Wendell Bills v. Murray Henderson

provide proposals legislation prepare and to re- governments to local assistance percent for 300 liable to the United States report employ- quire business concerns to resulting from such transfer. of the tax loss in a opportunities for inclusion nation- ment Violations and Penal- 24. Criminal Sec. job matching computerized wide bank and ties.— under CETA. program $1,000 penalties up of or 1 Provides Secretary.— Powers of Sec. 31. General year jail knowingly making or both for Employment Implementation of Sec. 32. failing false statements or to disclose mate- Through Employment National Pri- Policies obtaining facts for the of as- rial Administration.— orities penalties Act. sistance under this Provides $10,000 up years jail or 5 or both for of to del- Secretary Authorizes the of Labor failing knowingly notice of [sic] Employ- the National egate functions to fact making false statements of material or ment Priorities Administration. failing required material facts disclose Employment Priorities 33. National Sec. be disclosed under this Act. Administration.— Sec. 25. Civil Violations and Penalties.— Pri- Employment Establishes a National penalties Provides civil for other viola- Depart- within the Administration orities equal tions of the Act to investment tax of Labor. ment credits, depreciation, business deductions Priorities Employment 34. National Sec. deductions, expense half the value of eco- Advisory Council.— countries, foreign nomic benefits from Employment Pri- Establishes a National wages unemployment reduced taxes re- Advisory government, of 15 orities Council undergoing lated to establishments covered labor, business, public members. changes operations. of Laws. 35. Amendments to Other Sec. 26. Violations Employees’ Sec. Appropria- Authorization of Rights.-— Sec. 36. tions.— against employ- Prohibits discrimination neces- rights

ees because of their exercise of Authorizes such sums as participation in activities sary. under this Act. Recovery 27. Overpayments.—

Sec. Secretary

Authorizes of Labor to re-

covery (through reduced or withheld assist- otherwise) overpayments

ance or resulting

from false statements or concealed material

facts. Reserves; Recording Require- Sec. 28. al., et BILLS Wendell Relating ments to Loans.— Plaintiffs-Appellants, Secretary Instructs the of Labor to main- operating tain reserves and to record mort- al., et Murray gages in HENDERSON accordance state law. Defendants-Appellees. Congressional Disapproval Sec. 29. 78-1172. Rules.— No. proposed Provides for invalidation Appeals, States United through adoption rules a concurrent reso- Circuit. Sixth days following

lution within 30 their 2, 1980. April Argued posal. 1, 1980. Oct. Decided Reports; Legislative Propos- Sec. 13, 1980. Nov. Rehearing Denied als.— Secretary Instructs the of Labor to evalu- report

ate and upon effectiveness of

programs years operations after 3 and to

1290 Knoxville, Tenn., O’Connell,

Robert A. Knoxville, Nickle, Interior, Dept, of Carol S. Tenn., plaintiffs-appellants. for Gen., McLemore, Henry Atty. E. Brooks III, Cottrell, Asst. J. Patricia Hildebrand Tenn., Gen., Nashville, defend- Attys. ants-appellees. EDWARDS, Judge, and Chief

Before KENNEDY, Judges. Circuit WEICK KENNEDY, Circuit G. CORNELIA Judge.

Plaintiffs, Mountain Brushy inmates Tennessee, this action filed Prison State seeking declaratory 1983 under 42 U.S.C. § relief, proce- that injunctive alleging proceedings disciplinary dures used due their Brushy Mountain violated amendment under the fourteenth process District appeal the They the Constitution. only par- granted judgment Court’s proce- claim that relief. Plaintiffs tial them in ad- placing when dures followed segregation, punitive ministrative tion, good and revoking their accrued process rights abridge their due honor time the minimal failing comply by both in Wolff requirements set forth process due 2963, McDonnell, 539, failing comply (1974), L.Ed.2d 935 requirements procedural with the De- the Tennessee regulations rules and of Correction. partment plain- Judge held that The District liberty interests protected tiffs had being placed honor time and in plaintiffs were segregation and punitive to the extent process rights their due denied liberty those they deprived were that process require- without the due interests McDonnell, su- forth in Wolff v. ments set had no plaintiffs He ruled that pra. hearing liberty requiring interest tected segregation. to administrative on transfer procedural reg- judge further held that Depart- issued the Tennessee ulations no ment of Correction the due liberty interests and that Ten- require did not therefore clause regula- adhere to its own nessee the transfer in connection with tions seg- supra, 418 prisoners punitive or administrative U.S. Henderson, Jones, Bills v. at 2975. See Vitek

regation. (E.D.Tenn.1978). 63 L.Ed.2d 552 (1980). can be created Liberty interests

