Wright v. McMann Brief for Appellee

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TABLE OF CONTENTS

TABLE OF AUTHORITIES..............................  iv

STATEMENT OF FACTS ................................  1
1. Punitive Segregation ........................  5
2. Disciplinary Procedures Leading To

Segregation Or Loss Of Good T i m e ............  14
3. Psychiatric Observation Cells ............. 16
4. Prohibition Against Inmate

Legal Assistance............................  18
5. Withholding And Censorship Of

Attorney-Client Correspondence ............. 18

QUESTIONS PRESENTED ..............................  19

ARGUMENT
I. The District Court Properly Held That 

Appellee Mosher Was Unconstitutionally 
Punished....................................  21
(1) Extraordinarily Severe Conditions

of Punitive Segregation ................  22
(2) Excessively Long Period of Segregation . . 25
(3) Loss of "Good T i m e " ....................  26
(4) Lack of Any Justification for

the Punishment..........................  27

II. The District Court Properly Ordered The
Restoration Of Mosher's Statutory Good Time
Lost By Reason Of Wrongful Punishment . . . .  33

III. Mosher's Extraordinary Punishments Were 
Imposed In Violation Of Rudimentary
Procedural Due Process ....................... 26

Page

ii



Page

IV. The District Court Properly Enjoined
Use Of Psychiatric "Observation" Cells 
For Disciplinary Purposes And Required 
Appropriate Safeguards For Their 
Future Use ..............................

V. The District Court Properly Enjoined
The Prison Officials From Censoring And 
Interfering With Correspondence Between 
Appellee Mosher And The Attorney Appointed 
By The District Court To Represent Him 
In This Action ..........................

VI. The District Court Properly Ordered The
Prison Officials To Permit Legal Assistance 
Among Prisoners, Where The State Provides 
No Alternative Means of Legal Assistance 
To Prisoners ............................

CONCLUSION 53

iii



TABLE OF AUTHORITIES

CASES Page

Anderson v. Nosser, 438 F.2d 183 
(5th Cir. 1971) 23,31

Ayers v. Ciccone, 303 F .Supp. 367
(W.D. Mo. 1969), aff'd, 431 F.2d 724 
(8th Cir. 1970) 33

Barnes v. Hooker, No. R-2071 
(D.,Nev. Sept. 5 , 19 69) 23

Barnett v. Rodgers, 410 F .2d 995 
(D.C. Cir. 1969) 48

Beard v. Alabama Board of Corrections, 
413 F.2d 455 (5th Cir. 1969) 52

Bearden v. South Carolina, F .2d , 
9 Cr. L. Rptr. 2231 (4th Cir.
June 10, 1971) 38

Bey v. Connecticut State Board of Parole, 
F.2d , 39 U.S.L.W. 2695 

(2d Cir. May 17, 1971) 39

Brooks v. Florida, 389 U.S. 413 (1967) 23

Brown v. Peyton, 437 F.2d 1228 
(4th Cir. 1971) 48

Bundy v. Cannon, F.Supp. , 
9 Cr. L. Rptr. 2254 (D. Md.
May 26, 1971) 41

Candelaria v. Mancusi, Civ.No. 1970-491 
(W.D. N.Y. Jan. 7, 1971) 48

Carothers v. Follette, 314 F.Supp. 1014 
(S.D. N.Y. 1970) 31,34,35,36,

41,48,52

Carter v. McGinnis, 320 F.Supp. 1092 
(W.D. N.Y. 1970) 31

Clutchette v. Procunier, F.Supp. , 
No. C-70 2497 AJZ (N.D. Cal.
June 21, 1971) 39,41

iv



Page

Coleman v. Peyton, 362 F.2d 905
(4th Cir.), cert, denied, 385 U.S.
905 (1966) 51

Coonts v. Wainwright, 282 F.Supp. 893 
(M.D. Fla. 1968), aff'd, 409 F.2d 1337 
(5th Cir. 1969) 52

Covington v. Harris, 419 F.2d 617
(D.C. Cir. 1969) 46

Dabney v. Cunningham, 317 F.Supp. 57
(E.D. Va. 1970) 31

Davis v. Lindsay, 321 F.Supp. 1134
(S.D. N.Y. 1970) 31

Dearman v. Woodson, 429 F.2d 1288
(10th Cir. 1970) 30

Edwards v. Schmidt, 321 F.Supp. 68
(W.D. Wis. 1971) 35

Escalera v. New York City Housing
Authority, 425 F.2d 853 (2d Cir. 1970) 40

Fortune Society v. McGinnis,
319 F.Supp. 901 (S.D. N.Y. 1970) 48

Fulwood v. Clemmer, 206 F.Supp. 370
(D. D.C. 1962) 30,48

Goldberg v. Kelly, 397 U.S. 254 (1970) 40
Hancock v. Avery, 301 F.Supp. 786

(M.D. Tenn. 1969) 23,30,35
Holmes v. New York Housing Authority,

398 F.2d 262 (2d Cir. 1968) 32
Holt v. Sarver, 300 F.Supp. 825

(E.D. Ark. 1969) 23
Holt v. Sarver, 309 F.Supp. 362

(E.D. Ark. 1970) 31
Houghton v. Shafer, 392 U.S. 639 (1968) 35
Hurtado v. California, 110 U.S. 516 (1884) 32

v



Page

Jackson v. Bishop, 404 F .2d 571 
(8th Cir. 1968) 28,29,31

Jackson v. Godwin, 400 F.2d 529 
(5th Cir. 1968) 29

Johnson v. Avery, 393 U.S. 483 (1969) 34,52

Jones v. Robinson, 440 F.2d 249 
(D.C. Cir. 1971) 41

Jordan v. Fitzharris, 257 F.Supp. 674 
(N.D. Cal. 1966) 23,30,31

Katzoff v. McGinnis, 441 F.2d 558 
(2d Cir. 1971) 35

Landman v. Peyton, 370 F .2d 135 
(4th Cir. 1966) 21,27

Marbury v. Madison, 1 Cranch 137 (1803) 32

Marsh v. Moore, F.Supp. , 
9 Cr. L. Rptr. 2098 (D. Mass. 
April 8, 1971) 51

In re Medley, 134 U.S. 160 (1890) 24

Mempa v. Rhay, 389 U.S. 128 (1967) 39

Meola v. Fitzpatrick, 322 F.Supp. 878 
(D. Mass. 1971) 41,48,51

Miranda v. Arizona, 384 U.S. 436 (1966) 39

Monroe v. Pape, 365 U.S. 167 (1961) 35

Morales v. Turman, Civ. No. 1948 
(E.D. Tex. March 1, 1971) 51

Moreno v. Henckel, 431 F .2d 1299 
(5th Cir. 1970) 35

Morris v. Tr^visono, 310 F.Supp. 857 
(D. R.I. 1970) 41

Nolan v. Fitzpatrick, 326 F.Supp. 209 
(D. Mass. 1971) 51

Nolan v. Scafati, 430 F .2d 548 
(1st Cir. 1970) 41,48

vi



Pacie-
Palmigiano v. Travisono, 317 F.Supp. 776 

(D. R.I. 1970)
Payne v. Whitmore, No. C-70 2727 ACW 

(N.D. Cal. Jan. 14, 1971)
People v. Dorado, 62 Cal.2d 338,

42 Cal. Rptr. 169 (1965)
People v. Wainwright, ___ F.Supp. ___,

9 Cr. L. Rptr. 2038 (M.D. Fla.
March 15, 1971)

Rhem v. McGrath, ___ F.Supp. ___,
9 Cr. L. Rptr. 2038 (S.D. N.Y.
March 17, 1971)

Rivers v. Royster, 360 F.2d 592 
(4th Cir. 1966)

Robinson v. California, 370 U.S. 660 (1962)
Rodriguez v. McGinnis, ___ F.2d ___,

No. 34567 (2d Cir. 1971)
Smith v. Robbins, ___ F.Supp. ___,

9 Cr. L. Rptr. 2288 (D. Me.
June 18, 1971)

Smoake v. Fritz, __ F.Supp. ___,
No. 70 Civ. 5103 Cs.D. N.Y. 1970)

Sostre v. McGinnis, ___ F.2d ___
(2d Cir. 1971)

Stevenson v. Mancusi, ___ F.Supp. ___,
9 Cr. L. Rptr. 2175 (W.D. N.Y.
April 20, 1971)

Swann v. Charlotte-Mecklenburg Board of 
Education,, U.S. ,
9 S. Ct. 1267 (1971)

United States v. Wade, 383 U.S. 218 (1967)
United States ex rel. Campbell v. Pate,

401 F.2d 55 (7th Cir. 1968)

48,51

51

39

51

51

35
31

35

51

31

11,21,22,23,25,
28,29,30,31,33,
34,36,37,38,43,
46,47,48,49,50,52

52

45
39

26,34

v n



Page

United States ex rel. Hancock v. Pate, 
223 F.Supp. 202 (N.D. 111. 1963) 26,31

Weems v. United States, 217 U.S. 349 (1910) 30

Williams v. Robinson, 432 F.2d 637 
(D.C. Cir. 1970) 46

Wright v. McMann, 387 F.2d 519 
(2d Cir. 1967) 23,35,44

Yick Wo v. Hopkins, 118 U.S. 356, 
6 S. Ct. 1064 (1886) 32

STATUTES, RULES AND REGULATIONS

28 U.S.C. Section 2254 34

42 U.S.C. Section 1983 34

Federal Bureau of Prisons,
Policy Statement 7400.5 (Nov. 28, 1966) 24

Federal Bureau of Prisons,
Policy Statement 7400.6 (Dec. 1, 1966) 42

New York Department of Correction, 
7 N.Y.C.R.R. Part 300 et seĉ . 24

New York Department of Correction, 
7 N.Y.C.R.R. Section 253.3 40

New York Department of Correction, 
7 N.Y.C.R.R. Section 253.5 26

Office of Adult Corrections, State 
Washington, Memorandum No. 70-5 
(Nov. 6, 1970)

of
51

OTHER AUTHORITIES

Atty. Gen. Op. 409/70, Feb. 11, 1971; 
8 Cr. L. Rptr. 2486 39

Hirschkop and Milleman, The
Unconstitutionality of Prison 
Life, 55 Va. L. Rev. 795 (1969) 42,50

viii
\



Page
Manual of Correctional Standards,

American Correctional Association,
413 (1966) 24,25

Model Penal Code, proposed official
draft, Section 304.7(3) (1962) 25

President's Commission on Law Enforcement 
and Administration of Justice, Task
Force Report, Corrections, 13 (1967) 41,42

Turner, Establishing the Rule of Law in
Prisons, 23 Stan. L. Rev. 473 (1971) 41,51

i
ix



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

) ■
)
)
)
)) Docket No. 35572
)
) ■
)
)
)
)
')

UNITED STATES OF AMERICA ex rel. )
ROBERT MOSHER, )

)
Petitioner-Appellee, )

)vs ) Docket No. 35573
)

J. EDWIN LaVALLEE, Superintendent,)
Clinton Correctional Facility, )

)
Respondent-Appellant. )

)

LAWRENCE WILLIAM WRIGHT,
Plaintiff-Appellee,

vs.
DANIEL McMANN, Warden of 
Clinton Prison,

Defendant-Appellant.

