MEMORANDUM-DECISION and ORDER
Justiсe Holmes, dissenting many years ago in Northern Securities Co. v. United States (1903)
The Wright case started in this District Court inasmuch as Wright was confined in Clinton Prison, Dannemora, N. Y., by the filing of a complaint March 11, 1966. Wright is serving a sentence of one day to life under jury conviction of three counts charging sodomy, two counts charging assault and carnal abuse of a child. The late Judge Brennan of this Court dismissed the Wright complaint in a substantial opinion, reasoning there was not sufficient evidence to him from the complaint to warrant intrusion into the internal management of state prisons, particularly so without application first to and exhaustion of remedies in the State courts of New York. Judge Brennan expressed in his opinion full confidence the New York Courts would fashion conscientiously a remedy even if none were precisely present in the New York Statutes to entertain and correct the horrible wrongs, if true, claimed by plaintiff Wright during his confinement in the punitive segregation section at Clinton Prison for violations of prison rules and regulations. (Wright v. McMann (NDNY)
This ruling of dismissal by Judge Brennan was reversed by the Court of Appeals, Second Circuit, in an opinion that attracted nationwide attention in the news media. The appellate opinion is referred to often in text and judicial writings as an important one confirming the jurisdiction and obligation of federal courts to entertain and decide such claims. (Wright v. McMann, 2 Cir.,
In regard to Clinton Prison inmates the acme of judicial service is furnished. By order of Judges, Appellate Division, Third Department, a regularly scheduled motion Session is held once a month for ten months of the year at the Prison by designated New York judges. The direction is to hear applications for writs of habeas corpus
or other proceedings
regarding detention or confinement. (See Court Ex. 1). By Chapter 658 of the Laws of 1969, New York, effective May 21, 1969, Section 79-c of the Civil Rights Law (McKinney’s Consol.Laws of N.Y. c. 6), was amended to confer upon an imprisoned convict the right to injunctive relief for improper treatment where such treatment constitutes a violation of constitutional rights. The void and gap in New York remedies noted by Judge Lumbard was thereby filled by this New York legislation, and later New York Court ruling decided that the amendment was to be given liberal construction and retroactive application. (In re Marcelin v. Scott (App.Div., 3rd Dept. Oct. 20, 1969)
Plaintiff Mosher is serving a 40-60 year sentence that he commenced in 1964 on his plea of guilty to Robbery charges. I permitted the filing of his pro se complaint by memorandum-decision and order dated May 19, 1967. The claim involved similar assertions as those of Wright, in that he was being confined in the segregation unit at Clinton enduring cruel living conditions pursuant to administrative procedures and under reasons for such confinement that he claims were violative of constitutional rights. Paragraph 2 of the Mosher complaint alleges that punitive segregation for his refusal, that he admits, to sign a “safety sheet”, used in the institutional shops of the prison resulted in punishment out of proportion to the offense. Paragraph *131 4 refers to observation cell confinements. This cell and its purposes shall be described herein later. Mosher claims the cell was used fraudulently by segregation guards without any formalities being followed and proper reason present when the segregation guards became displeased with segregation inmates conduct and wanted to make living conditions more unpleasant and unbearable than those said to exist in disciplinary segregation. A series of letters to me followed from Mosher after I permitted the filing of his complaint, and in accord with the liberal and informal treatment this court gives pro se writings of State prisoners, some were filed formally as supplemental to the complaint and others were retained in the file in the Clerk’s office for reference. The grievances in the letters run along the same lines as those in the complaint except there is description of new incidents that arose between Mosher and the guards in their daily close contact during the segregation regimen. Thеse events resulted in continued segregation punishment for Mosher and prolongation of Mosher’s confinement in segregation for a considerable period of time.
Attorney Betty D. Friedlander who acted as attorney for Wright on the appeal continued to act as his attorney for the trial and its preparation. I requested William Bennett Turner, an attorney with considerable experience in matters of this kind to represent Plaintiff Mosh-er and he willingly accepted such assignment and this Court is appreciative. By formal order dated August 28, 1968, the actions were directed to commence at joint trial on October 15, 1968, and such order noted that a satisfactory and productive pretrial conference had been held with the attorneys. Extensive and productive discovery and deposition procedures were permitted by me to be undertaken to the full extent permitted by the traditional liberality of the Federal Rules of Civil Procedure. Depositions of eight prison officials concerning their knowledge and experience at Clinton Prison were taken. Wardens McMann and LaVallee, Deputy Warden DeLong, Prison Psychiatrist Dr. Freedman, Prison Physician Dr. Peda, several correction officers (guards) with duty assignments in segregation during the times in question, and one prisoner McIntyre were deposed. These depositions were offered in evidence at the trial and are marked as plaintiffs’ exhibits. (Plaintiff exhibits are numbered; Defense exhibits are lettered, and references herein to the trial record shall be by the prefix R).