I. mutually explicit state rules or under- In the standings as well as statute. area question We first address the by prison liberty entitlements claimed protected liberty have a plaintiffs whether inmates, explicitly has ruled that due this Court requires interest certain liberty by policy interests can be created prior met to a transfer standards be promulgations by first statements and other segregation.1 Hughes, supra, must be answered in an anal Walker v. officials. type whether the interest ysis of this 558 F.2d at 1255. life, liberty by plaintiffs

claimed is a must de Consequently, this Court property meaning interest within statutes, mutually termine whether state clause. Walker v. rules, explicit understandings, including 1247, 1250(6th 1977); Meachum v. promulga policy statements or other Fano, 215, 223-24, tions, liberty entitle created for (1976). 49 L.Ed.2d 451 Plaintiffs expectation ment or would not be claim a interest in freedom from transferred to administrative segregation. transfer to administrative It except upon the occurrence process is clear that the due clause of the g., supra, events. E. Wolff v. not, itself, Constitution does of make a (state-cre at at 2975 U.S. S.Ct. to prisoner’s state freedom from transfer right “good ated to time” credit statute segregation administrative a lib specified which it would for be erty interest. misbehavior); feited based on serious Mon- long degree As of as the conditions or nye supra, v. Haymes, ta and Meachum v. is prisoner confinement to which the sub- Fano, (inmates supra had no due jected imposed is within the sentence rights hearing prior to a to transfer to upon him and is not otherwise violative of living where another state conditions Constitution, the Due Process Clause substantially were in the less favorable ab subject does not an inmate’s itself conditioning practice sence of a state law or by prison judicial treatment authorities to proof transfers miscon such on of serious oversight. other duct or occurrence of 236, 242, Montanye Haymes, v. 96 events); Hughes, supra, v. 538 F.2d Walker 2543, 2547, (1976). S.Ct. 49 L.Ed.2d 466 (federal at 1256 inmates had due Hughes, supra, also Walker v. 558 F.2d at rights segregation, not to have transfer 1252. prisons, good other forfeiture of time cred its, privileges imposed or loss of on them protected liberty A entitlement misconduct, major law, absent a of based can also be created state however. created, prison policy indicating statement liberty When a interest has been imposed these sanctions would not be ab the due clause acts to insure that adjustment arbitrarily finding by sent such a an com the state-created is not Fano, mittee). such an abrogated. determining Meachum v. In whether exists, expectation U.S. at at 2539. Wolff v. the Court must focus S.Ct. segregation except segregation 1. Administrative in Tennessee in- unrestricted that inmates in prisoner ‘general volves the transfer of a population’ from eat in and sick is conducted in their cells call segregated Daily to a unit which is the cell the inmate’s medical technicians. size of a standard cell. The inmate is entitled restricted to time and area and exercise is may personal property gen- the same as inmates in also be restricted inclement weather. population except visiting eral provided razors are Visitation is restricted to a ‘secure packaged provided segregated and items from the commis- room’ inmates. Adult sary glass or mailable metal are restrict- Service Policies and Procedures Manual of the [sic] Correction, privileges, Department ed. Mail diet and medical care are of Rule 4.650. credits, privileges and on its time loss of nature the interest rather than of finding by Penal In an weight. imposed Greenholtz v. Nebraska could absent a not mates, 2100, 2104, misconduct, 60 adjustment major U.S. committee Fano, (1979); su pris- L.Ed.2d 668 Meachum v. expectation interest created an 2537-38; 223-24, 96 at pra, 427 U.S. at S.Ct. not be those sanctions would oners that 558 F.2d at 1251- Walker finding. imposed the absence of such legitimate The must have 52. these This ruled that fact Court interest, claim of entitlement could were and policy statements expectation it. simply a unilateral Pris- changed by Bureau of therefore be Inmates, Penal su Greenholtz v. Nebraska (cid:127) of a preclude the existence ons did not 2104; Walker pra, 442 offi- protected interest because executive Hughes, supra, 598 F.2d create a interest cials cannot

