Opinion
Civ. No. 1972-341.
October 5, 1973.
Robert B. Conklin, Buffalo, N.Y., for plaintiff.
Louis J. Lefkowitz, Atty. Gen. of the State of New York (Bedros Odian, Buffalo, N.Y., of counsel), for defendants.
Pending before the court for decision are motions for summary judgment filed by both parties. Plaintiff alleges that on June 7, 1972 he was placed in segregation by an Attica Adjustment Committee for having "inflammatory writing" in his cell and he is therefore being punished for his political beliefs. See Sostre v. McGinnis, 442 F.2d 178, 202-203 (2d Cir. 1971). By prior order of this court, plaintiff was permitted to proceed in forma pauperis and Robert B. Conklin, Esq. was assigned to represent him.
The essential facts are not in dispute. On June 6, 1972, correction officers Michael Amico and Gene Tiede, assigned to "A" Block in the Attica Correctional Facility, observed plaintiff Tyrone Larkins speaking to a group of five other inmates in the yard. Correction officer John King, who was close by, identified the plaintiff, Tyrone Larkins, as the speaker and inmate Larry Tinsley as one of the members of the group.
In his affidavit filed in support of this motion, Officer Amico explained that he knew that Larkins had a reputation as an instigator and dissenter and, for this reason, he and Tiede searched the cells of Larkins and Tinsley. In Larkins' cell, the officers found the political tract which became the subject of the proceeding against him and, in Tinsley's cell, the officers found notes describing plans to construct a bomb. Tinsley did not file an action in this court. When he appeared before the Adjustment Committee, he was counseled and released to general population.
After finding the papers, Amico immediately filed an Inmate Misbehavior Report against Larkins stating:
Upon observing this man [Larkins] in the yard with a group of inmates Officer Tiede and myself frisked this man's cell and found Black Pantor [sic] Party papers and revolutionary papers in his cell.
On June 7, 1972, Larkins appeared before the Adjustment Committee. The report of the Committee states:
Inmate appears belligerent and uncooperative toward institutional policies — he believes in revolution — inmate admits affiliation to Black Panther Party.
The Committee's action was to confine Larkins in HBZ for seven days with loss of yard and recreation.
In the action filed in this court, the plaintiff seeks money damages for what he claims was the improper action of the Committee. In support of their motion for summary judgment, the defendants have filed affidavits by Lieutenant Le-Mar A. Clor, who presided at the Adjustment Committee hearing, and by Officers Amico and Tiede. No affidavit was filed by correction officer John King. In his affidavit, Lt. Clor states that, at the Adjustment Committee meeting, Larkins was charged with advocating to the group in the yard the overthrow of the institution and the possession of inflammatory written materials. Lt. Clor describes Larkins' reaction as follows:
Larkins admitted that he was affiliated with the Black Panther Party and that he believed in Revolution and that forceful overthrow of existing authority was the only way to achieve certain ends.
Larkins never denied that he had lectured to the group of the other five (5) inmates on the advocacy of the overthrow of the institution.
Considering the facts in a light most favorable to the defendants, relief must be given to the plaintiff. There is a discrepancy between the Adjustment Committee report and Lt. Clor's affidavit in which he described the proceedings before the Adjustment Committee. In his affidavit, Lt. Clor stated that the plaintiff was charged with advocating to the five inmates the overthrow of the institution. Officer Amico's Misbehavior Report, which formed the basis of the charge before the Committee, relates only that Larkins was in the yard with a group of inmates and that the Black Panther Party papers were found in his cell. From the Adjustment Committee report, it appears that there was some general discussion about plaintiff's attitude toward the institution, but nothing is said about what remarks Larkins directed to the inmates in the yard. In discussing specifically what Larkins said in the yard, Lt. Clor is only able to state:
Larkins never denied that he had lectured to the group of the other five (5) inmates on the advocacy of the overthrow of the institution.
