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September 13, 1976

Khalieb McKINNON et al., Plaintiffs,
J. W. PATTERSON et al., Defendants

The opinion of the court was delivered by: STEWART

STEWART, District Judge:

 Plaintiffs, Khalieb McKinnon, Laurence Mincy, and David Wheeler, have brought this civil rights action pursuant to 42 U.S.C. § 1983 to redress alleged deprivations of their constitutional rights. *fn1" Named as defendants are J. W. Patterson, who was the Superintendent of Eastern Correctional Facility in June of 1973 ("Eastern"), Joseph Perrin and Robert E. McClay, who, in June of 1973, were Deputy Superintendents at Eastern of Security and of Program Services respectively, Peter Preiser, then Commissioner of New York State's Department of Corrections, and Benjamin Ward, present Commissioner of New York State's Department of Corrections. Plaintiffs claim defendants violated their Fourteenth Amendment rights by imposing substantial deprivations upon plaintiffs without providing adequate procedural safeguards.

 In June of 1973, the plaintiffs were incarcerated at Eastern, a "medium" security institution. 7 New York Code of Rules and Regulations ("N.Y.C.R.R.") § 100.55(b). *fn2" All were assigned to work in Eastern's laundry room. On June 5, 1973, a dispute arose between plaintiffs and defendants; plaintiffs claim that defendants altered the laundry room rules by abruptly prohibiting them from doing personal laundry. *fn3" pp. 14-16]. Defendants testified that plaintiffs had attempted to use the laundry to do other inmates' laundry in return for compensation ("contract work"), a clear violation of prison rules. [Tr. pp. 162-165, Plaintiffs' Ex. 55 ("Inmate Rulebook", p. 4), Defendants' Ex. H ("Rules and Regulations at Eastern, Rule 18), and Ex. G]. All parties agree that a dispute occurred and that, subsequent to the dispute, the plaintiffs were confined to their cells ("keeplocked"). Correction officers filed "misbehavior" reports about plaintiffs and, some 15-20 days after the laundry incident occurred, plaintiffs were transferred from Eastern to other facilities. Mincy was sent to Clinton Correctional Facility ("Clinton"); McKinnon was transferred to Attica Correctional Facility ("Attica"), and Wheeler was sent to Great Meadows Correctional Facility ("Great Meadows"). Each of these institutions is classified as a "maximum" security facility. 7 N.Y.C.R.R. §§ 100.5, 100.15, and 100.40.

 Plaintiffs claim that the transfers were punitive measures which were imposed as a result of the laundry room incident. Plaintiffs argue that their keeplock and transfers worked substantial deprivations and that they were entitled to but did not receive adequate notice of or impartial hearings on the charges against them prior to imposition of the punishments. See Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971), cert. denied, 404 U.S. 1049, 92 S. Ct. 719, 30 L. Ed. 2d 740 (1972). See also Newkirk v. Butler, 499 F.2d 1214 (2d Cir. 1974), vacated as moot, 422 U.S. 395, 95 S. Ct. 2330, 45 L. Ed. 2d 272 (1975). Specifically, plaintiffs seek a declaration that 1) the "adjustment committee procedure," an administrative hearing conducted by defendants did not comply with New York law or with the constitutionally mandated requirements of Sostre v. McGinnis, supra ; 2) the sanction of being keeplocked for some 15 days constituted a "substantial deprivation" within the prison setting and thus, before its imposition or immediately upon imposition, a fair and adequate hearing was and is required, and 3) defendants had personal knowledge of, or should have known of these constitutional defects and are thus to be held personally liable for plaintiffs' injury. Plaintiffs also request that this court 1) interpret New York State's regulations to require that, prior to a prisoner's transfer for misbehavior, a "superintendent's proceeding" [7 N.Y.C.R.R. § 253 et seq. ] be held; 2) require that, before prisoners are transferred to a more restrictive institutional setting, a fair hearing be held; 3) remove transfer recommendations from the list of permissible actions which the adjustment committee may recommend; 4) require 24-hour notice of charges and hearings whenever an inmate is to be keeplocked for more than 3 days; 5) require that no adjustment committee member may participate in a hearing which deals with an incident in which that member had any involvement, and 6) order that plaintiffs' records be expunged so that any notations about the laundry room dispute and discipline related to it be deleted.

 In addition to the equitable relief outlined above, plaintiffs seek monetary compensation for the constitutional deprivations, their lost wages, and their mental anguish.

 Subsequent to the trial of this action on May 24-26, 1976, the Supreme Court issued its opinions in two cases which involve the rights of state prisoners to be given notice and hearings prior to the transfer from one prison institution to another. See Montanye v. Haymes, 427 U.S. 236, 96 S. Ct. 2543, 49 L. Ed. 2d 466 (1976) and Meachum v. Fano, 427 U.S. 215, 96 S. Ct. 2532, 49 L. Ed. 2d 451 (1976). Justice White, writing for the majority, held that the Due Process Clause of the Fourteenth Amendment does not, in itself, require hearings in connection with transfers from one institution to another "whether or not [the transfers] are the result of the inmate's misbehavior or may be labeled as disciplinary or punitive." Montanye v. Haymes, supra at 242, 96 S. Ct. at 2547. The Court determined that a prisoner, seeking procedural protections for prison transfers, must look first to state law; the Due Process Clause only guaranteed that, once a right was established under state law, it would not be "arbitrarily abrogated." Meachum v. Fano, supra at 226, 96 S. Ct. at 2539, (citations omitted). Interpreting New York State's prison regulations in Montanye v. Haymes, Justice White concluded that, under New York law [N.Y.Corr.Law § 23(1)], a prisoner did not have a right to remain in any particular facility and had "no justifiable expectation that he would not be transferred unless found guilty of misconduct." Montanye v. Haymes, supra at 243, 96 S. Ct. at 2547.

