The opinion of the court was delivered by: FOLEY
MEMORANDUM-DECISION and ORDER
JAMES T. FOLEY, Chief Judge.
Justice Holmes, dissenting many years ago in Northern Securities Co. v. United States (1903) 193 U.S. 197, at pp. 400-401, 24 S. Ct. 436, 48 L. Ed. 679, while noting that great cases, like hard cases, make bad law also commented that at times judges need for their work the training of economists and statesmen. The Justice did not include, and it is doubtful that he foresaw with all his wisdom of foresight, that the training for a federal judge might some day encompass courses in the administrative and disciplinary procedures used to handle problems with inmates that arise daily in the large maximum security State prisons spread throughout the nation. This two-judge district court has had a steady contact with State prisoner problems for many years; mainly consisting previously of federal habeas corpus applications. (See United States ex rel. Walker v. LaVallee (NDNY) 224 F. Supp. 661). In this District Court are located two such large New York State prisons, Auburn Prison, Auburn, N.Y., and Clinton Prison, Dannemora, N.Y., wherein are confined prisoners convicted of the most serious crimes, many serving very long sentences. The increase in recent years in this District of filings by State prisoners has shifted somewhat from habeas corpus to civil rights claims under the United States Civil Rights Statutes. (United States ex rel. Hancock v. Pate (NDIll. ED) 223 F. Supp. 202 (1963); Jordan v. Fitzharris (ND Cal. SD) 257 F. Supp. 674 (1966); Hancock v. Avery (MDTenn.) 301 F. Supp. 786 (1969).
The Wright case started in this District Court inasmuch as Wright was confined in Clinton Prison, Dannemora, N.Y., by the filing of a complaint March 11, 1966. Wright is serving a sentence of one day to life under jury conviction of three counts charging sodomy, two counts charging assault and carnal abuse of a child. The late Judge Brennan of this Court dismissed the Wright complaint in a substantial opinion, reasoning there was not sufficient evidence to him from the complaint to warrant intrusion into the internal management of state prisons, particularly so without application first to and exhaustion of remedies in the State courts of New York. Judge Brennan expressed in his opinion full confidence the New York Courts would fashion conscientiously a remedy even if none were precisely present in the New York Statutes to entertain and correct the horrible wrongs, if true, claimed by plaintiff Wright during his confinement in the punitive segregation section at Clinton Prison for violations of prison rules and regulations. (Wright v. McMann (NDNY) 257 F. Supp. 739 (Aug. 31, 1966).
This ruling of dismissal by Judge Brennan was reversed by the Court of Appeals, Second Circuit, in an opinion that attracted nationwide attention in the news media. The appellate opinion is referred to often in text and judicial writings as an important one confirming the jurisdiction and obligation of federal courts to entertain and decide such claims. (Wright v. McMann, 2 Cir., 387 F.2d 519 (Dec. 19, 1967)). Judge Kaufman in the majority opinion established the proposition that State prisoners have the right to seek federal relief ab initio if there is substance to the claimed deprivation and violation of constitutional rights under the Civil Rights Act during the prisoner's confinement. Judge Kaufman quoted verbatim a substantial portion from Wright's handwritten complaint describing in stirring and vivid prose disturbing conditions of his confinement in a so-called "strip cell" in the segregation unit of Clinton Prison. Giving the credit that must be accorded such allegations at the pleading stage, it was held there was enough substance to warrant reversal and remand for hearing of the issues. Judge Kaufman reviewed New York's remedies that might be applicable to this kind of claim and decide such were inadequate for full relief, and further decided a case of this kind was the least likely candidate for abstention. (Wright, supra, at pp. 524-525; Zwickler v. Koota, 389 U.S. 241, 88 S. Ct. 391, 19 L. Ed. 2d 444; McNeese v. Bd. of Education, etc., 373 U.S. 668, 673-674, 83 S. Ct. 1433, 10 L. Ed. 2d 622). Chief Judge Lumbard concurred in a separate opinion "albeit reluctantly" with a statement appealing to me as a judge in a two-judge United States District Court in which substantial State prisoner business is never ending. (See Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837). Such free-wheeling filings by State prisoners are time consuming and uncontrollable as other litigation may be. Judge Lumbard stated unequivocally in Wright that he would hold if New York made provision for injunctive relief as well as the legal relief seemingly available that the federal courts should abstain for a reasonable period of time to allow the state courts to hear the complaint and take appropriate action. Judge Lumbard decried the fact that the majority court ruling, in which he reluctantly joined, would require a District Court to write some of the rules regarding State prison administration for the treatment of recalcitrant prisoners. He observed it was far better that the states should formulate, supervise and enforce their own rules regarding their State prisons. I agree wholeheartedly. Disciplinary proceedings and their use inside prison walls it should be obvious are matters of the utmost importance. I have found in more than twenty-one years of experience with prison grievances that in New York there is responsible attitude when attention is directed to unfairness that might exist for lack of appropriate and definite legal remedy to correct.
