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1111111111111fnril111111111111 PC-NY -0004-0001

 
 FORM TO BE USED BY A PRISONER IN FILING A COMPLAINT UNDER THE CIVIL RIGHTS ACT, 42 U. S. C. SECTION 1983
In the United States District Court for the lTul·Ul¾«n D i s t r i c t of New York vJc

(Enter above the full name of the plaintiff in this action.)
VS.
M f\U in 1 $, m i \ h -

f\f)C<lUC

(Enter above the full name of the defendant or defendants in this action.) I. Previous Lawsuits
A. Have you begun other lawsuits in state or federal court dealing with the same facts involved in this action or× otherwise relating to your imprisonment? Yes( ) No( *)
B. If you answer to A is yes, describe the lawsuit in the space below. (If there is more than one lawsuit, describe the additional lawsuits on another piece of paper, using the same outline.) 1. Parties to this previous law¤uit Plaintiffs
Defendants
2. Court (if federal court, name the district; if state court, name the county)
3. Docket number 4. Name of Judge to whom case was assigned_ 5. Disposition (for example: Was the case dismissed?
Tías it appealed? Is it still pending?)
S. Approximate date of filing lawsuit
7 . A p p r o x i m a t e rUM-¢» o f fHfn»jrH·f.-n

Eng v. Smith

H

HH

HH

HW

H<H

HH

•

PC-NY-0004-0002

f\\\
II. Plac3 of Present Confinement A. Is there a prisonerygrievanc<¾ prooo<n,ir« in this institution? Yes(·^) No( ) B. Did you present the facts relating to your complaint / in the state prisoner grievance procedure? Yes( ) No (") C. If you answer is YES, 1. What steps did you take?
What was the result?
D. If your answer i s NO, explaint why not J ¢¢pt í>4~ M'll€·P
Sùv&hr ij -L·v¦^c> -Ihe pi/<L*£vJ •*-(JiÅ:lhoÆ¦l·u4^ Such
S. If there is no prison grievance procedure in the institution, did you complain to prison authorities? Yes ( ) No ( )
F. If you answer is YES, 1. What steps did you take?
2. What was the result?

III. Parties

(In item A below, place your name in the f i r s t blank and place your present address in the second blank. Do the same for additional plaintiffs, if any.)
A. Name of plaintiff CitCÏÏ.Cz. LN(S, H\x\íj\\K\ íßt¯Níé
‰i (‰/H«AÌ, ¾^tól½SÍ l‰(VflOsfað, 1/J.U .

(In Item B below, place the full name of the defendant in the first blank, his official position in the second blank, and his place of employment in the third blank. Use item C for the names, positions, and places of employment of any additional defendants.)

B. Defendant H A'k¦plß ^) J^H * -/- h

S

at ¢<4'M

is employed as
W

C. Additional Defendants C ì\(\ <l \íS- ^-Xtì-ftl£`> ,

-2-

IV. Statement of Claim
(State here as briefly as possible the facts of your case. Describe how each defendant is involved, include also the names of other persons involved, dates, and places. Do not give any legal arguments or cite any cases or statutes. If you intend to allege a number of related claims, number and set forth each claim in a separate paragraph. Use as much space as you need. Attach extra sheet if necessary.)
All ptfl'k¡ïtl·h L'
s, \uón^k^±JhLØ^

gS AMfif\¡¡ oFktsti

V. Relief

<State briefly exactly what you want the court to do for j£ou. Make no legal arguments. Cite no cases or statutes.)

kl

7lo4 ñ-ll e/‰-¢<> c h . U . U p¢<n/il

iûé j \

é' fi

¿>c<?4c BMO
\tfkl\tjí'ñlp*·H> Signed this

¯^ ¾s 5

. C¿¿

¿*<-h

of

(Signature of Pla¯intTff)

I declare under penalty of perjury that the foregoing is true and correct.

(Dete)

(sighst-Aire of Plaintiff)

—3—

 
 CM/ECF LIVE - U.S. District Court:nywd - Docket Report

https://ecf.nywd.uscourts.gov/cgi-bin/DktRpt.pl?260319565270081-L_...

CLOSED_2001, LEAD
U.S. DISTRICT COURT WESTERN DISTRICT OF NEW YORK [LIVE] (Buffalo)
CIVIL DOCKET FOR CASE #: 1:80-cv-00385-WMS

Eng, et al v. Coughlin, et al Assigned to: Hon. William M. Skretny Demand: $0 Lead case: 1:80-cv-00385-WMS (View Member Cases) Cause: 42:1983 Prisoner Civil Rights

Date Filed: 05/08/1980 Jury Demand: None Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Plaintiff George Eng

represented by Dori A. Lewis The Legal Aid Society, Prisoners' Rights Project One Battery Park Plaza 27th Floor New York, NY 10004 212-577-3530 Fax: 212-425-2465 Email: dlewis@legal-aid.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joanne G. Macri Prisoners Legal Services of New York 107 Delaware Ave Suite 1360 Buffalo, NY 14202 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph L. Gerken 210 Franklin St. Ste 500 Buffalo, NY 14202 716-854-5161 TERMINATED: 07/23/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karen J. Draves Prisoners Legal Services of New York 107 Delaware Ave Suite 1360 Buffalo, NY 14202 716-854-1007 Fax: 716-854-1008

1 of 42

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CM/ECF LIVE - U.S. District Court:nywd - Docket Report
Plaintiff Martin Spence
2 of 42

https://ecf.nywd.uscourts.gov/cgi-bin/DktRpt.pl?260319565270081-L_...
Email: kdraves@plsny.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Maria E. Pagano Prisoners Legal Services of New York 107 Delaware Ave Suite 1360 Buffalo, NY 14202 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael W. McCarthy Prisoners' Legal Services of New York 210 Franklin Street Suite 500 Buffalo, NY 14202 716-854-5161 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah Kerr Legal Aid Society 111 Livingston Street 7th Floor Brooklyn, NY 11201 718-260-4757 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas D. Terrizzi Prisoners' Legal Services of New York 114 Prospect Street Ithaca, NY 14850 607-273-2283 Fax: 607--272-9122 Email: tterrizzi@plsny.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Dori A. Lewis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joanne G. Macri (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
2/27/2006 12:38 PM

CM/ECF LIVE - U.S. District Court:nywd - Docket Report

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Plaintiff Ronald West
3 of 42

Joseph L. Gerken (See above for address) TERMINATED: 07/23/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen J. Draves (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Maria E. Pagano (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael W. McCarthy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah Kerr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas D. Terrizzi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Dori A. Lewis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joanne G. Macri (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph L. Gerken (See above for address) TERMINATED: 07/23/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen J. Draves
2/27/2006 12:38 PM

CM/ECF LIVE - U.S. District Court:nywd - Docket Report
Plaintiff John Griffin
4 of 42

https://ecf.nywd.uscourts.gov/cgi-bin/DktRpt.pl?260319565270081-L_...
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Maria E. Pagano (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael W. McCarthy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah Kerr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas D. Terrizzi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Dori A. Lewis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joanne G. Macri (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph L. Gerken (See above for address) TERMINATED: 07/23/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen J. Draves (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Maria E. Pagano (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
2/27/2006 12:38 PM

CM/ECF LIVE - U.S. District Court:nywd - Docket Report

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Plaintiff Anthony Barton
5 of 42

Michael W. McCarthy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah Kerr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas D. Terrizzi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Dori A. Lewis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joanne G. Macri (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph L. Gerken (See above for address) TERMINATED: 07/23/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen J. Draves (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Maria E. Pagano (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael W. McCarthy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah Kerr (See above for address)
2/27/2006 12:38 PM

CM/ECF LIVE - U.S. District Court:nywd - Docket Report
Plaintiff Bruce Hawkins

https://ecf.nywd.uscourts.gov/cgi-bin/DktRpt.pl?260319565270081-L_...
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas D. Terrizzi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Dori A. Lewis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joanne G. Macri (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph L. Gerken (See above for address) TERMINATED: 07/23/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen J. Draves (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Maria E. Pagano (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael W. McCarthy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah Kerr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas D. Terrizzi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

6 of 42

2/27/2006 12:38 PM

CM/ECF LIVE - U.S. District Court:nywd - Docket Report
Plaintiff Anderson Bernier
Plaintiff Joel Clayman
7 of 42

https://ecf.nywd.uscourts.gov/cgi-bin/DktRpt.pl?260319565270081-L_...
represented by Dori A. Lewis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joanne G. Macri (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph L. Gerken (See above for address) TERMINATED: 07/23/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen J. Draves (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Maria E. Pagano (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael W. McCarthy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah Kerr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas D. Terrizzi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Dori A. Lewis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joanne G. Macri (See above for address)
2/27/2006 12:38 PM

CM/ECF LIVE - U.S. District Court:nywd - Docket Report
Plaintiff William Boddie also known as Bilal A. Malik
8 of 42

https://ecf.nywd.uscourts.gov/cgi-bin/DktRpt.pl?260319565270081-L_...
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph L. Gerken (See above for address) TERMINATED: 07/23/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen J. Draves (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Maria E. Pagano (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael W. McCarthy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah Kerr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas D. Terrizzi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Dori A. Lewis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joanne G. Macri (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph L. Gerken (See above for address) TERMINATED: 07/23/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
2/27/2006 12:38 PM

CM/ECF LIVE - U.S. District Court:nywd - Docket Report

https://ecf.nywd.uscourts.gov/cgi-bin/DktRpt.pl?260319565270081-L_...

Plaintiff Milton Payne
9 of 42

Karen J. Draves (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Maria E. Pagano (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael W. McCarthy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah Kerr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas D. Terrizzi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Dori A. Lewis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joanne G. Macri (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph L. Gerken (See above for address) TERMINATED: 07/23/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen J. Draves (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Maria E. Pagano (See above for address)
2/27/2006 12:38 PM

CM/ECF LIVE - U.S. District Court:nywd - Docket Report
Plaintiff R. Lloyad

https://ecf.nywd.uscourts.gov/cgi-bin/DktRpt.pl?260319565270081-L_...
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael W. McCarthy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah Kerr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas D. Terrizzi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Dori A. Lewis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joanne G. Macri (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph L. Gerken (See above for address) TERMINATED: 07/23/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen J. Draves (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Maria E. Pagano (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael W. McCarthy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

10 of 42

2/27/2006 12:38 PM

CM/ECF LIVE - U.S. District Court:nywd - Docket Report
Plaintiff Anthony Martin
11 of 42

https://ecf.nywd.uscourts.gov/cgi-bin/DktRpt.pl?260319565270081-L_...
Sarah Kerr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas D. Terrizzi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Dori A. Lewis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joanne G. Macri (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph L. Gerken (See above for address) TERMINATED: 07/23/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen J. Draves (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Maria E. Pagano (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael W. McCarthy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah Kerr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas D. Terrizzi (See above for address) LEAD ATTORNEY
2/27/2006 12:38 PM

CM/ECF LIVE - U.S. District Court:nywd - Docket Report
Plaintiff Joey Tavolino
Plaintiff Abdul Beyah

https://ecf.nywd.uscourts.gov/cgi-bin/DktRpt.pl?260319565270081-L_...
ATTORNEY TO BE NOTICED
represented by Dori A. Lewis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joanne G. Macri (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph L. Gerken (See above for address) TERMINATED: 07/23/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen J. Draves (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Maria E. Pagano (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael W. McCarthy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah Kerr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas D. Terrizzi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Dori A. Lewis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

12 of 42

2/27/2006 12:38 PM

CM/ECF LIVE - U.S. District Court:nywd - Docket Report
Plaintiff Jamal Kitt
13 of 42

https://ecf.nywd.uscourts.gov/cgi-bin/DktRpt.pl?260319565270081-L_...
Joanne G. Macri (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph L. Gerken (See above for address) TERMINATED: 07/23/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen J. Draves (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Maria E. Pagano (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael W. McCarthy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah Kerr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas D. Terrizzi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Dori A. Lewis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joanne G. Macri (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph L. Gerken (See above for address) TERMINATED: 07/23/1998
2/27/2006 12:38 PM

CM/ECF LIVE - U.S. District Court:nywd - Docket Report
Plaintiff John Terry et al

https://ecf.nywd.uscourts.gov/cgi-bin/DktRpt.pl?260319565270081-L_...
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen J. Draves (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Maria E. Pagano (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael W. McCarthy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah Kerr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas D. Terrizzi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Dori A. Lewis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joanne G. Macri (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph L. Gerken (See above for address) TERMINATED: 07/23/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen J. Draves (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

14 of 42

2/27/2006 12:38 PM

CM/ECF LIVE - U.S. District Court:nywd - Docket Report
V. Defendant Harold J. Smith Superintendent - Attica Correctional Facility
15 of 42

https://ecf.nywd.uscourts.gov/cgi-bin/DktRpt.pl?260319565270081-L_...
Maria E. Pagano (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael W. McCarthy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah Kerr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas D. Terrizzi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Charles D. Steinman New York State Attorney General's Office Department of Law 144 Exchange Boulevard Rochester, NY 14614 585-327-3214 Fax: 585-546-7514 Email: charles.steinman@oag.state.ny.us TERMINATED: 02/16/1995 LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Molik Office of Counsel NYS Department of Corrections Building 2 State Office Campus Albany, NY 12226 TERMINATED: 04/02/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Douglas S. Cream State Attorney General's Office 107 Statler Towers Buffalo, NY 14202 716-847-7177
2/27/2006 12:38 PM

CM/ECF LIVE - U.S. District Court:nywd - Docket Report
Defendant Charles James Deputy Superintendent
16 of 42

https://ecf.nywd.uscourts.gov/cgi-bin/DktRpt.pl?260319565270081-L_...
TERMINATED: 05/20/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jerry McGrier, Sr. Erie County Department of Law 69 Delaware Avenue Suite 300 Buffalo, NY 14202 716-858-2200 Fax: 716-858-2281 Email: mcgrierj@erie.gov TERMINATED: 08/30/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kim S. Murphy NYS Attorney General's Office 107 Statler Towers Buffalo, NY 14202 716-853-8477 Fax: 716-853-8571 Email: kim.murphy@oag.state.ny.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen F. Gawlik Assistant Attorney General 107 Statler Towers Buffalo, NY 14202 (716) 853-8436 Fax: 716-853-8571 Email: stephen.gawlik@oag.state.ny.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Goetz Office of Counsel NYS Department of Corrections Building 2 State Office Campus Albany, NY 12226 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Charles D. Steinman (See above for address) TERMINATED: 02/16/1995 LEAD ATTORNEY
2/27/2006 12:38 PM

CM/ECF LIVE - U.S. District Court:nywd - Docket Report
Defendant Keith Countermine
17 of 42

https://ecf.nywd.uscourts.gov/cgi-bin/DktRpt.pl?260319565270081-L_...
ATTORNEY TO BE NOTICED
David Molik (See above for address) TERMINATED: 04/02/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Douglas S. Cream (See above for address) TERMINATED: 05/20/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jerry McGrier, Sr. (See above for address) TERMINATED: 08/30/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kim S. Murphy (See above for address) TERMINATED: 11/27/2000 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen F. Gawlik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Goetz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Charles D. Steinman (See above for address) TERMINATED: 02/16/1995 LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Molik (See above for address) TERMINATED: 04/02/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Douglas S. Cream
2/27/2006 12:38 PM

CM/ECF LIVE - U.S. District Court:nywd - Docket Report
V. Intervenor Defendant Esq. Robert Hite TERMINATED: 06/20/1995
Intervenor Defendant
18 of 42

https://ecf.nywd.uscourts.gov/cgi-bin/DktRpt.pl?260319565270081-L_...
(See above for address) TERMINATED: 05/20/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jerry McGrier, Sr. (See above for address) TERMINATED: 08/30/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kim S. Murphy (See above for address) TERMINATED: 11/27/2000 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen F. Gawlik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Goetz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Robert Hite Rowley, Forrest, O'Donnell & Beaumont, P.C. 20 Corporate Woods Boulevard Albany, NY 12211 PRO SE
Robert S. Hite Hite, O'Donnell & Beaumont, P.C. 26 Century Hill Drive Suite 204 Latham, NY 12110 518-786-1100 Fax: 518-786-1119 Email: rhite@hodb.com TERMINATED: 06/20/1995 LEAD ATTORNEY ATTORNEY TO BE NOTICED
2/27/2006 12:38 PM

CM/ECF LIVE - U.S. District Court:nywd - Docket Report

https://ecf.nywd.uscourts.gov/cgi-bin/DktRpt.pl?260319565270081-L_...

Enforcement Officers Union, District Council 82, AFSCME, AFL-CIO

represented by Robert S. Hite (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 01/22/1992
01/24/1992 01/24/1992
02/06/1992
02/26/1992 02/26/1992 02/26/1992 03/16/1992 03/17/1992
04/28/1992
04/30/1992

#

Docket Text

Minute entry: status conf. held; nonjy trial re: "medical claim" adj'd to 6/15/92; dft to complete depositions by 3/17/92 and to respond to pltf's pre-trl stmts by 2/24/92; pltf to review his injunctive relief application, redraft, if any, to be filed & served n/l/t 2/5/92; stat. conf. adj'd to 3/16/92 @ 9:30 a.m. (former empl) (Entered: 01/31/1992)
Consolidated Lead Case (former empl) (Entered: 01/24/1992)
756 ORDER, Pltf may submit add'l legal memo n/l/t 2/5/92; set Scheduling Order Deadlines: Deposition deadline on 3/17/92; Pretrial conference at 9:30 3/16/92; Trial Date re: adequacy of med'l care adj'd to 5/15/92; Pretrial Statements to be filed by 2/24/92 ( signed by Judge William M. Skretny ) Notice and copy of order sent to Robert Hite, Joseph L. Gerkin, Douglas S. Cream, Charles D. Steinman, David Molik (former empl) (Entered: 01/24/1992)
757 ORDER, to Extend Time for pltf's pre-trial brief to be submitted to 2/7/92 ( signed by Judge William M. Skretny ) Notice and copy of order sent to Robert Hite, Joseph L. Gerkin, Douglas S. Cream, Charles D. Steinman, David Molik (former empl) (Entered: 02/06/1992)
758 Filed DEFENDANTS' EXHIBIT LIST (former empl) (Entered: 02/26/1992)
759 PRETRIAL STATEMENT by Dft's Harold J. Smith, Charles James, Keith Countermine (former empl) (Entered: 02/26/1992)
760 CERTIFICATE OF SERVICE by Charles D. Steinman, re items #758 & 759 (former empl) (Entered: 02/26/1992)
Minute entry: Status conf. held; reset Status Conference for 9:30 5/7/92 (former empl) (Entered: 03/20/1992)
761 ORDER, reset Status Conference for 9:30 5/7/92 , etc. ( signed by Judge William M. Skretny ) Notice and copy of order sent to Robert Hite, Joseph L. Gerkin, Douglas S. Cream, Charles D. Steinman, David Molik (former empl) (Entered: 03/18/1992)
762 ORDER, reset Scheduling Order Deadlines: Discovery deadline (depositions of expert witnesses) on 5/15/92; Pretrial conference at 4:00 5/20/92 ( signed by Judge William M. Skretny ) Notice and copy of order sent to Robert Hite, Joseph L. Gerkin, Douglas S. Cream, Charles D. Steinman, David Molik (former empl) (Entered: 04/29/1992)
Minute entry: status conf. held; pltf to provide ct w/ current witness list & deposition testimony to be used at trial n/l/t 5/8/92; Agreed Ct does not have to resolve grand jy issue prior to this segment of trial. (former empl) (Entered:

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05/05/1992 05/15/1992 05/20/1992 05/22/1992
06/04/1992 06/04/1992 06/04/1992 06/04/1992 06/04/1992 06/04/1992

05/04/1992)
763 NOTICE by atty for Harold J. Smith, Charles James, Keith Countermine to take deposition of Joseph Jamal Kitt on 6/19/92 @ 10:00 a.m. @ Wende C. F., w/ aff of svc. --NOTE: THIS ENTRY MADE IN ERROR. DOCUMENT DOES NOT BELONG IN THIS CASE.-- (former empl) Modified on 06/11/1992 (Entered: 05/06/1992)
764 Letter MOTION by Jamal Kitt for Appointment of Counsel and containing objections to being deposed. --NOTE: THIS ENTRY MADE IN ERROR. THIS ITEM DOES NOT BELONG IN THIS CASE.-- (former empl) Modified on 06/11/1992 (Entered: 05/15/1992)
Minute entry: stat. cnf. held; depositions complete except for dfts' expert Dr. Hines; Ct. requests proposed findings of fact & conclusions of law w/ redacted dr's repts from parties; pltf has tendered settlemt offer to dft; final pre-trial conf. to be scheduled. (former empl) (Entered: 05/22/1992)
765 ORDER, set Scheduling Order Deadlines: Final Pretrial conference at 4:30 6/8/92 , and set Pretrial Instructions deadline to 6/4/92 (for counsel to submit updated exhibit lists to Ct on floppy disk, etc.) ( signed by Judge William M. Skretny ) Notice and copy of order sent to Robert Hite, Joseph L. Gerkin, Douglas S. Cream, Charles D. Steinman, David Molik (former empl) (Entered: 05/27/1992)
766 ORDER, for Clerk to issue Writ of Habeas Corpus Ad Testificandum for Luis Feliciano on 6/17/92, etc. ( signed by Judge William M. Skretny ) Notice and copy of order sent to Robert Hite, Joseph L. Gerkin, Douglas S. Cream, Charles D. Steinman, David Molik (former empl) (Entered: 06/04/1992)
WRIT of Habeas Corpus Ad Testificandum issued for Luis Feliciano on 6/17/92 @ 9:00. Orig. & 1 cert cpy to U.S. Marshal, 2 cert. cpy to atty gen'l, 1 cert cpy to Supt. Hans Walker, & 1 cpy to Robert Hite, Joseph Gerkin, Charles Steinman & David Molik. (former empl) (Entered: 06/04/1992)
767 ORDER, for Clerk to issue Writ of Habeas Corpus Ad Testificandum for Melvin Mason on 6/17/92, etc. ( signed by Judge William M. Skretny ) Notice and copy of order sent to Robert Hite, Joseph L. Gerkin, Douglas S. Cream, Charles D. Steinman, David Molik (former empl) (Entered: 06/04/1992)
WRIT of Habeas Corpus Ad Testificandum issued for Melvin Mason on 6/17/92 @ 9:00 a.m. (Orig. & 1 Cert cpy to U.S. Marshal, 2 cert cpy to atty gen'l, 1 cert cpy to Supt. Arthur Leonardo, 1 cpy to Robert Hite, Joseph Gerkin, Charles Steinman, & David Molik) (former empl) (Entered: 06/04/1992)
768 ORDER, for Clerk to issue Writ of Habeas Corpus Ad Testificandum for Donald Brusso on 6/17/92, etc. ( signed by Judge William M. Skretny ) Notice and copy of order sent to Robert Hite, Joseph L. Gerkin, Douglas S. Cream, Charles D. Steinman, David Molik (former empl) (Entered: 06/04/1992)
WRIT of Habeas Corpus Ad Testificandum issued for Donald Brusso on 6/17/92 @ 9:00 a.m. (Orig'l & 1 Cert cpy to U.S. Marshal, 2 cert. cpy to atty. gen'l, 1 cert cpy to supt. Arthur Leonardo, 1 cpy to Robert Hite, Joseph Gerkin, Charles Steinman, & David Molik.) (former empl) (Entered: 06/04/1992)

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06/04/1992 06/04/1992 06/04/1992 06/04/1992 06/04/1992 06/04/1992 06/04/1992 06/04/1992 06/04/1992 06/04/1992 06/04/1992

769 ORDER, for Clerk to issue Writ of Habeas Corpus Ad Testificandum for Dean Simonds on 6/17/92, etc. ( signed by Judge William M. Skretny ) Notice and copy of order sent to Robert Hite, Joseph L. Gerkin, Douglas S. Cream, Charles D. Steinman, David Molik (former empl) (Entered: 06/04/1992)
WRIT of Habeas Corpus Ad Testificandum issued for Dean Simonds on 6/17/92 @ 9:00 a.m. (orig'l & 1 cert cpy to U.S. Marshal, 2 Cert. cpy to atty. gen'l, 1 cert. cpy to Supt. Hans Walker, 1 cpy to Robert Hite, Joseph Gerkin, Charles Steinman, & David Molik) (former empl) (Entered: 06/04/1992)
770 ORDER, for Clerk to issue Writ of Habeas Corpus Ad Testificandum for Geraldo Herrera on 6/17/92, etc. ( signed by Judge William M. Skretny ) Notice and copy of order sent to Robert Hite, Joseph L. Gerkin, Douglas S. Cream, Charles D. Steinman, David Molik (former empl) (Entered: 06/04/1992)
WRIT of Habeas Corpus Ad Testificandum issued for Geraldo Herrera on 6/17/92 @ 9:00 a.m. (orig'l & 1 Cert. cpy to U.S. Marshal, 2 cert. cpy to atty. gen'l, 1 cert cpy to supt. Arthur Leonardo, 1 cpy to Robert Hite, Joseph Gerkin, Charles Steinman, & David Molik) (former empl) (Entered: 06/04/1992)
771 ORDER, for Clerk to issue Writ of Habeas Corpus Ad Testificandum for Gerald Engles on 6/17/92, etc. ( signed by Judge William M. Skretny ) Notice and copy of order sent to Robert Hite, Joseph L. Gerkin, Douglas S. Cream, Charles D. Steinman, David Molik (former empl) (Entered: 06/04/1992)
WRIT of Habeas Corpus Ad Testificandum issued for Gerald Engles on 6/17/92 @ 9:00 a.m. (orig'l & 1 Cert. cpy to U.S. Marshal, 2 cert. cpy to atty. gen'l, 1 cert. cpy to Supt. Daniel Senkowski, 1 cpy to Robert Hite, Joseph Gerkin, Charles Steinman, & David Molik) (former empl) (Entered: 06/04/1992)
772 ORDER, for Clerk to issue Writ of Habeas Corpus Ad Testificandum for Leon Wright on 6/17/92, etc. ( signed by Judge William M. Skretny ) Notice and copy of order sent to Robert Hite, Joseph L. Gerkin, Douglas S. Cream, Charles D. Steinman, David Molik (former empl) (Entered: 06/04/1992)
WRIT of Habeas Corpus Ad Testificandum issued for Leon Wright on 6/17/92 @ 9:00 a.m. (orig'l & 1 Cert. cpy to U.S. Marshal, 2 cert. cpy to atty. gen'l, 1 cert. cpy to supt. Walter Kelly, 1 cpy to Robert Hite, Joseph Gerkin, Charles Steinman & David Molik) (former empl) (Entered: 06/04/1992)
773 ORDER, for Clerk to issue Writ of Habeas Corpus Ad Testificandum for Wilson Tangerife on 6/17/92, etc. ( signed by Judge William M. Skretny ) Notice and copy of order sent to Robert Hite, Joseph L. Gerkin, Douglas S. Cream, Charles D. Steinman, David Molik (former empl) (Entered: 06/04/1992)
WRIT of Habeas Corpus Ad Testificandum issued for Wilson Tangerife on 6/17/92 @ 9:00 a.m. (orig'l & 1 cert cpy to U.S. Marshal, 2 cert cpy to atty. gen'l, 1 cert cpy to supt. Walter Kelly, 1 cpy to Robert Hite, Joseph Gerkin, Charles Steinman & David Molik) (former empl) (Entered: 06/04/1992)
774 ORDER, for Clerk to issue Writ of Habeas Corpus Ad Testificandum for William Walker on 6/17/92, etc. ( signed by Judge William M. Skretny ) Notice and copy of order sent to Robert Hite, Joseph L. Gerkin, Douglas S. Cream, Charles D. Steinman, David Molik (former empl) (Entered: 06/04/1992)

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06/04/1992 06/08/1992 06/10/1992 06/15/1992 06/18/1992
06/22/1992
07/16/1992 07/20/1992 08/06/1992 08/25/1992 09/02/1992

WRIT of Habeas Corpus Ad Testificandum issued for William Walker on 6/17/92 @ 9:00 a.m. (orig'l & 1 cert cpy to U.S. Marshal, 2 cert cpy to atty gen'l, 1 cert cpy to Supt. Walter Kelly, 1 cpy to Robert Hite, Joseph Gerkin, Charles Steinman & David Molik) (former empl) (Entered: 06/04/1992)
Minute entry: final pre-trl conf held; parties to try to settle medical claim by end of week; reset telephone Status Conference for 3:00 6/10/92 ; Marshals request prisoner witnesses be scheduled to testify for 2 days; dft submitted proposed findings of fact & conclusions of law. (former empl) (Entered: 06/11/1992)
Minute entry: status conf. held: Parties have reached agreement in principle & are awaiting approval from respective agencies; Ct. to track status day-to-day; non-jy trial scheduled for 6/15/92 adjourned generally; reset Status Conference for 9:00 6/15/92 (former empl) (Entered: 06/12/1992)
Minute entry: dft has rec'd verbal approval to settle medical claim segment of trial; necessary doc'ts to be finalized & signed. Settlement negotiations ongoing re: law library segment of trial. Reset Status Conference for 9:00 6/22/92 (former empl) (Entered: 06/17/1992)
775 ORDER, reset Status Conference for 9:00 6/22/92 ; parties to discuss consummating settlemt of med'l care segment of trial, and status of adequacy of law library segment. ( signed by Judge William M. Skretny ) Notice and copy of order sent to Robert Hite, Joseph L. Gerkin, Douglas S. Cream, Charles D. Steinman, David Molik (former empl) (Entered: 06/18/1992)
Minute entry: status conf. held; dft has signed proposed settlemt Stip'n and to forward same to all pltfs & any other members of class; pltfs to inform counsel if they have any objections to stip'n by 8/7/92; pltf to provide dft w/ settlemt proposal for law library claim by 7/10/92; Status Conference for 9:00 7/16/92 re: law library claim & mental health claim; add'l status conf. scheduled for 8/17/92 re: any objections to settlemt stip'n on medical claim segment. (former empl) (Entered: 06/25/1992)
Minute entry: no appces @ scheduled status conf.; reset Status Conference for 9:00 8/17/92 (former empl) (Entered: 07/21/1992)
776 LETTER dtd 10/2/89 from AAG Charles D. Steinman to Judge Telesca re: dfts will not respond to pltf's mtn for order permitting disclosure of witness testimony, but will join in response to be submitted by US Atty's Ofc, etc. (former empl) (Entered: 07/22/1992)
777 ORDER, reset Status Conference for 9:00 8/25/92 ( signed by Judge William M. Skretny ) Notice and copy of order sent to Robert Hite, Joseph L. Gerken, Douglas S. Cream, Charles D. Steinman, David Molik (former empl) (Entered: 08/07/1992)
Minute entry: status conf. scheduled for today adj'd gen'ly; pltf's atty to contact ctrm deputy on 8/27/92 to reschedule. (former empl) (Entered: 08/26/1992)
Minute entry: status conf held; common period expired; pltf to provide various doc'ts to ct; settlemt to be completed w/i 30 days re: mental health claim; trial scheduled for 11/92 adj'l gen'ly reset Status Conference for 9:00 10/15/92 (former empl) (Entered: 09/04/1992)

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09/09/1992 10/15/1992 10/16/1992 11/02/1992 11/02/1992 11/13/1992 11/13/1992 12/21/1992 12/23/1992 02/01/1993

778 ORDER, RE: Mental Health segment of trial: reset Scheduling Order Deadlines: Status conference for 9:00 10/15/92 , trial date set for 11/17/92 adj'd gen'ly. ( signed by Judge William M. Skretny ) Notice and copy of order sent to Robert Hite, Joseph L. Gerken, Douglas S. Cream, Charles D. Steinman, David Molik (former empl) (Entered: 09/11/1992)
Status conference held; crt to approve medical settlement w/accompanying order; status conferences scheduled as follows: library claim-ll/l3/92, mental health claim-l2/l5/92, remaining claims-l/l5/93, etc. (mj) (Entered: 10/19/1992)
779 ORDER directing that a status conf is set for ll/l3/92 re: library issue; status conf is set for l2/l5/92 re: mental health issue; and a status conf is set for l/l5/93 for all other outstanding issues ( signed by Judge William M. Skretny ) Notice and copy of order sent to Robert Hite, Joseph L. Gerken, Douglas S. Cream, Charles D. Steinman, David Molik (mj) (Entered: 10/19/1992)
780 ORDER, directing that Court approves the Settlement Agreement executed in June l992 and dismisses Phase I of this litigation re: living conditions, etc. in the Special Housing Unit, etc. ( signed by Judge William M. Skretny ) Notice and copy of order sent to Robert Hite, Joseph L. Gerken, Douglas S. Cream, Charles D. Steinman, David Molik (mj) (Entered: 11/04/1992)
781 SETTLEMENT AGREEMENT and JUDGMENT which settles phase l of lawsuit and action ( signed by Judge William M. Skretny ). Notice and copy of judgment sent to Robert Hite, Joseph L. Gerken, Douglas S. Cream, Charles D. Steinman, David Molik (mj) (Entered: 11/04/1992)
782 ORDER, set Status Conference for 9:00 12/15/92 ( signed by Judge William M. Skretny ) Notice and copy of order sent to Robert Hite, Joseph L. Gerken, Douglas S. Cream, Charles D. Steinman, David Molik (mj) (Entered: 11/17/1992)
Minute entry: Status conf held; attys to work on stipulation regarding library claim; final status report set for l2/l5/92, etc. (mj) (Entered: 11/19/1992)
Minute entry: Status conf held; law library case has settled; proposed stipulation to be submitted, etc.; status conference regarding mental health claim and remaining claims set for 2/l/93; previously scheduled conference set for l/l5/93 is adjourned. (mj) (Entered: 12/22/1992)
783 ORDER, Status conf set for 1/15/93 cancelled; reset Status Conference for 9:00 2/1/93 ; pltf's settlemt proposal to be sent to dfts by 12/31/92 re: mental health claim. ( signed by Judge William M. Skretny ) Notice and copy of order sent to Robert Hite, Joseph L. Gerken, Douglas S. Cream, Charles D. Steinman, David Molik (former empl) (Entered: 01/05/1993)
Status conference held - law library claim stip'n signed by dft; issue of interpreters to be dealt w/ separately & to include any service requiring oral communication; counsel to work on agreemt to settle food, exercise, religion & sanitation claims - status conf. set for 5/3/93 @ 9:00 a.m., settlemt to be completed by 8/2/93 @ 9:00 when another stat cnf. will be held; pltf submitted draft proposal to dfts re: mental health claim, stat cnf on that claim set for 9:00 3/3/93 (former empl) (Entered: 02/04/1993)

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02/05/1993
03/30/1993 04/01/1993
05/03/1993 05/07/1993 05/25/1993 05/25/1993 05/25/1993 05/28/1993

784 ORDER, reset Status Conference for 9:00 3/3/93 re: matter of mental health stip'n; set conf. ddl for 5/3/93 @ 9:00 re: remaining trial phases which are now topic of settlemt negotiations; set negotiations ddl & Status Report deadline to 9:00 8/2/93 re: above 4 remaining phases; further stat. conf. re: issue of final phases of litigation to follow 8/2/93 stat. conf. ( signed by Judge William M. Skretny ) Notice and copy of order sent to Robert Hite, Joseph L. Gerken, Douglas S. Cream, Charles D. Steinman, David Molik (former empl) (Entered: 02/08/1993)
Status conference held - class to be notified of law library settlement; counsel to meet w/ nec. parties re: mental health claim n/l/t 7/1/93, Ct to be notified by 8/1/93 if intervention nec.; final settlement conf set for 9:00 9/28/93 re: mental health claim & status of all remaining claims; counsel to advise ct. of status of Anderson case, etc. (former empl) (Entered: 04/01/1993)
785 ORDER, set Status Conference for 9:00 5/3/93 re: food exercise, religion & sanitation claims; w/i 90 days from this order, parties to meet to discuss settlement of mental health claim; set Status Report deadline for 7/1/93 for pltf's counsel to submit rept re: progress of settlement of mental health claim; Counsel to appear on 9/28/93 @ 9:00 re: final settlement rept on mental health claim & status conf. on plexiglass & mistreatmt claims, etc. ( signed by Judge William M. Skretny ) Notice and copy of order sent to Robert Hite, Joseph L. Gerken, Douglas S. Cream, Charles D. Steinman, David Molik (former empl) (Entered: 04/05/1993)
Status conference held - short addendum letter to be filed w/consent order & jgmt; parties still working re settlement of remaining claims (former empl) (Entered: 05/14/1993)
786 ORDER, set Status Conference for 9:00 7/1/93 re the food, exercise, sanitation & religion claims; ( signed by Judge William M. Skretny ) Notice and copy of order sent to Robert Hite, Joseph L. Gerken, Douglas S. Cream, Charles D. Steinman, David Molik (former empl) (Entered: 05/07/1993)
787 ORDER, Approving Voluntary Stipulation & Dismissing law library/access to courts claim w/o prejudice subject to refiling w/o costs in event of enforcement action brought in good faith to enforce terms of stipulation ( signed by Judge William M. Skretny ) Notice and copy of order sent to Robert Hite, Joseph L. Gerken, Douglas S. Cream, Charles D. Steinman, David Molik (former empl) (Entered: 05/27/1993)
788 LETTER to Judge Skretny from Joseph Gerken dated 5/14/93 (former empl) (Entered: 05/27/1993)
789 VOLUNTARY STIPULATION and ORDER, Dismissing access to court-law library claim pursuant to Rule 41(1)(1)(ii) signed by Judge William M. Skretny . Notice and copy of order sent to Robert Hite, Joseph L. Gerken, Douglas S. Cream, Charles D. Steinman, David Molik . (former empl) (Entered: 05/27/1993)
790 LETTER (Memorandum) to Members of pltf class from Jospeh L. Gerken dated 4/5/93 re Proposed Settlement of the Law Library Claim (attached to Decision & Order dismissing Law Library Claim #787) (former empl) (Entered: 06/01/1993)

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07/01/1993 07/08/1993
07/08/1993 08/02/1993 08/09/1993 09/08/1993 09/09/1993 09/17/1993
09/28/1993 10/08/1993