BRIEF FOR APPELLEE ROBERT MOSHER

STATEMENT OF FACTS

The material facts in Robert Mosher’s case are
1/not in dispute.

1/ The district court noted that the proposed findings of
fact submitted by appellees were "accurately keyec to the 
record and exhibits" and were "helpful. . .for convenient 
reference and as an aid to those who may be next to review 
and consider this substantial record" (153a). Mosher's 
proposed findings are printed in the Appendix at 98a-134a.

-1-



After pleading guilty to the crime of robbery, 
appellee Mosher began serving his 40-60 year sentence at

y
Clinton Prison in July, 1964 (TM 1C06-8, 1199). He had 
no disciplinary difficulties at all for over a year and, for 
aught that appears, made a satisfactory adjustment to life

3/
at the prison (Exh. 2). During his first three years at 
the prison, Mosher was charged with only four very minor 
disciplinary offenses, one of which he disputed having 
committed. He worked successfully in the prison industrial 
program. He posed no danger to the security or order of 
the institution. He has never, during his entire term of 
incarceration, been accused of any act or threat of violence 
or any conduct menacing the security or order of the 
institution (TM 1045).

On March 28, 1967, Mosher was presented in the 
prison weave shop with an industrial "safety sheet"

y(TM 1017-18, 1087). He had worked a full day in the shop 
without incident, but the next morning an orficer confronted

2/ Citations to "TM" refer to the trial minutes submitted 
— as Exhibit A on appeal.
3/ Exhibit E on appeal, which was Exhibit 14 at trial,

consists of the prison Daily Journal entries relating to 
appellee Mosher. It contains all of the disciplinary 
infractions that Mosher was charged with, and the 
punishments meted out. It is also of interest as a 
random sample of disciplinary actions taken at the prison, 
since it includes actions taken with regard to other 
prisoners as well.

4/ The safety sheet is Exhibit D on. appeal and was exhibit 11 
at trial.

-2-



him with the sheet and told him to read and sign it (in
duplicate) and the officer would witness his signature (Id.).
The form states that a copy of the executed sheet will be
included in the prisoner's central file. Mosher read and
understood the safety rules listed on the sheet, and he was
ready and willing to work wherever assigned (TM 1071-72,
1019, 1061). He had previously worked for about three months
in the prison cotton shop, where inmates were not required

5/
to sign any such sheet (TM 1013). However, he felt that
the document could operate as a waiver of his right to relief
in case he were injured as a result of the State's negligence
in management of the shop (TM 1018-19, 1061, 1077, 1201).
The district court found as a fact that Mosher was sincere
in this belief and for that reason refused to sign the

6/
sheet. This resulted in a disciplinary charge against him.

5/ In civilian life Mosher was employed as a mechanic at a 
switchboard manufacturing company, where he worked on 
various machines and electrical equipment (TM 1008).

6/ Although the safety sheet (Exhibit D on appeal) does not 
speak in explicit terms as a waiver, a layman might 
reasonably have doubts about the legal consequences of 
signing the form. Indeed, the attorneys and the trial 
judge in this case were unsure of its effect (174a).
The requirement that the signature (in duplicate) be 
witnessed by an officer indicates more formality than 
reasonably associated with a simple list of safety rules. 
Also, the fact that the sheet becomes a permanent part of 
the prisoner's central file indicates that it might be 
used for purposes other than merely informing the prisoner 
of shop safety rules. Although the Warden testified that 
no practical difficulties or undesirable consequences 
would result from modifying the sheet clearly to indicate 
that it does not constitute a waiver (TM 1518) , Mosher 
was not given that option au the time but was required 
to sign the sheet without alteration.



Mosher was summoned to a disciplinary "hearing" 
before Deputy Warden DeLong. Although the only purpose of 
the safety sheet is to assure that inmates know the snop

Vsafety rules (DeLong Dep. 35, 87; McMann Dep. 27-28),
DeLong would not allow Mosher to work without signing the 
sheet and he summarily sentenced Mosher to punitive 
segregation for an indefinite term (TM 1019-20, 1201).
DeLong1s position was that even where the prisoner had read 
and understood the safety rules, and where he was ready and 
willing to work wherever assigned, he must still sign the 
form (DeLong Dep. 86, 88-89; TM 1200).

Although DeLong treated Mosher's refusal to sign 
the safety sheet as a disciplinary matter requiring punitive 
segregation, DeLong1s superior at the time, Warden McMann, 
testified that refusal to sign the sheet would not call for 
disciplinary action at all; a prisoner who refused to sign 
would merely be assigned to the "idle" population, where he 
would not work and earn industrial wages (McMann Dep. 28-29). 
However, although McMann was warden when Mosher was sent to 
segregation, he did not even know that DeLong had taken this 

action (Id.)•

James V. Bennett, the former Director of the 
Federal Bureau of Prisons, who testified as an expert for

7/ The designated depositions, introduced at trial, nave 
been submitted as Exhibit B on appeal.

-4-



the prisoners in this case, stated that imposing punrtive 
segregation on Mosher in these circumstances was 
inappropriate as a matter of sound prison administration 
(TM 243-47).

1. Punitive Segregation

As punishment for refusing to sign the safety 
sheet, Mosher was confined to punitive segregation for about 
five months in 1967; he was released to tne general population 
on September 13, 1967 (TM 1031, 1202). On December 14, 1967, 
without any intervening problems, Mosher was again reported 
for refusing to sign the safety sheet and on December 18 
was again sentenced to segregation for an indefinite term 
(TM 1036-37). He was continuously confined in segregation 
for a full year, until December, 1968. During that year, 
he spent five months on "4 Section", uhe most severe kind 
of punitive segregation (TM 1049), and for more than a month 
his confinement was solitary, with no other inmates on tne 
tier (TM 1087-88).

Punitive seareaation is the most severe punishment
8 /

meted out at the prison (McMann Dep. 24; DeLong Dep. 18):. 
Nevertheless, at the time of Mosher's punisnment, ana at the

8/ Warden McMann testified that "of course, you could beat 
a man with a club, you could hang him by his toes, but 
that isn't done anymore, but I'd say [segregation] would 
be the most serious punishment" (McMann Dep. 24).

-5-



time of trial of this case, the Department of Correction
did not provide any standards, substantive or procedural,
for the use of such segregation (McMann Dep. 19, 26, 47-48).
Although some of the more barbarous abuses found in the
Wright case had been terminated by the time of Mosher's
confinements in 1967 and 1968, conditions were still
extraordinarily severe. While inmates were normally given
underwear, beds, pillow, sheets ana blanket, these could oe
summarily taken away on the order of the deputy warden
(Belong Dep. 38-42, 48, 112; TM 1030-31, 1234). The deputy
warden had complete and unreviewable discretion to deprive

9/
an inmate of any or all of these basic amenities (id_. ) .

When an inmate was sent to punitive segregation, 
his sentence was always indefinite, but he ordinarily spent 
at least his first thirty days in "4 Section" (DeLong Dep. 20;

9/ Although Mosher's complaint is not based on squalid and 
unsanitary conditions in segregation, it should be noted 
that (a) segregation cells were not cleaned between 
inhabitants (DeLong Dep. 69); (b) blankets and mattresses
were not changed between inhabitants (TM 174-75, 596; 
Kennedy Dep. 20); (c) inmates were only allowed to shave
(with cold water) and shower very briefly once a week 
(TM 1022-23, 354, 547-43); (d) toilets occasionally
became clogged, sinks were stained, rusty and dirty, 
mattresses and blankets were stained and torn, floors 
were dirty and nuisance insects were common (TM 491,
526, 544-45, 582, 610-11, 613-14, 652, 1537, 58-60, 128, 
173-75, 1020-21, 1038, 1080); (e) inmates finding these
conditions upon being confined to a cell were not given 
a broom, mop, plunger or other adequate means tor cleaning 
up (TM 224/ 526 , 544-45, 582, 593, 653, 1021-22, 1170); 
and (f) no segregation inmates had hot water, toilet 
disinfectant or a comb and brush (TM 1021-22, 1239).

-6-



McMann Dep. 11; TM 1097, 1216). The cells on this tier were 
physically no different from other segregation cells, except 
that they had no light bulb or other artificial light of any 
kind (TM 1081; Kennedy Dep. 18-19).

The living conditions of prisoners confined in 
4 Section differed from conditions of life in the general 
prison population in many respects:

(1) Prisoners spent 24 hours a day alone in their 
small cells. They were not permitted any of the recreational 
opportunities available to the general population; nor were 
they even allowed to use the segregation exercise yard
(TM 1025, 196). Before June of 1968, 4 Section inmates were 
not permitted to go to the small enclosed patio behind each 
ceil (Kennedy Dep. 9; TM 62, 196, 546, 654, 1025, 1115).
They had no access to sunshine or fresh air. When the warden 
discovered this practice during the pendency of this lawsuit, 
he began allowing 4 Section prisoners to use the patio ror 
an hour a day (Id.; TM 1475).

(2) The prisoners were barred from participation
in all rehabilitative programs and institutional activities, 
including the opportunity to (a) work and earn money in the 
industrial program (TM 1026-27, 198), (b) go to school and
participate in the educational program (Id.) and (c) attend 
corporate religious services (Id.; TM 1027; McMann Dep. 41). 
Moreover, they could not participate in any of the prison's

-7-



therapeutic programs (Id.; TM 1026-27, 1526-27). They could 
not avail themselves of group counselling and they were not 
visited by counsellors, psychologists, social workers or 
psychiatrists (Id.; TM 207-8, 520, 1523; Freedman Dep. 6,

23 , 29, 44) .

(3) 4 Section prisoners were deprived of all
privileges enjoyed by the general inmate population,
including the following:

(a) 4 Section inmates were not permitted 
to have their personal clothing but were issued 
whatever clothing was available from the 
segregation stock (TM 1024). They could not 
have any of their personal belongings, inducing 
personal toilet articles.

(b) They were not permitted to purchase 
anything from the prison commissary except legal 
materials; for example, they were not allowec to 
buy or possess food to supplement their diet
(TM 1024-25, 197). They were prohibited from 
receiving packages from home (TM 1242).

(c) They were not permitted to read 
newspapers, watch television, listen to the 
radio, or have movie privileges (TM 1025, 198; 
Kennedy Dep. 18).

(d) Their correspondence was limited to 
legal letters and one family letuer per week

-8-



(TM 1026, 197; DcLong Dep. 81). In addition 
to the normal prison censorship, their mail was 
read by segregation officers and personally by 
the deputy warden (TM 1027; DeLong Dep. 78-79; 
plaintiffs' Exhibit 18 at trial).

