Lumbard, Chief Judge, Waterman, Senior Circuit Judge,*fn* and Moore, Friendly, Smith, Kaufman, Hays, Anderson and Feinberg, Circuit Judges. Lumbard, Chief Judge (concurring). Waterman, Circuit Judge (concurring). J. Joseph Smith, Circuit Judge (concurring in part and dissenting in part). Feinberg, Circuit Judge (dissenting and concurring). Hays, Circuit Judge, dissenting (with whom Moore, Circuit Judge, concurs).
IRVING R. KAUFMAN, Circuit Judge:
We voted to hear the initial argument of this appeal en banc, a procedure we reserve for extraordinary circumstances, so that we might give plenary review to a complex of urgent social and political conflicts persistently seeking solution in the courts as legal problems, a phenomenon de Tocqueville commented upon many years ago. Democracy in America, vol. I at 290 (Vintage ed. 1945). The elaborate opinion and order below raise important questions concerning the federal constitutional rights of state prisoners which neither Supreme Court precedent nor our own past decisions have answered. The sparse authority from other courts is for the most part either inconclusive or conflicting.
PROCEEDINGS BELOW AND JURISDICTION
This is an appeal from an order entered May 14, 1970, by Judge Motley, sitting in the Southern District of New York, 312 F. Supp. 863, which granted plaintiff Martin Sostre punitive and compensatory damages against defendants Follette and McGinnis as well as a wide variety of injunctive relief in his action pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983, and 28 U.S.C. §§ 1331, 1343(3). At the time Sostre filed his handwritten complaint, he was incarcerated in New York's Green Haven Prison (now called Green Haven Correctional Facility), serving a sentence of thirty to forty years for selling narcotics, followed by thirty days further imprisonment for contempt of court, imposed on him March 18, 1968. The original defendants included the Governor of New York as well as the State Commissioner of Correction, appellant McGinnis; the Warden of Green Haven, Harold W. Follette, who died shortly before the opinion below was entered;*fn1 and the Warden of Attica Prison (now called Attica Correctional Facility), appellant Vincent Mancusi. Sostre had been confined for one night in Attica immediately after sentencing, them transferred the following day to Green Haven.
Sostre does not appeal from the dismissal by the district court of his action against the Governor, in which Sostre had asserted the Governor's complicity in racial discrimination in the administration of New York's prison system.
Because there was no finding below that Warden Mancusi had in any way violated Sostre's constitutional rights, the case against him should also have been dismissed. In refusing this dismissal, Judge Motley observed that Commissioner McGinnis "has the power to re-transfer Sostre to Attica." 312 F. Supp. at 877 n. 8. The relevance of this admitted fact escapes us. After bringing this law suit, Sostre was transferred to Wallkill State Prison, but we suppose that would not justify an injunction directed against the Warden there.
We agree with the district court that Sostre was not required as a precondition of maintaining this suit to perform the meaningless and plainly futile gesture of writing a letter to defendant McGinnis. See Houghton v. Shafer, 392 U.S. 639, 88 S. Ct. 2119, 20 L. Ed. 2d 1319 (1968) (per curiam); Eisen v. Eastman, 421 F.2d 560 (2d Cir. 1969). The record amply supports the district court's finding that the State Commissioner of Correction "had already been informed of the facts" and further enlightenment from Sostre himself could not have been expected to affect his attitude or his inaction.*fn2 312 F. Supp. at 881-882. Nor is exhaustion of state legal or equitable remedies necessary to a Section 1983 action, which provides "a remedy in the federal courts supplementary to any remedy any State might have." McNeese v. Board of Education, 373 U.S. 668, 672, 83 S. Ct. 1433, 1435, 10 L. Ed. 2d 622 (1963). See King v. Smith, 392 U.S. 309, 88 S. Ct. 2128, 20 L. Ed. 2d 1118 (1968); Damico v. California, 389 U.S. 416, 88 S. Ct. 526, 19 L. Ed. 2d 647 (1967) (per curiam); Wright v. McMann, 387 F.2d 519, 522-523 (1967).
Moreover, because Sostre "is not challenging the validity of his sentence with the ultimate object of obtaining release" from prison, Hancock v. Avery, 301 F. Supp. 786, 791 (M.D.Tenn.1969), his Section 1983 petition is clearly not a mere sham procedure to avoid the exhaustion requirement of the federal habeas corpus statute, 28 U.S.C. § 2254(b), (c). Cf. Smartt v. Avery, 411 F.2d 408 (6th Cir. 1967); Kalec v. Adamowski, 406 F.2d 536 (7th Cir. 1969); Peinado v. Adult Auth., 405 F.2d 1185, 1186 (9th Cir.), cert. denied, 395 U.S. 968, 89 S. Ct. 2116, 23 L. Ed. 2d 755 (1969); Johnson v. Walker, 317 F.2d 418, 419-420 (5th Cir. 1963); King v. McGinnis, 289 F. Supp. 466 (S.D.N.Y.1968).
