Thomas A. Coughlin, III, Commissioner of the New York State Department of Correctional Services, and Harold J. Smith, Superintendent of the Attica Correctional Facility, appeal from an order of the United States District Court for the Northern District of New York (James T. Foley, Judge), see 596 F. Supp. 1064 (N.D. N.Y. 1984), enjoining them from interfering with the delivery of a report titled "Attica: A Report on Conditions, 1983" to inmates of New York correctional facilities. Affirmed.
Before: Kaufman, Timbers, and Rosenn*fn* Circuit Judges.
The Sisyphean task of maintaining order in our nation's prisons has, in recent times, been discharged with diligence and industry. Those men and women charged with the daily control of these most volatile of institutions have done much to bring them up to the standards expected of a civilized society approaching the end of the twentieth century. It cannot be gainsaid that much remains to be done before we can rest. Neither can it be denied that many beneficial charges have been effected by the courts over the vigorous objections of corrections officials. By and large, however, the gains made in the safe and efficient administration of our prisons may be attributed to the anonymous professionals who daily toil at the cutting edge of our efforts to improve, while at the same time securing, our penal institutions.
As in all endeavors, prison guards and administrators develop great expertise during the course of their careers. Just as experienced physicians render diagnoses on the basis of symptoms they sense, but often cannot empiricize or articulate, so too, we are told, can those who work among prisoners develop "senses" concerning the potential for impending disobedience or unrest.
In the great majority of cases, it would be sheer folly for society to deny prison officials the discretion to act in accordance with their professional judgment. At the same time, it would be an abrogation of our responsibility as judges to assume (or, more precisely, to reassume) a "hands off" posture, requiring categorical acquiescence in such judgments. Where an inmate alleges that precious constitutional rights are being abridged, the judiciary has the power, and indeed the duty, to intervene in the internal affairs of a prison. Balancing the wisdom of judicial defence against the need for courts to involve themselves in preserving precious liberties is a task of inordinate difficulty. But face it we must if we are to discharge our arduous and delicate duty as protectors and defenders of the Constitution.
Today, we consider a claim that the State of New York impermissibly interfered with the rights of inmates to receive copies of a report detailing conditions within a prison. The abstract rights embodied in our Great Charter acquire meaning only by reference to the mundane realities of human experience. Accordingly, we find it necessary to describe the facts giving rise to this dispute in some detail. By doing so, we hope to clarify the legal discussion that follows.
Attica Corretional Facility is a maximum security prison in upstate New York. In September 1971, an uprising at the institution resulted in the deaths of forty-three persons -- thirty-two inmates and eleven correctional employees. In the words of the Special Commission appointed by the Governor to investigate the incident: "The State Police uprising which ended the four-day prison uprising was the bloodiest one-day encounter between Americans since the Civil War." Attica: The Official Report of the New York State Special Commission on Attica xi (Bantam Books ed. 1971) [hereinafter cited as "1972 Attica Report"].
In the aftermath of the riot, the very word "Attica" became symbolic of all that was wrong with America's maximum security prisons. Many observers expressed little surprise at the fact the riot had occurred; their only shock was at its not having happened earlier. The Report of the Special Commission set forth the conditions giving rise to the events of September 1971 in horrifying detail. We need not recount all those disturbing facts here. It is enough to say the Attica of 1971 was a squalid, degrading and dangerous place for convicts and guards alike. The prison's physical plant was vastly overtaxed. Built to house some 1700 inmates, the facility was then home to more than 2200. Emphasis was placed not on rehabilitation, but only on confinement and security. There were no meaningful educational or vocational training programs; idleness became the prisoners' principal occupation. An all-white staff of correction officers ruled an inmate population that was fifty-four per cent black and nine per cent Puerto Rican. Levels of personal hygiene and available medical care were scandalously low.
IT would be comforting to believe that Attica was somehow different -- that it was an exceptionally bad institution. Perhaps its archaic architecture was somehow to blame. After all, the thirty-foot-high wall and endless rows of six-foot by nine-foot by seven-foot cells were designed in another era. Or perhaps the tensions in Attica were the result of inner-city criminals being policed by officials familiar only with the rural life or northern New York State. The sad truth, however, was that the Attica of 1971 was little better or worse than other maximum security prisons of that time. That the riot broke out there had more to do with chance than with any idiosyncrasy of the particular institution. The words of the Special Commission made it hauntingly clear: "Attica is every prison; and every prison is Attica."
We recite these sad facts of our recent history not to suggest that the situation at Attica has remained unchanged in the thirteen years since the bloody uprising, but rather to emphasize the institution's history of tension and violence. Indeed, we are given to believe that some beneficial innovations have been effected since that time, although it appears that by 1982, much remained to be done.