A trial record of 1566 pages was compiled in a trial that covered seven trial days. At the end, I stated the trial had been an education to me although I had experience of twenty years with substantial numbers of State prisoner cases. (R 1553). The recanvass and review of the voluminous record that had to be done following delayed and substantial briefing fortifies this viewpoint. Time could be taken because Wright was transferred from Clinton segregation to another prison. Mosher was released from segregation to general population in December 1968 at Clinton Prison. The entire record of testimony and exhibits is a revealing and eye-opening one in regard to certain aspects of prison life in Clinton Prison. No matter the outcome finally in this litigation, there is a comprehensive record of the testimony of prisoners, obviously the difficult and troublesome ones to handle, during long periods, in their eyeball confrontation with the guards who have the difficult assignment to guard, feed and control them daily in a punitive segregation cell where they were kept around the clock with rare and short periods of release. One definite release from the segregation cell testified to was that the segregation inmates were taken down to the shower room along the gallery for their two-minute shower, as one prisoner estimated its time, every Sunday. The record is fascinating, full of humor and pathos despite the sadness of imprisonment, and as must be expected unfortunately marred throughout with substantial inconsistencies and contradictions, not only by prisoners but correction per *132 sonnel. The record, and I had no appetite to undertake its heavy burden no matter its interest, is a portrayal of the real thing; it is prison life as it is, not a stage play or TV or motion picture portrayal. In my judgment, it should be read with care by the executive, legal, legislative and correctional department heads of New York State Government who ultimately must bear the responsibility to insure New York State prisoners are treated humanely as I believe, being one, every citizen of New York wants and expects. The exploration here by trained and able lawyers opens up a facet of New York State prison discipline kept covered too long from the public view. I think it was assumed the public has little interest in the disciplining of the confined criminal element of society or the manner in which they are fed and clothed. However, it is clear that State prisons, or even local jails have become mоre and more, and rightly so, in this age proper subjects for scrutiny by representatives of the public and the courts when necessary. The higher echelon of Prison management are being held now to account and answer frequently about these matters. (See Judges and Wardens: Teammates for Rehabilitation, by U. S. District Judge George H. Boldt, Judicature, The Journal of the. American Judicature Society, January, 1970, Vo. 53); State of Prisons in the United States: 1870-1970; Negley K. Teeters, PH.D., Federal Probation: A Journal of Correctional Philosophy and Practice, Vol. XXXIII, December 1969). No longer can prisons and their inmates be considered a closed society with every internal disciplinary judgment to be blissfully regarded as immune from the limelight that all public agencies ordinarily are subject to. It does seem that the fate and nature of confinement for persons convicted of crime is of little concern to society in general. Many have been smug by rationalizing that if unpleasant problems arise in the prisons, the prisoners brought it on themselves and the less public notice the better.
Security, of ' course, has been and should be a paramount objective in maximum security prisons. It is a primary consideration I keep' in mind throughout the decision I make in these actions. That factor unquestionably must be considered carefully when weighing the propriety and reasonablenеss of judgments made in these tensest of surroundings to uphold discipline and morale. Such decisions have to be quickly made and their role in my opinion is extremely important to guard against as much as humanly possible, insurrection, riot and terrorizing jailbreak. (See United States ex rel. Wade v. Jackson (NDNY 1956)
Chief Justice Burger, a leader in the simulation of new interest in prison reforms, has stated that prisoners after conviction cannot be considered as human rubbish and that a visit to most prisons will make one a zealot for reform. The diligent defense lawyers in these actions have supplied new decisions passing upon civil rights actions of prisoners confined in State Prisons other than New York. (Holt et al. v. Sarver (ED Ark.)
This preface of review, philosophical and otherwise, is set forth in an attempt to interest these executive, legislative, and legal heads of New York in the proposition that possibly the Rules and Regulations promulgated for New York prisons, particularly those relating to segregation confinement and its living conditions and administrative procedures for hearing and disposition of charges that lead to this type confinement or other serious punishment, be reviewed and updated to conform at least in principle if not exact wording to those similar type rules and regulations recommended by responsible sources and recognized as progressive and in step with modern concepts. (See Manual of Correctional Standards (Pl.Ex. 30); Missouri State Penitentiary Rules & Procedures (Pl.Ex. 29); Task Force Report on Corrections, issued May 1967 by President’s Commission on Lаw Enforcement & Administration of Justice, excerpt thereof referred to in Wright v. McMann, supra, 387 F. 2d p. 527).
