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February 10, 1981

Raymond DOZIER, Plaintiff,
Gary J. HILTON, Superintendent, New Jersey State Prison at Trenton; Peter Fenton, Superintendent at Rahway; William H. Fauver, Commissioner, New Jersey Department of Corrections; Elijah Tard, a former Acting Director of the Vroom Readjustment Unit; Joseph Call, Chairman, Inter-Institutional Classification Committee; and E. Calvin Neubert, Chairman, Special Classification Committee, Defendants

The opinion of the court was delivered by: DEBEVOISE

Dozier, who is neither charged with nor being punished for any prison offense, has been given the choice of either transfer to an out-of-state prison or retention indefinitely in protective custody, where the isolation and the lack of work, recreational, visitation and educational opportunities approximate that endured by prisoners held in punitive confinement. Dozier has been given this choice notwithstanding the fact that there is available in New Jersey a maximum security prison to which, in the judgment of some of the prison authorities, Dozier could appropriately be transferred and placed in the general population.

 This case raises the difficult question whether, in these circumstances, Dozier has a constitutional right to be transferred to the general population of a New Jersey prison rather than an out-of-state prison. This case also raises the question whether the failure to transfer Dozier to the general population of a New Jersey prison violates the provisions of a consent order and stipulation of agreement to which Dozier and the State were parties.

 I. Procedural History

 Dozier filed his complaint on November 19, 1980, asserting his right to be transferred to the general population of a New Jersey prison and certain other rights not material to the present proceedings. The Court entered an order requiring defendants to show cause why Dozier should not forthwith be temporarily released from protective custody or otherwise housed under conditions approximating general population within a State correctional facility.

 A hearing was held on December 1 and 15, 1980 and on January 5 and 9, 1981, at which extensive testimony of prison inmates and correctional officials was taken.

 II. The Facts

 The testimony and exhibits received at the hearing establish the following facts:

 In 1972, after being convicted for the commission of particularly brutal crimes, Dozier, who had a prior record of convictions and imprisonment, was sentenced to two consecutive life sentences and was sent to Trenton State Prison ("TSP"). TSP is the State's maximum security prison in which persons who have committed the most serious crimes and the most difficult prisoners in the prison system are usually confined. It consists of antiquated facilities (which are in the process of being replaced); its inmates are accorded less freedom of movement within the institution than is accorded inmates in other prisons; there are more guards per inmate than elsewhere.

 After he had been in TSP for a short time Dozier was transferred to Rahway State Prison ("Rahway"), which is also a maximum security prison but which has more amenities than TSP, allows its inmates a greater freedom of movement, and has fewer guards per inmate. While at Rahway, Dozier became involved in a fight with an inmate. He was placed in solitary confinement for fifteen (15) days as punishment and then, on November 1, 1972, was transferred back to the general population of TSP.

 Dozier remained in TSP's general population until February 21, 1974, at which time he was sent to the Vroom Readjustment Unit ("Vroom") as punishment for assaulting an inmate.

 The Vroom Building represents the ultimate in security in the New Jersey prison system. It is used to house inmates being punished for serious prison offenses, and it is used to house inmates requiring protective custody. These inmates are confined to their cells except for daily showers and an exercise period in the prison yard for several hours two or three times a week in the winter and perhaps more often in the summer. No contact visits are permitted, the limited visiting which is allowed being through a thick glass window with a telephone for communication. There are no library or educational facilities. The conditions are substantially the same whether one is confined in Vroom as punishment or for protective custody.

 In February, 1975, while Dozier was still in Vroom, a suit was instituted which, according to the complaint, comprised:

... a constitutional challenge, under the due process, equal protection, right to counsel and cruel and unusual punishment clauses, to (a) arbitrary procedures for determining when an inmate is to be transferred to the R.U. (Vroom); (b) the deprivation of virtually all freedom, rights of association, access to prison programs, and proper medical care and other necessities at the R.U.; (c) the arbitrary infliction of summary punishment in the form of physical brutality at the R.U.; and (d) the arbitrary methods in which it is determined whether inmates have "readjusted' and can thus be released from the Readjustment Unit.

 The plaintiffs in the suit, Thomas Wooten v. Ann Klein, Civil Action No. 75-179 ("Wooten "), were 58 of the 66 persons then confined in Vroom. Dozier was among them. They were represented in the action by the Office of the Public Advocate-Public Defender. Some of the plaintiffs (like Dozier) had been confined to Vroom for disciplinary reasons; some had been confined for protective custody. Among the latter were a number of inmates who had been charged with or convicted of the murder of Reverend Shabazz, about which more will be said later. Those involved in the Shabazz murder were placed in protective custody as soon as they entered the prison system.

 The defendants in the Wooten action were the Commissioner of the Department of Institutions and Agencies, which was responsible for administering the State prisons, and a number of other departmental and prison officials.

 On May 12, 1975, while the Wooten action was pending, Dozier was transferred back to the general population at TSP. A number of inmates who were confined in Vroom because of their conviction or alleged connection with the murder of Reverend Shabazz were also released from protective custody and sent to the general population at TSP prior to October, 1975.

