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June 6, 1972

Julio WELLS, Plaintiff,
Paul D. McGINNIS, Commissioner of Correction of the State of New York, et al., Defendants

Gurfein, District Judge.

The opinion of the court was delivered by: GURFEIN

GURFEIN, District Judge.

This is a civil rights action brought pursuant to 42 U.S.C. §§ 1981, 1983, 1985 and the First, Fourth, Sixth, Ninth and Fourteenth Amendments to the Constitution of the United States. Jurisdiction is based on 28 U.S.C. § 1343. All of the alleged violations of the plaintiff's rights took place when he was an inmate at Green Haven Correctional Facility or the Brooklyn House of Detention.

 The complaint demands fifty thousand dollars ($50,000) damages and injunctive relief barring further violations of the plaintiff's rights and directing his release on parole. The complaint also seeks a writ of habeas corpus.

 The plaintiff was conditionally released from Green Haven on April 15, 1972. His claims for injunctive and habeas corpus relief are thus mooted. The issue of damages remains.

 The defendants McGinnis, Zelker and Sawner *fn1" move to dismiss the complaint on grounds thaat the Court lacks subject matter jurisdiction, Fed. R. Civ. P. 12(b)(1), and that the complaint fails to state a cause of action upon which relief can be granted, Fed. R. Civ. P. 12(b)(6). In the alternative these defendants move for judgment on the pleadings, Fed. R. Civ. P. 12(c), or for summary judgment, Fed. R. Civ. P. 56(b). The plaintiff pro se filed no papers opposing the motions.

 In support of the allegation of a conspiracy to deprive him of rights under color of law the plaintiff lists the following "overt acts":

 1. When the plaintiff commenced an earlier civil rights action in the Northern District of New York, United States ex rel. Wells v. McMann, 68 Civ. 99 (1969), while confined at Auburn Prison, local counsel was appointed for the plaintiff. While the matter was sub judice before Judge Port, the plaintiff was transferred to Green Haven, for the alleged purpose of "limiting the plaintiff communication with his attorney" (P10).

 2. In or about that same month, the plaintiff forwarded to his attorney a memorandum of law to be edited and presented to the Northern District in the case then pending. The memorandum was returned to the plaintiff with the incorrect explanation that the addressee was not on the plaintiff's writing list, in spite of the fact that but two days earlier the plaintiff had sent a letter to his attorney, who received it. This alleged interference thwarted the plaintiff in presenting to the Court a "proper elucidating memorandum" (P11). The plaintiff then attempted unsuccessfully to forward the memorandum to counsel via the plaintiff's mother but she did not receive it, the inference being that it was censored (P12).

 3. Letters to his family about prison conditions were alleged to have been withheld (P13). Certain legal papers were removed from his cell (PP17, 20). On or about June 19, 1970 the plaintiff was taken to the "prison court," where the Deputy Warden ordered his legal papers confiscated and punished the plaintiff with the loss of all recreation and exercise for 30 days (P18). In or about July 1970 he was again brought to the "prison court" and was told that another inmate had some of the plaintiff's legal papers and that access by inmates to one another's legal materials was not permitted. The plaintiff was then sentenced to ten days in his cell (P19). *fn2" The plaintiff also alleges that he is "circumscribed in the use of the prison's law library" (P21).

 4. The plaintiff complains that he was not allowed to appear before the Prison Commutation Board "as authorized by Section 235 of the Correction Law [McKinney's Consol. Laws c. 43]" when that body considered the restoration of good time credit previously denied to the plaintiff. He claims there was a lack of due process in that he was given no advance written notice of what constituted punishable conduct, no notice of the possible punishment for particular infractions, and no notice of the nature and cause of accusations (PP39-40).


 Although the defendants contend that the earlier civil rights action, supra, brought by the plaintiff in the Northern District in 1968 and decided against him, is res judicata on some of the issues pleaded here, I find that the issues in the earlier action were not the same. The Northern District allegations all related to plaintiff's imprisonment in Auburn Prison. The only imprisonments here involved relate to Green Haven and the Brooklyn House of Detention, though the plaintiff also claims an improper denial of "good time" credits earned at Auburn. All the other allegations relate to a period after October 24, 1969 when he was transferred to Green Haven. The circumstance that each case charges conspiracy against him by prison officials does not spell out res judicata, for new wrongs could have arisen aften the transfer which were unrelated to the earlier "conspiracy." Of course, strict doctrines of res judicata do not apply in this field. See Sanders v. United States, 373 U.S. 1, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1962). Cf. Rhodes v. Meyer, 334 F.2d 709 (8 Cir.), cert. denied, 379 U.S. 915, 85 S. Ct. 263, 13 L. Ed. 2d 186 (1964). Nor need a civil rights plaintiff exhaust state remedies in an action brought under the civil rights statute. 42 U.S.C. § 1983. Wilwording v. Swenson, 404 U.S. 249, 92 S. Ct. 407, 30 L. Ed. 2d 418 (1971); Rodriguez v. McGinnis, 456 F.2d 79 (2 Cir. Jan. 25, 1972).


 The transfer of the plaintiff from Auburn Prison to Green Haven was certainly consistent with the State's proper custody of the plaintiff. See Bundy v. Cannon, 328 F. Supp. 165, 173 (D. Md. 1971); United States ex rel. Verde v. Case, 326 F. Supp. 701, 704 (E.D. Pa. 1971). Even if communication with the plaintiff's counsel was hampered by the transfer, this does not make out a deprivation of the plaintiff's civil rights. The filing of a ...

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