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DAVIS v. LINDSAY

November 4, 1970

Angela Y. DAVIS, Plaintiff,
v.
John V. LINDSAY, individually and as Mayor of the City of New York, George McGrath, individually and as Commissioner of the Department of Corrections of the City of New York, Jessie Behagen, individually and as Superintendent of the Women's House of Detention of the City of New York, Paul McGinnis, individually and as Commissioner of the Department of Corrections of the State of New York, Defendants


Lasker, District Judge.


The opinion of the court was delivered by: LASKER

MEMORANDUM OPINION

LASKER, District Judge.

 Angela Davis is held in custody in the New York City Women's House of Detention pending the outcome of extradition proceedings brought by the State of California, which has charged her with kidnapping and homicide. She moves for a preliminary injunction restraining the defendants from holding her in solitary facilities, separate and apart from the general inmate population, and for restoration of privileges accorded to inmates at large which she claims have been denied her in part or in whole. Such privileges include, among others, the right to receive and send mail, to receive, read and possess certain newspapers, journals and books, and to receive visitors.

 The action is brought under 42 U.S.C. § 1983 and its jurisdictional complement, 28 U.S.C. § 1343, and seeks a permanent injunction, declaratory relief and damages.

 Plaintiff claims that her being held in solitary facilities and deprived of other privileges violates her rights under the First, Fourth, Sixth, Eighth, Ninth and Fourteenth Amendments to the Constitution.

 The relevant facts are not in dispute. On October 13, 1970, plaintiff was received at the Women's House of Detention as a federal stop-over, having been placed under arrest as a fugitive by federal authorities. On October 14 the United States Commissioner issued a warrant for her arrest, charging her with having fled the jurisdiction of the State of California to avoid prosecution. On the same day she was transferred from federal jurisdiction to that of the Criminal Court of the City of New York and held without bail as a fugitive from the State of California.

 Upon her first entering the Women's House of Detention she was placed on the fourth floor, a section normally reserved for emotionally or psychologically disturbed inmates. According to the affidavit of Jessie Behagen, Superintendent of the Women's House of Detention, this arrangement was made because the fourth floor is a special security area and it was believed that the nature of the charges against the plaintif, the substantial amount of publicity she had received, and the fact that she had been the subject of a nationwide search warranted special precautions. When plaintiff's counsel complained of this treatment, the custodial authorities reviewed the case and agreed to a change of housing which, according to the affidavit of Superintendent Behagen, was to have been on an experimental basis. Accordingly the plaintiff was placed on the eleventh floor in a women's dormitory. It is not clear whether or not this transfer placed her in the general inmate population. Plaintiff states that on the eleventh floor "I was allowed to converse and mingle with other inmates." Superintendent Behagen says that at this time plaintiff "remained under 24 hour surveillance and was not in general population." Regardless of this disputed fact, on which no present determination turns, there is no question that on October 23, 1970 plaintiff was moved, without any reason being stated to her, to solitary facilities on the seventh floor.

 I have advisedly used the phrase "solitary facilities" in describing the arrangements currently in force because the conditions under which plaintiff is presently housed cannot properly be compared to commonly accepted notions of "solitary confinement." For example, although plaintiff is kept separate and apart from all other prisoners, her room is 12 feet by 10 feet and has two windows overlooking Greenwich Avenue, as compared to the 10 by 6 foot size of the usual cells; her room has hot and cold running water, toilet facilities, table, reasonable lighting, and a radio. She is permited library privileges for one hour five days a week, allowed to read the Black Panther newspaper, Muslim newspaper and Black World; to take any five books from the library to her room at one time, and, indeed, books which she has requested that were not in the library have been ordered from the publisher for her; her incoming and outgoing mail is opened to be checked solely for contraband, and is not read or censored. She is accorded visiting privileges similar to those of other detention inmates. I find that, in general, with the exception of her being kept separate and apart from other prison inmates, she has been accorded all the privileges granted to the remainder of the population, *fn1" and indeed, in some respects such as the size of her room and the availability of a radio, the present arrangements are favorable to her. *fn2"

 JURISDICTION AND ABSTENTION

 The defendants do not contest the jurisdiction of this court, and the decisions of the Court of Appeals of this Circuit forcefully establish that such jurisdiction exists. As Judge Kaufman stated in Wright v. McMann, 387 F.2d 519, 522-523 (1967):

 
"* * * there is no longer any question that a state prisoner may bring an action under the Civil Rights Act. Cooper v. Pate, 378 U.S. 546, 84 S. Ct. 1733, 12 L. Ed. 2d 1030 (1964). * * * And, while federal courts are sensitive to the problems created by judicial interference in the internal discipline of state prisons, in appropriate cases they will not hesitate to intervene. (Citing cases.)
 
"The harshest blow to the old 'handsoff' doctrine was struck by Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961). There, in an action under the Civil Rights Act to recover money damages against city police officers for violating rights secured by the Fourteenth Amendment, the Court held that exhaustion of state remedies was not a condition precedent to accepting jurisdiction. Any remaining belief in the vitality of the exhaustion principle was dispelled when the concurrent jurisdiction of the federal courts in cases under the Act was reaffirmed in clear terms in McNeese v. Board of Education, 373 U.S. 668, 83 S. Ct. 1433, 10 L. Ed. 2d 622 (1963). The Court quoted with approval the language of Judge Murrah in Stapleton v. Mitchell, 60 F. Supp. 51 (D. Kan. 1945): 'We yet like to believe that wherever the Federal courts sit, human rights under the Federal Constitution are always a proper subject for adjudication, and that we have not the right to decline the exercise of that jurisdiction simply because the rights asserted may be adjudicated in some other forum.' Id. 373 U.S. at 674, 83 S. Ct. at 1437, n. 6. It is appropriate to note, however, that recently we had occasion to observe that the Supreme Court did not intend Monroe and McNeese to abrogate the historic principle that federal courts will not entertain a suit in equity when 'plain, adequate and complete' remedy may be had at law. Potwora v. Dillon, 386 F.2d 74 (2d Cir. 1967). Of course, Monroe settled beyond cavil that exhaustion is not required when only legal relief is sought. And, in any event, in this suit for both legal and equitable relief it is only too clear that New York's remedies are inadequate."

 Nor would it be proper for this court to abstain from determining the issue before it. On this subject Wright v. McMann, supra, at 524, instructs that

 
"* * * the latest pronouncement on the subject by the Supreme Court emphasizes that the doctrine is to be applied 'only in narrowly limited "special circumstances."' Zwickler v. Koota, 389 ...

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