Arthur FANO еt al., Plaintiffs-Appellees, v. Larry MEACHUM et al., Defendants-Appellants.
No. 75-1033
United States Court of Appeals, First Circuit
June 27, 1975
Certiorari Granted Dec. 8, 1975. See 96 S.Ct. 444.
You are to serve without compensation other than the compensation you are now receiving under existing appointment.
Please execute the required oath of office and forward a duplicate thereof to the Criminal Division.
Sincerely,
HENRY E. PETERSEN
Assistant Attorney General
The letters to Zleit and Tetrick were also signed by Assistant Attorney Genеral Henry E. Petersen. Cornwell‘s letter was signed by Acting Assistant Attorney General John C. Keeney.2
The respondent contends that the letters of appointment to the special attorneys fail to comply with
The respondent‘s first two arguments have been decided adversely to him in United States of America v. William Wrigley, 520 F.2d 362 (8th Cir. 1975) and United States of America v. Salvatore Ross Agrusa, 520 F.2d 370 (8th Cir. 1975). Accord, In re Grand Jury Subpoena of Alphonse Persico, 522 F.2d 41 (2nd Cir. 1975). In Wrigley, we held that letters of appointment which specifically direct the special attorneys to conduct grand jury proceedings in the Western District of Missouri satisfy
The final argument of the respondent is equally unavailing. The letters of appointment received into evidence were copies authenticated by the certificate of the clerk of court and properly admitted. See United States v. Morris, 451 F.2d 969, 972 (8th Cir. 1971); United States v. Hudson, 479 F.2d 251, 253 (9th Cir. 1972), cert. denied, 414 U.S. 1012, 94 S.Ct. 377, 38 L.Ed.2d 250 (1973);
Affirmed.
Richard E. Shapiro, Boston, Mass., with whom Rоbert A. Stolzberg, Roxbury, was on brief, for appellees.
Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.
COFFIN, Chief Judge.
We turn once again to the task of evaluating inmates’ due process claims in the wake of Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). The district court provides us with a succinct summary of the facts, which the parties accept as accurate. 387 F.Supp. 664, 666-67 (D.Mass.1975). In the fall of 1974 there was a period of unrest at the Massachusetts Correctional Institution at Norfolk. There were nine fires, thought to have been set, which were serious enough to require the presence of outside fire departments, and several other fires which were less serious. Plaintiffs were taken from the general population at Norfolk and placed in the Receiving Building at the Institution, which serves as an informal segregation unit. On October 25, 1974, each plaintiff was given a copy of a disciplinary report. The offenses charged against each plaintiff were described in substantially the same terms as appeared in the notices of reclassification hearings subsequently received. Since the alleged offenses were referred to the local district attorney for investigation and possible prosecution, the applicable regulation directed that no disciplinary hearings be held.1
On November 4 each plaintiff received a Notice of Classification Hearing. These notices reported that information received through reliable sources indicated that the plaintiffs were variously linked to the planning and execution of the fires, possession of contraband such as weapons, or trafficking in drugs. Classification hearings2 were held, at which each plaintiff was represented by counsel. The evidence with respect to the alleged offenses, however, was given in closed session outside of the presence of plaintiffs and their counsel and was apparently, in each case, in the form of a recitation by Superintendent Meachum of information purportedly furnished to him by a confidential informant. The nature of this information was not revealed to plaintiffs or their counsel, even in summary form, nor were they informed of the datеs and places of the alleged offenses.
Plaintiffs sought declaratory and injunctive relief and damages.
The first issue presented is whether the decision to transfer inmates from Norfolk to maximum security institutions within Massachusetts is of such a character that the due process rights of potential transferees are brought into play. Palmigiano v. Baxter, 487 F.2d 1280, 1284 (1st Cir. 1973), vacated, 418 U.S. 908, 94 S.Ct. 3200, 41 L.Ed.2d 1155 (1974), after remand, 510 F.2d 534 (1974), cert. granted, 421 U.S. 1010, 95 S.Ct. 2414, 44 L.Ed.2d 678 (1975); Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). We first grappled with the due process issues presented by prison transfers in Gomes v. Travisono, 490 F.2d 1209 (1st Cir. 1973). That case involved Rhode Island inmates who were being transferred to prisons throughout the country, and, in concluding that such transfers had an impact on inmates’ liberty sufficient to require due process protections, we took pains to emphasize that we did not view that disposition as foreclosing a contrary result with regard to intrastate transfers. Id. at 1214 n.8; id. at 1217 (Campbell, J., concurring). The Supreme Court subsequently offerеd its initial guidance in this area. Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Wolff established that the forfeiture or withholding of “good time” credits affects a prisoner interest which “has real substance and is sufficiently embraced within Fourteenth Amendment ‘liberty’ to entitle him to those minimum procedures appropriate under the circumstances and required by the Due Process Clause to insure that the state-created right is not arbitrarily abrogated.” Id. 418 U.S. at 557, 94 S.Ct. at 2975. Gomes was vacated for reconsideration in light of Wolff, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935, and after remand we proceeded to reconsider “What procedures are required?“, after noting that Wolff reaffirmed “that prisoners suffering the prospect of serious deprivations are entitled to some process“. 510 F.2d 537, 539 (1974).
