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SMITH v. COUGHLIN

January 6, 1983

LEMUEL SMITH, Plaintiff,
v.
THOMAS A. COUGHLIN, III, Commissioner of the New York State Department of Correctional Services, and CHARLES J. SCULLY, Superintendent of Green Haven Correctional Facility individually and in their official capacities, Defendants



The opinion of the court was delivered by: EDELSTEIN

MEMORANDUM OPINION AND ORDER

 EDELSTEIN, District Judge:

 The plaintiff, Lemuel Smith, was convicted of murdering a prison guard while serving a life sentence for murder. Plaintiff was sentenced to death, and, immediately following the sentence, was moved from the general prison population to a unit for condemned persons ("UCP") at the Green Haven Correctional Facility to await execution. Plaintiff has appealed his conviction to the New York Court of Appeals, which has not yet heard oral argument on the appeal. Plaintiff complains in this case that the conditions of his confinement violate his state-created statutory rights and his federal constitutional rights.

 Plaintiff moved for a preliminary injunction. Hearings were held on July 25, 26 and 27, 1983. With respect to some of the challenged conditions the court suggested compromise solutions and engaged the parties in a discussion of them. At the court's urging, defendants made adjustments to the conditions of confinement, see infra note 2.

 The court denied the prayer for preliminary relief. Tr. 444-45. *fn1" The court reserved decision on the prayer for permanent relief and instructed the attorneys to furnish it with proposed findings of facts and conclusions of law as well as a statement of what prior points of contention had been settled. The plaintiff's papers were submitted on September 21, 1983, and defendants' papers were submitted on September 22, 1983. The parties agreed at the conclusion of the hearing that all the evidence relevant to the court's final decision on the merits had been adduced at the hearing and that there was no need for a further trial of the issues.

 FACTS *fn2" AND PLAINTIFF'S CLAIMS

 Mr. Smith is the only prisoner in the UCP. He is confined in a prison cell measuring ten feet by six feet. It is clean and adequately lighted and ventilated. He may not retain personal items such as books, papers, pencils, cleaning implements and toothbrushes in his cell, but may obtain these items for use by requesting a correction officer to bring them. Mr. Smith may watch television or listen to a radio 24 hours a day. The television and radio are situated about five feet outside his cell, and they are turned on and off by a correction officer at Mr. Smith's request.

 He may leave the cell at about 8:30 a.m. once a day for an exercise period in a yard that measures about 20 feet by 20 feet, and he may stay there until about 3:30 p.m. when the guards' shift changes. For his exercise, he has available sneakers, a handball, a basketball and a basketball hoop.

 Mr. Smith is visited by a nurse or doctor once a day, who see after his health, and a psychiatrist sees him on a regular basis. Mr. Smith has no contact with other inmates.

 Mr. Smith is allowed to have contact visits with his attorneys, but he is not allowed to have visits, contact or noncontact, with paralegals, law students or legal investigators including those working for his attorneys. Plaintiff claims that this prohibition violates his sixth amendment rights by depriving him of access to the courts.

 Mr. Smith is allowed only noncontact visits with any of the twenty relatives in his immediate family, who are on a list of approved visitors. He is not permitted to visit with friends who are not relatives. Plaintiff claims that these restrictions violate his first amendment right by depriving him of his right to free speech.

 Mr. Smith is allowed to have contact visits with Father Donovan, a Catholic priest, and four other authorized clergymen. Father Donovan conducts a Catholic Mass for Mr. Smith once a week. On these occasions the guards are present and participate. Tr. 306. Mr. Smith is not allowed to attend group religious services with other inmates. Plaintiff claims that this restriction on his access to group services violates his first amendment rights by interfering with his practice of religion.

 Plaintiff further claims that the totality of the conditions of his incarceration violates his eighth amendment rights by subjecting him to cruel and unusual punishment.

 A further contention is that the totality of circumstances under which he is incarcerated will lead to his physical and mental deterioration in consequence of which he will lose his will to fight his conviction through appeal. Such a result, he claims, would violate his sixth amendment rights of access to the courts.

 Plaintiff makes a point that he had liberty interests *fn3" in certain aspects of his confinement, such as contact with other inmates and contact visits, and that the state's deprivation of these interests based solely upon imposition of a death sentence violates his fifth and fourteenth amendment rights by depriving him of liberty without due process of law.

 Plaintiff attacks the statutory authority upon which the defendants rely for authorization to transfer him from the general inmate population to the UCP, N.Y. Correct. Law § 650, as unconstitutional in that it deprives him of the equal protection of the laws with respect to others similarly situated, i.e. other inmates, in violation of his fourteenth amendment rights.

 Plaintiff also claims that the conditions of his incarceration in the UCP violate New York State's statutory and regulatory prescriptions for imprisonment. See N.Y. Correct. Law § 650 and Correctional Services Regulations Title 7, Part 300.

 Added to this is the claim that his transfer to the UCP without a hearing violates a consent decree entered into by New York State in Kozlowski v. ...


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