George Nieves v. Russell G. Oswald, Commissioner of Correctional Services, Vincent R. Mancusi, Superintendent of Attica Correctional Facility , 498 F.2d 802 ( 1974 )

MOORE, Circuit Judge:

Between September 9 and 13, 1971, a disturbance by the inmates at the Attica Correctional Facility (Attica) resulted in many acts of violence and many deaths. A not unexpected aftermath has been an attempt to ascertain, both inside and outside prison walls, such persons as might have been responsible. Outside the prison a special grand jury was impaneled to consider possible criminal charges; inside the walls there remains the possibility of disciplinary hearings against inmates who took part in the disturbance.

Anticipating criminal and/or disciplinary action against them, nine¹ inmates, purporting to sue on behalf of all inmates of Attica subject to disciplinary hearings as a result of the events at Attica between September 9th and 13th, filed a complaint on November 16, 1971,² seeking injunctive relief against the holding of such hearings on the ground that adequate procedural safeguards had not been provided. A “declaration that the facts complained of are unconstitutional” was also sought.

Plaintiffs-appellants (as Petitioners) asked that a three-judge court be convened. This request was denied; on appeal the denial was reversed by this court and remanded, Nieves v. Oswald, 477 F.2d 1109 (2d Cir. 1973). On remand plaintiffs withdrew their request for an injunction. This left only the declaratory issue for the District Court’s determination.

The District Court carefully considered each contention raised by plaintiffs, namely, (1) fear of self-incrimination in connection with matters pending before the special grand jury; (2) inability to be present to confront and cross-examine witnesses; (3) failure to require testimony under oath; (4) no opportunity to present evidence in own behalf; (5) lack of counsel or counsel substitute; (6) failure to provide an impartial tribunal; and (7) failure to provide for a written decision based upon substantial evidence. More specifically, the Court also dealt with charges that the rule allegedly violated was not made known to the inmate, that the rules were too general and vague, and that copies of the rules were not given to inmates.

The Court then proceeded to analyze the Rules (in order as they appear in the District Court’s opinion, §§ 251.5, 252, 253, 253.2, 253.3, 253.4, 253.5, 270.2, 270.4, 260.4, 261, and 261.3). 7 N.Y.S. C.R.R. Chap. V.

In a rather lengthy opinion the trial court held, in substance, that to protect the inmate against self-incrimination which might arise in any disciplinary hearing, the inmate should have (1) an adequate opportunity to consult counsel prior to the proceeding; (2) a prison employee to assist the inmate designated pursuant to section 253.2 of the New York State Code of Rules and Regulations (N.Y.S.C.R.R.), Chapter V, Volume 7; (3) presence of counsel at the ini: tal meeting between inmate and the designated employee to discuss and determine investigatory procedures; (4) a copy of the employee’s written investigation report; and (5) counsel present during the hearing to consult with the inmate. The Court limited these safeguards by declaring that such counsel was not to have leave to “conduct his own personal investigation within the confines of the prison” or “to cross-examine witnesses nor to call witnesses in addition to those interviewed by the hearing officer.”

In short, the Court held that: “To condone a procedure whereby an inmate goes into those proceedings uninformed or ill advised as to the dangers involved, then makes an incriminating statement and is left with the solé remedy of a pretrial suppression hearing, appears to this Court to be inconsistent with the requirements of due process when received in the context of the present situation.” Having satisfied itself that counsel was required, the Court granted the right, subject to certain limitations. The trial Court concluded that the “defendants are permanently enjoined from conducting any and all disciplinary hearings concerning charges against inmates arising from their claimed participation in the events at Attica between September 9 through 13, 1971, inclusive, unless and until such inmates are provided the assistance of retained or appointed counsel to act in the capacity detailed in this opinion.” The Court, noting our en banc decision in Sostre v. McGinnis, 442 F.2d 178 (2d Cir.), cert. denied, 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740 (1971), 405 U.S. 978, 92 S.Ct. 1190, 31 L.Ed.2d 254 (1972), qualifies its opinion with the caveat that it “should not be considered as holding that the right to counsel is required in all cases of prison disciplinary proceedings.”

