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CODY v. JONES

July 27, 1995

WILLIAM CODY, Plaintiff,
v.
E. JONES, Supt., Great Meadow Correctional Facility, Defendant.



The opinion of the court was delivered by: NEAL P. MCCURN

 On July 13, and July 14, 1995, the court conducted a non-jury trial in this case. At the close of the proof the court indicated that perhaps it would render a decision from the bench on July 18, 1995. After further reflection, however, and in large part because the court is being called upon, among other things, to interpret and apply the Supreme Court's recent decision in Sandin v. Conner, 132 L. Ed. 2d 418, 115 S. Ct. 2293, 1995 U.S. LEXIS 4069 (June 19, 1995), the court has decided that a written decision is warranted. *fn1" In accordance with Fed. R. Civ. P. 52(a), the court therefore makes the following findings of fact and conclusions of law.

 FINDINGS OF FACT

 For purposes of analysis, the facts can be neatly divided into two time frames. *fn2" The first commences on February 12, 1987, when plaintiff William Cody arrived at Great Meadow Correctional Facility ("Great Meadow" or "the facility"), and runs through March 16, 1987. One day later James Stinson, then Deputy Superintendent of Security at the facility, *fn3" issued two "interdepartmental communications" impacting on protective custody inmates. *fn4" Basically, the first such communication provided that those inmates were to receive a total of three hours out-of-cell time per day. Plaintiffs exh. 25. The second Stinson communication established an out-of-cell meal program, for two meals per day, for protective custody inmates. *fn5" Plaintiffs exh. 26. The primary purpose of those two orders was to implement the Department of Correction's ("DOC") Directive 4948, which will be discussed in some detail herein.

 The second relevant time frame is from March 17, 1987 through July 25, 1987. On that latter date, plaintiff Cody was assigned to C block, company 2. Plaintiffs exh. 3. Defendant Everett Jones, the Facility Superintendent, testified that the C-2 unit was created to house only protective custody status inmates. These two time frames are significant because during the first, plaintiff claims, in essence, that he was not timely placed in protective custody; and that even after he was so classified, he did not receive the attendant privileges of that status, such as three hours out-of-cell time, two of which should have been for meals. Nor, claims plaintiff, did he receive one hour out-of-cell outdoor exercise time. Similarly, plaintiff claims that during the second time period he did not consistently receive two out-of-cell meals per day. He also purportedly did not consistently receive one hour of outdoor recreation during that time. And although it was not heavily emphasized during the trial, plaintiff is also claiming that when he did get to go outdoors for exercise, he was forced to walk through the rotunda where, at times, he was exposed to the general population; and also that non-protective custody inmates were allowed to mix with protective custody inmates during recreation time. Apparently plaintiff believes that his security as a protective custody inmate was compromised by these latter two situations. Plaintiff contends that these various alleged deprivations amounted to a violation of his right to due process under the Fourteenth Amendment, as well as a violation of his Eighth Amendment right to be free from cruel and unusual punishment.

 There are several Great Meadow "interdepartmental communications" as well as two DOC Directives, all of which were received into evidence during the trial, and which help to place plaintiff Cody's claims, particularly his due process claim, in context. On August 8, 1986, R. Juckett, a captain at Great Meadow, issued an interdepartmental communication advising all corrections personnel that effective that date, "Inmates being processed for Voluntary or Involuntary protection status will be afforded their privleges [sic] unless lost through the disciplinary process, or indicated in writing by a supervisor." Plaintiff's exh. 12. A couple of months later, on October 1, 1986, Great Meadow implemented a procedure whereby an inmate requesting voluntary protection custody status would not be confined to his or her cell for more than seventy-two hours, after which the inmate must be transferred to another housing unit; scheduled for transfer to another facility; released from such confinement; or placed in protective custody. Plaintiffs exh. 9.

 In addition, prior to plaintiffs transfer to Great Meadow, on November 6, 1986, DOC issued a Directive, classification 4948, which was the subject of much testimony during the trial. That Directive sets forth "the minimum conditions of confinement for inmates in Protective Custody Status within the Department [DOC]." Plaintiffs exh. 6. Several parts of that Directive have direct bearing on this case because plaintiff Cody claims that he was not regularly given those minimum conditions of confinement from the time he first arrived at Great Meadow in February, 1987, until he was eventually transferred to the C-2 unit in July, 1987. As previously mentioned, one of plaintiffs objections to his confinement at Great Meadow is that he was not afforded the opportunity to be out of his cell for the three hour minimum provided for in that Directive. *fn6" Of the three hours out-of-cell time required by that Directive, a minimum of one hour must be scheduled for outdoor exercise. Id. at 2, P IV(A). That Directive further provides that the additional two hours out-of-cell time be used for, but is not limited to the following activities: "1. Gallery or yard recreation, 2. Meals, 3. Telephone calls, 4. Showers, 5. Visiting, and/or 6. Gallery programs." Id. Gallery recreation is defined as including "opportunities for inmates to participate in passive board games, watch television, play cards, read, or write outside of their cells." Id. at 2, P IV(B)(2). With respect to meals, Directive 4948 explicitly states that "Inmates in Protective Custody Status will be afforded the opportunity to participate in two meals per day outside of their cell." Id. at 3, P VI(C)(1). The Directive does include exceptions to that two meal out-of-cell policy, but neither of those exceptions are applicable here.