On the tenth anniversary of the publication of the Report of the Special Committee on Attica, a private organization called the Correctional Association of New York issued a document titled Attica 1982: An Analysis of Current Conditions in New York State Prisons ("1982 Report").The report, which was but one of many on the subject of that much studied institution, was highly critical of the prison's administration and the Department of Correctional Services. It began with the words: "There is a crisis in New York's prisons," and went on to describe many problems existing within the prison at that time. Comparing the situation to that prevailing a decade earlier, the report concluded:
While some improvements have occurred, in numerous areas our conclusions about inadequate, even dangerous, conditions echo those made ten years ago; there had been little improvement in the basic quality of life for prisoners and personnel, and little reduction in the underlying tension and frustrations that led to the uprising.
1982 Report at 3, reprinted in Joint Appendix ("J.A.") at 276.
Somewhat predictably, the 1982 Report angered prison officials, spawning a prompt and vigorous response. Thomas A. Coughlin III, then as now Commissioner of the New York State Department of Correctional Services ("DOCS"), issued a press release in which he characterized the document as "misleading and irresponsible," and stating that its description of conditions "simply isn't true." J.A. at 309. Along with the press release, Coughlin distributed a thirty-two page "reply," taking issue with many of the Report's factual statements, as well as its conclusions.
Both the 1982 Report and Coughlin's reply were reported widely in the press, and generated a great deal of interest throughout New York State. As might be expected, among those individuals most anxious to see copies of the study so critical of conditions at Attica were inmates of that institution. Notwithstanding his displeasure at its contents, Coughlin allowed the document to be delivered to prisoners at Attica and other maximum security prisons.
Beginning on September 19, 1983, approximately 1700 of the 2100 prisoners then incarcerated at Attica began a sit-in strike at the facility. They refused to report to their work stations or educational programs, and published a letter listing grievances. The prison was immediately secured and the entire population was confined in their cells around the clock. In the days following, the superintendent of the institution met with representatives of various prisoner organizations with the specific goal of identifying strike leaders, and more generally to collect information regarding inmate complaints and the prison population's commitment to the strike.
Between September 25 and 27, more than 100 alleged leaders of inmate groups were transferred to other correctional facilities. Soon thereafter, the prison administration learned that the remaining prisoners were becoming more conciliatory, and that most would be willing to return to a regular work schedule. On October 5, small groups of inmates were allowed to resume their normal activities, and by October 14, the prison had returned to pre-strike status.
Pursuant to New York law, see N.Y. Correct. Law §§ 45(2), 45(3) (McKinney supp. 1983), the State Commissioner of Correctons sent observers to monitor conditions at the prison during the strike. It subsequently prepared a report setting forth its findings and recommendations, see Attica 1983: A Report on the Inmate Strike and the Operations of the Attica Correctional Facility (1983) [hereinafter cited as "1983 Report"]. Although the report commended the Department of Correctional Services and the prison administration for "bringing the strike to a close without a major incident," it intimated that many of the inmates' grievances were justified, and that serious problems existed in the prison. In conclusion, the report stated:
Until a meaningful and substantive effort is undertaken to revamp the operation of the Attica facility and to address the problems cited in this report, the underlying tension and frustration that culminated in the strike will continue to pose a serious threat to the stability of the institution.
Commissioner Coughlin immediately responded to the report, calling it "disturbing" and stating that it was "rife with unsubstantiated rumors, anonymous allegations, and unsupported allegations and conclusions." J.A. at 356. Coughlin blamed the disturbance solely on the prison's overcrowded conditions, which he claimed were the result of a federal court order requiring the institution to accept more inmates.*fn1 As he had one year earlier, the Commissioner published a lengthy reply to the report, in which he took issue with specific allegations and generally disputed the report's conclusions. Once again, inmates expressed interest in seeing copies of the critical document and, notwithstanding his belief that it contained numerous misstatements of fact, Coughlin allowed it to be delivered to members of the prison population.
The Prisoners' Legal Services Report
Prisoners' Legal Services of New York ("PLS") is a public interest law firm that represents inmates -- including many incarcerated at Attica -- in connection with a wide variety of legal actions. On November 22, 1983, the Buffalo Office of PLS published a report titled, Attica: A Report on Conditions, 1983 ("PLS Report").*fn2
The report's overall tone is explicitly supportive of prisoners' interest, and blatantly antagonistic to prison officials. In the introduction, PLS admits that among its purposes is "to focus public attention on the conditions at Attica Correctional Facility in order to prompt the Department of Correctional Services to remedy them as soon as possible." The introduction ends by "pointing out that this report merely sketches some of the most odious conditions at Attica."