Rule 4.602 of the Adult Service Policies provide protections beyond then the Department and Procedures Manual of Walker review of courts. sets (Guidelines) forth of Correction Dis- Hughes, supra, 558 at 1254. segregation purposes ruling in the trict made a similar impos- guidelines to be used in some segre- regard punitive instant ease ing it. Henderson, gation. Bills v. Segregation. Administrative Adminis- v. McDon- also Wolff at 973. See implemented trative will be Segregation nell, 2969- supra, 418 U.S. inmate the ad- by transferral of the 76; 308, 96 Palmigiano, Baxter v. justment pe- for an indeterminate center (1976). 47 L.Ed.2d 810 riod time. The administra- regula line of cases deals with other provide place tive to other transfer of inmates regarding tions custody maximum an individu- entirely prisons leave the which matter others, al, promote and maintain within officials the discretion rec- order. Administrative guidelines provide no those men with serious ommended for Fano, supra, and In Meachum v. transfer. problems maladjustment, mental ill- Haymes, supra, Supreme the Montanye v. abnormality to degree ness or sexual the expectation protect or Court ruled that no safety their safety or the of others is was a statute liberty ed interest day day in their normal threatened prison which officials the discretion allowed station. reason, for prisoners any to transfer supplied). 4.602 (emphasis misconduct. limited to instances serious is whether section of here this though deci This held to be true even was protected expectation created a might based on sions to transfer often be not be transferred to would though misconduct even instances of segregation administrative absent a might have the deci prompted misconduct necessary that such was transfer case. sion transfer in an individual individual or others or to maintain Fano, at Meachum v. 427 U.S. order or transfer was based Montanye Haymes, S.Ct. at 2540. problems maladjustment, serious such as 243, 96 The Court illness, abnormality. mental or sexual un by prison noted officials that decisions dealing There are of cases two lines no more der statute would often involve problems similar assist which in determin- what predictions than as to “informed First, ing question. to this answer security or would best serve institutional analogous there are with the dealing cases welfare inmate”. safety of punitive segregation. condition In Walk- Fano, supra, Meachum v. er v. 538 F.2d at S.Ct. at 2538. prison policy Circuit ruled that a statement two between these indicating The demarcation segrega- that sanctions such as tion, fairly Where stat- prisons, to other lines of cases is clear. transfers forfeiture found, he was for trative unless have limit- policy statements prison utes reasons, within to come by imposing clearly documented discretion prison ed officials’ forfeiture of statement in Eno- policy its standards. The specific prerequisite en- living conditions to the one in the very or favorable was similar benefits moto expectation or en- recog- an joyed by prisoner, Supreme instant case.2 cannot be has been created prison titlement of- nized that limited restrictions affording prisoner without away taken discretion, present the ones such as ficials’ other rights. On the due certain Enomoto, very create a different situa- in complete have hand, officials prison when discretion which tion from the unbridled will making a decision that discretion Fano, supra, in Meachum v. was inmate, expectation no affect supra. Montayne Haymes, It has been created. liberty tected interest Mon v. Fano and Following Meachum the instant case does clear that equally recog Haymes, we continue to tayne v. these situations. easily into either of not fall may grant prison nize that state statutes prison offi- in this case The Guidelines proc invoke due liberty interests that ers making what is es- cials wide discretion trans prisoners when are protections ess on what sentially predictive decision solitary confinement for disci ferred to insti- interests of the would serve best reasons. Eno- plinary or administrative the other tution and the individual. On (1978), Wright, moto Guidelines, hand, outlin- by specifically (N.D.Cal.1976). F.Supp. 397 aff’g 462 ing of administrative Jones, supra, 445 U.S. at Vitek v. recommending situa- tion and at 1261. seek appropriate, in which it would be tions Enomoto, the case and In both the instant which that discre- to set the bounds within n was limited prison officials discretion exercised. tion is to be specifying that transfers ad- guidelines held that the discre- The District Court place should take ministrative and the Disci- tion retained the Warden security of inmates or of safety imposing plinary Board see no dis- general. We the institution ex- that no segregation is so broad guidelines in between the tinction rights were creat- or due pectations prison guidelines instant case and plaintiffs. the date ed in the Since a due which were found to create Enomoto however, opinion, additional District Court’s right.. proc- decisions in the area of prisoners indicate that the discretion ess for reinforced This conclusion is was suffi- officials in this case Pe v. Nebraska the decision in Greenholtz liberty expec- ciently restricted to create a case, Inmates, supra. In that nal tation. discretionary parole Nebraska’s found that which enti expectation created an statute persuasive support most case in of of to some measure potential parolees tled is liberty expectation the creation of such a Greenholtz, su protection. constitutional Enomoto, (N.D. F.Supp. 397 Wright v. 462 at 2106. Green- at 99 pra, U.S. S.Ct. aff’d, Cal.1976), S.Ct. liberty protected that holtz made it clear case, that the District 55 L.Ed.2d 756. In when the may created even interests be prison policy statement Court held that a of the discretion prerequisite which limits pris- a protected expectation a that judgment” “predictive officials is a prison to adminis- oner would not be transferred ordering Policy, (a) the ac- the official must be documented 2. 3330. Inmates § General reasonably segregated tion at the time the action taken. when it is from others Enomoto, supra, Wright they at believed that are a menace to them- added). (footnotes omitted) (emphasis selves and others or a threat to the segregat- a in the instant case contains The Guidelines of the institution. Inmates be requirement. medical, disciplinary, psychiatric, See n. similar documentation ed for The reason for or- administrative reasons. infra. housing clearly dering segregated must be Wolff prepare a defense.” rather than a facts guidelines on certain based Greenholtz, at finding. specific factual 9-10, required Con- at 2104-05. in Wolff also at 99 S.Ct. at 2979. The Court the de- nature of a written predictive provide sequently, factfinders must that the are re- prison officials termination on and the evidence relied as to statement does not in the instant case quired to make in order disciplinary action reasons for liberty protected of a indicate absence con collateral against the inmate “pre- types of though even these interest misunderstanding of a sequences based on a inherently involve judgments” dictive original proceeding the nature of We conclude of discretion. large measure will act personnel prison that help insure determining erred in that the District Court 564-65, 2978- at fairly. 