(e) They did not receive as much food as 
prisoners in the general population (TM 199-200, 
1028, 1240). They were not given fresh fruit 
(TM 1029). They were sometimes put on short 
rations as additional punishment (DeLong Dep. 
107; TM 1235). The amount of food given a man 
on short rations was determined by the deputy 
warden, although by statute such rations were 
supposed to be prescribed only by a physician 
(compare former Correction Law Section 140 with 
DeLong Dep. 52, 69, 106; TM 548-49, 1029; Peda 
Dep. 11-12). In practice, short rations 
consisted of half portions of segregation 
servings (Kennedy Dep. 7). Appellee Mosher was 
put on short rations even after Warden LaVallee 
had ordered abandonment of that practice 
(plaintiffs' Exhibit 42 at trial, pp. 77, 86).

(f) 4 Section inmates had no library 
privileges except for legal materials (TM 1044), 
and they were not allowed access to otner 
reading material.

-9-



(g) 4 Section inmates were required to
stand at military attention at the bars of their 
cells from 7:30 a.m. to 10:00 p.m. with lowered 
eyes to show "respect" whenever any prison 
employee was on that section (TM 1021, 69, 532,
597, 1234; DeLong Dep. 110, 133-34).

Inmates in punitive segregation but not in 4 Section 
did not suffer all of the deprivations of 4 Section, but they 
were still completely cut off from all normal prison activities 
and programs, including the educational, vocational, religious 
and therapeutic programs (DeLong Dep. 34; TM 1026-27, 1526-27). 
The conditions imposed and privileges withheld in segregation 
applied regardless of the individual inmate involved, his 
background, or the disciplinary infraction he was charged 
with (TM 1166, 1168, 1235-37, 1500-01). Appellee Mosher, 
punished for refusing to sign a safety sheet, received the 
same treatment as prisoners being punished for assault, theft, 
escape, and other dangerous acts.

All inmates in segregation were barred rrom earning 
statutory "good time" to reduce their term of imprisonment 
(TM 1026, 1231; plaintiffs' Exhibit 10 at trial, pp. 4-5; 
plaintiffs' Exhibit 12 at trial, p. 30). New York prison 
inmates may, by law, earn good behavior time to advance their 
eligibility for parole and reduce their sentence by one-third 
(Id.; DeLong Dep. 17); but no "good time" may be earned while

-10-



the inmate is confined to segregation (Id.). Thus,
segregation operates to delay eligibility for parole and
prolongs the inmate's overall period of imprisonment
(TM 1214, 1231). The district court found that appellee
Mosher had lost 616 days of statutory good time because of
his confinements in punitive segregation, and ordered this

10/
amount restored to him (175a, 179-180a).

Unlike the prisoner in Sostre v. McGinnrs, ___
F.2d (2d Cir. 1971), Mosher was given no option to be
released from segregation by participating in group therapy 
or agreeing to conform to prison rules. There was no group 
therapy or similar program in Clinton Prison's segregation. 
At one point, Mosher was told that he could get out of 
segregation if thirty days passed without a disciplinary

10/ While in segregation, Mosher was charged with an array 
of minor disciplinary infractions, including yelling to 
fellow inmates (4 charges); "insolence" or loudness (5 
charges); possession of "contraband" including innocent 
items like tobacco, gum and fruit, possession of which 
is not prohibited by any written rule (e.g. DeLong 
Dep. 106), throwing four slices of bread out the window 
and refusing to stand at military attention whenever any 
prison employee passed (8 charges) (Exhibit E on appeal) . 
As punishment for these alleged offenses, none or which 
involved any violence or threat to the institution,
Mosher lost practically all of the few privileges 
available in segregation, was put on short rations and 
forfeited 350 days of earned good time (Id.; TM 1231).
For example, on one occasion he was punished for 
possession of a banana, his first in a long time, which 
he received from a friend (TM 1029-30); for this-, he lost 
10 days of his liberty (Exhibit E, entry dated May 7, 
1968). The district court found as a fact that these 
minor violations were clearly linked to being wrongrully 
confined in segregation and determined that Mosher was 
entitled to restoration of all the good time he had lost 
by- reason of segregation (174-175a).

-11-



offense, but was also informed by Deputy Warden DeLong that 
in order to be released he would have to "crawl" (TM 10S8). 
Mosher requested release in writing, but the deputy warden's 
response was only "not this time," without any explanation 
or indication of how Mosher might gain release by altering 
his behavior (TM 1070; plaintiffs' Exhibit H on appeal). 
Another request thirty days later received no reply at all, 
despite the fact that Mosher had not been charged with any 
more infractions in the interim (TM 1071).

When Mosher was punished, and at the time of trial, 
there was no limit on the time a prisoner couid be held in 
segregation, and he was not told how long he would spend 
there (TM 122, 521-22, 1071, 1203, 1216; DeLong Dep. 20).
A prisoner could be held in segregation for a year, or two 
years, or even for the duration of his sentence (DeLong 
Dep. 165; McMann Dep. 26). There were no ascertainable 
standards for determining the duration of confinement in 
segregation (McMann Dep. 26; DeLong Dep. 160; LaVallee Dep.
31). This was completely within the discretion of the deputy 
warden (DeLong Dep. 122, 160, 165; TM 520-21, 1071, 1133, 
1299, 1473). Prisoners have in fact been confined to 
4 Section of segregation for periods ranging up to two years 
(TM 1328) . Doubtless because segregated inmates have none 
of the outlets for relieving normal frustrations, confinement 
to segregation tends to be self-perpetuating inmates

-12-



experience all or almost all of their disciplinary problems 
while in segregation, and this affects the possibility of 
release from segregation (TM 1068-69, 1497-99, 521, 548; 
Exhibit E).

James V. Bennett, former Director of the Federal 
Bureau of Prisons, testified as an expert that the duration 
of segregated confinement should be carefully limited, 
because prolonged segregation jeopardizes the well-being of 
the inmate (TM 288; see also plaintiffs' Exhibits 28 and 30 
at trial). At Alcatraz, which housed the federal system's 
most recalcitrant prisoners (TM 313), punitive segregation 
was not used for more than ten days; if results were not 
forthcoming in that period, other techniques were tried 
(TM 308-09, 313-14).

Dr. Joseph Satten, of the Menninger Foundation in 
Topeka, Kansas, testified as a psychiatrist with extensive 
experience in the corrections field that punitive segregation 
can lead to mental illness in vulnerable individuals 
(TM 425-27, 450). Even a period as short as three weeks 
can break down a weak, disturbed individual, as many prisoners 
with disciplinary problems are, and any individual can be 
broken down by prolonged social isolation or segregation 
(TM 427, 451). The expert testimony presented on behalf of 
the prisoners stands uncontradicted in the record. Even the 
prison officials recognized that any inmate may become more

-13-



suicidal or more violent because he is in segregation
(TM 1501, 1173). One official testified that regardless 
of any trace of suicidal tendency in an inmate's background, 
every initiate confined to 4 Section becomes a potential 
suicide (TM 1169-70, 1173).

2. Disciplinary Procedures Leading To 
Segregation Or Loss Of Good Time

The disciplinary procedures at Clinton Prison 
afforded none of the safeguards normally comprehended by due 
process. Although inmates were "charged" with "offenses," 
were required at "court" to "plead" guilty or not guilty, 
and were "sentenced" to segregation or some other punishment 
(e.g. TM 181-85), they were not provided with prior notice 
of the charges, they were not permitted to confront or 
cross-examine witnesses against them, they were not permitted 
to call witnesses on their behalf, they were not permitted 
the assistance of counsel or counsel substitute, there was 
no adequate record of the proceedings and there was no formal 
procedure for appeal from the decision (e.g. DeLong Dep. 
15-16, 77-78, 96; TM 181-85). On many occasions, prisoners 
were not permitted to explain their version of the events, 
even where the facts were disputed (TM 120-22, 183, 561-62, 

1052).

There were no recognizable standards for the 
imposition of punitive segregation as a disciplinary

-14-



punishment (McMann Dep. 19, 26; DeLong Dep. 126, 154;
LaVallee Dep. 14). Segregation was imposed for a wide range 
of offenses, seemingly without regard to their severity or 
frequency (see Exhibit E; plaintiffs' Exhibit 15 at trial; 
DeLong Dep. 113, 115-17). Although segregation was imposed 
for very serious offenses, such as assault with a deadly 
weapon (Exhibit E, entry dated March 28, 1967), it was also 
imposed for minor offenses such as refusing to sign the 
industrial safety sheet. Its imposition was also erratic.
The same day that Robert Mosher was sent to segregation 
for refusing to sign the safety sheet, another inmate who 
refused to work at all and who had more prior offenses than 
Mosher merely lost his yard privileges for 15 days (Exhibit E, 
entry dated March 28, 1967). The same day that Mosher was 
charged the second time with refusing to sign the sheet, 
another inmate who refused to work merely lost his commissary 
privileges (Id., entry dated December 14, 1967). Inmates 
were sent to segregation for conduct which did not violate 
any written rule of the institution (TM 1222). Inmates 
were not given notice of the kinds of conduct that risked 
segregation as a punishment and prison officials did not 
communicate this information to them; an inmate would not 
know that his conduct would risk segregation until he was 
so punished (DeLong Dep. 24-26; McMann Dep. 19-20; LaVallee 

Dep. 18).

-15-



3. Psychiatric Observation Cells

In addition to being confined to segregation,
appellee Mosher was twice confined in a psychiatric 
"observation" cell (TM 1031, 1053—56). Seven such cells 
are located in the hospital wing of the prison (DeLong 
Dep. 58, 60; TM 188). Their official purpose is to observe 
mentally disturbed inmates and determine whether they are 
psychotic (DeLong Dep. 62). In practice, however, the 
observation cells were often used for disciplinary purposes 
and some inmates were sent there not for psycniatric 
observation but as disciplinary punishment (Freedman Dep. 
11-13, 15, 18; Peda Dep. 26-28; TM 504-05, 511-12, 539-42, 
554, 561; Exhibit F on appeal, para. 3). The disciplinary 
inmates were not treated or diagnosed by.the prison 
psychiatrist (Freedman Dep. 12, 15, 18, 20, 32; TM 507, 

540-41).

11/ It appears likely that the observation cells had taken 
the place of the "dark cells" previously used as 
disciplinary punishment. The dark cells were located 
in the segregation building. In them, inmates were held 
in complete darkness behind a solid steel door; they were 
completely naked; they had no furniture or furnishings 
at all, no bed or blanket, and at least one of the cells 
had neither a toilet or a sink; they received only a 
diet of bread and water, with one meal every three days 
(TM 1175-78, 1229-30, 1040; Kennedy Dep. 12-13; Peda 
Dep. 17-18; DeLong Dep. 53-54). Although_Warden McMann 
was not aware that the dark cells were being used 
(continued on next page)

barbaric. There were no11/
The conditions in the observation cells were 

furnishings in the cells, and

-16-



perhaps only a plastic mat to sleep on; two of the cells 
had no toilet or sink at all; there was an artificial light, 
but not controlled by the inmates; inmates were usually kept 
completely naked; they were not given any of the rudiments 
of personal hygiene —  e.g. toothbrush, toothpaste, soap, 
towel, toilet paper, etc.; the walls and door of the cells 
were solid; and inmates were completely cut off from all 
other inmates and all prison programs (TM 189, 190, 193, 195, 
506, 511, 518, 540, 542, 554, 647, 1033-34, 1123; DeLong 
Dep. 60-61; Freedman Dep. 7, 18-19, 21). One inmate was 
held in an observation cell in these conditions for 
disciplinary purposes for 65 days in 1968 (TM 504-513); he 
was completely without clothing for nearly a month (TM 507). 
There were no procedural or substantive safeguards governing 
the use of the observation cells. The deputy warden, not 
the psychiatrist, made the decision to confine a man to sucn 
a cell (DeLong Dep. 56-57). Use of the observation cells 
for disciplinary purposes was even more capricious than 
segregation. No accusation of misconduct was a prerequisite 
to their use and prisoners sent there did not even have the 
summary "hearing" as for segregation.