The body of the document consists of a description of conditions allegedly prevailing at Attica. The prefatory section states: "The most flagrant problems at Attica can be defined within two categories: the negative attitude exhibited by Attica officials toward the inmates in their charge, and the failure to provide adequate resources." See App. A at 1695. In a section titled "Racism," the report states:
Racism permeates the atmosphere at Attica. . . . [It] surfaces daily in racist acts against inmates. . . . Derisive racial remarks, threats on the lives of "black niggers' and "white nigger-lovers' and other forms of harassment by correction officers abound.
Id. at 1696-97. The report goes on to relate that one Rastafarian inmate "informed [PLS]" that his dreadlocks had been cut off by a guard, who allegedly bragged that he was going to take them as a souvenir. Later in the same section, PLS writes that it "received reports" that officers roamed corridors in white sheets, and that inmates names had been handwritten by guards on photographs of lynched black men.
The next portion is devoted to a description of the "Special Housing Unit," more commonly known as solitary confinement. The authors write:
Hardly a week passes that we do not receive letters about at least one inmate who was physically assaulted by correction officers either as he was escorted to the Special Housing Unit or, if he was already a box resident, on his way back from the exercise cell, visiting room or shower. These men are often handcuffed when the assaults occur.
Id. at 1702. The section ends by advocating the installation of videotape cameras in the halls and stairwells leading to the Special Housing Unit.
Next, the report examines the section of Attica known as "A Block," stating that it "is infamous for its explosive and dangerous living conditions." Later in that section, the report states:
Inmates have written seeking help in situations such as the denial of medicine by correction officers, harassment on the way to disciplinary hearings and the refusal of officers to give them the cleaning materials for their cells. They have written of lights being cut off intentionally and of being fed improperly or sporadically. And they have written over and over again about brutality and blatant racism. In fact, though the truth of its reputation has never been investigated. A-Block is commonly known as "[Ku Klux] Klan Block."
In concluding, the authors of the PLS Report appear to express their solidarity with (or at least sympathy for) those who took part in the sit-in strike, whom they characterize as "desperate for change in their intolerable living conditions and frustrated by the failure of state and prison officials to remedy the most critical problems." Id. at 1718. In closing, the report calls on prison officials "to effectuate . . . critically needed improvements." Id.
Response to the PLS Report
Studies of prison conditions generally, and particularly those prevailing at an institution as well-known as Attica, tend to make good copy for local news organizations. The PLS report was no exception. An enormous amount of statewide publicity was generated by the document's release in November 1983. State officials, including Commissioner Coughlin and Attica administrators, decried the document as irresponsible and woefully misleading. Although PLS was recognized as an advocacy group working on behalf of prisoners, the report sparked a storm of protest as the specter of Attica's deplorable conditions was once again raised in the public's consciousness.
PLS received requests from dozens of inmates, incarcerated at various prisons throughout the New York State system, for copies of the latest report. Uncertain of the response of prison officials, and fearing that inmates might be disciplined for possessing unauthorized copies, PLS wrote to Commissioner Coughlin on December 1, 1983, seeking permission to send copies into New York prisons. The December 1 letter requested that Commissioner Coughlin explain his reasons for censoring the report, if in fact he were to determine that it could not be delivered.
On January 18, 1984, the Commissioner responded that he would not allow delivery of the PLS Report to inmates in the New York prison system. No reasons for his refusal were given at that time.
On March 19, 1984, twenty-four inmates from correctional facilities through the State initiated this action in the district court for the Northern District of New York. Represented by PLS, they sought to enjoin Commissioner Coughlin and others from interfering with the delivery of copies of the report into New York prisons. The complaint, which alleged an ongoing violation of 42 U.S.C. § 1983 (1982), sought declaratory and injunctive relief, as well as attorneys' fees, as authorized by 42 U.S.C. § 1988 (1982). By notice filed March 27, the prisoners moved, pursuant to Fed. R. Civ. P. 65(a), for the preliminary injunction that is the subject of this appeal. The motion was made returnable before Magistrate Ralph W. Smith, Jr., on April 19, 1984. By amended notice of motion dated April 9, 1984, the state officials opposed the prisoners' motion, and cross-moved for an order disqualifying PLS from representing the plaintiffs. The prisoners responded by motion on April 12, opposing the state's attempt to disqualify their counsel, and cross-moving for an order striking allegations to the effect that PLS had been involved in organizing the September 1983 strike.
