ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (TRENTON) D.C. Civil No. 77-0683.
Adams and Garth, Circuit Judges and Charles R. Weiner,*fn* District Judge.
This is an appeal from an order of the District Court of New Jersey denying an application for a preliminary injunction against the continued incarceration of Joanne Chesimard (also known as Assata Shakur) in the all-male New Jersey state prison in Yardville.
On March 25, 1977, Shakur was found guilty by a New Jersey jury of the murder of a state policeman, and was sentenced to life imprisonment. She was incarcerated on March 28, 1977, in the Clinton Reformatory, the only prison for women in New Jersey. Because Shakur was viewed as a high security risk*fn1 New Jersey officials considered it necessary to undertake stringent measures to prevent her escape. Adoption of such measures at Clinton, a relatively low-security institution,*fn2 created a tense situation there, leading to a work stoppage among the other prisoners who complained about the presence of additional armed guards. In order to relieve this situation, as well as to achieve greater assurance that escape attempts would not succeed, the New Jersey prison authorities on April 7, 1977, transferred Shakur to the Yardville Youth Reception and Correctional Institution. Inasmuch as Shakur was the only female prisoner at Yardville, she was not permitted to associate with the male inmates, but was confined to a solitary (albeit relatively commodious) cell specially constructed for her.*fn3
Asserting that the conditions of her confinement violated her constitutional rights in a number of regards, Shakur brought a civil rights action under 42 U.S.C. §§ 1981 and 1983, challenging her confinement at Yardville. After two hearings, Judge Clarkson Fisher denied Shakur's motion for a preliminary injunction on May 5, 1977. His decision emphasized the temporary nature of her placement at Yardville. A timely appeal was filed from that order.
Subsequent to the filing of the appeal, Shakur was transferred from Yardville to New York City in connection with criminal charges pending against her there. She remains in New York at the present time.
At oral argument, counsel were requested to file affidavits defining the present status of Shakur's New York incarceration, and New Jersey's plans for Shakur's future confinement.
According to an uncontradicted affidavit of William Fauver, Deputy Commissioner of the New Jersey Department of Corrections, "it is the professional opinion of the officials of the Department of Corrections that [upon her return to New Jersey's custody,] Ms. Chesimard should be transferred to an out-of-state facility" where she can be securely imprisoned in the company of other women. Further, Mr. Fauver avers that it is the intention of the New Jersey Correction Department to begin the process of transferring Shakur to an out-of-state facility immediately upon her return to New Jersey. That process, according to the affidavit includes seventy-two hours notice, and a hearing. Following the hearing, Mr. Fauver states, a decision will be rendered within two days. An affidavit from Mr. William Faulkner, of the New Jersey Bureau of Interstate Services, attests that New Jersey officials have a written agreement from the Federal Correctional Institution for Women in Alderson, West Virginia, to accept Shakur as a prisoner on twenty-four hours notice.
Since the oral argument before this Court, Judge Fisher has ordered that a hearing regarding issuance of a permanent injunction will be held on February 7, 1978, or within forty-eight hours of Shakur's return to New Jersey if such return occurs sooner.
The primary issue in this appeal is whether the district court's denial of temporary relief should be reversed. A litigant challenging the denial of a preliminary injunction bears a heavy burden. Oburn v. Shapp, 521 F.2d 142, 147 (3d Cir. 1975); Scooper Dooper, Inc. v. Kraftco, 460 F.2d 1204, 1205 (3d Cir. 1972). "Our scope of review is limited to 'determining whether there has been an abuse of discretion, an error of law, or a clear mistake in the consideration of the proof.'" Oburn v. Shapp, 521 F.2d 142, 147 (3d Cir. 1975) quoting Commonwealth of Pennsylvania ex rel. Creamer v. United States Department of Agriculture, 469 F.2d 1387, 1388 (3d Cir. 1972). Such infirmities moreover, must be evaluated in the context of the prerequisites for the issuance of a preliminary injunction: a litigant must show probability of eventual success in the litigation and that he will be irreparably injured if the injunction is not granted. Oburn v. Shapp, 521 F.2d 142, 147 (3d Cir. 1975); System Operations Inc. v. Scientific Games Development Corp., 555 F.2d 1131, 1141 (3d Cir. 1977); United States v. Commonwealth of Pennsylvania, ...