Raymond Gilliard v. Russell Oswald, Commissioner of Correctional Services, and J. Edwin Lavallee, Superintendent of Clinton Correctional Facility

MOORE, Circuit Judge:

Defendants, Russell G. Oswald, Commissioner of Correctional Services and J. Edwin LaVallee, Superintendent of Clinton Correctional Facility (hereinafter “Clinton”) appeal from a judgment in favor of plaintiffs, Raymond Gilliard, Francis Bloeth and John Suggs, inmates of Clinton at the time of the events herein described, awarding them $715, $748.25 and $740, respectively, as damages for their alleged “unconstitutional confinement in special housing units on and after February 23, 1973”. (App. 9). The case was tried to the Court. Jurisdiction is premised on 42 U.S.C. § 1983 and 28 U.S.C. § 1343.

The theory upon which the District Court based its decision may be summarized in its finding that no emergency situation existed at Clinton on and after February 23, 1973 and that “[plaintiffs’ confinement in special housing units on and after February 23, 1973 constituted substantial deprivations and they were thus constitutionally entitled to minimal procedural due process.” Conclusions of Law 2 and 3 (App. 8). Because we find no basis on the law and the facts for the judgment based thereon, we reverse for the reasons hereinafter stated.

The defendant LaVallee was the Superintendent at Clinton. As such, he was responsible for the welfare and safety of some 1600 inmates. Needless to say, this responsibility begat problems. These problems should not be analyzed in a legalistic way more than three years after the events in issue by judges who did not have to cope with the situation presented to the Superintendent at the time. Rather, if justice is to be accomplished, we must try to look through the Superintendent’s eyes at what he saw and into his mind as to his reaction thereto.

Prior to February 15,1973 there had been a series of assaults by inmates upon inmates which apparently culminated on February 15th with the serious injury of five of them, two of whom had to be hospitalized. Faced with this situation, the Superintendent declared a state of emergency, ordering that Clinton “be completely closed down, and that the entire inmate population be locked in their cell's.” Finding of Fact 3 (App. 4). This he was entitled to do “if necessary for the safety or security of the facility” and to direct that “all inmates or any segment of the inmates ... be confined in their cells or rooms for the duration of any period in which the safety or security of the facility is in jeopardy.”¹ Such procedure is known as “keeplocking”.

Thereafter an intensive search was conducted, both of the inmates and of their cells, which search uncovered a large number of weapons and other contraband. Next, it became necessary to determine, if possible, those responsible for the assaults. This investigation was far more difficult and time consuming. The prison was divided into fourteen separate areas from which lists were obtained as to disruptive or potentially disruptive inmates. Appearances on one or more of the lists presented good cause for further investigation.

On February 23, 1973, to further the investigation and to allay the fears of other inmates, some 140 men, including the plaintiffs, were transferred to a Special Housing Unit referred to as the “E Block”. Notice of the transfer was given to each of the inmates transferred, the substance of which was that he was being placed “in temporary keeplock status” because of the February 15, 1973 disturbance until his status was determined, and that the action was taken “for the safety and security of you, and the institution.” (App. 23).

On March 12, 1973, while the investigation was continuing, plaintiffs and others were moved to a more restrictive area, known as “Unit 14”, and on or about March 28, 1973, plaintiffs were transferred to the Adirondack Correctional Treatment and Evaluation Center. In early April a report was made that the emergency had ended. On May 22, 1973 plaintiffs commenced this action.

The District Court, in its Memorandum Decision and Order, stressed the facts that plaintiffs were not informed of any specific charges against them and that they were not given a hearing so as to challenge their confinement. With the court’s finding that there was no continuing state of emergency from February 23, 1973 to late March, 1973, justifying plaintiffs’ summary confinement in special housing units and the court’s conclusion that the disciplinary action taken against the plaintiffs was in violation of their due process rights (App. 7, 9), we disagree.

At the outset, in our consideration of the law we must not be guided by the decisions of those courts which faced situations involving specific harsh treatment accorded to a particular inmate. In other words, we are not dealing with a Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971), cert. denied, 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740 (1972), type of case or with facts as presented in other and different cases. Nor should we be misled by the word “emergency” and endeavor to give it a talismanic meaning. Instead we should look to the actual situation which confronted the man charged with the responsibility of the safety of some 1600 inmates, a man possessed of years of practical experience in prison management, to decide whether his judgment in handling the situation then before him failed to comport with permissible standards.²

The Superintendent’s actions were not called into play because of, or against, these three plaintiffs. A situation had arisen requiring a thorough investigation of the entire prison and its inmates. The three plaintiffs, even after their names appeared on several lists, were not singled out; they merely became part of some 140 inmates requiring further investigation. Segregation of these 140 might well have assisted and expedited that investigation. Furthermore, only by such a procedure could it be determined whether or not these plaintiffs were involved. Moreover, there has been no showing below of either malice or lack of good faith on the part of the Superintendent.