791 ORDER, reset Status Conference for 7/8/93 ( signed by Judge William M. Skretny ) Notice and copy of order sent to Robert Hite, Joseph L. Gerken, Douglas S. Cream, Charles D. Steinman, David Molik (former empl) (Entered: 07/06/1993)
792 ORDER, defts' response to pltfs' proposal re mental health claim by 8/9/93 , set Status Conference for 9:00 8/9/93 re mental health claim , set defts response to letter of pltfs' counsel re food, exercise, sanitation & religion claims by 9/8/93 & Status Report deadline to 9:00 9/8/93 re food, exercise, sanitation & religion claims ( signed by Judge William M. Skretny ) Notice and copy of order sent to Hite, Joseph L. Gerken, Douglas S. Cream, Charles D. Steinman, David Molik (former empl) (Entered: 07/12/1993)
Status conference held. Deft. to file and serve its response to plaintiff's proposal of 7/6/93 re: mental health, on or before 8/9/93. Status conference is still for 8/9/93 at 9:00. Status conference on the food, exercise, et al claim is scheduled for 9/8/93 at 9:00 (SMO) (Entered: 07/30/1993)
Minute entry: Both counsel failed to show for a status conference previously scheduled by appearance and order (former empl) (Entered: 08/09/1993)
Status conference reset to 9:00 9/8/93 (former empl) (Entered: 08/16/1993)
Status conference; pltf to prepare proposed stipulation re food/exercise/sanitation/religion segment of case. An additional status conference is scheduled for 10/13/93 at 9:00; order to be issued (former empl) (Entered: 09/15/1993)
793 ORDER, reset Status Conference for 9:00 10/13/93 re pltf's claims ( signed by USDJ William M. Skretny ) Notice and copy of order sent to Robert Hite, Joseph L. Gerken, Douglas S. Cream, Charles D. Steinman, David Molik (former empl) (Entered: 09/10/1993)
794 STIPULATION and ORDER, for Settlement , directing the State of New York o/b/o defendants, pay to Prisoners' Legal Services, with respect to costs, disbursements & attys' fees, sum of $130,000.00 in full satisfaction and resolution of all claims for costs, disbursements & atty's fees agnst defts, related to the medical care claim herein, that payment be made w/i 90 days from date of stipulation, etc.; signed by USDJ William M. Skretny . Notice and copy of order sent to Hite, Joseph L. Gerken, Douglas S. Cream, Charles D. Steinman, David Molik . (former empl) (Entered: 09/20/1993)
Status conference held; additional status conference reset to 10/13/93, 9:00 at which time counsel to provide Court with a more detailed account of the status of this case; order to be issued (former empl) (Entered: 10/04/1993)
795 ORDER, directing defts to respond to pltfs' proposal regarding pltfs' food, exercise, sanitation & religion claims and pltf to respond to defts' counter-proposal re pltfs' mental health claims by 10/13/93 , set Status Conference for 10/13/93, 9:00 ( signed by USDJ William M. Skretny ) Notice and copy of order sent to Hite, Joseph L. Gerken, Douglas S. Cream, Charles D. Steinman, David Molik (former empl) (Entered: 10/08/1993)

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10/13/1993 10/19/1993
11/16/1993
12/14/1993 02/02/1994 02/04/1994 03/03/1994 03/17/1994
05/20/1994 06/27/1994 09/21/1994 11/04/1994

Minute entry: Status conference held; revised mental health proposal submitted; additional status conference set for 9:00 on l2/l4/93; further, set Status Conference regarding food, exercise, etc. for 9:00 11/16/93 (mj) (Entered: 10/19/1993)
796 ORDER counsel to appear 11/16/93 for status conference regarding plaintiff's food, exercise, sanitation and religion claims; set Status Report deadline to 9:00 12/14/93 for conference regarding plaintiffs mental health claims.- ( signed by USDJ William M. Skretny ) Notice and copy of sent to Robert Hite, Joseph L. Gerken, Douglas S. Cream, Charles D. Steinman, David Molik (former empl) (Entered: 10/21/1993)
Minute entry:for Status Conference; pltf in receipt of defts' counteroffer re food, exercise, sanitation & religion; said counteroffer raised 17 points; pltf agrees with half of same; about 6 issues remain that parties will need to work at to resolve; attorneys and parties to meet to resolve outstanding issues;, Status Report deadline scheduled for 12/14/93 to remain as scheduled , set additional Status Conference for 9:00 2/2/94 re food, exercise, sanitation & religion (former empl) (Entered: 12/10/1993)
Status Conference held; Attorney Cream in Hospital, further, Status conference set at 9:00 1/10/94 (mj) (Entered: 12/22/1993)
Status conference; additional status conference scheduled for 3/9/94 at 9:00 (former empl) (Entered: 02/10/1994)
797 ORDER, set pltfs' Brief deadline (letter) to 2/18/94 , reset Status Conference for 9:00 3/9/94 ( signed by USDJ William M. Skretny ) Notice and copy of order sent to Robert Hite, Joseph L. Gerken, Douglas S. Cream, Charles D. Steinman, David Molik (former empl) (Entered: 02/08/1994)
Status conference reset to 2:00 3/17/94 (former empl) (Entered: 03/09/1994)
Minute entry: Status Conference. Plaintiff is in receipt of a counter proposal re: non-mental health issues. Parties to meet at Attica on 4/13/94 to resolve same. set Status Conference for 5/20/94 . Once these issues are resolved, counsel will focus on the issues of mental hygiene, plexiglass and alleged brutality. (SMO) (Entered: 03/28/1994)
Status conference held; issue of food is remaining; Status conference regarding same is set at 9:00 6/24/94 and a final conference is set for 7/21/94 (mj) (Entered: 05/24/1994)
Status conference held; further Status conference is set at 3:00 on 7/21/94 (mj) (Entered: 07/06/1994)
Status Conference held; an agreement has been reached on various items, etc.; further, Status conference set at 9:00 11/4/94- WMS (mj) (Entered: 09/30/1994)
Status Conference held; plaintiff to submit proposed stipulation by close of business today, etc.; Once comments are received, a consent judgment may be entered, etc.; Status conference set at 9:00 12/1/94 - WMS (mj) (Entered: 11/08/1994)

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12/01/1994 01/23/1995 02/01/1995 02/10/1995
02/15/1995 02/15/1995 03/31/1995 04/04/1995 05/01/1995
05/04/1995 06/01/1995
06/08/1995

Status conference held regarding various issues and comments are due by l/3/95; Status conference set at 9:00 1/23/95 regarding issue of mental health-WMS (mj) (Entered: 12/09/1994)
Minute entry: Status conference; counsel failed to appear- terminated deadlines -WMS (mj) (Entered: 01/27/1995)
798 ORDER, set Status Conference for 9:00 2/15/95 ( signed by USDJ William M. Skretny ) Notice and copy of order sent to Robert Hite, Joseph L. Gerken, Douglas S. Cream, Charles D. Steinman, David Molik (mj) (Entered: 02/02/1995)
799 RULE 41 VOLUNTARY STIPULATION and ORDER, to Dismiss claims related to food, exercise, sanitation and religious claims with conditions regarding same. signed by USDJ William M. Skretny . Notice and copy of order sent to Robert Hite, Joseph L. Gerken, Douglas S. Cream, Charles D. Steinman, David Molik . (mj) (Entered: 02/15/1995)
800 ORDER allowing Charles Steinman to Withdraw as an attorney of record from this case ( signed by USDJ William M. Skretny ) Notice and copy of order sent to Robert Hite, Joseph L. Gerken, Douglas S. Cream, David Molik (mj) (Entered: 02/16/1995)
Status conference held; plaintiff's experts to conduct interviews on 2/22 and 2/25, etc. and a report to be supplied to defendants by 3/24/95, etc.; further, Status conference set at 9:00 3/31/95-WMS (mj) (Entered: 02/17/1995)
Status conference held; plaintiffs awaiting receipt of records, etc. further, Status conference set at 9:00 5/1/95 to report on status of records, etc. (mj) (Entered: 04/04/1995)
801 ORDER set Status Conference for 9:00 5/1/95 and directing defendants to produce records before 5/l/95, etc. ( signed by USDJ William M. Skretny ) Notice and copy of order sent to Robert Hite, Joseph L. Gerken, Douglas S. Cream, David Molik (mj) (Entered: 04/04/1995)
Status conference held; documents received in Attorney General's office, etc.; attorney general to provide plaintiff with same; plaintiff to move for disclosure, etc.; plaintiff to sent copy of proposed stipulation regarding substitution of Coombes for Coughlin to Attorney Hite for review, etc.-WMS (mj) (Entered: 05/08/1995)
Minute entry: Court corrects minute entry of 5/l/95; set Status Conference for 9:00 6/6/95 ; no appearance-WMS (mj) (Entered: 05/10/1995)
802 ORDER, reset Status Conference for 4:00 6/8/95 ; further, Robert Hite to appear at conference and inform court by 6/6/95 of a telephone number he can be reached at. ( signed by USDJ William M. Skretny ) Notice and copy of order sent to Robert S. Hite, Joseph L. Gerken, Douglas S. Cream, David Molik (mj) (Entered: 06/01/1995)
Status conference held; plaintiff to sent notice regarding disclosure of records to 3 inmates; motion for disclosure of mental health records to be put under seal; Status conference set at 9:00 6/30/95; substitution of counsel to be filed; plaintiff's expert to submit preliminary report within 60 days-WMS (mj)

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06/15/1995
06/22/1995 06/30/1995 07/10/1995 07/26/1995 07/26/1995 09/26/1995 10/14/1995 10/17/1995 10/24/1995
11/09/1995 01/18/1996 02/02/1996
04/16/1996
05/15/1996

(Entered: 06/16/1995)
803 ORDER/CONSENT to Substitute Attorney and Added Robert Hite as attorney fro Enforcement Officers ( signed by USDJ William M. Skretny ) Notice and copy of order sent to Robert S. Hite, Joseph L. Gerken, Douglas S. Cream, David Molik (mj) (Entered: 06/20/1995)
Status conference adjourned to 2:00 on 6/30/95-WMS (mj) (Entered: 06/29/1995)
Minute entry: Status conference set for today is adjourned to 7/10/95; no appearances-WMS (mj) (Entered: 07/15/1995)
Status conference held; plaintiffs' expert still in need of mental health reports; plaintiffs' counsel to provide court with original motion regarding same; further Status conference set at 9:00 10/6/95-WMS (mj) (Entered: 07/17/1995)
804 SEALED DOCUMENT by plaintiffs (motion) (mj) (Entered: 07/27/1995)
805 SEALED DOCUMENT -order by Judge Skretny (notice and copies to all attorneys) (mj) (Entered: 07/27/1995)
Status conference adjourned to 9:00 on 11/9/95; no appearances-WMS (mj) (Entered: 10/02/1995)
806 MOTION by plaintiffs to Compel disclosure (mj) (Entered: 10/16/1995)
807 SEALED DOCUMENT-addendum (mj) (Entered: 10/18/1995)
808 ORDER, defendant's Response to Motion reset to 11/2/95 for [806-1] motion to Compel disclosure , and set Status Conference for 9:00 11/9/95 ( signed by USDJ William M. Skretny ) Notice and copy of order sent to Robert S. Hite, Joseph L. Gerken, Douglas S. Cream, David Molik (mj) (Entered: 10/24/1995)
Motion to compel returnable; motion submitted; court requires defendant to assemble records and supply to plaintiff within 2 weeks; Status conference set at 9:00 1/24/96 -WMS (mj) (Entered: 11/15/1995)
Status conference set for l/24/96 is adjourned to 9:00 on 2/2/96; no appearances-WMS (mj) (Entered: 01/30/1996)
Status conference held; plaintiff has received documentation plaintiff's agency in limbo regarding nonessential funding, etc.; final report to be submitted by 4/l/96 and Status conference set at 9:00 4/16/96; defendant's response due by 7/l/96 and further status conference set for 7/l7/96 at 9:00-WMS (mj) Modified on 03/26/1996 (Entered: 02/15/1996)
Minute entry: Status conference held; plaintiff's expert report to be submitted to defendant by 4/20/96 and defendant to respond by 7/l/96; the same procedure to apply regarding sealing of names; parties continue to work towards settlement of mental health claim; court informs attorneys if this aspect not settled by next court appearance, defendant is required to have someone with settlement authority present at that appearance; further Status Conference for 7/9/96 -WMS (mj) (Entered: 05/02/1996)
809 CERTIFICATE OF SERVICE (mj) (Entered: 05/20/1996)

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05/15/1996 05/29/1996 07/09/1996 07/15/1996
08/12/1996 08/13/1996 08/27/1996 09/25/1996
10/11/1996 10/25/1996
12/18/1996
01/29/1997
02/20/1997 04/08/1997

810 AMENDED NOTICE of attorney appearance for Harold J. Smith, Charles James, Keith Countermine by Jerry McGrier Sr. (mj) (Entered: 05/20/1996)
811 AFFIRMATION/DECLARATION BY STUART GRASSIAN regarding confinement, etc. (mj) (Entered: 05/29/1996)
Minute entry: status conference set for today is adjourned; counsel failed to appear; order to be issued-WMS (mj) (Entered: 07/30/1996)
812 ORDER directing that as parties did not appear on 7/9/96 for a status, Court sets Status Conference for 9:00 8/14/96 ( signed by USDJ William M. Skretny ) Notice and copy of order sent to Robert S. Hite, Joseph L. Gerken, Jerry McGrier Sr., Douglas S. Cream, David Molik (mj) (Entered: 07/18/1996)
813 ORDER reset Status Conference for 9:00 8/27/96 ( signed by USDJ William M. Skretny ) Notice and copy of order sent to Robert S. Hite, Joseph L. Gerken, Jerry McGrier Sr., David Molik (mj) (Entered: 08/13/1996)
814 CERTIFICATE OF SERVICE (mj) (Entered: 08/13/1996)
Status conference held; defendant expected to receive response to Dr. Grassians report first week of September, etc.; parties intend to depose experts; further status set for 9/25/96 at 9:00-WMS (mj) (Entered: 09/24/1996)
Minute entry: Status conference held; defendant indicates that they're willing to discuss settlement re: mental health issue; court requires parties to submit it's position on issue, etc. in order to articulate direction in which settlement discussions should go within 3 weeks; status set for l0/ll/96 at 9:00; court to discuss other outstanding issues at that time; court unsuccessfully attempted to contact Attorney Hite by phone, etc.-WMS (mj) (Entered: 10/18/1996)
Status conference adjourned to 9:00 10/25/96; no appearance by plaintiff-WMS (mj) (Entered: 10/18/1996)
Status conference held; depositions are set and settlement discussions held re: mental health issue; all counsel participating in discussions re: remaining issues by next status; Status conference set at 9:00 12/18/96; plaintiff to provide statement as to requested relief by that date.-WMS (mj) (Entered: 10/31/1996)
Status conference held; parties talking productively, etc; possible summary judgment motion regarding plexiglass; brutality claim is problematice with no effort to resolve same, etc.; further Status conference set at 9:00 1/29/97-WMS (mj) (Entered: 12/27/1996)
Status conference held; parties making progress re: mental health issue; defense working on conflict between Department of Corrections and Office of Mental Health; further, Status conference set at 9:00 2/20/97; counsel to notify court if a resolve is reached-WMS (mj) (Entered: 02/07/1997)
Status conference held; parties close to resolving mental health issue; further Status conference set at 9:00 on 4/8/97-WMS (mj) (Entered: 03/05/1997)
Status conference held; two issues need to be resolved re: mental health (although agreement has been reached in principal); Agreement needs to be approved by agencies; further Status conference set at 9:00 on 5/19/97-WMS

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05/16/1997 05/21/1997 06/23/1997
06/27/1997
07/30/1997 09/03/1997 09/03/1997 09/24/1997 09/25/1997

(mj) (Entered: 04/22/1997)
815 MOTION by Anthony Barton, Anderson Bernier, George Eng, John Griffin, Bruce Hawkins, Martin Spence, Ronald West, Joel Clayman, William Boddie, Milton Payne, R. Lloyad, Anthony Martin, Joey Tavolino, Abdul Beyah, Jamal Kitt, John Terry for adjournment of status conference with supporting papers (mj) (Entered: 05/19/1997)
816 ORDER granting [815-1] motion for adjournment of status conference, and set Status Conference for 9:00 on 6/23/97 ( signed by USDJ William M. Skretny ) Notice and copy of order sent to Robert S. Hite, Joseph L. Gerken, Jerry McGrier Sr., David Molik (mj) (Entered: 05/22/1997)
Status conference held; parties have agreement re: mental health in substance; authorization is needed, etc.; Status conference set at 9:00 on 7/28/97 and 9/3/97 for report re: status of authorization; additional status set for 9/24/97 at 9:00 at which time executed steelement document re: mental health will be provided to court. The same class notification procedures will be followed; at each conference the court requires oral report on all remaining issues, etc.-WMS (mj) (Entered: 07/14/1997)
817 ORDER set Status Conference for 9:00 on 7/28/97 regarding approval process of settlement documents concerning mental health and how to proceed on the multilingual claim, etc. and set Meeting/status for 9:00 on 9/3/97 regarding settlement documents and how to proceed on plexiglass aspect of claim , and set Settlement/status Conference for 9:00 on 9/24/97 regarding settlement documents and how to proceed on the multilingual, plexiglass and brutality aspects of claim, etc. ( signed by USDJ William M. Skretny ) Notice and copy of order sent to Robert S. Hite, Joseph L. Gerken, Jerry McGrier Sr., David Molik (mj) (Entered: 06/30/1997)
Status conference held; mental health stipulation working up the chain of command for approval; Status conference set at 9:00 on 9/3/97-WMS (mj) (Entered: 08/08/1997)
Status conference held; defendant has concerns regarding language in proposed settlement agreement; settlement agreement to be filed by 9/24/97; parties anticipate a summary judgment motion on plexiglass claim; defendants' motion to be filed by l2/l2/97; additional status set for 9/24/97-WMS (mj) (Entered: 10/03/1997)
Deadline updated pursuant to minutes of 9/3/97- set summary judgment Motion Filing deadline to 12/12/97 (mj) (Entered: 10/03/1997)
Status conference held; parties have not reached agreement as expected on the mental health issue; At issue is the concept of substantial risk; Court orders parties to continue to work towards settlement and return on 9/25/97 at l0:00 for final report back-WMS (mj) (Entered: 10/03/1997)
Status conference held; parties to continue to work towards settlement; further Status conference set at 9:00 on 10/10/97; if a settlement regarding mental health has not been reached by that time, Court requires that Thomas Goetz of the Department of Corrections attend the conference-WMS (mj) (Entered: 10/03/1997)

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10/10/1997
12/01/1997 12/02/1997
12/09/1997 12/11/1997
12/17/1997 12/17/1997 01/21/1998 02/11/1998 02/23/1998 02/25/1998

Status conference held; all substantive issues resolved re: mental health agreement; plaintiff to prepare/send letter to class participants re: settlement and participants will be given 30 days to review, etc.; Court will be provided with copy of letter; further, Status conference set for 9:00 on 12/1/97 to report on the status of the mental health settlement and all remaining issues-WMS (mj) (Entered: 10/15/1997)
Minute entry: Status conference-no appearance by counsel-WMS (mj) (Entered: 12/09/1997)
818 ORDER setting a Status Conference for 9:00 on 12/11/97 regarding the settlement of the mental health aspect of case; and multilingual, plexiglass and brutality aspects of this claim; plaintiff's counsel to provide court with copy of letter notifying the class of settlement. ( signed by USDJ William M. Skretny ) Notice and copy of order sent to Robert S. Hite, Joseph L. Gerken, Jerry McGrier Sr., David Molik (mj) (Entered: 12/03/1997)
819 MOTION with supporting papers by defendants to adjourn status conference (mj) (Entered: 12/10/1997)
Minute entry: Status conference held; notice has been sent to class and they have approximately another week and a half to comment; defendant's summary judgment motion re: plexiglass due shortly; brutality cause of action does not seek money damages; Though l0 years have gone by and conditions have improved, the plaintiff will not concede that the issue is moot; further, set Status Conference for 9:00 on 1/21/98 , and plaintiffs Response to Motion reset to 1/21/98 for [820-1] motion , and defendants' Reply to Response to Motion reset to 1/28/98 for [820-1] motion -WMS (mj) (Entered: 01/05/1998)
820 MOTION by defendants to Dismiss portion of claim relative to use of plexiglass (mj) (Entered: 12/18/1997)
821 MEMORANDUM by defendants in support of [820-1] motion to Dismiss portion of claim relative to use of plexiglass (mj) (Entered: 12/18/1997)
Status conference held; comment period has run with no substantive issues raised; defense counsel needs to obtain written confirmation from client; plaintiff to file response to summary judgment motion by 2/ll/98 and an additional status conference is set for 9:00 on 2/ll/98-WMS (mj) (Entered: 02/18/1998)
Status conference held; defendant has received all necessary documents; additional status conference set for 2/23/98 at 9:00-WMS (mj) (Entered: 03/30/1998)
Minute entry: No appearances at status conference; Courtroom Deputy contacted parties and status conference reset for 2/25/98 at 9:00 - WMS (mj) (Entered: 03/02/1998)
Status conference. The Court has reviewed the settlement document. Court to file the voluntary stipulation re: issue of mental health. Plaintiff to file and serve its response to defendant's motion for summary judgment on the issue of Plexiglass by 3/6/98; defendant to file its' reply by 3/11/98. A Status conference/Oral argument is scheduled for 9:00 on 4/29/98. (WMS) (DLC) (Entered: 03/30/1998)

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03/09/1998 03/09/1998 03/09/1998 04/29/1998 04/30/1998 05/06/1998
07/08/1998
07/22/1998

822 STIPULATION Rule 4l Voluntary dismissal subject to conditions - signed by attorneys (copy sent to all parties along with order filed 3/9/98) (case remains open pursuant to chambers) (mj) (Entered: 03/11/1998)
823 ORDER directing that the terms of the voluntary stipulation of dismissal subject to conditions are narrowly drawn, extend no further than necessary to correct the violation of Federal rights and are the least intrusive means necessary to correct the violation of Federal Rights. ( signed by USDJ William M. Skretny ) Notice and copy of order sent to Robert S. Hite, Joseph L. Gerken, Jerry McGrier Sr., David Molik (mj) (Entered: 03/11/1998)
824 LETTER of understanding regarding a matter of interpretation concerning the voluntary stipulation of dismissal subject to conditions - signed by Jerry McGrier and Joseph Gerken (mj) (Entered: 03/11/1998)
Minute entry: Status conference; No appearance by parties; Court to issue order rescheduling same-WMS (mj) (Entered: 05/07/1998)
825 ORDER set Status Conference for 9:00 on 5/6/98 ( signed by USDJ William M. Skretny ) Notice and copy of order sent to Robert S. Hite, Joseph L. Gerken, Thomas Goetz, Jerry McGrier Sr. (mj) (Entered: 04/30/1998)
Minute entry:, Court issues statement from the Bench, Court grants summary judgment motion and dismisses 8th amendment claim with a 60 day report back to the Court if corrective measures are not adequate and determines that there is no contest as to the Sandin claim, at the 60 day mark the dismissal will be with prejudice, the Court's ruling in granting defendants summary judgment motion presumes there will not be any difficulty with the plaintiff examining the ventilation system in SHU, Attorney Hite is granted permission to attend any inspection of the ventilation system by plaintiff, PLS funding is currently at issue, brutality and multi-lingual claims remain in this lawsuit, plaintiff intends to proceed with brutality claim, additional Status Conference is set for 9:00 a.m. on 7/8/98. WMS (JMD) (Entered: 06/04/1998)
Minute entry: Michael McCarthy of Prisoners Legal Services to be substituted as counsel for plaintiff, Multilingual and Bilingual claims to be addressed next, possibly both can be settled, parties to identify the issues that remain and the elements of those issues, prisoners legal services laid off most of its staff on 7/3/98 , is trying to obtain substitute counsel from Prisoners Rights Services, and searching for alternative forms of funding, Court will entertain motion for appointment of an expert to conduct the 4 required monitorings re: mental health, it will also consider appointment of an expert to follow up re: plexiglass issue, Court considers plexiglass ventilation issue to be dismissed but Attorney McGrier should inform Attorney McCarthy what is in place and if there is a problem with same it must be brought to the attention of the Court by 9/2/98 or it will be forever waived, settlement of attorneys fees re: settled mental health claim is still being considered by AG's office, additional Status Conference is set for 9:00 a.m. on 9/2/98, Court informs parties that it wants to resolve the remaining claims, it will not allow the case to drag on for a couple more years. WMS (JMD) (Entered: 07/24/1998)
826 ORDER setting Status Conference for 9:00 on 9/2/98 ; All further appearances for the intervenor-defendants shall be in person; further, defendants shall inquire

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08/07/1998 08/31/1998 09/03/1998 09/14/1998 09/22/1998
09/23/1998 10/29/1998

of the status and adequacy of the ventilation system and advise plaintiff of results prior to 9/2/98; further, the plexiglass claim is unconditionally dismissed subject to any application of plaintiffs to reopen, etc.; further, Court reveals the following issues which remain for resolution-settlement of plaintiffs' claim for attorney fees, etc.; Services to monolingual inmates, etc. and Brutality, etc. (see order for additional information) ( signed by USDJ William M. Skretny ) Notice and copy of order sent to Robert S. Hite, Joseph L. Gerken, Thomas Goetz, Jerry McGrier Sr. (mj) (Entered: 07/22/1998)
827 ORDER resetting Status Conference for 10:30 on 9/3/98 ( signed by USDJ William M. Skretny ) Notice and copy of order sent to Robert S. Hite, Michael W. McCarthy, Thomas Goetz, Jerry McGrier Sr. (mj) (Entered: 08/07/1998)
828 NOTICE of attorney appearance for Anthony Barton, Anderson Bernier, George Eng, John Griffin, Bruce Hawkins, Martin Spence, Ronald West, Joel Clayman, William Boddie, Milton Payne, R. Lloyad, Anthony Martin, Joey Tavolino, Abdul Beyah, Jamal Kitt, John Terry by Dori A. Lewis (mj) (Entered: 08/31/1998)
Status conference held; Parties cannot agree on attorney fees for mental health settlement; plaintiff to file motion but motion will not be accepted until l0/l6/98; Court instructs McGrier to write specifics on ventilation, Attorneys to meet with USDJ Law Clerk on 9/ll/98 by telephone to isolate issues; Case to be disciplined, etc. Court will entertain sanctions; Union defendant requests list of what plaintiff wants; further status conference set for 9/22/98 at 9:00-WMS (mj) (Entered: 10/06/1998)
829 NOTICE of attorney appearance for Anthony Barton, Anderson Bernier, George Eng, John Griffin, Bruce Hawkins, Martin Spence, Ronald West, Joel Clayman, William Boddie, Milton Payne, R. Lloyad, Anthony Martin, Joey Tavolino, Abdul Beyah, Jamal Kitt, John Terry by Tom Terrizzi (mj) (Entered: 09/15/1998)
Status conference held; Defendant reviewed portion of entries regarding attorney fees and will request clarification on some entries; Court directs defendant to provide entries in question; Information regarding Spanish/Multilingual claim forwarded to plaintiff; Plaintiff requires more specification on law library/mental health and defendant needs relevant information pursuant to order of 7/22/98; plaintiff will review same with expert; ventilation issues need to be addressed; McGrier to request more information from clients; refinements to be provided to plaintiffs by l0/l6/98; Parties are exchanging documents regarding brutality issue and copies of same are to be provided to Attorney Savat; McGrier to renew request regarding log books and clients to comply by Friday of this week; Status conference set at 9:00 on 10/29/98 - WMS (mj) (Entered: 10/06/1998)
830 ORDER allowing plaintiff to proceed without local counsel, etc. ( signed by USDJ William M. Skretny ) Notice and copy of order sent to Robert S. Hite, Tom Terrizzi, Dori A. Lewis, Michael W. McCarthy, Thomas Goetz, Jerry McGrier Sr. (mj) (Entered: 09/23/1998)
Status conference held; Parties have agreed on attorney fees re: mental health claim; Multilingual services discussed, etc.; Relevant portion of accreditation report to be distributed by ll/l6/98, etc.; Defendant to copy court on brutality materials; plaintiff's counsel to review materials, etc.; plaintiff to provide court

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11/09/1998 12/08/1998
12/17/1998
12/21/1998 12/21/1998 12/22/1998 12/22/1998 12/22/1998 12/28/1998 12/30/1998

with interim report by ll/20/98, etc.; additional status conference set for l2/l/98 at 9:00-WMS (mj) (Entered: 12/04/1998)
831 ORDER resetting Status Conference for 2:00 on 12/7/98 (order filed ll/9/98 and received for docketing ll/12/98) ( signed by USDJ William M. Skretny ) Notice and copy of order sent to Robert S. Hite, Tom Terrizzi, Dori A. Lewis, Michael W. McCarthy, Thomas Goetz, Jerry McGrier Sr. (mj) (Entered: 11/12/1998)
Status conference held-Monitoring reports regarding brutality issue to be provided to plaintiff for the next 9 months, etc.; A status is set for l/6/99 regarding monolingual; The mental health issue is resolved and attorney fee issue remains unresolved and an additional status is set for 12/17/98; Compliance with OHM records to be completed by then, etc.; Plaintiff finalizes details regarding tour of facility; Status conference set at 9:00 on 2/10/99 re: monolingual/library, etc.-WMS (mj) (Entered: 01/21/1999)
Status conference. 8 of 25 of the OHM records and 18 of 25 of the DOCS records have been turned over to the plaintiff. Stipulation re: HIV is executed by the parties and approved by the Court. Tour date of facility to be confirmed. Attorney McGrier surmises that the requested documents from the prior accreditation on the ventilation issue do not exist therefore he will seek documentation from the current accreditation. No progress has been made re: attorneys fees stipulation. Attorney McGrier advises Court that he now has authorization to execute the stipulation but the plaintiff does not want to be bound by that stipulation. Plaintiffs position needs to be finalized. Submissions re: attorney fees issue to be filed on or before 12/21/98 at 12 noon. Plaintiff given permission to fax submission to the Court but is advised that if it is not filed by Tuesday a.m. the submission will not be considered. Status conference set for 12/22/98 at 9:00. WMS (JMD) (Entered: 02/12/1999)
832 TRANSCRIPT of proceeding held before USDJ Skretny on 9/22/98 (telephone conference) (43 pages) (mj) (Entered: 12/21/1998)
833 TRANSCRIPT of telephone conference held before USDJ Skretny on 10/29/98 (17 pages) (mj) (Entered: 12/21/1998)
834 VARIOUS LETTERS filed pursuant to instructions from chambers (mj) (Entered: 12/22/1998)
835 STIPULATION and ORDER regarding the handling of records related to confidential HIV information, etc. signed by USDJ William M. Skretny . Notice and copy of order sent to Robert S. Hite, Tom Terrizzi, Dori A. Lewis, Michael W. McCarthy, Thomas Goetz, Jerry McGrier Sr.. (mj) (Entered: 12/23/1998)
Status conference held; Attorney Terrizzi signed stipulation regarding attorney fees and will provide same to Attorney McGrier; Position of Attorney McGrier's superiors to be obtained; Additional status set for 12/30/98 at 9:00-WMS (mj) (Entered: 01/21/1999)
836 TRANSCRIPT of telephone conference held on 12/8/98 with USDJ Skretny (43 pages) (mj) (Entered: 12/28/1998)
Status conference held; signed stipulation regarding attorney fees to be forwarded to court; Said stipulation does not speak to the prisoner rights project-that will be

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12/31/1998 01/25/1999 02/10/1999 02/16/1999 02/23/1999 04/13/1999 04/13/1999 04/13/1999 05/12/1999
06/15/1999 06/17/1999
07/01/1999
07/01/1999

dealt with as a separate issue; Said issue to be addressed formally after the first facility tout-WMS (mj) (Entered: 01/21/1999)
837 STIPULATION and ORDER for Attorney Fees in the amount of $136,225.00, etc. signed by USDJ William M. Skretny . Notice and copy of order sent to Robert S. Hite, Tom Terrizzi, Dori A. Lewis, Michael W. McCarthy, Thomas Goetz, Jerry McGrier Sr.. (mj) (Entered: 12/31/1998)
TOUR. Tour conducted of Attica Correctional Facility Special Housing Unit-Mental Health pursuant to the stipulation entered into by the parties. WMS (JMD) (Entered: 02/10/1999)
Status conference, additional status conference set for 2/23/99 at 9:00 a.m. , order to be issued, no appearance by plaintiff. WMS (JMD) (Entered: 03/09/1999)
838 ORDER setting Status Conference for 9:00 2/23/99 ( signed by USDJ William M. Skretny ) Notice and copy of order sent to Robert S. Hite, Sarah Kerr, Tom Terrizzi, Dori A. Lewis, Michael W. McCarthy, Thomas Goetz, Jerry McGrier Sr. (mj) (Entered: 02/16/1999)
Status conference, discussions held re: monolingual law library, plexiglass, inspection to be completed by 4/1/99, additional status conference set for 9:00 a.m. on 5/12/99. WMS (JMD) (Entered: 03/09/1999)
839 TRANSCRIPT of proceeding held before USDJ Skretny on 12/17/98 (16 pages) (mj) (Entered: 04/13/1999)
840 TRANSCRIPT of telephone conference with USDJ Skretny held 12/22/98 (27 pages) (mj) (Entered: 04/13/1999)
841 TRANSCRIPT of telephone conference held with USDJ Skretny on 2/23/99 (10 pages) (mj) (Entered: 04/13/1999)
Status conference held; Department of Correction documentation has been transmitted. OMH documentation is still outstanding and will be transmitted shortly; The second Attica tour will be scheduled for June; A few issues still need to be worked out, etc.; Status conference set at 9:00 7/15/99-WMS (mj) (Entered: 05/20/1999)
842 MOTION by plaintiffs to file expert report under seal (mj) (Entered: 06/15/1999)
843 STIPULATION and ORDER regarding records released pursuant to Rule 4l Voluntary stipulation of dismissal subject to conditions. signed by USDJ William M. Skretny . Notice and copy of order sent to Robert S. Hite, Sarah Kerr, Tom Terrizzi, Dori A. Lewis, Michael W. McCarthy, Thomas Goetz, Jerry McGrier Sr.. (mj) (Entered: 06/17/1999)
844 ORDER granting [842-1] motion to file expert report under seal; The clerk shall file the First Site Visit Report under seal and shall file the REadacted First Site Visit Report-for public file. ( signed by USDJ William M. Skretny ) Notice and copy of order sent to Robert S. Hite, Sarah Kerr, Tom Terrizzi, Dori A. Lewis, Michael W. McCarthy, Thomas Goetz, Jerry McGrier Sr. (mj) (Entered: 07/02/1999)
845 SEALED DOCUMENT (mj) (Entered: 07/02/1999)

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07/01/1999 08/27/1999 09/16/1999
11/15/1999
11/18/1999 11/18/1999 11/18/1999 11/22/1999
12/28/1999 12/28/1999 12/28/1999 12/28/1999 01/27/2000

846 Redacted Copy of First Site Visit (mj) (Entered: 07/02/1999)
847 amended NOTICE of attorney appearance for Harold J. Smith, Charles James, Keith Countermine by Kim S. Murphy (mj) (Entered: 08/30/1999)
Status conference held, second site visit was held in early July, before defendants had the opportunity to respond to the 1st , defendants response to the 1st report was received on 9/1/99 plaintiff is not satisfied with the response as to mental health issue, parties request 60 day time period to work through issues, attorney Terrizi is trying to obtain expert re: ventilation issue in Ithaca area, expert will need to go in and conduct testing, parties to resolve within 60 days, Court dismisses attorney fees issue as to PLS as resolved, attorney Kerr is advised that she must formally raise issue of attorney fees as to her agency prior to conclusion of the case, status conference set for 11/15/99 at 9:00 am. WMS (JMD) (Entered: 11/22/1999)
Status conference held, prisoners legal services is re-opening up a Buffalo office, defendants need to response to Dr. Grassians report and Sara Kerrs letter, plaintiff states defendant are not in compliance and SHU care is sub-standard, parties provide Court with agreed to time line for completion of outstanding matters, plaintiff has proposed stipulation re: law library, will need to be translated into Spanish since issue is multilingual issue of force is still open, at this time plaintiff is unclear as to what is needed/it is intertwined with mental health issue, additional status conference set for 11/22/99 at 9:00 AM. WMS (JMD) (Entered: 12/22/1999)
848 MOTION by plaintiffs to Seal documents (mj) (Entered: 11/18/1999)
849 SEALED DOCUMENT (mj) (Entered: 11/18/1999)
850 Redacted copy of Second Site Visit report. (mj) (Entered: 11/18/1999)
Status conference held; Counsel has made some progress; Defendant to provide response to Dr. Grassian's report and Sara Kerr's letter no later than 12/22/99; Defendant to provide it's clinical response no later than l/24/00;The continuity issue re: SHU is due no later than 3/6/00; Court to extend the monitoring period but the length of extension has not yet been determined; Status conference set at 9:00 1/27/00-WMS (mj) (Entered: 12/13/1999)
851 TRANSCRIPT of proceeding held on 5/12/99 before USDJ Skretny (9 pages) (mj) (Entered: 12/28/1999)
852 TRANSCRIPT of proceeding held on 9/16/99 before USDJ Skretny (11 pages) (mj) (Entered: 12/28/1999)
853 TRANSCRIPT of proceeding held before USDJ Skretny on 11/15/99 (19 pages) (mj) (Entered: 12/28/1999)
854 TRANSCRIPT of proceeding held on 11/22/99 before USDJ Skretny (16 pages) (mj) (Entered: 12/28/1999)
Status conference held, draft plan re: continuity of care issue is in the works, to be shared by 2/15; plaintiff still wishes to modify terms of stipulation re: mental health and extend monitoring period, plaintiff to refrain from filing motion at this time, additional status conference set for 5/7/00 at 9:00 am. WMS (JMD)

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01/27/2000 02/16/2000 02/17/2000 03/07/2000
03/07/2000 04/03/2000 04/10/2000 04/11/2000 04/13/2000 04/14/2000 04/24/2000
04/27/2000 05/01/2000 05/01/2000

(Entered: 02/09/2000)
Status conference set at 9:00 5/7/00 (JMD) (Entered: 02/09/2000)
Deadline updated; set Status Conference for 9:00 3/7/00 (JMD) (Entered: 02/16/2000)
855 TRANSCRIPT of proceedings held before Judge Skretny dated 1/27/00, pages 1-15 (JMD) (Entered: 02/18/2000)
Status conference held, large portion of the plan are tied to state budget that hasnt been approved yet, gaps in plan need to be ironed out, plaintiff requests additional 60 days to review plan and an agreement that the monitoring period will be extended, Court orders experts meet by 4/10/00, counsel to continue ongoing discussions, plaintiff to complete analysis of draft plan, identify problem areas in outline form by 3/28/00, counsel to conference week of 5/5/00 to try to resolve comments/objections to plan, Court requires submission of a joint statement re: resolved issues, and a separate document re: issues where there is no resolve on or before 5/12/00, additional status conference set for 6/1/00 at 10:00 am. WMS (JMD) (Entered: 03/15/2000)
Status conference set at 10:00 6/1/00 (JMD) (Entered: 03/15/2000)
856 TRANSCRIPT of proceedings held before Judge Skretny dated 3/7/00, pages 1-28 (JMD) (Entered: 04/04/2000)
857 MOTION by plaintiffs re: meeting between the parties experts with exhibit in support. (JMD) (Entered: 04/10/2000)
858 AFFIDAVIT by Kim S. Murphy counsel for defendants in opposition to [857-1] motion re: meeting between the parties experts (JMD) (Entered: 04/11/2000)
Status conference held. Court reserves decision on plaintiff's motion re: meeting of parties. Attorneys are required to meet the week of 5/1/00. Status conference set at 9:00 6/1/00. (WMS) (DMZ) Modified on 05/16/2000 (Entered: 05/15/2000)
859 DECLARATION by Sarah Kerr for plaintiffs in support of [857-1] motion re: meeting between the parties experts (JMD) (Entered: 04/14/2000)
860 ORDER granting in part, denying in part [857-1] motion re: meeting between the parties experts; parties shall meet on or before 5/5/00; plaintiff's shall submit a proposed agenda by 4/26/00; defendants shall submit their proposed modifications by 4/28/00. ( signed by USDJ William M. Skretny ) Notice and copy of order sent to Robert S. Hite, Sarah Kerr, Tom Terrizzi, Dori A. Lewis, Michael W. McCarthy, Kim S. Murphy, Thomas Goetz (mj) (Entered: 04/25/2000)
Mail returned by post office - Michael McCarthy's copy of order filed 4/24/00 (mj) (Entered: 04/27/2000)
861 JOINT MOTION by the parties to Extend Time/modify schedule of meetings/submissions (mj) (Entered: 05/02/2000)
862 NOTICE of motion by parties to modify schedule, etc. (mj) (Entered: 05/02/2000)

