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August 2, 1982

WILLIAM FAUVER, Commissioner of Corrections; GARY J. HILTON, Superintendent, Trenton State Prison; ELIJAH TARD, Director, Vroom Readjustment Unit; and JOSEPH G. CALL; Chairman of the Inter-Institutional Classification Committee, individually and in their official capacities, Defendants

The opinion of the court was delivered by: DEBEVOISE

 Plaintiffs Lamont Calloway and James Coy are inmates who, since the fall of 1975, have been confined in protective custody in the Vroom Readjustment Unit ("Vroom") of Trenton State Prison ("TSP"). Plaintiff Albert Chavies was confined in protective custody in Vroom from November, 1975 until June, 1979 when he accepted a transfer to a prison in Virginia.

 Defendant William H. Fauver was, at the time of the filing of the complaint in July, 1979, and remains Commissioner of Corrections. When the complaint was filed defendant Gary J. Hilton was Superintendent of TSP. He has since become Assistant Commissioner in the Department of Corrections. Defendant Elijah Tard, Jr. was Director of Vroom when the complaint was filed and is now Superintendent of TSP. Defendant Joseph G. Call was, at the time of the filing of the complaint, and remains a Deputy Director of the Division of Adult Institutions within the Department of Corrections. During the period pertinent to this action he served as Chairman of the Inter-Institution Classification Committee ("IICC").

 The complaint sought relief authorized by 42 U.S.C. § 1983 and asserted jurisdiction under 28 U.S.C. §§ 1331 and 1343(3). Plaintiffs seek damages and declaratory and injunctive relief.

 In brief, plaintiffs alleged in their complaint that in October, 1975, without prior hearing, they were placed in protective custody at TSP and that in November, 1975 they were transferred to Vroom, where they have remained in protective custody ever since, subject to the very onerous conditions which prevail in that institution. Plaintiffs further alleged that they have been kept in protective custody over their objections and without the opportunity to present evidence that such custody is unnecessary. Three broad legal grounds for relief were asserted: (i) Plaintiffs were deprived of procedural due process when they were placed and continued in protective custody. (ii) The conditions under which plaintiffs are confined (or, in the case of Chavies, were confined) in Vroom, which are no different from the conditions of confinement of prisoners held there for disciplinary reasons, violate their constitutional rights. (iii) Continuation of plaintiffs in protective custody in Vroom for the reason that no superintendent of another State prison wished to accept them violates the consent decree dated December 14, 1976 settling the case of Wooten v. Klein, Civil Action No. 75-179. During pretrial proceedings plaintiffs moved to reopen proceedings in Wooten and to consolidate that case with this one. The motion was denied, but the complaint in this action was amended to include an allegation that plaintiffs have been denied the rights to which they are entitled under the consent decree in Wooten and to include a prayer for relief seeking enforcement of that decree.

 Defendants answered, raising the usual affirmative defenses in a § 1983 action.

 In November, 1979 plaintiffs moved for a preliminary injunction restraining defendants from continuing to hold Calloway and Coy in protective custody in Vroom without affording them a hearing comporting with due process requirements. After finding that from October 16, 1975, when they were placed in protective custody, until the date of the hearing on their motion Calloway and Coy had not received a hearing meeting the requirements of Wolff v. McDonnell, 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974), I concluded that plaintiffs were likely to prevail on the merits on the issue raised by the motion. I held that a person confined in protective custody must periodically be given the opportunity to contest the need for confinement. I ordered defendants to provide those two plaintiffs with a hearing comporting with Wolff v. McDonnell standards, as appropriately modified to meet the circumstances of the present case. A hearing was held on February 22, 1980. Calloway and Coy assert that it did not comport with due process requirements primarily because much of the evidence consisted of confidential information which was not disclosed to them.

 Defendants submitted to the Court the evidence which was used at the February, 1980 protective custody hearing and which was not disclosed to plaintiffs. They moved that it be impounded. I reserved decision on the motion until the time of trial. By that time, due to changed circumstances, defendants concluded that they were in a position to make most of this evidence available to plaintiffs. I examined the balance of the material which defendants asked not be released and concluded that its release would occasion the risk of identifying informants and of disclosing investigative techniques and sources, thereby undermining the ability of prison authorities to maintain order and avoid violence in the prison system. *fn1" I ordered that it be filed in the case under seal. I have examined these documents in connection with the preparation of this opinion. They add little of substance to the evidence in the record but provide some additional support for defendants' conclusion that plaintiffs' release into the TSP general population would endanger them and threaten institutional security.

 The case was tried and an extensive record developed.

 Findings of Fact

 A. Background : At the heart of this case lies the intense rivalry and hostility between two of the quite numerous Black Muslim factions.

