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DUNLEAVY v. TERNULLO

March 5, 1976

GEORGE DUNLEAVY, Plaintiff,
v.
VITO TERNULLO, Superintendent, Matteawan State Hospital, STEPHEN DALSHEIM, Deputy Director Program Services, Defendants



The opinion of the court was delivered by: CONNER

CONNER, D.J.:

 George Dunleavy, presently confined at the Matteawan State Hospital (Matteawan) in Beacon, New York, while he awaits trial on charges of Escape in the First Degree, has initiated this pro se civil rights action pursuant to 42 U.S.C. §§ 1981-83. Plaintiff challenges the constitutionality of certain of the conditions of his confinement. In particular, plaintiff complains that without cause or explanation he has been transferred to Matteawan's "JAIL WARD" and as a result has been denied free access to that institution's law library. In addition to declaratory and injunctive relief, plaintiff seeks money damages.

 Defendants are state officials who have concededly denied plaintiff free access to Matteawan's law library due to his status as the occupant of a "Special Housing Unit."

 The jurisdictional basis for this action, 28 U.S.C. § 1343(3), (4), is clear. Though plaintiff has not exhausted his state court remedies, since the remedies provided by the Civil Rights Acts are supplementary to available state remedies, "'the latter need not be first sought and refused before the federal one is invoked.' Monroe v. Pape, 365 U.S. 167, 183, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961); McNeese v. Board of Education, 373 U.S. 668, 10 L. Ed. 2d 622, 83 S. Ct. 1433 (1963); Damico v. California, 389 U.S. 416, 19 L. Ed. 2d 647, 88 S. Ct. 526 (1967)." Wilwording v. Swenson, 404 U.S. 249, 251, 30 L. Ed. 2d 418, 92 S. Ct. 407 (1971); Corby v. Conboy, 457 F.2d 251 (2d Cir. 1972).

 I.

 Pursuant to standard operating procedure in actions of this type, defendants have moved, pursuant to Rule 12(b) (6) F.R.Civ.P., for an order dismissing the complaint for failure to state a cause of action. Further following well established precedent, the State has submitted for the Court's consideration a virtually useless memorandum and affidavit in support of the motion. Although this Court, through experience, is painfully aware of the staggering number of civil rights actions, most of them frivolous, which are dumped upon the federal judiciary, and that the most appropriate way to deal with the great bulk of such cases is indeed through a motion to dismiss, there is no excuse for the uniformly cavalier fashion in which motion papers are prepared by the Deputy Assistant Attorneys General in charge of these cases.

 After having granted two one-month adjournments to allow the State to "ascertain the facts * * * and the relevant law" the Court has been presented with motion papers which afford it no assistance whatever but leave it utterly on its own to analyze the complaint and research the relevant law in this, a case which on its face includes a number of disturbing factual allegations.

 II.

 At the outset, it should be noted that while plaintiff does allege violations of due process ("PLAINTIFF has NOT been accussed [sic] of anything by the DEFENDANTS nor has he received any type of hearing before his rights and privileges have been taken") there is absolutely no charge that the alleged violations of his constitutional rights were racially motivated. In fact, an examination of the papers before the Court fails to disclose the racial group of which plaintiff is a member. Under that circumstance, plaintiff's claims under 42 U.S.C. §§ 1981 and 1982 are not viable.

 Unlike Section 1983, Sections 1981 and 1982 provide a foundation only for causes of action involving racial discrimination. In Jones v. Alfred H. Mayer Co., 392 U.S. 409, 413, 20 L. Ed. 2d 1189, 88 S. Ct. 2186 (1968), the Supreme Court specifically stated that Section 1982 "deals only with racial discrimination * * *." The statute is further inapplicable to the facts of this case since by its very terms it deals only with the right to "inherit, purchase, lease, sell, hold, and convey real and personal property." At least one Circuit Court of Appeals and numerous United States District Courts have reached the same result when applying Section 1981, which was enacted at the same time as Section 1982, as part of the same Act of Congress, and contains the identical language to describe the nature of the right created. Agnew v. City of Compton, 239 F.2d 226, 230 (9th Cir. 1956), cert. denied, 353 U.S. 959, 1 L. Ed. 2d 910, 77 S. Ct. 868 (1957); Louisiana ex rel. Purkey v. Ciolino, 393 F. Supp. 102, 106 (E.D. La. 1975); Olson v. Rembrandt Printing Co., 375 F. Supp. 413, 417 (E.D.Mo. 1974), aff'd, 511 F.2d 1228 (8th Cir. 1975); Veres v. County of Monroe, 364 F. Supp. 1327, 1329 (E.D.Mich. 1973); Willis v. Chicago Extruded Metals Co., 358 F. Supp. 848, 851-52 (N.D.Ill. 1973); Williams v. San Francisco Unified School District, 340 F. Supp. 438, 440 (N.D.Cal. 1972); Schetter v. Heim, 300 F. Supp. 1070, 1073 (E.D.Wis. 1969); Stambler v. Dillon, 288 F. Supp. 646, 649 (S.D.N.Y. 1968); see Georgia v. Rachel, 384 U.S. 780, 16 L. Ed. 2d 925, 86 S. Ct. 1783 (1966); United States v. Cruikshank, 92 U.S. 542, 23 L. Ed. 588 (1875).