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05/01/2000 05/01/2000 05/04/2000
06/12/2000 06/12/2000 06/13/2000 06/22/2000 07/17/2000 07/21/2000 08/01/2000 08/07/2000 08/07/2000 08/07/2000

863 DECLARATION by Sarah Kerr regarding extension, etc. (mj) (Entered: 05/02/2000)
864 CERTIFICATE OF SERVICE (mj) (Entered: 05/02/2000)
865 ORDER granting [861-1] joint motion to Extend Time/modify schedule of meetings/submissions, Meeting of Drs. Grassian & Patterson 5/18/00; Meeting between counsel by 6/2/00; Joint & Separate submissions on plan by 6/12/00; Reset Status Conference for 9:00 on 6/22/00. ( Sgned by USDJ William M. Skretny.) Notice and copy of order sent to Robert S. Hite, Sarah Kerr, Tom Terrizzi, Dori A. Lewis, Michael W. McCarthy, Kim S. Murphy, Thomas Goetz (DLC) (Entered: 05/08/2000)
866 Joint submission regarding status of Rule 41 Voluntary Stipulation of Dismissal subject to conditions re: mental health. (DMZ) (Entered: 06/13/2000)
868 AFFIDAVIT by Harold J. Smith, Charles James, Keith Countermine Re: Mental Health Services Plan for Special Housing Unit Patients (SG) (Entered: 06/14/2000)
867 DECLARATION by plaintiffs re: status of Rule 41 voluntary stipulation of dismissal subject to conditions re: mental health (JMD) (Entered: 06/13/2000)
Minute entry: Status conference held; experts have met; parties have provided a proposed Rule 41 stipulation to court; parties agreed to implementation of STP by 12/20/00; setting addtional Status Conferences for 9:00 on 8/1/00 , and 9:00 on 11/21/00 (WMS) (DMZ) (Entered: 07/13/2000)
869 ORDER, that Rule 41 Stipulations of Dismissal Subject to Conditions is granted ( signed by USDJ William M. Skretny ) Notice and copy of order sent to Robert S. Hite, Robert Hite, Sarah Kerr, Michael W. McCarthy, Kim S. Murphy, Thomas Goetz (DMZ) (Entered: 07/17/2000)
Mail returned by Post Office - Michael McCarthy's copy of order filed 7/17/00 (DMZ) (Entered: 07/25/2000)
Status conference held; dismissal motion re: law library to be filed on or before 8/7/00; response to be filed by 8/17/00; reply to be filed by 8/22/00; additional status conference scheduled for 8/31/00 at 10:00 (WMS) (DMZ) (Entered: 08/28/2000)
870 MOTION by Sarah Kerr and John Boston, attorneys for plaintiffs for an order approving Rule 41 Voluntary Stipulation of Dismissal of the claim related to law library services for mono-lingual Spanish speaking prisoners, and approving the proposed Notice to the Class (DMZ) (Entered: 08/07/2000)
871 MEMORANDUM by attorneys for plaintiffs in support of [870-1] motion for an order approving Rule 41 Voluntary Stipulation of Dismissal of the claim related to law library services for mono-lingual Spanish speaking prisoners, and approving the proposed Notice to the Class (DMZ) (Entered: 08/07/2000)
872 DECLARATION by Sarah Kerr, attorney for plaintiffs Re: [870-1] motion for an order approving Rule 41 Voluntary Stipulation of Dismissal of the claim related to law library services for mono-lingual Spanish speaking prisoners, and approving the proposed Notice to the Class (DMZ) (Entered: 08/07/2000)

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08/07/2000 08/17/2000
08/23/2000
08/31/2000 09/05/2000
09/05/2000
09/07/2000 11/21/2000 11/27/2000 12/22/2000 12/28/2000 01/05/2001 01/17/2001

Exhibits to August 4, 2000 Declaration of Sarah Kerr received. (DMZ) (Entered: 08/07/2000)
873 AFFIDAVIT by Kim Murhph, attorney for defendants, in opposition to [870-1] motion for an order approving Rule 41 Voluntary Stipulation of Dismissal of the claim related to law library services for mono-lingual Spanish speaking prisoners, and approving the proposed Notice to the Class by Anthony Barton (DMZ) (Entered: 08/18/2000)
874 REPLY DECLARATION by Sarah Kerr, attorney for plaintiffs, in support of [870-1] motion for an order approving Rule 41 Voluntary Stipulation of Dismissal of the claim related to law library services for mono-lingual Spanish speaking prisoners, and approving the proposed Notice to the Class by Anthony Barton (DMZ) (Entered: 08/23/2000)
Status conference held; parties have reached an agreement as to voluntary dismissal re: law library mono-lingual claims but not as to notice to the class; court reserves decision; experts to conduct ventilation inspection 9/14/00; status conference set at 9:00 11/22/00 (WMS) (DMZ) (Entered: 09/21/2000)
875 NOTICE of attorney appearance for Anthony Barton, Anderson Bernier, George Eng, John Griffin, Bruce Hawkins, Martin Spence, Ronald West, Joel Clayman, William Boddie, Milton Payne, R. Lloyad, Anthony Martin, Joey Tavolino, Abdul Beyah, Jamal Kitt, John Terry by Maria E. Pagano (DMZ) (Entered: 09/06/2000)
876 NOTICE of attorney appearance for Anthony Barton, Anderson Bernier, George Eng, John Griffin, Bruce Hawkins, Martin Spence, Ronald West, Joel Clayman, William Boddie, Milton Payne, R. Lloyad, Anthony Martin, Joey Tavolino, Abdul Beyah, Jamal Kitt, John Terry by Karen J. Draves (DMZ) (Entered: 09/06/2000)
877 TRANSCRIPT of proceedings held on 8/1/00 before USDJ William Skretny (15 pages) (DMZ) (Entered: 09/08/2000)
Minute entry: status conference scheduled for 11/21/00 is adjourned generally; no appearances (WMS) (DMZ) (Entered: 12/13/2000)
878 NOTICE of attorney appearance for Harold J. Smith, Charles James, Keith Countermine by Stephen F. Gawlik (DMZ) (Entered: 11/28/2000)
879 ORDER, set Status Conference for 10:00 1/17/01 ( signed by USDJ William M. Skretny ) Notice and copy of order sent to Robert S. Hite, Karen J. Draves, Maria E. Pagano, Sarah Kerr, Tom Terrizzi, Dori A. Lewis, Michael W. McCarthy, Stephen F. Gawlik, Thomas Goetz (JMD) (Entered: 12/22/2000)
Mail returned by Post Office addressed to Michael W. McCarthy at Prisoners' Legal Services, 210 Franklin St. (copy of Order item #879); mail redirected to new address at 107 Delaware Ave., Buffalo, 14202 (DMZ) (Entered: 12/28/2000)
Pursuant to conversation with Attorney Murphy and document #878, Attorney Murphy remains as counsel for defendants (DMZ) (Entered: 01/05/2001)
880 Status conference held; mental health issue seems to be resolved; plaintiffs feel original ventilation testing is no longer valid; court discussed possible

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02/16/2001 02/20/2001 03/27/2001
03/27/2001 04/16/2001 06/13/2001
06/22/2001
10/30/2001 10/30/2001

administrative dismissal; additional status conference set for 9:00 2/20/01 (WMS) (DMZ) (Entered: 02/05/2001)
881 NOTICE of attorney appearance for Anthony Barton, Anderson Bernier, George Eng, John Griffin, Bruce Hawkins, Martin Spence, Ronald West, Joel Clayman, William Boddie, Milton Payne, R. Lloyad, Anthony Martin, Joey Tavolino, Abdul Beyah, Jamal Kitt, John Terry by Joanne G. Macri (DMZ) (Entered: 02/20/2001)
882 Status conference held; mental health claim to be placed on the in-active calendar; monitoring to last through 2003; court to rule re: format of notice to class in regards to dismissal of the lawsuit; ventilation claim to also be placed on the in-active calendar; requested adjustments have been made; the use of force claim again to be put on the inactive calendar (WMS) (DMZ) (Entered: 03/14/2001)
883 ORDER, that the Clerk of Court administratively terminate this action, without prejudice to the right of the parties to reopen the proceedings for good cause shown, for the entry of any stipulation or order, or for any other purposes related to enforcement of the settlement or approval by the class ( signed by USDJ William M. Skretny ) Notice and copy of order sent to Robert S. Hite, Joanne G. Macri, Karen J. Draves, Maria E. Pagano, Sarah Kerr, Tom Terrizzi, Dori A. Lewis, Michael W. McCarthy, Stephen F. Gawlik, Kim S. Murphy, Thomas Goetz (DMZ) (Entered: 03/28/2001)
Case closed (DMZ) (Entered: 03/28/2001)
884 CERTIFICATE OF SERVICE re: Rule 41 Voluntary Stipulation of Dismissal, Notice to Class of Proposed Rule 41 Voluntary Stipulation of Dismissal, and Order for Notice to Class of Proposed Rule 41 Voluntary Stipulation of Dismissal upon Kim S. Murphy (DMZ) (Entered: 04/17/2001)
885 ORDER, For Notice to Class of Proposed Rule 41 Voluntary Stipulation of Dismissal ; plaintiffs counsel to prepare sufficient copies of attached notice and deliver it by mail to each inmate housed in Attica SHU. ( signed by USDJ William M. Skretny ) Notice and copy of order sent to Robert S. Hite, Joanne G. Macri, Karen J. Draves, Maria E. Pagano, Sarah Kerr, Tom Terrizzi, Dori A. Lewis, Michael W. McCarthy, Stephen F. Gawlik, Kim S. Murphy, Thomas Goetz (DMZ) (Entered: 06/14/2001)
886 ORDER, For Notice to Class of Proposed Rule 41 Voluntary Stipulation of Dismissal ; plaintiff's counsel to prepare sufficient copies of attached notice and deliver it by mail to each inmate housed in the Attica SHU. ( signed by USDJ William M. Skretny ) Notice and copy of order sent to Robert S. Hite, Joanne G. Macri, Karen J. Draves, Maria E. Pagano, Sarah Kerr, Tom Terrizzi, Dori A. Lewis, Michael W. McCarthy, Stephen F. Gawlik, Kim S. Murphy, Thomas Goetz (DMZ) (Entered: 06/22/2001)
887 Report of Plaintiffs' Counsel Regarding Comments From The Plaintiff Class on the Proposed Stipulation and Order Discontinuing Action (DMZ) (Entered: 10/30/2001)
888 RULE 41 VOLUNTARY STIPULATION OF DISMISSAL and ORDER, defendants will amend local Attica Correctional Facility Operations Manual

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11/27/2001 01/22/2002 01/22/2002 01/22/2002 04/29/2002
11/06/2002

(FOM) and based upon defendants adopting the policies and procedures and after notice to class and an opportunity to object, the claim of inadequate ventilation in cells in SHU at Attica Correctional Facility which have plexiglass shields is voluntarily dismissed with prejudice; (please see order for all details) signed by USDJ William M. Skretny . Notice and copy of order sent to Robert S. Hite, Joanne G. Macri, Karen J. Draves, Maria E. Pagano, Sarah Kerr, Tom Terrizzi, Dori A. Lewis, Michael W. McCarthy, Stephen F. Gawlik, Kim S. Murphy, Thomas Goetz . (DMZ) (Entered: 11/01/2001)
889 STIPULATION and ORDER, for Settlement and Attorney Fees and costs. signed by USDJ William M. Skretny . Notice and copy of order sent to Robert S. Hite, Joanne G. Macri, Karen J. Draves, Maria E. Pagano, Sarah Kerr, Tom Terrizzi, Dori A. Lewis, Michael W. McCarthy, Stephen F. Gawlik, Thomas Goetz . (JMD) (Entered: 11/28/2001)
890 MOTION by plaintiffs to approve Rule 41 Voluntary Stipulation of Dismissal of claim re: law library services for mono-lingual Spanish speaking prisoners (JMD) (Entered: 01/23/2002)
891 MEMORANDUM of LAW by plaintiffs in support of [890-1] motion to approve Rule 41 Voluntary Stipulation of Dismissal of claim re: law library services for mono-lingual Spanish speaking prisoners (JMD) (Entered: 01/23/2002)
892 DECLARATION by Sarah Kerr counsel for plaintiffs in support of [890-1] motion to approve Rule 41 Voluntary Stipulation of Dismissal of claim re: law library services for mono-lingual Spanish speaking prisoners (JMD) (Entered: 01/23/2002)
893 RULE 41 VOLUNTARY STIPULATION and ORDER OF DISMISSAL re: Monolingual SHU Law Library Services the claim f inadequate access to the law library and to legal research materials for monolingual Spanish speaking inmates housed in Attica SHU is dismissed without prejudice to renewal in another action based on events after this date. No attorney fees or costs will be awarded to either party signed by USDJ William M. Skretny . Notice and copy of order sent to Robert S. Hite, Joanne G. Macri, Karen J. Draves, Maria E. Pagano, Sarah Kerr, Tom Terrizzi, Dori A. Lewis, Michael W. McCarthy, Stephen F. Gawlik, Kim S. Murphy, Thomas Goetz . (DMZ) (Entered: 04/30/2002)
894 NOTICE of Change of Address by Attorney Sarah Kerr: Prisoners' Rights Project Legal Aid Society, One Battery Park Plaza, New York, NY 10004 (DMZ) (Entered: 11/06/2002)

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 Stuart Grassian, M.D. 401 Beacon Street
Chestnut Hill, MA. 02467-3976 Phone: 617-244-3315 Fax: 617-244-2792

ENG site visit 1

I. Overview: Summary of Substantive Findings

This report describes my findings from the first, January 1999, site visit to the

Attica SHU and the accompanying document review mandated by the Stipulation in Eng

v. Goord, Civ 80-385S. The findings in this report are based upon a review of

documents provided by the Office of Mental Health (OMH) and the Department of

Correctional Services (DOCS), including OMH records of 25 Attica SHU inmates, as

well as upon our January 25, 1999 site visit and conference, and my interviews with

thirteen inmates on January 26 and 27, 1999. Appendix A includes a description of the

process of inmate selection as well as a list of the documents referenced in this report.

As described in the body of this report, although this site visit revealed in some

areas clear evidence of efforts to improve clinical services and to bring them into

compliance with the Eng stipulation, overall, my conclusions are that while these

changes have resulted in some procedural changes, there has not been substantively

meaningful improvement in those services, and that the Attica SHU has not moved in

any clinically meaningful way towards compliance. The most important deficiencies

remain:

1.

The psychiatric evaluation and periodic monitoring of mentally ill

Attica SHU inmates are grossly inadequate; seriously mentally ill inmates

continue to be housed in SHU, and often psychiatrically deteriorate as a

result of the stringent conditions of confinement prevailing there.

2.

Moreover, despite some examples of compassionate and

respectful treatment of SHU inmates, there is a continuing predilection to

view inmate behavior as "manipulative" and hence of no cause for serious

concern. This characterization, often made without any meaningful effort

at evaluation and differential diagnosis, often results in staff dismissing

and ignoring symptoms of severe mental illness. Moreover, this

characterization fails entirely to recognize that a "manipulation" may well

be a desperate, panic stricken cry for help from someone who can no

longer bear his emotional state.

3.

Perhaps most centrally, the psychiatric treatment available to Attica

SHU inmates remains grossly inadequate.

In the SHU itself, there is no opportunity whatsoever for private, individual

psychotherapy, let alone any other form of expressive therapy, or group,

occupational, or recreational therapy. The only "therapy" provided is brief,

cell-side chats with the unit counselor, conducted as part of his "rounds"

on the SHU. Medications are offered, but there is no meaningful

opportunity for inmates to develop a trusting relationship with the unit

psychiatrist, and little or no meaningful effort to engage them in such a

relationship; thus, inevitably, medication non-compliance is rampant.

When an inmate becomes clearly incapable of tolerating SHU, the only

alternative offered at Attica is confinement in isolation to an observation

cell in the OMH Satellite Unit. Such confinement, however, does not

provide any amelioration of the inmate's conditions; indeed, in many ways

it involves more deprivation than exists in the Attica SHU cells - including

deprivation of clothing, bedding, or any personal effects or reading

material.

2

Inmates who are deemed to be incapable of remaining at Attica are sometimes subject to psychiatric commitment to Central New York Psychiatric Center (CNYPC). Yet the "revolving door" pattern of psychiatric deterioration in SHU, leading to transfer to CNYPC, only to once again result in another round of SHU confinement and decompensation, remains apparently as prevalent today as it was at the time of the initial preliminary injunction in Eng. No meaningful review is made at the time of CNYPC discharge to prevent such an occurrence. More pivotal, perhaps, in explaining this failure is the fact that no longterm treatment and housing options have been developed for the recurrently ill, recurrently behaviorally disruptive, Attica SHU inmate.
These deficiencies were present in many of the charts and documents that I reviewed, and in information gleaned from our tour and inmate interviews. The next section of this report describes my findings with respect to eight (8) of these inmates.
In order to prevent this report from becoming overly lengthy, I have not attempted to describe all of the inmates whom I interviewed or whose charts I reviewed. Instead, with one exception, I will simply describe my evaluation of the first seven (7) of inmates whom I interviewed during this visit. This group is not, therefore, preselected to demonstrate any particular finding. Moreover, since this group does not include any inmate whose record I reviewed but who was not housed in the Attica SHU at the time of my visit, it does not include any inmate who was transferred to CNYPC and hospitalized at the time of the tour; this excludes some of the most dramatic cases of mental illness among the inmates whose records I reviewed.1 The review of Inmate B -
1According to information provided at Attica, five of the inmates, whose records I reviewed for this report, were hospitalized at CNYPC at the time of the tour.
3

the first inmate we interviewed - is especially lengthy, and is organized in part in order to point attention to particular deficiencies. The selection of this inmate for such lengthy review was, again, essentially random.
The one exception to the above-described process of selection is the case of Inmate A, an inmate who committed suicide while housed in the Attica SHU during the period of time under review in this site visit. In my opinion, Inmate A’s course is, unfortunately, particularly paradigmatic of the continued deficiencies in the treatment of mentally ill inmates in the Attica SHU.
II. The Suicide of Inmate A
Inmate A committed suicide on May 4, 1998, while housed in the Attica SHU. His treatment, and the postmortem review of his death by OMH staff, unfortunately demonstrate some of the same very basic deficiencies which initially gave rise to the Eng lawsuit some thirteen years previously - the suicide of inmate Inmate Z.
My review of the 1985 suicide of Inmate Z, as well as my review of many more inmate records, discussed in my April 1996 declaration in the Eng lawsuit, revealed an attitude of gross indifference on the part of staff towards very serious mental health problems at the Attica SHU:
1. Inmate psychiatric evaluations were grossly inadequate, with no real attempt being made to review earlier evaluations for incorporation into a coherent diagnostic formulation and treatment plan.
4

2. There was a "revolving door" of SHU inmates decompensating, being sent to a psychiatric unit (either PSU or CNYPC) until they recompensate, only once again to be returned to SHU, where they would, predictably, once again decompensate.
3. There was too great a pull towards seeing inmate behavior as manipulative, and to uncritically - reflexively - view inmates as "malingering,” without any meaningful attempt at psychiatric evaluation -- even utterly disregarding the existence of prior records clearly documenting serious psychopathology, and even utterly disregarding the fact that at the very same time that the inmate was being diagnosed as "malingering,” he was simultaneously on high doses of potentially toxic antipsychotic medication.
Inmate Z's record revealed that he had a history of severe mental illness depression with suicidal and psychotic features, and a history of three actual suicide attempts while housed at Attica SHU, prior to his successful suicide in June 1985. He had been subjected to a "revolving door" of decompensation, leading to restabilization at CNYPC, where he would become calm, non-psychotic and treatment compliant. Then, following discharge from CNYPC, he would be almost immediately returned to his SHU cell at Attica, where, predictably, he would become increasingly agitated and fearful, and then, inevitably, stop being compliant with his medication and once again decompensate. It was shortly after a transfer back to Attica SHU from CNYPC that he successfully suicided by hanging. Prior to his death, he had once again decompensated; he became fearful and agitated, refused to eat, shave or shower, and threatened to kill himself if he were not given relief. His increasing paranoia, agitation, and suicidality were all ignored; indeed, all of these manifestations of his desperation - even, grotesquely, his ultimate successful suicide - were all characterized by the mental health staff at Attica as "manipulative.”
5

Inmate Z's death, his course while at Attica SHU, and the staff's indifference to his suffering, are eerily parallel to the history revealed in Inmate A's record. His record indicates that his treatment at Attica SHU suffered from all of the gross deficiencies which initially gave rise to the Eng lawsuit, and that his death was a product of this gross indifference to his mental health needs.
1. Inmate A's Psychiatric Illness and Course at Attica SHU. Note: Usage and Citation.
The history which follows is largely taken from Inmate A's OMH medical record; when the record is not directly quoted, it is being paraphrased. At those times when I am extrapolating from, or reaching my own conclusions based upon, those records, this fact will be explicitly stated.
Inmate A's OMH record is quite spotty and often grossly inadequate, it does provide enough information to demonstrate the following:
He had a history of severe emotional problems since childhood, and had lived in various State Institutions since he was six years old. His uncle had also suffered from mental illness, and Inmate A had been physically abused as a young child - prior to his institutionalization. In 1981, when he was still only twelve years old, he was apparently suffering from serious depression and suicidality; as a result, he was psychiatrically hospitalized for four months at King's County Hospital.
Inmate A had continuing, severe mood problems, and made several documented suicide attempts while in custody - including by hanging and cutting himself - before July 1997, when he was transferred to the Attica SHU. The OMH record clearly notes some periods of time since 1991, when he was initially incarcerated, during which Inmate A appeared to be functioning without overt evidence of major psychiatric disturbance. It also, however, quite clearly demonstrates that during his incarceration,
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Inmate A suffered recurrently with periods of florid psychotic illness, marked by intense agitation, manic activity, affect and behavior, from pressured speech, marked fearfulness, paranoia, and overt delusions, along with visual and auditory hallucinations, and disorganization of thought and confusion - these latter at times reaching the level of utter incoherence. These episodes were thought variously by OMH staff to represent either a severe - Psychotic - Bipolar Mood Disorder (Manic Depressive Illness) or else some other, unspecified, psychotic disorder.
Such observations of psychotic illness, and of the prescription of antipsychotic medication, occur periodically in Inmate A's OMH record, and were a virtual constant during the entire period of Inmate A's incarceration in Attica SHU - a period of incarceration which began in July 1997, and except for an interruption by his psychiatric hospitalization at Central New York Psychiatric Center (CNYPC) from February through March 1998, continued up until his suicide on May 4, 1998.
A detailed review of Inmate A's OMH record prior to his return to Attica on March 19, 1998 is contained in Appendix B to this report.
While I have not reviewed Inmate A’s complete CNYPC inpatient record, the discharge summary from this admission is included in Inmate A’s Attica OMH record. This summary reveals that on admission Inmate A presented in a floridly manic state. He was agitated, impulsive, hyperactive, emotionally volatile and explosive. His speech was pressured, his thinking illogical and psychotically disorganized, and he was paranoid, hallucinating, and delusional. As before, the differential diagnosis was between an Unspecified Psychotic Disorder and a Psychotic Manic Bipolar Disorder.
Inmate A’s remained severely ill and agitated during much of that hospitalization, and required both physical and chemical restraints2

2

"Chemical restraints" refers to the involuntary - usually intramuscular -

administration of potent antipsychotic and/or sedative medications in order to aid in the

7

restraint of a disturbed patient's agitated and dangerous behavior; this procedure is only justifiable in an emergency situation.
8

to contain his agitated, violent psychotic behavior. He was terrified that correctional staff were attempting to kill him, and was agitated and violent towards staff at CNYPC.
Gradually, however, his clinical state did improve during this hospitalization, and by the time of discharge, it was markedly improved. At discharge he was described as no longer manifesting any symptoms of active psychosis, and he was calm enough and trusting enough to have agreed to cooperate in taking prescribed psychotropic medications. He was discharged on March 19, 1998 on both an antipsychotic Risperdal - and the mood-stabilizing, anti-manic drug, Depakene.
At discharge from CNYPC, Inmate A was transferred back to Attica. The Eng Stipulation called for Inmate A to have an OMH assessment and for the OMH staff to clinically determine, because he had previously deteriorated while in SHU, whether he could be placed in the SHU. Stipulation IB. His treatment plan from CNYPC was to continue unless modified during a treatment plan review. Stipulation IE2, 3. Yet no such evaluation was made; on transfer, he was initially admitted to a Mental Observation cell in the Psychiatric Satellite Unit, and the very same day - March 19 - he was transferred back to SHU.
Contrary to the requirements of the Stipulation, there is no record of any consideration of any CNYPC discharge treatment recommendations - except continuation of the medications he was being prescribed at the time of discharge. The CNYPC discharge recommendations included: "Therapy/Counseling: The patient should receive supportive counseling in the correctional facility to help him learn and better cope in that environment. Educational/Vocational: Both types of programming are recommended." The Attica OMH record, however, reveals no consideration of the whole issue of treatment planning and housing recommendations upon return to Attica from CNYPC. Indeed, the OMH note of March 19 justifying Inmate A’s transfer from Mental Observation back to SHU is sparse to the point of meaninglessness: "Just
9

returned from CNYPC. He doesn't respond verbally when talked to but did use some very clear hand gestures. He is to be discharged from MHU and sent to SHU."
Within days of his reincarceration in Attica SHU - on March 23, 1998 - he was once again agitated, non-compliant with his psychiatric medications, and reporting auditory and visual hallucinations. The OMH response was to move him to a Mental Observation cell and to involuntarily medicate him with an intramuscular injection of a potent antipsychotic - Haldol - which has a high incidence of adverse side effects. He was returned to SHU that same day.
Four days later, March 27, Inmate A remained non-compliant with medication. He evidenced paranoia; the OMH note from that date states that Inmate A had kept the mashed potatoes from a meal in a paper bag, and had then attempted that day to hand them to the mental health counselor who was doing rounds on the SHU. Inmate A apparently pleaded with the counselor to take the bag and check the potatoes apparently convinced that the counselor could thus discover that the potatoes were, indeed, poisoned. Then he handed the counselor a note threatening to kill himself. The counselor's progress note of that date demonstrates many of the very same ethical and clinical deficiencies which originally gave rise to the Eng litigation. There was an excessive concern with the possibility of "malingering" and "manipulation,” and a grossly inadequate concern for the possibility that Inmate A was actually psychiatrically decompensating and at serious risk:
1. The OMH note states that although Inmate A denied that he wanted to return to CNYPC, he was making this suicide threat only to manipulate his way out of SHU and to return to CNYPC. In support of this proposition, the counselor noted that Inmate A had in fact just returned from a hospitalization at CNYPC, and that his current behavior was simply a continuation of the concerns which led to that hospitalization: "Inmate was sent to CNYPC to evaluate whether he was really psychotic or if he is just
10

manipulating to get transferred. After return, the patient continues to threaten to hurt himself if not sent back to CNYPC."
Yet this March 27 OMH progress note says nothing at all about what was actually found at CNYPC. Instead, the specious "logic" in the note is the proposition that the very fact that the issue of malingering had even been raised at the time of Inmate A’s commitment to CNYPC was proof enough that he was only a manipulator.
The CNYPC record had revealed nothing of the kind. It had revealed that Inmate A was extremely psychotic, very agitated, very impulsive, and very difficult to restore to any semblance of normal functioning - even in the hospital setting. Moreover, the conclusion that he suffered from a Psychotic Bipolar Mood Disorder clearly was part of the discharge evaluation; not only was it explicit in the discharge diagnosis, but also, Inmate A was discharged from CNYPC on both antipsychotic and anti-manic drugs.
In short, the March 27 OMH note reveals a continuing, and utterly indefensible, predilection on the part of Attica OMH staff to consider even the merest whiff of the possibility of "manipulation" as proof that they are dealing with only - exclusively manipulation, and that this manipulation - actually thus synonymous with "malingering" is not borne out of agony and desperation.
There is a very distasteful and self-serving aspect to this predilection. For if the behavior was "just manipulation,” then there was nothing the OMH staff had to do about it. There was no responsibility - no accountability - for it.
2. According to the Eng Stipulation, Inmate A could not be returned to or maintained in the SHU if he were "known to be currently suffering from a severe mental disorder or severe depression and . . . currently exhibiting symptomatology which requires immediate treatment/evaluation in a mental health setting or . . . is known to be at substantial risk of serious mental or emotional deterioration." Stipulation IA1.
The March 27 note goes on to say that - although Inmate A is thus already 11

established as likely being a "manipulator" - even if he is mentally ill, this makes no difference, since his refusal of his medication clearly establishes that: "It has become quite obvious that even if the patient does have a mental disorder, he is not interested in receiving treatment. ... Will discharge to SHU." OMH staff concluded that this inmate who had just written a note and communicated it to OMH staff was "not interested in receiving treatment," even if he was actually ill. Yet clearly, Inmate A was asking for help from OMH - even if his request was psychotic and illogical. This conclusion is also indefensibly cynical and self-serving: Because Inmate A is noncompliant, it no longer matters whether he is severely ill or not, and OMH staff are relieved of any responsibility towards him.
OMH discharged Inmate A back to SHU, indicating that he was not mentally ill and deteriorating but simultaneously they continued to administer involuntary psychotropic medication. Thus OMH staff simultaneously asserted both of the following propositions: 1) Inmate A is not so ill, or not ill at all, which justifies OMH sending him back to SHU and doing virtually nothing to help him; 2) he is so ill that he must be medicated against his will with Haldol - a medication that is so potent and so toxic that it can cause permanent neurologic damage. These two propositions - that Inmate A was not at significant risk, and that Inmate A was a candidate for involuntary medication are simply and unavoidably contradictory. One proposition - that he is not so ill, or not ill at all - justifies OMH doing virtually nothing to help him. The other - that he can be medicated against his will - justifies their use of chemical restraints, and avoids any need for them to form any trusting, professional relationship - any "therapeutic alliance" - with him.
The OMH notes after March 27 document Inmate A’s increasing desperation. He pleaded with staff that he could not stay in his SHU cell because he was being visited nightly in his cell by the judge who sentenced him, and experienced these "visits" with
12

terror.3 On April 6, he handed a psychologist, Dr. Pasqual, a note stating that he would
hang himself if he did not get out of the cell. Dr. Pasqual’s indicated in the chart: "He
states that he can't take his cell in SHU anymore and needs to get out." Inmate A apparently began suffering with severe akathisia4 as a result of
receiving intramuscular injections of Haldol at Attica; the OMH record demonstrates that
he became increasingly agitated, restless, and unable for several days to eat or sleep.
On April 10, the antihistamine Benadryl, a medication which is often helpful in
counteracting this side effect, was finally administered, although it provided only a
modest degree of relief.
Just four days later, on April 14, Inmate A attempted to hang himself in his SHU
cell. He had torn his bed sheet to use as a rope, tied it around his neck, and then to the
bars of his cell. But the sheet ripped, and he lived. When he was discovered, he
informed the Correctional staff that “the judge” had ordered him to hang himself.
After this suicide attempt, Inmate A was again transferred to a Mental
Observation cell, where he was again involuntarily medicated with intramuscular Haldol.
Nothing more was done. Within a day, he was returned to his SHU cell. Two days
afterwards, on April 17, he was again refusing to take his medication; he was observed
in a deteriorated state - lying on his bunk, mute, his cell littered with garbage, food and
paper items. Two days later, on April 19, he was returned to Mental Observation. He
3Inmate A had a long-standing delusion concerning the judge who had sentenced him. Inmate A reported at different times that the judge: ordered him to die; arranged for him to be stabbed; and commanded him to kill himself and others. See Appendix B, Inmate A’s OMH Record Prior to March 1998.
4 Akathisia is a neuromuscular ("extrapyramidal") side effect of the older antipsychotics such as Haldol. It is characterized by motor restlessness - an inner agitation, a feeling of not being able to be still, a feeling as though the patient is crawling out of his own skin. The intense agitation associated with this side effect can have lethal consequences - precipitating agitated, violent, or suicidal behavior. A critical advantage of the newer antipsychotics, such as Risperdal - the drug prescribed at CNYPC - over these older drugs is their markedly fewer neuromuscular side effects.
13

reported feeling weak, with no appetite. The tone of his voice was low and at times he could not be understood. He pleaded - in fact, entirely correctly - that the medications being administered to him were affecting him detrimentally; he refused to take any medication, except for the Benadryl which was prescribed to quiet down his akathisia. The record reveals no consideration of this plea, nor of his plea of hopelessness that "nothing will help" - that he simply could not tolerate further confinement in the SHU.
The record states: "The more he thinks about going back to SHU, the more depressed he becomes. He stopped his meds because nothing will help." And it indicates the OMH staff response: " Not currently seen as mentally ill. He has continued posturing to avoid SHU time." Accordingly, Inmate A was discharged back to the Attica SHU.
Inevitably, within days, on April 24, Inmate A again attempted to hang himself and was once again transferred to Mental Observation. He was almost immediately returned to SHU and nothing more was done.
Three days later, on April 27, he was seen on SHU rounds: "He expressed concern about his mental health. He is having difficulty swallowing and believes it is due to the (long-acting) Haldol he received on April 15." Inmate A was once again most likely entirely correct in this assessment; the extrapyramidal side effects he suffered with Haldol commonly cause difficulty swallowing.
He continued refusing all medication (oral antipsychotics and Depakene) except Benadryl, and on April 30, he pleaded for an increase in his Benadryl, which apparently was helping both his akathisia and also his inability to sleep. The psychiatrist, Dr. Melendez, refused his request. Apparently, if he would not take his other medication, she would not give him more Benadryl.
This is the last note in his OMH record. Inmate A killed himself at 1:30 a.m. three days later.
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2. Postmortem Review of Inmate A's Death [redacted section]
These conclusions and the thinking which underlies them, reveal very much the same major deficiencies which characterized Inmate A’s treatment, as well as that of Inmate Z some thirteen years previously.
3.1 Inmate A was Housed in Attica SHU in Violation of the Eng Stipulation [redacted section]
If at times during the weeks after his discharge from CNYPC and before his death he was not exhibiting florid psychotic symptomatology, this was undoubtedly in part because that symptomatology was being suppressed by powerful antipsychotic drugs.
Inmate A was a gravely ill man, who presented a classic picture of a person who by reason of mental illness was unable to withstand the stresses of prolonged isolated confinement. He was precisely the type of individual contemplated by provision IA1 of the Eng agreement: ". . . [i]n no case shall an inmate who . . . is known to be at substantial risk of serious mental or emotional deterioration, be placed or maintained in SHU."
3.2 Was Inmate A’s Suicidal Behavior "Manipulative"? [redacted section]
Was there a "manipulative" aspect of Inmate A’s behavior? Of course there was. There is no doubt that Inmate A was desperate to get out of Attica SHU, and that this desperation drove him to desperate behaviors. But does this fact indicate that the behavior was not driven by serious mental illness and severe, unbearable suffering? Of
15

course not. There is a fundamental defect in the staff's reasoning here. It lies in their
indifferent confusion of the terms "only manipulating" (i.e. "malingering"), "manipulation,” and "secondary gain.” In Inmate A’s OMH record, all three ("secondary gain,” "manipulative," and "only manipulative") are used haphazardly and indiscriminately. Indeed, there sometimes appears to be a progression from one of these terms to another. For example, the Psychological Autopsy documents progress notes in Inmate A’s chart: On March 23, 1998, Inmate A’s behavior - handing a Social Worker a bag of mashed potatoes and his suicide threat - were deemed examples of "secondary gain.” By the next day, March 24, however, this behavior was described as "an attempt to manipulate his way back to CNYPC.” Then later that day, an OMH note justifying his continued incarceration in SHU states: "He may continue to exhibit selfharming behaviors but they are only attempts to manipulate his way out of SHU."
This progression of terms - not based upon any change in information or assessment - would seem to suggest that they are interchangeable. But these terms are decidedly not interchangeable. An individual who is not mentally ill may feign such illness in an attempt to manipulate his environment. In such a case, the individual's behavior would properly be described as only a manipulation. But, as the Court found in Madrid v. Gomez (based partly on my testimony in that case): "...[A]n overburdened, and sometimes indifferent, mental health staff [may be] far too quick to dismiss an inmate as a "malingerer" and thus deny him needed treatment. ... Indeed, [this] obsessive preoccupation by staff members with the possibility that an inmate might be manipulating, [often] significantly impairs their capacity to recognize severe mental illness." The Attica OMH record reveals no attempt at distinguishing malingering - the feigning of illness behavior in order to manipulate - from illness behavior which has a manipulative component.
16

