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PEREZ v. NEUBERT

June 20, 1985

JUAN PEREZ, et al., Plaintiffs,
v.
CALVIN NEUBERT, et al., Defendants



The opinion of the court was delivered by: GERRY

 I. INTRODUCTION

 These are thirty-three consolidated cases. The plaintiffs are among some 125,000 Cubans who arrived in the United States in the spring and summer of 1980, as part of the "Freedom Flotilla" that embarked from the Port of Mariel, Cuba. See Fernandez-Roque v. Smith, 734 F.2d 576 (11th Cir. 1984). Of these 125,000, a small percentage, but a fairly substantial number, were inmates released from Cuban jails and mental institutions. This court has no certain information about which, if any, of the thirty-three plaintiffs involved in these cases fall into this latter category of "Marielitos."

 Because most of these 125,000 Marielitos lacked documents entitling them to legally enter the United States, they were deemed "excludable." See 8 U.S.C. § 1182(a). Normally, excludable aliens, following exclusion hearings, are immediately deported, "unless the Attorney General, in an individual case, in his discretion, concludes that deportation is not practicable or proper." 8 U.S.C. § 1227(a). In the case of the Mariel Cubans, due to the special circumstances of their arrival, the Attorney General deemed deportation improper. Pursuant to his authority under 8 U.S.C. § 1182(d)(5), the Attorney General "paroled into the United States" the majority of the Marielitos, including the thirty-three presently before the court. Since arriving in Florida, the plaintiffs have come to New Jersey. All have been convicted of crimes committed in New Jersey and are serving sentences in connection with those crimes.

 These convictions may, at some future date, result in the return of the plaintiffs to Cuba. As of the summer of 1984, the government of Cuba had refused to accept back any of the Marielitos. In late 1984, the governments of the United States and Cuba reached some kind of an understanding under which Cuba would take back some of the Marielitos the United States government considered undesirable. However, in May 1985, the United States began broadcasts to Cuba via Radio Marti. This station, which bears the name of a Cuban national hero, was charged with the responsibility of transmitting anti-Castro information into Cuba. The Cuban government, apparently incensed by the broadcasts, abruptly backed out of its agreement to repatriate the Marielitos. While it is conceivable that at some point the governments may reach a new understanding under which deportation could be resumed, at the moment that is mere speculation.

 On or about April 3, 1985, the thirty-three plaintiffs were removed from the general prison populations of several state correctional institutions and were transferred to the Management Control Unit (MCU) at the Leesburg State Prison. The MCU, as will be described hereinafter, is a more restrictive form of confinement than general population confinement.

 The plaintiffs have brought suit pursuant to 42 U.S.C. § 1983 and claim violations of the 1st, 4th, 6th, 8th and 14th Amendments. They seek by way of injunctive relief their return to the general prison population. A hearing on their preliminary injunction application was held on June 7, 1985. In addition to the testimony and documents put into evidence on that day, the defendants have submitted for the court's in camera inspection additional evidence regarding the need for special confinement.

 The following shall constitute the court's findings of fact and conclusions of law.

 II. FINDINGS OF FACT

 1. All thirty-three plaintiffs have been convicted of crimes in the State of New Jersey and are currently incarcerated in the Management Control Unit in Leesburg State Prison. Prior to being placed in the MCU on or about April 3, 1985, the plaintiffs were serving their sentences in various institutions in the New Jersey system. Fifteen were in the general prison population at Leesburg (Brito, F.; Brito, R.; Contrera; Dixon; Echeverria; Jiminez; Morales; Moreno; Musa; Navarro; Ortiz; Puente; Ramirez; Sanchez; and Valdez); five were in the general population at Southern State (Junquera; Lopez, A.; Miquez; Rivera; and Velasquez); three in the general population at Annandale (Mendez; Roman; and Salabria); one was in the Youth Corrections facility at Yardville (Gonzalez); and nine were in the Prisoner Reception Unit (PRU) at Yardville (Delarosa; Fuentes; Garcia; Illarza; Lopez, P.; Niebla; Perez; Rosell; and Verdecia). The PRU seems to be a temporary way-station for those admitted to confinement in the state system. After being examined and classified, inmates are ordinarily transferred from the PRU to other facilities. None of the plaintiffs came from the state prisons at Trenton or Rahway.

 2. The court does not have before it complete information on the crimes for which the plaintiffs were convicted. We do know the parole eligibility dates of these men, however. Thirteen are eligible in 1985; eight, in 1986; five, in 1987; three, in 1988; two, in 1990; and one, in 1991. (Information as to one man, Valdez, was uncertain.) *fn1"

 3. The defendants in these actions are Irwin I. Kimmelman, the Attorney General for the State of New Jersey, and E. Calvin Neubert, the Superintendent of Leesburg.