There is no intention on my part to be critical of the Department of Correction of New York, its personnel or the Wardens and Deputy Wardens of the large maximum security prison involved in this litigation. This record demonstrates clearly that the Wardens and Deputy Wardens advanced through the ranks during many years of experience in a variety of correctional positions with the active and daily problems of prison life. There is no question in my mind of their personal and official dedication to safeguarding the public interest or to their integrity. My relationship with New York State Correctional personnel in a great number of cases involving State Prisoners has always been afforded an attitude of cooperation from them in the processing of prisoner applications and the production of prisoners when necessary at times and places where this, federal Court sits, usually several hundred miles from the Prisons. (See United States ex rel. Bruno v. Herold, 2 Cir.,
Over the years at а number of hearings when State prisoners were before me on the witness stand, I always made it a point to inquire how they were being treated. Ironically, and this is true mostly of the Clinton prisoners, the answer was they were being treated all right. Several whom I recall gave specific examples. I recall one showing his new false teeth with pride, others telling about obtaining the equivalent of a high school diploma, or teaching and learning languages and art. These are small things, of course, but they struck me as signs of humaneness. The prisoners were always dressed in well fitting civilian clothing and none of them gave any appearance that would lead to the. slightest suspicion of physical mistreatment or undernourishment. Wright and Mosher had similar appearance during the trial of these cases. Testimony in this record from all the prisoners unequivocally support the conclusion there are no serious grievances they have as inmates in the so-called general population at Clinton Prison. (R 534, 1026, 1034). It should be noted that plaintiffs, Wright and Mosher, in fact by their pleadings and testimony, aim their charges of alleged civil right wrongs mainly against Section 4, a unit of twelve cells, located in a 48 cell disciplinary segregation building, called the “Box” by inmates. There is also criticism against several so-called “dark cells” in the segregation building, and the observation cells located in a separate building. (See Photographs — Def. Exs. A thru K). Wright testified that in 1967, conditions in segregation at Clinton Prison vastly improved. (R 77-87, 170-175). To support a finding that general population living conditions are all right although not in this record, judicial notice is stretched to refer to a book in the vein of a Baedeker travel guide for United States Prisons. It is My American Prisons, by Parisian Jacques Angelvin, and was given capsule review in Time Magazine, December 6, 1968 Issue, p. 33. Dannemora (Clinton) as he appraised it from his actual confinement is thus described:
“Dannemora: Scenieally located on the Canadian border; cells resemble those at Sing Sing and are impeccably clean; siesta permitted beween morning and afternoon work periods; ice skating, bobsledding and skiing available in season; clientele permitted to have their own gardens (Angelvin was allowed to raise his own potatoes so as not to have to eat frozen french fries); waiters in the dining room attired in white hats, jackets and gloves.”
This description may seem in the nature of a spoof, far-fetched and tongue in cheek. Mosher, however, at the trial of these actions told about groups of prisoners allotted little plots of ground in the Prison yard at Clinton with facilities to store food and cooking utensils, with oil drum stoves provided for outdoor cooking. Mosher testified that at one time when in good graces he was selected as foreman or court manager of one group of 12 or 13 that had space in the North Yard for these unusual privileges of being able to boil a pot of coffee and prepare outdoors their own meal to their own liking. (R. 1009-1012). It was a food episode that led to the compounding of Mosher’s problems when confined in segregation. In segregation the prisoners are fed in their cells by two guards coming down the gallery or walking alongside the cells, pushing a warm food wagon. The food as selected by each prisoner in their individual cells is put in one or two bowls by the guards who measure out the portions as the bowls are passed into the prisoner to eat from with a spoon. The humor mixture in the sadness of any prison confinement was the testimony of Mosher that one of the serving guards had the habit of “rubbing his nose and picking his ears” before handing the food through the bars. Mosher asked *135 him if it was possible for him to use a napkin or pick up the food in a spoon. Mosher said the guard remarked, “What do you think, you are in the Waldorf-Astoria” and Mosher’s reply was “No, far from it.” (R 1032). Also, Mosher was complacent about the usual direction given when taken to the segregation unit to take off the prison clothes he wore regularly and was given the segregation unit clothing. When asked if the segregation clothes fit by his attorney at this triаl, he answered, “They could have been better, you know, but I wasn’t going anywhere, you know.” (R 1020).
The submission of these actions is in the massive category. Together with extensive briefing, there are filed for Wright by number 250 Proposed Findings of Fact and eleven Proposed Conclusions of Law. Proposed Findings of Fact for Mosher number 254, with eight proposed Conclusions of Law. It has always been my custom and practice to make my findings in my own language and in my own manner, endeavoring to state the fundamental findings that I believe are involved by the issues presented. These detailed findings for the plaintiffs, accurately keyed to the record and exhibits, however, shall be filed with this decision as possibly being helpful, as I have found them, for convenient reference and as an aid to those who may be next to review and consider this substantial record.