Indeed, Inmate A’s record reveals a lack of differentiation even of the terms "manipulation" and "secondary gain.” "Manipulation" and "secondary gain" are also not interchangeable, although they appear in Inmate A’s record as though they were. "Secondary gain,” and its complement - "primary gain" - are psychoanalytic concepts which together provide a conceptual framework within which to analyze the meaning of psychiatric symptoms. The "primary gain" of a symptom was thought of as the utility of that symptom in managing the patient's unconscious feelings and conflicts. The "secondary gain" was described as the symptom's utility in producing actual change in the patient's environment. Thus, both processes were "manipulative" - the "primary gain" represented a manipulation of the internal, intrapsychic world, and the "secondary gain" represented a manipulation of the external world - but both processes were entirely unconscious, and were not susceptible to change without psychological treatment. "Secondary gain" - the term used in the March 23 OMH note - is a concept which can be applied only to cases of genuine psychiatric illness; it can never be used as a construct to describe manipulative behavior which is in the context of feigned illness - of malingering.
On the other hand, the term "manipulation" is not - like "secondary gain" restricted to unconscious processes; it can also describe the result of a - in part or wholly - conscious process. If Inmate A was truly desperate to get out of SHU because he truly could not tolerate this confinement, this desperation - and the hope that the OMH staff might respond to it - might well have fanned the flames of his suicidal ideation and threats. A patient's desperate need to manipulate his environment can of course result in an increase in behaviors which have the possibility of effecting such a change. The mental process producing an increase in such behaviors might be anywhere along a spectrum from mostly or entirely unconscious to mostly or entirely conscious.
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The critical difference is not to what extent such "manipulative" behavior is conscious or unconscious; the critical difference is to what extent the behavior is only the product of a logical calculus of means and ends based upon a rational desire to change one's environment. If an inmate is cooly, rationally malingering - feigning symptoms in order to manipulate his environment - then the staff's refusal to let him out of SHU for his behavior, (or even punishing him for the behavior by imposing additional strictures) , might well result in a change in the parameters of that rational calculus; the inmate may logically decide to forego the behavior.
On the other hand, to the extent that the inmate's "manipulative" behavior is a manifestation of explosive inner emotional turmoil and desperation - to the extent that it is fundamentally irrational - then changing the parameters of some hypothetical rational calculus is very likely not to improve the behavior. Indeed, quite the contrary; it is likely to worsen this fundamentally irrational behavior. If staff response worsens the inmate's desperation, or increases the inmate's hopelessness about escaping it, then the staff's refusal to let him out of SHU for his behavior will not make his behavior more "rational"; it will, instead, more likely result in his behavior becoming more explosively violent. This is precisely what occurred in Inmate A’s case.
The record reveals graphically how readily the Attica OMH staff seized upon the fact that Inmate A’s behavior might have a manipulative aspect, and how quickly they transformed that observation into a conclusion that his behavior was "only" manipulative: On March 23, 1998, four days after his transfer back to Attica, and in the context of recognizing the potential "secondary gain" of Inmate A’s threat of suicide, the Attica OMH staff treated Inmate A as an individual in desperate inner turmoil, administering intramuscular Haldol against his will. Yet within one day - and presumably in the context of Inmate A then being relatively calm because of the administration of this powerful drug - this behavior was redefined as "only
18

manipulating.” Thus, within 24 hours, a psychotic individual manifesting desperate behavior had become, in effect, a malingerer attempting to "con the system.”
The callousness demonstrated by this transformation persisted throughout the remaining weeks of Inmate A’s life. The record reveals many clear manifestations of Inmate A’s mental illness and of his severe suffering, but the staff seems recurrently to have averted its attention from these observations - and from the profound responsibility which the staff should have experienced as a result of such observations and instead recurrently emphasizes the significance of random observations of moments when Inmate A appeared either coherent or else "manipulative.”
This tendency is also revealed in a memo prepared by Bruce Bradigan after Inmate A’s death. Mr. Bradigan notes that on April 14,1998, he observed Inmate A with a noose loosely wrapped around his neck, grinning oddly and mute. The only information provided by Mr. Bradigan is that, "based on [INmate A’s] recent history and current behavior, he appeared to be manipulating to be removed from SHU." The assessment of Inmate A’s possible psychosis and suicidality should have been based upon his entire psychiatric history - not just an "impression" of recent behavior.
Mr. Bradigan's note also indicated that he was then told that - despite this "impression" that Inmate A was only manipulating - he would be sent to a Mental Observation cell for "closer observation.” Inmates, such as Inmate A, who are sent to Mental Observation, are generally transferred back to SHU shortly - once they give the "impression" that they are calm and not suicidal. Virtually never is there any "closer" evaluation during such brief MHU confinement. [redacted section]
But this makes no clinical sense at all. For one thing, Inmate A’s lament that MHU was not helping, is not at all surprising; after all, as described elsewhere in this report, the MHU housing at Attica for SHU inmates is even more isolated and barren
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than that in the SHU itself. It was not Inmate A’s responsibility to find some alternative for himself. All he could state was what he knew - that he could not tolerate SHU, and that the MHU was not helping him. It was not his responsibility to come up with some other alternative to CNYPC. That task was the responsibility of DOCS and OMH.
3.4 Conclusions Regarding Inmate A’s Course at Attica. As stated at the beginning of this discussion of Inmate A's course at Attica, his
treatment at Attica SHU is strikingly parallel to that experienced thirteen years previously by Inmate Z. As was the case with Inmate Z, there was striking indifference to Inmate A’s plight, and he was subjected to the repeated cycle of a toxic SHU confinement leading to florid psychotic decompensation, transfer to MHU or CNYPC, and then transfer back to SHU. Inmate A’s record demonstrates that the OMH staff remain overly preoccupied with a desire to root out malingering and to not be "conned" by the inmates; these preoccupations seem to have overridden their sense of professional responsibility as clinicians.
Inmate A’s death was the predictable consequence, foreshadowed by multiple obvious warnings, of a pattern of psychiatric neglect and indifference towards a gravely ill patient - a pattern which should not have been tolerated in any competent institution. He presents a classic picture of the person who by reason of mental illness was unable to withstand the stresses of prolonged isolated confinement, and ultimately succumbed to them fatally.
As is true of many of the inmates whom I have evaluated, Inmate A recompensated when he was hospitalized at CNYPC, with the full range of treatment options available there, but once he was returned to a punitive SHU setting, no meaningful treatment options were provided. There was basically no opportunity for individual psychotherapy, and exceedingly limited opportunity for him to develop any
20

trusting relationship with a clinician or psychiatrist, despite the explicit directions in the CNYPC discharge summary. In such a circumstance, treatment compliance was, at best, a doubtful proposition. And there is little in his OMH record to suggest that there was ever any meaningful attempt to establish such an alliance.
Moreover, in the hospital setting, Inmate A had the opportunity for group, occupational, recreational and expressive psychotherapies. In the Attica SHU, he had virtually nothing at all.
General population inmates who are at the brink of psychiatric decompensation are housed in Attica's Residential Crisis Treatment Program (RCTP). They are housed together, and have therapeutic opportunities fairly similar to those typically available in a hospital setting. But SHU inmates at Attica who are in need of acute mental observation - such as Inmate A - are housed in an entirely separate area of the Attica Psychiatric Satellite Unit, in utterly barren Mental Observation cells, in isolation, with nothing to divert them from their torment.
Why is the housing so different for these two groups? Because even in this clinically precarious situation, it appears that there is an institutional imperative that SHU inmates must continue to be punished. This is an imperative that I have seen in other institutions, and at other times at Attica, always rationalized by a similar emphasis on inmates' "manipulation" and a corresponding lack of emphasis on the seriousness of their illnesses. Even in Mental Observation, the psychologically ill Attica SHU inmate continues to be psychologically punished. Inmate A "manipulated" his way from one psychologically unbearable setting to another, and his experience of hopelessness and desperation worsened, with ultimately fatal results.
During this Site Visit, senior officials at OMH acknowledged that there is a major structural gap in their treatment options. DOCS has provided - in its Intermediate Care Programs - for the long-term residential housing and treatment of the relatively passive
21

mentally ill inmate. DOCS has generally experienced no such mandate to provide such long-term residential housing and treatment for disruptive mentally ill inmates. Without such an option, such behaviorally disruptive mentally ill inmates have no meaningful long-term housing option available to them. This was precisely the vacuum which ultimately consumed Inmate A.
III. Other Inmate Reviews.
1. Inmate B Inmate B, a 25 year old black male who was incarcerated in 1995, was the first
inmate I interviewed during the January 1999 site visit. His history was not atypical of that encountered among psychiatrically ill SHU inmates; it included a history of head injury, of borderline intellectual functioning, of severe impulsivity and mood lability, and of acute confusional psychosis during periods of SHU confinement.
He had a history of serious psychiatric difficulties during incarceration, including psychiatric hospitalizations. In October 1995, early in his incarceration, Inmate B was admitted to the psychiatric unit at Bellevue Hospital with auditory hallucinations and depression. He was noted on that admission to be paranoid and fearful, irritable and with pressured speech and disorganized thinking. He was diagnosed as suffering from a psychotic disorder, and was treated with antipsychotic and anxiolytic/mood-stabilizing medication.
One year later, while incarcerated in solitary at Sing Sing, he developed a psychotic delirium, the paradigmatic illness caused by solitary confinement - an acute confusional, paranoid, hallucinatory psychosis, marked by agitation, intense fear and by subsequent amnesia for events of the psychosis. He was transferred to the Mental Health Unit (MHU), where he reportedly recompensated, only then to be transferred
22

back to SHU, where he apparently once again decompensated into a psychotic state. Inmate B was transferred to Attica in July 1997, and was transferred to the Attica
SHU in October 1997. Inmate B quickly decompensated, and his condition progressively worsened over the following months. In January 1998, he was transferred from his SHU cell to the MHU. He was described by Dr. Melendez as "acting strangely again,” just as he had during prior periods of SHU incarceration. He was described as anxious, hyperactive and unable to sit still, and with odd mannerisms, such as blinking his eyelids excessively. He was confused, with psychotically disorganized thoughts and unable to remember anything; he appeared at times to be almost incoherent. Inmate B complained of being unable to sleep, and was noted to have an exaggerated startle response. He was exposing himself and masturbating compulsively, complaining of odd somatic symptoms, such as swelling and pain in his groin.
Dr. Melendez prescribed an antipsychotic medication; despite this, and despite Inmate B’s rather floridly psychotic presentation, Dr. Melendez maintained that it was possible that she was being manipulated by her patient: "For the past two years, he acts bizarre every time he gets into trouble and has to do SHU or keep lock."
Over the next month, Inmate B continued to be psychotically ill. He refused his antipsychotic medication, was noted to be yelling and banging, staring blankly, exposing himself and masturbating openly, and was described as agitated, disorganized, labile and paranoid - trying to force himself to stay awake out of fear that he would be attacked at night. For the first several weeks, the only response to this floridly disturbed behavior was further punishment; he was given disciplinary tickets for banging and yelling, and was punished with the restricted diet; he was fed only a food loaf diet.
On February 24, he was committed to CNYPC, where he remained for the next three months. Inmate B’s condition improved markedly during this hospitalization and
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by the time of discharge, he was compliant with treatment and cooperative with staff. His psychosis had cleared with treatment, including a relatively brief course of the antipsychotic, Risperdal. A mood/impulse control disorder was diagnosed, and he was prescribed the mood stabilizing medication, Depakote, a medication which was expected to be continued after discharge. Donald Moberg, the psychologist who completed Inmate B’s Inpatient Core History, noted Inmate B’s long history of psychiatric difficulties, and concluded: "Considering Inmate B’s continuing psychiatric difficulties, he may be an appropriate candidate for transfer to a continuing care ward." The discharge summary also recommended individual counseling for 30 minutes a week and a psychiatric interview for 10 minutes a week.
Inmate B was discharged from CNYPC back to Attica in May 1998, and was immediately returned to SHU with no apparent consideration of the recommendation that he be housed in a continuing care ward, and in direct violation of the Eng Stipulation’s requirement that inmates with serious mental illness or a history of serious psychiatric decompensation in SHU not be housed there. Neither the individual counseling nor the weekly psychiatric interview were provided to him in the SHU. According to a note prepared by Dr. Melendez, upon his transfer back to Attica SHU, he was handed three disciplinary tickets related to his psychotic behavior three months previously. Inmate B protested that he could not even remember the events which transpired during his period of psychosis, but the note indicates that this protest was simply ignored.
Instead, Dr. Melendez' note reflects mostly a continued exaggerated vigilance to the possibility that Inmate B was malingering in order to manipulate his way out of SHU: "Claims he doesn't remember anything happening [in February] and claims he didn't do anything. Today he looks calm and organized. . . Interesting to note that he didn't take any antipsychotics during his stay at Marcy. . . It will be interesting to see what
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happens now with how he deals with [the February] tickets." Dr. Melendez' "interest" apparently concerned the possibility that Inmate B had
been feigning mental illness in February rather than in the overwhelming evidence that he had, instead, been floridly psychotic at the time. Her note also reflects a rather cavalier readiness to assume from the fact that Inmate B was not then (in May) on antipsychotics, that such medication had not been required at CNYPC - an assumption which was incorrect - as stated previously Inmate B was treated with the antipsychotic Risperdal for a period at CNYPC.
Moreover, Dr. Melendez' note does not reflect two other possible explanations for Inmate B’s current non-psychotic state: first, that Depakote was controlling the affective instability which drove his psychotic state; and second, that Inmate B three months' experience of a therapeutic hospital milieu - as opposed to a toxic SHU environment - had a dramatic effect on his psychiatric state.
Inmate B did not do well - neither with his tickets nor with his clinical state - after his return to Attica SHU. By June 16, he was again overtly psychotic, and once again, he required antipsychotic medication. Dr. Melendez prescribed Zyprexa, a drug reasonably similar to the Risperdal he had received at CNYPC. Despite the obvious implication of prescribing an anti-psychotic - the implication that Inmate B was again decompensating into a psychotic state within weeks of return to SHU - Dr. Melendez did not suggest that Inmate B should be transferred out of SHU. Instead, over the following week, despite the prescription of the antipsychotic, Inmate B continued to further psychiatrically decompensate. By June 23, he was agitated, pacing, crying in his cell, and pleading that being in Attica SHU was, for him, "a slow torture.” He was that day recommitted to CNYPC, where he was to remain until September 9, 1998.
He once again recompensated at CNYPC, and once again returned to Attica off of antipsychotics, and back on a mood-stabilizing anticonvulsant - Neurontin - a
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medication similar pharmacologically to Depakote. Once again he was returned to the Attica SHU in violation of the Eng agreement.
There is no basis stated in the OMH record for the mental health professional's conclusion that "the inmate may be placed in SHU despite such a history,” nor any description of "steps that will be taken to monitor the inmate for a recurrence of such symptoms while he is in SHU." Stipulation IB4. Once again, Inmate B began to psychiatrically decompensate in the SHU; over the next months he became agitated, non-compliant, and began masturbating openly. Dr. Melendez' response was hostile and irritated: "He continues to insist he is right [whether it was his right to masturbate openly] and everyone else is wrong."
I interviewed Inmate B on January 25, 1999. He had been released from Mental Observation a few weeks earlier, and once again had been returned to SHU. During our interview, Inmate B did appear somewhat agitated, but his mental state was clearly not as disturbed as what had been described at other times in his record. He was able to provide additional information about his experience in Attica SHU - information which was confirmed in our interviews with other Attica SHU inmates: Medication Dispensing
Inmate B explained that there was actually a substantial basis for his refusals of medication. The medication which he was prescribed has a sedating effect and generally is prescribed for nighttime administration. The Attica OMH staff, however, only dispense any medication - even "evening medication" - no later than 1:00 in the afternoon. Inmate B was already struggling not to be drowsy and stuporous during the day. If Inmate B accepted the medication, his struggle to maintain an adequate state of alertness during the day (his struggle to avoid descending back into stupor and delirium) would in fact have become even more arduous; he would have been forced to fight off medication-induced sleepiness as well as the torpor of monotony and enforced
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idleness. He had complained to staff of this difficulty, but his complaints had fallen on deaf ears. During our subsequent interviews, other inmates confirmed this information.
In my professional opinion, it is appropriate to dispense sedating medication at night, not early in the day. It is critical to the inmates' mental health that they maintain some normal sleep-wake cycle, and - especially given the torpor induced by their environment - that they avoid the additional burden of being made drowsy by the medication they receive. Appropriate timing of medication dispensing might also go far to improving inmate compliance with medication . Mental Health Involvement in Decisions Regarding SHU Housing.
Inmate B stated that he had spoken with Dr. Melendez about how much better he had done at CNYPC-Marcy, and had asked Dr. Melendez to help him be transferred out of SHU. Inmate B stated that he complained to Dr. Melendez that he could not take the stress of SHU, and that keeping him there was "setting me up for more tickets.” He reported that Dr. Melendez ignored his complaint, and dismissed his request, stating that she has nothing to do with transfers.
Inmate B’s medical record, and other inmate interviews, confirm this information that - in violation of the Eng agreement - Attica mental health staff still view themselves as passive bystanders in decisions regarding inmate placement and maintenance in SHU. Stipulation IA1, IB2, IC5-8.
In our January 25, 1999 conference at Attica, and despite explicit reference to the Eng Stipulation, both Executive Director Hal Smith and Dr. Melendez explicitly stated that they saw themselves as having no role in such matters. This is in direct violation of Clauses IA1, IB2 and IC5-8 of the Stipulation. Private Interviews, "Psychotherapy”
Inmate B complained that there effectively is no meaningful opportunity for him to speak privately to a mental health staff member. He stated that his counselor, Bruce
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Barten - referred to by the inmates by his first name - does make "rounds" several times a week, and acknowledged that Bruce seems to be reasonably well-meaning. But he complained that Bruce's "rounds" consist basically of passing by the cells a couple of times a week, perhaps stopping for a few minutes at a cell front to engage in casual conversation - all of which is heard by other inmates on the tier. Inmate B describes this as "having to shout your problems to everyone on the gallery.” He insists that, despite his repeated requests, Bruce never takes him, or any other inmate, out of his cell for a "private interview" except for meetings with Dr. Melendez, and offers no explanation for his refusal to do so; "if you ask, it's no point.”
Moreover, Inmate B states that Dr. Melendez is only very marginally available to him, and only speaks with him on rare occasions. Indeed, he complains that sometimes his medication is changed and no one even tells him about it: "You just see that it's switched.” And when Dr. Melendez does see him, for a few minutes in the hearing room on the tier, Inmate B has no experience that these meetings are private: "They have a [loud]speaker in that [hearing] room. ... Everyone on the gallery could hear the conversation.”5
Other inmates whom we interviewed corroborated Inmate B’s claim that Bruce never takes an inmate out of his cell for a private interview except in order to bring the inmate to the hearing room to meet with Dr. Melendez. They also confirm that Dr. Melendez does not regularly herself participate in rounds on the tier; she sits with her charts in the hearing room while Bruce brings the inmates for her to interview. See Appendix F.
In our conversation with him during our site visit, Bruce entirely confirmed that these are, indeed, the current practices on the Attica SHU.
5 As is indicated later in this report, several inmates raised this same concern about the hearing room.
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Thus, despite the Eng agreement that SHU inmates would be able to receive appropriate mental health services, and despite the fact that SHU inmate treatment plans quite often centrally describe "Supportive Psychotherapy" as the proposed intervention, it appears that no meaningful opportunity for psychotherapy is yet provided. Stipulation IE.
Inmate B’s case is especially striking in this regard. He had a history of prior psychiatric decompensations during periods of SHU confinement, and within a four month period of time, he twice psychiatrically decompensated in Attica SHU; on each occasion, he was massively ill and psychotically disorganized at the time of admission to CNYPC. On each occasion, he dramatically recompensated during hospitalization, and became cooperative, compliant, and actively involved in treatment. The behavioral disturbances which punctuated his course in SHU, disappeared in this setting. At CNYPC, he was encouraged to interact with other inmates and with his family. He engaged in group, occupational, and individual psychotherapy. He even was able to discuss very sensitive, painful and traumatic issues from his childhood in private psychotherapy. None of these treatments were available upon his return to Attica SHU. Indeed, the CNYPC Discharge Summary actually notes that SHU incarceration exacerbated Inmate B’s psychiatric condition.
Moreover, the September 1998 CNYPC discharge summary makes explicit reference to Inmate B’s need for continuing private individual psychotherapy: "His personal trauma is an issue that could be considered for inclusion in the treatment plan review process. Staff need be aware of the sensitive nature of these issues and that they would have to be discussed in an environment of privacy." Thus, in violation of the Eng Stipulation, ID1-2 and IE1-3, Inmate B was deprived of any meaningful continuity of care after his discharge from CNYPC and his return to Attica SHU.
One last point in regard to private interviews: Other inmates in addition to 29

Inmate B complained that they do not at all trust that the hearing room used by Dr. Melendez is truly a "private" setting; they complain that correctional staff listen in on the interviews and often afterwards make fun of an inmate on the tier for what he said in the hearing room. While I have no independent evidence whether this actually happens or not, it was clear to me from my inmate interviews that this was the perception of the inmates generally. (See e.g. Section III.6 below.)
2. Inmate C Inmate C was the second inmate I interviewed. He, too, had a history of
psychiatric difficulties prior to his transfer to Attica, and these vulnerabilities were also fairly characteristic of those seen among SHU inmates.
He had come from a disrupted home, and had lived in a group home during his childhood. He also had been psychiatrically hospitalized as a child for impulsivity, suicidality, and seizure disorder. His committing offense was apparently the consequence of a substance abuse disorder. Before arriving at Attica, he had a history of impulsivity, depression, paranoia, and suicidality; he had behavioral difficulties in prison, and had been sentenced to two years of SHU time just prior to his arrival at Attica in May 1998.
After he arrived at Attica, Inmate C began to refuse his medications - an antidepressant and an antipsychotic. Dr. Melendez responded to this information in a strikingly cursory manner - she stopped the medications, with no apparent attempt to understand the reason that Inmate C was refusing them. Indeed, in violation of the Eng Stipulation, Clauses IB5, IE1, and IF, there is no documentation of any adequate evaluation of Inmate C's past psychiatric, neurological and psychosocial history.
Such an evaluation would quite likely have been extremely useful. The medical record reveals that only a few days prior to his transfer to Attica, Inmate C had explicitly
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stated why he was refusing antipsychotic medication; he believed that it could cause him to have a seizure. His belief was in fact entirely accurate; antipsychotics do lower the seizure threshold; they can cause a susceptible individual to have a seizure. If Dr. Melendez had inquired, she might have had the opportunity to discuss this issue with Inmate C, and form some basis for Inmate C to gain trust in her, and an understanding of the potential risks and benefits of her proposed treatment. The record does not reflect that any such discussion occurred.
In the months after June 1998, Inmate C was intermittently prescribed antidepressant medication and intermittently refused to take medications which were prescribed. The record reveals no attempt whatsoever at determining why he was refusing medications when he did so. For example, on November 19, 1998, Dr. Melendez noted that Inmate C had generally been refusing his medication during the prior weeks. Her note acknowledges that she had not seen him during the prior six weeks. She noted that she would discontinue his medication and inexplicably noted that he may not need continued mental health services.
During my interview with Inmate C, he complained of the disrespect with which he felt treated by the officers and staff. He stated that, without his permission, Dr. Melendez had ordered records to be sent to Attica from the Group Home where he had lived as a child, and that when he had protested this, she told him that she did not need his consent. Inmate C also complained that he never sees the counselor, Bruce, outside his cell except for meetings with Dr. Melendez, and that these tend to be quite brief - about 15 minutes total, including time for him to leave and to return to his cell. The record confirms this assertion: Logbook entries from June 1 through September 1998 indicate that Inmate C was interviewed once by Dr. Melendez on June 30, 1998; he left his cell at 2:23 p.m. and returned at 2:38 p.m. The SHU Reports from May through October 1998 indicate that no other interview was conducted.
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3. Inmate D This 34 year old black man has been at Attica since May 1997. He has a history
of head injury leading to a seizure disorder, treated with the anticonvulsants, Dilantin and Depakote, a history of serious repeated, violent suicidal behavior (including slashing his throat with a razor blade), and of seriously disturbed behavior since childhood; he had been institutionalized as a child and psychiatrically hospitalized on several occasions prior to his incarceration at Attica. He had been diagnosed at CNYPC as having a psychotic mood disorder, and had been treated with antidepressants, anticonvulsant/mood-stabilizing medication, and antipsychotics.
In view of this history, Inmate D has received strikingly little mental health contact during his incarceration in Attica SHU. He was prescribed an anticonvulsant/ moodstabilizer (Depakote) and there was a report in his mental health record on March 12, 1998 that the medication had helped him control his temper. Yet when, ten days later, Dr. Melendez noted that he had recently been refusing his medication, she discontinued the medication, with no apparent attempt to explore with him the reasons for his refusal; a few months later, without any substantial explanation, he was discharged entirely from mental health services.
During our interview with him, Inmate D described the reason he had become medication non-compliant; the medication he was prescribed had been making him groggy and this diminished alertness had left him "paranoid, hyper, on guard.” He had known that the medication was supposed to help him sleep, but it was being dispensed, not at night, but shortly after noon. He had complained about this, but no one seemed to care, and Inmate D had developed a distrust of mental health staff at Attica. While he had generally positive feelings about the SHU counselor, Bruce - describing him as "a good guy" - he felt that Bruce did little besides passing by the cells briefly on his
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"rounds.” And he distrusted Dr. Melendez, whom he felt was unreasonable, not willing to listen, demanding, and controlling. During the period from March through October 1998, Dr. Melendez interviewed Inmate D only three times - during the weeks of March 9, May 25, and August 31.
4. Inmate E Inmate E has received no mental health treatment since his incarceration in the
Attica SHU in August, 1997, and there is no evidence that he has required any such treatment. He also was scheduled for release from prison in less than two months from the time of our site visit.
I reviewed his chart to help evaluate the implementation of those portions of the Eng Stipulation (IB2, IC3-4) which mandated that all inmates housed in SHU be psychiatrically screened on admission and their clinical status be at least briefly reviewed quarterly and regularly on rounds. His chart revealed substantial compliance with these portions of the Stipulation.
On interview, Inmate E noted that one of the counselors - Bruce or Steve - did come by and chat at his cell front every ninety days, and they seemed friendly and cordial. He also described, however, that some of his fellow SHU inmates seemed to be behaviorally in poor control, and as a result they "just keep getting tickets.”
5. Inmate F Inmate F has been housed in the Attica SHU since April 1993, and since then,
has periodically displayed bizarre and disruptive behavior. His OMH records reveal a history of serious mental illness, including that he was psychiatrically hospitalized twice in the l980's. During the first years of his Attica SHU confinement - especially in 1993 and 1995 - he was described as suffering from both a psychotic disorder and from a
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major depression. He was evaluated by Dr. Melendez in January 1998, and the fact of his prior
psychiatric hospitalizations was noted. However, Dr. Melendez' note reveals no inquiry into the nature or cause of these hospitalizations, nor does it even mention at all Inmate F's earlier disturbances during his Attica SHU confinement.
Based upon this inadequate informational foundation, Dr. Melendez’ recommended medication (the sedating antidepressant Sinequan) and "supportive psychotherapy.” Yet, the choice of medication - Sinequan - is questionable in light of the fact that it is a highly sedating drug which is normally prescribed for nighttime administration, and Inmate F would be required in the Attica SHU to take the medication just after lunch. Moreover, "supportive psychotherapy" was not provided other than Bruce's casual cell-front "rounds" - an activity which, although apparently well-intentioned, certainly would not constitute any meaningful psychotherapy.
There is virtually no other information contained in Inmate F's OMH record for 1998. The Attica SHU Reports indicate that he was interviewed once during the week of March 2, 1998, and there is one note from July which states that he was upset and crying. But the next month, Dr. Melendez stated only that: "He reports he is doing fine. ... He has faith in God." There was virtually no other attention paid to his psychiatric status. Yet by January 1999, the OMH record reveals the depth of his ongoing psychotic disturbance. He had become increasingly - obsessively, delusionally preoccupied with the Bible, and he panicked and became tearful when he read something in the Bible which he thought might have some special significance for him.
During that month, Dr. Melendez finally noted that Inmate F's preoccupation was psychotic and that he seemed to have the delusional belief that he was the chosen one of God. Her response was to offer him Prozac - another antidepressant, without Sinequan's side effects. In violation of the Eng Stipulation (IA, IB, IC7) no proper
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psychiatric evaluation was accomplished, and no consideration was given at all to the obvious possibility that Inmate F was psychiatrically deteriorating and might need to be removed from the SHU; indeed, no consideration was given to the fact that if Inmate F was seriously mentally ill, or had psychiatrically decompensated as a result of his SHU confinement, the Eng Stipulation required his removal from SHU.
In our January 1999 interview with him, Inmate F described his distrust of Dr. Melendez; he stated that the only reason he had spoken with her earlier that month was that she had threatened to put him in a strip cell if he refused to talk with her. He also began speaking - albeit obliquely - about his preoccupations with the Bible. He became visibly agitated and tearful as he did so, and his thought process became noticeably scattered and disorganized. He stated to us that he had tried to engage Bruce in conversation about the Bible at his cell front, but Bruce "just looks at me in disbelief.”
6. Inmate G Inmate G was sentenced to prison in May 1995, and has spent most of the
period of his incarceration in SHU settings. He was transferred to the Attica SHU from the Elmira SHU in September 1996, and has remained in the Attica SHU since that time. Inmate G's medical record reveals a prior history of a serious psychiatric disorder - apparently a psychotic episode - during incarceration.
In June 1998, following a period of increasing agitation and disruptive behavior, he requested mental health services, stating that he was "depressed.” According to the SHU logbook, he was interviewed by Dr. Melendez on June 30, 1998, but was back in his cell within 16 minutes. This cursory interview then was incorporated by Dr. Melendez into a psychiatric evaluation note; reference was made in this note to a presentence report, although the record does not state what, if any, specific information
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was gleaned from that earlier report. The "evaluation" itself was quite cursory. It only went so far as to describe Inmate G as complaining of depression, but provided no information about the history or nature of this complaint, nor did it specify whether any signs or symptoms of depression were present. Moreover, the June 1998 evaluation stated that Inmate G had no history of prior mental health treatment, yet this assertion was plainly contradicted by the earlier sections of the psychiatric record.
Dr. Melendez largely dismissed Inmate G's complaint, stating that she would prescribe the antidepressant Sinequan, but opining - without any stated basis - that Inmate G "has mainly an antisocial attitude.”
Without any additional contact with Inmate G, Dr. Melendez discontinued his medication in September 1998; she had heard that he was not accepting the medication, and without further inquiry she simply discontinued it. Her next actual contact with him was on October 8, when she saw him for the purpose of terminating him from mental health services.
During our interview, Inmate G expressed his distrust of the mental health services offered him at Attica SHU. He also expressed his belief that there was no privacy in the hearing room in which Dr. Melendez conducted her interviews - that it had a speaker in it and that the interviews conducted in that room were taped. He also claimed that the Corrections Officers sometimes played an inmate's interview tape on the tier as a means of harassing the inmate.
7. Inmate H Inmate H is a 31 year old man who was transferred to Attica in August 1998, and
has been housed in the SHU since that time. Inmate H came to Attica with a prior history of suicidal behavior documented in his OMH record. Shortly after arriving at Attica, he cut his wrist, and was described by the mental health counselor, Bruce, as
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"crying, very emotional.” He was placed on suicide watch in a B-North Observation cell; on interview there, he requested medication to help him control his temper.
Shortly afterwards, apparently without being evaluated by the psychiatrist, Inmate H was released from Observation on Bruce's recommendation, and was returned to his cell in SHU. There was apparently no further mental health service provided to him. Three months later, in December 1998 - without any actual interview with the inmate - Dr. Melendez discharged him from mental health services.
During our interview, Inmate H described the humiliation he experienced in BNorth: "They put you there butt naked. You've got nothing to eat with. I broke off a piece of the Styrofoam to use as a utensil." He stated that he had asked to see "the doctor" for his mental health problems, but had never even been provided any opportunity to understand what mental health services he was supposed to have available to him. The only mental health service he actually received was a cell-front "evaluation" by Bruce - the mental health counselor. When I asked him about his interactions with Dr. Melendez, he responded with puzzlement; he had never met her: "I don't know who she is. ... I thought Bruce was the doctor."
IV. Compliance with the Eng Stipulation
This section of my report will focus on individual paragraphs of the Eng Stipulation and describe my findings for each specified clause. The clauses are referenced at the left hand margin in accordance with their paragraph designation in the Stipulation. I have not, in this first site visit report, attempted to precisely identify the percentage of cases or situations which did or did not comply with the particular clause of the Stipulation, but rather I have attempted to provide a more general statement including my impression of whether there is evidence of effort being made to remedy
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prior deficiencies. This section concludes with a discussion of two issues - IV.9. Identification of
Inmates for Whom SHU is Contraindicated and Provision of Alternative Placement, and IV.10. Failure to Adequately Review Prior OMH Records - which are interwoven through a number of clauses of the Stipulation. They are addressed in the context of the Stipulation as a whole to illustrate the critical cumulative effect of non-compliance with their purpose.
1. Screening On Admission to SHU (IB) IB1. Timeliness-Initial screening conducted within one working day
My findings were generally that there has been substantial compliance with the timeliness element of this provision, and clear evidence of effort being made towards improvement in this regard. IB1. Initial screening includes review of prior OMH records
My findings were generally of non-compliance here. The SHU screening notes which I reviewed often did not even cite the existence of prior OMH records, and more importantly, the substantive content of such records was never discussed. The Attica OMH staff identified only whether or not the inmate was on the active OMH caseload when they were transferred.
CNYPC’s Policy and Procedure Manual explicitly describes the type of information which should be gleaned from the review of the prior OMH record and must be incorporated into the SHU Screening Note: “Description of the patient’s previous experience in SHU and reaction as described by . . . OMH clinical record. . . . document medical, alcohol/drugs, mental health including a history of suicidal ideation or suicide attempts, and the patient’s response to treatment: any history of emotional, physical, or sexual abuse. . . . Document the reasons for civil admissions (if any) specifying:
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dangerousness to self or to others and any episodes of psychoses and agitation and describe the patient’s history of hospitalizations at CNYPC (if any).” The Stipulation incorporates the requirements and standards of the CNYPC Manual at IF. IB2 Initial screening is adequate to determine whether inmate is ill, at risk, or should
be placed on active OMH caseload.
My findings are that there has been partial compliance with this provision. The very fact that SHU screening forms are actually being completed demonstrates some effort towards compliance, and the completion of such a form requires at a minimum that someone ask and consider important mental health questions. However, very often the informational basis upon which an inmate was deemed not to require active OMH involvement was grossly sketchy and entirely inadequate.
More importantly, no document at all - even those of recurrently, floridly ill inmates - revealed any consideration whatsoever of whether it was psychiatrically dangerous for the inmate to be housed in the SHU. IB2 Another location
IB2 also includes an option to have an inmate who at assessment is identified as being “at substantial risk of serious mental or emotional deterioration if sent to SHU . . . promptly moved from SHU to . . . another location.”
The Attica OMH staff are not in compliance with this provision. As is discussed in numerous sections of this report, even those inmates who have a history of mental illness and a history of prior mental deterioration in a SHU setting are not directed by OMH to be housed in another location despite the requirements of the Stipulation. IB3 Active OMH patients placed in SHU assessments shall include a recommended
plan for mental health treatment
My findings were of non-compliance with this provision. No individualized treatment plans are provided to SHU inmates identified as active OMH patients. Instead, all inmates appear to receive, in addition to medication, only one “plan” - which
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is for “Individual supportive psychotherapy,” a form of treatment which is not even available or provided in the SHU.
Moreover, no records - even those of inmates with a history of psychiatric difficulty arising during prior SHU incarceration - revealed any treatment plan specifically addressing such difficulty. IB4 Screening document includes assessment of prior SHU psychiatric problems.
My review demonstrated virtually total non-compliance with this critical provision of the Stipulation. Even in those - relatively few - cases where there was a notation in the assessment of the fact that an inmate had psychiatrically decompensated during a prior SHU confinement, never was “the basis of the conclusion” that the inmate “may be placed in SHU despite such a history” stated, nor were “steps that will be taken to monitor the inmate for a recurrence of such symptoms” described. IB5 Assessment report sufficiently detailed to enable a clinically competent
independent evaluator to determine whether it was conducted appropriately.
Virtually no record prepared by Attica OMH staff, came close to meeting the standard established in the Stipulation, that the documentation must be: “of sufficient detail to allow an independent evaluator to assess the accuracy of the determination.”
2. Periodic Monitoring of SHU Inmates All of the following represent an effort to comply with the terms of the Eng
Stipulation, and an improvement in services as compared with the situation before the Eng Stipulation. IC1,2 Clinical presence for at least ten (10) hours per week to adequately monitor
mental health status and needs of inmates.
The Attica SHU reports, logbooks and inmate interviews demonstrate that OMH staff are in compliance with the letter of these provisions. OMH staff regularly make rounds through the SHU, sign into the logbook and are reportedly in the SHU for ten or
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more hours per week. This is an improvement over past practice. However, these provisions require that the monitoring be “adequate” to
determine the “mental health status and needs of the inmates confined” in SHU. As indicated in reference to other more specific provisions of the Stipulation and in the section of this report concerning specific inmate OMH files, the monitoring is not yet adequate. “Adequacy” cannot be measured simply by a statistic of man-hours-perweek, but must also be measured by actual services accomplished. The clinical services - assessments, psychotherapy, pharmacologic management - which are provided in the Attica SHU are inadequate. IC3 Rounds shall include: a) discussion with DOCS staff; b) review of logbook
entries; c) a reasonable opportunity for inmates to communicate.
The SHU logbooks appear to be reviewed by OMH staff regularly and in our discussions with OMH staff they reported that they meet regularly with OMH staff to review inmate behaviors. Inmates generally reported that mental health counselors made rounds and could be engaged in minor conversation.
However, as is indicated below in reference to IC4 and elsewhere in this report, requests to communicate other than briefly at cell side were almost never granted nor is it apparent that the opportunity to do so is available to SHU inmates. IC4,5 Identify inmates who: a) exhibit mental deterioration or appear at risk of self
harm; b) request services; c) wish to communicate with OMH staff; d) are unaware or unresponsive; and, record the relevant information in a screening or progress note in the inmate’s OMH record.
As stated above, there has been very substantial improvement in regard to regular rounding on SHU inmates, and clearly at times such rounding results in further clinical intervention. At the same time, however, our inmate interviews and record reviews raise a substantial question as to whether there is a practice of consistent documentation of the information gleaned from such rounds, as required by the Stipulation. There were, for example, inmates who reported to us that, during rounds,
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they had asked for a private mental health interview, and this request had been
refused, yet the inmate chart revealed neither that the request was made, nor the
justification for refusing the request. IC6 SHU inmate exhibits symptoms or behavior that indicate mental deterioration or
substantial risk of self harm - a further OMH mental health assessment shall be conducted within one working day.
Similar to the initial assessments conducted upon transfer to SHU, there appears
to be substantial compliance with the timeliness element of this provision. This
represents a substantial and important improvement in clinical services in the Attica
SHU. IC7,8,9 These three provisions mirror the requirements of Stipulation sections IB2,3,4,5
concerning the conduct and record of the re-assessment process. Inmates that have developed a severe mental disorder or an exacerbation of preexisting mental disorder, are at risk of mental deterioration in SHU shall be moved. Screening document include basis of clinical conclusion that inmate may be returned to SHU. Treatment plan shall address prior deterioration in SHU. Assessment report will be sufficiently detailed to enable a clinically competent independent evaluator to determine whether it was conducted appropriately.
As described above in reference to sections IB2,3,4,5, the re-assessments suffer
from inadequacy and lack of compliance with the provisions of the Stipulation: OMH
staff do not recommend that inmates be housed in a location other than the SHU
despite knowledge of prior and oft repeated mental deterioration of the mentally ill
inmate when housed in SHU; OMH does not create a recommended plan for mental
health treatment which addresses the prior deterioration in SHU for those inmates
approved for return to SHU; documentation prepared by OMH does not reflect changes
in the treatment plan to be made due to the inmate’s inability to function in the SHU
environment; and the entries in the OMH records are not sufficiently detailed to enable
a clinically competent evaluator to assess the adequacy of the interaction.
3. Private Interviews
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The Attica SHU reports and the SHU logbooks provide documentation of the few
private interviews that have been conducted during the first period of the Stipulation.
Information from these documents has been compiled and is attached in several appendices: information from the SHU reports (Appendix C); the 2nd Rec. Logbook (Appendix D); the 3rd Rec. Logbook (Appendix E); and, both logbooks combined
(Appendix F). Each of these appendices was prepared at my direction by plaintiffs’
counsel, Sarah Kerr. These records reflect that very few private interviews were
conducted with SHU inmates by OMH staff and that this was true even for those
inmates who were active OMH patients at the time. ID1-4 Private interviews will be provided when requested by OMH staff or (not to
exceed once/week) by inmate except where: OMH staff determines private interview not indicated and so documents, or DOCS staff determines there are countervailing security issues which DOCS documents in the SHU log and which OMH documents in the OMH record.
During my interviews, several inmates reported that they had been refused
private interviews. No justification for the refusal was verbally communicated to the
inmate, and no documentation whatsoever appears in the record. Inmate records
which include “supportive psychotherapy” in the treatment plan do not reflect requests
for or the completion of private interviews. ID5 All SHU inmates continuously confined in SHU who are active patients of OMH
or are subject to a screening note or who are determined to be at substantial risk by OMH shall, unless the inmate refuses, be privately interviewed by an OMH professional at least once every three (3) months.
A procedure appears to have developed for Dr. Melendez and a mental health
counselor to periodically meet together in the hearing room outside the tier with each
active OMH inmate, and it appears that if the inmate is willing, such interviews occur at
least quarterly. This represents a substantial improvement in services.
However, there remain very substantial deficiencies in this regard: such
interviews are generally quite perfunctory - apparently less than fifteen minutes in most
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cases. Moreover, they occur in a hearing room on the tier which most of the inmates
interviewed believed entirely lacks privacy from the correction officers; indeed, several
inmates claimed that there is a microphone in the room and that what they have said
during the interview has been repeated over the loudspeaker on the tier. Although I
have no basis for determining whether or not this perception is based upon any actual
occurrences, clearly - since this room is the same room that is used for disciplinary
hearings - it is not a location likely to create an atmosphere of trust.
In addition, this procedure virtually completely bypasses those mentally ill Attica
SHU inmates who are too fearful or paranoid to leave their cells. Instead of
particular attention being paid to such inmates, virtually no attention is paid to
them at all until they become “unable to function” in SHU.4. Continuity of
Treatment IE1 Active caseload inmate treatment plan to continue upon transfer to SHU unless
and until modified according to IE3; for inmates added to OMH caseload initial treatment plans to be created in accordance with CNYPC Outpatient Record Manual.
IE2 Inmates placed in SHU following a stay at CNYPC shall have the CNYPC Discharge Summary implemented unless modified according to IE3 or are modified by OMH mental health professional based on a consideration of the treatment goals and potential effects of the SHU environment.
IE3 Whenever active OMH patient transferred to SHU,a treatment plan review will be performed within ten (10) days. The plan will be consistent with DOCS security requirements and will meet the standards in the CNYPC Outpatient Record Manual.
From my inmate and staff interviews and from my review of records, I have
observed evidence of effort to improve documentation of treatment planning, but there
is clear evidence that there has been little movement towards substantive improvement
in the treatment provided in the Attica SHU. The documentation has improved -
although in my opinion it is still not close to compliance - and there is evidence of some
compassionate, respectful interaction between mental health workers on the SHU and
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inmates, but virtually no actual treatment is being provided on the Attica SHU. Treatment plans for active OMH SHU patients almost invariably call for
"individual supportive psychotherapy,” but no such psychotherapy is actually provided only cell-side cordialities and encouragement. From my interviews with inmates, it appears that these interactions are typically seen as well-meaning, but they are brief, cursory, and entirely public; none of the inmates interviewed would consider revealing sensitive information during such an interaction.
Moreover, psychopharmacologic management generally occurs in a vacuum. From my interviews with inmates, it is clear that most do not understand why particular medications are being prescribed; often they do not even know what medication they are being prescribed, or why it was suddenly changed. They do not understand the potential benefits nor the potential side effects of such medication, and virtually no prisoner interviewed felt he had any trusting relationship with the prescribing psychiatrist. Non-compliance with prescribed medication is, therefore, exceedingly common. Thus, neither of the two modalities of treatment which are generally included in Attica SHU OMH treatment plans - medication management and supportive psychotherapy - are meaningfully provided.
The CNYPC Policy and Procedures Manual requires a consultation and team conference - “Patient Care Monitoring” (PCM) - for any inmate hospitalized at CNYPC who had been housed in a SHU setting just prior to his hospitalization. This conference is intended to address the question of whether there is a psychiatric contraindication to the inmate’s being returned to a SHU setting after discharge and, in those cases where it is concluded that the inmate can return to SHU, what alterations in his treatment need to be effected in order to prevent a recurrence of the difficulties which led to the hospitalization.
These PCM’s, which should be included in the OMH record for each SHU inmate 45