 Provision for out-of-cell exercise is not limited to protective custody inmates. In another DOC Directive, this one dated March 18, 1976, it states, in relevant part that "Every inmate shall be permitted to exercise outside of his cell for at least one hour each day and where weather permits such exercise shall be permitted out of doors." Plaintiffs exh. 8, at 5, § 301.5(b) (emphasis added). Stinson testified that this Directive was in effect in February, 1987, when plaintiff first arrived at Great Meadow. Likewise, in an October 1, 1986, Great Meadow Interdepartmental Communication from then Deputy Superintendent of Security Hollins, it directs that "Effective immediately, each population inmate who is on cell confinement is entitled to a one hour daily exercise period, unless he is deprived of such exercise period by lawful deprivation order, by medical order, or at administrative direction." Plaintiffs exh. 10. Just one day before that communication was issued, Hollins sent out a similar communication detailing the procedures to be followed by facility personnel in connection with the exercise period for, among others, protective custody inmates. See Plaintiffs exh. 11.

 Especially with respect to plaintiffs due process claim, it is necessary for the court to make fairly detailed and specific findings of fact as to exactly what his conditions of confinement were from February 12, 1987 through July 25, 1987. Before being transferred to Great Meadow, plaintiff Cody had been incarcerated at Auburn Correctional Facility where he had been afforded voluntary protective custody status based upon the nature of his crime. Plaintiffs exh. 4. Immediately upon arriving at Great Meadow, Cody testified that he requested, inter alia, that he wanted to continue his voluntary protective custody status. Despite the seventy-two hour time frame for acting on a protective custody request provided for in the facility's interdepartmental communication of October 1, 1986, it was not until February 19, 1987, seven days after his arrival at Great Meadow, that the acting superintendent approved plaintiffs request. Plaintiffs exh. 13; see also plaintiffs exhs. 14B and 14C; and Response to Interrogatories (Dec. 20, 1991), at 4, No. 7. Stinson explained that this slight delay was bureaucratic in nature; it took five days to process the paperwork through the hierarchy and to advise plaintiff that he had been approved for protective custody status.

 From February 12, 1987, through February 13, 1987, plaintiff Cody was housed in D-1, a unit for transients. Response to Interrogatories at 4, No. 5. Mr. Stinson testified that all incoming inmates, regardless of status, are temporarily assigned to D block. On February 13, 1987, plaintiff was moved from block D to the E-8 unit, which was used to house protective custody overflow. Response to Interrogatories, at 3, No. 3. Following an interview with prison officials, *fn7" on February 24, 1987, plaintiffs status was changed to protective custody, but he remained on the E-8 unit, with a mixed inmate population, from that date until July 25, 1987.

 Between February 13, 1987, and March 17, 1987, while plaintiff was housed on the E-8 unit, he testified that he did not have the opportunity to go outside to exercise. In fact, plaintiffs recollection is that he was first given that opportunity on approximately March 25, 1987. As will be more fully discussed below, plaintiffs recollection is undermined somewhat by several notations in the E-block log book indicating that outdoor recreation was available on that block prior to March 25, 1987. Regardless, plaintiff Cody likewise testified that until March 17, 1987, he was required to have all of his meals in his cell. *fn8" Also, before that date, plaintiff stated that he had no opportunity for gallery recreation time, such as playing cards, playing board games, or watching television. After a protective custody status inmate finishes his or her meal, recreation activities such as those just listed are available for the remainder of the time allotted for the out-of-cell meal.

 During the trial, plaintiffs claim that he received absolutely no outdoor recreation from February 12, 1987, through March 17, 1987, was eroded somewhat when he admitted on cross-examination that during the first month or so on which he was housed on E-8, exercise was generally offered in the morning. Consequently, because plaintiff was moving onto that unit on February 12, 1987, he did not arrive in time for exercise that day. Furthermore, relying primarily upon portions of the E-block log book, it was shown through cross-examination of plaintiff that on March 1, 1987, he received recreation time. See Plaintiff's exh. 15, at p. 70. In the face of a specific notation in the log book that plaintiff had recreation time on that day, plaintiff claims, incredibly, that the Corrections Officers ("C.O.") just put his cell number in the log book, but that they did not actually open his cell door so he could leave for recreation time. In any event, the credible proof adduced at trial shows that on February 18, 1987, and again on February 24, 1987, plaintiff was escorted out of his cell for a visit, and in fact, the visit on the twenty-fourth was extended - from 9:23 a.m. through 2:19 a.m. Id. at 55, and 63-64. Because of those visits, which were out-of-cell, plaintiff necessarily missed the outdoor exercise period on those days. By the same token, however, although plaintiff missed the one hour exercise time on those days, he enjoyed significantly more out-of-cell time by virtue of those visits than he would have received had he simply participated in the recreation time.

 Less than one week later, on March 2, 1987, plaintiff again was off the unit for an extended period of time - from 9:20 a.m. through 3:10 p.m. Plaintiff had another out-of-cell visit on that day. The log book indicates that the inmates on that block returned from the yard at 3:22 p.m., shortly after plaintiff had returned from his visit, and so he again missed an exercise opportunity due to a visit. See id. Then, on March 6, 1987, plaintiff left the facility at 11:20 a.m. for a medical trip, and he did not return until 5:56 p.m. that same day. Id. at 77-78. The log book shows that E-block inmates returned ...


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