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December 13, 1971

UNITED STATES of America ex rel. Harold WALKER et al., Petitioners,
Vincent R. MANCUSI, Superintendent, Attica Correctional Facility, Respondent

Curtin, District Judge.

The opinion of the court was delivered by: CURTIN

CURTIN, District Judge.

This action was initiated by a pro se complaint submitted to the court by petitioners *fn1" on October 26, 1971. They alleged that they were being held in A Block, 6 Company, of Attica Correctional Facility under conditions more restrictive than those applied to the general population of the institution without notification that administrative disciplinary charges had been placed against them. They claimed that they were entitled to appearances before the Adjustment Committee of the facility established pursuant to the regulations of the Department of Correctional Services *fn2" and that the failure of state authorities to provide them such appearances constituted a denial of due process.

 Citing Carter v. McGinnis, 320 F. Supp. 1092 (W.D.N.Y. 1971), the court on October 28, 1971 ordered respondent to show cause why petitioners' demand for relief should not be granted. In response to the court's order, respondent filed an answering affidavit which did not rebut petitioners' allegation that they had not appeared before the Adjustment Committee. In pertinent part, the affidavit stated as follows:

[Petitioners] are housed in this area because they were believed to be active participants in the riot situation from September 9 through 13, 1971. They receive the same privileges as other inmates, with the exception of being permitted to work.
Further, petitioners will remain in this location until such time as investigation of the riot is completed and any action deemed appropriate is taken.

 In light of the seriousness of petitioners' claims and the nonresponsiveness of respondent's answering affidavit, the court ordered a hearing to take the testimony of a representative of the state "fully knowledgeable about the circumstances of petitioners' current form of incarceration." Order dated November 19, 1971.

 The hearing was held on December 1, 1971. The court heard testimony by Captain Walter T. Fogg, Acting Assistant Deputy Superintendent of Attica Correctional Facility. While Captain Fogg sincerely attempted to be of assistance to the court, it was evident that he was not "fully knowledgeable about the circumstances of petitioners' current form of incarceration." He has been assigned to Attica only since September 19, 1971. He was able to describe the conditions in A Block, 6 Company, but he had no information at all about the individual petitioners or why they were housed there.

 Captain Fogg's description of A Block, 6 Company, differed only in minor detail from the facts set forth in petitioners' complaint. The conditions in A Block, 6 Company, differ from those in the general population areas and also from those in Housing Block Z, the principal segregation area. Captain Fogg explained that men were assigned to A Block, 6 Company, when Housing Block Z became overcrowded.

 In contrast to the prisoners in general population, the inmates in A Block, 6 Company, are locked in their cells in excess of twenty-three hours a day and are allowed only a brief period of exercise in the yard when prisoners from other areas are not there. They eat in their cells rather than in the mess hall, and they do not work in the jobs they held prior to September 9, although as of November they receive the minimum pay of twenty cents an hour paid to inmates unassigned to jobs through no fault of their own.

 Conditions in A Block, 6 Company, are not, however, as restrictive as those in Housing Block Z. The inmates of A Block, 6 Company, may have newspapers, magazines, and the use of radio earphones, all of which are unavailable to prisoners in Housing Block Z. They have commissary privileges and may receive packages from the outside. The exercise facility in Housing Block Z is more limited than that available to inmates of A Block, 6 Company. Finally, a man in Housing Block Z may suffer a loss of good time, while no such loss attaches to confinement in A Block, 6 Company.

 The court believes that these facts, while not establishing that the inmates of A Block, 6 Company, have been subjected to cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution, illustrate that their confinement "involves a harsh reduction of the privileges typically afforded inmates of the general population." Carter v. McGinnis, supra, at 1093, n. 1. Such confinement constitutes punishment sufficiently severe to require minimum due process safeguards. Due process requires at least that the prisoner be confronted with the accusation, informed of the evidence against him and afforded a reasonable opportunity to explain his actions. Sostre v. McGinnis, 442 F.2d 178, 194-199 (2d Cir. 1971).

 As this court stated in Carter, the Department of Correctional Services' own disciplinary regulations "demonstrate an awareness of the due process guarantees retained by a prisoner." 320 F. Supp. at 1096. The regulations require that several steps be followed in disciplining inmates in order to assure that an inmate is not arbitrarily or capriciously punished.

 The regulations require that an officer who observes an incident of inmate misbehavior make a written report as soon as practicable. Section 251.4. When the violation is serious and the officer has reasonable grounds to believe that the inmate represents a threat to the safety or security of the institution, the inmate may be confined immediately. Section 251.6. When an inmate is confined to his cell or to a special housing unit, however, the officer must make report before going off duty. Section 251.6(e)(1).

 The regulations also provide that, when an inmate is confined in his cell or a special housing unit, he should be interviewed by the Adjustment Committee at its next meeting. Adjustment Committee meetings must be held at least once a week. Section 252.3. At the meeting with the inmate, the Committee must review the report of the incident, Section 252.3(c), and may direct a further investigation. Section 252.3(d). The Committee must give the inmate an opportunity to be heard in explanation of his behavior and must make a written summary of the information received. Section 252.3(e). In cases in which the Committee determines that the inmate should be held in his cell or in a special housing unit pending disposition of the case, it must meet with him ...

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