after a hospitalization at CNYPC, are accomplished only sporadically and in practice they have little substance. Many of the OMH records of inmates that had been transferred from CNYPC back to the SHU did not contain any PCM review. The PCM’s that I did review never incorporated an instruction that the patient could not tolerate a return to SHU.
At the conference during the first site tour, I requested a copy of the current OMH policies and procedures that are used to determine whether it is appropriate to send an inmate back to the SHU. I also requested information about what documents are reviewed at the time of the decision. Hal Smith, Executive Director CNYPC, indicated that there are no written criteria or policies and procedures. However, he offered to provide a memo and letter from Dr. Buscema, Acting Clinical Director of CNYPC explaining the process. The January 7, 1999 memo by Charles Buscema, M.D., Acting Clinical Director of CNYPC, that was provided in response to this request does not explain the manner in which PCM’s are conducted. The title of the memorandum suggests that the inevitability of the return to SHU is actually OMH policy: “PCM’s on Patients Discharged from CNYPC & Returning to a SHU Environment.” The content of the memorandum indicates that Dr. Buscema realized in January 1999 that in fact “patients who are returning to SHU environments upon discharge from CNYPC are still not receiving combined inpatient/outpatient PCM’s as part of the process of ‘seamless transition.’”
Finally, much of the core of psychotherapeutic rehabilitation - group interaction, recreational and occupational therapy, increased opportunity for family visitation and other interaction - is simply not available in SHU as it is presently operated. The inpatient program at CNYPC is replete with such therapies, and even the RCTP program at Attica emphasizes such treatments. Yet absolutely none of them is made available to SHU inmates no matter what the PCM or treatment plan requires. Given
46

that there is no individualized treatment offered in the Attica SHU - no private counseling sessions, no group, occupational or recreational therapy, and no educational or other rehabilitative services - it necessarily follows that the PCM process has no real treatment recommendations to make. In practice all the PCM process can do is to endorse whatever recommendations have been made by the CNYPC clinical staff for medication changes; the PCM process thus becomes entirely irrelevant and redundant - a pointless exercise.
None of the OMH records, nor any of the other documents I reviewed (such as Quality Assurance Reports) reveal any consideration or concern about this core problem in the provision of adequate mental health services in Attica SHU. 5. Patient Records IF OMH patient records for all SHU inmates shall be maintained in accordance with
the CNYPC Outpatient Medical Record Manual.
In my record review, I did not find that the Attica OMH staff were in compliance with this requirement. Some of the records reviewed, however, did include reference to some other evaluation prepared elsewhere; most commonly, this was an inpatient document from a CNYPC hospitalization (such as a discharge summary). These latter documents were generally detailed and reasonably comprehensive, and in themselves, might well comply with the adequacy criteria above. However, in no case did an Attica OMH record adequately reflect information that was required by provisions of the Eng Stipulation.
Attica SHU psychiatric evaluations which did not properly refer to the prior documentation of mental illness were uniformly devoid of sufficient psychiatric information to form the basis for an adequate assessment of an inmate’s past psychiatric and psychosocial history or his current treatment needs.
Despite this negative conclusion, however, it should also be stated that there is
47

clear evidence of increased effort here and of some movement towards compliance.
There is more in the charts than in the years prior to the Eng Stipulation, but it is still
inadequate.
6. Quality Assurance IG1 CNYPC will ensure all mental health professionals conducting assessments
described in the Stipulation shall be aware of the standard of review and steps required for adequate assessment and the steps that must be taken if SHU is contraindicated.
IG2 CNYPC will ensure all OMH staff responsible for monitoring or other contacts with SHU inmates shall be aware of the standards and steps necessary to adequately determine an inmate at risk, in need of intervention and steps to be taken in response.
IG3. CNYPC shall periodically review SHU assessments and OMH monitoring activity to ensure they are accomplished professionally and in accordance with Stipulation. Review information to be maintained at CNYPC. Adverse findings shall be reviewed with OMH staff and a plan of corrective action taken.
IG4 CNYPC shall promptly review the decision to transfer to SHU any inmate who previously deteriorated psychiatrically in any SHU unit, in order to assess the appropriateness of such decision, the adequacy of the documentation, and to ensure the decision is consistent with the terms of this Stipulation.
As documented throughout this report, there has been a widespread failure of
compliance by OMH staff with important requirements of the Stipulation. OMH staff do
not make adequate assessments and the response to at risk inmates is very limited
(e.g. OMH rarely if ever intervenes to have an identified at risk inmate housed in a
location other than SHU, psychiatric treatment plans which require supportive
psychotherapy are simply not followed in any substantively meaningful manner, and
treatment plans do not reflect the necessary concern about monitoring for
deterioration).
All OMH quality assurance documents from the date of the Stipulation March 6,
1998 through October 27, 1998, were requested in the document request for this first
site visit, which was dated October 27, 1999. After the site visit we received 3 one
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paged sheets prepared by Mr. Karker and 18 one paged sheets prepared by either Dr. Chaudhri or Dr. Faruki at CNYPC. In addition we received the minutes from the March Quality Assurance - Eng meeting notes.
The three documents prepared by Mr. Karker each indicate a review of 6 Eng Stipulation requirements for a specified one month period: 1) assessment completed within one working day; 2) review of OMH records to determine current OMH status and OMH history; 3) 10 hours per week clinical presence in SHU; 4) OMH review of DOCS SHU logs; 5) movement of SHU inmates to OMH within 48 hours of being determined to require immediate treatment/evaluation in a mental health setting or to be at substantial risk of serious mental or emotional deterioration if maintained in SHU; 6) access to private interviews: Not to exceed once a week for SHU inmates who request such interviews and, at least once every three months for active OMH patients, inmates subject to a screening note or inmates determined by OMH to be at substantial risk. One form was completed on November 12, 1998, one on December 23, 1998 and the third was completed on January 12, 1999. No similar documents were provided to cover the first eight months of the Stipulation and these three reviews were not completed until after we requested documents in preparation of this first tour. It appears from the documents that nothing was done to comply until we asked for the documents.
Each of these three forms indicate in the column “Corrective Action” that the lack of private interviews needs to be addressed. The form dated January 12, 1999 indicates that a meeting was held on January 6, 1999, a monitoring form was generated, and someone met with the Superintendent to discuss a plan to get inmates out of cells for interviews.
The eighteen documents prepared by Dr. Chaudhri or Dr. Faruki purport to each review one inmate record to monitor 4 Eng Stipulation requirements which are listed on
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the form as: 1) Screening on admission to SHU: Documentation of determination that inmate has a severe mental disorder or severe depression and is currently exhibiting symptoms which requires immediate treatment/evaluation in MH setting; 2) Screening on Admission to SHU: Documentation of determination that inmate who is an active patient does not require removal from SHU. The assessment is to include a recommended plan of MH treatment while in SHU; 3) Screening on Admission to SHU: documentation of the fact that an inmate has previously developed a severe mental disorder, suffered an acute exacerbation of a preexisting mental disorder or otherwise substantially deteriorated while in any SHU. If Inmate may be placed in SHU despite such a history, assessment is to include the basis for that decision and the steps that will be taken to monitor the inmate for a recurrence while he is in SHU; 4) Periodic Monitoring of SHU Inmates: When the decision is made that an inmate removed from SHU for treatment and evaluation may be returned to SHU the documentation shall address any changes in the treatment plan which reflect the issues which contributed to an inability to function in a SHU environment, a consideration of possible warning signs of deterioration and a plan for monitoring such signs.
All of the eighteen forms were completed during the three business days prior to our site visit. They each indicate an ending date for the relevant monitoring period of December 23, 1998 and have left blank the area for the starting date of the monitoring period. Again, it appears that nothing was done to comply until we requested documents. It is doubtful that any of these reviews are compliant with the IG4 requirement of a “prompt review.” This is a serious area of non-compliance. The failure to make a prompt review in compliance with IG4 may result in the inappropriate placement in SHU of an inmate who is known not to be able to tolerate a SHU environment. Because the forms that were provided do not indicate the name or the inmate number for the inmate whose chart was reviewed I am unable to address
50

specific failures in the quality assurance review that may have occurred - I do not have the information to know which inmate and which transfer gave rise to the review in the documentation.
Although it is not clear whether or not one of these forms is filled out for each inmate admitted to the SHU (or only for active OMH or prior OMH patients admitted to the SHU) it is clear that many more than 18 of these forms should have been completed between March 6, 1998 and October 27, 1998. Logically there should be a form filled out for each and every inmate admitted to the SHU. Otherwise, CNYPC would not be able to review whether or not the assessment included a complete review of the OMH records and accurately identified an inmate not on the active OMH list but who has had prior OMH history including prior psychiatric deterioration in a SHU setting. DOCS counsel represented that these forms are supposed to be prepared for all inmates who have been returned to SHU from an OMH setting - either CNYPC or the Attica Satellite Unit. Regardless, during the time period covered by the document request there were more than eighteen occasions that resulted in one of the following: the admission of a SHU inmate with a prior OMH involvement to the Unit; an inmate admitted to the SHU from the Satellite Unit at Attica; or an inmate admitted to the SHU from CNYPC. (Inmate records, logbook entries, and other documentation reflect more than 18 occasions.)
In all of the 18 forms that were produced, Dr. Chaudhri and Dr. Faruki found proper documentation and determination of whether the inmate has a severe mental disorder or severe depression and is currently exhibiting symptoms which requires immediate treatment/evaluation in MH setting and proper documentation and determination of whether the inmate who is an active patient does not require removal from SHU - assessment to include a recommended plan of MH treatment while in SHU. (One form did contain a note that an earlier assessment by the psychiatrist would have
51

been more useful.) Since I, on the other hand, found virtually no adequate effort in any of the charts which I reviewed, I find this discrepancy puzzling.
In four of the eighteen reviews, Dr. Chaudhri did find cases where inmates who previously suffered deterioration in a SHU setting, were returned to SHU without the record reflecting an adequate justification for the placement in SHU and/or without any monitoring plan in the record as is required so that signs of deterioration are detected. However, in each case, Dr. Chaudhri’s recommendation solely indicated the need to better document the decision that was already made. At no point does Dr. Chaudhri express or raise an alarm about the possibility that decisions based on these inadequate records are simply wrong. His recommendations never include consideration of the possibility that a case may represent one of unrecognized clinical danger - that perhaps this inmate really should not have been placed in the SHU.
Other than these two forms - the one filled out by Mr. Karker and the one filled out by Drs. Chaudhri and Faruki - no other quality assurance documents have been provided. These two forms simply do not cover all of the Stipulation’s provisions that are supposed to be subject to a quality assurance review by CNYPC (e.g. conformity of OMH record entries with the CNYPC Manuals, Stipulation IE1, IE3, IF; implementation of the CNYPC discharge treatment plans, Stipulation IE2). IG5 CNYPC maintains JCAHO Certification and provides relevant documentation to
plaintiffs.
OMH senior staff are justifiably proud of the Three Year Accreditation their services have received from JCAHO. However, the JCAHO process is not designed to address the special mental health issues in a correctional setting, and specifically declines to review decisions justified by "security" considerations.
Thus, the JCAHO process intrinsically has severe limitations on its applicability to SHU inmates - limitations which are in fact explicitly stated in the December 14, 1998
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JCAHO report regarding CNYPC. For example, in regard to Psychiatric Satellite Units at the various New York State Correctional Facilities, the JCAHO report states explicitly that it will not review decisions to house SHU inmates in isolated Mental Observation cells on the Satellite Unit, rather than in dorm settings, because such decisions are justified by DOCS on the grounds of "security”; it will, on the other hand, be willing to review the use of these cells for General Population inmates, in circumstances when the justification for their use is "clinical.”
Furthermore, JCAHO commends CNYPC's Satellite Units for their attention to the needs of inmates for education and for personal dignity. For example, they specifically commended CNYPC for the fact that 80% of the Satellite Unit inmates’ learning needs, abilities and readiness were properly addressed, and for the fact that 80% of resident sleeping rooms had hanging pictures and/or pressboards in order to display personal mementos. Clearly, JCAHO recognizes that such amenities are important in psychiatric treatment, but does not see itself as in a position to comment upon the absence of such amenities for SHU inmates.
JCAHO finds CNYPC in compliance on many other features of good psychiatric care - family involvement, academic education, and so forth - these too have absolutely no relevance to the SHU inmate. The process simply does not examine the treatment issues raised by SHU confinement.
7. Notification and Training of Staff IH1-2 DOCS staff regularly assigned to SHU and all OMH staff having contact with
SHU shall be informed of the requirements of the Stipulation, and shall be required to participate in training to recognize and respond appropriately to the psychological needs of SHU inmates.
I have reviewed the syllabus of the July 1998 training seminar for DOCS staff, a joint effort of OMH and DOCS, and generally found it impressive, and in substantial
53

compliance with the requirements of the Stipulation. I would, however, suggest that some education be provided regarding disorders very commonly seen among SHU inmates, which are associated with heightened psychiatric risk. These include Attention Deficit Hyperactivity Disorder, and the various forms of Impulse Control and Atypical and Organic Mood and Affective Disorders. Moreover, the syllabus should be aimed to increase awareness of the importance of observations of changes in the inmate’s daily functioning and behavior - for example, his sleeping and eating habits, how much time he spends exercising or reading, as opposed to just lying in his bunk, a change in his hygiene, or in his willingness to talk with staff and so forth.
I have no information whether any procedure has been established to ensure periodic updating and retraining, nor whether there is a procedure to ensure that new DOCS and OMH SHU staff are provided such training. Such procedures are, of course, required for compliance with the Stipulation.
Moreover, I have no information as to whether DOCS personnel have been provided a copy of the Stipulation and been given specific information regarding the requirements therein.
8. Deprivation of Items II1,2 Deprivation of Items in the MHU.
I have no information regarding the policies and procedures now in force regarding clothing, mattresses, blankets and toilet paper for SHU inmates housed in Mental Observation cells. I hope to explore this issue during our next site visit.
I am aware, however, that several inmates complained during my interview with them that they had been kept in Mental Observation for prolonged periods of time with none of these amenities. 9. Identification of Inmates for Whom SHU is Contraindicated and Provision of
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Alternate Placement
Removal of Inmates from SHU and identification of inmates contra-indicated for SHU Numerous provisions of the Stipulation require that OMH identify inmates who
are contra-indicated for SHU placement based on their prior history or based on their deterioration while in SHU (e.g. IA1, 1B, 1C6-7). There appears, in practice and in expressed policy, to be no attempt whatsoever to come into compliance with these critical provisions of the Eng Stipulation. In practice, as illustrated in the Inmate Profiles described earlier in this report, mentally ill inmates are transferred from SHU only when the inmate is floridly agitated or otherwise at immediate risk to himself or others. Then, after this dramatic symptomatology abates - after either a few days in the Satellite Unit mental observation cell, or a more extended period of hospitalization at CNYPC - the inmate, often in an extremely precarious psychological state, is returned to Attica SHU to continue his term of punishment. [redacted section]
Stipulation provision IA1 is simply not this limited. IA1 states: “in no case shall an inmate known to be currently suffering from a severe mental disorder or severe depression and who is currently exhibiting symptomatology which requires immediate treatment/evaluation in a mental health setting or who is known to be at substantial risk of serious mental or emotional deterioration, be placed or maintained in SHU.” At no point in the Stipulation is “symptomatology” or “risk of deterioration” limited to “imminent danger to self or others.” [redacted section]
OMH staff have set the hurdle exceptionally high: only when such overt deterioration results in an “inability to function” in SHU, must transfer be considered. Inability to function is in turn defined as deterioration to the point of “imminent danger to self or others” or extreme psychotic symptomatology. Consequently extremely mentally
55

ill inmates continue to be trapped in the revolving door of SHU-to-mental health settingto SHU with OMH failing ever to intervene as the Stipulation requires.
The inexcusable paradox that exists, due to the manner that the Stipulation is being implemented and the manner that Attica OMH staff view inmates in their care, is that the very behaviors that evidence mental deterioration (e.g. refusing medications, attempts to lacerate or hang oneself, refusing to leave one’s cell for any purpose, smearing and throwing feces) are the behaviors that are interpreted as “manipulating” in order to get out of SHU and, therefore, result in OMH’s refusal to transfer the inmate. There is no way to meet the standard - no way to escape the revolving door.
The inmate profiles detailed earlier in this report illustrate that tragically this practice is precisely what is currently in place. In addition, as part of the site visit, I reviewed copies of the Attica Weekly SHU Clinical Review Meetings. These meetings included Scott Clair, Bruce Barten, and Dr. Melendez. The minutes of these meetings cite many examples of obviously psychotic symptomatology and bizarre behavior among SHU inmates, and no felt need by these OMH staff to intervene. They also contain examples of extremely glib choices to interpret bizarre behavior as “just manipulating.” For example: “Seeks staff attention by asking questions about a variety of topics, such as ‘the brain’”; “Acting out behaviors persist. Smearing feces on floor in order to disturb neighboring inmates.”; “His bizarre behavior continues, but is baseline for him.”; “does experience religious delusions but is in no distress.”
These weekly meetings are extremely brief - generally about twenty minutes in length. There is no documentation of any in depth discussion of any ill SHU inmate. And never, in any of these meetings, or in any document provided to us by Attica OMH staff, is there any discussion of the possibility that any inmate is simply too chronically fragile to be capable of tolerating SHU confinement. The meeting documents an unacceptable willingness to retain severely ill, psychiatrically deteriorating inmates in
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SHU. Indeed, only when such overt deterioration results in an “inability to function” in SHU, must transfer be considered.
10. Failure to Adequately Review OMH Records Review of prior OMH records
Many clauses of the Stipulation require OMH staff to review and utilize information available in the inmate’s prior OMH and other psychiatric records. This activity is critical in the formulation of any competent psychiatric evaluation and treatment plan, and the Stipulation incorporates the importance of such activity throughout its provisions. (See Appendix G for a summary of all of the references to prior OMH records.) However, despite the evident importance of reviewing prior records, Attica OMH staff often failed even to cite the existence of such prior records, or the fact that they had been reviewed. Moreover, even when the Attica OMH staff stated that such records had been reviewed, the substantive content of such records was almost never described, and virtually never was any actual information from such prior records incorporated in the Attica psychiatric evaluation and treatment plan documents.
The net effect of non-compliance with these requirements is that Attica SHU OMH staff fail to utilize the information in the inmates’ prior psychiatric records in a manner consistent with any reasonable standard of clinical practice - including the standards stated in CNYPC’s own Policy and Procedure Manual. The records I reviewed reflect this non-compliance. The evaluation of an inmate’s present situation is unacceptably ahistorical. Each moment of observation becomes an event unto itself devoid of any attempt at meaningful integration of past events and observations with present observations. This modus operandi irretrievably compromises assessment and diagnosis.
This failure of historical synthesis allows the Attica SHU OMH staff to glibly 57

describe an individual as, today, “Not mentally ill,” even though yesterday - and recurrently - he was manifestly and quite dramatically ill. This non-compliance also results in the staff to over diagnosing “malingering” and “only manipulating”; rather than making an actual valid clinical assessment of the inmate.

V. Summary and Conclusions

Although this site visit did reveal evidence of some efforts to improve

procedurally the psychiatric services available on the Attica SHU from the situation

prevailing prior to the Eng litigation, I unfortunately must conclude that no substantively

meaningful improvement has yet taken place.

As stated earlier in this report, the Eng Stipulation was constructed to address

serious and potentially fatal deficiencies in the management of severe psychiatric

illness found among inmates in the Attica SHU, and in the staff’s unconscionable

attitude of scorn and indifference in the face of the massive psychiatric deterioration

occurring among Attica SHU inmates under their care. Those deficiencies fell into two

broad categories:

1.

Case-Finding - Evaluation & Monitoring: Inmates admitted to SHU

were not screened psychiatrically, and their psychiatric status was not

periodically monitored. Inmates with previously documented psychiatric illness

did not receive adequate evaluation at the time of SHU admission, nor - despite

the fact that SHU is by intent designed to be psychologically punishing - did

those evaluations address the inmate’s potential vulnerability to psychiatric

decompensation during such punitive SHU confinement. Moreover, given the

inadequate or non-existent psychiatric monitoring of SHU inmates, inmates who

developed psychiatric illness during such confinement, or for whom such

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confinement caused an exacerbation of previously existing psychiatric illness,

were not identified or meaningfully evaluated.

2.

Response to Identified Psychiatric Difficulties - Alternate Housing &

Treatment in SHU: there was a shocking indifference to the serious psychiatric

illness observed among Attica SHU inmates. Virtually no meaningful treatment

was offered. There was an attitude of “punishment at all costs” - even at the cost

of death itself. Those who could not tolerate punitive SHU confinement would

only be relieved from it when their “inability to function in SHU” had become

grotesquely apparent, and even then, the relief would be unconscionably brief;

they would be patched up just enough so that they could be once again returned

to an environment which they manifestly were unable to tolerate.

Unfortunately, despite some pockets of improvement, these deficiencies essentially continue to be present, without any substantively meaningful change. I do hope, however, that the comments which follow will not be perceived as a condemnation of the individuals employed at the Attica SHU. During my site visit, I felt from some senior officials - including Hal Smith, Bruce Bradigan, and Scott Clair - a genuine desire to accomplish and to improve conditions. Moreover, my interviews with inmates also revealed that Bruce Barten - the OMH staff member most visible on the SHU - is generally thought of as kind and well-meaning; fewer inmates have contact with Scott Clair, but those who knew of him also had generally positive feelings towards him.
These conclusions, then, are not about individuals. They are about a system which, in my view, has not yet demonstrated the will to change:

1. Case-Finding 59

Evaluation The psychiatric evaluation of Attica SHU inmates are in general grossly
inadequate. They often are little more than glib “impressions” of a diagnosis - almost entirely of the moment, without any meaningful attempt to integrate the past psychiatric and psychosocial history into the assessment of current behavior. They are in general grossly below the standards created by CNYPC itself, in its Policy and Procedure Manual.
Moreover, their very inadequacy - their momentary, ahistorical, basis - allows staff members to repeatedly diagnose psychotic behavior as something less (e.g. “malingering,” “manipulating,” “pursuing his own agenda to get out of SHU”). There continues to be a predilection to view inmate behavior as “manipulative” and hence of no cause for serious concern. This characterization, often made without any meaningful effort at evaluation and differential diagnosis, often results in staff dismissing and ignoring symptoms of severe mental illness.
At the same time, I wish to note that there have been some improvements here. The quality of the evaluations is better than it was in the 1980"s. Moreover, prior to Eng, Attica SHU inmates who were not on the active OMH caseload generally received no psychiatric evaluation at all; this has clearly changed for the better. Periodic Monitoring
In many respects, this is the area of most noticeable improvement. Rounds are being done regularly. There are procedures in place for periodic review of all SHU inmates - even those not on the active OMH caseload. OMH staff does seem to review DOCS staff’s observations and logbook recordings. All of this represents a very substantial, and very welcome, improvement in the quality of services provided.
At the same time, there remain serious deficiencies in the use of these observations by OMH staff. The observation of disturbed behavior often actually yields
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nothing; the disturbed behavior continues to be observed day after day, but then simply ignored; there is no adequate response to the observation.
2. Response to Identified Problems Psychiatric Treatment for Attica SHU Inmates
The psychiatric treatment available to Attica SHU inmates remains grossly inadequate - indeed, in many respects, non-existent. In the SHU itself, there is no opportunity whatsoever for private, individual psychotherapy, let alone any other form of expressive therapy, or group, occupational, or recreational therapy. The only “therapy” provided is brief, cell-side chats with the unit counselor, conducted as part of his “rounds” on the SHU. This is the case even when a discharge summary from a CNYPC hospitalization specifically recommends the need for privacy in continuing psychotherapy. Medications are offered, but there is no meaningful opportunity for inmates to develop a trusting relationship with the unit psychiatrist, and little or no meaningful effort to engage them in such a relationship; thus, inevitably, medication non-compliance by inmates is rampant.
When an Attica SHU inmate becomes clearly incapable of tolerating SHU, the only alternative offered at Attica is - generally very brief - confinement in an isolated Mental Observation cell in the Psychiatric Satellite Unit. Such confinement, however, does not provide any amelioration of the inmate’s conditions; indeed, in many ways it involves more deprivation than exists in the Attica SHU cells - including deprivation of clothing, bedding, or any personal effects or reading material. Alternate Housing for those Inmates Incapable of Tolerating SHU
Inmates who are deemed to be incapable of remaining at Attica are sometimes psychiatrically committed to CNYPC. Very ill inmates often recompensate dramatically during such hospitalization; this clearly must be a tribute to the clinical work being done
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at the hospital. However, in practice - and in the expressed view of Hal Smith, Director of OMH
Forensic Services - CNYPC does not view itself as having the responsibility for longterm care of behaviorally disruptive, psychiatrically ill inmates. Thus, once an Attica SHU inmate sufficiently recompensates at CNYPC, he is routinely returned to Attica, where he is inevitably returned to the SHU.
The result is a “revolving door” pattern of psychiatric deterioration in SHU, leading to transfer to CNYPC, only to once again result in another round of SHU confinement and decompensation. This pattern remains as prevalent today as it was at the time of the initial preliminary injunction in the Eng lawsuit. It is a pattern of conduct which directly violates one of the most central foundations of the Eng Stipulation.
Moreover, the Eng Stipulation called for review of any inmate who had been committed to CNYPC from the Attica SHU upon their return to Attica. Stipulation IE. This review would consider both the appropriateness of the inmate’s returning to SHU and - for those evaluated as capable of doing so - would describe adjustments in planning to prevent recurrence of the difficulties which had resulted in hospitalization.
These reviews (the Patient Care Monitoring - “PCM” reviews) are not being done consistently. More critically, as demonstrated in the body of this report, these PCM’s have proven virtually worthless. The actual intent of the reviews has explicitly not been to consider whether a prior SHU inmate should be returned to SHU, but rather only to review such inmates before they do return. There is simply no expectation whatsoever that the result of the review will be a recommendation for no return. It never happens, and there is no apparent intent of it happening.
Thus, the only alternative might be for the PCM to recommend changes in the treatment plan in Attica SHU to prevent a recurrence. But since there is no treatment offered at Attica SHU except medication and cell-side chats, the PCM review in reality
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consists of nothing more than the endorsing of whatever medication recommendations were already made by the CNYPC clinician. Given these realities, the PCM process becomes a sham - a pointless exercise. Recommendations
There are a number of very concrete steps which could be taken to address issues raised in this report. By implication, the report itself suggests these steps. However, in this First Report, I think it less important to provide a lengthy list of recommendations, than it is to suggest that there is one central, pivotal issue, an issue which, in my opinion, drives many of the other observed deficiencies and systemic failures: No long-term treatment and housing options have been developed for the recurrently ill, recurrently behaviorally disruptive, Attica SHU inmate.
As a result of this reality, the “revolving door” of decompensation in SHU leading to brief respite and then return to the toxic SHU environment, continues basically unabated. Mentally ill inmates continue to be housed in SHU even after they have recurrently become floridly ill and out of control in that setting. OMH’s failure to intervene in this reality - its failure to state that there are individuals incapable of tolerating Attica SHU - pulls OMH staff away from professional integrity, and towards a hostile, cynical attitude towards those inmates. Overidentifying “malingering” and “manipulation” becomes a very convenient explanation, shielding staff from acknowledging its complicity in a situation which defies any standard of professional integrity.
An earlier class-action lawsuit concerning Bedford Hills Correctional Facility Langley v. Coughlin, in which, as in this case, I served as one of plaintiff’s experts, addressed many of the same issues raised in Eng. The settlement of that lawsuit resulted in DOCS recognition that much of the bedlam prevailing in Bedford Hills SHU was a product of the mental illness prevalent there. DOCS agreed to transfer many of
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these SHU inmates to a newly configured long-term residential program (an Intermediate Care Program - “ICP”) jointly administered by DOCS and OMH.
______________________________ Dr. Stuart Grassian Dated:June , 1999
Chestnut Hill, MA
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APPENDIX A 65

APPENDIX B 66

APPENDIX C 67

68

APPENDIX A ENG STIPULATION REFERENCES TO PRIOR OMH RECORDS
The following reflect all of the Stipulation references to inmates’ prior psychiatric
records: IA1 Requires the OMH staff to determine whether the inmate “is known to be at
substantial risk of serious mental or emotional deterioration.”
IB1 Requires the initial assessment to include a review of OMH records “to determine whether the inmate is on its active caseload, or has previously received mental health treatment while in the custody of DOCS.”
IB2 Requires OMH to determine during the assessment whether “the inmate has a severe mental disorder or severe depression and is currently exhibiting symptomatology . . . or is at substantial risk of serious mental or emotional deterioration if sent to SHU.”
IB3 Requires OMH to use the assessment information from the prior history to recommend a “plan for mental health treatment during the time the inmate is confined in SHU.”
IB4 Requires OMH to specifically indicate in their assessment whether or not the inmate “has previously developed a severe mental disorder, suffered an acute exacerbation of a preexisting mental disorder or otherwise substantially deteriorated mentally or emotionally while in a special housing unit at any facility.”
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The seriousness of placing a mentally ill inmate into a SHU with knowledge of prior psychiatric deterioration in a SHU setting is specifically addressed by this provision:

3.

A clinical decision to place an inmate with such a history into the SHU

requires that the assessment includes the “basis for the conclusion” and “shall

describe steps that will be taken to monitor the inmate for a recurrence of such

symptoms while he is in SHU.”

4.

The provision also requires that this serious and risky clinical decision is to

be “promptly review[ed]” by CNYPC “to ensure that it is consistent with the terms

of this Stipulation.” IG4.

IE The provisions of this section require that OMH continue with the treatment plans that inmates have on entry to the SHU and that a treatment plan review be performed within ten days of admission to the SHU to create a treatment plan “consistent with DOCS security requirements, but which also meets the standards set forth in the CNYPC Outpatient Record Manual.”

IG4 Requires that CNYPC “promptly review” the decisions and documentation of OMH staff whenever “an inmate who previously had developed a severe mental disorder or suffered an acute exacerbation of preexisting mental disorder or otherwise substantially deteriorated mentally or emotionally in a special housing unit is approved for transfer to SHU.”

The following provisions require that the inmate’s OMH records properly reflect evidence of

deterioration in SHU and the importance of providing services for inmates who are found to

suffer psychiatrically in the SHU setting.

IC6 Requires that whenever OMH “determines that a SHU inmate has exhibited symptoms or behavior that his mental health is deteriorating . . . a further OMH mental health assessment” is required within one day.
IC7 Requires OMH to “request that the inmate be moved” when the re-assessment indicates “the inmate has developed a severe mental disorder or suffered an acute exacerbation of a preexisting mental disorder . . . or emotional deterioration if maintained in SHU.”
IC8 For an inmate removed from SHU for “treatment or evaluation” a clinical conclusion that “the inmate may be returned to SHU . . . shall be documented” and “such documentation shall address any changes in treatment plan that reflect those issues which contributed to an inability to function in the SHU environment, a consideration of possible warning signs that may indicate that his mental health is seriously deteriorating and a plan to monitor for such signs.” A decision to return an inmate to SHU is subject to “prompt” CNYPC quality assurance review. IG4
IF Requires OMH to keep records in accordance with “the requirements and standards as set forth in the CNYPC Outpatient Medical Record Manual.”

