and because plaintiffs' counsel represented to the Court that plaintiffs had substantial corroborating proof to support their claims. Rape or sexual abuse of inmates by correction officers is abhorrent and cannot be tolerated or condoned. Prison officials must be diligent in preventing such misconduct and punishing those who transgress. Nevertheless, in this case, Fisher's allegations of rape and sexual abuse do not bear up under close scrutiny. Unfortunately, it appears that she and her mother are trying to manipulate the system by capitalizing on this sensitive and important issue.
The Court further notes, however, that its decision here should not be viewed as a ringing endorsement of the situation at Albion. Despite the Court's determination that Fisher's claims of rape and sexual abuse are not credible, there are indications that all is not right at Albion. For example, defendant Schwartz' admitted misconduct was certainly a serious breach of acceptable behavior, and the light punishment he apparently received, i.e., a transfer, would seem to send the wrong message to other correction officers. It was also clearly inappropriate for prison officials to have allowed television cameras into Fisher's living area. Further, Nieves indicated during her testimony that voluntary sexual interactions between inmates, and between inmates and corrections officers, are common at Albion. She further mentioned that some male correction officers grope inmates while frisking them. Nieves also indicated that drug use by inmates is not unusual and that drugs flow freely into Albion. The Court cannot stress enough how important it is for the defendant prison officials to investigate fully and thoroughly these matters and to take immediate and appropriate remedial action, where required.
IV. Requested Relief Inappropriate
Plaintiffs request that Fisher be transferred from Albion to the custody of FBP at Danbury, or in the alternative, that she be transferred to another facility in the DOCS system or in another state. The Court finds that the requested relief is inappropriate for two reasons: (1) the Court lacks authority to order FBP to accept and maintain custody over a state inmate, such as Fisher; and (2) even if the Court were to determine that defendants violated Fisher's federal rights, the Court would have to afford the State of New York and the defendant prison officials an opportunity to correct its own errors and present a proposal for relief, before granting any injunctive relief.
A. The Court Lacks Authority to Order Placement of a State Prisoner Into the Custody of FBP
Fisher is serving a duly imposed state sentence under the custodial authority of DOCS. She is not subject to any type of federal sentence. This Court lacks jurisdiction to order FBP to accept Fisher into federal custody.
It is well settled that a prisoner has no constitutional right to serve a sentence in any particular institution or to be transferred or not transferred from one facility to another. Olim v. Wakinekona, 461 U.S. 238, 249-50, 75 L. Ed. 2d 813, 103 S. Ct. 1741 (1983); Meachum v. Fano, 427 U.S. 215, 225, 49 L. Ed. 2d 451, 96 S. Ct. 2532 (1976); Pugliese v. Nelson, 617 F.2d 916, 922 (2d Cir. 1980).
Even when a defendant receives a federal sentence, a district court "has no authority to order that a convicted defendant be confined in a particular facility, much less placed in a particular treatment program; those decisions are within the sole discretion of the Bureau of Prisons." United States v. Williams, 65 F.3d 301, 307 (2d Cir. 1995). Likewise, when a state has primary custodial jurisdiction over an inmate, a federal court cannot order the delivery of the defendant for service of a sentence in a federal institution. Such an order would be tantamount to a transfer of custody beyond the jurisdiction of the federal court. United States v. Warren, 610 F.2d 680, 684-85 (9th Cir. 1980).
In this case, there is no question that the plaintiff is under the primary custodial jurisdiction of the New York State. She is incarcerated solely on the basis of a state sentence, the legality of which is not before this Court. Accordingly, this Court has no authority to order FBP to accept custody of Fisher.
In support of her position, Fisher cites to the case of Walker v. Lockhart, 713 F.2d 1378 (8th Cir. 1983), cert. denied, 466 U.S. 958, 80 L. Ed. 2d 552, 104 S. Ct. 2168 (1984). In Walker, the plaintiff-inmate brought a civil rights and habeas corpus action against prison officials, alleging that his confinement within the Arkansas penal system violated the Eighth Amendment prohibition against cruel and unusual punishment. The Eighth Circuit held that the uncontradicted evidence of the inmate's notoriety and his claim that a former warden had threatened him indicated that he would face increased danger in the State's prison system if he were allowed to mix with the system's general population, because he was an inviting target for any disgruntled prisoner who wanted to embarrass prison authorities. Therefore, the court held, he was entitled to serve the remainder of his sentence in another jurisdiction where he would be granted the same privileges and amenities as any other prisoner. The Eighth Circuit remanded the case to the district court for entry of an order requiring the Arkansas prison authorities to transfer the inmate to a place of incarceration outside of Arkansas, "either in a federal or another state's correctional institution." Id. at 1383.
