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November 21, 1972

Henry CARTER et al., Plaintiffs,
Paul D. McGINNIS, Commissioner of Corrections of the State of New York, et al., Defendants

Curtin, District Judge.

The opinion of the court was delivered by: CURTIN

CURTIN, District Judge.

In this action, the plaintiffs *fn1" raise several claims which arise out of their confinement in segregation at the Attica Correctional Facility and which allege violation by the defendants of various rights secured by the United States Constitution and 42 U.S.C. § 1983. This court has jurisdiction of the action under 28 U.S.C. §§ 1343(3) and 2201.

 Pending at present are a motion for summary judgment by the plaintiffs which in effect seeks declaratory relief *fn2" on their third claim, and a cross-motion by the defendants which asks dismissal of the complaint for failure to state a claim upon which relief can be granted. *fn3" The plaintiffs' third claim is that their confinement in segregation violated the Due Process Clause of the Fourteenth Amendment because prior to being so confined they were not afforded (1) written notice of the charges against them, (2) opportunity to confront any accusers, (3) opportunity to present evidence on their own behalf, (4) counsel or counsel substitute, (5) hearings before an impartial tribunal, (6) reasons for the sanctions imposed, (7) transcripts of the proceedings and (8) other essential procedural safeguards.

 The factual setting in which the instant motions have been made is as follows.

 On November 2-4, 1970, an inmate uprising occurred at the Auburn Correctional Facility. Shortly thereafter the plaintiffs were transferred to Attica and placed in segregation without being notified of any charges against them or informed of the reasons for their special confinement. After the instant action was commenced, this court was told that the plaintiffs' stay in segregation would continue until an investigation of the Auburn disturbance was completed. Concluding that these facts established a violation of the plaintiffs' rights under the Due Process Clause, the court on December 15, 1970 ordered that the plaintiffs be afforded Superintendent's Proceedings in accordance with the Department of Correctional Services' own "Procedures for Implementing Standards of Inmate Behavior and for Granting Good Behavior Time Allowances," 7 N.Y.C.R.R. 250.1 et seq. 320 F. Supp. 1092. The Superintendent's Proceedings conducted in accordance with the court's order fell into two groups.

 On December 17, 1970, plaintiffs Carter, Johnson, Tanner, Thompson and Brown were each presented with written charges alleging specific acts of misconduct during the Auburn uprising. The charged acts arguably constituted crimes under the New York Penal Law or evidence of crimes. Carter, Tanner and Brown were also charged with kicking correction officers during their transfer from Auburn to Attica. The officer who delivered the charges told the five inmates that he had been assigned to assist them, presumably in investigation and preparation of their responses to the charges, but all refused his help, Brown and Carter asking for counsel and Johnson explaining that he could not trust the assistance of a correction officer. Later in the day the hearings commenced. The Superintendent called in each of the inmates, told him of the nature of the hearing, asked whether the charges had been served and assistance offered, and requested him to plead. Each inmate either stood mute or asserted his privilege against self-incrimination guaranteed by the Fifth Amendment, and Brown and Carter also demanded one or more of the rights stated in the third claim of their complaint, which demands were denied. The inmate was then sent from the room, and Auburn correction officers, sometimes identifying the inmate from photographs, gave unsworn testimony about their observations of his activities during the Auburn disturbance and the trip to Attica. Several affidavits attesting to the same activities were also made part of the record. Then the Superintendent called the inmate back and summarized the evidence against him. Each inmate again refused to respond except to assert his Fifth Amendment privilege or to claim other rights. The Superintendent thereupon sustained the charges and sentenced the inmate to sixty days in segregation and a loss of good time ranging from 270 days to a year.

 On December 23, 1970, the Attica Superintendent went to Auburn and interviewed unsworn Auburn correction officers about the activities of plaintiffs Lewis, Goddard, Gonzalez and Plummer during the disturbance. On December 27 each of the four inmates received written charges relating to the disturbance and an offer of assistance, which was refused. As had been the case with the other plaintiffs, the charged acts arguably constituted crimes under the New York Penal Law or evidence of crimes. On December 28 the Superintendent informed each inmate of the charges and testimony against him and asked for a response thereto. Goddard denied the charges against him, while the other three inmates pleaded their Fifth Amendment privilege. Goddard, Gonzalez and Plummer each denied knowing some of the correction officers who gave evidence against them, and Gonzalez testified in some detail about his whereabouts on November 4. As on December 17, the Superintendent affirmed the charges and sentenced the inmates to sixty days in segregation and losses of good time ranging from ninety days to a year.

 The Court's order of December 15 provided that, if the plaintiffs were sentenced to segregation, they were to be given credit for time so spent prior to the hearings. 320 F. Supp. at 1098. In sentencing the Superintendent followed the direction of the court but, at the expiration of their sixty-day sentences, the plaintiffs continued to be held in segregation. The plaintiffs then applied to the court for further relief, and there was held a hearing at which correctional officials testified about the plaintiffs' continued special confinement. In an oral decision rendered January 26, 1971, the court concluded that no showing had been made that the plaintiffs constituted a threat to the security of the Attica Correctional Facility and found that they were being held in segregation solely on the ground that an investigation of the Auburn disturbance was continuing. Citing Smoake v. Fritz, 320 F. Supp. 609 (S.D.N.Y.1970), and Davis v. Lindsay, 321 F. Supp. 1134 (S.D.N.Y.1970), the court issued an injunction requiring the release of the plaintiffs from segregation.

