
    In the Matter of Norman Brabson, Appellant, v. Walter H. Wilkins, as Warden of Attica State Prison, Respondent.
    Argued March 1, 1967;
    decided April 20, 1967.
    
      
      Frank F. Karelsen, 111, and Frnest L. Biol for appellant.
    I. Respondent failed to provide adequate dental care to appellant. (Pisacano v. State of New York, 8 A D 2d 335; Hammonds v. Aetna Cas. & Sur. Co., 237 F. Supp. 96; McCollum v. Mayfield, 130 F. Supp. 112.) II. Respondent’s censorship and obstruction of mail to the courts, Government officials and appellant’s attorney was in violation of the U. S. and New York Constitutions. (Coleman v. Peyton, 362 F. 2d 905; Lowe v. Hiatt, 77 F. Supp. 303; Thomas v. Collins, 323 U. S. 516, 323 U. S. 819.) III. Respondent’s prohibition against appellant’s right to aid other prisoners in preparing legal writs was in violation of the U. S. and New York Constitutions. (Johnson v. Avery, 252 F. Supp. 783.)
    
      
      Louis J. Lefkoivitz, Attorney-General (Karl E. Nisoff and Ruth Kessler Toch of counsel), for respondent.
    I. The finding of fact by the Supreme Court that petitioner had received adequate dental and medical treatment was based on sufficient evidence and after affirmance by the Appellate Division is not subject to further review by the Court of Appeals. (Angelos v. Mesevich, 289 N. Y. 498.) II. The modification of the order of the Supreme Court by the Appellate Division in regard to communications from a prisoner was proper and should be affirmed. (McCloskey v. State of Maryland, 337 F. 2d 72; Fulwood v. Clemmer, 206 F. Supp. 370; Price v. Johnston, 334 U. S. 266.) III. The rule of the Department of Correction, prohibiting inmates, except upon approval of the Warden, from assisting other inmates in the preparation of legal papers does not violate appellant’s constitutional rights. (Price v. Johnston, 334 U. S. 266; Powell v. Hunter, 172 F. 2d 330; Sturm v. McGrath, 177 F. 2d 472; Sutton v. Settle, 302 F. 2d 286, 372 U. S. 930; Stroud v. Swope, 187 F. 2d 850, 342 U. S. 829; Tabor v. Hardwick, 224 F. 2d 526, 350 U. S. 971; Childs v. Pegelow, 321 F. 2d 487, 376 U. S. 932; Johnson v. Avery, 252 F. Supp. 783; Siegel v. Ragen, 180 F. 2d 785, 339 U. S. 990; Austin v. Harris, 226 F. Supp. 304.)
   Bergan, J.

This proceeding, commenced in 1963, by a prisoner at Attica Prison against the Warden originally sought relief based on a claim petitioner’s civil rights had been violated because he had been denied adequate dental treatment. It was later broadened to seek relief against censorship of communications by the Warden; against the imposition of discipline for helping other prisoners to prepare legal papers; and for other additional relief.

After a full hearing, the court at Special Term determined that petitioner’s claim of a failure to furnish dental care had not been substantiated and denied relief based on this claim. It was established that there had been -some physical difficulty following an operation by the prison dentist. Petitioner claimed the dentist refused, to give him further care for this condition; the dentist testified petitioner refused treatment. The proof showed that a few months later another dentist gave the petitioner successful treatment and the following year a further dental examination showed the petitioner’s mouth healthy, but that the lower remaining teeth should be removed. The Special Term’s finding adverse to the petitioner on this issue has been affirmed by the Appellate Division and there is no law issue open here.

The Special Term also denied relief based on the disciplining of petitioner for aiding other prisoners preparing legal papers; and this part of the decision also was affirmed by the Appellate Division. Petitioner argues in this court that the Warden’s interference with his preparing papers for other prisoners was “ in violation of the TJ. S. and New York Constitutions ”.

It is suggested that since some prisoners are “ less mentally alert ” than others, the petitioner should be permitted to help the “less educated” in preparation of petitions for habeas corpus and other legal proceedings. Whatever constitutional rights may be" involved here, the rights of the person seeking to prepare papers do not seem important. We ought not follow the District Court in Tennessee which held otherwise (Johnson v. Avery, 252 F. Supp. 783).

There is an essential difference between obstructing a prisoner’s access to a court in his own right and a rule stopping him from drawing up legal papers for other prisoners. No prisoner has a constitutional right to draw legal papers for other people. It is not possible to deduce such a right from anything said or decided in Ex Parte Hull (312 U. S. 546).

Both the Special Term and the Appellate Division granted petitioner relief against the Warden in respect of the censorship of his communications with outside functionaries and officials and both orders enjoined the Warden in certain respects. The modification of the Special Term’s order by the Appellate Division narrowed its scope somewhat, but it nevertheless broadly restrained the Warden from certain kinds of interception and interference. The difference between the two orders seems to be the only law issue here. It is helpful to look at each order to see just what this difference is.

The Special Term order provided this: “ Ordered that the respondent be directed and instructed to cease and desist from intercepting, obstructing, or otherwise delaying any communications addressed to any court, to any law enforcement agency, to any executive official of the federal or state government, and to the prisoner’s attorney”.

The Appellate Division’s order provided this: “ That respondent is hereby directed to cease and desist from intercepting and withholding any communications addressed by the petitioner to any court, any communications addressed to any executive official of the Federal or State Government concerning his complaints about unlawful treatment by prison authorities and any communications addressed to his attorney concerning the legality of his detention and treatment received while incarcerated, all however, subject to the right of the prison authorities to censor such communications and strike therefrom any material not relating to the foregoing ”.