The case now comes to us on appeal both by plaintiffs who inveigh against the limitations placed by the trial court on the “due process safeguards” that were granted and by defendants who object to that portion of the court’s opinion which grants the prisoners the assistance of counsel.

Because it is not known at this time what, if any, charges may be leveled against these particular inmates, the District Court’s opinion must, of necessity, have been somewhat hypothetical in character. The Court stated:

Although the services thus provided may afford the inmate an alternative means of establishing a defense to the disciplinary charge, it does little to protect him from self-incrimination, either through ignorance or otherwise, as far as possible criminal charges of murder, kidnaping and the like which may flow from his involvement in the September revolt.

During the course of those disciplinary hearings, there must certainly come a time when a determination has to be made concerning what statements on his part may or may not be incriminating and what conduct on his part may or may not be consistent with a defense to the potential criminal charges presently under investigation by the special grand jury. These are determinations not to be made by an untrained layman but rather by a qualified attorney competent in that area of law.

Thus it is evident that the Court was addressing itself to procedural safeguards in serious eases such as “charges of murder, kidnaping and the like.”

In our view, this case now on appeal for the second time is at this stage in a troublesomely obscure posture. In part, this is due to the fact that events relevant to the issues have occurred since the District Court’s order; also the class as defined below may not properly recognize certain sub-classes with different problems and “standing”. Furthermore, on November 26, 1971 and again on May 21, 1973, after the decision of the “April panel” of this Court, 477 F.2d 1109 (1973), counsel stipulated to a temporary stay of disciplinary hearings respecting plaintiffs’ class. According to the trial Court, the November 26, 1971 stay of such hearings was to continue “until the special [Wyoming County] grand jury has made its report or until the merits of this action have been determined.” This language is not entirely clear, but it suggests the possibility that counsel agreed on behalf of the State that the State would suspend all disciplinary hearings until the Wyoming County grand jury hands up its presentments or expires by operation of law. Indeed, the actual language of counsel for the State, who first proposed a stay, on November 26, 1971, to us more clearly indicates that this was and still may be the essential posture of the State of New York:

Mr. Stenger: . . . Now, what I would like to propose, your Honor, is this, appreciating the dilemma because of the pending criminal investigation, I am authorized to state that the respondent will consent to a temporary injunction of a limited degree, namely, that no administrative disciplinary hearings will be heard as against any charges arising from the Attica insurrection up until such time as the grand jury, now about to convene and sit, has returned a report and any indictments, and the actual targets of that investigation are known.

The Court: You mean a final report?

Mr. Stenger: Yes, or until such time as this action is determined. In other words, we will relieve voluntarily any of these inmates of the dilemma by not proceeding, under the Court’s direction, with the holding of any administrative hearings where they may be placed in this position that has been suggested, until such time as it is known whether they are the target of investigation or not, and, of course, at that time when it is known, we should be free to go ahead with those who are not a target, and then we can 'discuss continuation of an injunction as to those who have been determined to be a target. We are prepared and willing to consent to that, pursuant to the Court's direction, and I think that will solve the temporary dilemma in which these people find themselves with regard to this one point. So as far as the request for injunctive relief of a temporary nature, I will make that concession on behalf of the respondent.

In light of this language and of developments before the special grand jury, therefore, it may still be the precise position of the State of New York that: (1) it will proceed with disciplinary hearings against those plaintiffs and class members who are now known not to be grand jury targets, and (2) it will consider further stays as to those members of the class who are existing or potential targets. If this be true, then it would follow that such members of plaintiffs’ class who are currently protected by the stay have no present standing to press for a determination of the merits by the district court at the present time.