Undoubtedly, the plaintiffs’ attorneys, to whom the highest credit must be given for motives solely to promote expertly through the channels of the law humanitarianism in prison confinement, seek to use by unmatchable 2;eal these WrightMosher actions as a vehicle for reform of practically every deficiency and flaw that might exist in the administration of the New York State Prison system and the confinement and discipline conditions relating to it. These purposes are laudable. I did knowingly permit substantial latitude in the presentation of the evidence of the plaintiffs, to the obvious and expressed dismay of the defense. (e. g. R 211). This course was followed since the broad concept of relevancy permits in federal courts greater latitude in presentation of evidence than in other systems. More important, however, my rulings were based upon the knowledge of the numerous complaints filed in this District Court of similar nature under the Civil Rights statutes, the great majority complaining of punitive segregation at Clinton Prison. It seemed better for all concerned to beam the light of day by testimony under oath upon disturbing incidents of claimed physical assaults as well as serious procedural deficiencies in notice of charges, their hearing and review of rules and regulation violations that result in segregation confinement at Clinton. As to some, if there is any element of truth in such charges, they should be investigated and steps taken to prevent their re-occurrence by appropriate revision of the rules with meaningful supervision and enforcement to insure compliance with their wording. However, the search and determination of this record upon my part must remain reasonably within the issues raised by the pleadings and should follow, at least in the Wright case, the guides and observations contained in the appellate writing that remanded the Wright case for further proceedings in this District Court not inconsistent with the apрellate opinion. (Wright, supra, 387 F.2d p. 527).
In fairness to New York, it must be noted that changes and improvements have taken place in the living conditions in the 4 Section of the Segregation Unit, the place most complained about, since the initiation of the Wright action and the strong writing in the remand of it that as expected stimulated much other litigation from other prisoners who are or have been confined therein.
As stated before, plaintiff Wright testified that in 1967 conditions in segregation had vastly improved since 1966. (R 170-175). Keeping prisoners nude was discontinued by verbal directive. (R 1258). Warden McMann directed that all inmates in segregation be given at least a suit of long underwear and socks.
*136
(R 1448-9). Normally, inmates in segregation and observation cells are now given bed, sheets, pillow and blankets; shirt, pants and pair of socks. (R 1447-9, see also Ex. 22: par. 33). Plaintiff Mosher testified that two and one-half months before the hearing in these actions before me he was given broom, scrubbing brushes, and hot water whereby he could thoroughly clean his segregation cell as he wanted it. (R 1041). Section 4 prisoners since June 1968 are now allowed to use the small, enclosed patio behind each cell for exercise one hour a day. (R 546, 1025, 1475; Ex. 6: p. 9). Two “dark cells” that are in the segregation building have had their solid steel doors removed, and although there is confusion in the record as to the number of times previously used, there seems to be agreement the Wardens did not know of their use in particular instances and they apparently agree they should rarely be used. (Ex. 1: pp. 26, 28; R 519, 1040; Ex. 2, p. 55). Confinement in these two so-called “dark cells” was unquestionably a cruel one, and it was testified to by Warden LaVallee that their use has been discontinued. (R 1499-1500). Revised Rules covering disciplinary matters and procedures were issued by Commissioner of Correction Mc-Ginnis, effective March 1, 1969. (Court Ex. 2). It is extremely important to note that the New York Legislature amended the Correction Law, McKinney’s Consol. Laws, c. 43, in many respects. Most important to the issues here are the repeal of Sections 137, 138, 139 and 140 of such law by addition of a new Section 137, particularly in subdivisions (5) and (6) that direct proper treatment of any inmates and proper living conditions for those kept in segregation. (Ch. 476, Section 137, McKinney’s Session Laws of N.Y., effective July 8, 1970). It is argued that these belated improvements and changes should not warrant escape from responsibility in this litigation but, to my mind, such should be welcomed at least as signs of recognition in New York that there must be change from past practices. As Justice Frankfurter observed in his dissent in Henslee v. Union Planters Nat. Bank (1948)
President Bernard G. Segal of the Ameriсan Bar Association observed in his recent article on the President’s Page, June 1970 — Issue — American Bar Assoc. Journal, “The deficiencies in present correctional facilities and programs have been adequately identified by a considerable amount of inquiry and research and specific reform proposals for modern and enlightened programs— standards, facilities, services — have been developed by authoritative government and private sources. What is needed now is a nationwide campaign to translate these recommendations into action.”
No one ever had and probably never will have all the answers for these disciplinary problems. An eminent witness in this trial, James Y. Bennett, testified the maintenance of discipline in prisons is a very difficult, perplexing problem. (R 297). An extensive opinion with studied research was handed down by United States District Judge Motley that touches on practically every facet of New York prison disciplinary procedures and punishment in Sostre v. Rockfeller, McGinnis, Mancusi and Follette (SDNY)
First, it is urged that the present actions may be treated as class actions pursuant to Federal Rule of Civil Procedure 23 provisions, as applied in Jackson v. Bishop, 8 Cir., Blackmun, H. A.,
I
WRIGHT
The pattern for the Wright findings to be made is laid out in the appellate writing:
“We are of the view that civilized standards of humane decency simply do not permit a man for a substantial period of time to be denuded and exposed to the bitter cold of winter in northern New York State and to be deprived of the basic elements of hygiene such as soap and toilet paper. The subhuman conditions alleged by Wright to exist in the “strip cell” at Dannemora could only serve to destroy completely the spirit and undermine the sanity of the prisoner. The Eighth Amendment forbids treatment so foul, so inhuman and so violative of basic concepts of decency. Trop v. Dulles,356 U.S. 86 , 100, 101,78 S.Ct. 590 , 597, 598,2 L.Ed.2d 630 .” (Wright v. McMann, 2 Cir.,387 F.2d 519 , at 526).