11/ (continued)(McMann Dep. 13-14), his deputy wardens repeatedly placed 
inmates in dark cells (see plaintiffs' Exhibits 38 and 39 
at trial) ' (Cells 13 and 26 were the dark cells. TM 1393). 
The doors were taken off the dark cells during pendency 
of this action and only a few weeks before trial 
(LaVallee Dep. 26; TM 519, 1040).

-17-



4. Prohibition Against Inmate Legal Assistance

Appellee Mosher was twice punished for infractions 
of the prison policy prohibiting inmates from assisting each 
other in the preparation of legal papers or giving legal 
advice (TM 1044-45; Exhibit E on appeal, entries dated 
July 21 and July 15, 1967). Despite the prohibition of 
inmate legal assistance, the prison has not provided any 
alternatives for legal assistance to prisoners (LaVallee Dep. 
44-45; DeLong Dep. 93). Moreover, inmates have frequently 
been subjected to ridicule and threats by officers concerning 
their legal work and have been told that they have no rights 
which the court will protect (TM 55, 117, 126, 150-60, 564, 

646-47) .

5. Withholding And Censorship Of 
Attorney-client Correspondence

On June 5, 1968, during the pendency of this action, 
appellee Mosher wrote to the attorney who had been appointed 
by the district court to represent him, describing conditions 
in 4 Section and an incident involving the beating of a fellow 
inmate (TM 1063; Exhibit G on appeal). The letter was 
intercepted and was not permitted to leave the prison. Mosher 
received a slip from a censoring officer stating thai_ the 
letter "contains prison news which is untrue" (Id.). However, 

the incident described by Mosher was testified to under oat.., 
without contradiction, by the other prisoner at the trial oi 
this action (TM 551-54; cf. Peda Dep. 19).

-18-



This interference with attorney-client communication 
occurred pursuant to a prison policy requiring the censorship 
of all outgoing and incoming correspondence, and a special 
policy requiring that in addition to the usual censorship, 
mail from segregation inmates may be read by segregation 
officers and personally by the deputy warden (TM 1027;
DeLong Dep. 78-79; plaintiffs' Exhibit 18 at trial).

QUESTIONS PRESENTED

1. Whether the extraordinary punishment of 
appellee Mosher by prolonged punitive segregation and loss 
of statutory "good time," without any justification in 
light of the needs of prison security, was properly held 
unconstitutional by the district court.

2. Whether the district court properly ordered 
the restoration of Mosher's statutory good time lost by 
reason of wrongful punishment.

3. Whether Mosher's extraordinary punishments 
were imposed in violation of rudimentary procedural due 
process and, if so, whether the safeguards ordered by the 
court below were appropriate to protect appellee in future 

such cases.

4. Whether the district court properly enjoined 
use of psychiatric "observation" cells for disciplinary

-19-



purposes and required appropriate safeguards for their 
future use.

5. In a case where prison officials intercepted 
and withheld correspondence between Mosher and the attorney 
appointed by the district court to represent him, on the 
ground that such correspondence contained "prison news" 
deemed "untrue" by the officials, whether the court below 
properly enjoined censorship and interference with such 
correspondence.

6. Whether the district court properly ordered 
the prison officials to permit legal assistance among 
prisoners, where the State provides no alternative means 
of legal assistance to prisoners.

-20-



ARGUMENT

I. The District Court Properly Held That
Appellee Mosher Was Unconstitutionally Punished.

As this Court noted in Sostre v. McGinnis, ___
F.2d (2d Cir. 1971), "our constitutional scheme does not
contemplate that society may commit lawbreakers to the 
capricious and arbitrary actions of prison officials" (slip 
op. 1673). Accord, Landman v. Peyton, 370 F.2d 135, 141 
(4th Cir. 1966). In other words, prison officials, like all 
other administrative officials under our system, are 
accountable to principles of law, and may not detrimentally 
affect the lives of citizens by vindictive, standardless or 
arbitrary action. If prisoners are entitled to any protection 
at all against arbitrary and excessive punishment, the 
district court's holding of unconstitutional punishment must 

be affirmed.

In reviewing the holding of unconstitutional 
punishment, the Court should consider (1) the extraordinarily 
severe conditions of punitive segregation to which Mosher was 
subjected, (2) the excessively long period of segregation,
(3) the loss of nearly two years of statutory "good time" and
(4) the lack of any legitimate penal justification for the 

punishment.

-21-



(1) Extraordinarily Severe Conditions 
of Punitive Segregation

No one can dispute the district court's finding
that appellee Mosher was kept in extremely severe conditions.
By its very nature, punitive segregation takes away the few
comforts and institutional privileges that can make prison
life tolerable for a flexible man. In segregation, the
prisoner is cut off from all normal prison activities and

12/
paces out monotonous days in his isolated cell.

In Sostre v. McGinnis, ___ F.2d ___ (2d Cir. 1971),
this Court stated that segregation is "onerous indeed"
(slip op. 1668). The Court pointed out, however, that there 
were certain ameliorative conditions of punitive segregation 
at Green Haven Prison that raised it "several notches above 
those truly barbarous and inhumane conditions" held

12/ Moreover, the record in the present case is replete with 
evidence of the petty tyranny that prevailed in punitive 
segregation. While appellee Mosher himself was never 
beaten, he knew of physical abuses testified to, largely 
without contradiction, by other inmate witnesses. While 
he was never teargassed, he was threatened with gas. 
While he tried to "stand" at military attention with 
humbly lowered eyes as long as he could, he at last 
stopped and then was severely punished for failing to 
show proper "respect". While he tried to keep his cell 
clean, he experienced the same poor sanitary conditions 
that were common in segregation. And, of course, he 
was subjected to numerous "informal" punishments —  
like the loss of sheets, bed, etc. -- meted out by the 
deputy warden in his absolute discretion.

-22-



Amongunconstitutional in other cases (slip op. 1664). 
the factors explicitly referred to by the Court were:
(1) the prisoner there "aggravated his isolation by refusing 
to participate in a 'group therapy1 program offered each 
inmate in segregation" (slip op. 1648, 1664), and thus 
greatly prolonged the duration of his segregation; (2) the 
prisoner in Sostre was permitted an hour of exercise a day 
in an exercise yard "open to the sky" (Id. at 1649 , 1663-64) ; 
(3) the prisoner enjoyed a diet consisting of 2800-3300 
calories a day (Id.); and (4) the prisoner had "the constant 
possibility of communication with other segregated prisoners" 
(Id. at 1664).

None of these ameliorative conditions is present 
in the instant case: There was no group therapy or similar
program offered to Mosher; when Mosner was on 4 Section, 
prisoners were not permitted any exercise period at all, and 
were never permitted any exercise in the open air; Mosher 
was put on "short rations" for a period of five weeks, during 
which time he did not receive the normal prison diet; and for

13/

13/ Cases holding conditions of punitive segregation or 
solitary confinement to be unconstitutional include 
Wright v. McMann, 387 F.2d 519 (2d Cir. 1967); Hancock 
v. Avery, 301 F.Supp. 786 (M.D. Tenn. 1969); Holt v. 
Sarver, 300 F.Supp. 825 (E.D. Ark. 1969); Barnes v. 
Hocker, No. R-2071 (D. Nev. Sept. 5, 1969); Jordan v. 
Fitzharris, 257 F.Supp. 674 (N.D. Cal. 1966); cf. Brooks
v. Florida, 389 U.S. 413, 415 (1967); Anderson v. Nosser,
438 F.2d 183 (5th Cir. 1971).

-23-



at least a month Mosher was all alone on 4 Section, with no
14/

possibility of communication with any other prisoner.

Moreover, all parties here, including the prison 
officials, agreed that the kind of segregation used at 
Clinton Prison can be dangerous. James V. Bennett and 
Dr. Joseph Satten testified for the prisoners that punitive 
segregation is a potent weapon and may have disastrous

15/consequences. Dr. Satten testified that prolonged
segregation can cause mental illness and break down even

14/ The unnecessarily harsh nature of the conditions to
which Mosher was subjected is demonstrated by the new 
regulations for segregated confinement that have been 
adopted by the New York Department of Correction, 
effective October 19, 1970. 7 N.Y.C.R.R. Part 300
et seq. The new regulations outlaw many of the 
practices to which Mosher was subjected. The regulations 
seem to accord with the standards for segregated 
confinement in federal prisons. See Policy Statement 
No. 7400.5, November 28, 1966 (plaintiffs' Exhibit 28 
at trial). These provisions show that there was no 
legitimate penal interest requiring the extraordinary 
deprivations to which Mosher was subjected.

15/ It has long been recognized that solitary confinement
or segregation cannot be considered a mere regulation 
as to the safe custody of prisoners, and that it can 
cause mental illness, induce suicidal tendencies and 
interfere with the possibility of rehabilitation.
See In re Medley, 134 U.S. 160, 167-68 (1890).

The American Correctional Association recognizes that 
segregation can be both dangerous to the prisoner and 
self-defeating in terms of improving discipline:
"Perhaps we have been too dependent on isolation or 
solitary confinement as the principal method of handling 
the violator of institutional rules. Isolation may 
bring short-term conformity for some, but brings 
increased disturbances and deeper grained hostility to 
more." Manual of Correctional Standards, 413 (1966).

-24-



well adjusted individuals. The testimony by these eminent 
authorities was not disputed by any prison authorities, who 
acknowledged that prisoners at Clinton could become suicidal 
or violent because of their confinement to segregation.

(2) Excessively Long Period of Segregation

In 1967, appellee Mosher was held in segregation 
for five months. His second confinement, in 1963, lasted 
an entire year, of which five months was spent in 4 Section, 
the most severe kind of segregation. He spent over a month 
alone on that tier, in true solitary confinement. Unlike 
the prisoner in Sostre, he had no option to participate in 
group therapy and thereby effect his early release.

This prolonged punishment vastly exceeds the 
limits set by accepted prison authorities. James V. Bennett 
testified that even at Alcatraz, punitive segregation was 
never used for more than ten days. The Missouri prison 
system also sets ten days as the upper limit (plaintiffs' 
Exhibit 29 at trial, p. 7). The American Correctional 
Association states that a few days of punitive segregation 
is usually sufficient and that it should never exceed 30 days. 
Manual of Correctional Standards, 418 (1966). The Model Penal
Code would allow segregation "for serious or flagrant breach 
of the rules" for a period not exceeding 30 days. Proposed 
official draft, Section 304.7(3) (1962). Indeed, the
excessive length of Mosher's segregation has now been

-25-



recognized by New York prison officials themselves, and
under their new regulations segregation is limited to 60
days. 7 N.Y.C.R.R. Section 253.5. The officials in this
case made no attempt to justify the excessive length of

16/
Mosher's segregation.