A. Circumstances of Sostre's Commitment to Punitive Segregation
On June 25, 1968, Warden Follette ordered that Sostre be committed pursuant to Section 140 of the New York Correction Law, McKinney's Consol. Laws, c. 43,*fn3 to "solitary confinement" (the words in the statute) or "punitive segregation" (the term adopted by Judge Motley and by the parties on appeal, which we will use for that reason and also because he was not as isolated in his segregation as "solitary" would imply). The parties vigorously disagree as to the considerations that motivated Follette to inflict this punishment.
On June 25, 1968, the day he put Sostre in segregation, Follette called Sostre to his office. At this meeting, Follette questioned Sostre about his attempt that morning to mail to an attorney, Miss Joan Franklin of the National Association for the Advancement of Colored People, a letter with handwritten legal papers attached, including a motion for use in the trial of Mrs. Geraldine Robinson. Mrs. Robinson is described by Judge Motley and the parties on appeal as Sostre's "codefendant." Although she was joined with Sostre in the indictment which resulted in Sostre's imprisonment, they were not tried together. Follette told Sostre "he must confine his legal activities to his own incarceration" and accordingly that the motion would not be mailed. Follette explained that he objected to Sostre's attempt to "practice law" without a license. Sostre believed that he had a right to mail legal papers in behalf of Mrs. Robinson and refused to assure Follette, as Follette requested, that he would discontinue attempting to mail such documents through normal prison channels.
During the same interview, Follette questioned Sostre about a reference to an organization known as "R.N.A.," mentioned by Sostre in his letter to Miss Franklin and to which Sostre had referred in earlier correspondence. "R.N.A." in fact referred to the Republic of New Africa, which Sostre identified at the trial before Judge Motley as a black liberation or black separatist organization. Sostre disputed Follette's testimony that Sostre had lied about R.N.A. at the June 25 interview by persistently claiming at that time that it was a "federal agency * * * 'Recovery National Administration' or something like this." Sostre did admit, as Follette asserted at trial, that after responding to a few questions Sostre refused to discuss R.N.A. further. The plaintiff's justification for his silence was that Follette had persisted in labelling R.N.A. a "subversive organization." Sostre "clammed up," as he testified, to avoid antagonizing Follette by further explaining or defending R.N.A.
Follette testified without contradiction that the organization known as the Republic of New Africa was of sufficient concern to him to have been the object of an investigation before the interview with Sostre. Follette feared that "this organization was a cloak for an attempt to organize prison inmates for riot and insurrection," based on information obtained from the F.B.I. and the New York State and Buffalo City Police. "The possibility of insurrection at Green Haven" was a "major fear" to Follette at all times, but particularly so in June, 1968. Security at the prison had been weakened, in Follette's view, by an exceptionally high turnover of correction officers, approaching a rate of about fifty percent each year. An influx of new officers had not yet been cleared through the New York State Identification and Intelligence System. Moreover, Sostre had exacerbated Follette's concern with the possibility of major disorder because of a statement in a letter that Sostre had written to his sister, dated May 19, 1968:
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.
This sentence is included in a broad indictment of militarism and oppression in this country and a prediction that "the power structure" would soon be overthrown.
Follette insists that his decision to commit Sostre to segregation reflected (1) Sostre's declared intent to defy Follette's order by preparing legal papers for his co-defendant; (2) his intransigence about R.N.A.; (3) the allusion in the letter to his sister to his impending liberation. Rule 54 of the "Inmate's Rule Book," a publication of the New York Department of Correction issued to each prisoner when he arrives at Green Haven, limits inmate correspondence to "their own personal matters." Follette interpreted this as proscribing the sending of legal papers in behalf of a co-defendant. Sostre's refusal to discuss R.N.A. and his persistence about Mrs. Robinson's legal papers both violated Rule 5 of the Inmate Rule Book which requires that an inmate obey orders "promptly and fully," pending whatever appeal he may wish to take to higher authority. In addition, his silence violated Rule 12, enjoining inmates to answer "fully and truthfully" all questions put by prison officials. In sum, Follette assigned as his motive for Sostre's punishment the fact that Sostre's "whole attitude was one of defiance, of flatly refusing * * * to conduct himself as a proper inmate within the rules, regulations and laws set down by the State of New York and the Department of Correction." Section 140 of the New York Correction Law authorized Follette, by its terms in his unfettered discretion, to commit Sostre to segregation when "necessary * * * to produce [his] entire submission and obedience" and to keep him there "until he shall be reduced to submission and obedience."