The question thus becomes one of whether the detriment worked by an intrastate transfer from a medium-security institution to a maximum-security prison is serious enough to trigger the applica-
In other ways, however, the disadvantages attendant upon these transfеrs are both more serious and more certain than those flowing from interstate transfers. While Gomes recognized that transferees were subjected to temporary administrative segregation at the receiving prisons, it was not assumed that thereafter their conditions of confinement would be more adverse than they had been before transfer. Defendants have stipulated, however, that Walpole and Bridgewater have stricter security and fewer rehabilitative programs than Norfolk, and that furloughs are more difficult to obtаin at Walpole. The district court‘s findings of fact included the following:
“I find that the conditions of confinement at MCI, Walpole and MCI, Bridgewater, are substantially more adverse than they are at MCI, Norfolk. I further take judicial notice that these institutions have been deliberately differentiated to provide graduated conditions of confinement within the Department of Correction.” 387 F.Supp. at 667.
See also Daigle v. Hall, 387 F.Supp. 652, 659 (D.Mass.1975). Defendants do not challenge the accuracy of this finding, nor could they easily do so in light of the facts to which they had stipulated, though they do argue that the hardships incurred through transfer do not assume constitutional proportions.
It should not escape notice that, aside from the distinctions discussed above, the consequences of intrastate and interstate transfers are for the most part indistinguishable. In either case “disadvantages stem from the breaking off of established programs, both educational and rehabilitative, and orientation to a new setting, programs, rules and companions.” Gomes I, 490 F.2d at 1213. What was viewed in Gomes as a possibility—that a transferee may be considered an identified troublemaker and treated unfavorably as a result—has been stipulated to in this case. The parties agreed that the “determination to transfer Plaintiffs, and the basis therefore, will be noted on their institutional record and will be considered by the Parole Board, the Furlough Board and other administrative agencies of the Department of Correction. This may affect Plaintiffs’ attempts to gain parole, furlough, work release, and other privileges.” See generally Catalano v. United States, 383 F.Supp. 346 (D.Conn.1974).
In light of the disadvantages accompanying the transfers here аt issue, the legal principles articulated in Wolff, Gomes and the transfer cases decided by other lower federal courts compel the conclusion that the due process clause is applicable. At issue is not a simple loss of privileges, for which a hearing may not be required, Wolff, 418 U.S. at 571-72 n. 19, 94 S.Ct. 2963, but a significant modification of the overall conditions of confinement. We hold that the inmate interests affected fall within the “liberty” protected by the
Wolff requires that, having found due process guarantees to be applicable, we proceed to determine what procedures are appropriate under the circumstances. This is done by balancing the substantiality of the loss an inmate would suffer because of transfer against the burden which the procedures would place on prison officials. Gomes II, 510 F.2d at 541. While this inquiry will in many cases be multifaceted, here the controversy is an extremely narrow one. In the first place, plaintiffs’ only objection to the hearings which they were given is that they were excluded during the recitation of information said to have beеn provided by confidential informants. Plaintiffs were not given any summary of the evidence beyond that contained in the notices which preceded the hearings.
Wolff found that under the circumstances there presented due process required that there be a written statement as to the evidence relied on and the reasons for the disciplinary action. It was recognized, however, “that there will be occasions when personal or institutional safety are so implicated, that the statement may properly exclude certain items of evidence.” 418 U.S. at 565, 94 S.Ct. at 2979. This cryptic reference offers us little assistance in our effort to determine whether the prison officials were within their authority here in declining to reveal the substance of the informant statements. The defendants’ freedom of action can be no greater in this context than that which Wolff accords with regard to confrontation and cross-examination, matters left “to the sound discretion of the officials of state prisons” because they were viewed as presenting greatеr hazards to institutional interests than the requirement of a written statement.
That the issue is narrowed even further is evident from the basis of the district court‘s decision. In ruling that the defendants must provide a summary of the information derived from informants, the district court relied primarily on section 11.4(h) of Institution Order 4310.1 (Jan. 29, 1974), which prescribes the procedures to be followed in disciplinary hearings at Walpole:
“The board may issue any orders it deems necessary to conducting a thorough and adequate investigation, including the calling of witnesses and produсtion of evidence. No testimony may be taken outside the accused resident‘s presence unless he voluntarily absents himself, or the board chairman determines that disclosure would involve:
(1) Subjecting the informant to a significant risk of harm, or
(2) A substantial risk to institutional security
(3) On making a finding that a threat exists and that there is need for protection of sources, the board chairman will note such a finding in the hearing record
(4) He will also summarize the information in question for the accused resident and state generally the
board‘s reasons for such protective action.”