On April 19, 1984, Magistrate Smith heard oral argument in connection with the motions, and on April 27, he issued his order and report-recommendation. Finding that the state had "presented a pretext for a claim of a clear and present danger to prison discipline and security," J.A. at 42, he recommended that the preliminary injunction be denied. He found that residual tension existed at Attica in the aftermath of the September 1983 strike, and that introduction of the report into the prison presented a clear security risk. He quoted language from the Commissioner's affidavit, stating that allegations in the document were "couched in irresponsible and inflammatory language" and "calculated to inflame an already difficult situation." J.A. at 42. He further ordered that the state's motion to disqualify PLS as counsel for the prisoners be denied "without prejudice to renewal," and also denied the prisoners' motion to strike those portions of the State's affidavits that related to the alleged involvement of PLS in the September 1983 strike.
Two months later, Judge Foley issued a memorandum-decision and order, in which he challenged the Magistrate's recommendations. Addressing the prisoners' cross-motion to strike testimony regarding PLS's role in the strike, Judge Foley wrote that "such allegations are not germane or relevant to the First Amendment issues raised by the complaint," J.A. at 32, and ordered them struck. The ruling of the Magistrate denying the motion to disqualify PLS "without prejudice" was modified to deny it without qualification and with prejudice. Finally, the judge concluded that the prisoners' motion for a preliminary injunction should not be resolved on the basis of affidavits presenting disputed issues of fact, see Forts v. Ward, 566 F.2d 849, 851-52 (2d Cir. 1977), and ordered it recommitted to the Magistrate for an expedited evidentiary hearing.
Testimony was given before Magistrate Smith on August 14 and 15, 1984.After answering questions regarding his background and experience in prison administration, Commissioner Coughlin recounted his reasons for denying delivery of the PLS report into state prison facilities:
I had seen a copy of the report when it was published in November of 1983, and I felt, felt very strongly that the report presented a clear and present danger to the institution. It was full, as far as I was concerned of inflammatory remarks, unsupported statements, allegations that were presented as facts without any attempt to balance or to indicate that the statements that they made in the report were not facts, but were allegations.
I felt that to introduce this report into the prison system, specifically and especially Attica at that point in time, November 1983 was not the right thing to do. The prison, even though it was back to full operation, was still extremely tense.
J.A. at 107-08. The Commissioner went on to enumerate the statements he believed were couched as facts in the report, and to challenge them individually. For example, he described the procedure whereby entering prisoners are shaved and given haircuts, photographed, and then allowed to let their hair grow back to whatever length they choose. In his view, the report's description of a Rastafarian inmate having his hair cut against his will was nothing more than a recapitulation of normal intake procedures. Similarly, he denied that the incident involving inmates' names being written by guards on photographs of lynched black men ever could have occurred, because the nicknames used were not known to corrections officers. He repeatedly objected to the misleading presentation of allegations as matters of fact.
Over a strenuous objection by counsel for the prisoners, Commissioner Coughlin then began to describe the second ground for his decision to ban the report from prison facilities. He testified that he had received "information . . . that the Prisoners' Legal Services was involved in the organization of the [September 1983] strike." J.A. at 108-09. Although Magistrate Smith "agree[d] with [the state]" that such evidence should be admitted, he felt "bound by the determination of Judge Foley's [June 20] order", J.A. 113, and sustained the objection ending this particular line of testimony.
On cross-examination, counsel for the prisoners directed Coughlin's attention to the precise language of various statements he had objected to as erroneously couched as fact. In many instances, the Commissioner was forced to admit that there were, in fact, phrases such as "one inmate informed us . . .," "frequently, we hear about . . .," "we received reports . . .," -- phrases indicating that the conditions alleged in the report were just that -- allegations. Moreover, at one point the Commissioner admitted that even if he had been satisfied that every allegation in the Report had been true, it would not have altered his decision to prevent the document from being delivered to inmates. Conditions at state maximum security institutions, and particularly at Attica, were simply too "tense" to allow introduction of what he deemed an insightful report.
Yet, Commissioner Coughlin testified that other reports, news articles and court decisions critical of prison conditions had been received by inmates at various institutions without any adverse effect on security in those prisons. The 1983 Report, which he had earlier characterized an unprofessional, unfair and nonobjective was allowed in. The 1982 Report, which he criticized as "misleading and irresponsible," was available to interested inmates. Even copies of a newspaper called Revolutionary Worker were delivered to prisoners, notwithstanding the following militant language: "Far from the futile hopeless act of despair, the riot at Attica the oppressors," J.A. at 232-33. Finally, Coughlin admitted that newspaper stories containing detailed descriptions of the PLS Report were allowed to be delivered to inmates at Attica and other state prisons.
