Cunningham v. WardCunningham v. Ward
This is yet another in a succession of cases1 from the United States District Court for the Northern District of New York which comes to us after a sua sponte dismissal of pro se prisoners’ complaints. After Lewis v. State of New York, No. 76-2061, 547 F.2d 4 (2d Cir. 1976), we do not need to restate the considerations leading to our determination that dismissal of a nonfrivolous claim is untimely when made before answer and without opportunity to respond on the part of the in forma pauperis plaintiffs, who are entitled to be held to less stringent standards in connection with their pleadings than a plaintiff represented by counsel. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Frankos v. LaVallee, 535 F.2d 1346, 1347 (2d Cir. 1976). Our only question here is whether under Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946), the complaint is either “wholly insubstantial and frivolous” or the federal claim is “immaterial and made solely for the purpose of obtaining jurisdiction.” Id. at 682-83, 66 S.Ct. at 776. While the Northern District judge, Edmund Port, did not make either of these holdings in haec verba, his memorandum opinion indicates that he basically thought this case to have been “without foundation” and “constitutionally unwarranted.” We take it that he meant to say that it was wholly insubstantial and frivolous.
The complaint, brought pursuant to
Wolff v. McDonnell, supra, upon which Judge Port relied, leaves the question open whether “keeplock” is a serious enough sanction to require the procedures necessary for segregated confinement. The Supreme Court stated, 418 U.S. at 571, n. 19, 94 S.Ct. 2963, that its textual decision requiring a limited body of procedural protections applies both in respect to the deprivation of good time and “where disciplinary confinement is imposed.” Footnote 19 goes on to refer to “(t)he deprivation of good time and imposition of ‘solitary’ confinement . . ..” Id. The final sentence states: “We do not suggest, however, that the procedures required by today‘s decision for the deprivation of good time would also be required for the imposition of lesser penalties such as the loss of privileges.” Judge Port evidently equated keeplocking with the Supreme Court‘s “loss of privileges.” We need not determine whether the equation is a sound one and cannot do so on the factual record before us. Footnote 19 in Wolff distinguishes between “disciplinary confinement” and “loss of privileges“; arguably, keeplocking is a form of “disciplinary confinement,” even though it is not ” ‘solitary’ confinement” as that term is generally understood. Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551, 1560, 47 L.Ed.2d 810 (1976), suggests that the question whether even loss of privileges warrants Wolff procedures is still an open one. Our court has agreed. Mawhinney v. Henderson, No. 76-2028, 542 F.2d 1, 3-4 (2d Cir. 1976).2
The second nonfrivolous constitutional argument made is that confinement to one‘s cell under keeplocking conditions as punishment for minor infractions is disproportionate to the offense and therefore violates the Eighth Amendment prohibition against cruel and unusual punishment. Here the offenses for which plaintiffs allege that they were keeplocked for periods of up to ten days ranged from carrying Thermos bottles of hot water to carrying an unwrapped briefcase, and in the case of one plaintiff keeping nude and other pictures on his cell walls. The test has been stated to be whether the punishment is “related to some valid penal objective and substantial deprivations are administered with due process.” Landman v. Royster, 333 F.Supp. 621, 645 (E.D.Va.1971). Individual circumstances weigh heavily in the ultimate determination. See Wright v. McMann, 460 F.2d 126, 132 (2d Cir. 1972). Under the allegations of the complaint, the infractions which precipitated the keeplocks in this case are probably Class C misbehavior under the New York Department of Correctional Services Standards of Inmate Behavior (1975). In any event, the gist of the complaint is that if the conduct is sufficiently minor that no hearing under the Wolff procedures is warranted, it is sufficiently minor that a punishment such as keeplocking becomes disproportionate and thereby cruel and unusual. The State does not meet the dilemma this argument seemingly poses; perhaps it can do so on remand.
Since neither of the constitutional claims is wholly insubstantial and frivolous, and since there is no contention that the federal claim was asserted purely for purposes of obtaining federal jurisdiction, Bell v. Hood, supra, we remand in accordance with the previous authorities cited for further proceedings.
Judgment reversed and remanded.