 On the bases of the holdings in Montanye v. Haymes and Meachum v. Fano, defendants urge that we enter judgment in their favor. [Supplemental Memorandum of Law, June 30, 1976.] Defendants assert that, under the Supreme Court's interpretation of New York law, no state right and no constitutionally protected interests were infringed upon when plaintiffs were transferred from Eastern. [See Montanye v. Haymes, supra, 239-244, 96 S. Ct. 2547.] Further, defendants contend that plaintiffs' other claim, relating to the alleged inadequacy of the adjustment committee hearings which were held, is also decided by the Supreme Court's conclusions in the Haymes and Fano cases; defendants argue that, if no federally protected remedy exists to insulate inmates from the deprivations suffered when transferred, the "minor deprivations" [Supplemental Memorandum at p. 4] imposed by the adjustment committee cannot be federally protected, and thus, no due process requirements can be constitutionally mandated.

 Plaintiffs submit that Haymes and Fano announced new rules of law, not foreshadowed by earlier holdings, and that these rulings should not be given retroactive application. See Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S. Ct. 349, 30 L. Ed. 2d 296 (1971). See also Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974). In support of this argument, plaintiffs note that the events at issue here occurred in 1973, three years prior to the Haymes and Fano decisions; thus, the standards set forth in Sostre v. McGinnis, supra, should govern the adjudication of this action. Plaintiffs direct the court's attention to several written documents of defendants and of New York State which indicate that defendants, as well as plaintiffs, believed that the Sostre v. McGinnis ruling was applicable to these events. First, plaintiffs cite the brief submitted by New York State, in its appeal in Newkirk v. Butler, supra. New York stated that its rules required hearings prior to disciplinary punishment; when prisoners were transferred for reasons of misconduct,

". . . the inmate must, before or shortly after such transfer, be given notice of the gravamen of the misconduct and an opportunity to be heard in relation thereto." [Plaintiffs' Supplemental Post-trial Memorandum at p. 3.]

 Second, in this action, defendants have consistently maintained that no hearings were required because plaintiffs were not transferred for punitive reasons but for "management" and "administrative" purposes. Thus, defendants have argued that "the applicable law at the time for disciplinary proceedings . . . Sostre v. McGinnis " [Defendants' Post-trial Brief at p. 26] did not require hearings here.

 Justice Burger discussed the question of retroactive application of a constitutionally mandated decision in Lemon v. Kurtzman, 411 U.S. 192, 197-201, 93 S. Ct. 1463, 36 L. Ed. 2d 151 (1973) ("Lemon II").

"The process of reconciling the constitutional interests reflected in a new rule of law with reliance interests founded upon the old is 'among the most difficult . . .' [The] effect of a given constitutional ruling on prior conduct 'is subject to no set "principle of absolute retroactive invalidity" but depends upon a consideration of "particular relations . . . and particular . . . conduct . . . of rights claimed to have become vested . . ."; and "of public policy . . ."'" Lemon II, supra at 198-199, 93 S. Ct. at 1468. (citations omitted).

 See also Gosa v. Mayden, 413 U.S. 665, 673, 93 S. Ct. 2926, 37 L. Ed. 2d 873 (1973), Chevron Oil v. Huson, supra, and Dematteis v. Eastman Kodak Co., 520 F.2d 409 (2d Cir. 1975). While these cases do not discuss the precise question here, which is to determine whether holdings which limit a federal constitutional remedy should be applied retroactively, the opinions set forth the relevant considerations to guide us.

 The preliminary question is whether a ruling of the Supreme Court "[establishes] a new principle of law, either by overruling clear past precedent on which litigants may have relied . . . or by deciding an issue of first impression whose resolution was not clearly foreshadowed . . ." Chevron Oil v. Huson, supra, 404 U.S. at 106, 92 S. Ct. at 355 (citations omitted). *fn4" We agree with plaintiffs that the pronouncements of the Supreme Court in Haymes and Fano are "new" and do overrule the precedents developed in the lower courts of this circuit which had determined that the Due Process Clause, in itself, applied to all situations in which a state prison authority imposed punitive sanctions; thus, before a disciplinary transfer, the state had to afford the person to be punished an opportunity to be heard. *fn5"

 Having determined that the rulings are new, we turn to the other factors which are relevant to the question of retroactive application. We are directed to look to the purpose of the new rule in order to decide whether retrospective operation "will further or retard its operation." Lemon II, supra, 411 U.S. at 199, 93 S. Ct. at 1469 (citations omitted). The purpose of the new holdings is, we believe, to direct federal courts to refrain from overseeing state prison administrative decisions, where federal constitutional rights are not at issue. *fn6" The Supreme Court expressly declined to place the Due Process Clause

"astride the day-to-day functioning of state prisons and involve the judiciary in issues and discretionary decisions that are not the business of federal judges." Meachum v. Fano, supra at 228, 96 S. Ct. at 2540.

 Thus, we believe that, if we were to decline to apply the rulings retroactively, we would be ...

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