*3
LUMBARD,
Before
MANSFIELD
Judges.
OAKES, Circuit
Judge:
MANSFIELD,
aceompamed by
Circuit
criminal conduct on the
inmates, undoubtedly
of some
wit-
appeal
certain
This
guard,
nessed
others. One
William
York
New
State’s Attica Correctional
Quinn,
hostage
pris-
from the
removed
Facility
security
(Attica),
a maximum
retaken,
on before it
died of
severe
prison,
of orders of the
seeks reversal
injuries
up-
during
head
sustained
United
District
States
Court
rising, and three
succumbed
inmates'
York
Western District of New
entered
knife wounds.
de-
October 6
morning
nying
September 13, 1971,
preliminary
their
for a
restraining
injunction
New York
defendants
State Police and other State
engaging
violating
employees, acting
allegedly
in conduct
under the
direction
rights
and dis-
Commissioner of
constitutional
Corrections
missing
York, regained
complaint
State
New
insofar
control of
*4
sought
permanent
injunctive
resulting
force,
and Attica
armed
relief
in the
permitting
death
an order
it to
maintained
of an additional
29 inmates and 10
inmates,
hostages,
injuries
as a class suit on
of
to numerous
others
behalf
all
(83 required
surgical
approximately 2,000
treatment)
Federal
number.
and
jurisdiction
(in
property
destruction
of
of
was invoked on
basis
addition to
already destroyed
uprising).
1983 and 28
U.S.C.
U.S.C. §
§
For
reasons hereinafter
stated we af-
evening
September 13, 1971,
On the
of
part,
firm the district
decision in
court’s
lawyers
group
a
headed
Herman
part,
it in
and
the case
reverse
remand
Schwartz, Esq.,
professor
a
of law at
proceedings
for
further
accordance University
Buffalo, acting
with this decision.
for all inmates of A.ttica on the
basis
having
attorney
been
The action
follow-
of them
is based
events
some
ing
prior
bloody recovery by
proceedings,
New York
unrelated
com-
September menced an
of control of Attica on
action in the
State
United States
13, 1971,
lives,
a
un- District Court
at
cost of 43
after
for the Western District
negotiations
York
At-
successful
to terminate
New
entitled “Inmates of
peacefully
four-day
Plaintiffs,
Facility,
inmates’
riot. Be-
tica Correctional
ginning
against
September
on
certain
Commissioner
of Corrections
Mancusi,
revolted,
inmates
Attica
took over
Russell G.
and
Oswald
Vincent
portion
Superintendent,
control of a
of the
known
Fa-
Attica Correctional
D,
cility.”
They sought
as Cellblock
seized and held 38 cor-
access to Attica
employees
against
preliminary injunction
rectional
civilian
and
and a
in-
officers
demands,
hostages, presented
terrogation
September
prisoners.
a list of
On
negotiations
subject
14, Judge
which became
Curtin denied the
State,
representatives
taking testimony
and
after
Dun-
of Walter
hostages
bar,
unless
Deputy
threatened
to kill
Executive
Commissioner
The riot con-
Department
were met.
demands
York
of Cor-
New
State
September
Services,
tinued until
and was
rectional
that no
the effect
September
21, 1971,
14 the names of Mariano
tember
Ball heard the
Justice
gave
application,
Gonzales and Peter Butler were added as
reserved decision and
Rockefeller,
plaintiffs,
Myers
September
and Nelson
Gov
Mr.
until
28 to file a
York,
supporting
representa-
ernor of the
of New
as a
State
memorandum and
Attorneys
(Assistant
defendant.
tives of the State
approximately
time, acting
Richman)
At
the same
General Ricotta
and
until
Schwartz,
attorney
reply.
behalf of Mr.
on
October 5 to
Myers, Esq.,
Although
apparently
named
com-
Willard H.
Justice Ball has
separate
proceed
prepared
action
menced a
on behalf
been
Supreme
plaintiffs
lawsuit,
pending,
in the
York
Attica inmates
New
which is still
County
applied
preferred
apparently
Court for Erie
forum
the federal
Hon.
E.
for an
Carman
Ball of
to file the
chose
memorandum
attorneys
granting
Ball,
promised
order
access to Attica
to Justice
or to obtain an
Sep-
for consultation with inmates. On
extension of time to do so.
investigations
yet
“newly
showing
had as
instituted
discovered
evidence”
personnel
It
protect
at
need
correctional
Attica.
access
order to
rights
Rock-
was further elicited
Governor
constitutional
mony
Testi-
inmates.
efeller, upon
the recommendation Hon.
then
taken from James Wat-
Harry
Presiding
Goldman,
son,
D.
