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CARTER v. MCGINNIS

December 15, 1970

Henry CARTER, Harold Johnson a/k/a Hasson Sharrief el. Shabazz, Ellis Tanner, and Eric (Jomo) Thompson, Plaintiffs,
v.
Paul D. McGINNIS, Commissioner of Corrections of the State of New York, and Vincent R. Mancusi, Superintendent, Attica Correctional Facility, and correctional officer "John Doe," Defendants


Curtin, District Judge.


The opinion of the court was delivered by: CURTIN

CURTIN, District Judge.

Plaintiffs are currently confined in the Segregation Unit *fn1" of the Special Housing Unit [Housing Block "Z" or HBZ] at the Attica Correctional Facility. They now move for a preliminary injunction restraining the defendants from continuing their incarceration in HBZ, for the appointment of Herman Schwartz, Esq. as counsel, and for permission to proceed in forma pauperis. Plaintiffs further seek to maintain this as a class action. The motions for the appointment of Herman Schwartz, Esq. as counsel and for permission to proceed in forma pauperis are granted. For reasons that will be discussed further below, the motion that this proceed as a class action is denied.

 JURISDICTION

 Notwithstanding this court's firm belief that matters of prison administration and discipline are primarily within the authority and responsibility of the state, it is now settled beyond question -- and the attorneys before the court have not debated the point -- that claims of the kind presented here are within the jurisdiction of the federal courts under the Civil Rights Act (42 U.S.C. § 1983; 28 U.S.C. § 1343). Indeed, this court may not abstain from hearing and determining these claims. Davis v. Lindsay, 321 F. Supp. 1134 (S.D.N.Y. 1970); Rodriguez v. McGinnis, 307 F. Supp. 627 (N.D.N.Y. 1969); Wright v. McMann, 387 F.2d 519 (2d Cir. 1967); Monroe v. Page, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961).

 BACKGROUND OF LITIGATION

 An order to show cause and complaint were filed on November 25, 1970, and an amended complaint was filed on December 1, 1970. At argument on the return date, December 3, 1970, the defendants were unable to provide the court with any extensive information in response to plaintiffs' claims. Because of this, the court ordered further argument for December 7, 1970, and directed the defendants to produce at that time specific information.

 On December 7, the defendants admitted certain pertinent claims of plaintiffs. On the basis of these admissions, the court directed counsel to arrange an informal settlement conference. Later that day, counsel reported that no settlement could be reached. The court requested both counsel to appear again on December 8.

 On the 8th, counsel for the defendants repeated arguments and admissions made earlier. In an effort to discover the precise facts surrounding plaintiffs' claims, the court heard testimony of Attica Superintendent Vincent Mancusi. Harry Fritz, Superintendent of Auburn Correctional Facility, was in court but did not testify.

 FINDINGS OF FACT

 On November 2-4, 1970, a disturbance occurred at the Auburn Correctional Facility at Auburn, New York. While plaintiffs were inmates at Auburn on the above dates, their precise roles in the disturbance remain unclear and are still under investigation by state authorities. At the court's request, the defendants' counsel obtained affidavits from various Auburn personnel in an attempt to clarify and indirectly justify the plaintiffs' current form of incarceration. *fn2"

 On November 4, 1970, a state of emergency was declared at Auburn. All inmates, including plaintiffs, were keeplocked. On November 11, Carter and Tanner were transferred to Attica Correctional Facility and immediately placed in segregation. Thompson and Johnson were similarly transferred and confined on November 7 and 9, respectively. All parties agree, and Attica Superintendent Vincent Mancusi so testified, that none of the plaintiffs was accorded a hearing at Auburn, or upon their reception at Attica. The affidavit of Vincent R. Mancusi, Superintendent of Attica, reveals that the plaintiffs were placed in HBZ because of telephone instructions received from the office of the Commissioner of Corrections. Later in the month, a further telephone call from the Commissioner's office directed that, when the plaintiffs next appeared before the Adjustment Committee, they were to be informed that their stay in segregation would henceforth depend upon their attitude and conduct.

 Each plaintiff continues to be held in segregation. No charges have been brought against them, and they have not been informed of the reason(s) for their current state of confinement. According to Attica Correctional Facility records, the confinement in segregation is to continue until the investigation of the Auburn disturbance is completed, but no date has been set for its completion and none was offered in oral argument before this court.

 NEW RULES AND REGULATIONS

 Effective October 19, 1970, the New York State Department of Correction has promulgated new disciplinary rules and regulations, and the court takes judicial notice of them. Under these rules, and according to Superintendent Mancusi's testimony, plaintiffs were transferred to Attica as "detention admissions" [Section 304.4(1)(b)]. A detention admission is one admitted to a special housing unit while awaiting an initial appearance before an adjustment committee. Section 304.1(3). Inmates may be so placed only under the written direction of a supervisory officer designated by the superintendent. Section 304.2(2). Section 304.4(2) further points out:

 
In the case of a detention admission that occurs upon receipt of a transferred inmate from another institution, the purpose of such detention shall be solely to ascertain the manner in which the inmate will ...

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