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COLLINS v. WARD

June 30, 1982

CLYDE COLLINS, JR., and LAWRENCE EPPS, Plaintiffs,
v.
BENJAMIN WARD, Commissioner, New York State Department of Correctional Services, ROBERT J. HENDERSON, Superintendent, Auburn Correctional Facility, and STEPHEN DALSHEIM, Superintendent, Auburn Correctional Facility, Defendants



The opinion of the court was delivered by: OWEN

MEMORANDUM AND ORDER

 OWEN, District Judge.

 Plaintiffs Clyde Collins, Jr. and Lawrence Epps are convicted felons who are serving terms of incarceration at Auburn Correctional Facility ("Auburn") and Attica Correctional Facility, respectively. They and two other inmates whose complaints have been dismissed brought this action pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983, against defendants Benjamin Ward, former Commissioner of the state Department of Correctional Services, Robert Henderson, Superintendent of Auburn, and Stephen Dalsheim, former Superintendent of Ossining Correctional Facility ("Ossining"), alleging many and various violations of their constitutional rights. Defendants now move for judgment on the pleadings, Fed.R.Civ.P. 12(c), or, in the alternative, for summary judgment, Fed.R.Civ.P. 56. *fn1"

 The facts, taken from allegations in the complaint and undisputed statements contained in affidavits filed by the parties in connection with the instant action, *fn2" appear as follows. From August 8 to August 18, 1977, nearly all of the inmates at Auburn engaged in a prison-wide work-stoppage strike in an effort to induce the state legislature to enact a "good-time" bill. Striking prisoners refused to obey the orders of the prison staff, creating what correction officials perceived to be a security risk. Inmates who were reluctant to join the strike were threatened with reprisals, and the cell of one inmate was set on fire. When the situation appeared to become even more tense, prison authorities ordered the emergency transfer of the leaders of the strike to other institutions. Accordingly, between August 13 (the sixth day of the strike) and August 18, 1977, seventy-nine inmates were transferred out of Auburn, of whom thirty-nine were sent to Ossining. Plaintiffs were among a group of twenty-three Auburn inmates that was transferred to Ossining on August 14. Plaintiffs remained at Ossining until August 29.

 At about the same time, inmate riots erupted in two other state prisons, Eastern Correctional Facility ("Eastern") and Woodbourne Correctional Facility ("Woodbourne"). In response to these disturbances, defendant Ward authorized additional emergency transfers of inmates from those facilities. Approximately ninety-one inmates were transferred out of Eastern and Woodbourne, of whom approximately eighty-eight were sent to Ossining. *fn3" Thus, at the time of plaintiffs' transfer there, Ossining had received a total of approximately 127 emergency transferees from three institutions that had experienced major disturbances.

 All of these new arrivals to Ossining were housed on the south side of "A" Block. In the approximately six weeks prior to the transfer, A Block had been undergoing renovations. It is clear, however, from defendants' unchallenged documentary evidence and from undisputed assertions in defendants' affidavits, that the renovations on the south side of A Block were virtually completed by the time plaintiffs and about 125 other emergency transferees arrived there. Although defendants concede that the work continued on the north side of A Block, no work was done after 10:00 p.m. on week nights or on weekends. After a total of fifteen days at Ossining, plaintiffs were transferred on August 29, 1977 to Clinton Correctional Facility for permanent placement.

 Plaintiffs initiated this action in the Northern District of New York. Their complaint contained several alleged causes of action arising out of two factual situations. First, plaintiffs claimed that their transfer from Auburn to Ossining was effected in violation of their constitutional guarantee of due process. Second, plaintiffs alleged a host of constitutional deprivations arising from the conditions of their confinement while at Ossining awaiting transfer to a permanent placement. Defendants moved to dismiss the complaint for failure to state a claim, Fed.R.Civ.P. 12(b)(6), and for improper venue, Fed.R.Civ.P. 12(b)(3), before Judge Port of the Northern District of New York. Judge Port dismissed for failure to state a claim all of plaintiffs' claims arising from the transfer to Ossining and transferred the balance of the case to this district where venue lay for the claims arising from the conditions of confinement. Collins v. Ward, No. 78-40 (April 13, 1978 N.D.N.Y.). No appeal was taken from the dismissal of the claims arising from the transfer out of Auburn.

 Since the time the case was transferred here, plaintiffs' motions for class certification and to add another defendant have been denied, and two other plaintiffs, Cephus Wheeler and John Secure, have been dismissed for failure to comply with defendants' discovery requests. As noted above, plaintiff Epps also has filed a supplemental pleading. Defendants now seek summary judgment with respect to plaintiffs' remaining allegations and an order dismissing plaintiff Epps's supplemental complaint.

 I turn first to defendants' motion for summary judgment. I note at the outset that I have reviewed all of the pleadings, answers to interrogatories, and affidavits submitted herein, and I conclude that there exists no genuine issue of material fact to preclude the grant of a summary judgment. *fn4" Fed.R.Civ.P. 56(e); Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 7 L. Ed. 2d 458, 82 S. Ct. 486 (1962). The remaining allegations of plaintiffs' joint complaint contend that the conditions of their confinement at Ossining violated various rights conferred by the First, Fourth, Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the Constitution of the United States. These allegations, distilled from plaintiffs' fourteen-page, one hundred-paragraph complaint, may be summarized as follows. Plaintiffs contend:

 (1) that for the first three days of their confinement at Ossining their cells were filthy and lacked tables, chairs, and storage cabinets, that some inmates lacked towels and washcloths, that their food was contaminated by flies and human hair, and that they were subjected to the noise of construction, including the sound of jack-hammers, on A Block twenty-four hours a day; *fn5"

 (2) that for the first five days of their confinement plaintiffs were not permitted to receive visitors and that they could not obtain postage needed to mail overweight packages;

 (3) that for the fifteen days of their confinement plaintiffs were segregated from the regular inmate population at Ossining, were denied employment, and were not permitted to participate in vocational or educational training programs;

 (4) that plaintiffs were deprived of adequate medical attention because for the first six days of their confinement no doctor was available and they were permitted to see only a nurse at sick call and because poor record-keeping prevented continuity of medical and dental treatment during plaintiffs' fifteen-day stay at Ossining;

 (5) that for seven days during their strike at Auburn and for the fifteen days they were confined at Ossining plaintiffs were denied access to ...


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