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November 19, 1973

James FOWLER, Plaintiff,
Leon J. VINCENT, Superintendent of Green Haven Correctional Facility, et al., Defendants

Bauman, District Judge.

The opinion of the court was delivered by: BAUMAN

BAUMAN, District Judge.

This is an action brought pursuant to 42 U.S.C. § 1983 and its jurisdictional complement, 28 U.S.C. § 1343(3). At the time of the filing of the complaint plaintiff, James Fowler, was incarcerated in the Green Haven Correctional Facility, serving a sentence of seven years imposed on December 4, 1968 in the Supreme Court, New York County. He seeks damages of $300,000 from each of the three defendants as well as an injunction against any possible criminal prosecution arising out of the events set forth in the complaint. Before the court is the motion of the Attorney General, representing all three defendants, to dismiss pursuant to Rule 12(b)6 of the Federal Rules. For the reasons that follow, the motion is granted in part and denied in part.

 The allegations of the complaint, which, for the purposes of this motion must be taken as true, can be briefly stated. On August 6, 1972 plaintiff was returning to the cell block where he resided following a visit from his family. After an innocuous exchange with a gate officer plaintiff became the subject of several abusive remarks by defendant Powers, another officer. Powers first grabbed plaintiff's "visit pass" and then struck him from behind. A scuffle ensued in which Powers was apparently aided by another officer, which continued until inmates and yet another officer separated the men. Powers reported the incident to the prison authorities, and plaintiff was taken to the prison hospital where he was treated for injuries to the head and cuts on his left arm and hand. Fowler was placed in segregation immediately thereafter.

 On August 8 plaintiff was taken before a staff sergeant of the prison and a representative of the State Bureau of Criminal Investigation. He was told that Powers was charging him with criminal assault and asked if he wished to make any statements. Fowler said nothing other than to request counsel. Two days later a non-lawyer staff sergeant was assigned to represent him in the administrative proceedings within the prison.

 A so-called "Superintendent's hearing" was conducted on August 11 by the deputy superintendent of Green Haven. At that time plaintiff pleaded not guilty to the assault charge and again requested counsel. The request was again denied and Fowler was informed that the charge would require a lengthy investigation.

 August 22 was the date on which the Parole Board had previously decided plaintiff was to have been released. However, on the 21st he was informed by his parole officer that instead of being released on the 22 he was to appear before the Parole Board on that day. He appeared instead before a "Superintendent's hearing", this time convened by a Captain Zelinski, who informed him that he had been found guilty of the charges and was sentenced to thirty days' loss of good time and thirty days' confinement in segregation.

 On August 23 plaintiff did appear before the Parole Board, where he once again renewed his request for counsel. In response to his inquiry about a release date the Board told him that an explanation of the events of August 6 would be in his interest. Fowler proceeded to relate his version of the incident.

 On August 27 he was notified that the Board had rescinded his August 22 release date and had ordered him to appear before them at their October session.

 Plaintiff appeared before a grand jury of Dutchess County on September 12, at which time he was questioned regarding the incident of August 6. He was informed in early October by an attorney from the NAACP Legal Defense Fund who had endeavored to represent him in these matters that the Assistant District Attorney was offering him a plea of guilty to assault in the third degree and would not recommend additional jail time to the sentencing judge. The complaint is thereafter silent on this point and, so far as appears from the papers before me, plaintiff refused the bargain and the matter is thus still pending before the grand jury. Plaintiff was, however, conditionally released from Green Haven on November 10, 1972. *fn1"

 The complaint sets forth three causes of action. In the first Fowler claims that defendant Powers deprived him of the right to due process secured by the Fourteenth Amendment by assaulting him. In the second he accuses defendant Vincent, the superintendent of Green Haven, with violations of various of his constitutional rights. In essence, however, he alleges that the simultaneity of an administrative proceeding and a grand jury investigation, and the consequent pressure to defend himself in the one and avoid self-incrimination in the other, violated the right against self-incrimination secured by the Fifth Amendment. Plaintiff also alleges that his Sixth Amendment rights were violated by the prison's refusing him counsel while conducting disciplinary proceedings. In the third cause of action he accuses defendant Grady, the Assistant District Attorney in Dutchess County, of depriving him of his right to due process. He therefore seeks damages against Grady and an injunction against further criminal prosecution. Although the state has moved to dismiss all three causes of action, I conclude that it has prevailed only upon the third.


 In seeking to dismiss the first cause of action, the Attorney General asserts that prisoner-guard disputes are no concern of the federal courts. Wright v. McMann, 387 F.2d 519 (2d Cir. 1967). That proposition is unimpeachable, but of little use here. It overlooks the more recent case of Johnson v. Glick, 481 F.2d 1028 (2d Cir. 1973), cert. denied, 414 U.S. 1033, 94 S. Ct. 462, 38 L. Ed. 2d 324 (1973), in which our Court of Appeals held, in circumstances quite similar to those of the case at bar, that "application of undue force by law enforcement officers deprives a suspect of liberty without due process of law." While conceding that "not every push or shove" was a matter of federal cognizance, the court stated: "in determining whether the constitutional line has been crossed, a court must look to such factors as the need for the application of force, the relationship between the need and the amount of force that was used, the extent of injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm." 481 F.2d at 1033. See also Allison v. California Adult Authority, 419 F.2d 822 (9th Cir. 1969); Bethea v. Crouse, 417 F.2d 504 (10th Cir. 1969); Collum v. Butler, 421 F.2d 1257 (7th Cir. 1970); Howell v. Cataldi, 464 F.2d 272 (3rd Cir. 1972); Tolbert v. Bragan, 451 F.2d 1020 (5th Cir. 1971). Given that standard, I am satisfied that the complaint states a cause of action against the defendant Powers. A fair reading of the complaint would suggest that defendant's assault was unprovoked, excessive, and undertaken solely for the purpose of inflicting harm. These allegations, if proven, would entitle plaintiff to relief under 42 U.S.C. § 1983.


 With regard to the second cause of action, the Attorney General defines the issue merely as whether a prisoner is entitled to counsel in prison disciplinary proceedings. Since Sostre v. McGinnis, 442 F.2d 178 (2nd Cir. 1971), cert. denied, 404 U.S. 1049, 92 S. Ct. 719, 30 L. Ed. 2d 740 and 405 U.S. 978, 92 S. Ct. 1190, 31 L. Ed. 2d 254 (1972), the law in this circuit is clear that he is not. That does not end our inquiry, however, for the allegations in the second cause of action are slightly more complex than defendants have portrayed them. Fowler objects to the deprivation of counsel at disciplinary proceedings while the state was ...

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