418 U.S. of a by prison officials the retention inmate should held that an Wolff also making deci- large degree of discretion call witnesses allowed to be regarding administrative sions when in his defense documentary evidence finding protected of a precluded unduly will not be him to do so permitting McGinnes, 617 Winsett v. interest. safety or correc institutional hazardous 1980) banc). (3d (en F.2d 996 Wolff, supra, 418 U.S. goals. tional foregoing with the In accordance v. Palmi also Baxter at 2980.4 See analysis we hold that the Guidelines giano, supra, 425 U.S. at limited the discretion instant case 1559-1560. ad making officials in decisions procedures argue that these Appellees le created a segregation and ministrative at the adminis- were accorded inmates part gitimate expectation on in this case. hearing trative to ad they would not be transferred from the this arises dispute issue finding a segregation absent ministrative of the na- interpretations differing parties’ purpose that such transfer was for post- the notice and extent of ture and inmates or that inmate or other protecting case in a hearing explanation requirements promoting and maintain for the This case segregation. of administrative ing order within the institution.3 proce- applying the difficulties illustrates in cases requirements due dural II. great amount officials a retain where answer- The second that must be judg- “predictive making discretion inmates is due ed is what that discre- where the limits oh ment” they deprived are before rather extremely guidelines broad tion are Walker v. liberty interest. Plain- specific facts. than the argue Plaintiffs that at (cid:127)558 F.2d at 1256. giv- been they should have argue tiffs the three very least are entitled reasons proposed in Wolff requirements set forth en notice McDonnell, supra. placing them administrative plaintiff given to each The notice tion. there must In Wolff the Court held there was “sufficient only that indicated 24 hours in hearing and that at least presence his to believe that cause hearing the inmate must be advance of constitute population would which the given charges notice of the residents and to the welfare of other threat him of action based “in order to inform of the institution.” charges enable him to marshal McGinnes, supra (Dela- generally regarding seg . Winsett v. 3. For other cases administrative Hicks, regation, prisoner interest in Mitchell v. 614 F.2d 1016 ware had see therein; (5th 1980), specific for work Raf once the criteria Cir. and cases cited work release Robinson, (2d 1979); met). eligibility v. F.2d 1058 Cir. had been fone release Mass., Etc. Four Unnamed Inmates of Certain Hall, 1977); Kelly (1st v. 550 F.2d 1291 Cir. requirements were also 4. These due Brewer, (8th 1975); Arsberry Enomoto, 525 F.2d 394 Cir. applied Wright Sielaff, (7th 1978); Gary v. 586 F.2d 37 Cir. Hughes, supra. Walker v. Creamer, 1972). (3d 465 F.2d 179 analyze specific prior whether suf- more version of the facts properly In order to trial, it is given in this case Warden related his version of ficient notice was necessary happened gym. Apparent- to review some of the critical what had at the adminis- punitive ly, between was never submitted to differences this information Tennessee. Punitive segregation trative in written form and it is not clear plaintiffs segregation imposed only for a serious plaintiffs’ Resident Advisor whether rules, while ad- specific infraction of suspicion regard- was even informed of the segregation may be based on ministrative ing hostage taking. Discipli- past the inmate’s entire record. though Even administrative general nary reports alleging behavior segregation was not used in this case in requires segregation may administrative infraction, specific response to a rule if Warden, be initiated rather plaintiffs meaningful oppor were to have a by prison employees generally. than Guide- behalf, tunity to marshal evidence in their lines, supra, 4.601(5); is also Rules 4.602. It they given have been advance notice should clear, however, segrega- that administrative charges trig or occurrences which options tion is one of the available to the gered presence gener the fear that their Disciplinary response Board in to a population posed security al a threat to the specific the inmate has committed a the institution. This conclusion is con Guidelines, supra, rule infraction. analysis applied by sistent with the 4.601(5). In a case where the administra- deciding require procedural specific tive is based on a ments in of this Walker v. cases kind. behavior, infraction, rather than its Hughes, supra, 558 at 1256-57. Such purpose becomes almost identical with that promote meaningful hearing notice would punitive appears there help and would inmates from why to be no reason safe- arbitrary government action. The inmates’ guards set forth in Wolff v. regard outweighed interests in this are not Hughes, supra, and used in Walker v. prison’s failing interest in to disclose apply should not to the rule infrac- triggered the reasons which re a decision tion triggered which the decision. garding segregation. administrative Conse veryA different situation occurred in the quently, we hold that under the case, instant however. The Warden issued Guidelines, charged inmates who are disciplinary report in this case because being security with a threat he had been notified two occasions regarding institution are entitled to notice plaintiffs plan- informants that were triggered charges. the facts which those ning taking guard hostage. Subse- specific enough to Such notice should be quently, when the Warden was informed enable inmates to marshal evidence in their that the plaintiffs gathered gym, had behalf, identity but need not disclose him, requested had to meet and had informants, as indicated in the Guidelines. responded profanity with some when the Guidelines, 4.601(5). supra, Rule While this message Warden sent a that he would not event, specify triggering notice must it time, meet with them at that Warden Lane need not review all of the items in the hostage taking surmised that the was about prior Disciplinary inmate’s record which the plaintiffs

