Delbert Kaahanui Wakinekona v. Antone Olim, Edith M. Wilhelm, John Smythe, Winton Leong and Edwin Shimoda , 664 F.2d 708 ( 1981 )

CANBY, Circuit Judge.

In August 1976, Delbert Kaahanui Wakinekona sought to challenge his transfer from Hawaii State Prison to Folsom State Prison in California. Wakinekona sued in the Federal District Court for the District of Hawaii under 42 U.S.C. § 1983, alleging that he was transferred in violation of the due process clause of the fourteenth amendment. The district court dismissed his complaint, holding that the Hawaii statutes and regulations governing prison transfers did not create a substantive liberty interest protected by the due process clause. Wakinekona appealed the resulting judgment. We reverse the decision of the district court, 459 F.Supp. 473.

I.

Wakinekona was an inmate of the Hawaii State Prison, sentenced to life imprisonment and confined to the maximum control unit. On August 2, 1976, he appeared at a program classification hearing, the stated purpose of which was to determine the reason for the failure of programs within the maximum control unit. As a result of that hearing, Wakinekona was one of two inmates singled out as troublemakers. On August 5, he received notice that the prison program committee would consider at an August 10 hearing whether he should be transferred to another prison in Hawaii or to a mainland prison. The August 10 hearing was conducted by the same persons who presided at the August 2 hearing. The program committee decided that Wakinekona should be transferred to Folsom because of reports that he frequently threatened and intimidated prison guards. Wakinekona was transferred to Folsom. The notice to California prison authorities stated that Wakinekona “has a background of aggravated battery and a history of escape from prison. He is considered to be the most dangerous and assaultive inmate in the Hawaii prison system.. . . ”

Wakinekona claimed that his transfer violated the due process clause because the committee which decided to transfer him was biased against him. He alleged that the committee was composed of the same persons who initiated the transfer proceedings, in direct violation of Hawaii prison regulations. The regulations require that an impartial committee make such decisions, and specifically exclude from the committee any persons who were actively involved in initiating the transfer proceedings. Wakinekona argued that because he was denied a hearing before an impartial tribunal, his transfer violated the due process clause. The district court found, however, that the prison transfer regulations did not create a substantive liberty interest protected by the due process clause, and dismissed his complaint.

II.

In Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976), and Montanye v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 446 (1976), the Supreme Court held that prison transfers do not automatically trigger the protections of the due process clause. The gist of those decisions was that the day-to-day functioning of state prisons is the business of the states, not of federal judges. Therefore, the Court held that the due process clause does not impose a nationwide rule requiring hearings before all prison transfers. Fano, 427 U.S. at 229, 96 S.Ct. at 2540. The court also recognized, however, that individual states are free to require prison transfer hearings by statute or by regulation. Hawaii has enacted a set of prison transfer regulations. They clearly condition prison transfers involving a “grievous loss” upon a hearing by an impartial committee established by the prison administrator. Art. IV(2), Supplementary Rules & Regulations of the Corrections Division, Department of Social Services & Housing, State of Hawaii. The regulations also define an interstate transfer as a “grievous loss.” The question we face is whether an interstate prison transfer falling within the scope of these regulations invokes the protections of the due process clause.

The result in Fano and Haymes depended upon two factors. First, the Court rejected the idea that any “grievous loss” imposed upon a prisoner implicates due process. The Court stated that not every change in the conditions of the confinement of an inmate is of constitutional magnitude. The Court concluded that the intrastate transfers involved in Fano and Haymes did not implicate due process because “confinement in any of the State’s institutions is within the normal limits or range of custody which the conviction has authorized the State to impose.” Fano, 427 U.S. at 225, 96 S.Ct. at 2538. Second, the Court found that the state laws and regulations governing intrastate prison transfers did not create a substantive liberty interest. The Court stated that a substantive liberty interest might be created by the state if there were “some right or justifiable expectation rooted in state law that [the inmate] will not be transferred except for misbehavior or upon the occurrence of other specified events.” Haymes, 427 U.S. at 242, 96 S.Ct. at 2547. The Court could find no such right or expectation in the statutory schemes of Massachusetts or New York.

