsequent to the filing of this law suit (October 15, 1968) the United States Supreme Court, on February 24, 1969, affirmed the District Court's decision in Johnson v. Avery, supra, aff'd 393 U.S. 483, 89 S. Ct. 747, 21 L. Ed. 2d 718 (1969), rev'ng 382 F.2d 353 (6th Cir. 1967). *fn6"

 The fact that the Warden continued to confine Sostre to punitive segregation after the Supreme Court's decision in Johnson v. Avery, supra, on February 24, 1969, makes it clear that although the Warden assigned as a reason for such confinement the fact that Sostre prepared a motion for a codefendant, this was not a bona fide reason for such confinement. But even if Follette did, in fact, discipline plaintiff in 1968 for preparing a motion for his codefendant in violation of the dictates of Brabson, this court holds that the punishment imposed upon Sostre for this offense, which was indefinite confinement to punitive segregation, was so disporportionate to the offense committed as to amount to cruel and unusual punishment. Weems v. United States, 217 U.S. 349, 30 S. Ct. 544, 54 L. Ed. 793 (1910); Fulwood v. Clemmer, 206 F. Supp. 370 (D.C.D.C. 1962). It is clear from all of the facts in this case that but for the intervention of this court (which released Sostre from confinement after more than a year) Sostre would, in all likelihood, still be in punitive segregation for this alleged offense.

 The Warden claimed that he assigned Sostre to punitive segregation because Sostre refused to answer "fully and truthfully" questions put to him by the Warden about the meaning of the letters R.N.A. (Pl. Exh. 1, Rule 12, Inmates' Rule Book). The court disbelieves that ambiguous claim. But even if this were true, assignment to punitive segregation for an indefinite period of time for this infraction of the rules is likewise so disproportionate to the charge, as to be clearly barred by the Eighth Amendment's prohibition against disproportionate punishment.

 The court also holds that the totality of the circumstances to which Sostre was subjected for more than a year was cruel and unusual punishment when tested against "the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U.S. 86, 101, 78 S. Ct. 590, 598, 2 L. Ed. 2d 630 (1958) (Opinion of Warren, C.J.). Accord, Jackson v. Bishop, 404 F.2d 571, 579 (8th Cir. 1968); Jordan v. Fitzharris, 257 F. Supp. 674, 679 (N.D. Cal. 1966). See Wright v. McMann, supra ; The American Correctional Association, Manual of Correctional Standards, 414-415 (3rd ed. 1966); The American Law Institute, Model Penal Code § 304.7(3) (Proposed Official Draft 1962); Note, The Problems of Modern Penology: Prison Life and Prisoners' Rights, 53 Iowa L. Rev. 671, 672 (1967); (T. 511).

 "[This] condemnation of segregation is the experience years ago of people going stir crazy, especially in segregation." (T. 320). The conditions which undeniably existed in punitive segregation at Green Haven, this court finds, "could only serve to destroy completely the spirit and undermine the sanity of the prisoner," Wright v. McMann, supra, 387 F.2d at 526, when imposed for more than fifteen days. Subjecting a prisoner to the demonstrated risk of the loss of his sanity as punishment for any offense in prison is plainly cruel and unusual punishment as judged by present standards of decency. Cf. Ex parte Medley, 134 U.S. 160, 167-170, 10 S. Ct. 384, 33 L. Ed. 835 (1890). In order to be constitutional, punitive segregation as practiced in Green Haven must be limited to no more than fifteen days and may be imposed only for serious infractions of the rules.

 II. Procedural Due Process

 Plaintiff claims that his confinement to segregation for more than a year was effected in violation of his right not to be deprived of his liberty without due process of law as guaranteed by the Fifth and Fourteenth Amendments to the Federal Constitution, in that: 1) he was sentenced to such confinement for offenses which under the rules of the prison did not constitute offenses; 2) with respect to the charge involving the emery paper there was no proof that he had such paper in his possession; 3) he did not receive advance written notice of the charges; 4) he was denied the right to assistance of counsel or a counsel substitute; 5) he was denied the right to call witnesses in rebuttal of the charges; 6) he was denied the right to confront or cross-examine witnesses; 7) there were no written records of the disciplinary proceedings against him other than a notation of the charges, plaintiff's plea, and defendants' summary determination of guilt; *fn7" 8) the right to appeal and the ability to make a meaningful appeal were denied as a result of the omission of his right to counsel, to call and cross-examine witnesses, and to have a written record.

 As a result of his confinement, plaintiff lost 124 1/3 days of good time which might otherwise have been applied both to hasten consideration of his eligibility for parole and in mandating his release on parole. N.Y. Correction Law §§ 230, 803 (McKinney 1968).