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INMATE A’S OMH RECORD PRIOR TO MARCH 1998
Inmate A was initially incarcerated in 1991, and from 1991 until June 1993 was housed at Downstate Correctional Facility. While there, he was noted to be seriously mentally ill, and was diagnosed as having a Bipolar Mood Disorder with Psychotic Features, along with a substance abuse problem. Towards the end of this period of incarceration - in April 1993 - he psychiatrically decompensated and was admitted in a psychotic, manic state to a Psychiatric Satellite Unit at Downstate.
In July 1993, Inmate A was transferred to Attica, where he was initially housed in general population. He was impulsive, at times agitated and hostile, and he was frequently keeplocked over the following months. In May 1994, Inmate A was stabbed in a fight in the yard at Attica, and shortly thereafter, he was transferred to involuntary protective custody, where over the next months, he began to psychiatrically decompensate.
By August 1994, when he was transferred from Attica to Great Meadow Correctional Facility, Inmate A was noted to have become once again manic and psychotic - agitated, incoherent, and delusional, with pressured speech and disorganized thoughts. He had developed the delusional belief that he had to drink excessive amounts of coffee, that spirits were talking to him, and that there soon would be blood.
At Great Meadow, Inmate A was noted to be wild eyed, agitated, his feet bouncing repetititvely on the floor; his mood was elated and excited, his thoughts racing, and his speech pressured. He was hearing voices - apparently of the judge who had sentenced him in his murder trial - telling him to “Die, die, die.” He had the delusional conviction that this judge had orchestrated his stabbing several months
2

previously at Attica. These problems continued over the next months; in October 1994, for example he was described as highly agitated, fearful and delusional, believing he had to kill a Correctional Officer before this Officer killed him.
One month later, in November 1994, Inmate A was transferred from Great Meadow to Auburn. While housed there, he remained in a psychotic, fearful, agitated state. In March 1995, for example, he was noted to still be agitated, delusional, and with bizarre thinking and loose associations.
A few months later, in September 1995, Inmate A was transferred to Green Haven. He remained there until July 1997, when he was transferred to the Attica SHU. The records available to me shed little light on Inmate A’s course in Green Haven after December 1995, when he was still apparently agitated, paranoid, and fearful of being killed. It would appear, however, that his psychiatric status must have improved substantially during this period of his incarceration, since his OMH needs level was changed at Green Haven at some point from Level 1 (the highest level of need) to Level 6 (not requiring mental health services).
In any case, in July 1997, Inmate A was transferred to the Attica SHU. Within one or two days of this transfer, he had become agitated, delusional and paranoid, and was noted to be experiencing auditory hallucinations of a voice (apparently this same sentencing judge) commanding him to kill himself and others, and specifically to kill himself by hanging. On July 10, 1997, his OMH needs level was changed once again to Level 1, and on that date he was admitted to the Attica Psychiatric Satellite Unit (an OMH satellite unit) on suicidal watch. He was refusing to eat because he believed the Correction Officers were poisoning his food, and he was noted to be confused and disoriented. The day after he was first housed in Mental Observation, he expressed relief because the judge had not carried through on his threat, and had left him in peace the previous night. He said that he was willing to go back to SHU as long as he could
2

be reassured that the judge would not visit him again. By July 15, 1997, he was noted to be much improved - less agitated and
confused, and without active suicidal ideation. He was then returned to SHU, and to a plexiglass-faced cell; his pleas that day to be placed in some alternative setting, were ignored.
Within two days, by July 17, 1997, he was noted to have become once again agitated and fearful. He began refusing to take the antipsychotic medication, haldol, which had been prescribed for him while he was in Mental Observation. Over the next months, he deteriorated psychiatrically. By September 10, 1997, when he was interviewed while he was behind plexiglass in the Attica SHU, he was noted to be agitated and disoriented, his speech pressured, and he was experiencing command hallucinations and delusional thoughts. He was convinced that his sentencing judge was going to visit his cell that night and question him, and that the judge would order him to hang himself with a noose made from his bed sheets tied to bars of his cell. He would have not choice but to follow the judges orders.
He had not attempted to kill himself over the following month, but he had apparently reported being visited by the judge. On October 10, he asked to receive part of his mental health record because the judge had ordered him to provide him semiannual updates.
In January 1998, for no stated reason, Inmate A’s OMH needs level was lowered from 1 to 2, a lesser level of need. He remained at Level 2 for the rest of his life. His actual mental health needs did not, however, in any manner correspond with this lower designation. Within a month, by February 12, 1998, he had become overtly agitated and delusional - convinced the fact that his nose was running was proof that the Attica staff were poisoning his food. He was having command hallucinations of the voice of his sentencing judge, ordering him to kill some Correction Officers. He was so agitated,
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labile and confused - his thought processes illogical and disorganized - that he could not be engaged in any coherent conversation at all. He was placed in the Attica Satellite Unit, where the psychiatric team declared only: “Possible malingering.” Yet Inmate A remained delusional and strikingly disorganized; finally, on February 17, he was committed to CNYPC for treatment.
4

 
 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK______

GEORGE ENG, et. al. Plaintiffs,

-

vs-

AMENDED RULE 41 VOLUNTARY STIPULATION OF DISMISSAL SUBJECT TO CONDITIONS

GLENN GOORD, Commissioner of Corrections for the State of New York; JAMES L. STONE, Commissioner of Office of Mental Health for the State of New York, et. al.,
Defendants. _______________________________________

Civ 80-385S

The parties hereto, by their attorneys, hereby stipulate and agree as follows:

WHEREAS this action challenging living conditions and practices in the Special

Housing Unit at Attica Correctional Facility as violative of inmates confined therein

under the First, Sixth, Eighth and Fourteenth Amendments of the United States

constitution was filed by the plaintiffs on May 6, 1980; and

WHEREAS, on January 27, 1987, this court per Hon. Michael A. Telesca, D.J.

ordered that the Commissioner of the New York State Office of Mental Health be named

as a defendant, with regard to the plaintiffs’ claims as they relate to mental health care;

and

WHEREAS the Defendants have denied that they have violated Plaintiffs’

constitutional rights; and

WHEREAS this court per Hon. Michael A. Telesca D.J. granted Plaintiffs’ motion

for preliminary injunction on January 29, 1988 and the Court of Appeals for the Second

Circuit affirmed the court’s order in an opinion dated June 13, 1988; and

WHEREAS the parties have conducted extensive discovery; and WHEREAS counsel for the plaintiffs and defendants without conceding any infirmity in their claims or defenses, have subsequently engaged in negotiations to resolve the plaintiffs’ claims as they relate to mental health care; WHEREAS counsel for the plaintiffs and defendants have subsequently agreed to amend the Rule 41 Voluntary Stipulation of Dismissal Subject to Conditions; IT IS HEREBY STIPULATED AND AGREED by and between the attorneys for the parties as follows: DEFINITIONS AND ABBREVIATIONS A. “Attica” shall mean Attica Correctional Facility. B. “SHU” shall mean the disciplinary Special Housing Unit at Attica. C. “DOCS” shall mean the New York State Department of Correctional Services. D. “OMH” shall mean the New York State Office of Mental Health. E. “PLS” shall mean Prisoners’ Legal Services. F. “CNYPC” shall mean the Central New York Psychiatric Center in Marcy, New York. G. “Outpatient Medical Record Manual” shall mean the CNYPC Outpatient Medical Record Manual, a copy of which is appended hereto as Exhibit 1. H. “Satellite Unit” shall mean CNYPC’s outpatient unit at Attica and shall include the Residential Crisis Treatment Program and outpatient caseload. I. “Mental Health Professional” shall mean a medical or non-medical mental health professional employed by OMH. J. “Active patient” or “active OMH patient” shall mean an inmate who has been admitted to OMH caseload and is currently receiving OMH services. K. “Working day” shall mean any day other than Saturday, Sunday or a legal
2

holiday. L. “STP” shall mean the Special Treatment Program for mentally ill SHU inmates in
need of enhanced outpatient mental health interventions at Attica Correctional Facility.
I. SUBSTANTIVE PROVISIONS
M. No Seriously Mentally Ill Inmates in SHU
1. Subject to paragraph 2 herein, in no case shall an inmate known to be currently suffering from a severe mental disorder or severe depression and who is currently exhibiting symptomatology which requires immediate treatment/evaluation in a mental health setting or who is known to be at substantial risk of serious mental or emotional deterioration, be placed or maintained in SHU.
2. Where an inmate does not appear to require immediate hospitalization in CNYPC, but is clinically indicated to require observation or treatment or both in a location other than SHU, and such observation and/or treatment cannot be provided in the Satellite Unit due to lack of mental observation cell space on that unit, such inmate may be housed temporarily in SHU until appropriate space becomes available. For the purpose of this sub-section, such temporary placement in SHU may be maintained for no longer than two (2) working days. In all such cases, the fact of such temporary placement in SHU and the reasons therefore shall be noted in a progress not in the inmate’s Satellite Unit record.
B. Screening on Admission to SHU
3. A mental health professional will conduct an assessment within one working day of any inmate’s placement in SHU. Such an assessment shall include a review of OMH records to determine whether the inmate is on its active caseload, or has previously received mental health treatment while in the custody of DOCS.
4. If the mental health professional, upon conducting the assessment, determines that the inmate has a severe mental disorder or severe depression and is currently exhibiting symptomatology which requires immediate treatment/evaluation in a mental health setting or is at substantial risk of serious mental or emotional deterioration if sent to SHU, (s)he shall inform the officer in charge of SHU, and request that the inmate be moved.
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The officer in charge of SHU shall immediately inform the watch commander of this determination. The inmate shall then be promptly moved from SHU to an observation cell in the Satellite Unit, to CNYPC or upon the request of OMH and only with the approval of DOCS, to another location and such inmate shall be provided with appropriate mental health services, subject to paragraph I (A)(2).
5. If the mental health professional clinically concludes that the inmate may be placed in SHU, and the inmate is an active OMH patient or is admitted to the OMH caseload, the assessment shall also include a recommended plan for mental health treatment during the time the inmate is confined in SHU, and the procedures in Part I (E) apply.
6. If an inmate has previously developed a severe mental disorder, suffered an acute exacerbation of a preexisting mental disorder or other wise substantially deteriorated mentally or emotionally while in a special housing unit at any facility, this fact shall be noted in the assessment. If the mental health professional clinically concludes that the inmate may be placed in SHU despite such a history, (s)he shall indicate in the assessment the basis of the conclusion and shall describe the steps that will be taken to monitor the inmate for a recurrence of such symptoms while he is in SHU. Such decision and documentation shall be subject to quality assurance review as described in paragraph I (G)(4).
7. The mental health professional shall note the course of action followed and his/her findings and recommendations in an assessment report to be included in the inmate’s OMH record. Such report shall be sufficiently detailed to enable a clinically competent independent evaluator to determine whether it was conducted appropriately.
C. Periodic Monitoring of SHU Inmates
8. OMH shall maintain a clinical presence on SHU, in order to insure adequate monitoring of the mental health status and needs of the inmates confined therein.
9. For the purpose of this Stipulation, “clinical presence” means that OMH staff shall be in SHU at least ten (10) hours per week except that, if the census in SHU falls below seventy-five percent (75%) of capacity during a given week, the number of hours per week may be reduced by a corresponding percent for that week.
10. The mental health professional placed in SHU shall make daily rounds of all galleries. “Rounds” shall include (a) discussion with DOCS staff regarding any SHU inmates observed by such staff as having a potential mental health problem; (b) review of the daily entries in the SHU log books maintained on each floor and (c) providing a reasonable opportunity for each inmate to indicate that he would like to communicate with such staff by verbal statement or gesture, or
4

by a written referral by the inmate(s), DOCS staff or other OMH staff.
11. During rounds, the mental health professional will seek to identify any SHU inmate who (a) exhibits symptoms that suggest that his mental health may be deteriorating, or that he is at substantial risk of harming himself, (b) requests mental health services, (c) wishes to communicate with OMH staff, or (d) appears to be unaware of the presence of such staff or to be unresponsive to questions or statements by any OMH or DOCS staff.
12. Whenever the mental health professional making rounds has any significant communication with an SHU inmate, observes any symptoms or behavior that suggest the need for further OMH involvement, or is informed of such symptoms or behavior, such mental health professional shall record the relevant information in a screening or progress note in the inmate’s OMH record.
13. Whenever a mental health professional determines that a SHU inmate has exhibited symptoms or behavior that indicate that his mental health is deteriorating, or that he is at substantial risk of harming himself, such staff shall promptly conduct or arrange for a further OMH mental health assessment shall be conducted within one working day.
14. If the mental health professional, upon conducting the assessment, determines that the inmate has developed a severe mental disorder or suffered an acute exacerbation of a preexisting mental disorder and is currently exhibiting symptomatology which requires immediate treatment/evaluation in a mental health setting or is at substantial risk of serious mental or emotional deterioration if maintained in SHU, (s)he shall inform the officer in charge of SHU, and request that the inmate be moved.
The officer in charge of SHU shall immediately inform the watch commander of this determination. The inmate shall be promptly moved from SHU to an observation cell in the Satellite Unit, to CNYPC, or, upon the request of OMH and only with the approval of DOCS, to another location and shall be provided with appropriate mental health services, subject to the provisions of paragraph I (A)(2). All requests by OMH to move an inmate and all DOCS decisions regarding such requests shall be recorded in the SHU log book.
15. When there is a determination to remove an inmate from SHU for treatment or evaluation and the mental health professional clinically concludes that the inmate may be returned to SHU, it shall be documented in a screening or progress note in the inmate’s OMH record. Such documentation shall address any changes in the treatment plan that reflect those issues which contributed to an inability to function in the SHU environment, a consideration of possible warning signs that may indicate that his mental health is seriously deteriorating and a plan to
5

monitor for such signs. Such decision and documentation will then be subjected to quality assurance review pursuant to paragraph I(G)(4).
16. All entries in inmates’ OMH records, including progress notes and evaluation reports shall be sufficiently detailed to enable a clinically competent evaluator to assess the adequacy of the interaction.
D. Private Interviews
17. Except as provided in paragraphs 2 and 3 herein, whenever OMH staff requests that a SHU inmate be escorted to a private room for a private mental health interview, or when, not to exceed once a week, a SHU inmate requests to speak to OMH staff in private and OMH staff clinically determine that an interview is required for the purposes of assessment or treatment, such interview shall be conducted in a private room.
18. If a mental health professional determines, in his or her clinical judgment, that a private interview is not indicated, based on considerations specific to the inmate and situation, such staff shall document in a screening or progress note in the inmate’s OMH record such specific reasons(s). Convenience of staff shall not be considered an appropriate reason for declining an interview in a private room. Examples of reasons for a clinical assessment to conclude that a private interview is not necessary may include, but are not limited to, (a) a recent prior interview sufficient to cover the immediate issues(s), (b) the issues(s) appear unfounded based on a recent interview and/or a current assessment, (c) the private interview may have a negative impact upon symptomatology, or (d) there are not apparent clinical issues to warrant a private interview.
19. Access to a private interview may be denied by DOCS staff if (a) the SHU inmate has recently been assaultive, threatened violence or engaged in conduct that presented a threat to security or safety; (b) the inmate refused to be interviewed; or (c) the highest security officer on duty at Attica determines that as a result of the inmate’s history of violence, a private interview cannot be accomplished without risk of injury to the inmate, DOCS or OMH staff. If the private interview is denied, DOCS security staff may require that the interview be conducted cell side.
20. In all cases in which OMH staff requests a private interview the decision of DOCS whether to permit such private interview will be documented in the SHU log book. When DOCS requires that the interview be conducted cell side, the fact and the specific reason which led to that decision shall be documented in a screening or progress note in the inmate’s OMH record and in the SHU log.
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21. In any event, each inmate who is continuously confined in SHU and who is an active patient of OMH or an individual subject to a screening note or who is determined to be at substantial risk by OMH shall, unless the inmate refuses, be privately interviewed by an OMH professional at least once every three (3) months. In all cases described in paragraph 3 herein, however, DOCS may require that the private interview be conducted in a divided room in which the inmate is separated from the OMH staff.
22. Nothing in this Stipulation shall preclude the appropriate application of 7 NYCRR & § 305.3 “Restraint Order” or 7 NYCRR § 305.4 “Use of Restraints.”
E. Continuity of Treatment
23. Where an inmate transferred to SHU is on the active caseload of OMH, such inmate’s then-current treatment plan shall continue in effect unless and until it is modified according to paragraph 3 herein. Where an inmate is admitted to the OMH caseload as a result of a mental health assessment upon transfer to SHU, or while housed in SHU, an initial treatment plan shall be created in accordance with the standards as set forth in the CNYPC Outpatient Record Manual as currently maintained by or as revised in accordance with the by-laws of the CNYPC Medical Staff Organization. CNYPC will inform plaintiffs’ counsel of any such revisions that it concludes will substantially impact on any of the terms of this Stipulation.
24. When an inmate is placed in SHU following a stay at CNYPC, the recommendations in such inmate’s Discharge Summary from CNYPC shall be implemented unless they are modified according to paragraph 3 herein, or are modified by an OMH mental health professional, based on a consideration of the treatment goals and the potential effect of the SHU environment on such inmate.
25. Whenever an active OMH patient is transferred to SHU, a treatment plan review will be performed within ten (10) days. The treatment plan review will result in a treatment plan which is consistent with DOCS security requirements, but which also meets the standards set forth in the CNYPC Outpatient Medical Record Manual as currently maintained by or as revised in accordance with the by-laws of the CNYPC Medical Staff Organization. CNYPC will inform plaintiffs’ counsel of any such revisions.
F. Patient Records
OMH patient records for all SHU inmates shall be maintained in accordance with the requirements and standards as set forth in the CNYPC Outpatient Medical Record Manual as currently maintained by or as revised in accordance with in accordance with the by-laws of the CNYPC Medical Staff Organization. CNYPC will inform plaintiffs’
7

counsel of any such revision that it concludes will substantially impact on any of the terms of this Stipulation.
G. Quality Assurance
26. CNYPC will ensure that all mental health professionals responsible for conducting assessments described in this Stipulation shall be aware of the standard of review and steps required to conduct an adequate assessment and the steps that must be taken if SHU is contraindicated.
27. CNYPC will also ensure that all OMH staff responsible for monitoring or having other contacts with SHU inmates shall be aware of the standards and steps necessary to adequately determine whether an inmate is at substantial risk of serious mental or emotional deterioration, or is in need of immediate mental health intervention and the steps that must be taken when a SHU inmate is determined to be at substantial risk or in need of mental health intervention.
28. CNYPC shall periodically review SHU assessments by OMH mental health professionals, and OMH monitoring activity to ensure that these procedures are accomplished professionally and in accordance with this Stipulation. The fact of such review, name and position of the person(s) conducting the review, date, and all findings thereon shall be maintained at CNYPC. Any adverse finding as a result of such assessments shall be reviewed with the OMH staff and a plan of corrective action will be set forth, if indicated.
29. Whenever an inmate who previously had developed a severe mental disorder or suffered and acute exacerbation of preexisting mental disorder or otherwise substantially deteriorated mentally or emotionally while in a special housing unit is approved for transfer to SHU, CNYPC shall promptly review such determination and the documentation supporting the determination, to ensure that it is consistent with the terms of this Stipulation.
30. Certification of the Satellite Unit by the Joint Commission on Accreditation of Health Care Organizations (“JCAHO”) shall be considered prima facie evidence that the defendants’ quality assurance efforts are in compliance with this section, provided that : (a) such certification is not a substitute for the defendant’s own quality assurance efforts, as set forth in this section and (b) the defendants shall notify plaintiffs’ counsel of all reports concerning the Satellite Unit by JCAHO and of any scheduled review of the Satellite Unit by JCAHO.
G. Notification and Training of Staff
31. All DOCS staff regularly assigned to SHU, all OMH staff having contact with SHU inmates and all other DOCS and OMH staff having responsibilities pursuant to
8

this Stipulation shall be provided with a copy of this Stipulation, and shall be informed regarding requirements herein.
32. Subject to budgetary constraints, all DOCS staff who regularly have direct contract with SHU inmates shall be required to participate in training concerning the psychological needs of inmates confined to SHU, and the recognition of behaviors which should lead to a referral of an inmate to OMH.
II. Deprivation of Items
33. Deprivation of items in a mental health setting for mental health reasons shall be maintained for only so long as it is determined by a mental health professional to be necessary for the inmate’s mental health care. Deprivation of such items shall promptly be terminated upon a determination by a mental health professional that such is no longer appropriate or necessary.
34. When a mental health professional is on duty, no inmate shall be deprived of a blanket or mattress for mental health reasons for more than fifteen (15) minutes without a written recommendation from a mental health professional. When a mental health professional is on duty and an inmate has been deprived of his clothing for mental health reasons for more than fifteen (15) minutes, the inmate shall be provided with paper clothing, a blanket, and with toilet paper, unless otherwise specifically recommended and documented by a mental health professional. Nothing herein shall, however, prevent the substitution of a standard blanket or mattress with a suicide resistant quilted may. Furthermore, nothing in this Stipulation shall preclude the appropriate application of 7 NYCRR § 305.2 “Deprivation Order.”
II. MONITORING AND COMPLIANCE
H. Duration of this Stipulation; Monitoring Period; Frequency of Site Visits
35. The terms of this Stipulation are currently in effect and shall remain in effect for a period of two (2) years from the date that the Special Treatment Program (STP) for the Attica SHU is implemented. (The expected date for implementation of the STP is fall 2000.)
36. There shall be a monitoring period during the two (2) years following the date that the Special Treatment Program (STP) for the Attica SHU is implemented.
37. The effective period of the Stipulation or the monitoring period may be extended for additional one (1) year periods only and only upon demonstration to the court that defendants have failed to substantially comply with the terms of this Stipulation, as defined in Part II (D).
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38. During the monitoring period, plaintiffs’ counsel, together with an expert, to be designated by plaintiffs’ counsel, shall be permitted a total of four (4) one day inspection tours. Such tours shall take place at intervals of no less than five (5) months.
39. After the two (2) year effective period of the Stipulation, or any extension granted by the court pursuant to paragraph II(A)(3) herein, the terms of this Stipulation shall automatically cease to bind the parties, as well as their successors, agents, employees, assigns and those acting in concert with them, all claims on behalf of the plaintiffs are discontinued and dismissed with prejudice and the jurisdiction of the court over mental health issues in this action shall automatically end.
I. Inspection Tours: Access to Clients and Records
40. Subject to the limitation of paragraph II(A)(4), upon ten (10) working days’ notice, plaintiffs’ counsel and expert(s) shall be entitled to an inspection tour during which they may enter and inspect the following areas at Attica: SHU; the Satellite Unit; the STP area and any cells or areas that are, or have been, used for mental health treatment or as mental health observation cells since the prior inspection visit, either in the Reception Building or in any Mental Health Units at Attica.
41. During the day of the inspection tour and, if plaintiff requests, during the following two days, plaintiffs expert(s) shall also be permitted to interview, in one of Attica’s legal visiting rooms (as appropriate) any class members or former class members. Such interviews shall be subject to DOCS’ and Attica’s procedures for notification and approval of legal visits.
42. A class member may decline to be interviewed. However, plaintiffs’ expert may then meet cell side with such individual for the limited purpose of determining whether he has the mental capacity, and has received adequate information to make an informed decision.
43. Plaintiffs’ counsel and/or expert may also interview class members in private in one of Attica’s SHU legal visiting rooms at times other than during the inspection tours, or the days following inspection tours. Such interviews shall be subject to DOCS’ and Attica’s procedures for notification and approval of legal visits. The provisions for cell side interviews in paragraph II(B)(3) herein shall not be applicable to the additional visits described in this paragraph.
44. Incident to the inspection tour, plaintiff’s counsel and expert may, upon request, review records or documents described in Part II(C) herein. Requests for such records shall be made at least ten (10) days in advance, except that, if a longer period is defined in part II(C) herein, such longer period shall apply. Plaintiffs’ counsel may request that designated records be provided prior to the date of the inspection tour, so long as the requirement for advance notice is met.
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J. Access to Records
45. During the duration of this Stipulation, DOCS shall provide plaintiffs’ counsel with a monthly list of all inmates confined to SHU and all inmates transferred to and from SHU.
46. Up to four (4) times during the monitoring period, plaintiffs’ counsel and experts may request in writing and within thirty (30) days of such request shall be provided with copies of:
a. Any directives, memos or other documents or records that describe or discuss OMH or DOCS practices and/or procedures as they may relate to the terms of this Stipulation;
b. Any OMH quality assurance documents generated pursuant to paragraph II(G); and/or
c. DOCS records of class members or former class members. Such a request, however, shall not be overly burdensome or jeopardize safety or security. A request for records made incident to any of the inspection tours, as described in paragraph II(B)(5) herein, shall count toward the four (4) permitted requests described in this paragraph.
47. Up to six (6) times plaintiffs’ counsel or its designated staff of Buffalo PLS shall be permitted to review SHU log books, upon two (2) working days’ notice, and to request copies of any pages of such log books. Any such requested items shall be provided within two (2) weeks of the receipt of the request. Such review of SHU log books and requests for copies thereof, including requests made incident to an inspection tour as described in paragraph II(B)(5) herein, may take place no more than once in any four (4) month period.
48. Plaintiffs’ counsel or its designated staff shall be permitted to review Satellite Unit mental health records upon two (2) working days’ notice and, upon request, to receive copies of any pages of such records within two (2) weeks.
5. Review of videotapes
d. If plaintiffs’ counsel or his/her designee requests that a copy of any videotape, or a portion thereof, recorded by the system of stationary videotape cameras maintained in SHU, be preserved, such videotape shall be preserved for seven (7) days or the remainder of the usual thirty (30) day preservation period, which ever is greater.
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e. Any request that a videotape be preserved shall reasonably describe such videotape including: (i) the date, approximate time and gallery or location recorded; and (ii) a brief description of the alleged event(s) or circumstances.
f. Where all the information described in paragraph II(C)(5)(b) is not available to the person making the request, (s)he shall provide as much of such information as is available; and a good faith effort will be made to locate the relevant videotape.
g. Videotapes requested pursuant to paragraph II(C)(5)(a) shall be made available for review by counsel for plaintiffs or his/her designee within two (2) working days notice. Videotapes may be reviewed between the hours of eight o’clock a.m. and four o’clock p.m. on any working day.
h. Counsel for plaintiffs may request, at the plaintiffs’ expense, a duplicate copy of any such videotape or designated portion thereof. Such request must be made, in writing, prior to the expiration of the time period defined in paragraph II(C)(5)(a).
i. A request for a duplicate tape may be made following review of such videotape as described in paragraph II(C)(5)(d), or in lieu of such review.
49. OMH will provide to plaintiffs’ counsel, upon request, a chronological list of current or former patients of OMH:
j. transferred to SHU, and a list of inmates who received SHU admission evaluations as described in paragraph I(B) herein;
k. transferred from SHU to the Satellite unit or an observation cell or to CNYPC, and
l. transferred to SHU from the Satellite unit or an observation cell or from CNYPC.
m. admitted to the SHU Special Treatment Program (“STP”).
n. SHU inmates who are subject of medication over objection court orders.
50. Counsel for the respective parties shall not divulge to any person the contents of, or the identity of any person(s) identified in, DOCS records or videotapes or OMH mental health records of the inmates or associated quality assurance documents obtained in accordance with this Stipulation, except that such contents, identities, record and documents may be disclosed to the court, support staff retained by
12

counsel directly involved in monitoring or enforcing this Stipulation, and expert witnesses and consultants retained by respective parties herein.

51. In the event that counsel for the respective parties desire to disclose to the individual patients their OMH mental health records or any information therein, the provisions of § 33.16 of the Mental Hygiene Law shall apply. Under no circumstances shall quality assurance documents obtained in accordance with this Stipulation be disclosed to the individual patients.

52. At the conclusion of this litigation, all documents and videotapes and copies thereof obtained in accordance with this Stipulation shall be returned to the defendants.

53. Prisoners’ Legal Services of New York Inc. shall pay to DOCS or OMH (as appropriate) ten cents per page for any photocopies and the actual cost of videotapes produced in accordance with this Stipulation.

K. Enforcement

54. Obligations of the DOCS defendants and of the OMH defendants under the provisions of this Stipulation are identified as follows:

OMH defendants only I (B) (1, 3-5) I (C)(1-6, 8, 9) I (D)(2) I (E)(1-3) I (F) I (G) II (C) (2(b), 4, 6)

DOCS defendants only I (D)(3) II (A)(4) II (B)(1-4) II (C)(1, 2(c), 3, 5)

Mixed Obligations I (A)(1-2) I (B)(2) I (C)(7) I (D)(1, 4, 5) I (H) I (I) II (A)(1-3) II (B)(5) II (C)(2)(a)

55. Plaintiffs may not seek enforcement of this Stipulation unless and until the terms of paragraph II (D) have been followed, and then only in this court and against only those defendants identified in paragraph II(D)(1) as obligated to comply.

3. Defendants shall be considered to be in “substantial compliance” with this Stipulation unless plaintiffs make a clear and convincing showing that defendants’ failures or omissions to meet the terms of the Stipulation were not minimal or isolated but were substantial and sufficiently frequent and widespread as to be systemic.

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56. In the event that plaintiffs believe that defendants are not in substantial compliance, plaintiffs’ counsel shall notify defendants’ counsel of the facts supporting such belief. Defendants’ counsel shall then notify plaintiffs’ counsel within thirty days (30) that (a) the alleged problems have been remedied or (b) defendants disagree with plaintiffs’ description of the problem. The facts supporting defendants’ conclusion shall be included in such notice.
5. Upon receipt of the response described in paragraph II(D)(4), plaintiffs’ counsel may apply to the court for an order enforcing this Stipulation, if plaintiffs believe that the defendants still have not substantially complied. Such an application may include a request to extend the duration of the Stipulation or active monitoring period for up to one (1) year.
57. If any individual member of the plaintiff class believes that the terms of this Stipulation have not been followed with regard to his own case, such individual shall file a grievance pursuant to DOCS Directive #4040, and send a copy of the grievance to plaintiffs’ counsel. If the individual class member still believes that the terms of this Stipulation have not been followed upon conclusion of the grievance process, he may move the court for an order directing specific performance of a term or terms of this Stipulation as such relates to his own case. Any such motion, and any order issued by the court, must set forth (a) the specific term(s) of this Stipulation that the individual asserts has been violated regarding his case, (b) a concise statement of facts supporting such allegation and (c) a description of the specific relief sought. The terms of such order shall not include a finding of contempt or any contempt sanctions; however, the court shall have authority to enforce the performance of such order as it relates to the inmate’s case.
58. This Stipulation is for injunctive relief only. Its terms are not intended to restrict, modify or enhance, in any way, any claims for damages that a class member may have by way of a separate lawsuit, any defense(s) to such claims that may be available to defendants, or the legal requirements, procedures or standards to be employed in determining any such claims or defenses.
59. This Stipulation does not constitute (a) an admission by any defendant of any violation of law or wrongdoing, (b) an admission by any defendant that any standard, policy, practice or procedure addressed in this action violated or failed to comply with either the language or the intent of any applicable law, rule or regulation, or (c) an admission by any defendant that its position in this litigation was not substantially justified. This Stipulation may not be used for any purpose other than one brought to enforce the provisions of this Stipulation and Order.
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L. Notice to Class Members 60. All inmates in SHU have been provided with a copy of the Stipulation that was
“so ordered” on March 6, 1998. From the date that this amended Stipulation is “so ordered” through the end of the monitoring period, each inmate already residing in or entering SHU shall receive a copy of this amended Stipulation, as well as a notice written in Spanish informing such inmate that a Spanish language version is available upon request. 61. Copies of this Stipulation, in English and Spanish, shall also be available, upon request in Attica’s law library. 62. A summary of the terms of the Stipulation, in English and Spanish, shall be posted in the Satellite Unit. 63. Plaintiffs’ counsel shall be responsible for obtaining a Spanish language translation of this Stipulation. Defendants’ counsel may review such translation for accuracy, prior to its dispersal.
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Dated:June 12, 2000 Buffalo, New York

Dated:June 9, 2000 New York, New York

_________________________ KIM S. MURPHY Assistant Attorney General New York State Department of Law 107 Delaware Avenue Buffalo, New York 14202 Telephone: (716) 853-8471 Attorney for Defendants

SARAH KERR Staff Attorney Prisoners’ Rights Project Legal Aid Society New York, New York 10007 Telephone: (212) 577-3530
THOMAS TERRIZZI Executive Director BETSY STERLING Managing Attorney Prisoners’ Legal Services of New York 118 Prospect Street, Suite 307 Ithaca, New York 14850 Telephone: (607) 273-2283
ARTHUR J. GIACALONE Managing Attorney Prisoners’ Legal Services of New York 107 Delaware Avenue Buffalo, New York 14202 Telephone: (716) 854-1007

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 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK______

GEORGE ENG, JOEL CLAYMAN, RONALD WEST, MARTIN SPENCE, JOHN GRIFFIN, JOSEPH RIVERA, RAHEEM SUPREME, ALONZO STARTLING, KEVIN RICHARDSON, individually and on behalf of all persons similarly situated,
Plaintiffs,

RULE 41 VOLUNTARY STIPULATION OF DISMISSAL SUBJECT TO CONDITIONS
Civ 80-385S

-

vs-

GLENN GOORD, Commissioner of Corrections for the State of New York; ARTHUR LEONARDO, Deputy Commissioner of Correctional Services; DONALD SELSKY, Acting Director of Special Housing, Department of Correctional Services; VICTOR HERBERT, Superintendent, Attica Correctional Facility; xx Deputy Superintendent, Attica Correctional Facility; xx Deputy Superintendent, Attica Correctional Facility, in their official capacities, JAMES L. STONE, Commissioner of Office of Mental Health for the State of New York.
Defendants _______________________________________

The parties hereto, by their attorneys, hereby stipulate and agree as follows:

WHEREAS this action challenging living conditions and practices in the Special

Housing Unit at Attica Correctional Facility as violative of inmates confined therein

under the First, Sixth, Eighth and Fourteenth Amendments of the United States

constitution was filed by the plaintiffs on May 6, 1980; and

WHEREAS, on January 27, 1987, this court per Hon. Michael A. Telesca, D.J.

ordered that the Commissioner of the New York State Office of Mental Health be named

as a defendant, with regard to the plaintiffs’ claims as they relate to mental health care;

and

WHEREAS the Defendants have denied that they have violated Plaintiffs’ constitutional rights; and
WHEREAS this court per Hon. Michael a. Telesca D.J. granted Plaintiffs’ motion for preliminary injunction on January 29, 1988 and the Court of Appeals for the Second Circuit affirmed the court’s order in an opinion dated June 13, 1988; and
WHEREAS the parties have conducted extensive discovery; and WHEREAS counsel for the plaintiffs and defendants without conceding any infirmity in their claims or defenses, have subsequently engaged in negotiations to resolve the plaintiffs’ claims as they relate to mental health care; IT IS HEREBY STIPULATED AND AGREED by and between the attorneys for the parties as follows: DEFINITIONS AND ABBREVIATIONS A. “Attica” shall mean Attica Correctional Facility. B. “SHU” shall mean the disciplinary Special Housing Unit at Attica. A. “DOCS” shall mean the New York State Department of Correctional Services. B. “OMH” shall mean the New York State Office of Mental Health. C. “PLS” shall meant Prisoners’ Legal Services. D. “CNYPC” shall mean the Central New York Psychiatric Center in Marcy, New York. E. “Outpatient Medical Record manual” shall meant the CNYPC Outpatient Medical Record Manual, a copy of which is appended hereto as Exhibit 1. F. “Satellite Unit” shall mean CNYPC’s outpatient unit at Attica and shall include the Residential Crisis Treatment Program and outpatient caseload.

G. “Mental Health Professional” shall mean a medical or non-medical mental health professional employed by OMH. H. “Active patient” or “active OMH patient” shall mean an inmate who has been admitted to OMH caseload and is currently receiving OMH service. I. “Working day” shall mean any day other than Saturday, Sunday or a legal holiday. I. SUBSTANTIVE PROVISIONS J. No Seriously Mentally Ill Inmates in SHU
1. Subject to paragraph 2 herein, in no case shall an inmate known to be currently suffering from a severe mental disorder or severe depression and who is currently exhibiting symptomatology which requires immediate treatment/evaluation in a mental health setting or who is known to be at substantial risk of serious mental or emotional deterioration, be placed or maintained in SHU.
2. Where an inmate does not appear to require immediate hospitalization in CNYPC, but is clinically indicated to require observation or treatment or both in a location other than SHU, and such observation and/or treatment cannot be provided in the Satellite Unit due to lack of mental observation cell space on that unit, such inmate may be housed temporarily in SHU until appropriate space becomes available. For the purpose of this sub-section, such temporary placement in SHU may be maintained for no longer than two (2) working days. In all such cases, the fact of such temporary placement in SHU and the reasons therefore shall be noted in a progress not in the inmate’s OMH record. B. Screening on Admission to SHU

3. A mental health professional will conduct an assessment, within one working day of any inmate’s placement in SHU. Such an assessment shall include a review of OMH records to determine whether the inmate is on its active caseload, or has previously received mental health treatment while in the custody of DOCS.
4. If the mental health professional, upon conducting the assessment, determines that the inmate has a severe mental disorder or severe depression and is currently exhibiting symptomatology which requires immediate treatment/evaluation in a mental health setting or is at substantial risk of serious mental or emotional deterioration if sent to SHU, (s)he shall inform the officer in charge of SHU, and request that the inmate be moved. The officer in charge of SHU shall immediately inform the watch commander of this determination. The inmate shall then be promptly moved from SHU to an observation cell in the Satellite Unit, to CNYPC or upon the request of OMH and only with the approval of DOCS, to another location and such inmate shall be provided appropriate mental health services, subject to paragraph I(A)(2).
5. If the mental health professional clinically concludes that the inmate may be placed in SHU, and the inmate is an active OMH patient or is admitted to the OMH caseload, the assessment shall also include a recommended plan for mental health treatment during the time the inmate is confined in SHU, and the procedures in Part I (E) apply.
6. If an inmate has previously developed a severe mental disorder, suffered an acute exacerbation of a preexisting mental disorder or other wise substantially deteriorated mentally or emotionally while in a special housing unit at any facility, this fact shall be noted in the assessment. If the mental health professional clinically

concludes that the inmate may be placed in SHU despite such a history, (s)he shall indicate in the assessment the basis of the conclusion and shall describe the steps that will be taken to monitor the inmate for a recurrence of such symptoms while he is in SHU. Such decision and documentation shall be subject to quality assurance review as described in paragraph I(G)(4).
7. The mental health professional shall note the course of action followed and his/her findings and recommendations in an assessment report to be included in the inmate’s OMH record. Such report shall be sufficiently detailed to enable a clinically competent independent evaluator to determine whether it was conducted appropriately.
C. Periodic Monitoring of SHU Inmates 8. OMH shall maintain a clinical presence on SHU, in order to insure
adequate monitoring of the mental health status and needs of the inmates confined therein.
9. For the purpose of this Stipulation, “clinical presence” means that OMH staff shall be in SHU at least ten (10) hours per week except that, if the census in SHU falls below seventy-five percent (75%) of capacity during a given week, the number of hours per week may be reduced by a corresponding percent for that week.
10. The mental health professional placed in SHU shall make daily rounds of all galleries. “Rounds” shall include (a) discussion with DOCS staff regarding any SHU inmates observed by such staff as having a potential mental health problem; (b) review of the daily entries in the SHU log books maintained on each floor and (c) providing a reasonable opportunity for each inmate to indicate that he would like to communicate

with such staff by verbal statement or gesture, or by a written referral by the inmate(s), DOCS staff or other OMH staff.
11. During rounds, the mental health professional will seek to identify any SHU inmate who (a) exhibits symptoms that suggest that his mental health may be deteriorating, or that he is at substantial risk of harming himself, (b) requests mental health services, (c) wishes to communicate with OMH staff, or (d) appears to be unaware of the presence of such staff or to be unresponsive to questions or statements by any OMH or DOCS staff.
12. Whenever the mental health professional making rounds has any significant communication with a SHU inmate, observes any symptoms or behavior that suggest the need for further OMH involvement, or is informed of such symptoms or behavior, such mental health professional shall record the relevant information in a screening or progress note in the inmate’s OMH record.
13. Whenever a mental health professional determines that a SHU inmate has exhibited symptoms or behavior that indicate that his mental health is deteriorating, or that he is at substantial risk of harming himself, such staff shall promptly conduct or arrange for a further OMH mental health assessment of such inmate. The mental health assessment shall be conducted within one working day.
14. If the mental health professional, upon conducting the assessment, determines that the inmate has developed a severe mental disorder or suffered an acute exacerbation of a preexisting mental disorder and is currently exhibiting symptomatology which requires immediate treatment/evaluation in a mental health setting or is at substantial risk of serious mental or emotional deterioration if maintained

in SHU, (s)he shall inform the officer in charge of SHU, and request that the inmate be moved. The officer in charge of SHU shall immediately inform the watch commander of this determination. The inmate shall be promptly moved from SHU to an observation cell in the Satellite Unit, to CNYPC, or, upon the request of OMH and only with the approval of DOCS, to another location and shall be provided with appropriate mental health services, subject to the provisions of paragraph I (A)(2). All requests by OMH to move an inmate and all DOCS decisions regarding such requests shall be recorded in the SHU log book.
15. When there is a determination to remove an inmate from SHU for treatment or evaluation and the mental health professional clinically concludes that the inmate may be returned to SHU, it shall be documented in a screening or progress note in the inmate’s OMH record. Such documentation shall address any changes in the treatment plan that reflect those issues which contributed to an inability to function in the SHU environment, a consideration of possible warning signs that may indicate that his mental health is seriously deteriorating and a plan to monitor for such signs. Such decision and documentation will then be subjected to quality assurance review pursuant to paragraph I(G)(4).
16. All entries in inmates’ OMH records, including progress notes and evaluation reports shall be sufficiently detailed to enable a clinically competent evaluator to assess the adequacy of the interaction. D. Private Interviews
17. Except as provided in paragraphs 2 and 3 herein, whenever OMH staff requests that a SHU inmate be escorted to a private room for a private mental health

interview, or when, not to exceed once a week, a SHU inmate requests to speak to OMH staff in private and OMH staff clinically determine that an interview is required for the purposes of assessment or treatment, such interview shall be conducted in a private room.
18. If a mental health professional determines, in his or her clinical judgment, that a private interview is not indicated, based on considerations specific to the inmate and situation, such staff shall document in a screening or progress note in the inmate’s OMH record such specific reasons(s). Convenience of staff shall not be considered an appropriate reason for declining an interview in a private room. Examples of reasons for a clinical assessment to conclude that a private interview is not necessary may include, but are not limited to (a) a recent prior interview sufficient to cover the immediate issues(s); (b) the issues(s) appear unfounded based on a recent interview and/or a current assessment; (c) the private interview may have a negative impact upon symptomatology, or (d) there are not apparent clinical issues to warrant a private interview.
19. Access to a private interview may be denied by DOCS staff if (a) the SHU inmate has recently been assaultive, threatened violence or engaged in conduct that presented a threat to security or safety; (b) the inmate refused to be interviewed; or (c) the highest security officer on duty at Attica determines that as a result of the inmate’s history of violence, a private interview cannot be accomplished without risk of injury to the inmate, DOCS or OMH staff. If the private interview is denied, DOCS security staff may require that the interview be conducted cell side.
20. In all cases in which OMH staff requests a private interview the decision of

DOCS whether to permit such private interview will be documented in the SHU log book. When DOCS requires that the interview be conducted cell side, the fact and the specific reason which led to that decision shall be documented in a screening or progress note in the inmate’s OMH record and in the SHU log.
21. In any event, each inmate who is continuously confined in SHU and who is an active patient of OMH or an individual subject to a screening note or who is determined to be at substantial risk by OMH shall, unless the inmate refuses, be privately interviewed by an OMH professional at least once every three (3) months. In all cases described in paragraph 3 herein, however, DOCS may require that the private interview be conducted in a divided room in which the inmate is separated from the OMH staff.
22. Nothing in this Stipulation shall preclude the appropriate application of 7 NYCRR & § 305.3 “Restraint Order” or 7 NYCRR § 305.4 “Use of Restraints.” E. Continuity of Treatment
23. Where an inmate transferred to SHU is on the active caseload of OMH, such inmate’s then-current treatment plan shall continue in effect unless and until it is modified according to paragraph 3 herein. Where an inmate is admitted to the OMH caseload as a result of a mental health assessment upon transfer to SHU, or while housed in SHU, an initial treatment plan shall be created in accordance with the standards as set forth in the CNYPC Outpatient Record Manual as currently maintained by or as revised in accordance with the by-laws of the CNYPC Medical Staff Organization. CNYPC will inform plaintiffs’ counsel of any such revisions that it concludes will substantially impact on any of the terms of this Stipulation.

