Opinion
99-CV-03766 (JBW).
November 2, 2004
MEMORANDUM AND ORDER
The Court of Appeals for the Second Circuit has remanded the case. Its opinion suggests a more intense interest by that court in the prompt and effective disposition of allegations by state prisoners that they have been improperly adjudicated by the prison system as violators of prison rules and punished in a cruel and unusual way. Ortiz v. McBride, 380 F.3d 649, 663 (2d Cir. 2004).
First, the Court of Appeals for the Second Circuit clarified the position that its 101-day rule does not apply where a lesser period of punishment is abnormally severe. Id. at 654 ("We have said that under abnormal or unusual SHU conditions, periods of confinement of less than 101 days may implicate a liberty interest."). Second, it held that the rule requiring exhaustion of all claims does not apply to section 1997(e)(a). Id. at 657 ("Section 1997e(a) clearly instructs that an action such as Ortiz's containing exhausted claims should not have been `brought.' But we do not think that it follows that the only possible response to the impermissibility of the bringing of the action is to dismiss it in its entirety — to kill it rather than to cure it.").
The court emphasized a need for prompt disposition on the merits of the exhausted claims by remarking:
We note, finally, that we expect that, in the ordinary case, once the district court dismisses the unexhausted claims, it will proceed directly to decide the exhausted claims without waiting for the plaintiff to attempt to exhaust available administrative remedies with respect to the dismissed claims. We see no reason to doubt that this is such an "ordinary" case.Id. at 663. In the absence of this directive, a trial court might usually encourage all claims to be expeditiously exhausted so that discovery and trial could go forward on all related claims together, and so that a trial with the same witnesses and documents would not have to be repeated.
To carry out the express and implied concern of the Court of Appeals for the Second Circuit, counsel shall be promptly appointed by the magistrate judge. It is recommended that appointed counsel have adequate resources and lawyer-power to handle exhausted claims quickly and comprehensively. The appointed attorneys may, nevertheless, consider assisting in the exhaustion of the unexhausted claims, without allowing the process of exhaustion to delay disposition of the exhausted claims.
Counsel should consider whether it is desirable for the district judge to visit the prison where the alleged unconstitutional violation occurred so that he can better appreciate the punishment's effect. If the answer is in the affirmative, counsel should advise whether accompanying the inspecting party shall be a photographer and adequate devices for measuring the size of any cell used and recording any other relevant details.
Counsel shall consider whether it would be appropriate to hold a hearing at the prison facility with plaintiff and witnesses there. Should the case ultimately be tried by a jury, counsel should consider whether the trial should be held at the prison so that the jury, selected in the Eastern District, could observe the facilities in question. Procedures for trying the case without bringing the plaintiff to Brooklyn, thus interrupting his period of incarceration, should be considered. Other issues and procedures implicated by the nature of the remand should be addressed by the attorneys.
A preliminary hearing is scheduled for December 14, 2004 at 10 a.m. The Warden is to make the plaintiff available via telephone.
SO ORDERED.