 In October of 1975 serious tension developed in TSP as a result of hostility between two Black Muslim religious groups, the New World of Islam and the Nation of Islam. A number of members of the New World of Islam were imprisoned at TSP for the murder of Reverend James Shabazz, a Newark minister of the Nation of Islam. Dozier was a member of the New World of Islam but his conviction and sentence were not for the murder of Reverend Shabazz.

 On October 16, 1975 members of the New World of Islam (including many who had recently been released from Vroom) were assaulted by their rivals in a wild fracas in the prison's Donald Bourne School, during the course of which one person was killed and a number were wounded. Just prior to the attack Dozier had been in the Black studies office in the Bourne building. He heard a commotion in the hallway outside and, upon investigating, saw the melee and a member of his sect being attacked. While going to the man's aid Dozier himself was stabbed in the back.

 Dozier's wound was not severe and, after receiving stitches at an outside hospital, he was returned to the prison.

 In order to prevent continuing violence in the prison between the two sects, the prison authorities sent approximately eighteen (18) members of the Nation of Islam (the attackers) and approximately twelve (12) members of the New World of Islam (the victims) to Vroom. Dozier was among the latter. It is the judgment of TSP's administrators that intense hostility between the two groups has continued to this day and that assignment of active members of one group to a prison that houses active members of the other group would result in attempts at revenge and further violence.

 Meanwhile, the Wooten suit was proceeding. As described above, a number of the plaintiffs in that suit (including Dozier) who had been in Vroom when suit was instituted and then released to the TSP general population, had been returned to Vroom for purposes of protective custody.

 The Stipulation recited that negotiations between the parties had resulted in an agreement, the terms of which were incorporated in the Stipulation. These terms included procedures for transferring inmates to Vroom for disciplinary reasons or protective custody and for periodic review of the necessity for keeping an inmate in Vroom. Of particular pertinence in this case is the provision that "It shall not be a justification for retention of an inmate in the Unit (Vroom), that the superintendent of no other State penal facility is desirous of having the inmate sent to his institution."

 The Stipulation also contained provisions obligating the defendant officials to use their best efforts to provide improved programs and facilities to all inmates in Vroom and specifying that "(inmates) assigned to the R.U. solely for reasons of protective custody shall be confined under conditions which approach, as nearly as is reasonably possible in the Unit, the conditions within the general population areas at Trenton State Prison".

 Gradually a number of members of the Nation of Islam were transferred from Vroom back to TSP and some members of the New World of Islam were transferred to Rahway or to the State prison in Leesburg. Several members of the New World of Islam still remain in protective custody in Vroom.

 As has been noted, Dozier's transfer to Vroom in October, 1975 was not a disciplinary transfer; it was intended for his protection and for the security of TSP. After 18 or 19 months in Vroom, he complained and asked for transfer back to the general population at TSP. As required by the Wooten Stipulation, his continued incarceration in Vroom was reviewed several times by the Inter-Institutional Classification Committee ("IICC"). Initially, the IICC recommended continued protective custody, but in November, 1977 it recommended that Dozier be transferred to Rahway. Accordingly, Dozier was sent to the general population in Rahway on December 2, 1977.

 Dozier remained in the general population at Rahway without incident until April 6, 1978. On that date, while Dozier was working in the food-loading area outside the mess hall, he disobeyed orders. When an officer was sent to discharge him and direct him to return to his wing, Dozier, a young and very powerful man, proceeded to attack the officer until he was pulled away by other guards. The officer's lower lip was split and his front teeth were loosened, requiring many stitches and dental work.

 Disciplinary proceedings were conducted and, as a result, Dozier spent fifteen (15) days in the "hole" (solitary confinement) at Rahway and was sentenced to one year in Vroom and the loss of 365 days of his commutation time.

 The Rahway records which reflect the April 6, 1978 incident and the discipline imposed bear the typed name of Rahway's then superintendent, R. S. Hatrak. These records, maintained by the Rahway administration, contain at least three entries stating that "inmate is not to be returned to State Prison, Rahway".

 In April, 1978, therefore, Dozier was returned to Vroom. He served his year there and his conduct during that time appears to have been reasonably good.

 Dozier has no complaints about having been confined up to that point. He recognizes that he committed an offense for which punishment was warranted and he accepted the punishment imposed. His complaint is directed to his continued confinement either in Vroom or in similar protective custody conditions at TSP after he had completed his one-year period of punishment.

 On March 29, 1979, when the period of Dozier's punitive confinement was coming to an end, the Vroom Sub-Committee of the Inter-Institutional Classification Committee ("IICC") reviewed his case and determined that he be transferred to "Rahway State Prison by April 24, 1979". Dozier was not transferred out of Vroom on April 24, and a communication was sent from IICC to Dozier, dated April 25, 1979, stating "Vroom Readjustment Unit pending confirmation of I.I.C.C. decision on 3-29-79 in reference to your transfer to Rahway State Prison."

 Dozier protested his continued confinement in Vroom. At the hearing on the order to show cause in this case he testified that both the Director in charge of Vroom and a corrections officer representing Rahway on the IICC informed him that the Rahway unit of the Policemen's Benevolent Association and Rahway officials opposed his return because he had attacked an officer. Gary Hilton, Superintendent at TSP, and a member of the IICC, testified that after the IICC had determined that Dozier should go to Rahway, the decision was questioned by Rahway officials and ...

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