 On the one side is a group originally known as the Nation of Islam. It has gone through various permutations and changes of name over the years, developing subgroups and factions in the process. During the period relevant to this case its members, or significant factions, have called themselves the World Community of Islam, the World Community of Islam in the West and, most recently, the American Muslim Mission. In an attempt to avoid confusion I shall refer to this general group collectively as the Old World of Islam.

 Plaintiffs are members of the group known as the New World of Islam and will be referred to as such in this opinion. *fn2" Both groups have extensive memberships in the New Jersey State Prison, and the New World of Islam resulted from a split within the Old World movement at TSP.

 Just prior to September, 1973 the New World group included members in prison and at large in the community. Plaintiffs were among the members at large. The New World sought to take control of the Old World of Islam's Mosque No. 25 in Newark. To accomplish this end it was concluded that it was necessary to kill the Minister of the Mosque, James Shabazz. On September 4, 1973 he was murdered in front of his home in Newark.

 A number of New World members, including plaintiffs, participated in the planning and execution of the murder. All were apprehended, tried and convicted of the crime. Upon arrival at TSP in 1974 they were placed in protective custody in Vroom to avoid retaliation against them by Old World members, who were then a powerful force at TSP.

 On October 16, 1975 the Old World members launched a heavy attack on the New World group in the Donald Bourne School at TSP. Stolen knives and chisels and homemade weapons were employed. One New World member was killed and three, including Chavies and Calloway, were seriously wounded.

 The prison administration promptly transferred the Old World and New World participants in the fracas to Vroom in order to separate the combatants. Gradually, in the years that followed, the Old World members in Vroom were returned to the general population at TSP. It was decided to return the Old World members to TSP because their group was the more numerous and had a large following at TSP. During the same period the lesser leaders of the New World faction were transferred out of Vroom. Most went to the State Prison at Rahway, where the Old World membership was smaller and which did not house the most powerful Old World leaders.

 However, the prison authorities concluded that if they were to send the three plaintiffs back into the general population of any State prison there would be a recurrence of the Bourne School episode. It is the authorities' firm belief that the Old World members are simply biding their time until Calloway, Chavies and Coy are returned to the general population before they seek once again to avenge the death of Minister Shabazz. The authorities can foresee no time when this threat will be gone and, therefore, hold out to plaintiffs only two alternatives -- either indefinite confinement in protective custody in Vroom or transfer to the general population in an out-of-state prison.

 B. Plaintiffs' Transfer to and Retention in Vroom : The transfer of inmates to protective custody and retention in that status is the subject of Standards adopted by the Department of Corrections. Standards 256 (Administrative Segregation) as adopted March 24, 1975 was in effect in October and November, 1975. It provided that inmates could be transferred to administrative segregation "to aid in assuring the safety and security of the institution, for the protection of themselves or others, or because of their inability to get along in the general population", 256.210. The Standards further provided that "Any inmate to be placed in administrative segregation against his will for any reason is entitled to all the procedures specified in Standards 254. ADJUSTMENT COMMITTEE OR HEARING OFFICER", 256.212.

 Specifically as to protective custody, Standards 256.271 stated:

A protective admission to administrative segregation is only made where there is substantial evidence that such action is necessary, unless the inmate consents, in writing, to confinement in the unit. Protective custody is used only for short periods of time except where an inmate needs long-term protection and the facts are well documented.
Where the inmate does not consent to an assignment to protective custody or where the inmate requests reassignment and such reassignment is not made within two weeks of the date of request, the Superintendent or his designate immediately orders a hearing and submits a full report to the Director as to the reasons for the protective custody of the inmate in administrative segregation.
Where the inmate consents to confinement, the inmate may at any time request reassignment to the general population and such request is carried out within two weeks after the date the request is signed unless there is a hearing by the adjustment committee and there is substantial evidence to show that protective custody in the unit is necessary. Any inmate admitted with his consent signs an agreement to the above conditions.

 The 1975 Standards (256.279) established a review committee in Vroom to review every inmate's case once a month. If the review committee recommended release to the IICC, the latter committee made the determination whether to release the inmate from Vroom. In addition, "every inmate in administrative segregation is reviewed by the classification committee or Inter-Institutional Classification Committee in the case of Vroom Readjustment Unit inmates within six months of admission and the three month intervals thereafter". Rejections "should well document that the reason for the initial placement has not ceased to exist, that other alternatives, such as detention, transfer, or reclassification, are inadequate for assuring non-dangerous behavior from the inmate; and that the inmate's return to the general population would continue to pose a serious threat to life, property, himself, staff, other inmates or the security of the institution".

 Finally, Standards 256.279 provided that:

When an inmate has been confined to administrative segregation for one year and the classification committee or Inter-Institutional Classification Committee intends to retain the inmate in this status, a report is forwarded to the Division Director for his review. Such cases are reviewed annually by the Division Director should confinement in administrative segregation continue for this extended period of time.