 4. The plaintiffs were not the only Marielitos in the New Jersey prison system who were placed in Management Control Units throughout the state. In fact, all of the approximately 170 Mariel Cubans in the system were so placed in early April 1985, in MCUs at Trenton, Rahway and Leesburg. Non-Mariel Cubans were not similarly singled out for such treatment, nor were other conspicuous groups within the prisons, such as "bikers" or Muslims.

 (a) In July 1984, there was a group demonstration at Leesburg staged by fourteen Marielitos, apparently resulting in some way from these inmates' dissatisfaction with their Immigration and Naturalization Service (INS) detainers. These inmates merely threatened a hunger strike and a work stoppage until their concerns were addressed but did not threaten violence. Some of the demonstrators were transferred. Notably, not all Marielitos at Leesburg were involved in the demonstration, and no action was taken against those not involved.

 (b) In late February 1985, prison officials received a report from the INS based on information provided by an informant the INS characterized as reliable. The report stated that Mariel Cuban inmates were planning acts of violence against prison officials. The informant opined that these inmates would rather spend their lives in United States jails (by committing new acts of violence) than go back to Cuban jails pursuant to the deportation agreement between the two governments.

 (c) An undated report of an Internal Affairs Unit (IAU) investigator (probably written shortly after the INS memo) identified the probable leaders at Trenton State and Leesburg of any coordinated activity by the Mariel Cubans.

 (d) On March 31, 1985, officials received reliable, confidential information regarding a planned disturbance at Trenton State Prison the following day. This disturbance was to take place in the mess hall and ostensibly was supposed to be a protest against a new lunchroom procedure. But this protest, according to the informants, was merely a subterfuge. The Marielitos were actually planning acts of violence against prison personnel in order to avoid deportation. The informants believed that the Marielitos were to be joined in this demonstration by bikers and Muslims at Trenton State Prison, who would use the crisis as a means for airing their own, unrelated grievances.

 6. Based on the reports from Trenton State Prison, all Marielitos at that facility were quickly placed in MCU lockup at Trenton State Prison on April 1.

 7. After April 1, reports continued to come in.

 (a) On April 3, 1985, there was an incident at Leesburg in which one Marielito stabbed another. Apparently, the victim had accused the attacker of being an informant (a "rat"), and the attacker believed that the victim was trying to turn other Marielitos against him. Although this stabbing upon later investigation seemed to have simply been an isolated incident involving two inmates, at the time it gave officials some cause for believing that it had something to do with the other Marielito unrest throughout the state. *fn2"

 (b) Meanwhile, there was considerable unrest at Southern State. On April 2, the institution received inmates from Trenton State Prison. One of these transferees started a rumor that Marielitos at Trenton State Prison and Leesburg were being locked up and would be shipped to Cuba, where they would be shot. (We note for the record that there is no credible evidence from which to conclude that such a fate awaits any Marielitos who may ultimately be returned to Cuba. The now-abrogated repatriation agreement between the two governments contemplated that deportees would not be mistreated upon their return.)

 In the early afternoon of April 4, 1985, personnel at Southern State received a report that Mariel Cubans at the facility had planned a disturbance the previous day, but that it had not materialized due to the inability of inmates to spread the word.

 8. On April 3, 1985, all Marielitos at Leesburg were placed in MCU status there. Late on April 4, 1985, all Marielitos at Southern State were placed in MCU status there. It appears that on April 4, all other Marielitos in the state system were similarly placed. In the week or so that followed, various of these inmates were transferred around the state, so that at the present all are in MCUs in Trenton, Rahway or Leesburg.

 9. Throughout early-to-mid-April, 1985, reports sporadically came in about further possible disturbances by the Mariel Cuban inmates at Trenton State, and information was received about a planned violent demonstration at Rahway which had been short-circuited by the segregation of Marielitos there.

 10. There does not seem to have come to light during this period any specific information about planned violence by Marielitos at any of the following institutions: Bordentown, Mid-State, Annandale or Yardville (PRU and Youth Corrections).

 11. The plaintiffs were placed in MCUs on April 3 or 4, pursuant to Department of Corrections Standard 141.

 According to the testimony of prison officials and the terms of Standard 141, confinement in the Management Control Unit is not disciplinary or "punitive"; that is, confinement is not imposed because an inmate has violated a prison regulation. Confinement is not viewed as a stain on one's prison record and is not considered in any way in the parole process. Rather, the Management Control Unit is a form of preventive detention used by officials to prevent a potential disturbance from erupting. In the language of the Standard, an inmate may be placed in the MCU if he constitutes a "threat":

 
(1) to the safety of others; or (2) of damage to or destruction of property; or (3) of interrupting the safe, secure, and orderly operation of the institution . . . .

 Ordinarily, a hearing precedes placement in the MCU. However, under the Standard, one may be placed in the MCU prior to hearing in the event of an emergency posing an immediate and substantial threat to the security and orderly operation of the institution. In the event of an emergency, hearings are to be held "as soon as possible," with the promptness depending on the number of inmates involved. And any inmate who is continued in the MCU following a hearing is ...


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