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November 14, 1986

RALPH RATTON HALL, and all those similarly situated, Plaintiffs,

The opinion of the court was delivered by: MUNSON



 This suit challenges the procedures followed by state officials in placing plaintiff *fn1" in the Assessment Program and Preparation Unit ("APPU"). The claim came before this court as a 42 U.S.C. § 1983 action, based on infringement of plaintiff's liberty rights, protected by the due process clause of the fourteenth amendment. After a one-day, nonjury trial in which plaintiff and two witnesses for the state defendants testified, the court grants judgment to the plaintiff.


 Plaintiff is a prisoner in the New York State Department of Correctional Services and is serving a life sentence. On February 15, 1980, while in the Clinton Correctional Facility, plaintiff requested to be placed in voluntary protective custody, *fn2" allegedly to avoid conflicts with prison guards. Plaintiff explained his apprehension of staying in the general prison population as based on his role as grievance representative and prisoner spokesman. There is no indication of Mr. Hall's having any difficulty with fellow inmates.

 On April 23, 1981 plaintiff was transferred to the APPU section of the Clinton Correctional Facility. Shortly thereafter Mr. Hall was offered a program at APPU. Mr. Hall refused to accept the program he was offered. Refusal to accept the program meant automatic classification into the limited privileges status. Mr. Hall was in the limited privileges status for a period of less than four months. *fn3"

 Plaintiff stated that he tried to file grievances several times, but state officials denied receiving them. When plaintiff tried to institute an Article 78 proceeding against state officials and to file a habeas corpus action, his actions were dismissed for failure to exhaust administrative remedies.

 APPU is a program designed as an alternative and a remedy for those inmates who were likely to be victimized by other inmates, or who had difficulties adjusting to the general prison population. That is, APPU was designed to help those inmates who received verbal or physical abuse from other inmates or who perceived abuse from other inmates. Trial Tr. at 44, testimony of Charles DuFrain. To get into the program inmates who have been identified as likely candidates are submitted to a series of educational and psychological tests and a program is designed for them.

 Inmates who refuse to accept the program offered are placed in the limited privileges program. At the time of the incident involved in this case, the limited privileges status meant staying in confinement 23 hours a day, the right to take a shower two times a week, and limited visiting and correspondence rights, conditions roughly equivalent to those of protective custody. To get out of the limited privileges status, all inmates had to do was express their willingness to accept the program offered.

 Upon refusal to accept an assignment in APPU, besides the restrictions appurtenant to limited privileges status, prisoners' records were also affected. Prisoners were warned that "when your good behavior allowance is considered, the Time Allowance Committee considers your entire institutional experiences, including good behavior, efficient and willing performance of duties assigned, progress and achievement in Assignment Program." Defendants' Exhibit C. Prisoners were also warned that refusal to accept the program "may cause loss of good time." Id.

 Plaintiff challenged the program on two grounds. First, he stated that the program is a behavior-control, experimental program, in which prisoners are submitted to chemical and stress-tolerance experiments. On this side of the challenge plaintiff presented no evidence whatsoever. Secondly, plaintiff claims APPU was used an an alternative to involuntary protective custody, but without the process due to involuntary confinement. This claim stems from plaintiff's allegation that he was offered an APPU program and was subsequently placed in limited privilege status, without following the procedures required by the program. This second allegation requires developing further how APPU inmates are selected.

 Mr. Charles DuFrain, a former APPU supervisor, explained the procedures followed to classify an inmate into APPU. Likely candidates are referred by counselors or prison officials. Inmates who may need the program's offerings are given a series of educational and psychological tests to determine the inmates' needs. Tr. at 56. Once the specific needs are identified, the inmates appears before the program committee, at which time the inmate is offered a program based on the committee's findings. Tr. at 57. If the inmate refuses to accept the available program, he is placed into limited privileges status. Tr. at 58.

 Plaintiff repeatedly claimed that the procedures followed in his case were not those required for placement into APPU. In response, state defendants described the usual procedures followed for placement in APPU, as explained above, and described the goals and structure of APPU. The state defendants did not show whether plaintiff had been submitted to the battery of tests required to determine the inmate's needs. The state defendants also made no ...

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