None of the officers heard what Larkins said to the group. From the record of the proceedings and the affidavits filed by the officers, it is clear that there was no charge or evidence before the Committee that Larkins had advocated the overthrow of the institution.
That leaves for consideration whether Larkins may be punished for possessing the papers found in his cell. This writing is entitled "The Black Panther Party Ten Point Program — Platform." There is no evidence at all that Larkins had circulated this writing in the institution. Furthermore, although his position may be extreme in some points, yet many of the aspirations set forth in the paper are hard to fault. The demands relate to freedom, full employment, an end to the exploitation of the black community, decent housing, education, the desire for black men to be exempt from military service, an end to police brutality in the black community, freedom for black men held in prisons and a demand that black defendants go to trial before a black jury. These principles are espoused by many individuals in the American community. Under the guidance of Sostre v. McGinnis, supra, the court finds that there was nothing wrong with Larkins having this document in his cell and it was improper for the Adjustment Committee to punish him for having it there. The additional reasons for punishment set forth in the affidavit of Lt. Clor are not supported by the record. Partial summary judgment is granted to the plaintiff. The question of damage remains. The attorneys shall meet with the court on October 12, 1973 at 11:00 A.M. to determine what proceedings shall follow.
See Appendix.
So ordered.
APPENDIX Exhibit 1
The following is a copy of the material found in Larkins' cell.
Bro. Bob
Dickie and Valentine will be the one's that will inform the Party masses of my whereabout and activity.
Get in touch with Dickie in the yard — the brothers comrades know about. But you must come around — the Brothers are waying for you. Take care yourself and keep on pushin!
Prisoner Power/over Tyrany Power "All Power to the People" Palante Hasta La Victoria! Venceremos. Ho Chi Minh — P.R.N.L.F. (Younglords Party) G.I. Jose Enrique Paris Central — Revolutionary Format
The central committee must be highly enformed, equiped, mobilized and coordinated to ensure its operating efficiency and survival consisting of well disciplined, dedicated, and orientated gurrilla's. This revolutionary organization functions lies in its ability to maintain and commit to effective utilization, an agency responsible for collecting analysis, publishment, and distribution to unit segments. The elements of this agency should consist of (A) chief tactician, (B) tacticalmission planners, (C) reconnoisance team, (D) mobile communication team, (E) mobile strike force, (F) heavy weapons crew, (G) special forces unites, and (H) rescue recovery unit.
(A) The chief tactician job is the supervision of the entire agency. He is its sole commander and is responsible for the arranging and movement of its troops, for the orderly planning of maneuvers and to use such to its best advantage.
(xs) Tactical mission planners are teams chiefs from each unit segment and headed by the chief tacticion. The reason for the unit is obvious. The success of the agency depends upon all units, when in action, to preform as one co-ordination demands that each unit must know his individual as well as collective function during any kind of maneuvers, whether in practice or in an actual situation.
This committee's primary objective at this point is revolutionary — political education.
1. Each brother-comrade will adhere to the revolutionary-catechism.
2. Each cell commander will exchange political, social, economic and military information on a daily basis.
3. Each cell commander will have a cell not exceeding four men, and each comrade will not know who the others are. Each recruit after he has been revolutionary orientated will have a cell of comrades, etc., forming a pyramid structure.
4. Revolutionary educational curriculum.
(A) Political indoctrination the irradicating of all western european concepts. The doctrine of a black afro-centric viewpoint within a black frame work, correct ideology in terms of international perspective.
(B) Social cultural indoctrination: How people function in a given society with false culture assimilation, as well with proper culture awareness. Laws governing such actions, and environmental effects.
Economic indoctrination: pretaining to the production, distribution and consumption of wealth and the means of control, monetary systems and their effects on people in a society.
Military industrial complex, army, navy, air force, national guard militia, and reserves. Guerilla warfare, etc.
This concludes our brief description and introduction of a tactical intelligence and combat unit.
This revolutionary organizations authoritative command is the more sophisticated strategic intelligence and planning division.