to occur and ordered taken into might properly placing Board consider in “custody”. Warden Lane also ordered a segregation. the inmate in administrative review of their records for a determination given The notice in this segregation. administrative requirements. case did not meet these Consequently, argue Plaintiffs also were de- tion in “predictive this case was based on a process protections guaranteed nied the due judgment” by the Warden of the need to Wolff, Disciplinary when the attempt hostage taking avoid an at a post- would threaten the of the institu- Board failed to them a written hearing containing tion. Warden statement the reason for Lane testified that when the plaintiffs’ requested Resident Advisor a the Board’s decision and the evidence relied stated, serving pur- As in addition to the reaching in that conclusion. Defendants McDonnell, given poses in the were not a outlined Wolff v. admit that post- Board’s 418 U.S. at the copy of the recommendations them, argue hearing statement assist the

the reasons behind but will inmate in post-hearing modifying statement need not .be his behavior in the future so as Further, general of remain in given purpose population. to inmates because the it to subsequent give an the failure to post-hearing is to inmate at a the state- misunderstanding from a of the ment to the create proceeding inmate would needless original proceeding. difficulty nature of the in the of this enforcement re- quirement. Again necessary it to distin is summary, In we that a transfer hold segre cases in which administrative guish segregation administrative entitles inmates specific a gation response is used as to a in procedures to the set forth Wolff v. serious rule infraction and cases which above, as reviewed the where segregation is based a response transfer is in to a determination of is general determination that the inmate a guilt specific of a infraction rules. general population. In cases threat However, when the transfer is based on a in re where administrative is determination, considering the inmate’s en- charges specif a sponse to and a record, tire transfer will further the infraction, ic, state serious rule written the inmates protecting ments of the evidence relied on and the order, maintaining the inmate is enti- then provided the reasons for action must be enough tled to notice which is McDonnell, supra. required in Wolff v. trig- inform the inmate of the facts However, where administrative gered charges the enable the and to inmate determination, results from a based on the to marshal evidence in his behalf. In such record, entire that he is a threat to inmate’s cases the post-hearing written statement institution, the then the decision, must state the for the reasons but essentially predictive a one determination need not state the relied on.6 evidence present v. Ne such as was in Greenholtz Inmates, supra, braska Penal 442 U.S. at III. 14-16, Consequently, 2107-08. necessary provide argue