24-year
Justice of
old National Guardsman
Appellate Division,
Depart-
School,
Fourth
and a student at Buffalo Law
ment,
appointed
panel
had
of five im-
regarding reprisals
taken
correctional
partial
visit
immediately
observers
officers
examine
at
“to
conditions Attica
the end
uprising
quelled,
after the
in-
had been
large may
public
that the
cluding
forcing
be assured
physical abuse, assaults,
rights
that the constitutional
of the in-
gauntlet
to run
of correc-
According-
protected.”
mates are
tional officers who struck them as
ly
preliminary
denied
in- passed through,
Curtin
threats, racial
slurs
junctive
to make a
obscenities,
failure
suf-
had
he
witnessed
showing
need.
ficient
of immediate
13, 1971,
he
when
company
sent into
members
were
days
Two
Rockefeller
later Governor
immediately
Attica to restore
lowing
fol-
order
appointed Deputy Attorney
Rob-
General
Following
being recaptured.
its
investigate any
ert E.
crimes
Fischer to
hearing,
purported
the inmates’
during
after the
committed at Attica
permitted by
counsel were
the Commis-
period
Beginning
uprising.3
sioner
of Corrections to interview
September,
latter
Fischer and
*5
daily
approximately
mates
at the rate of
began in-
several
of
members
staff
his
100)
per day (or
dur-
20
ing
a
of about
total
terrogation of Attica inmates.
five-day period
September
from
the
September 16, 1971,
Curtin
On
inclusive,
the
17 to 21
assurance
with
temporary
reopened
the
for
that such
could be continued.
interviews
injunctive
upon
Schwartz’s
Mr.
plaintiffs’
to the effect
September
submission of
affidavit
counsel
On
being
to applied
that counsel
denied access
for an order
were
court
to
district
the
legal
giving
interrogation
purpose
(1) enjoining
Attica for the
of
defendants’
clients,
upon
had
except
his fur-
to their
and
each inmate
advice
after
of inmates
ap-
and thereafter
oral
had been
counsel
ther
statement that he
“consulted with
counsel,” (2) en-
by
(Watson)
proached
person
only
presence of
a
with
jury
grand
ap-
by
grand
September
and
were
15 five
said
members
before
2. On
or
any
relating
concerning
juries
or
to
pointed
the Governor:
Secretary
Goff,
com-
or hereafter
H.
all acts heretofore
“Donald
General
and
alleged
to
of
omitted or
New
mitted or
the
Association
of
Correctional
to,
omitted, relating
York;
Jones,
B.
Editor and
or
been committed
Clarence
with,
way
News;
any
or occur-
connected
the
in
of
Amsterdam
Publisher
during
possession
MacCormick,
ring
and
the
control
Direc-
Austin
Executive
Association,
Inc.;
portion
Fa-
of Attica Correctional
of a
tor of the Osborne
facility,
cility by
Nunez,
located
Di-
inmates of said
National Executive
Louis
Inc.;
Wyoming County,
America,
or
Aspira
on
between
and
rector of
Septem-
9,
September
Patterson, Jr.,
and
of the
member
about
Robert P.
resumption
Belknap
13,
Patterson,
the
&
1971 and
ber
law firm of
possession
lawful
thereof
and control
Webb.”
to,
including,
limited
Report
but not
Panel
to
authorities
of The
See
Goldman
any
Rights,
provision
re-
of law
violations
lating
Protect Prisoners’ Constitutional
of criminal
18,
the commission
to
November
1971.
investigation,
omissions,
the
acts or
prosecu-
apprehension
Jury
detection,
29, 1971,
and
October
a Grand
On
persons
person
Wyoming
pursuant
believed
County,
the
tion of
convened in
and of
the same
to
committed
dated
Executive Order
to
Governor’s
investiga-
arising
1971,
purpose
29,
out of such
of ex-
offense
October
prosecution,
amining
the conduct
and
tion and
into
agents
public servants,
persons,
“[A]ny
all
actions and
criminal
;
proceedings
.
.
.”
officers
.
had or taken
which
destruction,
missing
complaint
dis-
joining
for failure to state
confiscation
grounds
property,
posal
plaintiffs’
personal
maintenance of the action
correspond-
including briefs,
transcripts,
a
suit and
failure to state a
class
entitling plaintiffs
(3)
ence,
requiring
claim
to relief.4
to
etc.,
defendants
photographs
deposit
the court all
with
hearing
27,
September
At
held
a
relating
the “disturbance”
and films
to
forego-
by Judge
1971,
Curtin
n
period September
during
at Attica
ing applications,
disclosed
defendants
might
declaring
(4)
9-13,
action
recognition
right
to
pursuant
to
as a class suit
maintained
being inter-
consult with counsel before
furnishing
F.R.Civ.P.,
plain-
(5)
Rule
rogated by representatives
Attor-
“name, prison
tiffs’
counsel with
ney
respect
office with
General’s
each
present
whereabouts
number
uprising,
had distributed
Fischer
Attica
(6)
plaintiffs,”
class of
member
English and
all inmates a notice
plain-
provide
requiring
defendants
(a
Spanish
September
dated
autopsy
re-
and other
tiffs’
English
printed
copy
of which
regarding
persons
in con-
ports
killed
advising
footnote),5
of his
each inmate
Attica,
(7)
uprising, and
nection with
lawyer
speak
before
monitors,
appointing
federal
representative
At-
questioned
Attica,
throughout
have free access
giving
torney
him
office
General’s
injunction
insure
enforcement
writing
ad-
option
the name and
de-
interrogation
lawyer
lawyer
dress of
so
property.
of their
struction
asking
might
be informed
lawyer
speak
him.
ap-
appoint a
defendants
arrange-
pursuant
Rules 23
plied
Furthermore,
for an order
a result
F.R.Civ.P.,
(b)
(6),
dis-
(c)
(1) and 12
Panel,
three
made
the Goldman
ments
gained
during
the information
prior to,
As
result
and after
occurred
inmates, plain
their' interviews of
Thursday, September
period
*6
September
an
27 filed
Monday, September
on
through
tiffs’ counsel
adding
complaint
five additional
amended
1971.