The Court expanded upon its analysis of prison transfers in Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980), which dealt with the transfer of an inmate from prison to a mental hospital. The Court held that such a transfer triggered the application of the due process clause for two independent reasons: (1) it involved the imposition of qualitatively different conditions beyond the range of those justified by the conviction and sentence; and (2) state law gave rise to a liberty interest by creating an objective expectation that a prisoner would not be transferred to a mental hospital unless he suffered from a mental disease or defect that could not be adequately treated in prison.

We need not address the question whether transfer of a prisoner from Hawaii to California involves such qualitatively different conditions that it exceeds the range of confinement justified by his sentence,¹ because we conclude that the Hawaii prison regulations created a liberty interest subject to due process protection.

III.

In Fano and Haymes, the Supreme Court found that the state laws governing prison transfers did not create a substantive liberty interest. “Massachusetts law conferred no right on the prisoner to remain in the prison to which he was initially assigned, defeasible only upon proof of specific acts of misconduct.” Fano, 427 U.S. at 226, 96 S.Ct. at 2539. Under New York law, a prisoner “had no right to remain at any particular prison facility and no justifiable expectation that he would not be transferred unless found guilty of misconduct.” Haymes, 427 U.S. at 243, 96 S.Ct. at 2547. The Court therefore concluded that

no legal interest or right of these respondents under [state] law would have been violated by their transfer whether or not their misconduct had been proved in accordance with procedures that might be required by the Due Process Clause in other circumstances.

Fano, 427 U.S. at 228, 96 S.Ct. at 2540.²

The Hawaii prison transfer regulations differ substantially from the statutory schemes addressed by the Supreme Court in Fano and Haymes. The regulations require that an elaborate procedure will be followed whenever a prison transfer involves a “grievous loss” to the prisoner. Other courts have recognized that the existence of certain procedures may create an expectation protected by the due process clause. Lokey v. Richardson, 600 F.2d 1265, 1266 (9th Cir. 1979); Lamb v. Hutto, 467 F.Supp. 562, 566 (E.D.Va.1979); see Sherman v. Yakahi, 549 F.2d 1287, 1292 (9th Cir. 1977). We believe that the regulations in this case create a justifiable expectation that a prison transfer involving a “grievous loss” will not be carried out unless certain procedures are followed.

The First, Second, and Sixth Circuits have rejected claims that procedures mandated by particular prison transfer regulations create a liberty interest protected by the due process clause. Lombardo v. Meachum, 548 F.2d 13, 15 (1st Cir. 1977); Cofone v. Manson, 594 F.2d 934, 938 (2d Cir. 1979); Bills v. Henderson, 631 F.2d 1287, 1298-99 (6th Cir. 1980). To the extent that these cases may be read as holding that no procedural requirements can create a substantive liberty interest, unless the events which may cause a transfer are specified in those requirements, we must disagree.³ The real issue is whether the transfer regulations create an entitlement to procedural protections. See Greenholtz v. Inmates, 442 U.S. 1, 12, 99 S.Ct. 2100, 2106, 60 L.Ed.2d 668 (1979).

The Hawaii regulations clearly guarantee prisoners specified procedural protections before any transfer involving a “grievous loss,” and they define an interstate transfer as a “grievous loss.” The regulations require that such transfers be considered by an impartial committee. The prisoner subject to transfer is entitled to prior notice of the hearing at which the committee will consider his transfer. The notice must state “what the Committee will consider at the hearing,” and “any recent specific facts which may weigh significantly in the classification process.” The prisoner has the right to examine all relevant, non-confidential material related to his case, a right to confront and cross-examine witnesses, a right to retain counsel and a right to respond to the evidence presented to the committee and to offer evidence on his own behalf. The regulations require that the committee “render a recommendation based only upon evidence presented at the hearing to which the individual had an opportunity to respond or any evidence which may subsequently come to light after the formal hearing.” These regulations are not without substantive content. Their clear import is that a transfer will not be carried out absent a hearing directed to proof of the facts alleged in the notice received beforehand by the prisoner. In our view, these regulations create a justifiable expectation that a prisoner will not be transferred absent the specified procedures. They consequently give rise to a constitutionally protected liberty interest.