In regard to Clinton Prison inmates the acme of judicial service is furnished. By order of Judges, Appellate Division, Third Department, a regularly scheduled motion Session is held once a month for ten months of the year at the Prison by designated New York judges. The direction is to hear applications for writs of habeas corpus or other proceedings regarding detention or confinement. (See Court Ex. 1). By Chapter 658 of the Laws of 1969, New York, effective May 21, 1969, Section 79-c of the Civil Rights Law (McKinney's Consol. Laws of N.Y.c. 6), was amended to confer upon an imprisoned convict the right to injunctive relief for improper treatment where such treatment constitutes a violation of constitutional rights. The void and gap in New York remedies noted by Judge Lumbard was thereby filled by this New York legislation, and later New York Court ruling decided that the amendment was to be given liberal construction and retroactive application. (In re Marcelin v. Scott (App. Div., 3rd Dept. Oct. 20, 1969) 33 A.D. 2d 588, 304 N.Y.S. 2d 299). However, the stages of the two cases herein have advanced too far along the federal route. The doctrine of abstention, unfortunately, I believe, seems more precarious today to apply than ever, even though common sense and good judgment indicate reliable and clear State remedies are now available that in the interests of federal-state comity should I think be accorded the first opportunity to rule upon claims of this kind charging cruel punishment and constitutional deprivations. (Holmes v. New York City Housing Authority, 2 Cir., 398 F.2d 262, 265-266; see also Houghton v. Shafer, 392 U.S. 639, 88 S. Ct. 2119, 20 L. Ed. 2d 1319). However, federal jurisdiction of these actions, based upon provisions of the Civil Rights Act, 42 U.S.C. §§ 1981, 1983, 1985(3), in my judgment, can no longer be questioned under the precise appellate ruling of the Second Circuit in Wright. (See also Rodriguez v. McGinnis (NDNY) 307 F. Supp. 627; Cooper v. Pate, 378 U.S. 546, 84 S. Ct. 1733, 12 L. Ed. 2d 1030; Brown v. Brown, 9 Cir. 368 F.2d 992; Wiltsie v. Calif., Dept. of Correction, 9 Cir., 406 F.2d 515.
Plaintiff Mosher is serving a 40-60 year sentence that he commenced in 1964 on his plea of guilty to Robbery charges. I permitted the filing of his pro se complaint by memorandum-decision and order dated May 19, 1967. The claim involved similar assertions as those of Wright, in that he was being confined in the segregation unit at Clinton enduring cruel living conditions pursuant to administrative procedures and under reasons for such confinement that he claims were violative of constitutional rights. Paragraph 2 of the Mosher complaint alleges that punitive segregation for his refusal, that he admits, to sign a "safety sheet", used in the institutional shops of the prison resulted in punishment out of proportion to the offense. Paragraph 4 refers to observation cell confinements. This cell and its purposes shall be described herein later. Mosher claims the cell was used fraudulently by segregation guards without any formalities being followed and proper reason present when the segregation guards became displeased with segregation inmates conduct and wanted to make living conditions more unpleasant and unbearable than those said to exist in disciplinary segregation. A series of letters to me followed from Mosher after I permitted the filing of his complaint, and in accord with the liberal and informal treatment this court gives pro se writings of State prisoners, some were filed formally as supplemental to the complaint and others were retained in the file in the Clerk's office for reference. The grievances in the letters run along the same lines as those in the complaint except there is description of new incidents that arose between Mosher and the guards in their daily close contact during the segregation regimen. These events resulted in continued segregation punishment for Mosher and prolongation of Mosher's confinement in segregation for a considerable period of time.
