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CAROTHERS v. FOLLETTE

July 15, 1970

John V. CAROTHERS, Plaintiff,
v.
Harold W. FOLLETTE, Warden, Green Haven Prison, Stormville, N.Y., A.P. Gilligan, Deputy Warden, Green Haven Prison, Stormville, N.Y., H. Sawner, Principal Keeper, Green Haven Prison, Stormville, N.Y., Defendants


Mansfield, District Judge.


The opinion of the court was delivered by: MANSFIELD

MANSFIELD, District Judge.

In this suit by a prisoner at Green Haven State Prison in New York against the Warden and other officials of that prison for injunctive relief and money damages, federal jurisdiction has been invoked pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §§ 1343(3) and 1651. Plaintiff seeks an injunction restraining defendants from

 
(1) censoring correspondence between himself and his attorney and any judge, and threatening to punish him for statements in such correspondence; or in letters to his parents;
 
(2) placing plaintiff in solitary confinement (euphemistically known as "segregation") or depriving him of "good time" without procedures that provide minimum due process safeguards;
 
(3) enforcing prison regulations restricting help inmates may give to each other in the preparation of legal papers;

 and an order requiring defendants to

 
(4) restore to plaintiff some 46 days of "good time" lost during confinement in punitive segregation imposed for a letter written to a state court judge;
 
(5) restore to plaintiff some 60 days of "good time" lost as punishment for criticism of the prison administration in a letter written by plaintiff to his parents; and
 
(6) restore his parole eligibility, to which he is entitled if he is credited with the "good time" lost, and refer his case to the first available meeting of the Parole Board.

 Background of the Action

 In 1964 plaintiff was sentenced by the New York State Supreme Court, Orange County, after conviction on charges of grand larceny, assault and attempted robbery, to consecutive terms totalling from 8 3/4 years to 17 1/2 years. His pro se complaint here, which was drawn by him prior to the appointment of counsel, is prolix but understandable. It sets forth a parade of wrongs allegedly committed against him by prison officials at Green Haven Prison. These include suppression of legal matter addressed by him to the New York State Supreme Court, punitive segregation in solitary confinement, placement in a "stripped cell," denial of privileges, poor food and loss of "good time" that would otherwise have been earned. He further alleges that these activities have been part of a conspiracy to harm and intimidate him. He charges that as a result of a letter written by him to the New York State Commissioner of Corrections he was interrogated, intimidated, "keep-locked," and threatened with further punishment if he should persist in his attempt to communicate with the Commissioner. He alleges that § 140 of the New York Correction Law, McKinney's Consol. Laws, c. 43, which authorizes a prison warden to impose solitary confinement, violates the Eighth Amendment's prohibition against cruel and unusual punishment, that he has been unconstitutionally prohibited from rendering legal assistance to fellow inmates, and that his legal publications and materials have been seized as contraband.

 Defendants' answers amount to a general denial of the allegations of wrongdoing on their part.

 Following the appointment of counsel to represent him, plaintiff served interrogatories upon defendants which have been answered and on December 11, 1969, the depositions of plaintiff and of defendants Follette and Sawner and Correction Officer Kuhm were taken at Green Haven State Prison. An application for preliminary injunctive relief was then made upon the affidavit of plaintiff's counsel, the answers to interrogatories, and transcripts of the depositions. Pending a hearing by the State Parole Board to determine whether petitioner might be paroled, which was held in April, 1970, and resulted in denial of his release, we deferred our decision. Thereafter the parties stipulated pursuant to Rule 65(a)(2), F.R.C.P., that trial of the action might be advanced and consolidated with the hearing on the application, which we have approved. The facts are set forth below in our discussion of petitioner's principal contentions.

 Jurisdiction

 Our jurisdiction to grant injunctive relief under Title 42 U.S.C. § 1983 supplements, and is concurrent with, such jurisdiction as has been granted by New York State to its courts in the same area. McNeese v. Board of Education, 373 U.S. 668, 83 S. Ct. 1433, 10 L. Ed. 2d 622 (1963); United States ex rel. Campbell v. Pate, 401 F.2d 55 (7th Cir. 1968); Sostre v. McGinnis, 334 F.2d 906 (2d Cir.), cert. denied, 379 U.S. 892, 85 S. Ct. 168, 13 L. Ed. 2d 96 (1964); Sostre v. Rockefeller, 309 F. Supp. 611 (S.D.N.Y. 1969); Holt v. Sarver, 300 F. Supp. 825 (E.D. Ark. 1969); Miller v. Purtell, 289 F. Supp. 733 (E.D. Wis. 1968); Burns v. Swenson, 288 F. Supp. 4 (W.D. Mo. 1968); Jackson v. Bishop, 268 F. Supp. 804 (E.D. Ark. 1967), reversed on other grounds, 404 F.2d 571 (8th Cir. 1968); Jones v. Willingham, 248 F. Supp. 791 (D. Kan. 1965); Talley v. Stephens, 247 F. Supp. 683 (E.D. Ark. 1965); United States ex rel. Hancock v. Pate, 223 F. Supp. 202 (N.D. Ill. 1963).

