*3 LAY, Before STE- HEANEY PHENSON, Judges. Circuit Judge.
HEANEY, Circuit brought this civ- Robert O. McDonnell rights himself il behalf of action on other the Nebraska Penal inmates of alleged Complex. He and Correctional disciplinary proceedings in regard Complex were conducted without proc- procedural due or substantive ess, pro- the inmate assistance gram stand- meet did not constitutional Royster, g., regarding e. v. Landman sires. ards, (E.D.Va.1971). the in- prisoners’ mail were violative rights. constitutional mates’ “However, Eighth has not Circuit regarding ap- yet court, followed trend relying deci on our trial process plication due Brewer, Morrissey sion good revocation, continues to but the Com held that problem in terms proce required view right/privilege plex to afford dichotomy discipli that was process to due dural Kelly, Goldberg prior popular hearings, required nary it was but that 25 L.Ed.2d to in due to afford substantive Douglas progeny. limiting (1970) and its held that a rule mates. It also Sigler, F.2d 684 help, could be recently position was designated inmate, Such a provided Brewer, Morrissey valid; rule affirmed that a reasonable limiting but *4 which, (8th al- library to seven the use of the pa- though question then of per impermissible, was and was hours week revocation, applicable to be requiring all in role must that that a ” * * good coming outgoing time as and well. read and mail be inspected improper.1 F.Supp. 616, Wolff, v. McDonnell (D.Neb.1972). reluctance It’s 627-628 appeal. McDonnell and the defendants was re- well This Court founded. erred McDonnell contends the trial court by Supreme Morris- Court. versed holding process re- that minimum due Brewer, sey v. S.Ct. light quirements prison applicable were not to In L.Ed.2d 484 disciplinary hearings, the in- and that Morrissey, subsequently held that we program met mate con- process re- minimum due stitutional standards. The defendants prison quirements applicable are to dis- process contend that substantive due hearings. Brewer, ciplinary Remmers inmates, to that the was unavailable Warden, al., et striking prison court erred in down the etc., 1973); Dodson, Haugh, et etc. v. respect with to the use al., F.2d 689 prison library censorship. and mail developments
In view
law, subsequent
trial,
I. Due Process
the defend
to
longer
ants
contend that
are
reluctantly
The District Court
entitled to minimum due
Morrissey
relied on our
deci
Brewer
disciplinary hearings
result
sion,
holding
procedural due
that
good time,
imposi
or the
loss
process requirements
applicable
were not
penalties.
tion of other
In
substantial
disciplinary hearings.
to
It stated:
argue
existing
stead, they
proce
that
begun
years
have
provide
process.
“Courts
in recent
dures
such due
Under
recognize
proc-
present procedures,
due
fundamental
inmates are
an
right
including
hearing
ess is a
persons,
adjustment
all
informal
an
before
inmates,
specifically
given:
(a)
have
held
but are
committee
notice
good
charges
that before
prepare
time or other sub- of the
in time to
a de
rights may
fense;
(b)
stantial
opportunity
taken there
summon,
be
impartial tribunal, notice,
witnesses;
must be an
confront or cross-examine
hearing,
right
a
(c)
presentation
to cross-examina-
assistance in the
tion
defense;
witnesses,
adverse
(d)
de- of a
a written state
upon
cision be
by
based
evidence adduced ment
the fact
finders as to
evi
hearing,
at the
and that the inmate be dence relied on
for the ac
and reasons
representation
allowed
if he so de-
tion
to the
taken. We find no merit
ar-
See,
Wolff,
F.Supp. 616,
(D.Neb.1972).
McDonnell v.
provide
to review the merits
existing
have a limited
gument
procedures
penal-
imposing
substantial
decisions
process.2
due
minimum
the sole concern
ties.
In each
view,
procedural re
In our
the decision
must
whether
court
be
Supreme
by the
quirements outlined
arbitrary
prison
authorities
Morrissey,
supplemented
capricious.
It must not substitute
Scarpelli,
U.
Gagnon,
by
Warden
prison
judgment
for that of the
its
L.Ed.2d
S.
authorities.3
generally followed.
(1973), should be
believe that
the District
however,
specific
believe,
We
quirements,
correctly applied the
stand
including
above
circumstances
prison authorities
ard when it held that
required,
in which counsel
of inmates
sub
violated
laid down
should be
jecting
penalties
hearings.
them to
substantial
further
Court after
relatively
only was
al.,
minor offenses. Not
Brewer, Warden,
su
et
Remmers v.
pra; Dodson,
contrary
al.,
to Neb.R.R.
Haugh, etc.,
a revocation
et
etc. v.
S.1943,
but also was
supra.