When asked whether there existed any demonstrable connection between the introduction of such "inflammatory" materials and incidents of unrest inside any maximum security prison, the Commissioner admitted that no hard evidence of a causal connection existed. Nevertheless, he restated his belief that such material had the potential for inciting insurrection within an institution. The fact that there was no evidence tracing a particular violent episode to the introduction of a given news article or report, he believed, was simply the result of the inexactitute of penological sciences.
Why then, Coughlin was asked, should the PLS Report by kept out, when equally "inaccurate" and "incendiary" material had not been restricted? In part, he responded, the PLS Report was different because PLS had gained the respect of so many prisoners. He believed inmates could recognize the political rhetoric of the Revolutionary Worker for what it was. A study bearing the imprimatur of so trusted an organization, on the other hand, was liable to be taken much more seriously, and thus was considerably more threatening to prison security.
Finally, the role of the censorship guidelines contained in DOCS Directive No. 4572 (March 2, 1979) ("Directive 4572")*fn3 was explored at some length. That directive, titled "Guidelines and Procedures Governing the Receipt and Review of Literature and Related Materials for Inmates," had been issued in early 1971, and updated from time to time thereafter. It set forth specific standards by which material sent to inmates was to be reviewed and, if need be, censored. Moreover, it contained procedures to be followed in the event a given publication was deemed to be subject to prior restraint. Specifically, the guidelines direct that each institution is to establish a "media review committee," which is to have ultimate authority in deciding what materials may be denied to inmates. Maximum time periods within which the committee must meet, procedures for advising inmates of the adverse decisions and appellate rules and all provided for in Directive 4572.
At the evidentiary hearing on August 15, Commissioner Coughlin testified that he had not applied the standards set out in Directive 4572. Instead, his decision was reached by reference to his personal and professional judgment concerning the inherent danger in allowing the PLS Report to be read by prisoners.
After hearing the Commissioner's testimony, Magistrate Smith filed a second report-recommendation on September 7, 1984. He found that Coughlin had not applied Directive 4572 and, moreover, that the PLS Report did not violate the guidelines set forth in it. The Magistrate also found that the Commissioner's reaction to the PLS report was "not unlike" his reaction to earlier reports that were allowed into New York State prisons, and that those other reports had been received by inmates without demonstrable adverse effect on security interests. Deeming the prisoners to have shown irreparable injury, and believing that they had sustained their burden of demonstrating a likelihood of success on the merits, Magistrate Smith recommended that the preliminary injunction be granted.
By order dated November 8, 1984, Judge Foley adopted the recommendation, and enjoined Commissioner Coughlin from "refusing to allow plaintiffs, and other inmates of New York Correctional Facilities, from receiving [sic] upon request to the Prisoners' Legal Services of New York copies of "Attica: A Report on Conditions, 1983." 596 F. Supp. at 1068. Judge Foley agreed to stay the injunction for ten days, during which time the state moved before this Court for a stay pending appeal. A panel of this Court granted the stay on November 27, 1984, and expedited the instant appeal.
A. Standards for Injunctive Relief
It is well settled in this Circuit that a party seeking injunctive relief must establish that the injunction is necessary to prevent irreparable harm and that he is likely to prevail on the merits of the underlying controversy. In the alternative, he may demonstrate irreparable injury and the presence of sufficiently serious questions going to the merits as to make them a fair ground for litigation, together with a balance of hardships tipping decidedly toward the movant. Arthur Guinness & Sons, PLC v. Sterling Publishing Co., 732 F.2d 1095, 1099 (2d Cir. 1984); Buffalo Courier-Express, Inc. v. Buffalo Evening News, Inc., 601 F.2d 48, 54 (2d Cir. 1979); Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979) (per curiam). A movant seeking to avail himself of the first alternative need not show that success is an absolute certainty. He need only make a showing that the probability of his prevailing is better than fifty percent. There may remain considerable room for doubt. See Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740 (2d Cir. 1953); 11 C. Wright & A. Miller, Federal Practice & Procedure § 2948 at 452 (1973).
Normally, the purpose of a preliminary injunction is to maintain the status quo ante pending a full hearing on the merits. See Diversified Mortgage Investors v. U.S. Life Title Ins. Co., 544 F.2d 571, 576 (2d Cir. 1976); Triebwasser & Katz v. American Tel. & Tel. Co., 535 F.2d 1356, 1360 (2d Cir. 1976). Occasionally, however, the grant of injunctive relief will change the positions of the parties as it existed prior to the grant. Such is the case in the dispute before us today. If the injunction against Commissioner Coughlin is upheld, he ...