Defendants misapprehend the basis for the district сourt‘s decision when they assert that they “were under absolutely no obligation to follow at Norfolk” this Walpole regulation. Even aside from the equal protection problems which might arise were inmates in different institutions given substantially different procedural protections, the district court properly viewed the Walpole regulation as a persuasive indication that the release of a summary of informant-provided information is not inconsistent with institutional requirements. Indeed, no suggestion has been made that the Walpоle rule is unworkable or unduly burdensome. Having chosen to extend the protections of section 11.4(h) to inmates at the maximum-security institution at Walpole, defendants may not, even in the exercise of the discretion recognized in Wolff, deny similar procedures to inmates at Norfolk, a medium-security prison. The balancing of interests required for the application of due process principles in the prison environment is not one for which courts are particularly well-equipped, and here the district court quite properly resolved the controversy before it by reference to the balancing reflected in the Walpole regulations.
One subsidiary point remains. Under the procedures mandated by the district court, the notice of hearing given inmates must “at the very least state the time and place of the alleged offense with reasonable accuracy“. Not only is it difficult to discern how a notice lacking this element could adequately inform an inmate of the charges against him and enable him to prepare an adеquate defense, Wolff, 418 U.S. at 564, 94 S.Ct. 2963, but this information would not in any case go beyond that which we have held must be provided in summary form after presentation at the hearing. Since we can see no significant institutional interest which would be served by withholding at the time of notice information which must ultimately be revealed, we agree with the district court as to the required form of notice.
Affirmed.
LEVIN H. CAMPBELL, Circuit Judge (dissenting).
As the issue of intra-jurisdictional prison transfers is under submission before the Supreme Court in Newkirk v. Butler, 499 F.2d 1214 (2d Cir. 1974), cert. granted sub nom. Preiser v. Newkirk, 419 U.S. 894, 95 S.Ct. 172, 42 L.Ed.2d 138 (1975), it seems likely that what we do or say here will have only passing significance. Still I shall venture the viеw that a prisoner‘s interest in remaining in one institution rather than another within the same state is not a species of “property” or “liberty” as those words are used in the due process clause of the Constitution.
In Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), the Court held that good-time credits, having been created by the state and denied as a penalty for major misconduct, were embraced within fourteenth amendment “liberty“. See Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). See also Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (disciplinary confinement affects a protected interest). But transfers1 seem to me to belong in a quite different category. Transfers unquestionably have a major impact on the personal life of a prisoner (although intrastate transfers do not uproot the inmate and separate him from a unitary system of correction and parole as in the case of interstate transfers). But in deciding whether or not to label the prisoner‘s interest therein a “liberty” or (less
The tenured teacher‘s interest is, of course, a “property” rather than a “liberty” interest. Still, even in defining a prisoner‘s “liberty” interest, one must ask not only whether a particular event may cause loss to the prisoner but whether one in his position has any claim to what was taken away.2 Prisoners are, by definition, prisoners. Changes in the conditions of confinement, whether involving a different cell assignment, a new meal schedule, or transfer to a new facility, seem to me to fall within the state‘s general right to confine, safeguard, and rehabilitate. To treat them as “liberties” belonging to the inmate invites greater interference with the management of prisons than seems either wise or constitutionally mandated.
Where within the state penal system a prisoner is to be lodged seems to me a judgment which the state has the exclusive right to make—summarily if need be. Such decisions are part and parcel
of its power to keep the prisoner safеly, to protect other prisoners, and to operate its prisons. State penal systems normally consist of more than one institution. Indeed, large states may have dozens of such institutions. Administrators must decide where best to place inmates. They must consider available space and facilities and which programs are best suited to which inmates. As prisoners are involuntary inhabitants and some are dangerous and unpredictable, administrators must decide whether a given inmate is more likely to escape from one рlace than another, and whether the mere presence of an inmate in a given setting is likely to be volatile and more dangerous. Such judgments may often be little more than educated guesses based on suspicions. They may involve predictions of future dangerousness which in turn echo assumptions as to the inmate‘s role in past disturbances. While I can understand the argument that no adverse assumptions should ever be made without minimal due process—hearing, confrontation of witnesses, and the like—I do not think the realities of thе state-prisoner relationship admit to classifying such decisions, when relating to a transfer, as a liberty interest of the prisoner. Penal authorities will perhaps think it best to afford safeguards, but I do not think the Constitution can reasonably be said to require them.
I concede that transfers of the present sort—based on charges of past misconduct rather than on more general grounds—bear many resemblances to disciplinary actions. Here the inmate‘s record will reflect the grounds for transfer and this may affect his parole rights. In Gomes I, dealing with interstate transfers, we thought that a distinction could be made between punitive and non-punitive transfers. But on reflec-
Nonetheless, while the greater good of the institution and its other inmates may require that administrators retain broad transfer power, there is no need to permit an inmate‘s parole chances to be diminished by derogatory information he is never allowed to meet. This is a separate and different question. If parole is a “liberty” right entitling an inmate to fair procedures, I would forbid the use of the fact of transfer by the parole board unless the charges upon which the transfеr was based were established in a manner comporting with due process.
I would reverse the decision of the district court, except I might enjoin the adverse use of the fact of transfer in any future parole proceedings.
George McLAUGHLIN, Plaintiff-Appellant, v. Frank A. HALL et al., Defendants-Appellees.
No. 74-1148
United States Court of Appeals, First Circuit.
June 27, 1975.