(3) Loss of "Good Time"

As a result of his confinement to segregation,
Robert Mosher lost 616 days of statutory "good time". This
has delayed his eligibility for parole and prolonged his
overall period of imprisonment. His confinement to
segregation resulted in effect in the same treatment
incarceration in a state prison for more than a year as
that accorded a man convicted of a felony. Yet this was
accomplished without judge, jury or any of the protections

17/
of the due process clause.

16/ James V. Bennett and Dr. Satten testified that where
prisoners do not respond quickly to segregation, other 
techniques should be tried —  more exposure to treatment 
personnel, experimentation with privileges and incentives, 
transfer to a different institution, etc. Prolonged 
segregation is not only counter-productive, but tends to 
embitter the inmate and diminish the likelihood of his 
rehabilitation. Mindless prolongation of segregation 
is gratuitously cruel unless the officials attempt to 
get at the root of the inmate's problem and the reasons 
for his behavior.

17/ The loss of good time and consequent deferral of parole 
consideration alone persuaded the Seventh Circuit Court 
of Appeals that a prisoner's complaint of arbitrary 
disciplinary punishment must be heard. See United States 
ex re1. Campbell v . Pate, 401 F.2d 55 (7th Cir. 1968); 
see also, United States ex rel. Hancock v. Pate, 223 
F.Supp. 202 (N.D. 111. 1963).

-26-



(4) Lack of Any Justification for the Punishment

Robert Mosher never assaulted anyone, or threatened 
insurrection, or plotted escape, or endangered in any way 
the security of the institution. He merely refused to sign 
the industrial "safety sheet". Whether he was right or wrong 
about its amounting to a waiver is beside the point, because 
his sincerity was unquestioned and was accepted by the prison 
officials and by the district court.

If, as the officials asserted, the safety sheet 
was intended merely to assure that an inmate knows and 
understands safety precautions, certainly refusal to sign 
it creates no major disciplinary problem. Indeed, Warden 
McMann testified that refusal to sign the sheet would not 
call for disciplinary punishment at all; he would merely 
assign the man to an "idle" company where he could not work 
and earn prison wages. Although Warden McMann was in charge 
of the institution both times when Mosher was sent to 
segregation, he apparently did not know of these actions

w
taken by his deputy warden. Since the officials had no
objection to putting specific non-waiver language in the 
safety sheet and since the sheet is not even required rn 
many of the prison's shops, clearly it was inappropriate to

18/ As Judge Sobeloff stated in a similar context, "Where
the lack of effective supervisory procedures exposes men 
to the capricious imposition of added punishment, due 
process and Eighth Amendment questions inevitably arise." 
Landman v. Peyton, 370 F.2d 135, 141 (4th Cir. 1966).

-27-



treat Mosher as though he had committed a major disciplinary 
infraction. James V. Bennett testified that such action by 
the deputy warden was inappropriate as a matter of prison 
administration. In short, Mosher's punishment was not 
justified by any legitimate penal consideration.

We do not question the right of prison officials 
to segregate prisoners who in fact present a "credible threat
to prison security." Sostre v. McGinnis, ___ F.2d ___
(2d Cir. 1971) (slip op. 1665). We recognize that some form 
of isolation may be needed to control prisoners who are 
actually disruptive or who threaten disorder or violence. 
However, appellants failed to offer any justification 
whatever for the extrerae and extraordinary deprivations 
visited on appellee Mosher. Let us be specific. Appellants 
offered nothing at all, not even their own opinions, to show 
that Mosher created any danger whatever to prison oraer. 
Furthermore, they offered no evidence that alternative means
of either discipline or treatment would have been

19/ . ,ineffective. Even wher*e some showing of the neecs Oi

19/ The record does not show that the officials either tried 
or considered the more humane methods of dealing with 
difficult inmates suggested by appellee's expert 
witnesses and the Manual of Correctional Stanoards.
Cf. Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968), 
holding unconstitutional the use of the strap as 
disciplinary punishment. There, whipping was "the 
primary disciplinary measure used" and the waraen made 
a showing that facilities for alternative measures were 
limited. Furthermore, the officials testified that 
whipping was actually needed to preserve discipline and 
(continued on next page)

-28-



prison discipline is made,
"acceptance of the fact that incarceration, 
because of inherent administrative problems, 
may necessitate the withdrawal of many 
rights and privileges does not preclude 
recognition by the courts of a duty to 
protect the prisoner from unlawful and 
onerous treatment of a nature that, of 
itself, adds punitive measures to those 
legally meted out by the court." Jackson 
v. Godwin, 400 F.2d 529, 532 (5th Cir. 1968).

We recognize that in light of this Court's decision
in Sostre v. McGinnis, the conditions of segregation to which
appellee Mosher was subjected may not, standing alone, be

20/
deemed by the Court to be unconstitutional punishment.
But considering all the circumstances, Mosher's punishment
was unconstitutional because it was unnecessarily cruel in
view of any proper purpose. It is well established that

"a punishment may be considered cruel and 
unusual when, although applied in pursuit 
of a legitimate penal aim, it goes beyond

19/ (continued)
that it was effective in meeting this need. One of 
the important circumstances considered by the court 
(Blackmun, J.) in striking down the practice as 
unconstitutional, relying on the testimony of James V. 
Bennett, was that the disciplinary measure involved 
there "frustrates correctional and rehabilitative goals." 
404 F .2d at 580. The court rejected the warden's 
proffered justification (not even attempted in the 
instant case) that "the state needs this tool for 
disciplinary purposes and is too poor to provide other 
accepted means of prisoner regulation." Id.

20/ The Court did note in Sostre that "In some instances, 
depending on the conditions of the segregation, and 
the mental and physical health of the inmate, five days 
or even one day might prove to be constitutionally 
intolerable" (slip op. 1663, n.23).

-29-



what is necessary to achieve that aim; that 
is, when a punishment is unnecessarily cruel 
in view of the purpose for which it is used."
Weems v. United States, 217 U.S. 349, 370 
(1910); Dearman v. Woodson, 429 F.2d 1288,
1290 (10th Cir. 1970); Hancock v. Avery,
301 F.Supp. 786, 791 (M.D. Tenn. 1969);
Jordan v. Fitzharris, 257 F.Supp. 674, 679 
(N.D. Cal. 19 66)".

Here, of course, the punishment was not even arguably 
justified by a legitimate penal aim, and there was no showing 
that the gratuitous punishments visited on Mosher were 
necessary to any penal interest.

Furthermore, the punishment imposed on Mosher was 
wholly disproportionate to Mosher's conduct, which did not 
violate any prison rule or present any "credible threat to 
prison security." Sostre, supra, slip op. at 1665. 
Accordingly, the district court properly held that the 
punishment was unconstitutionally disproportionate. This 
is in accord with the "precept of justice that punishment 
for crime should be graduated and proportioned to offense." 
Weems v. United States, 217 U.S. 349, 367 (1910). Just as 
James V. Bennett testified below that the theory of 
rehabilitation as opposed to punishment in penology carries 
over to a prison's disciplinary system (TM 243), so does the 
precept of justice expressed in Weems. This has been 
recognized in prisoners' rights decisions:

"A prisoner may not be unreasonably punished 
for the infraction of a rule. A punishment 
out of proportion to the violation may bring 
it within the bar against unreasonable 
punishments." Fulwood v. Clemmer, 206 
F.Supp. 370, 379 (D. D.C. 1962).

-30-



1968); Carothers v. Follette, 314 F.Supp. 1014 (S.D. N.Y.
1970) (Mansfield, J.); Holt v. Server, 309 F.Supp. 362 
(E.D. Ark. 1970); Jordan v. Fitzharris, 257 F.Supp. 674,
679 (N.D. Cal. 1966); United States ex rel. Hancock v. Pate,
223 F.Supp. 202, 205 (N.D. 111. 1963); cf. Robinson v. 
California, 370 U.S. 660, 676 (1962); Anderson v. Rosser,
438 F .2d 183, 193 (5th Cir. 1971).

In Sostre, this Court stressed the seriousness of
the charges against the prisoner there and expressly left
open the constitutionality of segregated confinement if
imposed for lesser offenses than those attributed to the
prisoner (slip op. 1665-66, n.28). The governing consideration
in Sostre and in the present case is whether the prisoner's
conduct poses a "credible threat to the security of the

21/
prison" (slip op. at 1665). Since appellee Mosher's
conduct posed no threat whatever to prison order, since the 
warden did not consider his conduct a disciplinary matter at

See also Jackson v. Bishop, 404 F.2d 571, 577-78 (8th Cir.

21/ A similar approach has been taken by a number of federal 
district courts. See, e.g., Dabney v. Cunningham, 317 
F.Supp. 57 (E.D. Va. 1970) (prisoner ordered released
from punitive segregation because the officials made no 
showing of a factual basis to justify such confinement); 
Smoake v. Fritz, F.Supp. , No. 70 Civ. 5103
(S.D. N.Y. 1970); Carter v. McGinnis, 320 F.Supp. 1092, 
1097 (W.D. N.Y. 19701 (segregation justified only "if 
substantial evidence indicates a danger to the security 
of the inmates or the facility"); Davis v. Lindsay,
321 F.Supp. 1134 (S.D. N.Y. 1970) (no proof of actual 
threats of either disruption or danger to the prisoner 
or to other prisoners).

-31-



all, since Mr. Bennett's testimony established that his
punishment was completely inappropriate as a matter of prison
administration, and since the punishment was so vastly
excessive, the district court was plainly correct in holding
the punishment unconstitutional. A contrary determination
would sanction mindless arbitrariness and arrogant use of
power by prison officials, a position totally alien to our 

22/
system of law. In the present case, the record reveals
an intolerable abuse of power by lower level prison officials.
Although in light of reforms made during the pendency of this /
suit it may be unlikely to be repeated, clearly the district 
court was correct in its finding of unconstitutional 
punishment.

22/ Ours is a "government of laws, not of men", Marbury v.
—  Madison, 1 Cranch 137, 163 (1803). "Arbitrary power, 

enforcing its edicts to the injury of the persons and 
property of its subjects, is not law, whether manifested 
as the decree of a personal monarch or of an impersonal 
multitude." Hurtado v. California, 110 U.S. 516, 535-36 
(1884). See also Yick Wo v. Hopkins, 118 U.S. 356,
6 S. Ct. 1064, 1071 (1886') . As this Court said in 
another context, "The existence of an absolute and 
uncontrolled discretion in an agency of government. . .
would be an intolerable invitation to abuse." Holmes 
v. New York Housing Authority, 398 F.2d 262, 265 
(2d Cir. 196 8)'.

-32-



II. The District Court Properly Ordered The 
Restoration Of Mosher's Statutory Good Time 
Lost By Reason Of Wrongful Punishment.

