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June 22, 1983

COREAN D. EVANS, Plaintiff,
FRANK HEADLEY, Superintendent, Bedford Hills Correctional Facility, THOMAS COUGHLIN, Commissioner, New York Department of Correctional Services, NEW YORK DEPARTMENT OF CORRECTIONAL SERVICES, CAPTAIN M. BURGESS, Hearing Officer, Bedford Hills Correctional Facility, Defendants

The opinion of the court was delivered by: SWEET


 Plaintiff Corean D. Evans ("Evans") brought this action pursuant to 42 U.S.C. § 1983 seeking declaratory and injunctive relief and damages for alleged violations of her First, Eighth and Fourteenth Amendment rights, state law and various state regulations by Frank Headley ("Headley"), Superintendent of Bedford Hills Correctional Facility ("BHCF"), Thomas Coughlin ("Coughlin"), Commissioner of New York State Department of Correctional Services, the New York Department of Correctional Services, and Captain M. Burgess ("Burgess"), a hearing officer at BHCF, (collectively the "defendants"). The defendants have moved for dismissal pursuant to Rule 12(b)(6) Fed.R.Civ.P. for failure to state a claim upon which relief can be granted, and for dismissal pursuant to 28 U.S.C. § 1915(a) on the ground that Evans' suit is frivolous. Evans has moved to amend her complaint pursuant to Rule 15(a) Fed.R.Civ.P. For the reasons set forth below, the motion to amend is granted, and the motion to dismiss is denied.

 Evans has been incarcerated at BHCF since 1980. On September 2, 1982 her cell was "burned out" -- intentionally set a fire by an unidentified inmate(s). According to the defendants, an inmate whose identity was not disclosed allegedly for security reasons informed prison authorities that Evans' life was being threatened. Evans sought transfer to another general population unit, but on September 3, she was notified that she was being transferred to involuntary protective custody ("IPC"). She objected to such transfer in writing, indicating her belief that transfer to another unit would provide adequate protection. On September 16, thirteen days after Evans was placed in IPC, a Superintendent's Proceeding was held at the end of which Burgess concluded that IPC was appropriate. Burgess decided that Evans would remain in such custody until October 15, at which time her situation would be reviewed. On that date, Evans was released from IPC. On September 29, counsel for Evans filed an appeal of Burgess' decision with Commissioner Coughlin and on November 10, the Commissioner's Office issued a decision affirming the September 16 determination.

 Evans claims that the nature of her custody was not entirely protective as defendants allege, but disciplinary as well. Evans bases this allegation on the assertions by defendants that she had had "serious confrontations" with other inmates. She argues that under Powell v. Ward, 542 F.2d 101, 103 (2d Cir. 1976), she was entitled to a hearing within seven days of IPC, and that failure to provide the hearing within that time worked a denial of due process in violation of the Fourteenth Amendment. The defendants argue that Evans' custody was protective only, and thus not within the protection of Powell, and that under 7 N.Y.C.R.R. § 304.3(c), *fn1" the IPC hearing must be held (and was in this case) within fourteen days of placement in protection. Further, defendants contend that the state regulations governing standards applicable to inmate behavior and special housing units, 7 N.Y.C.R.R. §§ 250 et seq. and 300 et seq., were complied with, and therefore, that any due process owing was afforded.

 Evans claims that the hearing itself was procedurally defective because Burgess did not interview a witness with "direct knowledge" of the threats to Evans' life, allegedly in violation of 7 N.Y.C.R.R. § 253.4(c), *fn2" and because Evans did not have the opportunity to cross-examine such a witness, allegedly in violation of 7 N.Y.C.R.R. § 253.4(b)(1). *fn3" Evans claims that Burgess' determination was not supported by substantial evidence and was arbitrary and capricious, allegedly in violation of 7 N.Y.C.R.R. § 250.3(f). *fn4" She asserts the same with respect to the Commissioner's affirmance of the Burgess' determination. Again, Evans argues that these procedures did not comport with the standards set forth in Powell. The defendants claim that a witness with "direct knowledge" of the threats -- the prison official to whom the threats were disclosed -- testified, and that Evans had no right to cross-examine witnesses. *fn5"

 Evans also claims that she was not permitted to participate in any work or educational programs, she could not use the law library and she had no commissary privileges while in IPC. She argues that such deprivations are unconstitutional under Powell. Again, defendants argue that Powell is not controlling here.