Of course, this general statement must be related to the particulars developed for Wright at the trial in order to perform properly my function as the fact-finder regarding the essential elements necessary to be proven to support his claim of deprivation and violation of federal constitutional rights and privileges. It should be emphasized from the record there is nothing to support a contention that segregation for a period of time and under proper conditions in a State prison to enforce discipline is unconstitutional per se. Witness Bennett, with long experience as nationwide director of federal prisons, testifying for the *138 plaintiffs said it was perfectly proper for a time, that we cannot abolish segregation cell blocks, and that we have to have them even in this new day of prison reforms. (R. 255, 293). Dr. Joseph Sat-ten, a physician specializing in psychiatry, eminent also in this field of study of prison confinement and its consequences, and Chief of the division of law and psychiatry at the Menninger Hospital and Foundation, training qualified psychiatrists for correctional service, gave for this record an illuminating discussion concerning confinement problems in major prisons and its effect upon the human inmates. (R. 412-478). He did not rule out either the need for punitive segregation confinement although he emphasized the care to be taken concerning its conditions and the length of its use due to the serious impact it may have upon certain prisoners due to their individual mental and physical attitudes and capacities. (R. 471-473). It is interesting to note that this doctor who has devoted his life to the study of prison confinement with extensive practical contact with and observation of many prisons does not feel an inmate should be entitled to counsel when charged with violation of prison rules and regulations. (R. 474).
I find with little difficulty from this record that in 1965 and in 1966 when Wright was confined to punitive segregation, such confinement in view of certain living conditions that existed then in the so-called “strip cell” and in a state of complete nudity was cruel and unusual infliction of punishment as that clause of the Eighth Amendment to the United States Constitution should be interpreted and applied. There is no preciseness to define and apply this constitutional prohibition but sensible guide for assistance comes from an opinion of the highest judicial authority in the land that: “The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles,
Together with the evidence in the record in my judgment to support this finding of cruel and unusual punishment inflicted upon Wright in 1965 and 1966 in certain periods of his segregation confinement, there is the unusual feature that the defendant Wardens’ Answer in the Wright action filed in this Court April 26, 1966, admits several elements that on their face give serious concern about the segregation cell conditions under which Wright was confined, and would be ones ordinarily involved in dispute. The first affirmative defense describes Wright as a “glib psycopath”, (he has been confined to mental institutions on several occasions); alleges that it was the practice during those years to place certain inmates in what was known as a strip cell at the time of their reception in segregation; that (and this clause is verbatim) a strip cell has only the bare necessities and at times the clothing is taken from the prisoner and at night he is given a blanket to sleep upon the floor; that the practice to keep a prisoner, first in a strip cell, as admittedly Wright was kept for at least some time, was routine treatment in the interests of prisoner discipline and to minimize the dangerous propensities certain prisoners might have in regard to their рerson and the ordinary prison furnishings in a cell.
From this Answer itself, and it is noted in the Wright Appellate opinion in fn. 15, the justification sought to be established by the pleading that certain prisoners must be kept in a strip cell because they may become violent, tear the cell up, and so forth is destroyed by the admission that it was routine for inmates when first received in segregation to put them in a strip cell. Unquestionably, the stripping of the cell and the nudity of Wright was for discipline, alone, and no facts are shown to support possible conduct on his part that would imperil himself or the cell. Wright was placed in such barren confinement nude, and I so find, when first received on February *139 18, 1965 and February 9, 1966. Therefore, I find it was done purely for disciplinary purposes and not from any tendencies exhibited that gave reasonable grounds for fear of suicide or destruction of prison property.
According to a single page, sparse interdepartmental communication dated April 24, 1954, inmates placed in segregation for disciplinary reasons other than for refusal to work were to be placed in 4 Section upon arrival in segregation for 30 days. (Ex. 19). Further, Rules for the operation of segregation were issued by Deputy Warden DeLong, August 9, 1967, as a reissue of the 1954 Rules. (Ex. 22). A most important rule therein is No. 33: “Inmates in á strip cell and observation cell will be issued one each pad, blanket, shirt, pants and a pair of shoes. (No shoe strings or belt will be issued).” This instruction came after the Wright confinements.
