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October 9, 1973

James NEWKIRK and Cornelius Lucas, Plaintiffs,
Harold N. BUTLER, Superintendent of Wallkill Correctional Facility, and Russell G. Oswald, Commissioner of Correctional Services of the State of New York, Defendants

Robert J. Ward, District Judge.

The opinion of the court was delivered by: WARD

ROBERT J. WARD, District Judge.

This is an action brought under 28 U.S.C. § 1343(3) and (4) and 42 U.S.C. § 1983, seeking declaratory and injunctive relief against alleged unconstitutional punishment. The four original plaintiffs were inmates of Wallkill Correctional Facility ("Wallkill"), a medium security prison, serving sentences of imprisonment imposed by New York State courts. The were transferred from that institution to two maximum security institutions (plaintiffs Newkirk and Lucas to Clinton Correctional Facility, plaintiffs Oliver and Rodriguez to Auburn Correctional Facility) on June 8, 1972 by the orders of and under the authority of defendants Harold N. Butler, Superintendent of Wallkill, and Russell G. Oswald, Commissioner of Correctional Services of the State of New York.

 The gravamen of the complaint is alleged imposition of punishment without due process of law, and solely for exercise of First and Sixth Amendment rights. The relief requested is a declaration that defendants had violated plaintiffs' constitutional rights, and an injunction ordering their return to Wallkill, expunging all record of their transfer, and prohibiting future transfers without a due process hearing.

 Prior to the commencement of the trial, two of the plaintiffs, Oliver and Rodriguez, were released and the complaint was dismissed insofar as it related to them. Following the trial, plaintiff Lucas was released and the action is dismissed as to him as well. The action continues as to plaintiff Newkirk.

 The transfers followed several weeks of activity during which plaintiffs had circulated for inmate signatures petitions to form a union at Wallkill. Obtaining the requisite number of inmate signatures was to be the first step in a process of gaining official recognition as a collective bargaining unit. This effort generated some vociferous controversy among the prisoners but was never forbidden or even actively discouraged by the prison officials, although they did watch closely and monitor the level of unrest within the prison. Tension among the inmates stemmed in part from the unwillingness of the existing prisoner representatives to support the petitions, and the consequent fear among other inmates that the authorities also opposed the efforts to unionize and that there would be reprisals against those who signed the petitions. The verbal controversy apparently peaked on June 2, 1972, with a general meeting at which the petitions were discussed in loud voices. The meeting dispersed peacefully and there were no incidents of violence or threats of violence. On June 8, after several days of apparent calm, the plaintiffs were summoned to the infirmary and informed that they were being transferred immediately. They were not told why or given any opportunity to contest the transfers.

 The institutions to which the plaintiffs were transferred are maximum security institutions, and the conditions there contrast strikingly with those in Wallkill, a medium security institution. The cells are locked, the guards armed, the access to library and recreational facilities more limited, the space more crowded, and the rehabilitation programs significantly less extensive. The prisons are at a greater distance from New York City where these prisoners' families live, and visiting is therefore restricted; the use of the telephone to communicate with family is also limited. Additionally, the fact of transfer itself involved some hardships: the prisoners were kept for various times in segregation "for screening purposes" and were unemployed (on "idle" status) pending reassignment to work. Their eventual new jobs paid less than those they had performed at Wallkill.

 Trial was accelerated in lieu of preliminary relief. After all the witnesses were heard, but before a decision was rendered, defendants represented that the remaining two plaintiffs were being returned to Wallkill. Counsel expressed the hope that the parties could stipulate to a consent order resolving the controversy, and decision was reserved. The settlement negotiations having broken down, defendants moved to dismiss the complaint as moot, since plaintiffs were no longer in the complained-of maximum security prisons, and three of the four plaintiffs had been released on parole. Plaintiff Newkirk opposes that motion, contending that the practices of defendants place him and other inmates under continuing fear of summary reprisal for the exercise of their First and Sixth Amendment rights.