Champ
(Blyden, Clark,
plaintiffs
lawyer'
you
speak
named
to a
be-
If
want
to
adding
Holly)
en,
Robert
and
you
your
Jackson and
you
questioned
are
and
fore
General,
Deputy Attorney
Fischer,
lawyer,
B.
his name here.......
write
own
complaint al
(if
The amended
a defendant.
and his address
...................
leged
their
that since
r-e-establishment
known)
that he will be informed
here so
had,
Attica defendants
you
control over
If
do
.........................
your
lawyer
of the inmates’ constitutional
violation
own
or cannot af-
not
rights, assaulted,
abused
threatened and
appoint
one, a
one free of
ford
court will
inmates, kept
you
them an “incommunicado
appoint
charge.
a
If
a
to
want
status,”
prompt
to
them
access
you,
denied
lawyer
speak
to
with
check
attorneys
personnel,
and medical
their
box n
to
with
limited their interviews
you
lawyer now,
want
a
If
do not
to see
weekday
(8)
per
eight
to six
you
hours
and
you
up your mind,
or
make
cannot
Saturday
Sunday,
on
confis
you
hours
and
again
ques-
will
when
be asked
destroyed
legal
and
and other
your
cated
you
up
tioned and
can make
mind
belongings
personal
a
and commenced
at
time.
interrogations
by cor
sign
series of official
your
inmate
Please
name and
plain
put
rectional officials without notice to
number,
envelope
this notice
according
attorneys
and
given
you,
tiffs’
without
envelope
give it
seal the
and
warnings
by
required
them
Miranda
person
paper
to the
who handed this
Arizona,
you.
384 U.S.
86 S.Ct.
(1966).
]Q weapons. or other Others forced to 6, 1971, Judge were On October Curtin de- strip through gauntlets and run naked nied inary prelim- guards armed with used injunctive clubs which relief and dismissed to strike the they passed. inmates complaint bodies sought their per- insofar as it dragged on the Some were permission manent relief and to maintain ground, “X” marked with an some pursuant suit as a class action to backs, upon spat their or burned some Rule accepted F.R.Civ.P. He as true matches, poked with and others in the purposes findings for the his the tes- genitals arms Accord- given or with sticks. timony respect physical with ing inmates, testimony prisoners. abuse and harassment of He bloody appar- or wounded inmates although slurs, night- were found that racial ently orgy spared brutality. harassment, this time threats im- and other proper continued, conduct had there was testimony There was that hand hand physical almost no or abuse evidence physical the in- with violence brutality September after and that mates or further went threats of death Superintendent Mancusi and others brutality. officers, address- Correctional charge physical had not countenanced “niggers” ing “coons,” inmates as or part of their abuses or threats on the “get rid of” them or shoot threatened accepted subordinates. He Mancusi’s instance, or kill In them. at least one testimony private property that inmates’ testimony guard ran, pointed a returned,6 safeguarded would be telling gun head, him that at an inmate’s steps concluded that view of going die, click- was and started he being protect inmates’ con- taken following trigger, ing the in- rights belong- personal stitutional ings some mate nights kicked and beaten. On of con- of evidence absence guards group the cell visited physical abuse, preliminary tinuation death, inmates area and threatened with granted. injunctive relief should not be guns Sev- pointing cells. into sticks purpose would that no He further decided personally com- had eral witnesses by permitting the suit to be be served Pan- plained members of Goldman prosecuted individ- as a class action since visiting figures Attica public el and to precluded Congressman Rangel, ual would not (e. g., Senator damages.7 Eve). Assemblyman seeking relief or individual Dunne and preserve given up. issue on 6. Plaintiffs have not taken were Instructions undamaged property appeal prisoners’ far as further district court’s original preliminary findings possible, returning own- relief and denial of it to prop- respect destruction to destruction of did not know ers. He perty, probably property. incon- testified He because further of usable replace steps the fact taken to of the evidence and were clusiveness already eye glasses For the destruction had and dentures. since restore testimony unlikely recur, equit- is confirmed occurred and most Panel, instrumen- able One which was be ineffective. the Goldman returning prop- sorting, bagging Jackson, mate, that on testified William tal participated erty prisoner-owners had been 14-15 he *8 resulting clean-up cell from the when certain elsewhere debris relocated riot, filling inmates’ because with became uninhabitable wheelbarrows blocks scooped belongings onto a that then the riot. were away. According dump truck and carted eye appeal belongings 8, 1971, to Jackson the included we heard On October Sep- legal papers, glasses, order entered tooth Curtin’s books and from materials, denying preliminary hobby 28, 1971,' which brushes and all tember interrogation junctive against “perfect” not were in and had relief condition counsel, any damage. had been the other which suffered water On without inmates judgment subject separate hand, Superintendent testified the Mancusi made 54(b), quelling pursuant the F.R.Civ.P. that the of the riot to Rule after premises appealed property plaintiffs from his were littered with When later both 6 and was water and contaminated dated October soaked orders up gas. damaged appeals property piled heard on were consolidated and The and out in the the clean- moved course of November 20 dehumanizing world, and is so outside