it is not inmate Plaintiffs are enti summary relied procedural protections with the evidence on tled not McDonnell, supra, as in a case in Wolff such where determination of outlined but guilt being protections made.5 It is sufficient also to extensive Disciplinary 4.601(4) Guidelines, Board the inmate a contained in Rule including right statement of the behind the reasons to call witnesses transfer, including right statement to cross through examine witnesses event”, “triggering Advisor, As in Discipline if one exists. the inmate’s Resident Greenholtz, supra, employee this statement reasons and the have who the inmate guide can assist as a for future executed the notice infraction reject We testify.7 behavior. defendants’ contention While the courts do not statement, although that such a made always grant view guarantees substantive Board, proce- need not the inmate. given independently be ed the state first, Inmates, supra, room he is seated witness where 5. Greenholtz Nebraska Penal nature of the chair and informed of the 442 U.S. at at 2108. plea charges brought against his him and ask may precede hearing in 6. The transfer charges. (If pleads guilty, the as to the he genuine emergency provided case of a and as witnesses, rights to so waives all his resident forth). 4.601(a), (b), (c) of the Guidelines. physi- He is then confronted Wright, at 405. Enomoto v. evidence, sample any, if thereof. The cal or a the witness chair then moves out of resident 7. Rule 4.601: is situated and on to the bench that disciplinary hearing proce- 4. The board hearing remains room. The resident dures are: hearing witnesses and evidence room until all (a) That the accused of the resident who is have been heard. brought hearing rule infraction into the (b) employee up reporting employees complaints; (c) That the who wrote the resi- written give involving dent then called in be to his version of in cases indefinite administrative Discipline the rule infraction. Both the Com- or forfeiture of Good and Honor given Time, supporting sentencing mittee and the Resident Advisor be an the reasons the opportunity question employee. given. Specifics The decision must be must al- first, Discipline questions ways given. finding guilty Committee then be A mere Discipline the Resident The Advisor. resi- not sufficient. (g)If may ap- guilty major dent or resident advisor waive the the resident is found of a pearance by employee. reporting offense and should the board recommend the (c) employee time, good That should the who executed loss of and honor it will not be approval the notice of rule infraction have a witness or submitted to the Commissioner for witnesses, he then will be excused outside if the board is notified of the resident’s wish hearing appeal. appeal room. His witness or witnesses A resident must within give days writing are then called in to their version of the three appeal If the Warden. denied, Disciplinary rule infraction. The Committee the board’s recommenda- Discipline and the Resident Advisor will then tion will be sent to the Commissioner for given opportunity approval. be an wit- Discipline ness or witnesses. The Committee Rule 4.601: first, questions Discipline Disciplinary Reports alleging general then the Resident be- Afterwards, requires Segrega- Advisor. the witness is excused havior that Administrative hearing may outside the room. Depu- tion ty be initiated the Warden or (d) Warden, cases, only. Should the resident and/or his advisor In the same these infraction, alleged procedures have 4.601(3) a witness to the ap- as described in shall permitted ques- ply except record, this witness shall past be to be that the resident’s Discipline file, tioned may Resident Advisor documented in his official be con- interruption questioned disciplinary without by prior then be sidered board to a Discipline guilty the members of the Committee decision on or innocence. Confidential interruption. completion given by may without After of di- information inmates be re- examination, rect cross examination or re-di- vealed to the Board without disclosure of the permitted. rect (e) identity. examination will be informant’s Such information shall relayed The by any employee resident accused of the rule infrac- be to the committee may give tion having only take the witness chair to his such information. But if the version of Deputy certify the rule infraction after all other Warden Warden shall witnesses have pline identity testified. The Resident Disci- disclosure of the informant’s would Discipline jeopardize safety Advisor and the Committee of the in- may question the summary resident. The Resident formant or the institution. A short Discipline questions Advisor presented the resident of such information shall be first, Discipline then writing Deputy Committee. The to the Warden or Warden Discipline giv- Resident sign Advisor will then be who shall initial or it and cause it to be opportunity give en the report. his summaration attached to the initial In no case presented any testimony [sic] “Facts” given the rules shall to the Board in Discipline infraction to charged. Committee. Af- the absence of the inmate The terwards, may the resident and his Resident Ad- Warden countermand a of inno- hearing visor will leave the room until such cence Segregation the Board and order Administrative Discipline time as the any period up Committee days reaches a to 10 decision in following this matter. hearing The Chairman of the which a new must be held. Committee must vote last. emergen- Committee room This action should be taken people cy cases, will be cleared of all other than the or unusual and the Warden should during voting guilt Committee weight findings time of of the Board. or innocence. If Disciplinary the board finds power pur- the resident Board has no than; Disciplinary Report innocent the any is to be de- sue (a) course of action other stroyed. If the charges board finds (report destroyed) the resident Dismissal of guilty, (b) board reprimand (report review his official destroyed) insti- Verbal determining punish- (c) tution record to assist in warning Written ment; brought (d) the resident shall be privileges up back to Restriction of recreational during phase days Committee Room of to 60 (e) deliberations and days confronted with the up rele- Punitive to 30 portions vant (f) of his (see institutional Segregation 4.602) record. He Administrative may then (g) make a statement about Attorney this record Reference to District for crimi- punishment or the prosecution which he (requires approv- thinks he should nal Warden’s receive. (f) al), see 4.603 writing (a) (h) Board shall state evi- Recommendation to transfer to another upon including dence relied the names of the institution (i) witnesses; (b) fact, findings the Board’s Recommendation for reclassification may may (j) not be the same as the Recommend loss of and honor time 1298 procedural process the due first ones,8 prong a it is clear that as

