Appeal from orders of the District Court for the Western District of New York, Michael A. Telesca, J., granting two correctional officials of Attica Correctional Facility and their collective bargaining representative leave to intervene for certain discovery purposes only in a class action under 42 U.S.C. § 1983 brought by inmates of a unit of the prison, and denying their application to intervene in all other respects. Held, the intervenors may not appeal the extent of their intervention until final judgment is entered in the underlying action.
Lumbard, Pratt, and Mahoney, Circuit Judges. Mahoney, Circuit Judge (concurring).
This interlocutory appeal, from a partial denial of an application for leave to intervene, is taken by the collective bargaining representative for certain state prison officers and by two of those officers whose superiors are defendants in a class action brought in 1980 by certain inmates at Attica Correctional Facility. The inmates allege that prison authorities and state correctional officials permitted the prison guards to violate many of their constitutional guarantees, including those against cruel and unusual punishment. After they moved for a preliminary injunction directing, inter alia, the removal of certain guards from their posts, the guards' collective bargaining representative, District Council 82 of the New York State Inspection, Security and Law Enforcement Employees, AFSCME, AFL-CIO (Council 82), William Stranahan and David Dylag moved to intervene under Rule 24, Fed. R. Civ. P., claiming that the interests of Council 82's members were at stake and inadequately represented in the lawsuit. The District Court for the Western District of New York, Michael A. Telesca, Judge, granted the intervenors leave to intervene only to the extent necessary to challenge the discovery by the inmates of the guards' personnel records. The intervenors complain of that limited grant and ask us to consider Judge Telesca's grant of limited intervention as a complete denial of intervention under Rule 24 and to reverse that denial and direct the admission of the intervenors as parties to the proceedings. Because we find that the restricted grant of leave to intervene may be appealed after any final judgment in the underlying action, we dismiss the appeal.
This is a class action alleging that the defendants, all state correction officials or prison authorities at Attica Correctional Facility in Attica, New York, have systematically violated the constitutional rights of the inmates of Attica's Special Housing Unit (SHU), a segregated and highly restricted disciplinary prison unit. The named plaintiffs are all inmates of New York State prisons who are presently confined in the Attica SHU or have been so confined there in the recent past. They sought to have a class certified under Rule 23, Fed. R. Civ. P., consisting of all persons who have been, are presently, or will in the future be, incarcerated in the SHU. The class is large, transitory and its members are difficult to identify precisely, since the Board of Corrections has not made available the identities of all those confined in the SHU during the relevant period. Chief Judge John T. Curtin, then presiding over the case, certified the class on October 19, 1981.
In their second amended class action complaint,*fn1 filed October 27, 1983, the inmates complain that the conditions under which they are confined are "inhumane, intolerable and are not consistent with concepts of fundamental human decency." They allege violations of their rights to free exercise of religion, to access to the courts and against cruel and unusual punishment, in contravention of the First, Sixth, Eighth and Fourteenth Amendments to the Constitution and the equivalent articles of the New York State Constitution. The inmates also allege that the severity of their confinement deprives them of their Fourteenth Amendment right to due process of law. Finally, they allege violations of the New York State Corrections Law and certain state regulations.
Specifically, the complaint enumerates nine separate claims. First, they claim that the defendants knowingly allow the prison guards to beat the inmates, causing pain, bodily injury and permanent disabilities. Second, they allege that they are confined for twenty-three hours every day in windowless steel cells with plexiglass shields covering the fronts of the cells, and are thus deprived of adequate ventilation. Their third claim is that their medical complaints are not handled adequately, that the defendants do not monitor the inmates' health and that the defendants permit an illegal and indifferent health care system to continue. Fourth, the inmates claim that they are confined for twenty-three hours a day for six months at a time, during which periods their one daily hour for "exercise" is spent inadequately clothed in an exercise room that is open to the elements, unheated, uncleaned and unsanitary. Fifth, they allege that the defendants permit the guards to restrict the inmates' food supply or deny food entirely, that the food is served in unsanitary vessels and that no allowance is made for the religious dietary needs of the inmates. Sixth, the inmates complain of generally unsanitary conditions in their cells, with no cleaning supplies available and with hot water provided only to those inmates who can afford to purchase a bucket. Seventh, the inmates allege that the defendants permit the guards to confiscate the inmates' clothing and force them to remain naked in cells without bedding or running water. Eighth, they complain that they are not permitted access to the prison's legal resources and that their right to privileged communications with their attorneys is routinely violated. Finally, they allege that they are deprived of their right to free exercise of religion while incarcerated in the SHU.