 Accordingly, my consideration of this case will be limited to plaintiff's charge under Section 1983, which reads as follows:

 
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

 III.

 The ground rules against which defendants' motion should be tested are well settled. An action, especially under the Civil Rights Act, will "not be dismissed at the pleadings stage unless it appears to a certainty that plaintiffs are entitled to no relief under any state of facts which could be proved in support of their claims. Escalera v. New York City Housing Authority, 425 F.2d 853, 857 (2d Cir.), cert. denied, 400 U.S. 853, 27 L. Ed. 2d 91, 91 S. Ct. 54 (1970); Johnson v. Illinois Dep't of Public Aid, 467 F.2d 1269, 1271 (7th Cir. 1972); Ford v. Breier, 383 F. Supp. 505, 506 (E.D.Wisc. 1974); Feliciano v. Romney, 363 F. Supp. 656, 667 (S.D.N.Y. 1973). Under this standard, all the material allegations of the complaint must be deemed as true. Walker Process Equip. & Food Mach. & Chem. Corp., 382 U.S. 172, 86 S. Ct. 347, 15 L. Ed. 2d 247 (1965); Cooper v. Pate, 378 U.S. 546, 12 L. Ed. 2d 1030, 84 S. Ct. 1733 (1964); Conley v. Gibson, 355 U.S. 41, 47-48, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1951); Corby v. Conboy, supra at 253. Moreover, in a pro se action such as this, the pleadings should be construed with particular generosity. Haines v. Kerner, 404 U.S. 519, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972); Jackson v. Statler Foundation, 496 F.2d 623, 625-26 (2d Cir. 1974).

 For the purposes of this motion, the following facts can therefore be treated as established. Upon arraignment on a charge of Escape in the First Degree, plaintiff announced his desire to waive his right to counsel and to act in his own defense. After questioning by the court, plaintiff was permitted to proceed without aid of counsel. Plaintiff was thereafter remanded to Matteawan to await trial.

 On or about June 10th, 1975, as the result of an "incident" in his ward, plaintiff was reassigned to the "JAIL WARD" at Matteawan. Despite repeated requests, plaintiff has never been advised of, nor charged with, the violation of any institutional rule or regulation which would require his reassignment. It was plaintiff's reassignment which resulted in his being denied personal access to the law library. *fn1"

 Defendants' motion to dismiss is based upon two grounds:

 (1) Insofar as plaintiff is seeking injunctive relief based upon the adverse impact the institution's actions may be having on his ability to prepare the criminal case against him for trial, that claim is properly before the state courts;

 (2) As an occupant of a "Special Housing Unit" plaintiff cannot be allowed to "have free acess [sic] to the law library to roam around at will."

 Plaintiff agrees that matters involving his state case are properly before the state courts. However, he argues that defendants' refusal to justify his present status of incarceration is properly before this Court. With respect to defendants' second argument, plaintiff claims that he is permitted to "roam around" to his job on the Matteawan newspaper and to participate freely in all the institution's programs, except the law library.

 Defendants may have a perfectly acceptable explanation for their treatment of plaintiff, and it may well turn out that plaintiff will be unable at trial to prove any of his claims. However, in light of plaintiff's claim that, without notice or a hearing, defendants have arbitrarily refused him access to the law library, I am not prepared to rule that no cause of action under Section 1983 has been stated. As Judge Kaufman recently observed in a slightly different context,

 
"While lawful imprisonment necessarily makes unavailable many rights and privileges of the ordinary citizen, it is today clear that an iron curtain is not drawn between the prisons of this country and the Constitution."
 
* * *
 
"Special Offender classification works serious alteration in the inmate's conditions of confinement because it hinders or precludes eligibility for * * * important rehabilitative programs. We therefore conclude that the marked changes in the inmate's status which accompany the designation create a 'grievous loss', and may not be imposed in the absence of basic elements of rudimentary due process." Cardaropoli v. Norton, 523 F.2d 990, 992, 995 (2d Cir. 1975) (citations and footnotes omitted).

 Since plaintiff's allegations clearly state a violation of due process under Cardaropoli and the cases cited therein, and the due process clause is in turn comprehended by the provisions of Section 1983. See Sostre v. McGinnis, 442 F.2d 178, 189 (2d Cir. 1971) (en banc), cert. denied sub nom. Oswald v. Sostre, 405 U.S. 978, 31 L. Ed. 2d 254, 92 S. Ct. 1190 (1972); Moss v. Hornig, 314 F.2d 89, 92 (2d Cir. ...


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