In 1965 and 1966, the confinement that Wright complains of was harsh and rugged in the 4 Section. Deputy Warden DeLong described the activity of the day in this Section. (Ex. 2: p. 133). Strip, at least during the times in question, meant literally the everyday sense of that word. The light bulbs were removed in the 4 Section, and the only fixtures an inmate had in the cell during a long day were a toilet and washbowl. Deputy Warden DeLong in his deposition, explaining these features, said the inmate in 4 Section did not have a stool or anything to sit on; it seems to have been the practice not to furnish a bedstead, and in any event the bedding was removed during the day from 7:30 A.M. to 10:00 P.M. (Ex. 2: pp. 37-47). There was no radio or smoking privileges, and the reading material was very limited. The inmates of 4 Section were on their feet all day from 7:30 A.M. to 10:00 P.M. with no place to sit except on the floor or toilet bowl. As noted previously, they had to eat from a bowl with a spoon and had to fashion their own way to handle the bowl to eat. (R. 1028). Another requirement only for 4 Section was that the inmates stand at attention at the door of their cell in the 4 Section every time correction personnel of every type would pass the cell upon the gallery. This was no written rule, but such practice was enforced. (Ex. 2: pp. 108, 110, 133-34; R. 69, 532, 597, 1021, 1066, 1234). Deputy Warden DeLong said stаnding at attention would help them sleep at night. (R. 1233). Wright was kept for a number of days in 3 Section completely nude and the segregation cell in which he was confined was stripped of all furnishings, leaving only the toilet and sink. (R. 158-61, 70, 368, 571, 1193, 1220-1, 1535; Ex. 6: p. 12; Ex. 9: p. 8; Ex. 39: pp. 168, 248; Ex. 41: p. 22). Section 3 was used for strip cell confinement when so ordered in the same manner as 4 Section strip cell. I find that nudity was definitely used as part of the disciplinary punishment with the thought to demean, if nudity so does. I also find that part of the strip cell treatment was to keep the cell in not too clean a condition. The strip cell inmate was only furnished a rag and insufficient scouring powder to clean it with. No program to clean it between inhabitants existed. (Ex. 2: pp. 69, 174, 653, 1022, 1236). Warden McMann changed certain customs of nudity and cell conditions, after he found out about Wright. (R. 1192-3, 1220, 1256-8, 1448-9, 1457). Eyeglasses were taken from strip cell inmates, and were taken from Wright for a period of days; this practice being changed in 1967. (R. 88-9; Ex. 5: p. 31). I find that Wright was deprived of hygienic implements inside the strip cell, i. e. those common to every day life, such as soap, towel and toilet paper, and that these things would be kept on the window sills outside the strip cells, only to be handed in by the correction officers upon request according to the testimony of Warden McMann. (R. 1459). Under this arrangement, it is not difficult to believe, and I so find that at times these requests would be ignored either delibеrately or by reason of the guards being unavailable at the propitious time, and I find as testified to by Wright and several inmates that *140 on occasion they had to use their hand to finish their toilet use. (R. 327, 481, 545, 571). In the observation cell where Wright was confined in April 1965, there was no toilet or sink in the cell, and the procedure to go to the bathroom was more complicated in that when the call of nature came the inmate had to at times wait for the one guard engaged in making his rounds to call in another guard to accompany Wright to the toilet facility. (R. 191-2; 647).
Of course, the temperature maintained in 4 Segregation Unit during the winter months is very important when the finding is made that Wright was kept completely nude in 1965 for 11 days and had to sleep on the cement floor without bed or mattress, and was kept nude under the same conditions for 21 days commencing in February 1966. (R. 61, 70-71, 77, 79, 231; 130, 149, 1145-6, 1192, 1306-07, 1348,1390; Ex. 43).
Deputy Warden DeLong admits Wright was nude for 8 days in 1966. (R. 1248). Correction Officer Kennedy, often in charge in 4 Segregation, said Wright was nude in 1965. (Ex. 6: 22). Wright said for first two days in 1965 there was no heat in the radiator in his cell (each segregation cell has its own radiator); that in the late afternoon shift the windows were open and making it very cold, although his estimate was that the temperature in his cell was 35°-40°, and not a sub-zero temperature. (R. 225-232, 527-528, 575). I am quick to say there is no intent on my part to imply that sleeping on a concrete floor with no blanket or mattress, may not in itself be inhumane unless good reason from violent conduct of an inmate justifies such type of treatment — unquestionably harsh. The eminence of Director Bennett was recognized in Jackson v. Bishop (DCED Ark.) 268 F.S.upp. 804, 813, and from his long experience he testified that at times an inmate might become a suicidal risk, uncontrollable and violent, that taking the clothing away might be necessary, although in the federal prison system an inmate may be deprived of clothing only when so prescribed by a medical officer. (R. 260). Director Bennett gave sensible reasons why the standing at attention at the door cells might be needed for short periods of time to check the segregation inmates if not done for pure harassment. (R. 268). He said that an inmate can properly be deprived of his bed and sheets if he uses them improperly or he is continuously abusive, but he should never be required to sleep on a bare floor. (R. 266-267).
In paragraph 12 of his complaint, filed on March 11, 1966, Wright claims he was “without clothing and entirely nude for several days” during his 1965 segregation confinement, after which he was given what he describes as a thin pair of underwear. In regard to the 1966 confinement, he seems to claim nudity during most of the time he was left in the 4 Section, asserting the sub-freezing temperatures caused by the deliberate opening of windows by the guards during both confinements. The Almighty could not penetrate the contrаdictions in this record in that regard and the testimony concerning heat is practically in the same impenetrable category. Seven guards testified the temperature was always comfortable, and much of their testimony was that it was so comfortable they worked in their shirtsleeves during the hours when temperature is in serious dispute. (R. 1140, 1196, 1275, 1318, 1386, 1433).
