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December 17, 1976.

Hector CRUZ et al., Plaintiffs,
Benjamin WARD, Individually and in his capacity as Commissioner of the New York State Department of Correctional Services, et al., Defendants.

The opinion of the court was delivered by: GOETTEL

GOETTEL, District Judge.

On October 28, 1975, plaintiffs Cruz, Gulley and Perrelli, inmates in the New York State prison system, commenced an action under the provisions of 42 U.S.C. § 1983 to enjoin defendant officials of the New York State Department of Corrections and Matteawan State Hospital from transferring them from Matteawan to the general prison system without a hearing prior to transferral. Plaintiffs allege, inter alia, that these transfers were punishments imposed on them because of their having caused trouble in the hospital. On November 11, 1975, an order to show cause was issued on plaintiff's motion for a preliminary injunction. On December 15, 1975, plaintiffs Dunleavy, Poveromo, Pechar and Mitchell intervened as party plaintiffs.

Hearings at Matteawan on December 30, 1975, January 27, and March 8, 1976 and in New York City on March 10, 1976 *fn1" established the following facts. Plaintiff, Hector Cruz, while serving a life sentence at Attica Correctional Facility, was placed in segregation in 1973. After an attempted suicide in December, 1973, he was transferred to the Diagnostic and Evaluation Center at Fishkill Correctional Facility. On January 4, 1974, Cruz was admitted to Matteawan under the provisions of Article 16 of the New York Correction Law with a diagnosis of "Schizophrenia, residual type". Cruz's treatment at Matteawan included prescriptive medication, twice weekly consultations with a psychologist, and monthly psychiatric evaluations. Cruz was placed in an open ward custody setting. In May, 1974, Cruz apparently became actively hostile toward others in the hospital. As his treatment records note, he agreed with correctional officers that "the next time he [was] involved in any physical violence he will ask for a transfer". On August 27, 1974, Cruz was, at his own request, transferred to Clinton Correctional Facility. After only two weeks in confinement (without treatment or medication) he was again sent to the Diagnostic and Evaluation unit at Matteawan. Five weeks later Cruz was admitted to the hospital again, with a diagnosis of schizophrenia with aggressive features. From October 30, 1974, through September 17, 1975, Cruz's pattern of treatment resumed, again interspersed with several reports of altercations with members of the hospital community. An evaluation by a staff psychiatrist on September 17, 1975 noted:

 "... the patient needs further hospitalization because he has poor self-control, immature and appeared to be unpredictable in his behavior."

 On October 17, 1975, Cruz was involved in a fight in his ward (which apparently also involved some of the other plaintiffs). Three days later he was evaluated by a panel of six psychiatrists. This evaluation was not a usual hospital routine and its use in this case was not explained. Based upon this evaluation, Cruz was determined to have "recovered" from his mental illness and was ordered transferred out of Matteawan although his final diagnosis was schizophrenia, residual type.

 Plaintiff, Matthew Gulley, was confined at Attica beginning in 1968 under a sentence of ten years. While in segregation at Attica, Gulley became depressed, was beset by hallucinations and made several attempts at suicide. On December 1, 1973, he was transferred to the Matteawan Diagnostic and Evaluation unit. On January 28, 1974, he was admitted to Matteawan with a diagnosis of unspecified psychosis and borderline mental retardation. An early psychiatric evaluation noted a tendency toward "episodic outbursts of aggressive behavior". Gulley's status and treatment at Matteawan included medication, psychological counselling, monthly psychiatric evaluations and open ward confinement. Throughout his confinement at Matteawan Gulley was felt by authorities to be a discipline problem. In January, 1975, he was involved in a fight in his ward and the next psychiatric evaluation note, entered on February 11, 1975, indicated the physician's conclusion that a return to prison might be necessary if the violence persisted. On the same day Gulley was transferred to the jail ward and was placed in a restraining sheet. On February 13th and 14th, he was evaluated by defendant, Lawrence Sweeney, the Chief of Psychiatry at Matteawan. Dr. Sweeney attributed the plaintiff's actions to alcohol and diagnosed Gulley as having a divided character with depressive features. After the interview Gulley was sent, without notice, to Clinton Correctional Facility where he was confined from February 25 to March 11, 1975. This confinement was marked by an almost complete absence of professional assistance and the total absence of medication.