The difference between the orders, it will be observed, is that the Special Term restrained interception and withholding of any communication addressed to any court, to any law enforcement agency, to any executive official or to petitioner’s attorney. The Appellate Division leaves this unchanged as to “any court”; it limits it, as to executive officials, to complaints of unlawful treatment; and it limits it as to petitioner’s attorney to legality of detention and treatment received.

This seems a reasonable limitation, The prisoner may write to a court about anything; he may write to executive officers about unlawful treatment, and to his attorney about legal matters and treatment.

The more arguable part of the modification is the right of the Warden to strike out material other than that which falls within the court’s specification. It-must be assumed the Warden will follow the injunction the way it reads. He will not take the risk of censoring out anything which the court has permitted, especially since this could be communicated to petitioner’s lawyer as part of the “ legality of * * * treatment ”, On

the other hand the Warden ought to have the right to censor material which is not within the broad category laid down by the Appellate Division order.

The order should be affirmed, without costs.

Keating, J.

(dissenting in part). I would reverse the order of the Appellate Division insofar as it modifies the order of Special Term. Special Term ordered that the Warden cease and desist from intercepting, obstructing or otherwise delaying any communications addressed to any court, to any law enforcement agency, to any executive official of the Federal Government, and to the prisoner’s attorney.

The Appellate Division modified the order of Special Term by limiting the communications to executive officials to complaints of unlawful treatment and communications to his attorney to matters regarding the legality of his detention and the nature of the treatment received. In order to implement these limitations, the Warden is given the right to censor all communications and excise therefrom matters unrelated to the permissible subject matter.

I believe that these limitations as well as the authority given the Warden unnecessarily interfere with and endanger this prisoner’s right to communicate with his attorney and governmental officials having either jurisdiction over the penal system or the power and authority to correct conditions existing therein. (Cf. Ex Parte Hull, 312 U. S. 546, 549.)

In Hull the prison authorities formulated a rule requiring the submission of all legal documents, briefs, etc., to the prison authorities who in turn submitted them to a legal investigator for the Parole Board for the purpose of determining whether they were properly drawn. The Supreme Court in striking down the regulation as invalid wrote: “The considerations that prompted its formulation are not without merit, but the state and its officers may not abridge or impair petitioner’s right to apply to a federal court for a writ of habeas corpus. Whether a petition for a writ of habeas corpus * * * is properly drawn and what allegations it must contain are questions for [the] court alone to determine.”

The Appellate Division, though not disturbing the lower court order as it related to communications to courts, overlooked the fact that Judges and courts are not the only persons or agencies capable of granting relief to prisoners complaining about the illegality of their treatment or detention. For this reason, I see no basis for distinguishing between letters to courts, to the prisoner’s attorney or to government officials. In all of these cases only the recipients of the letters should he permitted to determine whether the contents warrant their intervention and not the very person whose jurisdiction and conduct are being questioned.

The Attorney-General argues that “ [u]nlimited license to communicate could seriously undermine authority and discipline in the prisons.” The order of Special Term, however, does not authorize “unlimited license” to communicate whatever thoughts a prisoner has to whomever he pleases. It permits him to communicate — without any interference or censorship—with the courts, its officers, and members of the executive branch of government who have it within their power to grant the relief requested or assist in obtaining such relief.

Exactly how the exercise of this right will undermine prison discipline and authority is not made clear. The Attorney-General alleges that “ prisoners would be able to carry on unauthorized activities through communications from prisoners to their attorneys and thence to third parties ”. Uncensored communications, however, presently occur on personal visits to the prison by the prisoner’s attorney and members of his family, without any apparent undermining of prison discipline. In any event, the right of a prisoner to unexpurgated communications with his attorney is so significant that it outweighs the danger of frustration of prison rules regarding outside activities in the rare case where an attorney—an officer of the court — would assist a prisoner in avoiding legitimate prison regulations.

The right of an individual to seek relief from illegal treatment or to complain about unlawful conduct does not end when the doors of a prison close behind him. True it is that a person sentenced to a period of confinement in a penal institution is necessarily deprived of many personal liberties. Yet there are certain rights so necessary and essential to prevent the abuse of power and illegal conduct that not even a prison sentence can annul them. As this court once observed, “ An individual, once validly convicted and placed under the jurisdiction of the Department of Correction * * * is not to be divested of all rights and unalterably abandoned and forgotten by the remainder of society.” (People ex rel. Brown v. Johnston, 9 N Y 2d 482, 485.)

Among the rights of which he may not be deprived is the right to fiOTnTrmnicat.fi, without interference, with officers of the court and governmental officials; with those persons capable of responding to calls for assistance. No valid reason, other than the shibboleth of prison discipline, has been advanced for the denial of this right in the case before ns. I believe that courts should look behind inappropriate slogans so often offered up as excuses for ignoring or abridging the constitutional rights of onr citizens.

The order of the Appellate Division, insofar as it modifies the order of Special Term, should be reversed and the order of Special Term reinstated.

Judges Burke, Scileppi and Breitel concur with Judge Bergan; Judge Keating dissents in part in an opinion in which Chief Judge Fuld and Judge Van Voorhis concur.

Order affirmed, without costs. 
      
      . It is not urged, of course, that the prisoner has “ any ” constitutional right to assist his fellow prisoners in preparing legal documents.
     
      
      . The power of the Warden to inspect the prisoner’s communications — a power necessary to the maintenance of prison security—obviates any fear that the right accorded to the prisoner by Special Term will be used to plan an escape or other illegal activity.
     