The opinion of the court was delivered by: MACMAHON
MacMAHON, District Judge.
This is a civil rights action under 42 U.S.C. § 1983. Plaintiff, pro se, a convicted murderer of two police officers, is presently serving a term of life imprisonment at Clinton Correctional Facility (Clinton).
Simultaneously with the filing of the complaint, plaintiff moved, by order to show cause, for a preliminary injunction mandating his return from Clinton to Ossining Correctional Facility (Ossining). Plaintiff alleges that he had been wrongfully transferred from Ossining to Clinton on March 19, 1974 for punitive reasons, without prior notice and an opportunity to be heard, in violation of his constitutional right to due process. The prison officials asserted in their answering papers that plaintiff had been transferred not because of any disciplinary problem or punitive animus but solely because of a change in the character of a portion of Ossining from a maximum security facility to a medium security facility unsuitable for life termers, such as plaintiff.
The motion for a preliminary injunction, thus, raised issues of fact which could not be definitively resolved without a plenary evidentiary hearing. Accordingly, in the interest of judicial economy, we ordered that the trial on the merits be advanced and consolidated with the evidentiary hearing on the application for a preliminary injunction, pursuant to Rule 65(a)(2), Fed.R.Civ.P.
There is no dispute that plaintiff was transferred from Ossining to Clinton on March 19, 1974 without prior notice or an opportunity to be heard. Likewise, there is no dispute that the transfer occurred one day after the dismissal by the Honorable John P. Donohoe, a justice of the New York Supreme Court, Westchester County, of an action brought by plaintiff against a Dr. Hill, one of the staff doctors at Ossining, alleging deprivation of plaintiff's right to proper medical treatment.
Much of the testimony offered by plaintiff upon this trial was directed not to the issue of the validity of his transfer but to the bona fides of his action against the prison doctor.
More pertinently, plaintiff testified that, while his suit against Dr. Hill was pending, he heard "rumors" that he would be "boated out of Ossining," i.e., transferred, as soon as his action against Dr. Hill was terminated. Plaintiff also testified that defendant Schubin told him he had better get "warm clothes." Thomas W. Revak, a physician formerly on the Ossining staff, testified that a prison guard told him that Superintendent Schubin told the guard that plaintiff was to be transferred because he sued Dr. Hill.
Wholly apart from the hearsay nature of this testimony, we find it of virtually no probative value, even if true, in light of the evidence offered by defendants, which we will now discuss.
Superintendent Schubin testified that during the early summer of 1973, the Department of Correctional Services (department) determined to convert a portion of Ossining from a maximum security facility to a medium security facility with less capacity and necessitating a reduction in the prison population generally, as well as the number of maximum security inmates. The department planned to phase in the change beginning in September 1973, and, therefore, a Classification Committee of the department was assigned to study the future capabilities, work programs and manpower needs of Ossining after conversion. That study, in evidence as defendants' Exhibit "E," shows that numerous work programs were assessed and that in the majority of them the size of the cadres was required to be reduced.
It appears from defendants' Exhibit "F" that selection of those inmates to remain and those to be transferred was made on the basis of objective criteria requiring consideration of such factors as the future programs, resident capacity and security level of Ossining, along with the age, residence, capabilities, personality, custodial needs, security risks and class of sentence of the inmate.
In accordance with the study, the authorized staff of the law library, where plaintiff was assigned, was to be reduced from four to three, and under the established criteria, since the law library would be located in a medium security area, eligibility for that cadre was limited to inmates "within one year of meeting the parole board for release consideration." Such inmates were regarded as less of a security risk than those facing longer terms.
Plaintiff, unlike the other three inmates assigned to the law library, will not be eligible for release on parole until 1983 and, therefore, not only failed to meet the criteria established by the Classification Committee for employment in the law library but also posed a greater security risk than those who were to remain. Plaintiff was thus slated for transfer long before his suit against Dr. Hill, but the department did not actually issue an order transferring him to Clinton until December 14, 1973, two days after plaintiff commenced his suit.
Plaintiff further testified, without contradiction, that numerous privileges enjoyed by him at Ossining were denied to him at Clinton.
In Ossining, he was lodged in a room in an honor cell block, worked in the law library at 65 cents per day, assisted other inmates in legal proceedings in Westchester County, received special medication, watched television, moved about freely, was allowed three telephone calls per week, had liberal correspondence privileges and had meaningful visiting privileges because his close relatives lived in New York City.
In Clinton, however, plaintiff is confined to an ordinary cell, works as a porter at 25 cents per day, is restricted in his movement, receives no special medication, does not "practice law," has only one telephone call per week, his correspondence privileges are curtailed and his visiting privileges ...