Attorney Betty D. Friedlander who acted as attorney for Wright on the appeal continued to act as his attorney for the trial and its preparation. I requested William Bennett Turner, an attorney with considerable experience in matters of this kind to represent Plaintiff Mosher and he willingly accepted such assignment and this Court is appreciative. By formal order dated August 28, 1968, the actions were directed to commence at joint trial on October 15, 1968, and such order noted that a satisfactory and productive pretrial conference had been held with the attorneys. Extensive and productive discovery and deposition procedures were permitted by me to be undertaken to the full extent permitted by the traditional liberality of the Federal Rules of Civil Procedure. Depositions of eight prison officials concerning their knowledge and experience at Clinton Prison were taken. Wardens McMann and LaVallee, Deputy Warden DeLong, Prison Psychiatrist Dr. Freedman, Prison Physician Dr. Peda, several correction officers (guards) with duty assignments in segregation during the times in question, and one prisoner McIntyre were deposed. These depositions were offered in evidence at the trial and are marked as plaintiffs' exhibits. (Plaintiff exhibits are numbered; Defense exhibits are lettered, and references herein to the trial record shall be by the prefix R).
A trial record of 1566 pages was compiled in a trial that covered seven trial days. At the end, I stated the trial had been an education to me although I had experience of twenty years with substantial numbers of State prisoner cases. (R 1553). The recanvass and review of the voluminous record that had to be done following delayed and substantial briefing fortifies this viewpoint. Time could be taken because Wright was transferred from Clinton segregation to another prison. Mosher was released from segregation to general population in December 1968 at Clinton Prison. The entire record of testimony and exhibits is a revealing and eye-opening one in regard to certain aspects of prison life in Clinton Prison. No matter the outcome finally in this litigation, there is a comprehensive record of the testimony of prisoners, obviously the difficult and troublesome ones to handle, during long periods, in their eyeball confrontation with the guards who have the difficult assignment to guard, feed and control them daily in a punitive segregation cell where they were kept around the clock with rare and short periods of release. One definite release from the segregation cell testified to was that the segregation inmates were taken down to the shower room along the gallery for their two-minute shower, as one prisoner estimated its time, every Sunday. The record is fascinating, full of humor and pathos despite the sadness of imprisonment, and as must be expected unfortunately marred throughout with substantial inconsistencies and contradictions, not only by prisoners but correction personnel. The record, and I had no appetite to undertake its heavy burden no matter its interest, is a portrayal of the real thing; it is prison life as it is, not a stage play or TV or motion picture portrayal. In my judgment, it should be read with care by the executive, legal, legislative and correctional department heads of New York State Government who ultimately must bear the responsibility to insure New York State prisoners are treated humanely as I believe, being one, every citizen of New York wants and expects. The exploration here by trained and able lawyers opens up a facet of New York State prison discipline kept covered too long from the public view. I think it was assumed the public has little interest in the disciplining of the confined criminal element of society or the manner in which they are fed and clothed. However, it is clear that State prisons, or even local jails have become more and more, and rightly so, in this age proper subjects for scrutiny by representatives of the public and the courts when necessary. The higher echelon of Prison management are being held now to account and answer frequently about these matters. (See Judges and Wardens: Teammates for Rehabilitation, by U.S. District Judge George H. Boldt, Judicature, The Journal of the American Judicature Society, January, 1970, Vo. 53); State of Prisons in the United States: 1870-1970; Negley K. Teeters, PH.D., Federal Probation: A Journal of Correctional Philosophy and Practice, Vol. XXXIII, December 1969). No longer can prisons and their inmates be considered a closed society with every internal disciplinary judgment to be blissfully regarded as immune from the limelight that all public agencies ordinarily are subject to. It does seem that the fate and nature of confinement for persons convicted of crime is of little concern to society in general. Many have been smug by rationalizing that if unpleasant problems arise in the prisons, the prisoners brought it on themselves and the less public notice the better.