The Court finds Walker distinguishable on two grounds. First, the ruling in Walker was based on that court's finding that no facility within the State of Arkansas could safely house the inmate. Id. at 1383. Such a claim has not been made here and there has been no evidence that Fisher cannot be housed safely in another correctional facility within the DOCS system. Second, the Walker court directed that the State of Arkansas provide for the transfer of the inmate to another jurisdiction. The Court did not order FBP to accept the inmate. Thus, Walker does not stand for the proposition that a federal court may order FBP to accept a state inmate into its custody.
B. The Court Must Afford New York State the Opportunity to Correct the Situation
Even if the Court were to find that defendants violated Fisher's constitutional rights, the Court would not immediately grant the relief requested by Fisher, i.e., a transfer to another prison. "Even where there has been a finding on the merits that unconstitutional conditions exist, federal courts should proceed cautiously and incrementally in ordering remediation so as not to assume the role of prison administrators." Taylor, 34 F.3d at 269 (citations omitted). "Federal judicial intervention in the details of prison management is justifiable only where state officials have been afforded the opportunity to correct constitutional infirmities and have abdicated their responsibility to do so." Id. This is especially true when mandatory injunctive relief is sought and only preliminary findings as to the plaintiff's likelihood of success on the merits have been made. Id.
In Lewis v. Casey, 518 U.S. 343, 135 L. Ed. 2d 606, 116 S. Ct. 2174 (1996), the Supreme Court recently addressed the proper method for fashioning injunctive relief in prison cases. In Lewis, the Court reversed an injunction that did not afford state prison officials the opportunity to correct their own errors. 116 S. Ct. at 2185-86. The process set forth by the Court requires that the district court find an injury first, then afford prison officials an opportunity to devise and present an appropriate remedy for judicial review. Id. Citing its decision in Preiser v. Rodriguez, 411 U.S. 475, 492, 36 L. Ed. 2d 439, 93 S. Ct. 1827 (1973), the Court stated that "the strong considerations of comity that require giving a state court system that has convicted a defendant the first opportunity to correct its own errors . . . also require giving the States the first opportunity to correct errors made in the internal administration of their prisons." 116 S. Ct. at 2185.
Similarly, in this case, even if the Court were to find that defendants violated Fisher's constitutional rights, the Court would, pursuant to Lewis, afford the defendant prison officials an opportunity to correct their own errors and present a proposal for relief to this Court before granting any type of injunctive relief to plaintiffs.
V. Amendment of Complaint
The complaint in this case is 94 pages long and contains approximately 396 numbered paragraphs. It is written in a rambling, "scatter shot" manner and, at times, reads more like a cheap dime store novel or a script for a tabloid television show than a pleading in a federal lawsuit. Even more problematic is the fact that it contains numerous false, misleading, irrelevant, highly inflammatory and prejudicial statements and allegations. See, e.g., Complaint at PP 4-7, 35-37, 46-53, 59, 68, 81-86, 95, 107-113, 143-48, 151-54, 191-93, 258-59, 274, 282(b), 283(a), 285-86, 290, 291-301, 312, 317, 319-20, 343, 350-51, 358, 372 and 378. As stated above with regard to Correction Officer Zamniak, there is every indication that counsel did not adequately research and investigate the facts and claims in this case before filing the complaint.
Accordingly, pursuant to Fed. R. Civ. P. 12(e) and (f), the Court hereby orders plaintiffs to submit an amended complaint striking all false, misleading, redundant, irrelevant, immaterial, impertinent, inflammatory, prejudicial and scandalous material from the original complaint, and eliminating all frivolous and unsupported or unsupportable claims. Along with the amended complaint, plaintiffs and their counsel shall each file an affidavit certifying that they have investigated the matter and the representations and allegations in the amended complaint are true and accurate to the best of their knowledge. Failure to comply with this requirement may result in dismissal of the case and/or sanctions pursuant to Fed. R. Civ. P. 11; 28 U.S.C. § 1927; and/or the Court's inherent power.
For the reasons stated, plaintiffs' motion for a preliminary injunction is denied. Plaintiffs shall file an amended complaint in accordance with this decision by August 15, 1997. Defendants shall respond to the amended complaint by answer or motion by September 15, 1997.
The Court shall refer the case to Magistrate Judge Carol E. Heckman for supervision of all nondispositive pretrial matters. Due to its familiarity with the case, the Court shall hear and decide all dispositive motions.
IT IS SO ORDERED.
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT COURT
Dated: July 16, 1997