 After only two weeks at Clinton, prison authorities ordered Gulley returned directly to the hospital population at Matteawan. Once there, Gulley's treatment resumed on substantially the same terms as before his transfer. In July, 1975, a retention order under the provisions of Section 408 of the New York Correction Law was obtained for Gulley by the defendants. In the October 9, 1975 periodic evaluation, a staff psychiatrist made a recommendation for further retention of Gulley due to his fear of prison and unpredictable behavior, notwithstanding the psychiatrist's acknowledgment of the absence of any psychosis. On October 17, 1975, Gulley was involved in a fight in the ward and was once again placed in a restraining sheet in the jail ward. Three days later Gulley was found to be well and was sent to the Transfer unit for prison reassignment.

 On April 25, 1974, George Dunleavy, having been in confinement at Greenhaven Correctional Facility, was determined to be a mentally ill person in need of treatment and was sent to the Diagnostic and Evaluation unit at Matteawan. On June 11, 1974, Dunleavy was diagnosed as a chronic schizophrenic with an anti-social personality and episodic drunkenness. The course of treatment Dunleavy received while hospitalized was substantially similar to that received by Cruz and Gulley. On December 19, 1974, a twelve-month retention order under the provisions of Correction Law § 408 was obtained by the defendants on Dunleavy. Dr. Ali Sirman, a Matteawan staff psychiatrist, acknowledged that neither during the period of the § 408 retention nor subsequently was Dunleavy, in his opinion, ever mentally ill. Dr. Sirman further testified that Dunleavy was merely neurotic and had difficulties in prison but was retained at Matteawan because he was helpful to the staff and had a rapport with the other prisoners. On March 16, 1975, Dunleavy was accused of attempting to escape from the hospital. In a periodic evaluation on April 23, 1975, Dunleavy was diagnosed as a chronic undifferentiated schizophrenic without psychosis and, shortly thereafter, was transferred back to prison. After four weeks in Greenhaven, Dunleavy attempted suicide by slashing his wrists, was transferred to the hospital, and then to Matteawan, diagnosed as an episodic schizophrenic with a personality disorder leading to anti-social behavior. The staff psychologist at Matteawan testified that Dunleavy's condition before and after this transfer was substantially unchanged. In November, 1975, a § 408 retention application was made on Dunleavy and, although staff psychiatrists indicate he is not psychotic, he remains at Matteawan.

 Louis Poveromo was incarcerated at Greenhaven when, in September, 1974, he was determined to be a mentally ill person in need of treatment and was transferred to Matteawan. He was diagnosed as psychotic and drug dependent. His treatment was similar to that received by the other plaintiffs. In mid-January a § 408 retention order was requested by the hospital and granted by the court. Late in January, 1975, however, Poveromo was involved in a fight with correctional officers and was immediately thereafter evaluated by a staff psychiatrist who diagnosed Poveromo as a "troublemaker" for whom Matteawan had "no more to offer". The doctor "prescribed" transfer to a correctional institution. After this evaluation Poveromo was immediately pronounced cured and sent to Clinton prison. There Poveromo was continuously kept in a stripped cell under observation. After one month of such observation Poveromo was returned to Matteawan diagnosed as being anti-social and having a personality disorder.

 George Mitchell, while confined in a segregation cell at Attica, began to hear voices and see visions in June, 1974. Three months later he was transferred under § 408 to Matteawan where he was diagnosed as having an unspecified psychosis and a personality defect. After a month at Matteawan, at his own request Mitchell was returned to prison. After several weeks at Clinton Mitchell was again sent to Matteawan where, for six months, his treatment paralleled that of the other plaintiffs. In July, 1975, Mitchell was voluntarily transferred to the jail ward at Matteawan because of his fear of doing violence to himself or others. On October 10, 1975, Mitchell was evaluated by a staff psychiatrist who diagnosed him as recovered but bearing a "residual" amount of schizophrenia. Mitchell was not told of the psychiatrist's conclusions or of his recommendation that Mitchell be returned to prison. When later told of the decision by a correctional officer who was involved in his transfer, Mitchell, in the words of a staff psychiatrist, "went berserk" and was taken to the transfer unit in a strait jacket. While at the transfer unit Mitchell attempted suicide several times but was nevertheless transferred to Clinton prison. After two weeks at Clinton prison authorities again returned Mitchell to Matteawan, under the provisions of § 408, where he now remains.