Appellee Mosher did not seek money damages in the
district court. He did seek, by way of relief, restoration Oi
the statutory "good time" lost by reason of his confinement to
segregation. Having found that Mosher was unconstitutionally
punished, the district court ordered as a remedy that such
good time be restored to him. This was both necessary and
appropriate as a matter of equitable relief. Indeed, this
Court's decision in Sostre v. McGinnis is dispositive here.
In Sostre, the Court squarely held that since the prisoner
was unlawfully confined to punitive segregation, the good
time he lost must be restored to him. Said the Court:
"Sostre may not be penalized because of his time in
segregation by remaining incarcerated longer or by becoming
eligible for parole later than he otherwise would" (slip op. 

23/
1686). See also Ayers v. Ciccone, 303 F.Supp. 367

23/ The Court rejected the speculation that the prisoner
might not have earned good time credit if he had -remained 
in the general population, stating that since his 
constitutional.rights had been violated, any doubt would 
be resolved in his favor and noting that "this is the 
only feasible way to ensure that Sostre is not again 
unlawfully penalized by arbitrary action" (slip op. 1686). 
Even if the Court were reluctant to hold that Mosher's 
punishment was wrongful at the time it was imposed, it 
is now clear that the punishment was completely 
inappropriate, as established by the testimony of Warden 
McMann and Mr. Bennett. Accordingly, there is no reason 
to continue the punishment by withholding the good time 
lost by Mosher and thereby prolonging his period of 
imprisonment.

-33-



(W.D. Mo. 1969), aff'd, 431 F.2d 724 (8th Cir. 1970). In
Ayers, the court held that disciplinary punishments imposed 
for activities found to be protected by the Supreme Court's 
decision in Johnson v. Avery, 393 U.S. 483 (1969), specifically 
including the deprivation of "good time," were unconstitutional. 
The court ordered the prisoner's good time restored. Accord, 
Carothers v. Follette, 314 F.Supp. 1014 (S.D. N.Y. 1970) 
(Mansfield, J.); cf_. United States ex rel. Campbell v. Pate,
401 F.2d 55 (7th Cir. 1968).

This case does not, of course, present any question 
of exhaustion of state remedies pursuant to the federal 
habeas corpus statute, 28 U.S.C. Section 2254. This case, 
like Sostre, was brought as a civil rights action under 
42 U.S.C. Section 1983. In Sostre, this Court left open the 
question "whether a claim for relief grounded solely on the 
contention that good time credit was unconstitutionally 
withheld or forfeited would, standing alone, support an action 
under 42 U.S.C. Section 1983" without exhaustion of state 
remedies (slip op. 1686, n.50). The Court was apparently 
concerned about using Section 1983 to effect release from 
state custody and circumventing the exhaustion requirement 

of the habeas statute.

The present case clearly is not grounded "solely" 
or even primarily on the deprivation of good time, but seeks 
injunctive relief from a number of unconstitutional practices.

-34-



Moreover, the restoration of Mosher's good time would not
result in his release from custody, because he has many
years of his long sentence yet to serve. Accordingly, this
case is not governed by the decisions in Katzoff v. McGinnis,
441 F.2d 558 (2d Cir. 1971), and Rodriguez v. McGinnis, ___
F.2d ___, No. 34567 (2d Cir. 1971). In Katzoff and Rodriguez,
panels of this Court held that since restoration of good
time would result in immediate release from custody, the
prisoner must exhaust state remedies before bringing a
federal suit under Section 1983. The reasoning was that
otherwise the exhaustion requirement of the habeas statute
would be circumvented. No such consideration is present in 

24/
this case.

24/ While it is true that release from custody is more 
commonly associated with habeas corpus than with a 
civil rights action, the mere possibility of release 
if a prison administrative decision is held 
unconstitutional does not implicate the habeas policy 
considerations of federal non-interference with state 
judicial decisions and criminal convictions. If the 
administrative decision was wrongful under the federal 
Constitution, but holding it so would upset neither a 
criminal conviction nor a state judicial decision, no 
purpose is served by requiring the prisoner to exhaust 
whatever remedy might be theoretically available under 
state law. Cf. Houghton v. Shafer, 392 U.S. 639 (1968) ; 
Monroe v. Pape, 365 U.S. 167 (i961) ; Moreno v. Ker.ckel, 
431 F.2d 1299 (5th Cir. 1970); Wright v. McMann, 387 
F.2d 519, 524 (2d Cir. 1967); Rivers v. Royster, 360
F .2d 592, 594 (4th Cir. 1966); Edwards v. Schmidt, 321 
F.Supp. 68 (W.D. Wis. 1971); Carothers v. Follette,
314 F.Supp. 1014 (S.D. N.Y. 1970)(Mansfield, J.);
Hancock v. Avery, 301 F.Supp. 786 (M.D. Tenn. 1969).

-35-



III. Mosher's Extraordinary Punishments Were Imposed
In Violation Of Rudimentary Procedural Due Process.

This Court should conclude, as did the district 
court, that the extraordinary punishment of appellee ivlosher 
was not constitutionally justified and for that reason his 
good time should be restored. As a separate and independent 
ground for relief, the district court found that adequate 
procedural safeguards "might have averted or corrected this 
improper punishment" and held that the punishment had been 
imposed in violation of procedural due process (174a). 
Accord, Carothers v. Follette, 314 F.Supp. 1014 (S.D. N.Y.

2_5_7
1970) .

In Sostre v. McGinnis, this Court reversed a 
holding that enumerated "trial-type" protections were 
constitutionally mandated in "every" prison disciplinary 
proceeding. The Court nevertheless acknowledged that a 
prisoner facing a serious sanction is entitled to some due 
process and stated that in disciplinary proceedings the 
facts should be "rationally determined" and the prisoner 
should be given "adequate notice," an opportunity to reply

25/ "We believe that such serious punishments should not 
be allowed to stand, at least until disciplinary 
procedures are adopted that will meet rudimentary 
standards of due process under the conditions 
encountered. A proceeding pursuant to sucn standards 
may then well result in a much lighter.punishment 
than segregation." 314 F.Supp. at 1029 (Mansfield, J.).

-36-



to the charge and a "reasonable investigation into the
26/

relevant facts" (slip op. 1673, 1683).

In the present case, the standards of Sostre were 
not met. Appellee Mosher was not given adequate notice of 
the charge against him. There was no prior notice, either 
in writing or oral, that his conduct would be deemed a 
disciplinary violation or that segregation and loss of good 
time might be consequences flowing therefrom. Indeed, the 
conduct for which he was punished did not violate any 
specific prison rule. Moreover, the disciplinary procedures 
at Clinton did not require that the accused prisoner be 
given any advance notice of a disciplinary hearing.

Furthermore, it can in no way be said that the 
facts were "rationally determined" by the deputy warden or 
that there was any "reasonable investigation into the 
relevant facts." The deputy warden refused to inquire into 
Mosher's reason for failing to sign the industrial "safety 
sheet"; he obdurately insisted that the sheet be signed 
regardless of the fact that Mosher was ready ana willing to 
work wherever assigned and the crucial fact that he in good 
faith believed that he was being forced to waive his legal 
rights in case of injury on the job.

26/ Judge Waterman, concurring, noted that "decision as to 
what are wholly acceptable minimum standards is left 
for another day through case-by-case development"
(slip op. 1690, n.2).

-37-



It is apparent that the deputy warden and Mosher 
were at loggerheads and could not communicate about what was 
really at stake. The deputy warden probably thought Mosher 
was refusing to work and apparently never inquired whether 
Mosher was actually willing to work wherever assigned. On 
the other hand, Mosher thought he was being forced to sign 
a document that might forfeit an important legal right, but 
he was unable to communicate this to the deputy warden.
What was needed was the intercession of someone who could 
bring to light the actual positions of the administration 
and the prisoner and dispel the misunderstandings. What was 
needed, in order to protect against the grossly unfair 
punishment that resulted from the "hearing", was a person 
to represent Mosher and assure a "reasonable investigation 
into the relevant facts," so that the matter could be 
"rationally determined." In short, Mosher needed counsel.

We recognize that in Sostre the Court disapproved
a requirement that prisoners be afforded a right to counsel
where serious punishment might be imposed. However, we do
not read the Court's opinion in Sostre to preclude a district
court from holding, in a proper case, that some kind of

27/
counselling or representation is required. We understand

27/ The Fourth Circuit has recently held, in an analogous 
context, that whether counsel is required in parole 
revocation hearings should be determined on a case-by­
case basis; counsel may be mandated in some but not all
cases. See Bearden v. South Carolina, __ F .2d ___
9 Cr. L. Rptr. 2231 (4th Cir. June 10, 1971).

38-



the Court's reasoning that disciplinary proceedings do not
require, for example, that points be preserved for appeal.
But there are other important functions of counsel, quire
apart from whether the proceedings may be viewed as
"adversarial". Not only can counsel bring out the
"occurrence or nonoccurrence" of the relevant facts, but he
can investigate all the circumstances and suggest
"alternatives less severe" than the most serious measure in
the prison's range of disciplinary controls. Cf. Bay v.
Connecticut State Board of Parole, F.2d , 39 U.S.L.W.

287
2695 (2d Cir. May 17, 1971).

We do not contend that Mosher had a constitutional 
29/

right to an attorney. In this case, and in most cases,

28/ In both United States v. Wade, 383 U.S. 218, 238 (1967),
and Mempa v. Rhay, 389 U.S. 128 (1967), the Supreme
Court held that the presence of counsel was required, 
even though neither line-ups nor sentencings are 
"adversarial".

29/ However, in disciplinary cases where the prisoner is 
charged with conduct constituting a crime, Miranda v. 
Arizona, 384 U.S. 436 (1966) requires that the prisoner
either be afforded an attorney or not be disciplined^
The Attorney General of New York has rendered an opinion 
stating that Miranda applies to prison disciplinary 
proceedings and that the warnings required by that 
decision must be given. Atty. Gen. Op. 409/70, Feb. 11, 
1971; 8 Cr. L. Rptr. 2486. See also People v. Dorado,
62 Cal.2d 338, 42 Cal. Rptr. 169 (1965). A federal
district court recently held that unless an attorney is 
provided for the disciplinary hearing, the prisoner may 
not be disciplined, because he would be "stripped of 
any possible means of defense." Clutchette v. Procur.ier, 

F.Supp. , No. C-70 2497 AJZ (N.D. Cal. June 21, 
1971).

-39-



the "appropriate representation" required by the court
below can be supplied by the procedures outlined in the new
New York regulations described in appellants' brief at
pages 38-43. Under such procedures, a prison employee is
designated to assist the accused prisoner in preparing his
case (7 N.Y.C.R.R. Section 253.3). The employee ascertains
the facts, investigates any reasonable factual claim made
by the inmate and makes a written report of his investigation
(brief for appellants, p. 41). We believe that the employee
must also be present at the disciplinary hearing to provide
representation there, and this would not seem to conrlict

30/
with the new regulations. In the present case,
representation of this kind would likely have completely 
avoided the grave consequences,suffered by Mosher as a 
result of the hasty encounter with the deputy warden.