Discussion oppressive modified that it should be In this action state con respects.8 some victed state courts for violation In has the meantime the State equitable of state laws seek federal investigate duty prosecute all to and the respect state officials with to may including inmates, persons, arising conditions out of in a a riot state engaged be have in criminal conduct prison. We are asked to un intervene during uprising. fore, In after and the theory der 42 on U.S.C. 1983 the § investigation such an is en each inmate defendants' conduct violated protection to of his constitutional though titled rights, rights, civil even condi federal subject are to such restrictions peculiarly tions in state are institutions required reasonably necessarily However, a matter of state concern. light pursuant to his of his incarceration question may whatever toas some charges. prior on conviction other judicial wisdom federal interven complex problems tion in delicate and seeking preliminary injunc In administration, case, prison plaintiffs tive relief assumed the burden continuing specific involves claims of showing probable mer success on the physical cruel and inhuman abuse of irreparable injury or, its some where inmates, extraordinary exception showing probable success is uncer question al. of whether Furthermore the tips tain, hardships that the balance of judicial exhaustion state remedies decidedly v. Clairol Inc. their favor. required prisoners’ in similar should be 1968); Co., (2d F.2d 389 264 Cir. Gillette presently suits under 42 1983 is U.S.C. § Corp. Chrysler Corp., v. Checker Motors judice sitting sub en before this 1969). (2d Here F.2d Cir. Rodriguez McGinnis, al., banc in et complete to discloses failure record 1971); (2d United 451 F.2d Cir. respect their sustain burden with al., McGinnis, ex rel. Katzoff v. et States interrogated they claim that disregard 1971); (2d and Unit F.2d 558 Cir. federal constitutional of their McGinnis, Kritsky v. ed ex States rel. rights. al., (on appeal from deci et Dkt. #35253 any evidence of There is no substantial 1247). N.D.N.Y., F.Supp. sion of prisoners. questioning improper Accordingly proceed merits. we con- contrary, the record reveals respon- tragic deep- part of on the at Attica scientious effort The events respect ly only inmates’ public officials affected vital interests sible rights choose, including directly involved, remain if those silent prior speak consulta- personnel, but of without and correctional refuse large. public presence of public wants tion with legal Superintendent Man- facts, prevent- counsel. know view own interrogation by any prohibited led ing conditions cusi has the recurrence investigations no evidence prison personnel and there is uprising. Public single interrogation pur- already since instituted such have pose determining testified September 13 whether event quali- competent and before at Attica Numerous that existed Colvin. conditions including lawyers, or intoler- members uprising inhumane were fied Legal Edu- Society, & able, concept Legal conditions NAACP Aid whether Guild, Lawyers necessary, security Fund, National of maximum cational Union, prisoners to Center Liberties the restriction of Civil whether American cells, National cramped isolated Law, life in for Constitutional *9 McKay, New York of of 8. a committee B. Dean Robert Chairman, University School, judges, to Chief Law five state court headed investiga- Stanley impartial Fuld, acting the at re- a full and H. conduct aspects quest Rockefeller, Attica of the of all named a of Governor tion committee, uprising. of which nine-member citizens
21 obtaining Lawyers, of have ral- of such evidence Conference Black would be conducting thoroughly support, lied to the inmates’ scrutinized. Well aware risks, interviews, Attorney attorney-client and these members of the scores they taking open steps as consider General’s staff have assured us in such other they propose protect proceed inmates’ consti- court that to advisable to the most rights. addition, cautiously. representation In members This tutional has since Report the have enlisted been confirmed Panel the of the of the Goldman support Panel, Deputy Bar As- York Goldman which states that New State Attorney De- the Fourth Judicial General Fischer advised that sociation issuing partment supplement efforts of “he to written instructions or providing dering county warnings every Miranda local bar associations case” 14). (p. avoid con- qualified to sufficient counsel might otherwise flicts interest Notwithstanding these assur develop. plaintiffs injunction ances ask for an Attorney General’s Members of against any interrogation of inmates un necessity acutely aware of staff are presence less it is conducted in the of the of the constitu- for careful observance inmate’s or the first counsel inmate has rights questioned tional them, by legal been advised counsel. Such an giving necessity including order, however, beyond go would what is Miranda, suspected warnings those to necessary rights protection for the having Indeed acts. criminal committed here, they of the inmates since have been strong insur- interest in has a the State right legal of their counsel advised warning ing will be appropriate that the been offered the services targets given any are the inmates who qualified lawyers, numerous of which any obtained suspicion, evidence since many inmates have availed themselves. their constitu- them in violation from instance, reveals, The that of record upon rights suppressed would tional subsequent prosecution plaintiffs, named talked 8 6 have Miran- them. Roger attorney times, at with an least 5 Arizona, S.Ct. 86 U.S. da 384 v. having by lawyers Champen had visits 11 (1966). 