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January 14, 1974

Masia A. MUKMUK, also known as Sylvester Cholmondeley, Plaintiff,

Bonsal, District Judge.

The opinion of the court was delivered by: BONSAL

BONSAL, District Judge.

Defendants move pursuant to Rule 12(c), Fed. R. Civ. P., for judgment on the pleadings, or in the alternative, for summary judgment pursuant to Rule 56, Fed. R. Civ. P. Plaintiff has cross moved for leave to add parties, to amend the complaint, and for summary judgment.

 Plaintiff, Sylvester Cholmondeley, also known as Masia Mukmuk, is presently confined to Great Meadow Correctional Facility pursuant to a judgment of conviction in Queens County Court on June 29, 1960. He was convicted for the crimes of rape in the first degree, burglary in the third degree, and robbery in the third degree, for which he was sentenced to serve the following terms of imprisonment: 10 to 20 years on the rape conviction, 5 to 10 years on the burglary conviction, and 5 to 10 years on the robbery conviction. The sentences on the burglary and robbery convictions are concurrent with each other, but consecutive to the sentence on the rape conviction.

 Plaintiff instituted this action pursuant to 42 U.S.C. § 1983 on August 14, 1970. Jurisdiction is claimed under 28 U.S.C. § 1343. His original complaint (the "August 14, 1970 complaint"), filed while he was an inmate at Green Haven Correctional Facility, alleged that when he was transferred to Green Haven on February 7, 1970, some books and magazines were "confiscated by agents of defendant Zelker [Superintendent of Green Haven Correctional Facility from June 11, 1970 to March 29, 1972] and have not been returned," and that he was improperly disciplined on July 28, 1970 by being placed in solitary confinement for teaching karate in the exercise yard. He sought an injunction ordering the defendant to return to him his personal writings, books, and magazines and to release him from solitary confinement. Plaintiff moved by order to show cause for a preliminary injunction. However, the problems for which his motion was presented were adjusted by agreement between the parties, and the motion was accordingly dismissed on consent and without prejudice by Judge Frankel on August 21, 1970.

 On December 17, 1970, plaintiff filed an amended complaint (the "December 17, 1970 complaint") setting forth approximately 15 occasions on which he was punished for prison-rule infractions during the year 1970, usually by being "keeplocked" in his cell for short periods ranging up to 20 days, by being placed in solitary confinement, or by the loss of "good time" or recreation privileges. He alleged that these disciplinary measures were taken as a result of his espousal of the Black Muslim religion while in prison.

 By notice of motion filed May 14, 1971, plaintiff petitioned the court to adjourn until early fall of 1971, the consolidated trial on the merits and hearing on the application for a preliminary injunction, originally noticed for May 19, 1971, and also petitioned for leave to file an amended complaint. By order dated May 17, 1971 and filed October 15, 1971, Judge Motley denied without prejudice the application for a preliminary injunction and granted the plaintiff's motion for leave to file an amended complaint.

 On October 15, 1971, plaintiff filed an amended complaint (the "October 15, 1971 complaint") -- toward which the defendants' present motion is directed -- in which he alleges that he has been mistreated by prison authorities in connection with rule infractions beginning with his first confinement in New York State prisons on August 29, 1960 and continuing to the present. His complaint sets forth approximately 80 such instances. Alleging that these disciplinary measures constituted a denial of his constitutional rights, he seeks a "final injunction against the wrongs complained of in this Complaint," a declaratory judgment and restoration of the good time which he claims to have lost by reason of the alleged mistreatment by prison authorities, and damages in the amount of $100,000 for "the cruel and unusual punishment to which he has been subjected," plus costs and attorneys fees. This complaint does not allege that he has previously exhausted his State remedies with respect to these claims.

 On November 1, 1971, defendants filed a motion to dismiss the October 15, 1971 complaint on the grounds that venue in the Southern District of New York was improper and that the defendants were improperly named in the complaint under the doctrine of respondeat superior. Judge Brieant denied the motion by endorsement on November 23, 1971, and defendants filed their answer on February 16, 1972.

 There followed an interlude during which no action was taken on the case until September 22, 1972, when defendants moved to dismiss for failure to prosecute. In opposition to this motion, plaintiff's counsel filed an affidavit in which she stated that "the period of dormancy in this case . . . coincided with certain developments in the plaintiff's situation that made the pursuit of legal redress an unwise tactic." On the return date of the motion, plaintiff's counsel advised the court that she was ready to proceed with the action, pending the discovery of certain documents which she believed to be in the possession of the Department of Correction. On October 30, 1972, the court denied the motion to dismiss and set December 1, 1972 as the date for the submission of a Pretrial Order.

 On March 16, 1973, plaintiff moved for a preliminary injunction seeking to enjoin the defendants from transferring the plaintiff to a rehabilitation program and ordering that the plaintiff be placed in federal protective custody pending the disposition of this action. By memorandum filed on April 20, 1973, the motion for a preliminary injunction was denied and the parties were directed to file a Pretrial Order at the earliest possible time.

 On March 28, 1973, plaintiff filed a motion seeking discovery of all disciplinary reports, records, and other documents pertaining to the plaintiff, including daily journals and segregation log books from each of the prisons at which plaintiff had been confined. This motion was referred to Magistrate Jacobs, and a hearing was held on April 3, 1973. At the hearing, it was agreed that the defendants would produce any writings from their files which made specific reference to the plaintiff; any writings, or references to writings, by the plaintiff; any correspondence between the plaintiff and Department of Correction officials; any writings which made reference to the plaintiff as a Black Muslim or to Muslims generally at any institution where plaintiff was at any time confined; and any writings referring in any way to any policy at any institution with respect to Muslims. In addition, defendants agreed to make available for inspection the segregation log books and daily journals referring to the days in which the plaintiff was in segregation or in which he was the subject of disciplinary action. Defendants were not required to produce any documents reflecting personal opinions or work product in connection with litigation. As a result of this agreement, the plaintiff's motion was withdrawn.

 In spite of the attempts by the Magistrate to work out a Pretrial Order and despite the volume of discovery material produced, no Pretrial Order has been filed. On October 5, 1973, defendants filed the present motion for judgment on the pleadings or for summary judgment. The motion was originally made returnable on October 23, but it was later adjourned to November 5, 1973. On October 30, 1973, plaintiff filed his motion for leave to add parties, to amend the complaint, and for summary judgment.

 With respect to their motion for judgment on the pleadings, defendants contend that under the Supreme Court's recent decision in Preiser v. Rodriguez, 411 U.S. 475, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973), a civil rights action seeking the restoration of good conduct time credits must be treated as a petition for a writ of habeas corpus with the attendant requirement that a plaintiff must exhaust his available State remedies pursuant to 28 U.S.C. § 2254 before presenting his claims to a Federal court. Defendants contend that this is such an action, even though the second amended complaint includes a prayer for damages and injunctive relief, which the defendants claim are "obviously tangential" to the "primary thrust of plaintiff's complaint," to secure his earlier release from confinement. Plaintiff, who has been represented by counsel since the commencement of this action, contends that Preiser does not apply to that part of the complaint seeking damages and an injunction.

 With respect to good time, because of his prison disciplinary record, which, according to the defendants, is one of the worst ever compiled by a New York State prisoner, plaintiff's loss of good time as of the filing of the October 15, 1971 complaint was 1,915 days, which would have made him ineligible for conditional release until 1979. Had plaintiff received the same allowances as a model prisoner, on the other hand, he would have been eligible for conditional release on July 17, 1973. At present, plaintiff will be eligible for conditional release on February 22, 1975. This revised date was the result of a thorough review of plaintiff's ...

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