 In addition, Evans claims that she was deprived of adequate clothing while in IPC, constituting unusual punishment in contravention of the Eighth Amendment and amounting to a violation of her due process rights as well as New York State Correction Law § 137.(3). *fn6" The defendants contend that Evans was given additional clothing on September 17, that her clothing was adequate, and that even if it were not, no constitutional claim has been stated.

 Evans seeks to amend her complaint pursuant to Rule 15(a) Fed.R.Civ.P. to delete and add several claims and allegations which, she argues, allegedly cure certain of the pleading defects raised by the defendants in their motion to dismiss. No opposition having been interposed by the defendants, leave to amend is granted, and Evans is directed to file the amended complaint within twenty (20) days of the filing of this decision.

 For purposes of a Rule 12(b)(6) motion, the well-pleaded material allegations of the complaint are taken as admitted. 2A Moore's Federal Practice para. 12.08. A complaint should not be dismissed for insufficiency unless it appears to a certainty that the plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim. Id; see Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). Pleadings are to be liberally construed. Id.

 Since 1975, BHCF has been under court order to conduct disciplinary proceedings in compliance with constitutional requirements of due process. The circumstances that give rise to the 1975 order are fully set forth in Powell v. Ward, 392 F. Supp. 628 (S.D.N.Y. 1975), aff'd as modified, 542 F.2d 101 (2d Cir.1976), and in Powell v. Ward, 487 F. Supp. 917 (S.D.N.Y. 1980), aff'd as modified, 643 F.2d 924 (2d Cir. 1981). On April 19, 1980, the Hon. Charles E. Stewart referred the motion to Special Master Linda R. Singer to handle enforcement proceedings in that case.

 As indicated above, Evans is a named plaintiff in that class action lawsuit. In this action, Evans claims that the September 16, Superintendent's Proceeding was not conducted in compliance with the procedures required by orders entered in connection with Powell. Evans views this action as "a continuation with a slightly new factual wrinkle of the practices prohibited in Powell v. Ward." Both parties sought to have Judge Stewart take this action as a related case, but Judge Stewart declined to do so. The parties agree that certain of the issues in this suit turn on whether Powell is applicable. Indeed, during argument to the court and in their papers, defendants pointed out that the Special Master had recognized that there was a genuine question as to whether IPC at BHCF should be covered by Powell, and had planned to issue a report on that issue shortly. See Fourth Report of the Special Master, Powell v. Ward, 74 Civ. 4628 (CES), January 10, 1983, p.29.

 On May 18, 1983, while the current motions were pending, Judge Stewart approved and adopted the Special Master's Proposed Findings of Fact and Recommendation to the Court Concerning Involuntary Protective Custody, dated April 19, 1983, which recommended that the Powell standards be applied in the area of involuntary protective custody. The Special Master found and concluded that "in all cases, confinement to protective custody when imposed without an inmate's consent constitutes a substantial deprivation of liberty of the type that the Orders of this Court require be imposed only after affording specific due process protections." It should be noted that the Special Master found the following with respect to Evans:

Inmate Evans had a hearing on September 16, 1982, thirteen days after her initial admission. Captain Burgess conducted the hearing in a manner similar to a Powell v. Ward hearing. Inmate Evans was allowed to call witnesses on her behalf and received a written statement of the evidence. However, the inmate was not allowed to hear Lieutenant Duncan's testimony naming the inmates who had informed him of the danger inmate Evans allegedly faced in the general population. This denial was not explained on the tape, nor was a PC-6 Denial of Witnesses or Testimony Form (which is designed to comply with Powell v. Ward) attached to the hearing report. Ms. Evans did not appear to need an assistant or a translator. However, it was unclear from the report and tape when and how those determinations were made. Had inmate Evans been facing disciplinary charges, the defendants would have conducted the hearing at least six days sooner.

 Proposed Findings of Fact and Recommendation, April 19, 1983, p.9. By letter dated May 3, 1983, the defendants in that action had indicated to Judge Stewart that while they did not concede that they were constitutionally required to do so, they would ...

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