 Martin Ogulnick, a staff psychologist at Matteawan, testified that there were no set times for patient evaluations by the hospital psychiatrists, that the evaluations would occur at intervals of from two to three weeks to four months and would last from two to twenty minutes. Mr. Ogulnick testified that he had been working with both Dunleavy and Mitchell and that, in his opinion, neither should have been returned to prison. He acknowledged that different members of the Matteawan staff had different criteria for treatment and retention decisions. Mr. Ogulnick opined that neuroses were treatable at Matteawan.

 Dr. Sweeney, Chief of Psychiatric Services at Matteawan, testified at length on the relative differences in the custodial conditions between the correctional facilities and Matteawan and concluded that a major attraction of the hospital was that it represented an easier "bit" for the inmate than prison. Dr. Sweeney acknowledged that before an inmate can be committed to Matteawan he must be examined by two disinterested physicians and their report must be approved by a state judge. Dr. Sweeney stated that these evaluations included reviews of the prison and medical files of the inmate, as well as personal evaluations by the physicians. Dr. Sweeney acknowledged that his staff's diagnoses do not always agree with such outside physicians' conclusions, but opined that these discrepancies were due to the outside professionals' lack of personal familiarity with the patients. Dr. Sweeney inferred that his staff was better able to detect malingering and shamming than outside professionals. He testified that evaluations were conducted on a regular four-to-six week schedule. Dr. Sweeney stated that a patient would not be retained if he did not have a treatable psychosis, yet acknowledged that patients with neurotic disorders were retained if the hospital budget permitted. He had set up a separate ward for the aggressive "acting out" patients so that, in Dr. Sweeney's words, they were "putting all the dynamite in one box". Dr. Sweeney acknowledged that four of the seven psychiatrists on his staff were not licensed for private practice in New York and that neither he nor any of his psychiatrists were board certified in psychiatry. He denied that any of the plaintiffs' transfers were related to their altercations with correctional personnel, although acknowledging that such incidents could lead to reevaluations of status.

 Dr. Ali Sirman testified that he was the psychiatrist in charge of the unit responsible for certifying patients back to prison. He described the standard he applied to be whether the patient has "a contact with reality, is he competent, does he know what he is doing". Dr. Sirman acknowledged that there are neither written nor oral standards for his decisions as to retention or transfer and that he would retain a neurotic who was having difficulty functioning if the hospital condition permitted it. Dr. Sirman described the conditions of the several plaintiffs as either anti-social personalities or personality disorders with manipulative characteristics. He denied that any pressure from the guards induced his transfer decisions or that any of the disorders of the plaintiffs were treatable at Matteawan. Dr. Sirman testified that the examination schedule was totally random and that a psychiatrist may not see a given patient for a year or more after an evaluation. Dr. Sirman explained the presence of Dunleavy as one who assisted the administration and was retained despite an absence of illness. He stated that once such a patient ceases to be an aid to the hospital staff the reason for his retention disappears and he should be returned to prison. Dr. Sirman further acknowledged that other non-psychotics were retained at Matteawan.

 Dr. Factora testified that he was on the staff at Matteawan and performed the October 9, 1975 evaluation of Gulley and recommended retention. Dr. Factora denied that Dr. Sweeney ever questioned his retention recommendations. (Dr. Sweeney testified that he had so questioned Dr. Factora's recommendations.) Dr. Factora testified that, contrary to the opinions expressed by other psychiatrists, personality disorders were treatable at Matteawan. He admitted that he had diagnosed Gulley as being in need of treatment on October 9, 1975, but well enough to be transferred on October 20, 1975. Dr. Factora stated that his change of mind was due to the occurrence of a group psychiatric evaluation on the later date wherein Gulley was properly diagnosed as recovered, but that as of November, 1975, he would agree that Mitchell was again in need of hospitalization. Dr. Factora acknowledged that he had, on earlier occasions, acceded to Gulley's fear of prison and recommended retention. He described Gulley's claim that he was hearing voices and his suicide attempts as ...

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