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July 28, 1971

Martin SOSTRE, Plaintiff,
Nelson H. OTIS, Acting Superintendent of Wallkill Correctional Facility, et al., Defendants

The opinion of the court was delivered by: MANSFIELD

MANSFIELD, Circuit Judge:

In this action arising under the federal Civil Rights Law, 42 U.S.C. ยง 1983, plaintiff, Martin Sostre, seeks an order enjoining the supervisory personnel at Wallkill Correctional Facility, where Sostre is incarcerated pursuant to a 30 to 40-year sentence for a narcotics offense, from interfering with his receipt of literature which he has ordered through the mails. Sostre commenced the action in March 1970 seeking an injunction and $20,000 damages, naming as defendants the former warden of Wallkill, the late Charles L. McKendrick, and the former Commissioner of Correction, Paul D. McGinnis. The defendants moved to dismiss the complaint for failure to state a claim upon which relief could be granted and for lack of subject matter jurisdiction. The motion was denied by Judge Motley on June 3, 1970, and the defendants filed an answer on July 9, 1970. On October 27, 1970, Sostre, proceeding pro se, moved for judgment on the pleadings. At the request of defendants we deferred decision pending the outcome of Sostre v. McGinnis, 442 F.2d 178 (Dkt. No. 35038, 2d Cir.), argued en banc October 21, 1970, which was decided on February 24, 1971. On March 26, 1971, counsel entered an appearance for Sostre and filed a memorandum of law in support of his motion for judgment on the pleadings. In this memorandum the damage claim was withdrawn and Acting Superintendent Otis and Commissioner Oswald were substituted as defendants, Rule 25(d)(1), F.R. Civ. P. Further delay has been due in part to submission of additional briefs and papers by the parties.

The case arises from Sostre's attempts to obtain assorted literature. In May 1968, while incarcerated at Green Haven Prison, Sostre subscribed to the following weekly and monthly publications: Workers World, Liberator Magazine, Afro-America, Negro Digest, Criminal Law Bulletin, Muhammed Speaks, and the Buffalo Challenger. He received none of these publications while at Green Haven. On August 9, 1969, one day after being transferred to Wallkill, he requested the above publications from Warden McKendrick, who allegedly replied that a check would be made and the property given to Sostre. On August 15, 1969, Sostre was given 12 copies of the Liberator, 5 copies of Afro-America, 52 copies of the Buffalo Challenger, and 11 copies of Negro Digest. He did not receive Workers World, Muhammed Speaks, or the Criminal Law Bulletin. A prison official informed Sostre that these publications were being cleared and would be given to Sostre when they had been cleared.

 On August 25, 1969, Sostre met with a deputy warden and requested, unsuccessfully, the three publications which he had not received. On August 26, Sostre submitted a written request for an interview with Warden McKendrick concerning these publications. At the interview, on September 2, 1969, Warden McKendrick refused to permit Sostre to receive Workers World on the ground that it contained material supporting a prisoners' riot in an army stockade in Vietnam and denied having seen the Criminal Law Bulletin. He granted Sostre the right to receive Muhammed Speaks. When Sostre attempted to claim his back issues of Muhammed Speaks, however, an assistant deputy warden told him that they had been thrown away.

 On August 27, 1969, Sostre renewed his subscription to Workers World for another year although it had been and continued to be withheld from him by prison officials. On August 30, 1969, Sostre ordered two publications -- Listen Brother and Martin Sostre in Court -- from World View Publishers in New York City. These publications also were withheld.

 Later Sostre made additional purchases of reading material as follows: on October 10, 1969, a 6-month subscription to Claridad (a Spanish-language magazine from Puerto Rico); on October 20, Selected Writings of Mao Tse Tung and Quotations from Mao Tse Tung ; on November 6, a 1-year subscription to the Black Panther Party Newspaper ; on December 18, a 1-year subscription to Ramparts ; On December 19, a 10-week subscription to the Guardian and a copy of the Handbook of Revolutionary Warfare, by Kwame Nkrumah.

 On March 24, 1971, the New York State Department of Correction adopted a new procedure, designated Adm. No. 82, for the screening of literature ordered by and sent to prisoners. This memorandum stated:

"The policy of this Department is to allow free access to media in the institutional setting for either program or private individual use. The governing criteria are that this material be acceptable for legal mailing in the United States, should not be obscene and not tend to excite activities posing a threat to prison discipline."

 The memorandum established a committee of review consisting of the head of the service unit, a member of the mental hygiene staff, the chaplains, the chief educational officer, and the superintendent, the latter three of whom could be represented by delegates. "Whoever brings up the subject of unacceptability" was instructed to "submit their argument" to this committee. The committee was empowered to report to the institutional head concerning the questioned literature, and that official was directed to make a preliminary decision. This decision was to remain in force while the committee's report and the decision itself were forwarded to the Commissioner of Correction, who was to make a final decision after review of the question by the Central Office.