dural what is process legitimate 10 they the determination create a analysis in that balancing test according is made due in their use and im- claim entitlement McDonnell, supra, 418 U.S. in Wolff v. used on the discretion pose a limitation 2974-78, 556-63, 94 and reviewed at S.Ct. at Disciplinary Board.11 Warden and v. 558 F.2d in Walker 1256-57, according proce to state and not consideration, careful After appropriate rules.9 The determina dural however, rules procedural conclude that we process plaintiffs due regarding the tion bodies can by state administrative created deprived of their they could be before themselves, not, serve a basis a from to administrative to be free transfer separate liberty interest. protected safety except for reasons of allowing procedural a problem with such this in by made was liberty entitle protected a rule to create asser opinion. II of Plaintiffs’ this Section procedural ment due is that rules to be procedural that state are tion analysis down when the second breaks weight in this determina given significant authority. While supported by not analysis, tion is the determination of prong of the were first procedural these rules established due, is If the stan applied. what is Lutt in Crafton v. pursuant decision interests are applied is analysis dard rell, (M.D.Tenn.1974), rath 378 521 McDonnell, v. required Wolff balanced as state, all rules by the er than initiated process that is due a then the longer no mandated view of may no little or resem given instance bear McDonnell, supra. v. decision Wolff and so original expectation blance to also are enti argue Plaintiffs it. nothing This will little or do procedural protections contained tled to the point because case an illustration of this is procedures those Guidelines because the Wolff due under protected liberty expectation. create test, as determined in Section II balancing have this circuits which addressed Other proce is far less than opinion, of this protected liberty have ruled that provided in the Guidelines protections dural by are statutes or interests only alternative themselves. procedural re only rules which establish would be balancing determination Wolff Manson, quirements. Cofone 594 original equate process due with the 934, (2d 1979); Cir. Lombardo v. Meac 1977). hum, 13, (1st approach 548 F.2d 15-16 procedural If that expectations. there be a constitu adopted, were would argument ap- is not without Plaintiff’s process right to have tional procedural however, procedural re- peal, because procedural pro- rules any question clearly satisfy the states adhere quirements in (1976); Organization 18 Families, Foster Smith v. (k) programs 847-49, Refer to one or more treatment 431 U.S. 97 S.Ct. counseling 2111-12, for intensive (1977). L.Ed.2d 14 (!) possible Several combinations of above provides departure from the 10. Rule 4.601 procedures may disciplinary be authorized Kennedy, In Arnett v. 416 U.S. Commissioner, Commissioner, Deputy (1974), plurality 40 L.Ed.2d 15 grant Adult Services. Assistant Commissioner for Court ruled that of a inter- qualified procedural est which was limited regard of an With reasonableness ex protections, greater entitled to no pectation group to its own will adhere protections accompa- cedural than those which rules, States, see v. United Yellin grant nied the But that interest. see Arnett 109, 123, Powell, J., Kennedy, opinion (1962). L.Ed.2d 778 166-67, 1650; White, opinion 94 S.Ct. at J. 177-78, 1655-56; 94 S.Ct. at dissent Mar- 4.601, Stonney 11. n. 10. Warden Lane shall, 209-11, J. at at 1671. testified at trial that he was not free to deviate generally Eldridge, procedures 9. Mathews v. from the contained in the Guide- 319, 332-35, 893, 901-903, 47 L.Ed.2d lines. mulgated While such adherence At argument, plaintiffs them. oral re desirable, quested that their records be certainly every expunged. deviation from Expungement appropriate remedy is not an procedures cannot as a state be viewed fed- case for the reasons stated in Wolff eral constitutional violation. Such a hold- 418 U.S. at ing large would make a volume of state at 2982-83. S.Ct. proceedings prison setting, in execu- judicial agency proceedings, tive and in correctly District Court ceedings subject complaint in the federal ruled that restoration of and honor process grounds. courts on due We decline time in a 1983 action is foreclosed § expand procedural process. to so 475, Rodriquez, Preiser v. 411 93 U.S. S.Ct. 1827, (1973). 36 L.Ed.2d 439 Plaintiffs were procedural While it is clear that properly recovery damages denied under promulgated by departments agen rules Navarette, the rule stated in Procunier v. government cies within the federal must be 555, 855, 434 98 55 S.Ct. L.Ed.2d 24 to, States, adhered Yellin v. United (1978). 109, (1963); 374 U.S. 83 S.Ct. 1828 Vitarelli part, Affirmed in part. reversed in Seaton, 535, 539, v. 359 U.S. (1959), history 3 L.Ed.2d 1012 the federal rule is based on federal law. EDWARDS, Judge, concurring spe- Chief Caceres, See United States 440 U.S. cially. 751-52, 1465, 1471-72, 59 L.Ed.2d join opinion I concur in and the majority (1979).12 Consequently, these cases can to all except as sections III. I Section upon support be relied a constitution agree rejection cannot plain- with the al claim. Mabey Reagan, But see procedural tiffs’ rights claims to based on (9th 1976). Guidelines, prison regulations (see state 4.601(4)). I believe that these rules do