Security, of course, has been and should be a paramount objective in maximum security prisons. It is a primary consideration I keep in mind throughout the decision I make in these actions. That factor unquestionably must be considered carefully when weighing the propriety and reasonableness of judgments made in these tensest of surroundings to uphold discipline and morale. Such decisions have to be quickly made and their role in my opinion is extremely important to guard against as much as humanly possible, insurrection, riot and terrorizing jailbreak. (See United States ex rel. Wade v. Jackson (NDNY 1956) 144 F. Supp. 458; reversed 2 Cir., 256 F.2d 7). The Wade case involved the sensational New York Sing Sing jailbreak in 1941 in which an unarmed guard was killed inside the prison, and a police officer on a public street in Ossining, N.Y. Judge Youngdahl described the gravity of the relationship so well: "The association between men in correctional institutions is closer and more fraught with physical danger and psychological pressures than is almost any other kind of association between human beings." (Edwards v. Sard (DCDC) 250 F. Supp. 977, 981). However, there are risks in every phase of human life and this State interest can never justify treatment and procedures in prison confinement proven violative of human decency and constitutional rights. The judicial complacency of the past in regard to these problems and cautions for courts to refrain whenever possible as I noted in Rodriguez v. McGinnis (NDNY) 307 F. Supp. 627, has been discarded. The Circuit Court statements in review of this Wright v. McMann action are further proof of the new attitude in these matters. The New York Court of Appeals, responsive and progressive, has been no different in its consideration of State prisoner problems. Several years ago that Court commented in People ex rel. Brown v. Johnston, 9 N.Y. 2d 482, at 485, 215 N.Y.S. 2d 44, 174 N.E. 2d 725, that an individual once validly convicted and placed under Department of Correction jurisdiction is not to be divested of all rights and unilaterally abandoned and forgotten by the remainder of society. (See also Brabson v. Wilkins, 19 N.Y. 2d 433, 280 N.Y.S. 2d 561, 227 N.E. 2d 383).
Chief Justice Burger, a leader in the simulation of new interest in prison reforms, has stated that prisoners after conviction cannot be considered as human rubbish and that a visit to most prisons will make one a zealot for reform. The diligent defense lawyers in these actions have supplied new decisions passing upon civil rights actions of prisoners confined in State Prisons other than New York. (Holt et al. v. Sarver (ED Ark.) 309 F. Supp. 362, 2/18/70; Hancock v. Avery (MD Tenn.) 301 F. Supp. 786; see also Jordan v. Fitzharris (ND Cal.) 257 F. Supp. 674; Burns v. Swenson (WD Mo.) 288 F. Supp. 4). A unique approach by a Federal District Court to this type problem involving a group of State prisoners confined in Rhode Island is demonstrated recently by the decision in Morris v. Travisono (D.C.R.I.) 310 F. Supp. 857 (1970). The methods of consultation and conciliation were invoked. There was complaint of alleged application of arbitrary and discriminatory rules and procedures in the confinement to punitive segregation for discipline. In a remarkable innovation, the District Judge not only had opposing counsel produce a tentative set of new rules but heard views and considered responses regarding their draft and content from the plaintiff prisoners also. Jurisdiction over the case for 18 months was retained to oversee administration of the new regulations for possible revision after practical application in the Prison. This is a long term supervision for a federal Court but I suppose the hope of final voluntary settlement of prickley issues may make such a program worth the attempt. The outcome should be of great interest to all correction, legal and judicial officers, both State and Federal.