 Very recently, the Supreme Court reiterated the firmly established due process principle that where governmental action may seriously injure an individual, and the reasonableness of that action depends on fact findings, the evidence used to prove the government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue. The individual must also have the right to retain counsel. The decision-maker's conclusion must rest solely on the legal rules and evidence adduced at the hearing. In this connection, the decision-maker should state the reasons for his determination and indicate the evidence upon which he relied. Finally, in such cases, the high Court ruled, an impartial decision-maker is essential. Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970); accord, Escalera v. New York City Housing Authority, 425 F.2d 853 (2d Cir. 1970).

 This court holds that plaintiff was, in effect, "sentenced" to more than a year in punitive segregation without the minimal procedural safeguards required for the imposition of such drastic punishment upon a prisoner. This punishment not only caused plaintiff physical deprivation, needless degradation, loss of work, training and self improvement opportunities, and mental suffering, but materially affected the length of time he must serve under his courtimposed sentence.

 Before plaintiff could have been constitutionally "sentenced" to punitive segregation, he was entitled to: 1) written notice of the charges against him (in advance of a hearing) which designated the prison rule violated; 2) a hearing before an impartial official at which he had the right to cross-examine his accusers and call witnesses in rebuttal; 3) a written record of the hearing, decision, reasons therefor and evidence relied upon; and 4) retain counsel or a counsel substitute.

 A prisoner carries with him to prison his right to procedural due process which applies to charges for which he may receive punitive segregation or any other punishment for which earned good time credit may be revoked or the opportunity to earn good time credit is denied. There is no place in our system of law for reaching the result which occurred here without the safeguards listed above. Mempa v. Rhay, 389 U.S. 128, 88 S. Ct. 254, 19 L. Ed. 2d 336 (1967); In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967); Kent v. United States, 383 U.S. 541, 554, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966); Hewett v. State of North Carolina, 415 F.2d 1316 (4th Cir. 1969); Shone v. State of Maine, 406 F.2d 844 (1st Cir.), vacated as moot, 396 U.S. 6, 90 S. Ct. 25, 24 L. Ed. 2d 6 (1969); cf. Talley v. Stephens, 247 F. Supp. 683, 689 (E.D. Ark. 1965).* Prisoners do not lose all of their rights under the Constitution when sentenced to prison. Washington v. Lee, 263 F. Supp. 327 (M.D. Ala. 1966), aff'd per curiam, 390 U.S. 333, 88 S. Ct. 994, 19 L. Ed. 2d 1212 (1968); 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); Pierce, Sostre, Sa Marion v. La Vallee, 293 F.2d 233 (2d Cir. 1961). And basic constitutional rights cannot be sacrificed, even in the case of prisoners, "in the interest of administrative efficiency." United States ex rel. Marcial v. Fay, 247 F.2d 662, 669 (2d Cir. 1957), cert. denied, 355 U.S. 915, 78 S. Ct. 342, 2 L. Ed. 2d 274 (1958); Burns v. Swenson, 288 F. Supp. 4 (W.D. Mo. 1968), modified, 300 F. Supp. 759 (W.D. Mo. 1969). See President's Commission on Law Enforcement and Administration of Justice, Task Force Report: Corrections 82-83 (1967); President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 181 (1967). See also Barkin, The Emergence of Correctional Law and the Awareness of the Rights of the Convicted, 45 Neb. L. Rev. 669 (1966); The American Law Institute, Model Penal Code § 304.7(2) (Proposed Official Draft 1962).

 III. Access to Courts and Public Officials

 The refusal to mail the certificate of reasonable doubt immediately after plaintiff arrived at Attica and immediately after his arrival at Green Haven was not such an unreasonable restriction of plaintiff's rights as to require a finding of unconstitutional action by defendants in this respect. The certificate of reasonable doubt was mailed shortly after plaintiff's arrival at Green Haven. Apparently, the few days involved did not defeat plaintiff's right to file such a certificate, since no claim is made that the delay interfered with the timeliness of its filing.

 There is no question that defendants cannot unreasonably restrict the right of plaintiff to apply to the state court for relief. Cf. Johnson v. Avery, supra ; Ex parte Hull, 312 U.S. 546, 61 S. Ct. 640, 85 L. Ed. 1034 (1941). "[A] right of access to the courts is one of the rights a prisoner clearly retains. It is a precious right, and its administratively unfettered exercise may be of incalculable importance in the protection of rights even more precious." Coleman v. Peyton, 362 F.2d 905, 907 (4th Cir.), cert. den., 385 U.S. 905, 87 S. Ct. 216, 17 L. Ed. 2d 135 (1966). See ...

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