24. When an inmate is placed in SHU following a stay at CNYPC, the recommendations in such inmate’s Discharge Summary from CNYPC shall be implemented unless they are modified according to paragraph 3 herein, or are modified by an OMH mental health professional, based on a consideration of the treatment goals and the potential effect of the SHU environment on such inmate.
25. Whenever an active OMH patient is transferred to SHU, a treatment plan review will be performed within ten (10) days. The treatment plan review will result in a treatment plan which is consistent with DOCS security requirements, but which also meets the standards set forth in the CNYPC Outpatient Medical Record Manual as currently maintained by or as revised in accordance with the by-laws of the CNYPC Medical Staff Organization. CNYPC will inform plaintiffs’ counsel of any such revisions. F. Patient Records
26. OMH patient records for all SHU inmates shall be maintained in accordance with the requirements and standards as set forth in the CNYPC Outpatient Medical Record Manual as currently maintained by or as revised in accordance with in accordance with the by-laws of the CNYPC Medical Staff Organization. CNYPC will inform plaintiffs’ counsel of any such revision that it concludes will substantially impact on any of the terms of this Stipulation. G. Quality Assurance
27. CNYPC will ensure that all mental health professionals responsible for conducting assessments described in this Stipulation shall be aware of the standard of review and steps required to conduct an adequate assessment and the steps that must be taken if SHU is contraindicated.

28. CNYPC will also ensure that all OMH staff responsible for monitoring or having other contacts with SHU inmates shall be aware of the standards and steps necessary to adequately determine whether an inmate is at substantial risk of serious mental or emotional deterioration, or is in need of immediate mental health intervention and the steps that must be taken when a SHU inmate is determined to be at substantial risk or in need of mental health intervention.
29. CNYPC shall periodically review SHU assessments by OMH mental health professionals, and OMH monitoring activity to ensure that these procedures are accomplished professionally and in accordance with this Stipulation. The fact of such review, name and position of the person(s) conducting the review, date, and all findings thereon shall be maintained at CNYPC. Any adverse finding as a result of such assessments shall be reviewed with the OMH staff and a plan of corrective action will be set forth, if indicated.
30. Whenever an inmate who previously had developed a severe mental disorder or suffered and acute exacerbation of preexisting mental disorder or otherwise substantially deteriorated mentally or emotionally while in a special housing unit is approved for transfer to SHU, CNYPC shall promptly review such determination and the documentation supporting the determination, to ensure that it is consistent with the terms of this Stipulation.
31. Certification of the Satellite Unit by the Joint Commission on Accreditation of Health Care Organizations (“JCAHO”) shall be considered prima facie evidence that the defendants’ quality assurance efforts are in compliance with this section, provided that : (a) such certification is not a substitute for the defendant’s own quality assurance

efforts, as set forth in this section and (b) the defendants shall notify plaintiffs’ counsel of all reports concerning the Satellite Unit by JCAHO and of any scheduled review of the Satellite Unit by JCAHO. G. Notification and Training of Staff
32. All DOCS staff regularly assigned to SHU, all OMH staff having contact with SHU inmates and all other DOCS and OMH staff having responsibilities pursuant to this Stipulation shall be provided with a copy of this Stipulation, and shall be informed regarding requirements herein.
33. Subject to budgetary constraints, all DOCS staff who regularly have direct contract with SHU inmates shall be required to participate in training concerning the psychological needs of inmates confined to SHU, and the recognition of behaviors which should lead to a referral of an inmate to OMH. H. Deprivation of Items
34. Deprivation of items in a mental health setting for mental health reasons shall be maintained for only so long as it is determined by a mental health professional to be necessary for the inmate’s mental health care. Deprivation of such items shall promptly be terminated upon a determination by a mental health professional that such is no longer appropriate or necessary.
35. When a mental health professional is on duty, no inmate shall be deprived of a blanket or mattress for mental health reasons for more than fifteen (15) minutes without a written recommendation from a mental health professional. When a mental health professional is on duty and an inmate has been deprived of this clothing for mental health reasons for more than fifteen (15) minutes, the inmate shall be provided

with paper clothing, a blanket, and with toilet paper, unless otherwise specifically recommended and documented by a mental health professional. Nothing herein shall, however, prevent the substitution of a standard blanket or mattress with a suicide resistant quilted may. Furthermore, nothing in this Stipulation shall preclude the appropriate application of 7 NYCRR § 305.2 “Deprivation Order.” II. MONITORING AND COMPLIANCE I. Duration of this Stipulation; Monitoring Period; Frequency of Site Visits
36. The terms of this Stipulation shall remain in effect for a period of three (3) years from the date that the Special Treatment Program (STP) for the Attica SHU is implemented.
37. There shall be a monitoring period of two (2) years from the date that the Special Treatment Program (STP) for the Attica SHU is implemented.
38. The effective period of the Stipulation or the monitoring period may be extended for additional one (1) year periods only and only upon demonstration to the court that defendants have failed to substantially comply with the terms of this Stipulation, as defined in Part II (D).
39. During the monitoring period, plaintiffs’ counsel, together with an expert, to be designated by plaintiffs’ counsel, shall be permitted a total of four (4) one day inspection tours. Such tours shall take place at intervals of no less than five (5) months.
40. After the three (3) year effective period of the Stipulation, or any extension granted by the court pursuant to paragraph II(A)(3) herein, the terms of this Stipulation shall automatically cease to bind the parties, as well as their successors, agents,
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employees, assigns and those acting in concert with them, all claims on behalf of the plaintiffs are discontinued and dismissed with prejudice and the jurisdiction of the court over mental health issues in this action shall automatically end.
J. Inspection Tours: Access to Clients and Records 41. Subject to the limitation of paragraph II(A)(4), upon ten (10) working days’
notice, plaintiffs’ counsel and expert(s) shall be entitled to an inspection tour during which they may enter and inspect the following areas at Attica: SHU; the Satellite Unit and any cells or areas that are, or have been, used for mental health treatment or as mental health observation cells since the prior inspection visit, either in the Reception Building or in any Mental Health Units at Attica.
42. During the day of the inspection tour and, if plaintiff requests, during the following two days, plaintiffs expert(s) shall also be permitted to interview, in one of Attica’s legal visiting rooms (as appropriate) any class members or former class members. Such interviews shall be subject to DOCS’ and Attica’s procedures for notification and approval of legal visits.
43. A class member may decline to be interviewed. However, plaintiffs’ expert may then meet cell side with such individual for the limited purpose of determining whether he has the mental capacity, and has received adequate information to make an informed decision.
44. Plaintiffs’ counsel and/or expert may also interview class members in private in one of Attica’s SHU legal visiting rooms at times other than during the
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inspection tours, or the days following inspection tours. Such interviews shall be subject to DOCS’ and Attica’s procedures for notification and approval of legal visits. The provisions for cell side interviews in paragraph II(B)(3) herein shall not be applicable to the additional visits described in this paragraph.
45. Incident to the inspection tour, plaintiff’s counsel and expert may, upon request, review records or documents described in Part II(C) herein. Requests for such records shall be made at least ten (10) days in advance, except that, if a longer period is defined in part II(C) herein, such longer period shall apply. Plaintiffs’ counsel may request that designated records be provided prior to the date of the inspection tour, so long as the requirement for advance notice is met. K. Access to Records
46. During the monitoring period, DOCS shall provide plaintiffs’ counsel with a monthly list of all inmates confined to SHU and all inmates transferred to and from SHU.
47. Up to four (4) times during the monitoring period, plaintiffs’ counsel and experts may request in writing and within thirty (30) days of such request shall be provided with copies of:
a. Any directives, memos or other documents or records that describe or discuss OMH or DOCS practices and/or procedures as they may relate to the terms of this Stipulation;
b. Any OMH quality assurance documents generated pursuant to paragraph II(G); and/or
c. DOCS records of class members or former class members. Such a
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request, however, shall not be overly burdensome or jeopardize safety or security. A request for records made incident to any of the inspection tours, as described in paragraph II(B)(5) herein, shall count toward the four (4) permitted requests described in this paragraph. 48. Up to six (6) times plaintiffs’ counsel or its designated staff shall be permitted to review SHU log books, upon two (2) working days’ notice, and to request copies of any pages of such log books. Any such requested items shall be provided within two (2) weeks of the receipt of the request. Such review of SHU log books and requests for copies thereof, including requests made incident to an inspection tour as described in paragraph II(B)(5) herein, may take place no more than once in any four (4) month period. 49. Plaintiffs’ counsel or its designated staff shall be permitted to review Satellite Unit mental health records upon two (2) working days’ notice and, upon request, to receive copies of any pages of such records within two (2) weeks. 50. Review of videotapes d. If plaintiffs’ counsel or his/her designee requests that a copy of any videotape, or a portion thereof, recorded by the system of stationary videotape cameras maintained in SHU, be preserved, such videotape shall be preserved for seven (7) days or the remainder of the usual thirty (30)day preservation period, which ever is greater.
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e. Any request that a videotape be preserved shall reasonably describe such videotape including: (i) the date, approximate time and gallery or location recorded; and (ii) a brief description of the alleged event(s) or circumstances.
f. Where all the information described in paragraph II(C)(5)(b) is not available to the person making the request, (s)he shall provide as much of such information as is available; and a good faith effort will be made to locate the relevant videotape.
g. Videotapes requested pursuant to paragraph II(C)(5)(a) shall be made available for review by counsel for plaintiffs or his/her designee within two (2) working days notice. Videotapes may be reviewed between the hours of eight o’clock a.m. and four o’clock p.m. on any working day.
h. Counsel for plaintiffs may request, at the plaintiffs’ expense, a duplicate copy of any such videotape or designated portion thereof. Such request must be made, in writing, prior to the expiration of the time period defined in paragraph II(C)(5)(a).
i. A request for a duplicate tape may be made following review of such videotape as described in paragraph II(C)(5)(d), or in lieu of such review.
51. OMH will provide to plaintiffs’ counsel, upon request, a chronological list of current or former patients of OMH:
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j. transferred to SHU, and a list of inmates who received SHU admission evaluations as described in paragraph I(B) herein;
k. transferred from SHU to the Satellite unit or an observation cell or to CNYPC, and
l. transferred to SHU from the Satellite unit or an observation cell or from CNYPC.
52. Counsel for the respective parties shall not divulge to any person the contents of, or the identity of any person(s) identified in, DOCS records or videotapes or OMH mental health records of the inmates or associated quality assurance documents obtained in accordance with this Stipulation, except that such contents, identities, record and documents may be disclosed to the court, support staff retained by counsel directly involved in monitoring or enforcing this Stipulation, and expert witnesses and consultants retained by respective parties herein.
53. In the event that counsel for the respective parties desire to disclose to the individual patients their OMH mental health records or any information therein, the provisions of § 33.16 of the Mental Hygiene Law shall apply. Under no circumstances shall quality assurance documents obtained in accordance with this Stipulation be disclosed to the individual patients.
54. At the conclusion of this litigation, all documents and videotapes and copies thereof obtained in accordance with this Stipulation shall be returned to the defendants.
55. Prisoners’ Legal Services of New York Inc. shall pay to DOCS or OMH (as
18

appropriate) ten cents per page for any photocopies and the actual cost of videotapes produced in accordance with this Stipulation. L. Enforcement
56. Obligations of the DOCS defendants and of the OMH defendants under the provisions of this Stipulation are identified as follows:

OMH defendants only

DOCS defendants only

Mixed Obligations

I (B) (1, 3-5)

I (D)(3)

I (A)(1-2)

I (C)(1-6, 8, 9)

II (A)(4)

I (B)(2)

I (D)(2)

II (B)(1-4)

I (C)(7)

I (E)(1-3)

II (C)(1, 2(c), 3, 5)

I (D)(1, 4, 5)

I (F)

I (H)

I (G)

I (I)

II (C) (2(b), 4, 6)

II (A)(1-3)

II (B)(5)

II (C)(2)(a)

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57. Plaintiffs may not seek enforcement of this Stipulation unless and until the terms of paragraph II (D) have been followed, and then only in this court and against only those defendants identified in paragraph II(D)(1) as obligated to comply.
58. Defendants shall be considered to be in “substantial compliance” with this Stipulation unless plaintiffs make a clear and convincing showing that defendants’ failures or omissions to meet the terms of the Stipulation were not minimal or isolated but were substantial and sufficiently frequent and widespread as to be systemic.
59. In the event that plaintiffs believe that defendants are not in substantial compliance, plaintiffs’ counsel shall notify defendants’ counsel of the facts supporting such belief. Defendants’ counsel shall then notify plaintiffs’ counsel within thirty days (30) that (a) the alleged problems have been remedied or (b) defendants disagree with plaintiffs’ description of the problem. The facts supporting defendants’ conclusion shall be included in such notice.
60. Upon receipt of the response described in paragraph II(D)(4), plaintiffs’ counsel may apply to the court for an order enforcing this Stipulation, if plaintiffs believe that the defendants still have not substantially complied. Such an application may include a request to extend the duration of the Stipulation or active monitoring period for up to one (1) year.
61. If any individual member of the plaintiff class believes that the terms of this Stipulation have not been followed with regard to his own case, such individual shall file a grievance pursuant to DOCS Directive #4040, and send a copy of the grievance to plaintiffs’ counsel. If the individual class member still believes that the terms of this
20

Stipulation have not been followed upon conclusion of the grievance process, he may move the court for an order directing specific performance of a term or terms of this Stipulation as such relates to his own case. Any such motion, and any order issued by the court, must set forth (a) the specific term(s) of this Stipulation that the individual asserts has been violated regarding his case, (b) a concise statement of facts supporting such allegation and (c) a description of the specific relief sought. The terms of such order shall not include a finding of contempt or any contempt sanctions; however, the court shall have authority to enforce the performance of such order as it relates to the inmate’s case.
62. This Stipulation is for injunctive relief only. Its terms are not intended to restrict, modify or enhance, in any way, any claims for damages that a class member may have by way of a separate lawsuit, any defense(s) to such claims that may be available to defendants, or the legal requirements, procedures or standards to be employed in determining any such claims or defenses.
63. This Stipulation does not constitute (a) an admission by any defendant of any violation of law or wrongdoing, (b) an admission by any defendant that any standard, policy, practice or procedure addressed in this action violated or failed to comply with either the language or the intent of any applicable law, rule or regulation, or (c) an admission by any defendant that its position in this litigation was not substantially justified. This Stipulation may not be used for any purpose other than one brought to enforce the provisions of this Stipulation and Order. M. Notice to Class Members
21

64. All inmates in SHU at the time this Stipulation is “so ordered” and each inmate entering SHU during the monitoring period shall receive a copy of the Stipulation, as well as a notice written in Spanish informing such inmate that a Spanish language version is available upon request.
65. Copies of this Stipulation, in English and Spanish, shall also be available, upon request in Attica’s law library.
66. A summary of the terms of the Stipulation, in English and Spanish, shall be posted in the Satellite Unit.
67. Plaintiffs’ counsel shall be responsible for obtaining a Spanish language translation of this Stipulation. Defendants’ counsel may review such translation for accuracy, prior to its dispersal.
22

 
 849 F.2d 80 (1988)
George ENG, Joel Clayman, Ronald West, Martin Spence, John Griffin, Joseph Rivera, Raheem Supreme, and Alonzo Starling individually and on behalf of all persons similarly
situated, Plaintiffs-Appellees, v.
Harold J. SMITH, Superintendent of Attica Correctional Facility, Charles James, Deputy Superintendent of Attica Correctional Facility, Thomas A Coughlin, III, Commissioner of Corrections of New York State, Correction Officers Amico, Bannon, Bishop, Calderon,
Mannon, Shahahan, Smith, Wagner, Wolfe, and other presently unnamed Correction Officers employed by Attica Correctional Facility all individually and in their official
capacities, Defendants-Appellants.
No. 1153, Docket 88-2101.
United States Court of Appeals, Second Circuit.
Argued May 26, 1988. Decided June 13, 1988.
Joseph L. Gerken, Buffalo, N.Y., Prisoners' Legal Services of New York (David C. Leven, Executive Director, of counsel), for plaintiffs-appellees.
Peter G. Crary, Albany, N.Y., Asst. Atty. Gen. of the State of N.Y. (Robert Abrams, Atty. Gen., State of New York, Peter H. Schiff, Deputy Sol. Gen., Nancy A. Spiegel, Asst. Atty. Gen., of counsel), for defendants-appellants.
Before FEINBERG, Chief Judge, NEWMAN and PRATT, Circuit Judges.
FEINBERG, Chief Judge:
This is an interlocutory appeal pursuant to 28 U.S.C. § 1292(a)(1) from an order of the United States District Court for the Western District of New York, Michael A. Telesca, J., granting a preliminary injunction in a class action pursuant to 42 U.S.C. § 1983 challenging the conditions at the Special Housing Unit (SHU) at the Attica Correctional Facility. The preliminary injunction requires the defendants in the class action (appellants here) to provide mental health services at Attica in accordance with various specified procedures.
The underlying class action in this case has had a long and protracted history. For our purposes now, it is only important to note that following the June 1985 suicide of Anthony Dzeilak, an SHU inmate with a history of mental health problems, the class action plaintiffs moved to enjoin defendants from confining mentally ill inmates in SHU 81 and from harassing inmate *81 witnesses; to require screening and mental health training of SHU corrections officers; and to remove several officers from SHU duty who allegedly had harassed inmates with mental health disorders. The district court held five evidentiary hearings during which the court heard extensive testimony from plaintiffs' and defendants' experts as well as from the New York State Office of Mental Health (OMH) regarding the treatment of inmates with mental health problems at Attica, and in SHU in particular. Following the hearings, the parties engaged in extensive negotiations in an attempt to reach a settlement, and, at the court's request, OMH participated in the negotiations.
In January 1987, when it became clear that defendants would not agree to any consent order, the court issued an order pursuant to Rule 23(d) of the Federal Rules of Civil Procedure and 28 U.S.C. § 1651, ordering relief based largely upon a proposal that had been submitted by OMH. However, the court apparently adopted virtually all of the changes to the order that defendants had suggested. The court viewed its action as akin to imposing a consent decree upon the parties and specifically declined to make the requisite factual findings needed to support a preliminary injunction. Defendants appealed and in September 1987 we remanded, directing the district court to enter findings of fact and conclusions of law as to the legal bases for a preliminary injunction. We neither

foreclosed nor required further evidentiary hearings on whether conditions had changed sufficiently from the time of the original evidentiary hearings as to affect the propriety of preliminary injunctive relief.
On remand, defendants argued that plaintiffs had failed to meet their burden of showing a likelihood of success on the merits and irreparable injury and that therefore preliminary injunctive relief was not appropriate. While apparently not objecting to additional hearings, defendants stated that "no further hearings are necessary in order to determine this motion." The district court rejected defendants' arguments and entered findings of fact and conclusions of law in support of preliminary injunctive relief pursuant to Rule 65 of the Federal Rules of Civil Procedure. The court concluded that plaintiffs had made a showing of substantial likelihood of success on the merits of their constitutional claim and that the potentially devastating effects of the SHU environment on a mentally ill inmate, as illustrated by Dzeilak's death, were sufficient to establish irreparable harm. The court then reissued its January 1987 injunctive order. This second appeal followed.
Appellants argue that the district court abused its discretion in finding that appellees had established a likelihood of success on their claim of constitutional deficiencies in the Attica mental health care system. They claim that there is no basis in the record for finding systemic constitutional deficiencies, asserting that the evidence largely focuses on the treatment of one inmate, namely, Anthony Dzeilak, during a two month period prior to his death. Appellants contend that the inadvertent failure to provide adequate medical care to one individual does not establish a constitutional violation. See Estelle v. Gamble, 429 U.S. 97, 105-06, 97 S.Ct. 285, 291-92, 50 L.Ed.2d 251 (1976). Moreover, they argue that unrebutted testimony in the record establishes that the mental health system in place in 1985 provided complete and effective care to all inmates at Attica, including those in SHU. Appellants also argue that the district court abused its discretion in making a finding of irreparable injury without inquiring into the current conditions at Attica. They claim that they have voluntarily implemented substantially all of the procedures mandated in the court's preliminary injunction and that therefore appellees would not suffer irreparable injury if preliminary injunctive relief were denied.
A party seeking preliminary injunctive relief must establish (a) that the injunction is necessary to prevent irreparable harm and (b) either that (i) it is likely to succeed on the merits of the underlying claim or (ii) there are 82 sufficiently serious questions going to the merits of the claim as to make it a fair ground for litigation *82 and that the balance of the hardships tips decidedly toward the movant. Abdul Wali v. Coughlin, 754 F.2d 1015, 1025 (2d Cir.1985). As we noted in Abdul Wali,
A movant seeking to avail himself of the first alternative need not show that success is an absolute certainty. He need only make a showing that the probability of his prevailing is better than fifty percent. There may remain considerable room for doubt.
Id. In Abdul Wali, however, the court also stated that where injunctive relief does not merely maintain the status quo, but rather grants the movant substantially all the relief he ultimately seeks, a more stringent standard is required 0907 the movant "must show a substantial likelihood of success on the merits, i.e., that [his] cause is considerably more likely to succeed than fail (together, of course, with the requisite irreparable injury)." Id. at 1026. It is this heightened standard that the district court applied in this case. The court in Abdul Wali also indicated that a similar heightened standard applies to mandatory injunctions, that is, injunctions that disturb the status quo by ordering affirmative relief, as opposed to prohibitory injunctions which preserve the status quo. However, the court expressed some doubt as to whether there was a principled means of distinguishing in general between mandatory and prohibitory injunctions. Id. at 1025-26. See also C. Wright & A. Miller, Federal Practice and Procedure, Civil § 2948, at 465-66 (1973), which notes that the doctrine that preliminary injunctions should be disfavored when they disturb the status quo has been subject to academic and judicial criticism.
It is far from clear that a heightened standard for granting preliminary injunctive relief is appropriate in this case. In Abdul Wali, the plaintiffs sought access to a specific report detailing conditions within Attica. The "preliminary" injunction issued by the district court enjoined the defendants there from interfering with the delivery of the report, thus granting plaintiffs substantially all the relief they ultimately sought, in effect, as if the injunction had been permanent. Here, plaintiffs have not been granted all the relief they seek. The preliminary injunction merely protects the rights of the plaintiff class until a final determination on the merits is reached. If their mental health care claims are ultimately unsuccessful, the relief will end 0907 the preliminary relief they would have obtained in the interim would in no way have been complete. Moreover, since the injunction merely mandates that appellants

maintain procedures that appellants themselves claim are already substantially in effect, it does little more than maintain the status quo.
The standard for reviewing the scope and type of injunctive relief issued by a district court is whether the relief amounts to an abuse of the court's equitable remedial discretion. Dean v. Coughlin, 804 F.2d 207, 213 (2d Cir.1986). We recognize that "[a]lthough a federal district court's powers are broad, `appropriate consideration must be given to principles of federalism in determining the availability and scope of equitable relief,' ... when it comes to regulating a state's administration of its own facilities, including its schools and prisons." Id., quoting Rizzo v. Goode, 423 U.S. 362, 379, 96 S.Ct. 598, 608, 46 L.Ed.2d 561 (1976).
On the record before us, we believe that the district court acted within its discretion in ordering preliminary injunctive relief in this case and that the scope of the relief ordered was within permissible limits. The court had sufficient support in the record to determine that plaintiffs are likely to succeed on the merits of their claim that officials at Attica demonstrated a "deliberate indifference to serious medical needs of prisoners...." Estelle v. Gamble, 429 U.S. at 104, 97 S.Ct. at 291. Despite their focus on the specific treatment of Dzeilak, plaintiffs put forward sufficient evidence to support the court's finding of systemic deficiencies in Attica's mental health system. It is important to note, however, that we do not decide at this stage whether defendants' actions actually met the 83 "deliberate indifference" standard, but only that the district court did not *83 abuse its discretion in determining that plaintiffs are likely to succeed on their claim. Moreover, we do not believe that the court abused its discretion in finding irreparable harm. Although defendants claim to have voluntarily implemented substantially all of the ordered relief, without a preliminary injunction there is nothing to prevent defendants from abandoning procedures which the court determined to be necessary to protect plaintiffs' constitutional rights. And, as the incident involving Dzeilak illustrates, the consequences of defendants' failure to adhere to proper procedures can be severe.
This is not a case like Dean v. Coughlin, where the district court "went too far and too fast in imposing upon the state correctional facility its own ideas of how a prison ..." should be run. 804 F.2d at 214. The court took painstaking efforts to try and reach a settlement among the parties and only when those efforts failed did it order limited relief to provide safeguards for seriously mentally ill inmates pending resolution of the case. And, the relief ordered apparently does not go much beyond procedures that defendants have voluntarily implemented and is apparently based on the recommendations of New York's OMH.
We therefore affirm the order of the district court. In light of the period of time that has elapsed since appellees' original motion, the trial judge might consider a severance of the mental health claims from the other claims in the class action, in order to bring these claims to prompt resolution. However, we do not suggest that a severance is necessary if either party objects and the district court determines that countervailing considerations make a severance undesirable.
Order affirmed.
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 865 F.2d 521 (1989)
George ENG, Joel Clayman, Ronald West, Martin Spence, John Griffin, Joseph Rivera, Raheem Supreme, Alonzo Starling, Kevin Richardson, Individually and on behalf of all
persons similarly situated, Plaintiffs-Appellees, v.
Thomas A. COUGHLIN, III, Commissioner of Corrections for the State of New York; Arthur Leonardo, Deputy Commissioner of Correctional Services; Donald Selsky, Acting Director
of Special Housing, Department of Correctional Services; Harold J. Smith, Superintendent, Attica Correctional Facility; William McAnulty, Deputy Superintendent,
Attica Correctional Facility, in their official capacities, Defendants, v.
NEW YORK STATE INSPECTION, SECURITY AND LAW ENFORCEMENT EMPLOYEES, DISTRICT COUNCIL 82, AFSCME, AFL-CIO, William Stranahan and Donald Dylag, Intervenors-Proposed-Defendants-Appellants.
No. 74, Docket 88-2207.
United States Court of Appeals, Second Circuit.
Argued October 28, 1988. Decided January 12, 1989.
Anna Marie Richmond, Buffalo, N.Y. (Prisoners' Legal Services of New York, Buffalo, N.Y., David C. Leven, Executive Director, Judith Subjeck Stadler, Timothy E. Jennings, Law Clerk, Edna Y. Torres, Law Clerk, of counsel), for plaintiffs-appellees.
Robert S. Hite, Albany, N.Y. (Rowley, Forrest and O'Donnell, P.C., Albany, N.Y., Brian O'Donnell, Mark T. Walsh, of counsel), for intervenors-proposed-defendants-appellants.
Robert Abrams, Atty. Gen. of the State of N.Y., Albany, N.Y. (Peter G. Crary, Asst. Atty. Gen. of the State of N.Y., Dept. of Law, of counsel), for defendants.
Before LUMBARD, PRATT and MAHONEY, Circuit Judges.
522 *522 LUMBARD, Circuit Judge:
This interlocutory appeal, from a partial denial of an application for leave to intervene, is taken by the collective bargaining representative for certain state prison officers and by two of those officers whose superiors are defendants in a class action brought in 1980 by certain inmates at Attica Correctional Facility. The inmates allege that prison authorities and state correctional officials permitted the prison guards to violate many of their constitutional guarantees, including those against cruel and unusual punishment. After they moved for a preliminary injunction directing, inter alia, the removal of certain guards from their posts, the guards' collective bargaining representative, District Council 82 of the New York State Inspection, Security and Law Enforcement Employees, AFSCME, AFL-CIO (Council 82), William Stranahan and David Dylag moved to intervene under Rule 24, Fed.R.Civ.P., claiming that the interests of Council 82's members were at stake and inadequately represented in the lawsuit. The District Court for the Western District of New York, Michael A. Telesca, Judge, granted the intervenors leave to intervene only to the extent necessary to challenge the discovery by the inmates of the guards' personnel records. The intervenors complain of that limited grant and ask us to consider Judge Telesca's grant of limited intervention as a complete denial of intervention under Rule 24 and to reverse that denial and direct the admission of the intervenors as parties to the proceedings. Because we find that the restricted grant of leave to intervene may be appealed after any final judgment in the underlying action, we dismiss the appeal.

I.
This is a class action alleging that the defendants, all state correction officials or prison authorities at Attica Correctional Facility in Attica, New York, have systematically violated the constitutional rights of the inmates of Attica's Special Housing Unit (SHU), a segregated and highly restricted disciplinary prison unit. The named plaintiffs are all inmates of New York State prisons who are presently confined in the Attica SHU or have been so confined in the recent past. They sought to have a class certified under Rule 23, Fed.R.Civ.P., consisting of all persons who have been, are presently, or will in the future be, incarcerated in the SHU. The class is large, transitory and its members are difficult to identify precisely, since the Board of Corrections has not made available the identities of all those confined in the SHU during the relevant period. Chief Judge John T. Curtin, then presiding over the case, certified the class on October 19, 1981.
In their second amended class action complaint,[1] filed October 27, 1983, the inmates complain that the conditions under which they are confined are "inhumane, intolerable and are not consistent with concepts of fundamental human decency." They allege violations of their rights to free exercise of religion, to access to the courts and against cruel and unusual punishment, in contravention of the First, Sixth, Eighth and Fourteenth Amendments to the Constitution and the equivalent articles of the New York State Constitution. The inmates also allege that the severity of their confinement deprives them of their Fourteenth Amendment right to due process of law. Finally, they allege violations of the New York State Correction Law and certain state regulations.
Specifically, the complaint enumerates nine separate claims. First, their mates claim that the defendants knowingly allow the prison guards to beat the inmates, causing pain, bodily injury and permanent disabilities. 523 Second, they allege that they are confined for twenty-three hours every day *523 in windowless steel cells with plexiglass shields covering the fronts of the cells, and are thus deprived of adequate ventilation. Their third claim is that their medical complaints are not handled adequately, that the defendants do not monitor the inmates' health and that the defendants permit an illegal and indifferent health care system to continue. Fourth, the inmates claim that they are confined for twenty-three hours a day for six months at a time, during which periods their one daily hour for "exercise" is spent inadequately clothed in an exercise room that is open to the elements, unheated, uncleaned and unsanitary. Fifth, they allege that the defendants permit the guards to restrict the inmates' food supply or deny food entirely, that the food is served in unsanitary vessels and that no allowance is made for the religious dietary needs of the inmates. Sixth, the inmates complain of generally unsanitary conditions in their cells, with no cleaning supplies available and with hot water provided only to those inmates who can afford to purchase a bucket. Seventh, the inmates allege that the defendants permit the guards to confiscate the inmates' clothing and force them to remain naked in cells without bedding or running water. Eighth, they complain that they are not permitted access to the prison's legal resources and that their right to privileged communications with their attorneys is routinely violated. Finally, they allege that they are deprived of their right to free exercise of religion while incarcerated in the SHU.
In this second amended complaint, the inmates ask the court to declare that their rights are being violated, and they seek an injunction prohibiting the defendants, their agents and their employees from subjecting them to the unlawful and unconstitutional conditions alleged in the complaint.
While discovery was underway, the inmates found that their situation was deteriorating. Specifically, they alleged that the conditions in the SHU and harassment by the prison guards led one Anthony John ("Mike") Dzeilak, a mentally ill inmate of the SHU, to commit suicide on June 3, 1985. The inmates alleged that the corrections officers who work in the SHU were aware of Dzeilak's mental instability and that they deliberately beat him, provoked him and harassed him into taking his own life. On the strength of these events, and upon allegations of a routine of similar deprivation and harassment affecting all of the inmates in the SHU, the inmates moved on September 20, 1985 for a preliminary injunction (1) to order the defendants to remove mentally ill inmates from the SHU; (2) to order the defendants to alter the method by which guards are chosen for the SHU, replacing the existing seniority system with a procedure for screening and training prospective SHU guards; (3) to enjoin defendants and their agents from harassing or causing harm to certain other inmates who the inmates alleged

were subject to abuse akin to that of Dzeilak; and (4) to order the defendants to remove from duty in the SHU eight named correction officers, two of whom (Stranahan and Dylag) are now intervenors in the case.
This was the first formal request for relief against specific correction officers. (The inmates have contended throughout these proceedings that the guards' failure to wear their required identification badges makes their identities difficult for them to ascertain.) In response, Council 82, William Stranahan and Donald Dylag, by Order to Show Cause filed October 9, 1985, applied for leave to intervene as of right under Rule 24(a)(2), or, in the alternative, for permissive intervention under Rule 24(b). They argued in their application that their ability to protect their interests may be impeded if the inmates' requested relief is granted. Specifically, they alleged that, if the inmates' preliminary injunction was granted, members of Council 82 would be substantially affected and that protracted proceedings would be necessary to determine the rights of Council 82 members working in the SHU. Additionally, they alleged that the correction officers' privacy rights would be violated if the inmates were permitted discovery of portions of their personnel records.
524 Joseph Puma, President of Council 82, claimed in his affidavit that the relief demanded *524 by the inmates would greatly impair Council 82's members' interests. He alleged that the relief, which includes modifications and alterations in the present methods of discipline, safety and staffing in the SHU, would have a "devastating effect upon the rights secured for members of Council 82 by the collective bargaining agreement" between Council 82 and the state. Puma asserted that the preliminary injunction, if granted, would violate the terms of the collective bargaining agreement in several specific respects: First, requiring the guards assigned to the SHU to be screened and trained would violate the terms of the contract relating to the current seniority-based method of selection of guards for the SHU and the contractual ban against "job bumping" (one employee's passing over another who has higher seniority). Second, a decision by the court to remove certain guards would violate the discipline, grievance and "job bumping" provisions. Finally, Puma alleged that the changes in the conditions of the inmates' incarceration (such as the removal of the plexiglass cell fronts) would subject the guards to safety hazards in violation of their contractual rights.
On October 16, 1985, Judge Telesca granted the motion for intervention only "to the limited extent necessary for the [intervenors] to be heard on the [inmates'] application for discovery and examination of certain personnel files belonging to various correction officers" and reserved decision on the remainder of the application.
Judge Telesca finally, on January 28, 1988, granted the inmates' request for a preliminary injunction, which had been filed on September 20, 1985. The preliminary injunction requires the defendants to provide mental health services in the SHU in accordance with specified procedures. Included in the list of procedures are modifications in the staffing of the SHU and the requirement of proper training, monitoring and disciplinary procedures for the guards. We affirmed Judge Telesca's grant of a preliminary injunction in June 1988. Eng v. Smith, 849 F.2d 80 (2d Cir.1988).
On April 1, 1988, after much discovery had been conducted and the preliminary injunction granted, Judge Telesca denied the intervenors' request for total intervention. He did, however, grant the intervenors permission to renew their motion in the future should circumstances indicate the need to do so.
Judge Telesca denied the request for intervention on the grounds that the application was untimely and that the intervenors' interests were adequately represented by the named defendants in the case. He found that the defendants had vigorously sought to protect the records of the guards and argued strongly on behalf of the proposed intervenors. Therefore, he held that the denial of the application would not unduly prejudice the interests of Council 82, Stranahan or Dylag. This appeal followed.
II.
We hold that we are without jurisdiction to consider the intervenors' interlocutory appeal. Because the intervenors are now parties to the proceedings by virtue of Judge Telesca's grant of intervention for discovery purposes, they will have a full opportunity to raise their claim on appeal following final disposition on the merits in the district court. The fact that they may appeal later precludes us from hearing their appeal now. Moreover, Judge Telesca's decision will not jeopardize their ability adequately to represent their interests under their collective bargaining

agreement. These interests are not, despite the intervenors' assertions to the contrary, of primary importance in this action, which concerns the deprivation of the constitutional rights of the inmates by certain correction officers and the state authorities.
We arrive at our conclusion that this appeal is premature through reference to the finality doctrine set forth in 28 U.S.C. § 1291 and the collateral order exception thereto. Section 1291 provides that "[t]he courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts...." While Judge Telesca's order clearly is 525 not final in the traditional sense, in that it does not "end[] the litigation *525 on the merits and leave[] nothing for the court to do but execute the judgment", see Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945), quoted with approval in Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 107 S.Ct. 1177, 1181, 94 L.Ed.2d 389 (1987), we must address Council 82's argument that his order granting intervention for the sole purpose of seeking to protect certain records from discovery is within that class of orders deemed reviewable under the collateral order exception. The intervenors argue that the order denying them full intervention is sufficiently separate from, and collateral to, the rights asserted in the underlying action, and of such importance, that we should not require their appeal to await final judgment in the case. See Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949).
To be reviewable as a collateral order, a decision must "(i) `conclusively determine the disputed question'; (ii) `resolve an important issue completely separate from the merits of the action'; and (iii) `be effectively unreviewable on appeal from a final judgment.'" Stringfellow, supra, 107 S.Ct. at 1182, quoting from Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978). We hold that Judge Telesca's limitation of intervention is reviewable on appeal from a final judgment and also that it does not involve an important issue completely separate from the merits of the action.
The intervenors argue that the district court's decision denying them status as a full intervenor as of right is immediately appealable because it deprives them of the ability to protect their bargained-for contract rights. They claim that the effect of the district court ruling is their complete exclusion from the lawsuit and a consequential inability to protect their interests. Had Judge Telesca's order completely severed them from the litigation, that denial of leave to intervene would indeed have been interlocutorily appealable. Brotherhood of Railroad Trainmen v. Baltimore & Ohio R.R. Co., 331 U.S. 519, 67 S.Ct. 1387, 91 L.Ed. 1646 (1947). However, the intervenors have not been entirely excluded from the case. They are parties to it and may appeal any part of the judgment that they feel adversely affects their interests. Moreover, Judge Telesca explicitly provided in his order denying the intervenors full intervention that their application could be renewed in the event of future developments.
We are guided by Stringfellow, supra, in which the Supreme Court addressed this same question of whether a restricted grant of permissive intervention should be immediately appealable as a denial both of intervention as of right and of unrestricted permissive intervention. Here, as in Stringfellow, an organization seeks status as an intervenor to protect interests that may be affected by the outcome of the litigation but that are peripheral to the gravamen of the complaint. In Stringfellow, Concerned Neighbors in Action (CNA), a nonprofit community organization whose members lived near an abandoned hazardous waste disposal site, sought full intervention in a suit brought against the owners, operators and users of the dumpsite by the United States and the State of California to compel a cleanup of the dumpsite. CNA moved for intervention as of right, arguing that it had a substantial interest in the suit that would not be represented adequately by the other parties and that, in such a large-scale litigation, the intervention decision would not be effectively reviewable after entry of a final judgment on the merits. This claim is quite similar to the intervenors' assertions here that their interests in maintaining the sanctity of their collective bargaining agreement with the state may be jeopardized if the relief the inmates request is granted.
The Supreme Court in Stringfellow disagreed with CNA, holding that the intervenor had become a party to the suit by virtue of the grant of restricted permissive intervention and therefore could obtain effective post-judgment review of its claims concerning the scope of the grant of intervention. The Court concluded that the court of 526 appeals lacked jurisdiction to hear *526 the appeal. Here, Council 82 may later appeal the district court's limited grant of intervention; the Court in Stringfellow explicitly refused to extend the collateral order doctrine to provide pre-judgment relief to any party enjoying "the same rights of appeal from a final judgment as all other parties" to

the litigation. Id. 107 S.Ct. at 1183. See also Securities and Exchange Commission v. Chestman, 861 F.2d 49 (2d Cir.1988) (a grant of permissive intervention under Rule 24(b) may not be challenged in an interlocutory appeal).
The intervenors attempt to distinguish Stringfellow on the ground that the grant here of highly restricted permissive intervention, with leave to intervene at only one point in the proceedings, is tantamount to a complete denial of intervention and thus is susceptible to immediate appellate review under Railroad Trainmen. They urge us to distinguish Stringfellow and Shore v. Parklane Hosiery Co., 606 F.2d 354 (2d Cir.1979), on the ground that Judge Telesca's decision allows them a much more limited role than that which the intervenors enjoyed in Stringfellow and Parklane Hosiery.
We find this argument unpersuasive. The holding in Railroad Trainmen permitting prejudgment appeal depended upon the fact that the putative intervenor had been terminated as a party. Here, as in Parklane Hosiery and Stringfellow, the intervenor was made a party to the litigation, albeit only for a specific purpose. The Stringfellow rule does not provide for any calculation of the extent to which the intervenors are involved. While Council 82 correctly points out that intervention only to contest discovery of certain personnel records is indeed an extremely limited grant of intervention, the essential fact remains that it can challenge that grant on appeal following a final determination of the case on the merits. The restricted leave to intervene is, therefore, not tantamount to a complete denial of intervention. Moreover, the question of the degree of Council 82's intervention may be reopened since Judge Telesca specifically informed the intervenors that they would be permitted to renew their application if such action becomes necessary in order to protect their interests.
The intervenors contend that their rights on appeal after final judgment will be limited to only those parts of the final judgment that implicate its basis for requesting intervention. We do not agree, however; the intervenors may appeal any aspect of the final judgment that affects them. Stringfellow explicitly recognized that an intervenor has the same right of appeal as any other party, Stringfellow, supra, 107 S.Ct. at 1182, and that the court of appeals may consider whether a broader grant of intervention might have affected the final judgment. Id. at 1183.
We also disagree with the intervenors' argument that their interests are in grave danger if they are not permitted to intervene as of right and that their need to be involved in all aspects of the litigation is thus greater than was the need of CNA in Stringfellow. The nature of the underlying action here is such that the intervenors' interests must be subordinated to those of the named parties.
The conduct of the guards assigned to the SHU must be such as to ensure against any violations of the inmates' constitutional rights. This consideration must take precedence over any provision of the collective bargaining agreement to which Council 82 is a party. The inmates allege that the state officials sanction the guards' continuance of egregious practices that unconstitutionally deprive the inmates of their rights. If part of the relief fashioned by the court directs changes in the state's practices regarding staffing and training in the SHU, the constitutional necessity of effecting those changes will outweigh any burdens imposed on the collective bargaining agreement that such changes might require. The fact that the contract provides methods for the hiring, training and safety of the guards does not justify the continuance of any constitutional violations. There will be ample opportunity later for the state and Council 82 to negotiate those alterations to ensure that the guards' 527 interests are not unduly compromised. In the meantime, Judge Telesca's decision to permit the *527 intervenors to intervene to the extent necessary to protect the privacy interests of Council 82's members, with leave to reapply for more extensive intervention should other rights of the guards be threatened, provides the intervenors with an appropriate role in the ongoing litigation.
Appeal dismissed.
MAHONEY, Circuit Judge (concurring):
I am in general agreement with Judge Lumbard's excellent opinion, and write separately only to address the two paragraphs that precede its concluding sentence.
The proposed intervenors' interests are obviously subordinated to any constitutional rights of the plaintiffsappellees, in the sense that no collective bargaining agreement could authorize prison guards to violate the constitutional rights of prisoners. Prison guards and organizations representing them nonetheless have standing to assert their contractual rights in litigation where prisoners claim a violation of their constitutional rights. See