 These Standards were updated and revised in 1976 (10:35-69.1, et seq.) and in 1980 and 1981 (Standards 142).

 The IICC consisted of a chairman and a representative from each of the three major State Prisons -- Trenton, Rahway and Leesburg. It was the responsibility of IICC to classify and assign inmates coming into the State Prison system from the county jails, to effect transfers of inmates from one State Prison to another, and to review administrative segregation punitive and protective custody cases. Defendant Joseph G. Call was Chairman of the IICC during most of the time when plaintiffs were confined in protective custody at Vroom.

 Each of the plaintiffs was injured in the October 16, 1975 incident. Calloway was hospitalized for one day and then was sent directly to Vroom. Chavies was hospitalized for ten days outside the prison and then stayed for ten days at the TSP hospital before being sent to Vroom. Coy was one of the most severely wounded. After having three operations in an outside hospital he was transferred to the TSP hospital and was then sent to protective custody in Vroom. He testified that TSP's then Superintendent had asked him to sign himself into Vroom voluntarily, stating that it made no real difference because he was going there one way or another.

 In any event, no hearings were held before sending any of the plaintiffs to Vroom. It is difficult to determine whether their initial transfer to protective custody might be considered voluntary in the first instance. Each had come very close to being killed, and each must have recognized that he required some form of protection against the numerically larger Old World group.

 The record does not show that plaintiffs received a montly review by the Vroom committee during 1976 and 1977, although it is possible that reviews were conducted and not noted on plaintiffs' prison records. After 1978 the monthly reviews appear to have been conducted with substantial regularity. It does appear, from the prison records, that plaintiffs were reviewed by IICC with the required frequency.

 At least as early as 1977 plaintiffs sought release from protective custody. Both singly and jointly they commenced and continued sending a barrage of letters to Robert Hatrak, who was Superintendent at Rahway, Hilton, who was then Superintendent at TSP, Fauver, and other prison authorities. These letters pointed out, as was the fact, that the members of the Old World group who had attacked plaintiffs had been returned to the general population (for the most part at TSP) and that most New World members had been sent to the general population at Rahway without untoward events taking place. Plaintiffs asked to be sent to Rahway also, and were able to present written assurances from leaders of the major Muslim groups at Rahway that plaintiffs' presence would not create any threats to plaintiffs or to the general peace of the institution.

 These requests were presented to the IICC, and plaintiffs repeated them in person at meetings of the IICC and to individual members of that body. It cannot be determined from the record when plaintiffs first made their oral requests, but it seems likely that they commenced at about the date when the written requests were first issued. The initial reports of the Vroom classification committee suggest that in 1975 and 1976 plaintiffs' protective custody was viewed by the prison authorities as being voluntary. For example, next to the entry on the report form reading "Review your case" there were inserted the words "upon request for release". It is clear, however, that by February or March, 1977 the IICC and the defendants in this case knew or should have known that plaintiffs sought release from protective custody. If plaintiffs are deemed to have consented to the original transfer to protective custody, this triggered the provisions of Standards 256.271 (later 10:35-69.5(c)) which required transfer to the general population "unless there is a hearing by the adjustment committee and there is substantial evidence to show that protective custody in the unit is necessary".

 Both the Vroom classification committee and the IICC continued to review plaintiffs' confinement in protective custody. Invariably these bodies concluded that there was no change and that plaintiffs' lives would be in danger if they were transferred to the general population of any State prison.

 As mentioned previously, the IICC had a Chairman (defendant Call during the period from 1977 until very recently) and a representative from each of the three major State Prisons -- TSP, Rahway and Leesburg. The most detailed information concerning the threats to plaintiffs came from intelligence gathered at TSP. The substance of this information is set forth in the confidential documents, most of which have been admitted in evidence (Exhibit D2). These documents were not submitted to the IICC meetings, but the TSP representative on the IICC reported the substance of them to the full committee.

 The documents contain a brief history of the Black Muslim movement, describe incidents of Muslim violence which occurred in the years before the Shabazz murder, and relate details of the Shabazz murder and of the Donald Bourne School incident. There are reports of informants describing Muslim activity at TSP and on occasion suggesting that violence was likely if New World leaders were returned to TSP. Most of the information is old, but it was supplemented from time to time by reports from prison guards and inmate informants. It by no means conclusively established that if plaintiffs returned to TSP's general population they would be killed or injured or that their return would spark prison violence. However, it was sufficient to justify concern for plaintiffs' safety at TSP and for the peace of the institution.