This preface of review, philosophical and otherwise, is set forth in an attempt to interest these executive, legislative, and legal heads of New York in the proposition that possibly the Rules and Regulations promulgated for New York prisons, particularly those relating to segregation confinement and its living conditions and administrative procedures for hearing and disposition of charges that lead to this type confinement or other serious punishment, be reviewed and updated to conform at least in principle if not exact wording to those similar type rules and regulations recommended by responsible sources and recognized as progressive and in step with modern concepts. (See Manual of Correctional Standards (Pl. Ex. 30); Missouri State Penitentiary Rules & Procedures (Pl. Ex. 29); Task Force Report on Corrections, issued May 1967 by President's Commission on Law Enforcement & Administration of Justice, excerpt thereof referred to in Wright v. McMann, supra, 387 F.2d p. 527).
There is no intention on my part to be critical of the Department of Correction of New York, its personnel or the Wardens and Deputy Wardens of the large maximum security prison involved in this litigation. This record demonstrates clearly that the Wardens and Deputy Wardens advanced through the ranks during many years of experience in a variety of correctional positions with the active and daily problems of prison life. There is no question in my mind of their personal and official dedication to safeguarding the public interest or to their integrity. My relationship with New York State Correctional personnel in a great number of cases involving State Prisoners has always been afforded an attitude of cooperation from them in the processing of prisoner applications and the production of prisoners when necessary at times and places where this federal Court sits, usually several hundred miles from the Prisons. (See United States ex rel. Bruno v. Herold, 2 Cir., 408 F.2d 125, fn. p. 130). That cooperation has never been better demonstrated than during the trial of these actions when nine prisoner witnesses and the two plaintiffs had to be transported and kept in the Albany area to be available at the appropriate time during a lengthy trial.
Over the years at a number of hearings when State prisoners were before me on the witness stand, I always made it a point to inquire how they were being treated. Ironically, and this is true mostly of the Clinton prisoners, the answer was they were being treated all right. Several whom I recall gave specific examples. I recall one showing his new false teeth with pride, others telling about obtaining the equivalent of a high school diploma, or teaching and learning languages and art. These are small things, of course, but they struck me as signs of humaneness. The prisoners were always dressed in well fitting civilian clothing and none of them gave any appearance that would lead to the slightest suspicion of physical mistreatment or undernourishment. Wright and Mosher had similar appearance during the trial of these cases. Testimony in this record from all the prisoners unequivocally support the conclusion there are no serious grievances they have as inmates in the so-called general population at Clinton Prison. (R 534, 1026, 1034). It should be noted that plaintiffs, Wright and Mosher, in fact by their pleadings and testimony, aim their charges of alleged civil right wrongs mainly against Section 4, a unit of twelve cells, located in a 48 cell disciplinary segregation building, called the "Box" by inmates. There is also criticism against several so-called "dark cells" in the segregation building, and the observation cells located in a separate building. (See Photographs -- Def. Exs. A thru K). Wright testified that in 1967, conditions in segregation at Clinton Prison vastly improved. (R 77-87, 170-175). To support a finding that general population living conditions are all right although not in this record, judicial notice is stretched to refer to a book in the vein of a Baedeker travel guide for United States Prisons. It is My American Prisons, by Parisian Jacques Angelvin, and was given capsule review in Time Magazine, December 6, 1968 Issue, p. 33. Dannemora (Clinton) as he appraised it from his actual confinement is thus described:
"Dannemora: Scenically located on the Canadian border; cells resemble those at Sing Sing and are impeccably clean; siesta permitted beween morning and afternoon work periods; ice skating, bobsledding and skiing available in season; clientele permitted to have their own gardens (Angelvin was allowed to raise his own potatoes so as not to have to eat ...