Judge Motley disbelieved each of Follette's asserted motives for punishing Sostre, crediting instead Sostre's testimony that Follette was motivated by Sostre's threat to sue Follette over his withholding the motion papers intended for Mrs. Robinson. Additionally, Judge Motley attributed to Follette an intent to punish Sostre because of his earlier activism in bringing litigation related to the practice of the Black Muslim religion in New York prisons and "because he is, unquestionably, a black militant who persists in writing and expressing his militant and radical ideas in prison." Judge Motley held that the summary meeting with Warden Follette which resulted in Sostre's commitment to segregation did not afford due process of law to Sostre before his "liberty" was taken.
Apart from the events of the June 25 interview, Judge Motley also dismissed as one of Follette's reasons for continuing Sostre's incarceration in segregated confinement several items of "contraband" which Follette claimed were the fruit of a search of Sostre's cell conducted immediately after he entered segregation. These items consisted of (1) two small (3 inches by 5 inches) pieces of heavy black emery paper covered with an abrasive material like sand which, according to Follette, could be flaked off and in some manner attached to a string to fashion an instrument capable of sawing through cell bars; (2) six tables of contents torn from issues of the Harvard Law Review and stamped by prison officials to indicate that the books, Sostre's personal property, were not to circulate to other prisoners; (3) a letter dated June 10, 1968, from the Appellate Division of the Supreme Court of New York addressed to a fellow-prisoner of Sostre's, Juan Moline, a Puerto Rican, which Sostre later explained he was translating for Moline from English into Spanish. Judge Motley believed Sostre's testimony that he had never seen the pieces of emery paper before they were introduced by defendants at trial. 312 F. Supp. at 869. The other contraband indicated that Sostre had violated prison rules by circulating his law periodicals to other prisoners and by giving a fellow-prisoner legal assistance without first securing the Warden's permission. The Court below not only declined to find that these activities motivated the punishment of Sostre, but held in addition, that Sostre's activities were protected by the Fourteenth Amendment.*fn4
B. Conditions of Punitive Segregation
Sostre remained confined in punitive segregation for twelve months and eight days, until Judge Motley restrained his continued punishment pendente lite on July 2, 1969. By regulation, Sostre lost the opportunity to earn 124 1/3 days of good behavior credit while he was segregated.*fn5 We cannot avoid setting forth the precise conditions of Sostre's long confinement with some particularity because Judge Motley found as a matter of law, that (1) in view of those conditions, Sostre's punishment -- or any confinement in segregation under similar conditions for longer than 15 days -- was "cruel and unusual" under the Eighth Amendment; (2) this absolute rule aside, Judge Motley held that the penalty inflicted upon Sostre was so disproportionate to the offenses charged against him that his segregation would have been cruel and unusual even crediting each of Follette's assigned justifications for it. We cannot approve these conclusions. Our reasons for refusing to do so are based in part on undisputed facts in the record which do not appear in Judge Motley's otherwise entirely accurate description of Sostre's segregated environment. The following account draws upon those undisputed facts which do not appear in the opinion below, as well as those which do, in an effort to present the whole fabric.
1. Isolation from Human Contact
Although for four months only one other prisoner was confined with Sostre in his small "segment" of five cells, the entire punitive segregation unit at Green Haven housed on the average about 15 prisoners at any one time. During the period between June 28, 1967, and September 18, 1968, 179 prisoners were held in segregation for a total of 8,960 days. From September 19, 1968 to July 3, 1969, when Sostre was there, a total of 79 inmates were segregated at Green Haven. Of these, about ten percent were held in "protective" segregation. This term is used to describe those who are segregated from the general population to protect them from harm rather than as punishment. These prisoners were incarcerated in cells entirely separated from Sostre's cell in the punitive segregation unit. The other prisoners were confined in cells near Sostre's, so that he would have been able to communicate with them, albeit with some difficulty depending on the distance between Sostre and the other prisoners. We are informed of an incident where one prisoner brought to solitary and placed in another group of cells committed suicide. Sostre was able to communicate with this inmate and indeed was able to dictate a legal document to him.
Finally, although we do not doubt that "the crux of the matter is human isolation," as Judge Motley observed, Sostre aggravated his isolation by refusing to participate in a "group therapy" program offered each inmate in segregation beginning October or November 1968. "Therapy" sessions were conducted in groups of about eight per class, generally one each week or ten days, under the guidance of a "recreation supervisor," Sergeant Louis Profera. Profera had been trained in group counseling in a six month, 40-hour course by a psychiatrist at the New York State Vocational Institution. Special rules for punitive segregation posted in the segregation unit provided that inmates in punitive segregation would be "returned to the general population after demonstrating their willingness to accept and adhere to the institutional rules and regulations as shown by their participation in group counselling sessions. * * * Refusal to participate ingroup counselling is indicative of the inmate's unwillingness to accept and abide by the rules and regulations of the institution." Profera's favorable recommendation generally resulted in a prisoner's release from segregation. Although one prisoner who testified at trial returned to the general population without participating in group therapy, there is no doubt that there was significant pressure to participate. Expert witnesses at trial disagreed as to whether coercion would increase or decrease the efficacy of group therapy.*fn6
2. Other Conditions of Sostre's Segregated Confinement
Judge Motley heard extensive testimony describing such important details as Sostre's diet, his opportunity for exercise, the hygienic conditions of his cell, and the possibility for intellectual stimulation. It can hardly be questioned that his life in segregation was harsher than it would have been in the general population, but neither was it clearly unendurable or subhuman or cruel and inhuman in a constitutional sense.