 The information concerning threats to plaintiffs at Rahway was even less concrete than the information relating to TSP. It was provided by Richard W. Curran, who was responsible for gathering intelligence at Rahway and who had been Rahway's representative on the IICC since 1974. During the gradual release of New World members into the general population at Rahway he received information from inmate informants that there would be no problems unless the three plaintiffs were among them. According to Curran's informants, plaintiffs would be killed to avenge Shabazz's death whenever and wherever they were released in the State Prison system, but that other New World members would not be harmed, since that would jeopardize the chance that plaintiffs would be released. According to Curran this information was relied upon by him and the IICC to release the other New World members to Rahway. He testified that he first received this information in 1977, that it was provided by two informants independently of each other, that he considers both informants to be reliable on the basis of past dealings with them, and that the information has been repeated as recently as late 1981.

 Acting upon Hatrak's instructions, Curran gave this information to the IICC and it was the basis for IICC's decision not to release plaintiffs to the Rahway general population. These reasons were applicable to Leesburg, and, in addition, the IICC believed that considering the nature of plaintiffs' offenses, Leesburg, a lesser security prison, would not be an appropriate place for them.

 In view of the fact that it did not appear that the dangers to plaintiffs would ever dissipate, the IICC responded to their requests for transfer to Rahway with the suggestion that they apply for an out-of-state transfer. In another state it would be possible to place plaintiffs in the general population.

 The Department of Corrections went to considerable pains to arrange out-of-state transfers for the three plaintiffs. Negotiations were undertaken with prison authorities in Virginia, Florida and Connecticut. Plaintiffs were not easily placed, and it was necessary for the Department of Corrections to agree to take two out-of-state inmates for each of the plaintiffs.

 In June, 1979 Chavies accepted a transfer to the general population of a prison in Virginia. Florida authorities agreed to take Coy but after accepting the transfer Coy reversed his position and decided to await the outcome of this case. By that time Florida's agreement will no longer be binding and it will be necessary for the Department to reinstitute negotiations. Connecticut authorities had not committed themselves to take Calloway, but he has not evidenced any desire to accept an out-of-state transfer.

 As described above, I ordered that Calloway and Coy be given full hearings comporting with Wolff v. McDonnell requirements. Such hearings were held commencing on February 22, 1980, at which plaintiffs produced evidence in the form of statements of Rahway inmates that they would be safe in Rahway. The hearing officer received confidential documents, which generally contained the same information which had been made available to the IICC. He concluded that plaintiffs would be in grave danger if released to the general population of TSP or any other State Prison, and recommended that plaintiffs remain in protective custody.

 C. Wooten v. Klein : In February, 1975 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. Calloway, Chavies and Coy were among them. They were represented in the action by the Office of the Public Advocate-Public Defender. Some of the plaintiffs had been confined to Vroom for disciplinary reasons; some, like the plaintiffs in the present case, had been confined for protective custody. 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.

 Wooten was terminated by a consent order filed December 14, 1976. The order incorporated a Stipulation of Settlement (the "Stipulation") which was attached to the order. The complaint was dismissed. The Stipulation recited that negotiations between the parties had resulted in agreement, the terms of which were incorporated in the Stipulation.

 Paragraph 1 of the Stipulation governed transfers to Vroom either for disciplinary reasons or for protective custody. Since plaintiffs were already in Vroom when the Stipulation was filed those provisions are not relevant in this case. Similarly, paragraph 2, relating to counseling of inmates transferred to Vroom for disciplinary reasons, is not applicable here.

 Paragraphs 3 through 6 provided for periodic review of the status of Vroom inmates:

3. Each R.U. inmate shall be reviewed at least monthly by a committee of custodial, treatment and administrative staff. If not recommended for release he shall be informed of that fact, verbally or in writing; and he shall also be given the reasons behind that determination unless security considerations preclude their disclosure, in which case a notation to that effect shall be placed in his file.
4. The Inter-Institutional Classification Committee, or a comparable body should the IICC cease to exist, shall review the case of each R.U. inmate no later than six months after his admission to the Unit, and at no less than three month intervals thereafter, on the basis of reports prepared by Unit staff and others as needed. The inmate shall be notified in writing and in detail if rejected for release by that body.
5. Whenever an inmate has been confined in the R.U. for one year and the Inter-Institutional Classification Committee (or some comparable body) has decided to keep him there beyond that point, there shall be forwarded to the Division Director a complete report on the inmate, and the Director shall personally review the case and either ratify or disapprove the Committee's decision. Reviews of this sort shall be accomplished at least annually should an inmate remain in the Unit for an extended period of time.
6. It shall not be a justification for retention of an inmate in the Unit, that the superintendent of no other State penal facility is desirous of having the inmate sent to his institution.

 Paragraph 7 provided that the "defendants shall use their best efforts to maintain regular programs of recreation, education and treatment for all inmates in the Readjustment Unit, and to maintain the facility in a healthful and sanitary condition". Paragraph 8 made special provision for inmates who, like ...

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