In this second amended complaint, the inmates ask the court to declare that their rights are being violated, and they seek an injunction prohibiting the defendants, their agents and their employees from subjecting them to the unlawful and unconstitutional conditions alleged in the complaint.
While discovery was underway, the inmates found that their situation was deteriorating. Specifically, they alleged that the conditions in the SHU and harassment by the prison guards led one Anthony John ("Mike") Dzeilak, a mentally ill inmate of the SHU, to commit suicide on June 3, 1985. The inmates alleged that the corrections officers who work in the SHU were aware of Dzeilak's mental instability and that they deliberately beat him, provoked him and harassed him into taking his own life. On the strength of these events, and upon allegations of a routine of similar deprivation and harassment affecting all of the inmates in the SHU, the inmates moved on September 20, 1985 for a preliminary injunction (1) to order the defendants to remove mentally ill inmates from the SHU; (2) to order the defendants to alter the method by which guards are chosen for the SHU, replacing the existing seniority system with a procedure for screening and training prospective SHU guards; (3) to enjoin defendants and their agents from harassing or causing harm to certain other inmates who the inmates alleged were subject to abuse akin to that of Dzeilak; and (4) to order the defendants to remove from duty in the SHU eight named correction officers, two of whom (Stranahan and Dylag) are now intervenors in the case.
This was the first formal request for relief against specific correction officers. (The inmates have contended throughout these proceedings that the guards' failure to wear their required identification badges makes their identities difficult for them to ascertain.) In response, Council 82, William Stranahan and Donald Dylag, by Order to Show Cause filed October 9, 1985, applied for leave to intervene as of right under Rule 24(a)(2), or, in the alternative, for permissive intervention under Rule 24(b). They argued in their application that their ability to protect their interests may be impeded if the inmates' requested relief is granted. Specifically, they alleged that, if the inmates' preliminary injunction was granted, members of Council 82 would be substantially affected and that protracted proceedings would be necessary to determine the rights of Council 82 members working in the SHU. Additionally, they alleged that the correction officers' privacy rights would be violated if the inmates were permitted discovery of portions of their personnel records.
Joseph Puma, President of Council 82, claimed in his affidavit that the relief demanded by the inmates would greatly impair Council 82's members' interests. He alleged that the relief, which includes modifications and alterations in the present methods of discipline, safety and staffing in the SHU, would have a "devastating effect upon the rights secured for members of Council 82 by the collective bargaining agreement" between Council 82 and the state. Puma asserted that the preliminary injunction, if granted, would violate the terms of the collective bargaining agreement in several specific respects: First, requiring the guards assigned to the SHU to be screened and trained would violate the terms of the contract relating to the current seniority-based method of selection of guards for the SHU and the contractual ban against "job bumping" (one employee's passing over another who has higher seniority). Second, a decision by the court to remove certain guards would violate the discipline, grievance and "job bumping" provisions. Finally, Puma alleged that the changes in the conditions of the inmates' incarceration (such as the removal of the plexiglass cell fronts) would subject the guards to safety hazards in violation of their contractual rights.
On October 16, 1985, Judge Telesca granted the motion for intervention only "to the limited extent necessary for the [intervenors] to be heard on the [inmates'] application for discovery and examination of certain personnel files belonging to various correction officers" and reserved decision on the remainder of the application.
Judge Telesca finally, on January 28, 1988, granted the inmates' request for a preliminary injunction, which had been filed on September 20, 1985. The preliminary injunction requires the defendants to provide mental health services in the SHU in accordance with specified procedures. Included in the list of procedures are modifications in the staffing of the SHU and the requirement of proper training, monitoring and disciplinary procedures for the guards. ...