But, as Judge Oakes in dissent forcefully argues, this may not have been the intent of the parties, most particularly the State of New York, on November 26, 1971, or, if it was then, it was not so when counsel entered the written stipulation, which is part of the very judgment of the district court here appealed from, on May 21, 1973. The operative language of that written “stay” makes no reference to the Wyoming County grand jury and its proceedings, but simply provides that the disciplinary hearings “shall be stayed pending the final outcome of this litigation. . . .” Possibly then, it can be inferred, as does Judge Oakes, that this new language reflects the understanding of the parties that the stay is effective pending the outcome of this case — i. e., that the parties do not wish to wait upon the special grand jury proceedings and other criminal investigations but prefer to have the merits of this case resolved in the federal courts.

Notwithstanding that this construction of the intentions of the parties and their counsel may be correct, our notions of sound federalism and of the aforementioned ambiguity of the record, suggest the cautious approach of remanding this case with directions set forth hereinafter.

The motivating reasons for this conclusion are that until the special grand jury has acted, the inmate will not know whether or not a true bill has been returned against him. If not, then there still may be a possibility that charges will be preferred against him for some prison infraction. What these may be, if any, cannot be known until the occasion arises. Once the nature of the charges is known, the accused should be given all necessary protection. This protection can be best formulated by the District Court in light of the facts before it. If indictments have already been returned, the Court can mold necessary relief accordingly.

Specifically, the trial Court should have the parties by their counsel supplement and flesh out the record to show in reasonable detail the actions of the special grand jury and other investigative bodies to date, with particular concern, of course, for information as to which members of the plaintiffs’ class have been indicted and for what charges. In this connection, we note that, since argument of this appeal, there have been newspaper reports of indictments returned by the special grand jury in Wyoming County.

Moreover, the District Court should inquire what the intent of the State now is respecting disciplinary hearings for (1) those class members who presently can be identified as non-targets of the special grand jury or any other state criminal investigation and (2) for those who are or still may be targets of such proceedings. As was noted in Sostre v. McGinnis, 442 F.2d 178, at 196 (2d Cir. 1971), cert. denied, 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740 (1972) and 405 U.S. 978, 92 S.Ct. 1190, 31 L.Ed.2d 254 (1972), and Nieves v. Oswald, 477 F.2d 1109, at 1113 (2d Cir. 1973), due process safeguards must vary depending upon the factual setting.³ In light of this, it would be premature, particularly for an appellate panel, to delineate minimum due process requirements for the non-target members of the class until it is established what are the specific charges against them and what penalties may be imposed. With regard to those members of the class who are or may be targets, as already noted, they would not have standing to press their claims in the event that the State agrees before the trial Court either to forego certain disciplinary charges entirely or to stay the disciplinary hearings, at least until the special grand jury and other state criminal investigations have run their course.

Accordingly, we remand the case to the district court with directions to vacate the order appealed from and reopen the hearing to supplement the record along the two main lines heretofore described. Further, once the record has been supplemented, we note that the trial judge may wish to hear further argument relevant to the “new” or additional facts, make further findings and enter a new order or orders to properly adjudicate the rights of parties in light thereof. No costs.

1 . By amendment dated November 23, 1971, eight other plaintiffs were added.

2 . Nieves was the only plaintiff filing on this date.

3 . There is a substantial difference between the named plaintiffs quite apart from probably greater differences between other members of the class. Thus, by way of illustration, the charges against these nine appear to be:

Nieves — giving a note to a Correctional Officer to the effect that Nieves is a member of the “Young Lords”.

Sumpter — threatening Correctional Officers.

Merkel — assaulting Correctional Officers.

Roberts — throwing weapons to other inmates.

Pelow — attempting to break into gate and organizing inmates to take over offices ; also with threatening a Correctional Officer.

Ortiz — striking officers with objects thrown from his cell.

Figueroa — striking an officer.

Little — assaulting officers.

Hieks — guarding hostages for four days.