The reality must be recognized that certain 
disciplinary proceedings, like the ones here, involve such 
"grievous loss" for the accused prisoner that rudimentary 
due process is required. Cf. Goldberg v. Kelly, 337 U.3.
254 (1970); Escalera v. New York City Housing Authority,

30/ The presence of the representative at the hearing is 
obviously essential where the accused inmate is 
illiterate, inarticulate or inexpert in English.

-40-



Although, lesser punishments425 F.2d 853 (2d Cir. 1970).
may not require elaborate procedures, imposition of punitive
segregation or loss of good time is sufficiently serious to
require protection against error or arbitrariness in the

32/
fact-finding process. As the district court said in this
case, the Clinton Prison proceedings were "practically 
judicial," and the consequences radically altered the status 
of Mosher's imprisonment. In these circumstances, minimal 
procedural safeguards —  appropriate to the proceeding 
were essential.

"The necessity of procedural safeguards should 
not be viewed as antithetical to the treatment concerns of 
corrections." President's Commission on Law Enforcement and 
Administration of Justice, Task. Force Report, Correc ̂ ions, 13

31/

31/ See Clutchette v. Procunier,___F.Supp. ____,
No. C-7 0 2497 AJZ (N.D. Cal'. June 21, 1971) , where 
Judge Zirpoli's exhaustive opinion adopts the Goldberg 
approach for disciplinary proceedings in a California
prison. See also, Bundy v. Cannon, ___ F.Supp. ___,
9 Cr. L. Rptr. 2254 (D. Md. May 26, 1971); Meola v. 
Fitzpatrick, 322 F.Supp. 878 (D. Mass. 1971); Carothers 
v. Follette, 314 F.Supp. 1014 (S.D. N.Y. 1970) (Mansfield,
J.); cf. Jones v. Robinson, 440 F .2d 249 (D.C. Cir. 1971);
Nolan v. Scafati, 430 F.2d 548 (1st Cir. 1970); Morris 
v. Travisono, 310 F.Supp. 857 (D. R.I. 1970).

32/ See generally, counsel's article on this and other
issues in this case, in Turner, Establishing the Rule 
of Law in Prisons, 23 Stan. L. Rev. 473, 496-501 (1971).

-41-



(1967). James V. Bennett testified in this case that
the Clinton Prison procedures used to punish Mosher were
not proper from the point of view of sound prison

34/
administration (TM 272-73).

Having found, properly we submit, that rudimentary 
due process had been violated in Mosher's case, the district 
court ordered that before the prison officials could again 
confine Mosher to punitive segregation or subject him to 
the loss of good time credit, they must afford him minimal 
due process protections (17o-79a). Since the entry of the 
district court's decree, the New York Department of 
Correction has promulgated new procedural regulations for 
disciplinary proceedings (appellants' brief, pp. o9-42).

33/ The Commission recommends that
"Where such [disciplinary] charges may^lead 
to a substantial loss of good time and a 
resultant increase in the actual length of 
imprisonment, the prisoner should be given 
reasonable notice of the charges, full 
opportunity to present evidence and to 
confront and cross-examine witnesses, and 
the right to representation by counsel."
Id. at 86.

34/ Procedures in the federal prison system vary with^the
consequences at stake. If the prisoner risks forfeiture 
of earned good time (as Mosher did on several occasions 
connected with his segregation), he receives a formal 
hearing with representation, the right to cross-examine 
and call witnesses, etc. See Federal Bureau of Prisons, 
Policy Statement No. 7400.6 (Dec. 1, 1966). Mr. Bennett 
has termed such protections as "an essential ingredient 
to good discipline." See Hirschkop & Milleman, The 
Unconstitutionality of Prison Life, 55 Va. L. Rev. 795, 
831, 834 (19 697":

-42-



The new regulations incorporate many if not most of the 
protections ordered for Mosher. The district court never 
had an opportunity to consider the new regulations and their 
adequacy to protect against recurrence of the wrongful 
punishment suffered by Mosher. Therefore, we respectfully 
suggest that the Court should neither affirm nor reverse 
the specific protections ordered by the district court (179a), 
but should instead remand this portion of the decree to the 
lower court for reconsideration in light of the new regulations.

The portion of the district court's decree that 
went beyond requiring rudimentary safeguards for appellee 
Mosher and directed the officials to file new disciplinary 
rules and regulations was conditioned on submission of such 
rules and regulations to the district court in Sostre (179a). 
Because this aspect of Sostre was reversed by this Cour*., 
the lower court1s requirement of new rules ana regulations 
in the present case is no longer operative or of any effect.

IV. The District Court Properly Enjoined Use Of^
Psychiatric "Observation" Cells For Disciplinary 
Purposes And Required Appropriate Safeguards 
For Their Future Use.

The Attorney General does not contest the 
provision of the district court's decree providing that 
appellee Mosher "shall not be confined in any psychiatric 
observation cell for disciplinary purposes or without 
psychiatric justification" (180a).

-43-



Use of the observation cells for disciplinary 
purposes was an outrageous perversion of their proper purpose. 
Such cells obviously serve a legitimate function where 
seriously disturbed inmates show signs of mental illness and 
require observation by a trained psychiatrist. But there is 
no justification whatever for using them as disciplinary 
punishment.

Prisoners sent to the observation cells as
punishment were not treated or diagnosed by the prison
psychiatrist. They were rudely relegated to a barren cell,
usually nude, and completely cut off from all other prisoners
and all prison activities and rehabilitative programs. They
were allowed none of the rudiments of personal hygiene. The
conditions that prevailed were constitutionally intolerable
under the authority of Wright v. McMann, 387 F.2d 519 (2d Cir.
1967). The prison officials made no attempt whatever to
justify use of observation cells for disciplinary purposes,
and the district court was clearly correct in ordering them
not to put Mosher in such a cell without adequate psychiatric 

35/
justification.

35/ As this Court noted in Wright v. McMann, there may well 
be cases where various furnishings or amenities must 
be withheld from a particular prisoner for his own 
protection or to protect others. 387 F .2d at 526, n.15. 
But there is no justification for placing prisoners in 
observation cells and routinely depriving them of all 
the necessities of life. There must be some determination 
"that this particular prisoner was or would have become 
violent." IcL (emphasis by the Court).

-44-



The district court granted further relief by 
directing the officials to file rules and regulations 
governing use of the observation cells. We believe that 
this was an appropriate exercise of the court's equitable 
jurisdiction. Having found an outrageous and systematic 
abuse by lower level prison employees, the court was 
obligated to fashion an appropriate remedy to prevent its 
repetition. As the Supreme Court recently said with respect 
to the equity powers of federal district courts where 
constitutional violations have been demonstrated,

"Once a right and a violation have been 
shown, the scope of a district court's 
equitable powers to remedy past wrongs 
is broad, for breadth and flexibility 
are inherent in equitable remedies.

* * *
"As with any equity case, the nature of the 
violation determines the scope of the 
remedy." Swann v. Charlotte-Mecklenburg
Board of Education, U.S. ___, 9 S. Ct.
1267 , 1276 (1971)"."

The district court cannot, and should nor, sit in judgment 
on every individual case of prison mistreatment. There was 
an evident need for a self-correcting mechanism at Clinton 
Prison, to prevent further abuses of the observation cells. 
Requiring regulations —  essentially, proper supervision 
for their use would probably cure the problem. Also, once 
the prison itself established internal safeguards, the 
district court's scope of review could be narrowly limited 
and most cases could then be summarily determined. See

-45-



Covington v. Harris, 419 F . 2d 617 (D.C. Cir. 1969); cf_.
Williams v. Robinson, 432 F.2d 637 (D.C. Cir. 1970;.
Moreover/ there was evidence that many prisoners nad been 
confined to the observation cells for disciplinary purposes, 
and a prison directive expressly permitted use of the cells 
by the deputy warden for non-psychiatric purposes (exhibit F 
on appeal, third paragraph). In other words, the observation 
cells were being "regularly or systematically abused at 
Clinton Prison, cf. Sostre v. McGinnis, slip op. 1633, and 
it was appropriate to require a self—policing mechanism lixe 
a regulation to deal with this problem. All tnat would be 
required by way of regulation, we submit, is a directive 
countermanding the directive permitting use of the 
observation cells for disciplinary purposes (Exhibit F on 
appeal), with provisions specifying simply that no prisoner 
could be confined to an observation cell except by 
recommendation of the prison psychiatrist and that no 
furnishings, hygienic necessities or prison privileges could 
be withheld from a prisoner under observation unless the 
psychiatrist determined that such withholding was needed to 
protect the prisoner or others from harm.

36/

36/ If the institution "established internal procedures ior 
reviewing its own decisions and redressing grievances 
it could largely eliminate any occasion for judicial 
challenges, and any residual litigation could be readily 
disposed of on summary judgment." 419 F .2d at 627 
(Bazelon, J .).

-46-



V. The District Court Properly Enjoined The Prison 
Officials From Censoring And Interfering With 
Correspondence Between Appellee Mosher And The 
Attorney Appointed By The District Court To 
Represent Kim In This Action.

During the pendency of this action, appellee Mosher 
wrote a letter to the attorney appointed by the district court 
to represent him, describing the conditions in punitive 
segregation and an incident involving the beating of a’ fellow 
inmate in segregation. The letter (Exhibit G on appeal) was 
written in response to the attorney's request for more 
information about segregation. The letter was intercepted 
by prison officials and was not permitted to leave the prison. 
Mosher received a slip from a censoring officer stating that 
the letter was returned because it "contains prison news 
which is untrue." This occurred pursuant to a policy of 
censorship of all outgoing and incoming correspondence and 
a special policy providing that mail from segregation inmates 
may be read by segregation officers and personally by the 
deputy warden.

In Sostre v. McGinnis, ___ F.2d ___ (2d Cir. 1971),
this Court stated that prison officials may not interfere 
with communication between a prisoner and his attorney 
"unless it can be demonstrated that a prisoner has clearly 
abused his rights of access" (slip op. 1677). The Court, said 
that transmittal of contraband or laying plans for some 
unlawful scheme would constitute such an abuse. The Court

-47-



made plain that prison officials have no legitimate interest
in censoring "material thought by prison authorities to be
irrelevant to the prisoner's complaint" (.slip op. 1678) .
The Court further held, in language directly applicable to
the present case, that "prison officials may not witnhold,
refuse to mail, or delete material from otherwise protected
communications merely because they believe the allegations37/
to be repetitious, false, or malicious" (slip op. lo78).
This holding in Sostre is dispositive of Mosher's claim3 8/
that his correspondence was illegally interfered with.

The remaining question is whether the precise 
relief ordered by the district court was appropriate. The 
court enjoined the officials both from interfering with and 
from censoring correspondence between Mosher and his attorney. 
We recognize that the opinion in Sostre permitted a general 
policy of censoring prisoner communications to attorneys. 
However, we do not read Sostre to hold that prison officials 
have a right to review mail between a prisoner and the

37/ Accord, Nolan v. Scafati, 430 F.2d 548 (1st Crr. 1970);
—  Meola v. Fitzpatrick, 322 F .Supp. 878, 888 (D._Mass^

1971)""; Candelaria v. Mancusi, Civ. No. 1970-491 (W.D.
N.Y. Jan. 7, 1971); Fulwood v. Clemmer, 206 F .Supp. 370, 
377 (D. D.C. 1962) .