 The Supreme Court's decision in Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961), established that exhaustion of state court legal remedies is not required as a condition to seeking relief here. While the Second Circuit in Wright v. McMann, 387 F.2d 519 (2d Cir. 1967) (especially the concurring opinion of Chief Judge Lumbard), thereafter questioned whether state court equitable remedies should not first be exhausted, that issue has since been resolved by the Supreme Court in the negative. Houghton v. Shafer, 392 U.S. 639, 88 S. Ct. 2119, 20 L. Ed. 2d 1319 (1968); Damico v. California, 389 U.S. 416, 88 S. Ct. 526, 19 L. Ed. 2d 647 (1967); King v. Smith, 392 U.S. 309, 88 S. Ct. 2128, 20 L. Ed. 2d 1118 (1968); Talley v. Stephens, 247 F. Supp. 683 (E.D. Ark. 1965); Jackson v. Bishop, 268 F. Supp. 804 (E.D. Ark. 1967), reversed on other grounds, 404 F.2d 571 (8th Cir. 1968). Hence, although the recently enacted New York statutes *fn1" which empowers New York state courts to grant injunctive relief to state prisoners, apparently passed in response to Wright v. McMann, creates a source of equitable relief parallel to § 1983, it does not prevent acceptance of jurisdiction by a federal court.

 Some question may still exist as to whether exhaustion of state administrative remedies is required. See Judge Friendly's opinion in Eisen v. Eastman, 421 F.2d 560, 567 (2d Cir. 1969). However, we need not face that issue in this case for the reason that the only administrative avenue open to plaintiff as a means of protesting or appealing from the punishment imposed upon him by the one-man disciplinary "board" was to write a letter to the Warden, which is clearly inadequate and hardly worthy of classification as an administrative procedure, particularly since there is no suspension of imposition of discipline pending the Warden's consideration of such a letter. *fn2" Furthermore, prior to his deposition Warden Follette had not attended a disciplinary hearing in a "long time" and that might incline him to defer to the board's decision. (Follette Dep. at 26)

 There remains the question of whether we should not abstain from exercise of our concurrent jurisdiction. When we are asked to enjoin or revise state prison procedures our every instinct would be to favor abstention, particularly if the state had in effect a system of administrative review, or if difficult questions of state law were presented. In such instances we should proceed cautiously for the same reasons that led Congress to require exhaustion of state remedies by a state prisoner seeking release by writ of habeas corpus, 28 U.S.C. § 2254. *fn3" Maintenance of workable federal-state relations and economy of effort would normally be furthered by abstention.

 In the present case, however, we fail to find any plausible grounds for such abstention. Despite the frequency of attacks on the constitutionality of New York State prison procedures, see Wright v. McMann, supra ; Sostre v. McGinnis, 334 F.2d 906 (2d Cir.), cert. denied, 379 U.S. 892, 85 S. Ct. 168, 13 L. Ed. 2d 96 (1964); Sostre v. Rockefeller, 312 F. Supp. 863 (S.D.N.Y. May 14, 1970), we have not been advised of the adoption by New York of any administrative procedures comparable to those found in other states. *fn4" Nothing in the present complaint raises "an unresolved question of state law the decision of which may 'avoid or modify' several constitutional questions," or will result in the "'possible disruption of complex state administrative processes.'" See Coleman v. Ginsberg, 428 F.2d 767 (2d Cir. 1970). The administrative relief described by Warden Follette is the antithesis of a "complex system." Furthermore, even if plaintiff had sued under § 79-c of the state Civil Rights Law, the state court would be required initially to apply federal constitutional standards. At some point we must do the same. To abstain, therefore, would merely be to postpone the inevitable. Accordingly, we must reluctantly proceed to review the prison actions which are the subject of the present suit.

 The Prison's Handling of Plaintiff's Correspondence and Imposition of Punishment Based on it

 Plaintiff claims that prison practices in the handling and censorship of his mail violate his First Amendment rights, that punishment threatened and imposed upon him violates his Eighth Amendment rights, and that prison disciplinary procedure denies him due process.

 Turning to the evidence received with respect to the first of these claims, it is the prison's practice in handling prisoner's mail, as revealed in depositions and answers to interrogatories, for prison officials to read all correspondence mailed by prisoners, including communications addressed to judges, legislative officials, attorneys, and private parties. (Follette Dep. at 59) Officials also assert the prerogative of deleting any portion of correspondence between an inmate and his attorney which the officials do not consider relevant to the prosecution of the inmate's legal affairs. (Follette Dep. at 31; Ans. to Interr. 8) The deletion is made either by striking the material or cutting off the portion in which the irrelevancy is included. (Follette Dep. at 31) Copies are made of any letters to a judge in which the prisoner complains of treatment or the institution (id. at 30, 31; Ans. to Interr. 6), so that prison officials will have advance warning of any possible litigation that might be instituted against them, and will be able to investigate the complaint and answer inquiries by the court. The officials do not believe that they can refuse to mail correspondence addressed to a court or an attorney, but can if addressed to private parties.

 Plaintiff objects specifically to the treatment by prison officials of three of his letters. On August 12, 1968, he wrote a letter (Ex. 4) to Judge Supple, a Dutchess County, New York Supreme Court Justice, with reference to an Article 78 proceeding pending before that judge which plaintiff had instituted against Warden Follette. Among other things the plaintiff stated in the letter that he had been the victim of a "calculated plan or system of harassment visited upon my person by the officers of this institution which, I submit, has been directed by the Warden." He then described several instances where he claimed that he had been wrongfully charged and punished for infractions which he had not committed.

 The letter to Judge Supple was dispatched by prison officials as written. On August 14, 1968, plaintiff was summoned before a disciplinary board and charged with "making false and lying statements about the administration of the prison." The board, which consisted only of defendant Sawner, an Assistant Deputy Warden, acted on the complaint of Kuhm, Correction Officer, who had read plaintiff's letter in his capacity either as prison censor or notary and who considered plaintiff's statements concerning harassment by the prison officials to be fallacious. On ...


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