However, there was an unexplained lack of a thermometer in the segregation unit to support the guards’ feeling of comfort, and most important to me I find support for Wright’s and other inmates testimony that the cells were kept cold at times for discipline by the lack of any entry in the log books about the prevailing temperatures during certain portions of the day. This seems to me an-effective way to insure proper temperature by imposing as a routine obligation upon the guards to log the heat temperature at certain times of the day and night in the log book. I accept, at least in regard to Wright, particularly when combined with his nudity and lack *141 of pad or mattress, that the temperature was cold to an inhumane degree, and caused extreme discomfort. (R. 70, 227-8, 527-8, 576, 654-5; Ex. 9: 8; Ex. 39: 66). So I find Wright was kept nude for 11 days without bed or mattress under cold conditions for several nights of those days although a radiator in the cell was turned on after two days, and he was kept nude in 1966 in 4 Segregation Section under similar conditions for certain рortions of 21 days. (R. 225, 230, 128-9, 130, 149).
There are a number of matters about which proof was taken and concerning which the dedicated attorneys for the plaintiffs want considered as issues under the framework of the pleadings in both these actions but I am not so inclined. Many of these issues are peripheral to and not directly involved I believe reasonably under the WrightMosher challenges. Proposed Findings of Fact, Conclusions and detailed decree has been submitted in their regard. Generally, I do consider it unwise that in these days of prison reform on its own the State does not make certain changes, but such thinking on my part does not create federal constitutional issue. The question of legal assistance by one prisoner to another has been finally settled by the United States Supreme Court in Johnson v. Avery,
I should emphasize again that I am not inclined to make this decision a blunderbuss attack upon the New York State Prison system because such attack is not warranted. New York has adopted new legislation, its prisons have inaugurated new programs for guidance and counselling, and judicial intrusion I think should be cautious and restrained at this stage when apparently good faith effort is underway in New York to correct the conditions I find wrong that existed in 1965 and 1966. I do not intend, as the determined lawyers for *143 the plaintiffs desire by their submission, to allow this decision that is confined to the extreme circumstances concerning Wright and Mosher to be used as a launching pad to correct every administrative and confinement fault in the New York State Prison system. Those pleas should be pressed upon the Governor, Attorney General, Correction Commissioner, and proper legislative Committees of New York. The basis for any intrusion here at all is restricted to the power of federal courts to intrude when civil rights are violated by federal constitutional deprivations or violations. I seek to impose self-restraint upon my judicial power as herein I recommend to others who judge. I want the disciplinary administrative personnel whо really assume the function of a Judge to so act when hearing charges and make serious decisions that cause severe confinement and resulting loss of other privileges and rights that may affect parole and conditional release. In the main, of course, my finding for Wright and the conclusion that his constitutional rights were violated is based primarily upon the combination, of the living conditions that he had to endure for periods of time in 1965 and 1966. At that time there was a design in my judgment to avoid written rule-making in the Clinton segregation unit, to put the rebellious prisoner in the hands of the guards under unsanitary conditions that would make him subservient and break him down into a submissive and conforming attitude that was thought in reasonably good faith, I am sure, as being necessary to maintain security and overall maintenance of discipline. There is no doubt that these motivations became part of the system and were handed down by those who had handled prison inmates for years. Unfortunately, it is true that a number of prisoners remain just as desperate and violent inside as outside a Prison and stern measures must be taken which judgment when necessary I do not intend to challenge. The record here bears out a reluctance, however, to indulge in much rule making for segregation confinement, and the Wardens made rare visits to such area of the prison. (E. 1447). Such rules and surprise visits seem essential to insure humаne treatment no matter the provocation. To the credit of Warden McMann, he made major corrections in the 4 Segregation Section when certain conditions came to his attention. (E. 1448-9).
The money damages to be awarded Wright as seems prevalent in the application of all legal principles in these claims under the Civil Eights statute enters a complicated phase of judicial writing. Judge Motley covered the leading cases to the date of her decision, May 14, 1970, in Sostre v. Rockefeller et al., supra. Generally, the compensatory damages are to be governed by federal standards. (42 U.S.C.A. § 1983; Sullivan v. Little Hunting Park, Inc.,
I do not minimize the discomfort Wright had to undergo. However, we do not have the usual propositions of *144 doctor bills, loss of wages, physical injury and possible future physical impairment. Wright is a big, strapping man, and although he testified that under the rigors of his confinement in the cold when nude he lost weight, there is no support for that except his testimony and I refuse to so find. Loss of sleep is believable under the conditions I find existed for periods of the night hours. There are no medical records to substantiate his claims of swollen legs and so forth. (R. 80-87). The doctor did pass his cell daily and there is no record I am aware of with such complaints.