The District Court found that there was no continuing emergency after February 23, 1973, but the Court was not on the scene or responsible for the welfare of the inmates. An “emergency” of the type exhibited in Clinton in February 1973 cannot be measured with the timing of a stopwatch or have an automatic shut-off switch. It may well be that the immediate measures taken by the Superintendent caused the assaults to cease, but these visible signs would not necessarily evidence a cure of the cause or assure accurate identification of the troublemakers. Their ascertainment would necessitate time and subtle investigation because it is to be doubted that inmates would relish even the suspicion of being known as informants. The methods to be pursued had to be entrusted to the discretion and judgment of the Superintendent. His judgment should prevail absent a clear showing of gross abuse.

Moreover, a prompt return of these inmates to their original cellblocks might have resulted in a renewal of the very evil which the Superintendent was seeking to cure.

“[T]he possibility of widespread violence is a continuous condition of prison life. A good faith determination that immediate action is necessary to forestall a riot outweighs the interest in accurate determination of individual culpability before taking precautionary steps. Indeed, even in many of the minor decisions that guards must make as problems suddenly confront them in their daily routines, the state’s interest in maintaining disciplined order outweighs the individual’s interest in perfect justice.” United States ex rel. Miller v. Twomey, 479 F.2d 701, 717 (7th Cir. 1973), cert. denied, 414 U.S. 1146, 94 S.Ct. 900, 39 L.Ed.2d 102 (1974).

A hypothetical, but not fanciful, case might well have arisen had the Superintendent prematurely ended his investigation and an inmate been seriously injured as a result: The injured inmate could well have argued liability for failure to do the very acts which the Superintendent carried out here.³

Plaintiffs argue lack of a hearing. This argument overlooks the fact that at this stage the Superintendent’s acts were entirely administrative and the proceedings purely investigatory. Even reducing the number of inmates potentially involved to a few hundred, a hearing for each would have been virtually impossible. And a hearing for what? The situation was not ripe, for definite charges — -and charges should not be made until facts justifying them are obtained.

The law in this Circuit is clear that under circumstances far less compelling than those now before us,

“[p]rison authorities must of necessity be allowed wide discretion in the use of protective confinement for the purpose of protecting the safety and security of the prison and its general population [citing cases].” United States ex rel. Walker v. Mancusi, 467 F.2d 51, 53 (2d Cir. 1972).

In view of our conclusion that the record discloses no violation of plaintiffs’ constitutional rights it is unnecessary for us to pass upon the question of personal liability on the part of defendants Oswald or LaVallee or of Oswald’s knowledge of the Clinton incident or any liability therefor.

Judgment reversed; complaint dismissed; no costs.

1 . Section 251.6(f) of Title 7 of the Official Compilation of Codes, Rules and Regulations of the State of New York.

2 . “The psychology and social stability of a prison community are foreign to one who is not involved with it on a day-to-day basis. Any attempt to reconstruct, at a later date, the conditions present at the time of dispute, and the dangers then feared by prison authorities, is fraught with perils of misunderstanding and misapprehension.

Accordingly, the standard of review of a challenge to the sufficiency of the basis for emergency response must be generous to the administration.” LaBatt v. Twomey, 513 F.2d 641, 647 (7th Cir. 1975) (an emergency keeplock situation).

3 . See, e. g., Fox v. Sullivan, 539 F.2d 1065 (5th Cir. 1976); Curtis v. Everette, 489 F.2d 516 (3rd Cir. 1973), cert. denied, 416 U.S. 995, 94 S.Ct. 2409, 40 L.Ed.2d 774 (1974); Parker v. McKeithen, 488 F.2d 553 (5th Cir.), cert. denied, 419 U.S. 838, 95 S.Ct. 67, 42 L.Ed.2d 65 (1974). See also, Mitchell v. Boslow, 357 F.Supp. 199 (D.Md.1973); Matthews v. Henderson, 354 F.Supp. 22 (M.D.La.1973).