 For the reasons discussed below, the prayer for declaratory relief is granted, the prayer for an injunction ordering the return of the prisoners to Wallkill is dismissed as moot, and the prayer for an injunction against future summary transfers is dismissed because in the present posture of the case there is not a sufficiently delineated controversy to merit its adjudication.

 Newkirk contends that the action of defendants amounted to the imposition of significant punishment without due process of law, and solely for the exercise of his First and Sixth Amendment rights. Defendants reply that the transfers were an administrative, not a disciplinary, act, that therefore their discretion must remain unfettered, and that prisoners are not entitled to a due process hearing prior to transfer. They maintain, moreover, that if the activity of plaintiff was protected under the First and Sixth Amendments, there was sufficient justification in the urgency of the situation to merit their action. The issues raised are of such scope that a preliminary discussion of the applicable law is appropriate.

 It can no longer be questioned that prisoners, while forfeiting, as a necessary corollary of prison life, significant rights and privileges enjoyed by the general populace, retain those basic rights which are not incompatible with the running of the penal institution. *fn1" Many cases in recent years have delineated the precise scope of these protections. Among those rights of prisoners which the courts will protect with special solicitude are the First Amendment right to hold and to express beliefs and to receive information, the Sixth Amendment right of access to the courts, and the Eighth Amendment right of freedom from cruel and unusual punishment, that is, from deprivation of the most basic human needs. *fn2" Any punishment imposed which infringes on these rights is examined with the strictest scrutiny, and the state must justify its acts by demonstrating the most pressing necessity. As Judge Weinfeld expressed the standard in Fortune Society v. McGinnis, 319 F. Supp. 901 at 904 (S.D.N.Y.1970), the state must show ". . . a compelling state interest centering about prison security, or a clear and present danger of a breach of prison security, or some substantial interference with orderly institutional administration." These rights are not absolute, nor even as extensive as those enjoyed by the general populace; the prison authorities remain free to regulate, for example, the manner of speech and the time and place of access to legal resources, to the extent justified by the true exigencies of maintaining prison discipline. *fn3" But the regulation must not be such as to abrogate the right, nor more restrictive than justified by the need for discipline.

 Outside this area of constitutionally protected rights lies the realm of "day-to-day prison discipline" or administration in which courts and particularly federal courts are traditionally reluctant to interfere. The state and the prison authorities are free, in this area, to prescribe rules and discipline for infractions, with wide discretion and without the close scrutiny described above. *fn4"

 In this realm, however, the courts have articulated the right of prisoners to be free from the arbitrary imposition of sanctions, even when basic rights are not infringed upon. Thus, the Court of Appeals for the Second Circuit in Sostre v. McGinnis, 442 F.2d 178, 198 (2d Cir. 1971), while rejecting the lower court's formulation of elaborate guarantees, stated, "We are not to be understood as disapproving the judgment of many courts that our constitutional scheme does not contemplate that society may commit lawbreakers to the capricious and arbitrary actions of prison officials . . .," and mandated a certain minimal due process before severe sanctions were imposed. And in Carothers v. Follette, 314 F. Supp. 1014 (S.D.N.Y.1970), Judge Mansfield said, "Although a prisoner does not possess all of the rights of an ordinary citizen he is still entitled to procedural due process commensurate with the practical problems faced in prison life . . ." at 1028. The amount of process which is "due" becomes the crucial question, decided by a balancing of the interest infringed upon against the needs of the prison system.

 The classic statement of this balancing process was made in Hannah v. Larche, 363 U.S. 420, 80 S. Ct. 1502, 4 L. Ed. 2d 1307 (1960) and repeated by the court in Sostre, supra.

"[As] a generalization, it can be said that due process embodies the differing rules of fair play, which through the years, have become associated with differing types of proceedings. Whether the Constitution requires that a particular right obtain in a particular proceeding depends upon a complexity of factors. The nature of the alleged right involved, the nature of the proceeding, and ...

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