The opinion of the court was delivered by: CURTIN
This action, brought pursuant to 42 U.S.C. § 1983, was commenced on November 22, 1974. The defendants were directed to show cause why an order should not be entered which, among other things, enjoined them from requiring one of the plaintiffs, Big Black, also known as Frank Smith, to submit to a strip search prior to visiting Shango Bahati Kakawana, also known as Bernard Stroble, at the Erie County Holding Center [E.C.H.C.]. The purpose of Mr. Black's visit to the E.C.H.C. was to meet with Mr. Shango and other detained defendants who are awaiting trial in various Attica indictments. On December 13, 1974 the plaintiffs' oral application for a temporary restraining order was denied. A hearing was held on December 16 and 17 to determine whether a preliminary injunction should issue.
After considering the evidence at the hearing and the briefs supplied by the parties, the following constitutes the court's findings of fact and conclusions of law on the question of the preliminary injunction.
The plaintiff Shango is currently incarcerated in the E.C.H.C. awaiting disposition of a number of pending felony indictments arising out of the September 1971 incidents at the Attica Correctional Facility. The plaintiff Black is a codefendant with Shango in a number of these indictments and is also director of the Attica Brothers Legal Defense [A.B.L.D.]. Black is currently on parole and free on bail. Black and Shango are representing themselves in the state criminal proceedings, and appearing pro se in this action as well.
Frank Festa, Supreintendent of the E.C.H.C., testified that he is responsible for the security of that institution. He has been acquainted with Black from the time that Black was first housed in the E.C.H.C. in late 1972. After Black's release on parole in August 1973, Mr. Festa permitted him to reenter the E.C.H.C. to confer with codefendants. He also permitted Black to confer with other detained Attica defendants in his capacity as A.B.L.D. director.
From August 1973 until November 1974 Black gave Mr. Festa one day's notice of his intended visit and entered by the rear door of the E.C.H.C. His legal papers, briefcase or packages were searched and he emptied his pockets. He was given a pat-down search by a jail employee, limited to his outer clothing, and no disrobing was required. He carried on his meetings with Shango or other defendants in the gallery conference rooms which were used ordinarily by attorneys, probation officers and social workers.
This procedure was changed after November 2, 1974 when Black was arrested on a felony marihuana charge by local police officers. When Black appeared at the E.C.H.C. on November 8 and attempted to enter, he was informed that, pursuant to a directive of Superintendent Festa, a strip search was now required. Black refused to submit and he was denied access to the E.C.H.C. and unable to confer with Shango or any of the other incarcerated defendants. He reported this incident to A.B.L.D. staff counsel, Michael Deutsch. Deutsch conferred with Mr. Festa, who refused to change his direction. This action followed.
At the hearing Festa testified that a strip search would entail complete disrobing in a private room, in the presence of an officer. There would be a visual inspection of the mouth and ears, but no rectal search was anticipated.
The E.C.H.C. has no published rules regarding the searching of persons entering the facility through the rear door. Festa explained that since there was no metal detection equipment at this entrance, the usual practice is to inspect briefcases and to inquire if the person seeking to come in is carrying a weapon. If the individual is known to the officer on duty, the inspection is sometimes waived. The visitor fills out a card giving his name and listing the names of the individuals the visitor desires to meet with.
Ms. Dorothy Teryl, a volunteer paralegal worker associated with the New York Civil Liberties Union, testified in behalf of the plaintiffs. During the past year she regularly visited the jail without being subjected to any search. However, when she was going to visit one of the Attica defendants housed on the JJ gallery, the contents of her briefcase and purse were inspected.
Roger Champen, a convicted felon and a codefendant in the Attica cases with Black and Shango, testified about his visits to the E.C.H.C. On several previous occasions during the past year, he filled out the card, was asked about weapons, and was patted down by a deputy.
In June of 1974 Carolyn Curry, a law student and A.B.L.D. staff member, inadvertently had a razor blade mixed in with her papers when she was coming into the facility. At the entrance when she herself discovered the razor blade, she turned it over to a guard who accepted her explanation and permitted her to enter. She has continued to visit the E.C.H.C. without incident since that time without being subjected to a strip search.
Mr. Festa explained that only inmates coming into the facility are routinely strip searched as part of the admission process. At one time, some Attica defendants who were on bail were required to disrobe prior to conferences with E.C.H.C. inmates. However, this practice was abandoned more than six months ago. At the present time, the plaintiff Black is the only person seeking to enter the E.C.H.C. for conferences who is required to submit to a strip search. In his testimony, Superintendent Festa stated that the reason for requiring this strip search, in Black's case, was because of Black's prior felony convictions, his current parole status, the serious charges pending against him under the Attica indictments, a prior conviction for a drug offense, and Black's recent arrest on a drug charge in Buffalo. The ...