 On April 29, 1971, the March 24 directive was superseded by Administrative Bulletin No. 2. This bulletin provided specifically that "inmates shall be allowed to subscribe to or to receive from authorized correspondents a wide range of books, magazines and newspapers." Detailed guidelines stating seven factors which could lead to non-acceptability of literature were established. The institutional superintendents were directed to create review committees consisting of "the head of the service unit, a member of the Mental Hygiene staff, the chaplains, an education officer or teacher, or librarians, and a representative of the custodial service." The process of making decisions, and the procedure for review thereof, remained unchanged, but a paragraph was added imposing certain time limitations on the process to insure that a final decision would be reached within approximately two weeks.

 The defendants do not deny that issues of the Black Panther Party Newspaper and Workers World are being withheld from Sostre. These issues are not returned to the publishers but are kept by prison officials as they arrive. They also admit that five books -- Listen Brother, Martin Sostre in Court, Selected Writings of Mao Tse Tung, Quotations from Chairman Mao, and Handbook of Revolutionary Warfare -- were returned to their publishers. According to letters from Assistant Attorney General Hoffman dated May 21, 1971, and May 28, 1971, what appear to be all the disputed issues of Claridad and the Guardian have been screened and approved by the review committee and have been given to Sostre.

 In recent years the denial of due process in internal prison administration has been claimed with increased frequency, see Burns v. Swenson, 430 F.2d 771, 778-780 (8th Cir. 1970); Sostre v. Rockefeller, 312 F. Supp. 863, 871-873 (S.D.N.Y. 1970), rev'd in part sub nom. Sostre v. McGinnis, 442 F.2d 178 (Dkt. No. 35038, 2d Cir. 1971) [hereinafter cited to pages in the slip opinion], but such claims have generally arisen in the context of the disciplining of inmates for violation of prison rules. Additional due process questions have been presented in connection with decisions concerning an inmate's suitability for release on parole, Menechino v. Oswald, 430 F.2d 403 (2d Cir. 1970), or revocation thereof, United States ex rel. Bey v. Connecticut State Board of Parole, 443 F.2d 1079 (2d Cir. 1971). At the same time, a number of cases have challenged, and courts have on First Amendment grounds overturned, decisions of prison officials denying specific literature to inmates, see Walker v. Blackwell, 411 F.2d 23, 28-29 (5th Cir. 1969) (Muhammed Speaks); Fortune Society v. McGinnis, 319 F. Supp. 901 (S.D.N.Y. 1970) (Fortune News); Shakur v. Commissioner of Corrections, 69 Civ. 4493 (S.D.N.Y. 1969) (pretrial detainees permitted to receive Black Panther Party Newspaper). Cf. Sobel v. Reed, 327 F. Supp. 1294 (S.D.N.Y., 1971) (parolee has First Amendment right to address left-wing organizations).

 There is little question that the procedure set forth in Administrative Bulletin No. 2, now in effect, would not satisfy the requirements of due process were it the mechanism by which censorship was imposed on literature in a free society outside prison walls. First, the procedure is completely ex parte : no notice need be given either to the publisher of the questioned material or to the inmate for whom it is destined. See Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175, 89 S. Ct. 347, 21 L. Ed. 2d 325 (1968). Second, it does not place on the censors the burden of showing that censored literature is not protected, and it appears to permit a final restraint without any judicial determination. These factors were held to invalidate a censorship scheme in Freedman v. Maryland, 380 U.S. 51, 58, 85 S. Ct. 734, 13 L. Ed. 2d 649 (1965); cf. Blount v. Rizzi, 400 U.S. 410, 91 S. Ct. 423, 27 L. Ed. 2d 498 (1971) (administrative agency seeking to censor must initiate judicial review of its decision). Third, persons affected by the censorship are not afforded an opportunity to be heard, Carroll v. President and Commissioners of Princess Anne, supra ; cf. American and European Agencies, Inc. v. Gilliland, 101 U.S. App. D.C. 104, 247 F.2d 95, 97-98, cert. denied 355 U.S. 884, 78 S. Ct. 152, 2 L. Ed. 2d 114 (1957).

 However, such considerations are obviously not dispositive of the validity of a censorship regulation imposed in the prison context. While it is clear that individuals incarcerated in penal institutions have not forfeited all the rights of free citizens, Brown v. Peyton, 437 F.2d 1228, 1230 (4th Cir. 1971); Fortune Society v. McGinnis, supra, 319 F. Supp. at 904; Carothers v. Follette, 314 F. Supp. 1014, 1023 (S.D.N.Y. 1970), we are not unmindful that "[lawful] incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system." Price v. Johnston, 334 U.S. 266, 285, 68 S. Ct. 1049, 92 L. Ed. 1356 (1948). "A prisoner retains all the rights of an ordinary citizen except those ...

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