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LARKINS v. OSWALD

October 5, 1973

Tyrone Benjamin LARKINS, Plaintiff,
v.
Russell G. OSWALD, Commissioner of Correction of New York State, et al., Defendants


Curtin, District Judge.


The opinion of the court was delivered by: CURTIN

CURTIN, District Judge.

Pending before the court for decision are motions for summary judgment filed by both parties. Plaintiff alleges that on June 7, 1972 he was placed in segregation by an Attica Adjustment Committee for having "inflammatory writing" in his cell and he is therefore being punished for his political beliefs. See Sostre v. McGinnis, 442 F.2d 178, 202-203 (2d Cir. 1971). By prior order of this court, plaintiff was permitted to proceed in forma pauperis and Robert B. Conklin, Esq. was assigned to represent him.

 The essential facts are not in dispute. On June 6, 1972, correction officers Michael Amico and Gene Tiede, assigned to "A" Block in the Attica Correctional Facility, observed plaintiff Tyrone Larkins speaking to a group of five other inmates in the yard. Correction officer John King, who was close by, identified the plaintiff, Tyrone Larkins, as the speaker and inmate Larry Tinsley as one of the members of the group.

 In his affidavit filed in support of this motion, Officer Amico explained that he knew that Larkins had a reputation as an instigator and dissenter and, for this reason, he and Tiede searched the cells of Larkins and Tinsley. In Larkins' cell, the officers found the political tract which became the subject of the proceeding against him and, in Tinsley's cell, the officers found notes describing plans to construct a bomb. Tinsley did not file an action in this court. When he appeared before the Adjustment Committee, he was counseled and released to general population.

 After finding the papers, Amico immediately filed an Inmate Misbehavior Report against Larkins stating:

 
Upon observing this man [Larkins] in the yard with a group of inmates Officer Tiede and myself frisked this man's cell and found Black Pantor [sic] Party papers and revolutionary papers in his cell.

 On June 7, 1972, Larkins appeared before the Adjustment Committee. The report of the Committee states:

 
Inmate appears belligerent and uncooperative toward institutional policies -- he believes in revolution -- inmate admits affiliation to Black Panther Party.

 The Committee's action was to confine Larkins in HBZ for seven days with loss of yard and recreation.

 In the action filed in this court, the plaintiff seeks money damages for what he claims was the improper action of the Committee. In support of their motion for summary judgment, the defendants have filed affidavits by Lieutenant LeMar A. Clor, who presided at the Adjustment Committee hearing, and by Officers Amico and Tiede. No affidavit was filed by correction officer John King. In his affidavit, Lt. Clor states that, at the Adjustment Committee meeting, Larkins was charged with advocating to the group in the yard the overthrow of the institution and the possession of inflammatory written materials. Lt. Clor describes Larkins' reaction as follows:

 
Larkins admitted that he was affiliated with the Black Panther Party and that he believed in Revolution and that forceful overthrow of existing authority was the only way to achieve certain ends.
 
Larkins never denied that he had lectured to the group of the other five (5) inmates on the advocacy of the overthrow of the institution.

 Considering the facts in a light most favorable to the defendants, relief must be given to the plaintiff. There is a discrepancy between the Adjustment Committee report and Lt. Clor's affidavit in which he described the proceedings before the Adjustment Committee. In his affidavit, Lt. Clor stated that the plaintiff was charged with advocating to the five inmates the overthrow of the institution. Officer Amico's Misbehavior Report, which formed the basis of the charge before the Committee, relates only that Larkins was in the yard with a group of inmates and that the Black Panther Party papers were found in his cell. From the Adjustment Committee report, it appears that there was some general discussion about plaintiff's attitude toward the institution, but nothing is said about what remarks Larkins directed to the inmates in the yard. In discussing specifically what Larkins said in the yard, Lt. Clor is only able to state:

 
Larkins never denied that he had lectured to the group of the other five (5) inmates on the advocacy of the overthrow of the institution.

 None of the officers heard what Larkins said to the group. From the record of the proceedings and the affidavits filed by the officers, it is clear that there was no charge or evidence before the Committee that Larkins had advocated the overthrow of the institution.

 That leaves for consideration whether Larkins may be punished for possessing the papers found in his cell. *fn1" This writing is entitled "The Black Panther Party Ten Point Program -- Platform." There is no evidence at all that Larkins had circulated this writing in the institution. Furthermore, although his position may be extreme in some points, yet many of the aspirations set forth in the paper are hard to fault. The demands relate to freedom, full employment, an end to the exploitation of the black community, decent housing, education, the desire for black men to be exempt from military service, an end to police brutality in the black community, freedom for black men held in prisons and a demand that black defendants go to trial before a black jury. These principles are espoused by many individuals in the American community. Under the guidance of Sostre v. McGinnis, supra, the court finds that there was nothing wrong with Larkins having this document in his cell and it was improper for the Adjustment Committee to punish him for having it there. The additional reasons for punishment set forth in the affidavit of Lt. Clor are not supported by the record. Partial summary judgment is granted to the plaintiff. The question of damage remains. The attorneys shall meet with the court on October 12, 1973 at 11:00 A.M. to determine what proceedings shall follow.

 So ordered.

 APPENDIX

 Exhibit ...


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