1602 Blyden and Herbert 15. Under cir cumstances, including the fact that event, equitable any relief is In great already majority of inmates have further reason not warranted represented by legal pri- counsel obtained should be if statement proceedings,9 there is no substantial his constitution in violation of inmate any been ad risk that inmate has not remedy adequate rights, he has an al right or that he vised of to counsel suppress in by way a motion law request fail to counsel if he wishes will seeks proceeding in the State which interroga lawyer presence at his of a Paulin, People N.Y.2d 25 v. use it. tion. (1969). 445, 450, N.Y.S.2d may anticipate, of the wide requested appellants in view We public order Attica, by forcing also, appointment concern about any prosecutions interrogees in which legal upon later event of go representation, offered were an inmate’s statements such wish surrounding used, the beyond 'step deemed re- heretofore circumstances Blyden, pres- attacking instance, pursuant X. Herbert § For U.S.C. Attorney’s year ently serving to 20 sentence York District a 15 the New [County robbery, prisoners plea guilty bis to armed waiver form use consenting sign, requester a leader of an indictment were is under pres- uprising in the Manhat- with or without which occurred be interviewed (Tombs) pris- counsel, ground that Men on the Detention for ence of tan House of Blyden October, also See oners have constitutional (S.D.N.Y.1970), F.Supp. Hogan, at or before advice of counsel plaintiff sign in a a named the waiver. in which he is asked of Tombs suit on behalf class
22 they speculation might protection quired a citizen’s Their for the be sub including rights, ject reprisals those re administrative Sixth Amendment by Supreme maining prescribed cooper in Mi- refusing Court silent or for Illinois, randa, supra, interrogators only unsup Escobedo v. ate with is not 1758, 478, L.Ed.2d 12 ported 378 84 S.Ct. U.S. but it is refuted the record evi ap- logic (1964). same were If the pa 977 dence. No inmates have been denied prohibit plied generally, role, it would “good privileges time” or other be interrog- official law enforcement cause of their to talk inter refusal when in- ating anyone pending criminal rogated. in a Since correctional authorities vestigation lawyer’s first hav- a without play part interrogation, no in the which appointed ing to consult retained or being solely been by Deputy is At conducted In our prospective witness. with the torney staff, is General Fischer’s there step Fur- is unwarranted. such a view thermore, little is likelihood that the Attica staff a request made of is where identity even aware of the of inmates respect to witnesses court with federal Superintend who have refused to talk. interrogated criminal in state Mancusi ent any has disclaimed under oath rep (a Grand vestigation, Jury having the case disciplinary as is here action based on such Wyoming convened in been Furthermore, appeared when it risal.10 sup- County), precedent find no can prisoners might we pa that some denied which, ad- in porting intervention federal charges, role because of administrative potential for exac- to its dition obvious the Goldman Panel notified Parole, Board might relations, erbating federal-state their release. See ordered intrusion unwarranted Report, p. constitute basis Goldman Panel No 15. proceed- pending upon state criminal shown, therefore, mandatory ap is 37, Younger Harris, ing. stage 401 U.S. pointment v. be Cf. (1971); 746, L.Ed.2d 669 S.Ct. 27 91 Douglas re cause the risk of administrative Jeannette, City U.S. 319 prisals. v. Denial of (1943). 877, 157, 1324 is, 87 course, prejudice 63 S.Ct. L.Ed. their without process rights any disciplinary due urge excep Plaintiffs that an might proceeding that instituted principles tion to these well-established McGinnis, against them. See Sostre v. interroga warranted in the case of is 1971) (2d 442 F.2d 194-199 Cir. prison, since tion inmates of (en banc); Follette, 314 Carothers v. custody” fur “in and their failure (S.D.N.Y.1970). F.Supp. 1014, 1028-1029 inquiries response nish information representatives may result it comes to risk state When physical reprisals form future abuse and harassment administrative in the good inmates, parole eligibility, picture differ loss of is denial of somewhat privileges time, or within conduct testified denial of other barbarous ent. as true various and taken incarceration as witnesses Attica. Plaintiffs’ purposes prior unrelated Curtin for the result of convictions for beatings, interlocutory offenses, strip them it does not decision—the while running torture, abuse, rights, physical Johnson Sixth Amendment see gauntlets, cruelty Avery, whol 89 S.Ct. and similar 393 U.S. —was ly beyond any (1969); maintain United needed to L.Ed.2d States, Mathis v. force society L.Ed. It what our U.S. 88 S.Ct. order. far exceeded (1967), officers does not confer tolerate on the 2d 381 will rights custody prison greater those than of defenseless to counsel the law in them incarceration, it Although walls. outside of the ers. lawful of citizens Although toilet, approximately stalls be- with shower bath bowl and segregation ringleaders up- section, their in the been lieved separate nothing rising placed re- lias to do with there Attorney housing facility cooperate Gen- HBZ sec- known as the fusal interrogation tion, Gold- with cells of them. See cell block eral’s a modern p. Report, bed, wash Panel size and usual man of standard