Forts v. Ward, 621 F.2d 1210, 1215 n. 8 (2d Cir.1980), and authorities there cited. It seems especially inappropriate to assert or imply that prison guards whose specific removal from their posts is sought in this litigation are relegated to post-litigation collective bargaining to protect their interests.
In any event, I agree that we do not have jurisdiction over this appeal, and assume with the majority that Judge Telesca will allow broadened intervention should that be appropriate as the litigation proceeds.
[1] The inmates originally proceeded pro se, filing their complaint on May 6, 1980 on a form provided to prisoners under 42 U.S.C. § 1983. On their behalf, the Legal Assistance Program at the State University of New York, Buffalo School of Law, representing the inmates, filed a first amended class action complaint on June 5, 1981. The two years between the filings of the first and second amended class action complaints were spent in class certification proceedings, case consolidation and early discovery.
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 726 F.Supp. 40 (1989)
George ENG, Joel Clayman, Ronald West, Martin Spence, John Griffin, Joseph Rivera, Raheem Supreme, Alonzo Starling, Kevin Richardson, Individually and on behalf of all
persons similarly situated, Plaintiffs, v.
Thomas COUGHLIN, III, Commissioner of Corrections for the State of New York; Arthur Leonardo, Deputy Commissioner of Correctional Services; Donald Selsky, Acting Director
of Special Housing, Department of Correctional Services; Harold J. Smith, Superintendent, Attica Correctional Facility; James Cochran, Deputy Superintendent, Attica Correctional Facility; William McAnulty, Deputy Superintendent, Attica Correctional
Facility, in their official capacities, Defendants.
No. CIV-80-385T.
United States District Court, W.D. New York.
November 22, 1989.
Robert Lonski, Buffalo, N.Y., for plaintiffs.
N.Y. State Atty. Gen. (Charles D. Steinman, Asst. Atty. Gen. of counsel), Rochester, N.Y., U.S. Attys. Office (Kathleen M. Mehltretter, Asst. U.S. Atty., of counsel), Buffalo, N.Y., for defendants.
David Rowley, Rowley, Forest & O'Donnell, Albany, N.Y., for intervenors.
DECISION AND ORDER
TELESCA, Chief Judge.
Plaintiffs move pursuant to Fed.R. Crim.P. 6(e)(3)(C)(i) for an order to disclose testimony given before a federal grand jury which was convened September 16, 1985 to investigate allegations of mistreatment of prisoners by Attica Correctional Facility officers.[*] Certain individual employees of the New York State Department of Correctional Services ("DOCS") have cross-moved to intervene in this action for the limited purpose of opposing disclosure of the testimony which they gave before the Grand Jury. This cross-motion is granted. Fed.R.Civ.P. 24 41 (a). For the reasons discussed briefly below, I defer decision *41 on plaintiffs' motion to compel disclosure of the grand jury testimony pending my receipt and in camera review of such testimony.
Fed.R.Crim.P. 6(e)(2) codifies the "seal of secrecy" which has been historically imposed upon grand jury proceedings. Fed. R.Crim.P. 6, Notes of Advisory Committee. Subdivision (e), subsection (3) of Rule 6 articulates the exceptions to that general rule of secrecy. In relevant part, it provides that disclosure which would otherwise be prohibited is permitted
(i) when so directed by a court preliminarily to or in connection with a judicial proceeding[.]
As the Supreme Court has acknowledged, "Neither the text of the rule nor the accompanying commentary describes any substantive standard governing issuance of such orders." The courts have, however, "consistently construed the rule [] to require a strong showing of particularized need for grand jury materials before any disclosure will be permitted." U.S. v. Sells Engineering, Inc., 463 U.S. 418, 103 S.Ct. 3133, 3148, 77 L.Ed.2d 743 (1983) (emphasis added). A party seeking grand jury transcripts under Rule 6(e) must show that the material sought "is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that [the] request is structured to cover only material so needed. ..." Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 222, 99 S.Ct. 1667, 1674, 60 L.Ed.2d 156 (1979).

A showing, however strong, that the material sought is merely relevant to another action does not justify its disclosure. Sells Engineering, 103 S.Ct. at 3149. And, even should a party adequately demonstrate a particularized need for grand jury materials so as to warrant their disclosure, the "policies of Rule 6 require that any disclosure to attorneys other than prosecutors be judicially supervised rather than automatic." Id. at 3144.
In this case, plaintiffs state that the testimony is required, notwithstanding the extensive discovery of DOCS personnel which plaintiffs have already undertaken in this civil action, because of the "Code of Silence" in place among correctional officers, "an unspoken, unwritten understanding [among] DOCS employees which prohibits them from coming forward with evidence confirming that fellow colleagues participated in unauthorized conduct which, if revealed, would result in disciplinary sanctions against them." Plaintiffs have submitted excerpts from the deposition testimony of DOCS employees to demonstrate their adherence to this "Code of Silence." They argue that testimony given before the grand jury, possibly under the grant of immunity, may serve to impeach or to refresh the memories of these witnesses in this action.
In opposition to this application for disclosure of the grand jury testimony, both the United States Attorney and the New York State Attorney General argue that plaintiffs have failed to demonstrate any particularized need for the grand jury materials which cannot be met through other sources. While the possibility of obtaining information from alternative sources is an important factor, it does not determine whether grand jury testimony may be disclosed. Even were all relevant material, including bases for impeachment, obtainable through the civil discovery tools available to the plaintiffs, there is no per se rule against disclosure of related grand jury testimony. U.S. v. John Doe, Inc. I, 481 U.S. 102, 107 S.Ct. 1656, 1664, 95 L.Ed.2d 94 (1987).
Accordingly, I find that plaintiffs have made a sufficiently strong showing to justify an in camera review of the grand jury testimony in order to determine whether, and to what extent, it should be disclosed. I find that such in camera review will adequately protect not only the integrity of the grand jury system but also the personal interests expressed by the individual intervenors. I further find that, in order to structure any disclosure as narrowly as possible, the Court requires a list of the names and official positions of all witnesses who have been 42 deposed by plaintiffs in this action, as well as a list of *42 names of any other individuals whom plaintiffs' attorneys believe, in good faith, may have testified, or been the subject of testimony, before the grand jury. See Sells Engineering, 103 S.Ct. at 3148.
WHEREFORE, the motion of John Doe, John Smith and William Stranahan to intervene in this action for the limited purpose of opposing disclosure of the grand jury testimony is granted pursuant to Fed.R. Civ.P. 24; the United States Attorney is ordered to provide to this Court the transcripts of the proceedings of the grand jury convened September 16, 1985, for purposes of an in camera review, following which this Court shall decide the extent to which plaintiffs' application for disclosure of that testimony will be granted.
ALL OF THE ABOVE IS SO ORDERED.
[*] For a discussion of the background of this case, see Eng v. Coughlin, 865 F.2d 521 (2d Cir.1989).
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 Eng v. Scully, 146 F.R.D. 74 (1993)
146 F.R.D. 74 United States District Court,
S.D. New York.
George ENG, Plaintiff, v.
Charles SCULLY, R. Hansen, A. Scalf, P. Bendon and J. Holt, Defendants.
No. 84 Civ. 5056 (MJL). | Feb. 1, 1993.
Attorneys and Law Firms
*76 Cahill Gordon & Reindel, Attorneys by David Januszewski, New York City, for plaintiff.
Gleason, Dunn, Walsh & O’Shea (Ronald Dunn, of counsel), Albany, NY, for defendant Scully.
Peter Henner, Albany, NY, for defendant Hansen.
Angelo & Fitzgerald, Attorneys by Edmund Fitzgerald, Bronxville, NY, for defendant Scalf.
Spiegel, Pergament, Brown & Basso by Joseph Spiegel, Poughkeepsie, NY, for defendants Bendon and Holt.
Opinion
OPINION AND ORDER
LOWE, District Judge.
Before the Court are motions in limine by Plaintiff George Eng and by Defendants *77 jointly, requesting that the Court exclude certain evidence proffered by the opposition. For the reasons set forth below, the Plaintiff’s motion is granted, and the Defendants’ motion is granted in part and denied in part.
BACKGROUND
This motion arises out of an action resulting from a September 30, 1983, altercation between Plaintiff and Defendants (the “September incident”). Plaintiff Eng is an inmate in the New York State Correctional System. Defendant Charles Scully is Superintendent of the Green Haven Correctional Facility (“Green Haven”), the facility in which the September incident occurred. The remaining Defendants are corrections officers at Green Haven. Plaintiff’s action is brought pursuant to 42 U.S.C. § 1983.

The issue in this action is whether Defendant corrections officers’ use of force against Plaintiff rose to the level of a violation of Plaintiff’s Constitutional rights, and whether Defendant Scully is liable as their supervisor for failing to take adequate precautionary measures to protect Plaintiff from such conduct.
The September incident occurred while Plaintiff was being escorted from his temporary residence at Green Haven to a vehicle waiting to transport him to the Clinton Correctional Facility. It is undisputed that force was used against the Plaintiff by Defendants in response to Plaintiff’s spitting upon one of the officers; in dispute is the reasonableness of that force.
Plaintiff alleges that while being escorted through the Green Haven facility, one of the Defendants struck at him and directed profanities and epithets towards him. Plaintiff alleges that he responded by spitting and cursing at Defendant. This, he alleges, was followed by an excessive use of force against him by Defendants. Defendants deny that any actions by corrections officers precipitated Plaintiff’s conduct or that any improper conduct occurred on their part. Defendants contend that the alleged unprovoked actions of Plaintiff were done for the purpose of evoking a response from Defendants on which Plaintiff could later base a § 1983 action.
DISCUSSION
I. Plaintiff’s Motion. Plaintiff seeks to preclude Defendants from presenting the following evidence: (1) evidence of Plaintiff’s disciplinary records while incarcerated; (2) evidence of Plaintiff’s criminal record; and (3) evidence of Plaintiff’s prior litigations. Each issue will be addressed below.
A. Evidence of Plaintiff’s Disciplinary Record. Defendants seek to introduce into evidence the Plaintiff’s disciplinary record as an inmate, including a record of his previous confrontations with corrections officers and other inmates, for the purpose of demonstrating his intent to commit an assault and precipitate the September incident. In the alternative, they seek to introduce this evidence to rebut any claim by Plaintiff that his spitting was provoked.
[1] Character evidence is not admissible to prove conduct. Rule 404(b) of the Federal Rules of Evidence prevents the admission into evidence of other wrongs or acts to prove the character of a person in order to show that he or she
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Eng v. Scully, 146 F.R.D. 74 (1993)
acted in conformity with that character. However, Rule 404(b) does allow for admission of evidence to prove such things as motive, intent, or plan. To be admitted for these purposes, the proffered evidence must still be relevant. Fed.R.Evid. 402, 404(b).
[2] [3] The key inquiry here is whether the Defendants use of force was excessive so as to reach the level of a Constitutional violation of Plaintiff’s rights. The finder of fact must determine whether force was applied in a goodfaith effort to restore order, or whether it was applied maliciously for the purpose of causing harm. Hudson v. McMillian, 503 U.S. 1, ––––, 112 S.Ct. 995, 999, 117 L.Ed.2d 156 (1992). The force applied by the Defendants is the fact of consequence to the determination of this action; evidence of Plaintiff’s intent or motive will not aid the finder of fact in determining *78 the amount of force applied. Fed.R.Evid. 401. Plaintiff’s disciplinary records are not relevant to this action, and are therefore inadmissible.
[4] Rule 608(b) of the Federal Rules of Evidence prohibits the introduction of extrinsic evidence of specific instances of conduct for the purpose of attacking one’s credibility. Fed.R.Evid. 608(b). This rule does not prohibit inquiry into Plaintiff’s conduct for impeachment, but does prohibit the introduction into evidence of his disciplinary records. Plaintiff’s disciplinary records are not admissible for any purpose.
B. Evidence of Plaintiff’s Criminal Record. Defendants seek to introduce Plaintiff’s criminal record into evidence for the purpose of impeaching Plaintiff as a witness. Plaintiff has been convicted of the following offenses: (1) murder, in 1967, for which he was paroled in 1972; (2) murder, in 1977, for which he is presently incarcerated; and (3) attempted escape from prison, in 1979, the sentence for which ran concurrently with his present sentence and was completed in 1981. Defendants argue that these convictions are admissible under Rule 609 of the Federal Rules of Evidence.
Rule 609 allows impeachment of witnesses by evidence of conviction of crime. Rule 609(a)(1), in essence, allows for the admission of felonies committed by witnesses if the court determines that the balancing tests of that rule are satisfied. This rule is, by its own terms, subject to the balancing test of Rule 403 which provides for the exclusion of relevant evidence if its probative value is substantially outweighed by prejudice, confusion, or waste of time. Rule 609(a)(2) allows evidence that a witness has been convicted of a crime involving dishonesty or false statement, and does not consider the punishment involved or the balancing tests of part (a)(1). Finally, Rule 609(b) imposes a time limitation by providing that evidence of convictions is not allowed if

more than ten years has elapsed since either the date of conviction or release of the witness from confinement, whichever is later, unless, in the interests of justice, the probative value of the conviction substantially outweighs its prejudicial effect. Fed.R.Evid. 609(a)(1), (a)(2), (b). The Court will examine the admissibility of the above three prior convictions under this rule.
1. The 1967 murder conviction.
[5] [6] The 1967 murder conviction is encompassed under the time limitation imposed by Rule 609(b). Notwithstanding that no court in this circuit has interpreted the language of Rule 609(b) as it relates to parole or probationary releases, the rule is clear on its face. The ten-year period begins to run at the time of the “release of the witness from the confinement imposed” on that witness. Fed.R.Evid. 609(b). See United States v. Daniel, 957 F.2d 162, 168 (5th Cir.1992) (involving probation). The possibility of parole revocation does not affect this rule provided that the witness has been released from confinement. Id. Plaintiff was released on parole in 1972, and the conviction for which he was released is not admissible under Rule 609(b).
2. The 1977 murder conviction.
[7] The 1977 murder conviction is subject to the Rule 403 balancing test imposed by Fed.R.Evid. 609(a)(1). The probative value of Plaintiff’s present murder conviction is that it potentially bears on his propensity to tell the truth; the prejudicial effect is that it might bias the jury against the Plaintiff on the merits of his argument even if not admitted for that purpose.
Murder is not necessarily indicative of truthfulness, and the probative value of a murder conviction is substantially outweighed by the danger of unfair prejudice. The jury will have knowledge that Plaintiff is not of unblemished character; Plaintiff is presently a prisoner and will be at the time of the trial should he choose to testify. The 1977 murder conviction will not be admissible at trial under Rule 609(a)(1) and Rule 403.
3. The attempted escape conviction.
[8] The attempted escape conviction is encompassed by the time limitation of Fed.R.Evid. 609(b). Plaintiff’s sentence for this *79 conviction was completed in 1981, more than ten years prior to trial. Rule 609(b) bars admission of this
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Eng v. Scully, 146 F.R.D. 74 (1993)
evidence.
Further, the conviction is not the type of crime meant to be included in Fed.R.Evid. 609(a)(2). By using the words “dishonesty” and “false statement” in Rule 609(a)(2), the legislature did not intend that crimes such as attempted escape be admitted as especially indicative of untruthfulness. The Reports of the House and Senate Conference Committees state that the words of this statute encompass crimes such as perjury, false statement, fraud, or offenses in the nature of crimen falsi which involve deceit, untruthfulness, or falsification, thus bearing on propensity for truthfulness. Fed.R.Evid. 609 Senate and House committees’ notes. Attempted escape is not this type of crime, and evidence of that conviction is not admissible.
C. Evidence of Plaintiff’s Prior Litigations. [9] Plaintiff has been involved in prior litigations as an inmate, and Defendants seek to use this purportedly to show Plaintiff’s experience as a witness. Not only is this purpose irrelevant under Rules 401 and 402 of the Federal Rules of Evidence to the issue in question, it would potentially unfairly prejudice the jury against Plaintiff by painting him as a litigious character who lacks validity. Therefore, this evidence is inadmissible under a Rule 403 or a Rule 404(b) analysis. Outley v. City of New York, 837 F.2d 587, 592–93 (2d Cir.1988) (evidence admissible only to show that previous claims were fraudulent); Raysor v. Port Authority of New York & New Jersey, 768 F.2d 34, 40 (2d Cir.1985), cert. denied, 475 U.S. 1027, 106 S.Ct. 1227, 89 L.Ed.2d 337 (1986). Evidence of Plaintiff’s prior litigations is not admissible.
II. Defendants’ Motion. Defendants seek to prevent Plaintiff from presenting the following types of evidence: (1) an Inspector General’s report on the investigation of the September incident, and the notes used in writing this report; (2) notes of Labor Relations employees summarizing the Inspector General’s report; (3) evidence pertaining to an incident involving Plaintiff and Green Haven personnel which occurred in January, 1983 (the “January incident”); (4) evidence of prior incidents of force used by the Defendant corrections officers; and (4) the policies and procedures of the Department of Correctional Services (“DOCS”). The types of evidence sought to be excluded will be addressed below.
A. Inspector General’s Reports and Notes. [10] The admissibility of reports generated by investigators for the New York State Department of Correctional

Services Inspector General’s Office is governed by Rule 803 of the Federal Rules of Evidence which lists hearsay exceptions. Under that rule, reports of public offices setting forth factual findings from an investigation are admissible in civil actions unless circumstances indicate lack of trustworthiness. Fed.R.Evid. 803(8)(C). This is within the district court’s discretion. Miller v. New York Produce Exchange, 550 F.2d 762, 769 (2d Cir.), cert. denied, 434 U.S. 823, 98 S.Ct. 68, 54 L.Ed.2d 80 (1977).
The reports in question contain statements which constitute hearsay and would not be admissible absent an official report. These statements were gathered by investigators who interviewed the individuals involved in the September incident. Fed.R.Evid. 805, which permits the admittance of double hearsay if each statement conforms with an exception to the hearsay rule, taken in conjunction with the reasoning of other cases, indicates that the reports in question lack trustworthiness. Cf. Parsons v. Honeywell, Inc., 929 F.2d 901, 907 (2d Cir.1991) (inadmissible hearsay not admissible because included in a police report); See generally Michael A. DiSabatino, Annotation, Admissibility, Under Rule 803(8)(C) of Federal Rules of Evidence, of “Factual Findings Resulting From Investigation Made Pursuant To Authority Granted by Law, 47 A.L.R. Fed. 321, 331–32 (1980). All persons who were interviewed in creating the reports are available *80 to testify at trial. Only that to which the investigators themselves could testify in open court is admissible. Rule 803(8) will not be used to circumvent the hearsay rule. The reports of the Inspector General are not admissible as they contain untrustworthy double hearsay.
Also excluded along with the reports are the investigators’ notes of interviews used to create the reports, and the notes of various Labor Relations employees which summarize the essence of the Inspector General’s reports. These notes are inadmissible for the reasons above.
Related to the investigations and reports of the Inspector General’s office are the caseload index files of the investigators. These files are inadmissible as irrelevant under Fed.R.Evid. 401 and 402.
B. Evidence Related to the January, 1983 Incident Between Plaintiff and Other Green Haven Personnel. [11] Plaintiff alleges that previous altercations between himself and Green Haven staff are relevant to his claims against Defendants. Plaintiff claims supervisory liability on the part of Defendant Scully based on his alleged knowledge of threats to Plaintiff by Green Haven staff. The liability of the Defendant corrections officers, as discussed above, is based on their state of mind at the time of the September incident. Evidence of past conflicts involving Plaintiff in January, 1983, are relevant to
3

Eng v. Scully, 146 F.R.D. 74 (1993)
Plaintiff’s claims against Scully and the other Defendants. Fed.R.Evid. 401. This evidence is therefore admissible. Fed.R.Evid. 402. This evidence goes to Defendants’ knowledge, motive, and intent. Although not involving these Defendants, the incident relates to the possibility of there being a motive behind the corrections officers acts and the possibility of Scully’s knowing of danger to Plaintiff. Defendants could be prejudiced by introduction of this evidence, but that does not make the evidence “unfairly” prejudicial under Fed.R.Evid. 403. United States v. Jimenez, 789 F.2d 167, 171 (2d Cir.1986). Probative value outweighs prejudicial effect. Evidence which could put Scully on notice of danger to Plaintiff, and evidence reflective of the corrections officers’ mental state at the time of the September incident, is admissible.
C. Evidence of Prior Unusual Incidents Involving Defendants.
1. Unusual Incident Reports.
[12] Plaintiff seeks to introduce reports of incidents in which Defendants used force on occasions besides the September incident. The admissibility of evidence of this type is governed by Rule 404(b) of the Federal Rules of Evidence. Such evidence is not admissible to prove character and behavior in conformity with that character; however, provided that it satisfies the probative/prejudicial balancing test of Rule 403, it is admissible to show motive, plan, intent, and knowledge. Fed.R.Evid. 403, 404(b); United States v. Brennan, 798 F.2d 581, 589 (2d Cir.1986). Evidence of incidents involving Defendants’ use of force is probative of their intent or motive in the instant case. “A plaintiff in an excessive force case is entitled to prove by extrinsic evidence of other instances that the police officer defendant acted ‘maliciously and sadistically for the very purpose of causing harm.’ ” Ismail v. Cohen, 706 F.Supp. 243, 253 (S.D.N.Y.1989), aff’d, 899 F.2d 183 (2d Cir.1990) (citing O’Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir.1988)) (evidence offered to show pattern and intent).
Courts need not make a preliminary finding that a defendant has committed the other alleged acts. Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988). It does not matter that Defendants were not convicted of using excessive force nor found to have done so by a judicial or administrative body. Id.; Ismail, 706 F.Supp. at 253. Where malicious, aggravated conduct is purportedly involved, reports of this type are admissible.

2. Letters from Prisoners’ Legal Services, and Response Letters.
[13] Plaintiff also seeks admittance of letters written to DOCS from Prisoners’ *81 Legal Services of New York (“PLS”) which question the propriety of various incidents at Green Haven, along with the letters of Green Haven staff, especially Scully, in response to those letters. Plaintiff seeks admittance of these items for the same reason he seeks admittance of the Unusual Incident Reports. These items, however, are not probative of state of mind or knowledge, and result in waste of time. Probative value does not overcome potential prejudicial effect. Fed.R.Evid. 403. As the letters are not admissible to show state of mind or knowledge, they would only be admitted for the truth of their inclusions; under the Federal Rules of Evidence 801(c) and 802, the letters constitute hearsay. These items are inadmissible.
D. Policies and Procedures of the Department of Corrections. [14] There are several items of evidence Plaintiff seeks to admit which pertain to DOCS’ directives. The first of these lines of evidence addresses changes in inmate handling procedures since the September incident. Evidence of this type is admissible for limited purposes under Fed.R.Evid. 407 which governs the admissibility of subsequent remedial measures. Evidence of subsequent remedial measures is not admissible to prove culpable conduct in connection with an event; however, it is admissible to prove the feasibility of precautionary measures, if controverted, or for impeachment purposes. Fed.R.Evid. 407. Changes in inmate handling procedures implemented after the September incident are admissible only for impeachment or rebuttal.
[15] The second type of evidence sought to be introduced pertains to site visit reports generated after the September incident by DOCS. These reports have no relevance to the instant issue, and their admission would be a waste of time. Site visit reports after September, 1983, are not admissible under Fed.R.Evid. 401 and 403.
Inadmissible for reasons similar to site visit reports after the September incident is a site visit report by the New York State Commission of Correction occurring on September 8 and 9, 1983. The contents of this report are irrelevant under Fed.R.Evid. 401 to the instant case. Further, the report would mislead and confuse the jury as to the material and relevant facts of the instant case, and is therefore inadmissible under Fed.R.Evid. 403.
[16] Similarly, the report of the Commission of Correction dated October 13, 1978, is not admissible. While relevant to conditions and occurrences at Green Haven prior to the September incident, the report predates the incident in
4

Eng v. Scully, 146 F.R.D. 74 (1993)
question by five years. Admittance of the reports could result in confusion of the time period to which it pertains with the time period of the September incident, and thereby result in confusion of the issues or mislead the jury. The 1978 report is excluded under Fed.R.Evid. 403.
[17] Finally, Plaintiff seeks to introduce Green Haven internal memoranda pertaining to the storage of video tapes of unusual incidents. It is undisputed that the September incident occurred in an area of Green Haven where it could not have been video taped; admittance of the evidence of tape storage will confuse the jury on this issue. This evidence is inadmissible under Fed.R.Evid. 403.

CONCLUSION
For the reasons stated above, Plaintiff’s motion is granted, and Defendants’ motion is granted in part and denied in part. The types of evidence which the Court finds admissible and inadmissible are specified above.
It is SO ORDERED.
	  

5

 
 Eng v. Scully, Not Reported in F.Supp. (1989)
1989 WL 63035 Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
George ENG, Plaintiff, v.
Charles SCULLY, Superintendant, Green Haven Correctional Facility, R. Hansen, A. Scalf, P. Bendon, and J. Holt, Defendants.
No. 84 CIV 5056 (MJL). | June 2, 1989.
Attorneys and Law Firms
Cahill Gordon & Reindel by David Wagner, New York City, for plaintiff.
Robert Abrams, Attorney General of the State of New York by Charles R. Fraser, Assistant Attorney General, New York City, for defendants Scalf and Scully.
Opinion
OPINION AND ORDER
LOWE, District Judge.
*1 Plaintiff George Eng moves to reinstate the complaint against defendant Andrew Scalf pursuant to Federal Rule of civil Procedure (“F.R.Civ.P.”) 60. We grant the motion for the reasons set forth below.
BACKGROUND
Eng alleges in the complaint that on September 30, 1983, while being transported from the Special Housing Unit at Green Haven Correctional Facility to a van for conveyance to Clinton Correctional Facility, he was beaten by defendants Hansen, Scalf, Bendon, and Holt, four Green Haven correctional officers. He also alleges that defendant Scully, the Superintendent of Green Haven, was aware that Eng had suffered prior beatings by Green Haven correctional officers and had taken no action to prevent their recurrence.
Eng was granted leave to proceed in forma pauperis, and filed his complaint pro se on July 17, 1984, alleging deprivations of his federal civil rights. In August and November 1984, Eng attempted to serve summonses and a copy of the complaint upon the defendants at Green

Haven through the offices of the United States Marshal’s Service pursuant to F.R.Civ.P. 4(c)(2)(B). All of the defendants save Scalf were ultimately served. The Marshal’s Service subsequently certified that Scalf had resigned from Green Haven on April 12, 1984 and relocated elsewhere.
None of the defendants answered the complaint. On May 1, 1985, this Court entered a default against each of the defendants except Scalf. In September of that year, the defendants in default moved to set aside entry of that determination.
While that motion was sub judice, the Marshal’s Service located and served Scalf. Scalf acknowledged receipt of the summons and complaint on October 6, 1986. Three days later, the Attorney General filed an answer on his behalf.
In an opinion and order entered on January 6, 1987, we set aside the default. In a footnote to that opinion, we dismissed the complaint against Scalf on the grounds that Eng had not served Scalf within the 120 day period established by F.R.Civ.P. 4(j).
Nearly eighteen months later, Eng filed the present motion to reinstate Scalf as a defendant. The motion is opposed by Scalf and Scully.
DISCUSSION
F.R.Civ.P. 60(b)(6) provides that “[o]n motion and upon terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for ... any ... reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time....” This provision “vests power in courts adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice.” Klapprott v. United States, 335 U.S. 601, 615 (1949).
In addition, F.R.Civ.P. 4(j) expressly provides that the 120 day limit for effecting service of the summons and complaint may be extended by the Court on a showing of “good cause why such service was not made within that period....” In determining whether “good cause” has been demonstrated, “a liberal interpretation of Rule 4” is appropriate if in the interests of justice. Romandette v. Weetabix Co., Inc., 807 F.2d 309, 311 (2d Cir.1986). Particular regard should be given to whether (1) the plaintiff was diligent in making reasonable efforts to effect service, including but not limited to whether plaintiff moved under F.R.Civ.P. 6(b) for an enlargement
1

Eng v. Scully, Not Reported in F.Supp. (1989)
of time in which to effect service, and (2) whether untimely service would prejudice the defendant. Gordon v. Hunt, 116 F.R.D. 313, 318–21 (S.D.N.Y.), aff’d, 835 F.2d 452 (2d Cir.1987), cert. denied, 108 S.Ct. 1734 (1988). In addition, consideration should be given to whether “it appears that proper service may still be obtained.” Romandette, 807 F.2d at 311.
*2 We believe that good cause exists here to extend the 120 day period. As a preliminary reason, the Supreme Court and this Circuit have long mandated that, to the extent possible, special consideration be given to incarcerated parties owing to the facts that they are often without counsel and are burdened by various difficulties inherent in litigating from a prison cell. See Hughes v. Rowe, 445 U.S. 5, 9 (1980); Salahuddin v. Coughlin, 781 F.2d 24 (2d Cir.1986). Eng commenced this action from prison, not to mention in forma pauperis and pro se. As a result of this status, a more flexible application of the 120 day rule is warranted here.1
Secondly, although Eng did not move under F.R.Civ.P. 6(b) for an extension of time to serve, he was clearly diligent in attempting to effect service. Within three weeks of filing the complaint, he endeavored to effect service via the United States Marshal’s Service. His inability to serve Scalf was due to the latter’s unexpected resignation and relocation, not to any inexcusable oversight or dilatoriness on Eng’s part. His actions were reasonably calculated to ensure proper service. See La Bruno v. Fauver, 109 F.R.D. 43, 44 (D.N.J.1985) (efforts by pro se prisoner to effect service via Marshal’s Service, without showing of prejudice to defendants, warrant extension of 120 day limit).
Thirdly, Scalf will not be prejudiced by reinstatement of the complaint against him. As a result of the defendants’ initial failure to answer, the subsequent motion to vacate, and the Attorney General’s stated conflict in representing more than one defendant, there has been no substantive discovery in this case. See Memorandum in Opposition at 6. Thus, Scalf’s defense will not in the least be disadvantaged by his late entry into the matter.
Finally, Scalf has already been served. Thus, there is no chance of further delay—or of prejudice to the other defendants that such delay might engender—pending efforts to effect service.
Scalf and Scully argue that, even if there is good cause to extend the 120 day period for service, the dismissal of the complaint against Scalf should nevertheless be upheld since the motion to reinstate was filed more than 10 days from the date of the dismissal. They base their argument on Rule 3(j) of the Civil Rules of the United States District Courts for the Southern and Eastern Districts of New York (“Local Rule 3(j)”). That provision states in part that “[a] notice of motion for reargument shall be

served within ten (10) days after the docketing of the court’s determination of the original motion....”
As a preliminary matter, there is a question as to whether this provision is even applicable here. The present motion is for “reinstatement” rather than reargument. Also, since we dismissed the complaint against Scalf sua sponte with notice to Eng pursuant to F.R.Civ.P. 4(j), there has been no argument as to the appropriateness of dismissal; thus, there can be no reargument.
*3 Nevertheless, even assuming that Local Rule 3(j) applies, we do not believe that it bars the relief sought. To read the rule as Scully and Scalf urge us to read it would undermine the broad equitable scope of F.R.Civ.P. 60(b) and F.R.Civ.P. 4(j)’s “good cause” exception to the 120 day period by strictly limiting the time during which an extension of that period could be sought. Accordingly, we shall consider whether there was good cause for the failure to file the present motion within 10 days of our dismissal.
Scully and Scalf contend that Eng’s 18 month delay in filing the present motion cannot be excused since settlement negotiations, which Eng says caused the delay, occupied but a small portion of that period. We disagree, and believe that additional facts surrounding the delay warrant a finding of good cause. Eng’s incarceration alone has no doubt slowed the litigation. Further, letters from Eng’s counsel to the Court dated March 31, 1987 and February 10, 1988 indicate that Eng was prosecuting his case with a fair amount of diligence. Not only was he engaged in settlement negotiations, which consumed approximately 5 months of the 18 month period. He twice noticed depositions and served subpoenas duces tecum on non-party witnesses. However, discovery was postponed at the defendants’ request due to the Attorney General’s asserted conflict of interest. Indeed, the above letters and the February 29, 1988 letter to the Court from Assistant Attorney General Fraser indicate that a substantial portion of the 18 month period was consumed by efforts on the part of the defendants to secure substitute counsel. Furthermore, a substantial period of time elapsed when one Assistant Attorney General responsible for the case departed, and when her successor had to be relieved due to illness.
CONCLUSION
For the reasons stated above, we believe there is good cause for Eng’s failure to both serve Scalf within 120 days of the filing of the complaint, and to file the present motion within 10 days of the order from which it seeks to be relieved. Accordingly, Eng’s motion to reinstate the complaint against Scalf is granted pursuant to F.R.Civ.P.
2

Eng v. Scully, Not Reported in F.Supp. (1989)

4(j) and 60(b)(6).2 Scalf will have 30 days from the date of this opinion to secure counsel, if he so desires. The parties are to appear for a pretrial conference on July 10, 1989 at 11:00 a.m. in courtroom 102. All discovery is stayed until that time or such earlier time as the parties agree to proceed.

It Is So Ordered.
	  

Footnotes

1

We are not unaware that Eng received pro bono counsel starting in August 1984. See Memorandum in Opposition to Motion for

Reargument at 8. However, this fact alleviates many but not all of the unique problems encountered by prisoner litigants. Meeting

and communicating with counsel, for instance, remain formidably difficult. Moreover, given the facts of this case, we do not

believe Eng should be penalized for the lack of diligence, if any, on the part of his attorneys in locating and serving Scalf.

2

We reject Eng’s argument that the dismissal of the complaint against Scalf resulted from the Court’s overlooking the fact that, at

the time of the dismissal, Scalf had been served. The fact remains that he was not served within 120 days of the filing of the

complaint. Nor were any facts excusing the late filing presented by Eng to the Court prior to the time the complaint was dismissed

against Scalf.

	  

3