38/ While the Court in Sostre apparently based its holding
on a due process right of effective access to the courts, 
it should be noted that the First Amendment right of free 
expression is also violated where the State can snow no 
compelling interest in restricting such expression. See 
Carothers v. Follette, 314 F . Supp. 1014, 1024 (S.Q. N̂ ,Y.
1970)(Mansfield, J.); Palmigiano v. Travisono, 317 F.Supp. 
776 (D. R.I. 1970); cf_. Brown v. Peyton, 437 F. 2d 1228
(4th Cir. 1971); Barnett v. Rodgers, 410_F.2d 995, 1000 
(D.C. Cir. 1969); Fortune Society v. McGinnrs, 319 F.Supp. 
901 (S.D. N.Y. 1970).

-48-



attorney appointed to represent him by the court in a suit
against the prison officials involving mistreatment in the
prison. In these circumstances, the reasoning of Sostre
that an attorney may traffic in contraband or engage in
unlawful schemes with the prisoner —  does not apply. Here,
the prison officials themselves are defendants in the action,
yet are reading communications between client and counsel
that in any other setting would be entitled to complete
confidentiality. The opinion in Sostre should not preclude
the district courts in particular cases from balancing the
need for confidentiality with any likely security risks
demonstrated by prison officials. In the present case, we
submit that the need for confidentiality plainly outweighed
any risk that the attorney appointed by the court would
assist Mosher in any illegal plot or would traffic in 

39/
contraband.

Moreover, since the decision in Sostre, the New 
York Department of Correction has promulgated a new policy 
giving prisoners the right to absolute confiaentiality in 
their correspondence with attorneys. Administrative 
memorandum No. 79, as amended April 7, 1971 (reproduced as 
Appendix A to this brief). Of course, personal conferences

39/ This is especially true with regard to outgoing 
correspondence. Certainly the officials have no 
interest in whether "contraband" leaves the prison; 
indeed, "contraband" is by definition material that 
is illegally introduced into the prison.

-49-



between counsel and prisoners have always been confidential.
Apparently recognizing that there is no greater reason for

40/
screening communication in writing, the Department has 
abandoned its former censorship policy, as to both incoming 
and outgoing mail. Thus, the prison authorities themselves 
have decided that the possible security considerations 
attributed to them by the Court in Sostre are not in fact 
required in the interest of prison security. Moreover, they 
have decided to do away with censorship for all prisoners 
and attorneys, not just selected prisoners and court-appointed 
attorneys. Since the Court in Sostre left "a more precise 
delineation of the boundaries of this protection for future 
cases " (slip op. 1679), we submit that district courts should 
be free to enjoin censorship where there is no showing that 
confidential communication would actually endanger prison 

security.

A growing number of prison systems have found no
need to impair prisoner-attorney confidentiality and have

41/
abandoned traditional censorship policies. And a growing

40/ The need to have free communication by mail is especially 
strong in New York because of the geographic remoteness 
of most prisons, notably Clinton Prison, which is located 
near the Canadian border. Personal prisoner-attorney 
consultations, although assured of confidentiality, are 
necessarily rare.

41/ In federal prisons, letters from attorneys may be_checked
to see whether they contain contraband (drugs, knives, etc.) 
but their content is free from censorship. See_Hirschkop 
& Milleman, The Unconstitutionality of Prison Life, 55 
Va. L. Rev. 795, 826, n.166 (1969). The State of
Washington recently abandoned the policy of reading- 
(continued on next page)

-50-



number of federal courts have been completely unimpressed
with the generalizations proffered by traditionalist prison
administrators to support censorship and have held such

42/
censorship unconstitutional. In the present case, there
is no factual basis whatever for supposing that confidential 
communication between Mosher and his court—appointed attorney 
would present any threat to prison security. In this case, 
the district court properly found that "there is no support 
for the fears that unhampered lawyer-prisoner correspondence 
may endanger security" (169a). In the circumstances of this 
case, we submit, the court below properly enjoined any 
further interference with or censorship of Mosher's 
correspondence with his attorney.

41/ (continued)prisoner mail of any kind, although incoming envelopes 
are opened to check for contraband. See Office of Adult 
Corrections, Memorandum No. 70-5 (Nov. 6, 1970). 
Massachusetts allows prisoners to send letters to a 
"specific attorney of record in a sealed envelope, not 
to be opened by any personnel." See Nolan v. Fitzpatrick, 
326 F.Supp. 209, 212 (D. Mass. 1971). We are aware of 
no breaches of security having resulted from these 
policies.

42/ See Smith v. Robbins, ___F.Supp. ___ , 9 Cr. L. Rptr.
2288 (D. Me. June 18, 1971); Marsh v. Moore, ___F.Supp.

, 9 Cr. L. Rptr. 2098 (D. Mass. April 8, 1971);
Morales v. Turman, Civ. No. 1948 (E.D. Tex. March 1,
1971); People v. Wainwright, ___ F.Supp. ___, 9 Cr. L.
Rptr. 2038 (M.D. Fla. March 15, 1971); Meola v.
Fitzpatrick, 322 F.Supp. 878, 888 (D. Mass. 1971); Payne
v. Whitmore, No. C-70 2727 ACW (N.D. Cal. Jan. 14,1971); 
Palmigiano v. Travisono, 317 F.Supp. 776 (D. R.I. 1970);
cfT Coleman v. Peyton, 362 F .2d 905, 907 (4th Cir.),
cert, denied, 385 U.S. 905 (1966); Rhem v. McGrath_, ________
F.Supp. , 9 Cr. L. Rptr. 2038 (S.D. N.Y. March 17, 1971)
See generaTly, Turner, Establishing the Rule of Law in 
Prisons, 23 Stan. L. Rev. 473, 479-80 (1971).

-51-



VI. The District Court Properly Ordered The Prison 
Officials To Permit Legal Assistance Among 
Prisoners, Where The State Provides No 
Alternative Means Of Legal Assistance To Prisoners.

The Attorney General does not contest the portion
of the district court's decree requiring the officials to
permit inmates to render legal advice or assistance to each 

43/
other (180a). Since Mosher was twice punished for legal
activities, and since the State provides no official source 
of legal assistance at all to inmates at Clinton Prison, the 
injunction was plainly correct. See Johnson v. Avery, 393 
U.S. 483 (1969); Beard v. Alabama Board of Corrections, 413
F.2d 455 (5th Cir. 1969); Stevenson v. Mancusi, ___ F.Supp.
___, 9 Cr. L. Rptr. 2175 (W.D. N.Y. April 20, 1971);
Carothers v. Follette, 314 F.Supp. 1014 (S.D. N.Y. 1970);
Coonts v. Wainwright, 282 F.Supp. 893, aff1d, 409 F .2d 1337 
(5th Cir. 1969).

43/ The district court specifically permitted the officials 
to promulgate reasonable rules and regulations governing 
the time, place and manner of rendering such assistance
(180a). This Court assumed in Sostre v. McGinnis, ___
F.2d (2d Cir. 1971), that permission to give or
receive legal assistance would be granted as a matter of 
course by prison officials, subject only to reasonable 
conditions.

-52-



CONCLUSION

For the reasons stated, the judgment of the
district court should be affirmed, or affirmed and modified 

as noted above.

OF COUNSEL:
JACK GREENBERG 
STANLEY A. BASS 
10 Columbus Circle 
New York, New York 10019

ALICE DANIEL 
12 Geary Street
San Francisco, California 94108

Respectfully submitted

WILLIAM BENNETT TURNER 
12 Geary Street
San Francisco, California 94108

-53-



AfpgwM
STATE OF I< FT xORK

DEPARTMENT OF CORRECTIONAL SERVICES
ALBANY

I
April 7, 1571

M E M 0 R A K D U M
ADM * rr 7 5 Amended

[>0: SUPERINTENDENTS 0? CORRECTIONAL FACILITIES AND
STATE INSTITUTIONS, DIRECTORS OF STATE HOSPITALS 
AND DIVISION HEADS

FROM: RUSSELL G. OSWALD, COMMISSIONER
-r. .. v r̂nn.-r-no r ,r? T*,T*r p.rpr' C Drr,QRI}TKG OF

Cw*F I Cjc.lu.'ilw U.C ii,.VUuO, “““Uh*" 
. . . . w .  r-^ « i r? -»**r r- ' tt- t,r**7v* r>',T t  v,?,At OR^RESPOMDENCE

Departmental objectives include the re-socialisation 
of inmates and assistance in the solution of their personaj. c.nd 
legal problems. Accordingly, correspondence and visits with 
family members, desirable friends, business associates, former 
or prospective employers, state officials, and counsel any con­
tribute to the good morale and treatment of inmates.

Ter scant to this on-going policy of streetmg neacusi 
review and revision of inmate rules ana. regulations. Admin­
istrative Memo ir75 is hereby amended.

Accordingly, Rule 54A is amended as setrorth below. 
Inform immediately all staff and inmates cf this rule, and 
that it is effective immediately.

Rule 54A. Confidential letters: Each .inmate
may adores^' sealed letter to the President of the
United States, Members of Congress, the Governor Oi 
the State of New York, Members of the Legislature or 
New York State, the Commissioner of Correctional Ser­
vices, the Chairman of the Board of Parole, Judges 
or to the attorney of record and assistants. Such 
communication will not be censored or read; rt wr.ll 
be recorded as to the addressor and addressee., The 
inmate's name and return address (current institutional 
placement) will be entered on the outside o f- t>Lilt



2-

envclopG, os well as the addrossor for such recording.
All legal correspondence (inmate petitions, court let- 
igation, letters to judges and attorneys) shall bear 
the inmate's NYSIIS number on the lower .Left-hand cor­
ner of the envelope. Incoming mail from the above 
parties will bo recorded and then opened by the inmate 
in the presence of a Department employee for the 
following purposes: (1) to identify that incoming
mail is from an authorized party (?) to be examined 
to•insure the absence of contraband. Such examination 
does not authorize reading or censorship. If the inmate 
is v;ithout financial resources, envelopes and stamps 
shall be provided by the institution. Under circumstances 
which require the inmate to send legal papers or petitions, 
such, mail may be sent "certified''' or 'registered ' upon 
request by the inmate and at the expense of the institution. 
The number and frequency of confidential letters by an 
inmate to the above authorized persons shall not be 
limited except as provided by law. (See Civil Practice 
Lav; and Rules, Section 7 003 b)

You will note that 54A includes a provision for the list­
ing of the inmates NYSIIS number on the lower left-hand corner,
outside cover of the envelope. This number will be so placed 
on all inmate mail addressed to judges, State and Federal Courts 
in order to facilitate inmate identification and maintenance of 
the Judicial Conference's Central Index for Post Conviction 
Applications.

The contents of this memorandum cancels or super­
sedes all prior instructions on this subject.

Your inquiries regarding any problems in under­
standing or administering this rule are welcome.

/ a,':: cdf'
i f  r  * j

COMMISSIONER

I