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ABDUL WALI v. COUGHLIN

November 8, 1984

Gerald Abdul WALI, 81-A-5803; LeMoine Arrington, 81-B-981; Kuwasi Balagoon, 83-A-6216; Abdul Reyah, 79-A-137; Theodore Churakos, 82-C-889; Carlos Cortes, 80-B-523; Charles Culhane, 67-A-0065; Frederick Curl, 77-C-687; Kasiem Dodell, 83-A-783; Mujahid Farid, 79-A-0362; Raymond Fernandez, 81-A-2686; Ronald Fox, 82-A-2445; Carlos Gonzalez, 76-A-2277; Charles L. Harris, 81-C-470; Kenneth Johnson, 79-C-575; Jory Lowrence, 77-A-3323; Anthony McBayne, 79-B-1261; Edward McCleary, 80-B-1598; Kelvin Richardson, 80-A-3080; Lamarr Rowell, 81-C-738; Sonny Viele, 77-C-95; David Sealey, 81-A-4099; Jose Vazquez, 77-A-4295; and Albert Washington, 77-A-1528; Plaintiffs,
v.
Thomas A. COUGHLIN, III, Commissioner, Department of the New York State Department of Correctional Services, and Harold J. Smith, Superintendent of the Attica Correctional Facility, in their official and individual capacities, Defendants.



The opinion of the court was delivered by: FOLEY

MEMORANDUM-DECISION and ORDER

JAMES T. FOLEY, Senior District Judge.

 The motion for a preliminary injunction in this action under 42 U.S.C. § 1983 asserting deprivation of federal constitutional rights has undergone lengthy processing and prolonged consideration. The twenty-four plaintiffs are or were inmates of several New York Correctional facilities. The issue presented is important but narrow and not factually complex. The preliminary injunction is sought due to the denial of defendant Commissioner Coughlin to permit plaintiffs to receive, while inmates and when requested, copies of a thirty-page document entitled "Attica: A Report on Conditions, 1983", authored, as noted on the cover page, by the named staff of the Buffalo Office, Prisoner Legal Services of New York. The dispute concerning the grant or denial of this preliminary injunction has become intense with resultant hostile attitudes and voluminous tit-for-tat submissions that are never helpful to efficient court consideration and disposition. The attorneys should always be conscious of the responsibilities of both sides in prisoner litigation of this kind; the need to maintain to the degree humanly possible the security of state correctional facilities, balancing the established rights of inmates therein to limited federal constitutional privileges. Mutual courtesy, understanding, and cooperation by the legal representatives of the parties advances the interests of justice. Any disposition to treat the legal adversary as an enemy should be avoided.

 In accord with our procedures, the motion for a preliminary injunction was made returnable before Magistrate Ralph W. Smith, Jr., in Albany. In response, Assistant Attorney General Roberts filed a Notice of Motion and a Cross-Motion. The plaintiffs then countered with a separate Cross-Motion. This unusual array of motions, and the relief sought by them, and detailed in my memorandum-decision and order of June 20, 1984, such being described as an avalanche of papers. The Magistrate heard oral argument on the motions, and filed his Order and Report-Recommendation dated April 27, 1984. The Magistrate denied the motion of the defendants to disqualify the Prisoners' Legal Services as counsel for the plaintiffs, but without prejudice to renewal if a trial is held on the merits in the district court. The separate Cross-Motion of the plaintiffs to strike specific portions of defendants' affidavits alleging involvement of the Prisoners' Legal Services of New York in the general strike of inmates that occurred at Attica Correctional Facility in September 1983 was denied. Finally, the Magistrate recommended that the motion of plaintiffs for a preliminary injunction be denied.

 The recommendation to deny the initial plaintiffs' motion for a preliminary injunction was not accepted for the reasons stated in my memorandum-decision and order of June 20, 1984. My reasoning was that an evidentiary hearing before the Magistrate was essential to evaluate properly such recommendation. The motion for a preliminary injunction was remanded to the Magistrate for an expedited evidentiary hearing. The denial of the defendants' motion to disqualify Prisoners' Legal Services as attorneys for the plaintiffs was accepted but was modified to be with prejudice instead of without prejudice to renew. The denial of plaintiffs' motion to strike portions of the submission of the defendants charging involvement of members of Prisoners' Legal Services in fostering the September 1983 general strike of Attica inmates was set aside as clearly erroneous. The plaintiffs' motion to strike such material was granted on the stated ground that in my judgment such allegations were not germane or relevant to the First Amendment content issue of a publication raised by the complaint.

 The evidentiary hearing was held by the Magistrate on August 14 and 15, 1984. The Magistrate then filed an eight-page Report-Recommendation dated September 7, 1984. The Magistrate recommended that the defendants be preliminarily enjoined from refusing to allow plaintiffs to receive copies of the Attica Report in issue. Objections to the Report-Recommendations were filed in the Clerk's office by the defendants on September 24, 1984. The plaintiffs filed a Response to the defendants objections on October 2, 1984. Finally, to cap it all off, although stating that he hesitated to add to the large volume of paper which has been generated in this matter, Assistant Attorney General Roberts submitted a reply affidavit for the defendants in reply to the plaintiffs' response to the defendants' objections, such being filed in the Clerk's office on October 11, 1984. At the time of these filings, the evidentiary hearing record made before the Magistrate had not been transcribed. Again there was serious disagreement among the attorneys not only as to certain testimony given at the evidentiary hearing, but also concerning the arrangements to be made for securing copies of the transcript. Because of the disputes, I have waited for the transcript and it was delivered to my Chambers on October 26, 1984. The transcript settles at least one disagrement. It shows that the line of questioning concerning invocation of the Fifth Amendment privilege by an inmate witness was not pursued by defense counsel. (Tr. p. 29).I have read through the 236 pages.

 In his Report-Recommendation the Magistrate made eight explicit findings of fact. After review of the record my determination is that these findings of fact are fully supported by the testimony produced and exhibits received at the evidentiary hearing. Such findings are wholly accepted. 28 U.S.C. § 636(b)(1)(B). It may be helpful to appellate review to set forth these factual findings of the Magistrate:

 (1) The Attica Report prepared by PLS is based primarily on information obtained from inmates therein.

 (2) Copies of this report were requested by and denied to plaintiffs based on a decision ultimately and personally made by defendant Coughlin.

 (3) Other reports, news articles, and court decisions critical of prison conditions and based at least in part on inmate sources have been received by inmates in various New York State prisons, including Attica, without demonstrable adverse effect on security interests.

 (4) The Attica Report is no more critical of prison conditions and administration than earlier reports and articles which inmates have been permitted to receive.

 (5) Defendant Coughlin's decision not to permit introduction of this report was based at least in part upon his perception that PLS or persons somehow associated with PLS were in some fashion involved in the organization of the inmate strike in September 1983.

 (6) Defendant Coughlin did not apply guidelines as contained in Department of Correctional Services Directive No. 4572 dated 3/2/79 or any other formal guidelines in deciding not to permit ...


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