§
capricious.
arbitrary and
properly held
trial court
necessary
digress
It
substantive
that Fourteenth Amendment
Preiser,
point, to
the effect of
discuss
applicable
process requirements
due
Services,
Commissioner of Correctional
disciplinary proceedings.
Even
Rodriguez
al.
et
pro
held
those earlier
in which we
cases
(1973),4
L.Ed.2d 439
process inapplicable in com
cedural due
*5
disposition
In that
on
of this case.
settings,
recognized
parable
that ad
we
prisoners, without exhaust-
several
not be
determinations must
ministrative
brought
ing
remedies,
civil
state
Brewer,
arbitrary.
See, Morrissey v.
in fed-
42
1983
under
U.S.C.
actions
§
Douglas
Sig
supra,
950;
v.
443 F.2d at
court, arguing
they had been
that
eral
1967).
ler,
684,
386 F.2d
687
Cir.
good
unconstitutionally
deprived of
require
purpose
It
serve little
would
time;
sought
they
restoration
that
arbitrary
procedures
permit
fair
but to
good
Supreme
held that
The
Court
time.
procedures
results. The
are
ends
granted
requested
relief
could not be
themselves,
to insure
but are a means
stated:
in a 1983
action.
§
pen
imposing
that decisions
substantial
“* -x- -x-
prisoner
knowledge
a state
[W]hen
alties will be based on the
challenging
very
fact or
grounds
duration
imposition of the
that
penalties
for the
physical imprisonment, and the
therefore,
of his
courts,
exist.
;
(E.D.Va.1972)
Supp.
Compare,
Ferrell
v.
Royster,
485
2.
Landman
333 F.
v.
(E.D.Va.1972).
Huffman,
F.Supp.
Supp.
164
(E.D.Va.1971)
;
350
621
Sostre
v.
199,
Louisville,
Thompson
Of.,
362
Rockefeller,
(S.D.N.Y.
U.S.
v.
312
863
(1960) ;
624,
206,
1970),
part,
erred in rule: it seem allowed. But at least evident, should finds, Court so that “Legal Work regulation conjunction a with legal appointed “A has been advisor comprehensive program inmate the Warden for benefit legal by the Com- assistance afforded le- those offenders who are need of plex alterna- satisfies the reasonable gal assistance. This individual is requirements tive Av- Johnson general knowledge offender who has ” * * * supra. ery, procedure. of the law He is not an attorney represent you Wolff, supra and can not F.Supp. as McDonnell v. such. at 621. legal “No than the ad- other offender however, record, does permitted you visor is to assist support assumption that the court’s preparation legal documents unless permission for inmates to each assist specific permission with the written freely given. Rather, other is documen of the Warden.” tary permission evidence has shows supra Wolff, F.Supp.
McDonnell v. apparently solely been denied because at 631. the existence of the inmate advisor. argues unlawfully He this rule Thus, program the inmate advisor equal restricts the inmate’s ac- must evaluated on its to deter own cess the courts in violation Su- a mine whether it alterna reasonable preme Court’s decision Johnson Av- Avery, supra. under tive Johnson v. 483, ery, 490, 751, 747, U.S. question do not think answer we can L.Ed.2d which the record; reason, for this Court stated: decision trial court must be “ regard versed and remanded with to this * * * until the But unless and issue. burden on the defendants provides State some reasonable alter- they providing demonstrate that prepa- native to assist reasonable Johnson v. alternative. petitions post-conviction ration of relief, Avery, S.Ct. validly enforce a 747; Beto, * * Novak v. 663- barring inmates denied, cert. furnishing such assistance to L.Ed.2d omitted.) prisoners.” (Footnote other meeting burden, In de also, Lynch, See Gilmore v. produce fendants must evidence estab (three judge court), (W.D.Cal.1970) lishing specific terms what the need per nom., Younger aff’d curiam sub legal assistance, and must show Gilmore, S.Ct. 30 L. *7 reasonably meeting the state is Ed.2d 142 need. This have the defendants determining Furthermore, in the The District done. this case held: legal assistance, for defendants need the “The Court should first the examine must take into account need for as the program whereby inmate assistance rights in civil actions well as sistance Complex provides
the for of the use corpus See, Nolan v. Sca habeas fati, suits. legal pro- the inmate assistant. This 1970). (1st F.2d satisfy cedure must test of the John- also, Hauck, See Andrade * Avery, son Here, *. the Complex allows for inmates to assist upon argument permission each other the at- note that on oral Assuming permission parties torneys Warden. such for the indicated that freely given, certainly program is guable it is then ar- at the inmate assistance changed Avery, Complex that no su- Johnson the and now has been pra, problem presented, since the includes the of assistance law students. regulations Complex’s provide leave it to the trial court deter- that “all incoming outgoing program and meets the mail mine whether this will be read inspected.” and Id. at 635. standards outlined above. found that these The District Court defendants, in their cross- practices regulations unjustifiably and
appeal, argue
the court erred
abridged
right
the
of inmates to have
holding
restrictions which
unreasonable
courts,
access
the
and ordered:
legal library
limited inmate use
the
“ * * * that, regarding censorship
seven hours a
The defendants
week.