Our conclusion is reinforced by the fact that the regulations are clearly designed to protect a substantial interest of prisoners. The regulations limit the discretion of prison officials to transfer prisoners whenever a transfer involves a “grievous loss.” Nor does our conclusion change because the regulations provide that the decision of the committee is merely advisory to the prison administrator, who can “[a]ffirm or reverse, in whole or in part, the [committee’s] recommendation.” The state argues that the quoted clause gives the prison administrator unfettered freedom to transfer inmates so that they are in fact transferable at will within the meaning of Fano and Haymes. This argument grossly undervalues the procedural conditions which the state has imposed upon the actions of the prison administrator. The regulations certainly do not contemplate a transfer at the will of the prison administrator. He may act only after an impartial committee, from which he is excluded, has made a recommendation based upon facts specified in the notice of transfer hearing and proved at that hearing. The whole purpose of such procedural requirements is to protect against arbitrary or uninformed action by the prison administrator. See Accardi v. Shaughnessy, 347 U.S. 260, 267, 74 S.Ct. 499, 503, 98 L.Ed. 681 (1954). That goal cannot be reduced to constitutional insignificance.

We do not mean to suggest that every minor violation of prison transfer regulations will violate due process. First, it must be determined in a particular case whether the transfer regulations create an entitlement to specified procedures. Second, a deviation from the transfer regulations will assume constitutional proportions only when it affects the fairness of the process established by the regulations.⁴ Cf. Winnick v. Manning, 460 F.2d 545, 550 (2d Cir. 1972). Wakinekona claims that prison officials deprived him of the independent decisionmaker guaranteed by the regulations because the committee which recommended his transfer also initiated the transfer proceedings. An impartial tribunal is one of the mainstays of procedural fairness. Gibson v. Berryhill, 411 U.S. 564, 579, 93 S.Ct. 1689, 1698, 36 L.Ed.2d 488 (1973); Ward v. Village of Monroeville, 409 U.S. 57, 61-62, 93 S.Ct. 80, 83-84, 34 L.Ed.2d 267 (1972). We therefore agree with Wakinekona that in alleging that he was deprived of the independent decisionmaker required by prison regulations, he has stated a claim under 42 U.S.C. § 1983. The district court erred in dismissing his claim pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure.

REVERSED AND REMANDED.

1 . This court has held that an inmate’s transfer from Hawaii State Prison to a state prison in California does not raise any constitutional issues. Hillen v. Director of Department of Social Services, 455 F.2d 510, 511 (9th Cir. 1972); see also Fajeriak v. McGinnis, 493 F.2d 468 (9th Cir. 1974) (involving transfers from Alaska to other states). These cases preceded Fano, Meachum and Vitek, however. Interstate transfers were also held not to implicate due process in Sisbarro v. Warden, 592 F.2d 1, 3 (1st Cir. 1979) and Cofone v. Manson, 594 F.2d 934, 937 n.4 (2d Cir. 1979). These cases were decided after Fano and Meachum but before Vitek.

2 . New York required no hearing before prison transfers. Haymes, 427 U.S. at 243, 96 S.Ct. at 2547. Massachusetts required no hearing by statute, and it is not clear whether that state required transfer hearings by regulation. Fano, 427 U.S. at 226-27, 96 S.Ct. at 2539, 2540. Fano did receive a hearing before his transfer. Fano v. Meachum, 520 F.2d 374, 376-77 (1st Cir. 1975), rev’d, 427 U.S. 215, 96 S.Ct. 2543, 49 L.Ed.2d 446 (1976). The First Circuit opinion in Fano mentions only a regulation requiring disciplinary hearings at Walpole State Prison. Id. at 379-80. Fano, however, was confined at Norfolk State Prison, and that regulation would not apply to his transfer, even if it could be considered to be disciplinary.

3 . In Lombardo, the First Circuit interpreted the Massachusetts statutory scheme as not creating a substantive liberty interest protected by the due process clause. The court conceded, however, that a Massachusetts court might come to the opposite conclusion. 548 F.2d at 15 n.3.

4 . We therefore disagree with the suggestion of the dissent that our ruling imposes a constitutional requirement that state officers follow local regulations “to the letter.” infra, p. 712. We simply hold that the particular detailed regulations in this case create a liberty interest, and that deprivation of that interest by a biased decision-maker violates the Fourteenth Amendment. See L. Tribe, American Constitutional Law 555 (1978). We have no occasion to rule on what other regulations may create a liberty interest or what other procedural deviations may violate due process. It goes without saying that it would be neither sound law nor desirable policy to constitutionalize every state prison regulation.