23 by said, deprives racial and similar misconduct prison slurs has often been (e. by many rights by prison personnel, enjoyed found others which was ers of g., travel, continuing occupation, privacy, Curtin to be choice of others), His v. of his decision on October 6. and Johnston, Price time association with by 285, 266, since been confirmed 68 S.Ct. conclusions have 334 U.S. (1948), Panel, reported on are 92 which L.Ed. 1356 Goldman against 18, 1971, protection it had received cruel November that still entitled to Eighth by regarding punishment complaints harass- continued and unusual danger Corporal punishment of ment. It “The Amendment. concluded continues, disapproved how- harassment of inmates has been unjust “necessary ever, retalia- penologists except where the likelihood injury, inflammatory parole tory protect from self or others acts one’s injury prevent escape, or serious and other areas remains.” Goldman still As property.” Report, pp. 20-22, American Correctional 36. Clarence Panel sociation, Jones, panel, Stand testi- Manual of Correctional member that B. (1966), p. 417, quoted Land atmosphere fied in Attica con- ards that the (E.D. Royster, F.Supp. hostility” 621 man 333 v. tinues be one “controlled 196). Va.1971). corporal guards (R. p. if But even some and inmates between may permitted punishment under be It steps is true that some have been Constitution, the mistreatment against taken to insure recurrence of cruel amounted to inmates this ease such conduct on the of correctional punishment violation of and unusual instance, officers. For three moni- state Eighth rights, Wil their Amendment appointed, tors been have and on October 130, 136, Utah, L.Ed. 25 v. 99 U.S. kerson 5, 1971, requested the Governor assist- McMann, (1878); Wright 387 v. 345 Department ance from the United States 1967); (2d Jackson v. 525 Cir. F.2d Justice, Attorney to which the Gen- 1968) (8th Bishop, Cir. F.2d 579 404 responded eral of the United States J.); (Per Blackmun, Mc Sostre v. C. stating October 19 that he had or- 1971) (2d Ginnis, 191 Cir. 442 F.2d Rights dered the Civil Division to enjoined (en banc), where vestigate prisoners’ complaints of beat- violation,” “danger of recurrent there is ings Although and harassment. all of Co., T. 345 v. W. Grant United States salutary, they appear measures are these 629, 633, L.Ed. 1303 73 S.Ct. U.S. against repe- to be insufficient to assure (1953). tition of misconduct. three mon- The itors, instance, present are at Attica If the abusive conduct of only during day-time hours and hence guards prison represented single had any night-time cannot observe harass- recur, incident, unlikely or short-lived alleged. ment, repeatedly which has been or if other corrective measures had been suggestion help As for Civil-Rights guarantee against repetition, taken to in are not advised Division we junctive might denied, despite any steps im- taken to the heinous conduct. character Attorney plement the direction General’s (2d Belknap Leary, See F.2d agents dispatch than other 1970). Here, however, Cir. the conduct Investigation inter- Federal Bureau of prison guards, police of some of the state prisoners. view some of the personnel, and correctional as testified to, only analysis was here not it extended the situation brutal but In last period days, prison- over unique plaintiffs, of at least several in that is- occurring keepers, ers, mercy serious one incident much at the later, e., below, surreptitious lining up testimony many whom, i. on the striking guards already subjected to bar- inmates inmates in A Block on testified and mistreatment. barous abuse 250-51). guards’ reprisals has (R. pp. major Jackson In addi wave testimony passed. tion there the record before probably re extensive garding night-time harassment, threats, us, however, court was district assuming, justified regard to the further without In counsel claim] steps proof, adequate tak- would be affirm we plaintiffs’ the district court’s denial protect further en to maintain the reprisals, perhaps sophisticat- issue, of a more suit as a action. class As to *12 plaintiffs satisfy ed subtle Under the circum- nature. failed to certain have injunctive preliminary requirements prescribed stances relief essential granted against 23, F.R.Civ.P., pre have fur- should been Rule as conditions beatings, physical abuse, tortures, prosecution ther cedent to as the lawsuit grant Although plaintiffs similar The present or preliminary relief, conduct. of such a class suit. course, fact, should be questions some common of law and prejudice defendants’ without the it is no means clear their claims support typical of an representative offer evidence are of all mem or application injunction upon, to vacate the purported class, in e., bers of the the i. showing steps adequate Attica, they have mates of or that will ade protect against protect taken to re- quately the inmates in all interests of contrary, currence. sharp mates. On the conflicts of interest between Some inmates. exist We also reverse the district participate uprising, did not at all in the complaint inso court’s dismissal of the may threat others did. Some while injunctive permanent it far as seeks re prosecution, others ened with state while lief inmates’ violation of the Some, therefore, may called not. will upon Eighth allega rights. Amendment The testify respect to criminal with complaint, tions of the must be which others, may acts committed even light considered in the most favorable so, may desire desire do while others plaintiffs upon dis to the miss, Conley Gibson, motion opposite. 