The opinion of the court was delivered by: WEINSTEIN
MEMORANDUM OF DECISION AND ORDER
WEINSTEIN, District Judge.
Plaintiffs, nine present and former pretrial detainees at the Brooklyn House of Detention for Men (hereinafter "BHD"), seek a preliminary injunction in this civil rights action. 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3). They challenge (1) lack of due process in assigning them to "administrative segregation" and (2) different treatment from that accorded other inmates.
Extensive evidentiary hearings were held in the courthouse and at the BHD. The court inspected the BHD and observed its various programs.
For the reasons stated below, a preliminary injunction must be granted requiring that plaintiffs not be denied opportunities to attend religious services, consult with jailhouse lawyers and participate in educational programs available to other inmates. The issue of the alleged lack of due process in assigning plaintiffs to administrative segregation is moot.
I. MOOTNESS OF DUE PROCESS ISSUE
Officers of the BHD testified that they observed plaintiffs Paul Coppolla, Gregory Wise and Pedro Morges attempting to escape; they have since been indicted for this alleged crime. Thus good ground exists for believing them to be dangerous to the institution. The grand jury indictments and the right to prompt trials on the pending escape charges furnish adequate protection against unreasonable administrative segregation.
Three other plaintiffs, George Wilson, Timothy Adams and George Jackson, have been released on their own recognizance or on low bail. John Beuther and Joseph Torres have been transferred to other institutions where they are serving prison terms. The complaint is moot as to these parties.
There is substantial documentary evidence that the final plaintiff, Samuel Williams, attempted to escape. He allegedly communicated to outside confederates detailed plans for attacking a vehicle of the Corrections Department while it was transporting him from the BHD to court. If he is indicted or tried administratively within thirty days from this order for this alleged attempt his rights will be adequately protected. If he remains in administrative segregation beyond that period without having been indicted or tried he may renew his application for preliminary relief.
The Court's decision with regard to plaintiff Williams is based on the fact that even when the conditions of administrative segregation have been equalized to the extent possible, the issue to which we will shortly turn, administrative segregation, considered in its totality, still constitutes a more significant abridgement of personal liberty than confinement with the general population. To curtail freedom of association is the very purpose of plaintiffs' segregation. See N.Y. Dep't Corr. Gen. Order No. 33, § 4.48A. Moreover, inmates in segregation are "under closer observation than individuals in the general inmate population" (ibid) and consequently enjoy less personal privacy.
Reducing freedom of association and personal privacy is onerous.
"In a prison setting where liberty is by necessity shrunken to a small set of minor amenities . . . it is likely that any marked change of status which forecloses such liberties will be perceived and felt as a grievous loss . . . . This implies that a minimal level of due process must be achieved in reaching any decision concerning a particular inmate which may result in a marked change in the status of the inmate's confinement, with the result that he may be deprived of amenities on which he has come to rely. The stakes are simply too high for the inmate . . . . This is as true for a decision based on the security requirements of the institution . . . as it is for one based on a disciplinary violation." Palmigiano v. Baxter, 487 F.2d 1280, 1284-1285 (1st Cir. 1973).
Cf. Morrissey v. Brewer, 408 U.S. 471, 482, 92 S. Ct. 2593, 2601, 33 L. Ed. 2d 484, 495 (1972) ("It is hardly useful any longer to try to deal with this problem in terms of whether the parolee's liberty is a 'right' or a 'privilege.' By whatever name, the liberty is valuable and must be seen as within the protection of the Fourteenth Amendment.").
Pending disposition of escape charges the warden is justified in using administrative segregation to protect the security of the institution pursuant to General Order Number 33 of the Department of Corrections of the City of New York, reading in part as follows (Dec. 14, 1972):
"4.48A Administrative Segregation is a classification within a facility of the Department the purpose of which is to keep an individual or individuals segregated from and under closer observation than individuals in the general inmate population at large.
4.48B The following are reasons why an individual may be kept in an Administrative Segregation status:
h. Cases awaiting the action of the Disciplinary officer or the Disciplinary Board
i. Cases that present a threat to the good order, discipline or security of the facility."
We cannot ignore the fact, of which we take judicial notice, that there have been a number of recent escape attempts from the BHD, some of them successful.
Administrative segregation is common in American jails to protect both inmates and personnel. For example, the United States Bureau of Prisons Statement on Inmate Discipline provides in part (7400.5B, 6-6-72):
a. Segregation, or the isolating of one inmate from the general population, is a technique used for a variety of purposes. It is a method of protecting potential victims, insuring witnesses against intimidation, supporting those who lack strength enough to live in the prison community, controlling those whose violent emotions are out of control, restricting communication when necessary, and other specified and recorded reasons for the control and management of behavior."
Under the circumstances of this case it is unnecessary to decide the precise form of due process required before nonpunitive administrative segregation under Order 33 may be utilized when prisoners are not indicted or tried departmentally. See, e.g., Arnett v. Kennedy, 416 U.S. 134, 94 S. Ct. 1633, 40 L. Ed. 2d 15 (1974); Morrissey v. Brewer, 408 U.S. 471, 486, 92 S. Ct. 2593, 2603, 33 L. Ed. 2d 484, 497 (1972) ("This independent officer need not be a judicial officer . . . . It will be sufficient . . . if an evaluation of whether reasonable cause exists . . . is made by someone . . . other than the one who has made the report of parole violations or has recommended revocation. A State could certainly choose some other independent decisionmaker to perform this preliminary function."); Wilkinson v. Skinner, 34 N.Y.2d 53, 356 N.Y.S.2d 15, 312 N.E.2d 158 (1974); Rhem v. Malcolm, 371 F. Supp. 594, 632 (S.D.N.Y. 1974) ("While the formulas vary, the majority of decisions considering the subject have required hearing by an impartial tribunal, at least to the extent of prohibiting a single supervisor from acting both as investigating and hearing officer.").
Were plaintiffs threatened with punitive segregation, with its attendant stigma and loss of rights and privileges, imposition of punishment might require fuller procedural protection. See Palmigiano v. Baxter, 487 F.2d 1280 (1st Cir. 1973); McDonnel v. Wolff, 483 F.2d 1059 (8th Cir. 1973), cert. granted, 414 U.S. 1156, 94 S. Ct. 913, 39 L. Ed. 2d 108 (1974); United States ex rel. Miller v. Twomey, 479 F.2d 701 (7th Cir. 1973), cert. denied sub nom., Gutierrez v. Dept. of Public Safety, 414 U.S. 1146, 94 S. Ct. 900, 39 L. Ed. 2d 102 (1974); Rhem v. Malcolm, 371 F. Supp. 594, 632 (S.D.N.Y. 1974) and the ...