Arthur Fano v. Larry Meachum , 520 F.2d 374 ( 1975 )

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 dates and places of the alleged offenses.

The classification board recommended transfer to either Walpole or Bridgewater for all of the plaintiffs except Royce. These recommendations were appealed to Commissioner Hall. The appeals were denied, though the recommendations were modified in some instances with regard to the receiving institution and Royce was ordered transferred to Walpole.

Plaintiffs sought declaratory and injunctive relief and damages. 42 U.S.C. § 1983. The district court found that the proposed transfers violated the inmates’ due process rights under the Fourteenth Amendment, and defendants were enjoined from carrying out the transfers until fuller hearings were held.³ We have occasion here to review only the propriety of this preliminary injunction, the district court having reserved decision on the damage claims pending further hearings.⁴

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 offered 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 application of due process protections. Defendants correctly point out that Gomes may be distinguished from the instant case to the extent that our resolution of the interstate transfer question relied upon the assumption that interstate transfers will often be conducted between institutions which are separated by a significant distance. We noted in Gomes that the distance factor alone may make communication and visitation more difficult, and it is true that here the geographical issue is an irrelevant one.⁵ Moreover, there has been no suggestion that the plaintiffs are subject to the administrative segregation to which interstate transferees were routinely subjected upon arrival at the receiving institutions.

In other ways, however, the disadvantages attendant upon these transfers 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 obtain 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 at 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 Fourteenth Amendment.⁶ Wolff, 418 U.S. at 557, 94 S.Ct. 2963; Newkirk v. Butler, 499 F.2d 1214 (2d Cir.), cert. granted, 419 U.S. 894, 95 S.Ct. 172, 42 L.Ed.2d 138 (1974); Clonce v. Richardson, 379 F.Supp. 338 (W.D.Mo. 1974); Robbins v. Kleindienst, 383 F.Supp. 239 (D.D.C.1974); see Palmigiano v. Baxter, 487 F.2d 1280, 1284-85 (1st Cir. 1973), vacated, 418 U.S. 908, 94 S.Ct. 3200, 48 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); Clutchette v. Procurer, 497 F.2d 809, 814-15 (9th Cir. 1974), on rehearing, 510 F.2d 613 (1975), cert. granted, 421 U.S. 1010, 95 S.Ct. 2414, 44 L.Ed.2d 678 (1975).

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 been 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 greater 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 production 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 court’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 Walpole 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 adequate 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.

1 . The regulation is based on the theory that to grant a hearing might create difficulties of either double jeopardy or denial of the privilege against self-incrimination. We do not share the view that prosecution may not constitutionally be based on conduct which is also the subject of disciplinary proceedings. See, e. g., Palmigiano v. Baxter, 510 F.2d 534 (1st Cir. 1974). Nor do we feel that this concern on the part of the Commonwealth, if well-founded, could immunize what would otherwise be a due process violation. See Daigle v. Hall, 387 F.Supp. 652, 660-62 (D.Mass.1975); note 2 infra.

2 . We attach no significance for present purposes to the fact that these proceedings were for “classification” rather than “discipline”. Defendants assert that “there are in the instant case as many administrative overtones as disciplinary ones”, but we have already indicated that in our view the motive of prison officials, as such, is not properly a part of the due process calculus. Gomes v. Travisono, 510 F.2d 537, 541 (1st Cir. 1974). Whether the transfer is thought of as punishment or as a way of preserving institutional order, the effects on the inmate are the same and the appropriateness of the action depends upon the accuracy of the official allegation of misconduct.

3 . This action was originally commenced by seventeen inmates alleging that their reclassification into substantially more adverse conditions of confinement within Norfolk denied them due process. The six inmates now before the court as appellees subsequently filed an amended complaint raising the additional issue relating to the impending transfers from Norfolk to other institutions. The district court’s hearing on the request for a preliminary injunction was limited to the claims of those six plaintiffs. Although the order entered by the district court directed defendants to return the plaintiffs to the general population at Norfolk, the parties to this appeal have addressed themselves only to the issues raised by transfers from Norfolk to other prisons. We therefore will not consider here the application of due process principles to reclassification within a single institution. We note that the reclassification issue has been directly confronted in Daigle v. Hall, 387 F.Supp. 652 (D.Mass. 1975).

4 . Defendants’ appeal from the district court’s failure to dismiss the damage action must be dismissed for want of a final decision. 28 U.S.C. § 1291; King v. Higgins, 495 F.2d 815, 815 n.1 (1st Cir. 1974).

5 . Defendants inform us that Norfolk and Walpole are approximately one mile apart. Plaintiffs do not claim that transfer from Norfolk to either Walpole or Bridgewater creates difficulties because of the distance involved. This does not mean, of course, that transfers within a single state will never cover a distance sufficient to make them burdensome. See United States ex rel. Haymes v. Montanye, 505 F.2d 977 (2d Cir. 1974), petition for cert. filed, 43 U.S.L.W. 3282 (Nov. 1, 1974) (No. 74-520).

6 . It makes no difference that the Commonwealth need not have created a corrections system containing institutions with divergent conditions of confinement. The advantages of confinement in a more desirable institution are in this regard similar to the state-created right to good time credits which was involved in Wolff, 418 U.S. at 556-58, 94 S.Ct. 2963.