41, 45- v. 355 U.S. injunctive prayer relief As to 46, (1957); 99, 78 2 L.Ed.2d S.Ct. 80 against brutality or the threat of 546, Cooper Pate, v. S.Ct. U.S. 84 378 it.how .ever, prop we find that a class action is Wright (1964); 1733, 12 1030 L.Ed.2d erly proposed (2d The class maintainable. McMann, 519, v. n. 3 F.2d 521 387 comprising suf inmates of Attica is Hegstrom, 1967); 416 Cir. v. Church ficiently joinder make im numerous to 449, (2d 1969); Build F.2d Buffalo, Cir. 450 practicable, a common all inmates have 284, Sedita, 287 441 F.2d Inc. v. preventing interest recurrence (2d 1971), clearly en state a claim Cir. conduct, objectionable the claims titling injunctive if relief them to some representatives proposed class proved preponderance a fair at trial inmates, typical of all are of those presented The evidence evidence. injunction against brutality solely and an fairly to the district court was received protect inter adequately prelim upon plaintiffs’ application for 23(a), F.R. of all Rule ests the inmates. inary any relief consolidation without Furthermore, representatives of Civ.P. hearing merits a trial on the to act failed have 65(a) (2), the State acted pursuant F.R.Civ.P. Rule grounds generally applicable to precluded on Accordingly plaintiffs are not injunctive appro class, making presenting additional evidence Phillips City Capital respect as a priate v. to the class trial. Gas Co. (2d (2), 128, whole,11 Co., 23(b) F.R.Civ.P. F.2d 131 Petroleum 373 Rule 1967). Therefore, district the order Cir. 23, Advisory Note, F.R.D. 11. “Action is to a 39 inaction directed Comm. meaning (1966). within the this sub- 102 class F.Supp. Sarver, it has Holt 309 division if taken effect v. even See only (E.D.Ark.1970) ; Mc Valvano v. one or a or is threatened 372-73 (E.D.N.Y. provided F.Supp. 408, Grath, class, few 412 members of 325 Bishop, general 1971) ; grounds 404 which Jackson is based on see also F.R.Civ.P., (8th 1968). Cir. to the class.” F.2d requirements denying appellants’ application to main- difficulties and of such an investigation any prosecution class action as tain the suit as a brutality result therefrom. issue reversed. Arizona, Neither Miranda v. 384 U.S. Conclusion S.Ct. L.Ed.2d orders of district court (1966), any nor other decision of Su- plain- dismissed reversed insofar preme Court, court, or of this holds that injunctive complaint re- denied tiffs’ investigation the state must conduct its agents restraining defendants, lief any particular way or that certain including police, employees, state warnings given per- must be or all guards personnel, from and correctional *13 may interrogated by sons who those be subjecting physical to Attica inmates investigating may crimes or which were beatings abuse, torture, other forms or have been committed at All that Attica. conduct, threatening brutality, such or Miranda holds is that defendant’s state- a they ap- denied and insofar as may against ment not be used him in a brutality plication proceed the with prosecution criminal unless or otherwise district The a class action. as claim warnings given he has first been certain preliminary enter a court is directed to knowingly speak and he has elected to against injunction and conduct such with or A without advice of counsel. that any specific measures consider more it conviction will not stand if has been might implement the ordered be through obtained a the use at trial of junction, including appointment of the by statement a defendant has made federal monitors serve Attica. substantially not as Mi- been warned upon injunction may a show- be vacated specifies. randa Miranda is rule a ing longer required the that is no it evidence. protection of the inmates. may For whatever reasons the state respects In all the decision and other sufficient, may find elect the well state district court affirmed. orders of the are give warnings Miranda to some investigation Any must not to others. LUMBARD, Judge (concur Circuit rely investigators and the witnesses ring) : bet- must make a choice as to who would might be ter and who serve as a witness agree I respects While in all with minority Obviously only a a defendant. opinion, Mansfield’s I some believe and those defendants can be regarding Judge comment in is order far outnum- examined as witnesses will Oakes’s view that the district court ultimately de- become those who ber findings hearing should hold a and make fendants. regarding ought whether counsel to be every pris- injunction applicable to An provided prisoners prior for all to inter- only might questioned not be rogation oner who request even if no for counsel province beyond proper go far would has been made. seriously court, but of a federal Only probability real of continued ought to investigation