I award no punitive damages because such are justified only as a retributive or deterrent measure. Green v. Wolf Corp., 2 Cir.,
My conclusions of law for Wright are that the Court has jurisdiction ; his confinement under the conditions as described herein in 1965 and 1966 in 4 Segregation Unit at Clinton Prison, Dannemora, N. Y., constituted cruel and inhuman punishment in violation of the Eighth and Fourteenth Amendments; that rules are to be submitted as herein noted that will limit carefully confinements to the “observation cell” to which Wright was confined; permit legal assistance among inmates to each other, and prohibit interference with attorney-client correspondence. That plaintiff Wright is entitled to compensatory damages in the amount of $1500 together with the costs and expenses set forth in plaintiff’s Wright proposed decree in paragraph VII. Jurisdiction shall be retained to insure compliance with the directions herein regarding promulgation and enforcement of proposed rules to attain these purposes. The ■ time limits for submission of new rules and regulations that pertain to the matters herein where I made express direction shall be submitted to the Court and served within 30 days on the plaintiffs’ attorneys, who shall have ten days to object with right to hearing to be fixed by the Court, if necessary. I have tried to make clear that the time period for proposed new rules and regulations for disciplinary hearings, their decision, review and appeal shall be geared by New York to the submission at the same time as that fixed by Judge Motley. A decree in conformance herewith, if agreed upon, shall be submitted for signature and filing, and if not so agreed upon, to be settled upon five days notice.
II
MOSHER
I have less difficulty with the claim of this plaintiff than with Wright. *145 The claim requests no money damages and ironically at the trial there was not the great complaint by Mosher about living conditions in 4 Section, except, of course, his first confinement there took place in 1967. He was not confined nude nor on his part did he make much during his testimony concerning thе heat conditions. Mosher, and I find him a believable witness although obviously explosive and fiery, spent five months in segregation in 1967. He was released in September 1967, and on December 14, 1967, for violation of the same rule was sent back to segregation under the usual UFO (until further order) indeterminate sentence where he was then confined for another year. During the last segregation confinement, Mosher was kept for five months in the 4 Section, which although improved was still severe in its living conditions. (R. 1087-8). The trigger for Mosher’s first confinement to segregation that caused the second one, revolved around his failure to sign a so-called “safety sheet” in both instances. (R. 1017-8; Ex. 11: 1036-7). This regulation to sign a “safety sheet” was said to be a method to insure that every prisoner read the safety rules before working in the prison shops. I find that Mosher sincerely felt that such document would waive his right to sue the State of New York for damages for personal injuries caused by negligence and that is why he refused to sign. (R. 1018-9, 1061, 1077, 1201). The lawyers and I at the trial could not agree as to the legal significance or construction that might be given to the “safety sheet” and the possible extent of waiver of rights, and Warden LaVallee testifying in Court said he would have no objection to addition of words to the sheet that the inmate was not waiving rights for personal injury claims against State. (R. 1518-19). More important is the testimony of Warden McMann that he did not believe failure to sign the sheet called for disciplinary action at all. (Ex. 3: 28-29). Director Bennett testified the segregation sentence was inappropriate punishment. (R. 243-7).
Other inmates who refused to sign only lost yard and commissary privileges. (Ex. 14: March 28, December 14, 1967). With reliance on this type testimony, I find that the original confinement to segregation of Mosher and its prolongation was grossly disproportionate punishment for the offense committed by him, I also find that procedural safeguards with meaningful review and formal right to appeal in this instance might have averted or corrected this improper punishment. (See Armstrong v. Manzo,
My conclusions of law are there is jurisdiction in this Court of the Mosher claim; his Eighth and Fourteenth Amendment constitutional rights were violated by reason of disproportionate punishment for offenses committed in violation of prison rules; that the “good time” loss resulting from infractions and related ones discussеd herein shall be restored; that he is entitled to injunctive relief to the extent only indicated herein. The time limits set in the Wright action apply here. The decree for Mosher should contain the same provisions for award of costs and expenses as in Wright. The decree shall be submitted if consented to, otherwise settled on five days notice.
In conclusion, I must say reaching decision in these actions has been a difficult task. The issues, many of them probably borderline for consideration in a federal court were numerous and filled with legal complications. The consequences of abrupt and arrogant interference had to be weighed and balanced with the compelling interest to uphold federal. constitutional rights in accord with modern precepts. The balance must be kept true as Justice Cardozo said, and there must be equal understanding of the prison administration problems as well as those of the inmates. The problems will work out if fairness and firmness become dominant principles in prison discipline and due regard is given to the immense studies and program recommendations now available as guides.
The exhibits herein, except the five Log Books, (Ex. 38, 39, 40, 41, 42), shall be filed with the Clerk of the Court with this decision at Utica, New York. The Assistant Attorney General attaches security importance to the Log Books and they shall be retained in my Chambers at Albany, to be delivered to a representative for the defendants at their convenience.
It is so ordered.