rely
Avery, supra
of mail
their
between inmates and
at-
on Johnson
torneys
Courts, outgoing
the
mail
at
or
inspected
opened;
not be
or
in-
Court stated:
“
only
* -» *
coming
opened
if
mail
may impose
State
[T]he
manipulation
envelope,
use of
reasonable restrictions and restraints
fluoroscopes
or
and metal detectors
upon
acknowledged propensity
opening
other alternate means
prisoners
giving
to abuse both the
and
envelopes fail to disclose contraband
seeking
prepa-
in the
possibility
is a real
there
applications
ration of
for relief:
for
contraband will be
mail;
included in
example, by limitations on
addition,
envelope
if the
and location of such activities and the
attorney
from the
or
is marked
imposition
punishment
giv-
for the
‘Privileged’,
opened
ex-
cannot be
ing
receipt
of consideration in con-
cept
presence
of the inmate ad-
nection with such activities. Cf. Hat-
* * *
dressee
”.
Bailleaux,
field v.
(CA
III. Mail drug impregnated stationery, paper as money The evidence shows that type or other material mail from or to Obviously, courts or counsel is discovered. the fact stopped, opened. but all is McDonnell envelope attorney’s has an name Wolff, supra F.Supp. guarantee 342 printed at The on it is no that it is 1673, 367, L.Ed.2d being unau- used or not fictitious Fitzpatrick, (1968); persons, Nolan v. unscrupulous or or thorized 1971); Note, (1st 545, persons under duress.” even Censorship and the First Mail Prison given appeal justification for on No 87, Amendment, 94-104 Yale L.Rev. outgoing to attor- mail on restrictions com- (1971). order The District Court’s part of neys, appears that this and it af- principles, and ports we with these disput- is not order District Court’s respect. firm it in this in and discussed cases cited The ed. argues 1, plaintiff Ciccone, n. 578 & at Moore v. enjoined censor- should also have objections sufficiently raised meet par- ship and of mail between District Court’s defendants to the attorneys courts. and the other than ties order. un- held that The District Court in exist methods for Practical necessary at this issue to decide incoming actually suring mail plaintiff’s at- present because Moore, attorney. See, Marsh v. from an censorship between tack directed (D.Mass.1971); 392, reviewed and inmate. have counsel We Gierasch, Recognition of Pris Judicial the court and the record conclude Rights oners’ to Send Constitutional regard. in this was correct Mail, Receive 76 Dickinson L.Rev. part; part; reversed Affirmed doubt, If there is consistent with for action and remanded enough simple telephone call should be opinion. danger matter; to settle the and the attorney, an offi that a letter an court,
cer of the contain contraband will FOR REHEARING PETITION ON ordinarily specula remote too too PER CURIAM. justify tive to the defendants’ permitting opening inspection rehearing rehear- petition for or all And order ing mail. the court’s en is denied. banc suggested Moore, provide, does as we 2, 1973, does opinion of ^August Our legitimate detecting weapons means provide per- require to or the state escape including, ap or in the materials prisoner every to state mit counsel propriate circumstances, opening a letter disciplinary prison hear- in a involved presence of the inmate. pen- ing may result in a serious which Gagnon, alty. Rather, we Ward- follow recognize courts, that some Scarpelli, 411 en v. McGinnis, e.g., see Sostre holding (1973), L.Ed.2d (2nd cert. denied only required in those that counsel is Oswald, nom., sub. Sostre v. can- fairness where fundamental cases L.Ed.2d S.Ct. counsel. not be achieved absent prison have held that authorities right open have the an and read incom are to be Prison authorities ing attorneys. remand, opportunity, mail from think such on wheth- state unduly rights they provide permit limit an inmate’s decisions er counsel will justification. without sufficient Prison those eases must be reheard regula authorities must show that or substantive due lack of They process pursuant opinion. tion of an inmate’s to send to this ceive opportunity mail a substantial inter furthers will also be afforded est, give and that the incidental restrictions reasons for their decision in each placed on Thereafter, an inmate’s are no case. District greater may, request, than essential further that in state’s reexamine the O’Brien, Cf., light Scarpelli. terest. United States decision