which impede the justify physical abuse harassment can speed state all with move forward injunction by the issuance fed- of an a summon. can prevent il- eral such court to forbid by pris- made is a claim legal entirely If when An different kind conduct. using him is the state oner that respect question presented is him, by without made investiga- a statement to conduct its how is state warning, it will given Miranda killing tion of the of 32 inmates state appropriate time guards then injuries be suffered and the claim adjudicate that tribunal quite apparent It is scores others. Su- States way, the United Governor, usual the Commissioner ap- ultimate preme Court Deputy Special At- Corrections and the peal. torney well aware General any prisal upon parole, prisoner to have mention has effects No Report (pages ed under what cir- Panel Goldman federal court determine 20-22, 36) quoted majority opin cumstances, what or without and with warnings, questioned Procunier, state See he is to be ion. Clutchette v. 328 F. (N.D.Cal.1971). Supp. what circumstances under officers and It questioned at all. he must not be arbitrary deprivation The often enough observe the Mi- a failure “good place time” credits that has taken teachings the sanction randa carries system York New pur- use, except invalidating any past1 may inhibitory obviously state impeachment, poses of effect the voluntariness of contrary prisoner’s obtained statement not to seek counsel. choice seek or mandate. to the Miranda remedy Thus this is not case where the illegally suppression of relief ob sufficient, tained statements would OAKES, Judge (concurring in Circuit judge supposed; as the trial dissenting part): unwilling partici that inmates who were I opinion concur in so much of pants in t riot wanted brutality order as relates to and abuse osignify out of want of the Attica I as to inmates. dissent *14 reprisal from officials fear of right it so much of as concerns the ways, including prison in of several one counsel, but on a limited basis. proceedings, disciplinary other than Legal Society Aid has on final given inmate prosecution. A criminal argument request relief narrowed for its may di insoluble on the horns of an be proceeding in this to avoid order —in risk he runs a doesn’t talk lemma —if he possible of interest —from conflicts does, runs prison discipline; he if he right full inmate counsel for each v. prosecution. Clutchette See risk sought argument at the first before sUpra. Procunier, his need Thus court, to con of each inmate in may person of a exceed that Legal Aid sult with counsel from the interrogation. usual criminal Society consult he should whether sought attorney appointed with an in which is to be is this a case Nor appropriate prosecution as enjoin in con court state before a state criminal 37, interrogation by Younger Harris, U.S. 91 S. nection with state of v. 401 (1971). Here 746, 669 ficials. Since a number of inmates L.Ed.2d 27 Ct. sought con Notice is returned state’s forms of relief now narrow in (quoted majority opin an 5 of determine whether note sultation custody2 sig ion) merely is either blank or definition mate who signification right, Ar v. nature Miranda and no wheth as to exercise should (1966); counsel, izona, 436, 1602 er S.Ct. want returned 86 not 384 U.S. 478, all, Illinois, 84 U.S. plain forms 378 it seems me Escobedo v. many be very consult counsel (1964), to inmates have at the least been 1758 S.Ct. interrogation communicating subjected inhibited from true fore prosecution. contemplating wishes to the in state officials. Such officials state may only grant has considerable hibition such been based To Kugler, F.2d 446 on the v. precedent. harassment en Lewis and abuse now See Layton, joined, tragic 1971); v. (3rd which occurred after Gomez Cir. 1343 764, 289, 767 prison riot, F.2d U.S.App.D.C. events 394 on the but also 129 Gelston, F.2d 364 disciplinary (1968); fear inmates’ re v. future Lankford McGinnis, N.Y.1970), Rod- States ex rel. Sostre v. United 442 F.2d 178 McGinnis, F.Supp. (1971) ; Wright McMann, 627 riguez v. 307 F.2d v. 387 banc). (2d (pending 1967) ; (N.D.N.Y.1969) en 519 Cir. United ex States McGinnis, rel. Katzoff v. Docket No. - States, (N.D.N.Y. Aug. 88 18, 1970), 391 U.S. Krit v. United Mathis sky (1968). McGinnis, F.Supp. (N.D. L.Ed.2d 381 v. 313 20 1247 S.Ct.
27 1966). Ohio, (4th Terry Cir. Cf. 14-15, L. 88 S.Ct. U.S. (1968). Ed.2d 889 error I view that it was
Thus take the permanent relief dismiss claim ground ample remedies way interrogation unconstitutional lie evidentiary suppression. This
of further true, light think, especially I York, 222, 91 Harris U.S. v. New (1971), which
S.Ct. 28 L.Ed.2d involuntary
seems to confes- hold that impeachment. Since sion used be contrary thinking judge’s
the trial pre- plainly his denial of also affected
liminary relief, or- reverse his I would find- respect and remand for
der in that judge’s
ings. record In of the trial view handling expeditious prompt suggestion business,
hearings prelim- on the
inary permanent relief should promptly and held
combined
superfluous. fore- I that for believe
going (brutality and purposes limited *15 prop- counsel) action should erly Eisen a class be treated as action. Jacquelin, 391 F.2d
v. Carlisle & 1968). (2d Cir. America,
UNITED STATES Plaintiff-Appellee, JAMES, Jr.,
Charles Thomas Defendant- Appellant.
No. 71-1855. Appeals, Court of
United States Circuit.
Ninth
Dec.