Thus, Sostre would not be served seconds of the main course upon his demand; but there was no testimony that he would have had that privilege in the general population. He was denied the dessert that would have been available to the general population; but apart from the dessert his diet still consisted of 2800 to 3300 calories a day.*fn7 Sostre remained in his cell at all times except for a brief period once each week to shave and shower. An hour of exercise with four or five other prisoners in a small, enclosed yard, open to the sky was a daily routine. But the record reveals that Sostre refused this privilege because he would not submit to a "strip search." Officials testified that it was necessary to subject prisoners to such an examination each time they entered the exercise yard to prevent them from concealing on their bodies small bits of wire or other material suitable for use as a weapon.
Hygienic conditions were at least minimally adequate to permit Sostre to remain clean and healthy. Thus, Sostre was allowed to shave and shower with hot water once each week. The furnishings of his normal-sized (6ft. x 8 ft.) cell included a toilet and a face bowl with running cold water, and he was provided with soap and a towel.
The strictures on Sostre's intellectual fare were severe. He could not buy or receive books, magazines or newspapers, and his access to the prison's library collection was limited to a selection among approximately thirty-five volumes, mostly "shoot-em-ups" as Sostre described them, chosen by the prison guards. Still, light from a single bulb, controlled by the guards and usually turned on early in the morning and off at 10 p.m., was adequate for reading. And although he could not attend school or watch television, as could the inmates in the general population, any material related to the law requested by him would be brought to his cell.
3. Length of Segregated Confinement
Pursuant to the usual practice at Green Haven, Sostre was sentenced to "solitary" confinement for an indefinite period. According to New York Correction Law Section 140, "submissiveness" was to be the touchstone for his release. Follette testified that Sostre could have returned to the general population either by successful participation in group therapy or by agreeing to live by the rules of the prison. Sostre's contention is that he refused to agree to obey rules that he considered an infringement of his constitutional rights.
C. Censorship and Possession of Literature
Defendant Follette censored Sostre's correspondence with Joan Franklin of the NAACP, the attorney of record representing Sostre on appeal from his conviction. Follette regularly excised from letters passing between Sostre and Miss Franklin "objectionable" material -- anything which "in his judgment was not relevant to Sostre's appeal." In accordance with Rule 47 of the Inmate Rule Book which restricts inmates' correspondence to persons on an approved mailing list, Warden Follette in late September, 1968, refused to forward a letter from Sostre to the United States Post Office Inspector, in which Sostre complained of Green Haven's practice of not returning to prisoners receipts for certified mail. The district judge found that each of these actions violated Sostre's First Amendment right to freedom of speech.
About August 3, 1969, a month after his release from segregation, Sostre was deprived of the use of the prison exercise yard and the privilege of attending movies because he possessed "inflammatory racist literature" in his cell. The literature consisted of articles written by Sostre himself on paper properly in his possession. Most of the articles consisted of extracts from magazines and newspapers which Sostre was also permitted to have and read in his cell. The extracts included quotations from Mao Tse Tung, poetry written by a prison inmate, the names of the officers, the party program, and rules of conduct of the Black Panther Party; the officers and oath of allegiance of the Republic of New Africa; a "program" for Black Student Unions; and the poem "If We Must Die," by Claude McKay. In addition, guards found in Sostre's cell an article which he had written himself, entitled " Revolutionary Thoughts." The district court found that Sostre's punishment for possessing this material constituted another infringement of his freedom of expression.*fn8
THE DISTRICT COURT'S ORDER
Upon these findings which we have necessarily sketched, Judge Motley on May 14, 1970, entered the following order, which because of its complexity and importance to the questions we must decide, we reproduce in full. The district court subsequently granted a stay of its order pending appeal as to the bracketed portions. A stay as to the remainder of the order was denied.
It is now ordered, that defendants Follette, McGinnis and Mancusi, their employees, agents, successors, and all persons in active concert and participation with them be, and they are hereby, perpetually enjoined and restrained from:
1) Returning plaintiff to punitive segregation for charges previously preferred against him;
2) Placing plaintiff in punitive segregation or subjecting him to any other punishment as a result of which he loses accrued good time credit or is ...