In foregoing analy- accordance with the “legitimate establish a claim of entitle- sis, we affirm the determination of the Dis- not, here, arbitrarily ment” and trict procedural Court that the rules issued Fano, disregarded. Meachum v. Department the Tennessee of Correction 215, 226, (1976); Wolff S.Ct. protected liberty created no interest. 539, 558, (1974). IV. parts

In I opinion, and II of this we ruled the plaintiffs were not afforded their

full due rights prior to transfer punitive segregation.

administrative or Ac-

cordingly, we hold that under the promulgated by

Guidelines the Tennessee

Department of Correction inmates have a procedural protections outlined II opinion prior Section of this to trans- punitive

fer to administrative or

tion. required by question.”

12. Where the IRS was not 440 U.S. at adopt regulations prohibiting constitution to 1471-72. It noted that rea- Caceras could not sonably regula- upon “consensual between contend electronic surveillance” that he relied taxpayers agents special prior any and IRS without tion its breach had effect on his authorization, Supreme Court held “that conduct. The same is true of the agency regulations the violations of disclosed rule here. any the record do not raise constitutional

Case Details

Case Name: Wendell Bills v. Murray Henderson

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Nov 13, 1980

Citation: 631 F.2d 1287

Docket Number: 78-1172

Court Abbreviation: 6th Cir.