 During the month of January, 1971 a grand jury was convened in Cayuga County to investigate the Auburn uprising. Although all of the plaintiffs were presumably possible targets of the grand jury, only plaintiff Johnson was included among the six persons against whom indictments were returned. He later pleaded guilty to a misdemeanor charge and was sentenced to a term in the Cayuga County Jail.

 Before turning to the substantive issues in the case, the court notes that the plaintiffs do not state that they appealed their sentences in the Superintendent's Proceedings to the Commissioner of Correctional Services before instituting the instant action, and that the defendants do not claim that the action is therefore barred under Eisen v. Eastman, 421 F.2d 560, 567-569 (2d Cir. 1969), cert. denied, 400 U.S. 841, 91 S. Ct. 82, 27 L. Ed. 2d 75 (1970). It is questionable whether the administrative exhaustion requirement stated in Eisen is still viable in light of Wilwording v. Swenson, 404 U.S. 249, 92 S. Ct. 407, 30 L. Ed. 2d 418 (1971), and Carter v. Stanton, 405 U.S. 669, 92 S. Ct. 1232, 31 L. Ed. 2d 569 (1972), but this question need not be determined here. Even under Eisen, the plaintiffs would not be required to appeal their sentences to the Commissioner before seeking judicial relief. First, they challenge the constitutionality of the Department of Correctional Services' "Procedures for Implementing Standards of Inmate Behavior and for Granting Good Behavior Time Allowances" as applied to the undisputed facts of their case, and administrative appeal would be "certainly or probably futile." Eisen v. Eastman, supra, 421 F.2d at 569. Second, although the plaintiffs' losses of good time were deemed "tentative until such time as [they] actually [affected] consideration for parole or for conditional or other release" and were thus not necessarily subject to confirmation or modification by the Commissioner until that time, Section 260.4(b), 7 N.Y.C.R.R. 260.4(b), the plaintiffs' objections to the procedures employed at their disciplinary hearings were subject to "automatic review" by the Commissioner under Section 270.2(a)(2), 7 N.Y.C.R.R. 270.2(a)(2), because they were sentenced to more than thirty days in a special housing unit.

 The plaintiffs make several arguments in support of their contention that the punishment *fn4" imposed on them violated the Due Process Clause. Each of the arguments advances a reason why the Due Process Clause required that procedural safeguards in addition to those mandated by Sostre v. McGinnis, 442 F.2d 178, 194-199 (2d Cir. 1971), cert. denied, 404 U.S. 1049, 92 S. Ct. 719, 30 L. Ed. 2d 740, cert. denied sub nom. Oswald v. Sostre, 405 U.S. 978, 92 S. Ct. 1190, 31 L. Ed. 2d 254 (1972), be afforded the plaintiffs before they were punished. First, the plaintiffs argue that Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972), in effect overruled Sostre and that the safeguards specified in Morrissey are required in prison disciplinary proceedings as well as in the parole revocation process. Second, they argue that Sostre leaves open the question whether procedural guarantees beyond those specified therein may be required in some disciplinary proceedings and that additional guarantees are required where the offenses charged arise out of a confrontation between inmates and correction officers and problems relating to identification of the offending inmate may be present. Third, they argue that procedural rights beyond those set forth in Sostre are required by virtue of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), where the disciplinary offenses charged also constitute crimes or are so closely related to criminal conduct that interrogation might elicit evidence of crimes. The court believes it unnecessary to reach the plaintiffs' first two arguments, for it finds merit in the third and determines that the punishment meted out to the plaintiffs in the disciplinary hearings conducted on December 17 and 28, 1970 was imposed in violation of the Due Process Clause.

 In the instant case, the disciplinary offenses with which the plaintiffs were charged also constituted crimes under the New York Penal Law or were so closely related to criminal conduct that interrogation of the plaintiffs might have elicited evidence of crimes. *fn5" A discussion of the significance of this fact must begin with consideration of Miranda v. Arizona, supra.

 In Miranda, the Supreme Court recognized that custodial interrogation of a person suspected of a crime "contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely." 384 U.S. at 467, 86 S. Ct. at 1624. Consequently the Court held that, when a person suspected of criminal conduct is held in custody and "subjected to questioning, the privilege against self-incrimination is jeopardized [and] [procedural] safeguards must be employed to protect the privilege . . ." Id. at 478, 86 S. Ct. at 1630. As for the procedural safeguards to be employed, the Court required that prior to any questioning the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to have an attorney present during questioning.

 The subsequent case of Mathis v. United States, 391 U.S. 1, 4-5, 88 S. Ct. 1503, 20 L. Ed. 2d 381 (1968), indicates that questioning an imprisoned suspect constitutes custodial interrogation even when he is in custody for an entirely separate offense and the interrogation is not intended to elicit evidence for criminal prosecution. Under Mathis, Miranda applies to custodial interrogation when there is "the possibility" that the matter will "end up in criminal prosecution." 931 U.S. at 4, 88 S. Ct. 1503. See also Blyden v. Hogan, 320 F. Supp. 513, 519 (S.D.N.Y.1970). Consequently, because of the nature of the offenses with which the plaintiffs were charged, the questioning conducted at their ...

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