The Black Panther Party Ten Point Program — Platform
1. We want freedom, we want power to determine the destiny of our black community. . . . We believe that the black people will not be free until they are able to determine their own destiny.
2. We want full employment for our people . . .
We believe that the federal government, or a guaranteed income. We believe that if the white amercian businessman will not give full employment, the means of production should be taken from the businessman and placed in the community, so that the people of the community can organize and employ all of its people and give a higher standard of living.
3. We want an end to the robbery by the whiteman of our black community . . . We believe that this racist government has robbed us and now we are demanding the overdue debt of (40) forty acres and two (2) mules. Forty acres and two mules was promised one hundred (100) years ago as restitution for slave labor, and mass murder of black people. So we will accept the payment in property or currency, which will be distributed to our many communities. The Germans are aiding the jews in Israel for the genocide of the jewish people. The germans murdered six (6) million jews. The American racits has taken part in the slaughter of over fifty (50) million black people, therefore, we feel that this is a modest demand.
4. We want decent housing, fit for the shelter of human being . . . We believe that if the white landlords will not give decent housing to our black community, then the housing land should be made into co-operatives so that our community with government aid can build decent housing for its people.
5. We want education for our people, that exposes the true nature of this decadent American society . . .
We want education that teach us our true history and our role in the present-day-society. We believe in an educational system that will give to our people a knowledge of self. If man does not have knowledge of himself and his position in society and the world, then he has little chance of relating to anything else.
6. We want all black men to be exempt from military service. . . . We believe the black people shouldn't be forced to fight in the military service to defend a racist government, that does not protect us. We will not kill other people of color in the world who like black are being victimized by the white racist government of American. We will protect ourselves from the force and violence of the racist police and the racist military, by whatever means possible.
7. We want an immediate end to police brutality and murder of black people. . . . We believe that we can end police brutality in our black communities by organizing black self-defense groups, that are dedicated to defend our community is from ractis police oppression and brutality. The second Amendment to the constitution of the United States gives us a right to bear arms. We therefore believe that all black people should arm themself's for self-defense.
8. We want freedom for all blackmen held in federal, state, county and city prisons and jails. . . .
We believe that all black people should be released from the many jails and prisons, because they have not received a fair and impartial trial.
9. We want all black people when brought to trial, to be tried in a court by a jury of their own peers groups or people from their own communities as defined by the Constitution of the United States . . . We believe that the courts should follow the United States constitution, so that blacks can receive fair trials. The fourteenth (14) Amendment of the United States Constitution gives a man the economical, racial background, social, religious, geographica, environmental, historical, and from this the Court will be forced to select a jury, from the black community from whichever one the defendant come. We have been and are being tried by all-white juries that have no understanding of the average reasoning man in the black community.
10. We want land, bread, housing, education, clothing, justice and peace. And as our major political objective, a United Nations supervised plebiscite to be held throughout the black colony in which only black colonial subjects will be allowed to participate, for the purpose of determining the will of black people as to their national destiny. . . .
For when in the courage of human events it becomes necessary for one people to dissolve the political bonds which have connected them with others and to assume among the powers of the earth, the separated and equal stations to which the laws of nature and god entitles them to a decent respect to the opinion of mankind inquiries that they should declare the causes which impel them to the separation. For we hold this truth to be self-evident, that all men are created equal, that they are endorsed by their creators with certain inalienable rights the among these life, liberty and the pursuit of happiness. That to secure these rights, governments or instituted, that whatever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it and to institute a new government laying its foundation on such principals, organizing its powers in such form, as to them shall seem most likely to effect their saftey and happiness. Prudence indeed will dictate that governments long established should not charged for light and trainsient can see, and accordingly all experience both show that mankind is more dispposed to suffer while evils are sufferable then to right themselves by abolishing the forms to which they are accustomed, but when a long train of abuse and unsurpation, pursuing inwardly the same object engineering a design to reduce, then under absolute despotism, it is then right, it is their duty to throw off such government and to provide new guards for their future security.
"All Power to the People" Power to the Vanguard!