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February 27, 1973

Donald WALLACE et al., etc., Plaintiffs,
Miles F. McDONALD et al., etc., Defendants

Judd, District Judge.

The opinion of the court was delivered by: JUDD


JUDD, District Judge.

 In this civil rights action by state detainees, the court reserved decision on plaintiffs' motion to declare it a class action and defendants' motion to dismiss for lack of jurisdiction over the subject matter and failure to state a claim. F.R. Civ. P. 12(b). Defendants' motion was directed to the first amended complaint, but has been treated as applicable also to the second amended complaint, which is similar in nature.

 The action was instituted by indigent state detainees, arrested or indicted for felonies and incarcerated in the Brooklyn House of Detention for Men, an institution of the New York City Department of Correction, on behalf of all those who are or will be so incarcerated. The defendants include substantially all the Supreme Court Justices in Kings County and the Administrative Judge, the District Attorney, the Commissioner of Correction, the Chief Probation Officer, the Chief Clerk of the Supreme Court, and the Chief Clerk of the Criminal Term of the Supreme Court. The allegations of the complaint are set up as eight separate causes of action and assert:

 1. That the Legal Aid Society is assigned to represent indigents in approximately 90 percent of the cases, with the result that it has such a staggering caseload that it cannot adequately investigate, prepare, or try the cases, listing 17 particulars in which assigned counsel have failed to give effective assistance.

 2. That the constitutional right to a speedy trial is denied by delays in presenting cases to the grand jury, bringing cases to trial, and preparing presentence reports which take from three to four months to complete.

 3. That bail is denied where no imposition of money conditions is reasonably necessary.

 4. That lengthy pretrial incarceration causes unnecessary loss of employment, financial hardship, and anguish to inmates and their families.

 5. That the right of access to the courts is hampered by the refusal to consider pro se motions, which the Clerk sends to the same assigned counsel whose inadequate representation led to the necessity for making pro se motions, instead of placing them on the calendar for consideration by a judge.

 6. That taking prisoners from jail to courthouse pens without producing them before the judge and failing to produce them in court when ordered creates further delays.

 7. That plaintiffs are coerced to plead guilty and lose their constitutional right to a jury trial because of the delays and hardships imposed by the other practices described in the complaint.

 8. That there is discrimination against indigent defendants because the practices described result in their being treated more harshly than those who can afford private counsel.

 Plaintiffs allege that there have been more than 25,000 felony indictments in Kings County in less than four years, that the class they represent consists of more than 1,000 members and is too numerous to join all potential plaintiffs, that the case involves common questions of law and fact which the named plaintiffs can adequately present, and that the defendants have acted on grounds generally applicable to the class.


 The facts stated in the complaint are of a nature which would generally be appropriate to consider in an action under 42 U.S.C. § 1983 and 28 U.S.C. § 1343. Section 1983 states:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

 As stated in this court's Memorandum and Order dated February 15, 1973, directing a hearing on portions of the motion for a preliminary injunction, jurisdiction in civil rights actions extends to any "usage" involving state action which defeats federal rights. Adickes v. S.H. Kress & Co., 398 U.S. 144, 162-170, 90 S. Ct. 1598, 1611-1614, 26 L. Ed. 2d 142 (1970). The complaint alleges a number of ...

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