483 F.2d 1059 (8th Cir. 1973), 72-1331, McDonnell v. Wolff

Docket Nº:72-1331, 72-1332.
Citation:483 F.2d 1059
Party Name:Robert O. McDONNELL, etc., Appellant, v. Charles L. WOLFF, Jr., etc., et al., Appellees. Robert O. McDONNELL, etc., Appellee, v. Charles L. WOLFF, Jr., etc., et al., Appellants.
Case Date:August 02, 1973
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 1059

483 F.2d 1059 (8th Cir. 1973)

Robert O. McDONNELL, etc., Appellant,

v.

Charles L. WOLFF, Jr., etc., et al., Appellees.

Robert O. McDONNELL, etc., Appellee,

v.

Charles L. WOLFF, Jr., etc., et al., Appellants.

Nos. 72-1331, 72-1332.

United States Court of Appeals, Eighth Circuit.

Aug. 2, 1973

Submitted Jan. 9, 1973.

Rehearing Denied Sept. 12, 1973.

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[Copyrighted Material Omitted]

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Douglas F. Duchek, Cline, Williams, Wright, Johnson & Oldfather, Lincoln, Neb., for McDonnell.

Melvin K. Kammerlohr, Asst. Atty. Gen., Dept. of Justice, Lincoln, Neb., for Wolff.

Before LAY, HEANEY and STEPHENSON, Circuit Judges.

HEANEY, Circuit Judge.

Robert O. McDonnell brought this civil rights action on behalf of himself and other inmates of the Nebraska Penal and Correctional Complex. He alleged that disciplinary proceedings in the Complex were conducted without regard for procedural or substantive due process, that the inmate legal assistance program did not meet constitutional standards,

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and that the regulations regarding prisoners' mail were violative of the inmates' constitutional rights.

The trial court, relying on our decision in Morrissey v. Brewer, 443 F.2d 942 (8th Cir. 1971), held that the Complex was not required to afford procedural due process to inmates in disciplinary hearings, but that it was required to afford substantive due process to inmates. It also held that a rule limiting legal assistance to help, which could be provided by a designated inmate, was reasonable and valid; but that a rule limiting the use of the library to seven hours per week was impermissible, and that a regulation requiring that all incoming and outgoing mail be read and inspected was improper. 1

McDonnell and the defendants appeal. McDonnell contends the trial court erred in holding that minimum due process requirements were not applicable to prison disciplinary hearings, and that the inmate legal assistance program met constitutional standards. The defendants contend that substantive due process was unavailable to inmates, and that the court erred in striking down the prison regulations with respect to the use of the prison library and mail censorship.

I. Due Process

The District Court reluctantly relied on our Morrissey v. Brewer decision, in holding that procedural due process requirements were not applicable to disciplinary hearings. It stated:

"Courts have begun in recent years to recognize that fundamental due process is a right of all persons, including inmates, and have specifically held that before good time or other substantial rights may be taken there must be an impartial tribunal, notice, a hearing, a right to cross-examination of adverse witnesses, that the decision be based upon evidence adduced at the hearing, and that the inmate be allowed representation if he so desires. See, e. g., Landman v. Royster, 333 F.Supp. 621 (E.D.Va.1971).

"However, the Eighth Circuit has not yet followed the trend regarding application of procedural due process to good time revocation, but continues to view the problem in terms of the right/privilege dichotomy that was popular prior to Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) and its progeny. Douglas v. Sigler, 386 F.2d 684 (8th Cir. 1967). Such a position was recently affirmed in Morrissey v. Brewer, 443 F.2d 942 (8th Cir. 1971), which, although the question was then of parole revocation, must be applicable to good time as well. * * *"

McDonnell v. Wolff, 342 F.Supp. 616, 627-628 (D.Neb.1972). It's reluctance was well founded. This Court was reversed by the Supreme Court. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). In light of Morrissey, we subsequently held that minimum procedural due process requirements are applicable to prison disciplinary hearings. Remmers v. Brewer, Warden, et al., 475 F.2d 52 (8th Cir. 1973); Dodson, etc. v. Haugh, etc., et al., 473 F.2d 689 (8th Cir. 1973).

In view of the developments in the law, subsequent to trial, the defendants no longer contend that inmates are not entitled to minimum due process in disciplinary hearings which may result in the loss of good time, or the imposition of other substantial penalties. Instead, they argue that existing procedures provide such due process. Under present procedures, inmates are given an informal hearing before an adjustment committee but are not given: (a) notice of the charges in time to prepare a defense; (b) an opportunity to summon, confront or cross-examine witnesses; (c) legal assistance in the presentation of a defense; or (d) a written statement by the fact finders as to the evidence relied on and reasons for the action taken. We find no merit to the argument that existing procedures provide minimum due process. 2

In our view, the procedural requirements outlined by the Supreme Court in Morrissey, and as supplemented by Gagnon, Warden v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), should be generally followed. We believe, however, that specific requirements, including the circumstances in which counsel may be required, should be laid down by the District Court after further hearings. See, Remmers v. Brewer, Warden, et al., supra; Dodson, etc. v. Haugh, etc., et al., supra.

The trial court properly held that Fourteenth Amendment substantive due process requirements are applicable to disciplinary proceedings. Even in those earlier cases in which we held procedural due process inapplicable in comparable settings, we recognized that administrative determinations must not be arbitrary. See, Morrissey v. Brewer, supra, 443 F.2d at 950; Douglas v. Sigler, 386 F.2d 684, 687 (8th Cir. 1967). It would serve little purpose to require fair procedures but to permit arbitrary results. The procedures are not ends in themselves, but are a means to insure that decisions imposing substantial penalties will be based on the knowledge that grounds for the imposition of the penalties exist. The courts, therefore, have a limited right to review the merits of decisions imposing substantial penalties. In each case, the sole concern of the court must be whether the decision of the prison authorities is arbitrary and capricious. It must not substitute its judgment for that of the prison authorities. 3

We believe that the District Court correctly applied the above standard when it held that prison authorities violated the rights of inmates by subjecting them to substantial penalties for relatively minor offenses. Not only was such a revocation contrary to Neb.R.R. S.1943, § 83-185 (1971), but also it was arbitrary and capricious.

It is necessary to digress at this point, to discuss the effect of Preiser, Commissioner of Correctional Services, et al. v. Rodriguez et al., 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), 4 on the disposition of this case. In that case, several prisoners, without exhausting state remedies, brought civil rights actions under 42 U.S.C. § 1983 in federal court, arguing that they had been unconstitutionally deprived of good time; they sought restoration of that good time. The Supreme Court held that the relief requested could not be granted in a § 1983 action. The

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Court stated:

"* * * [W]hen a state prisoner is challenging the very fact or duration of his physical imprisonment, and the

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relief he seeks is a determination that he is entitled to immediate or more speedy release from that imprisonment, his sole federal remedy is a writ of habeas corpus. * * * [Moreover, state remedies must be exhausted before coming into federal court if such relief is sought.]"

Id. at 500, 93 S.Ct. at 1841. 5

The Court noted, however, that an inmate retains the right to litigate claims relating to the conditions of his confinement under a § 1983 action in federal court without exhausting state remedies.

It follows from Preiser that it would be improper for the District Court on remand to restore good time which may have been taken from inmates in proceedings that did not meet the requirements of procedural or substantive due process. A federal court can restore good time only if state remedies have been exhausted. 6

On the other hand, it will be appropriate for the District Court to establish minimum procedural due process requirements for disciplinary hearings which may result in serious penalties other than loss of good time, such as incarceration in a dry cell or solitary confinement.

It will also be appropriate for the District Court to order expunged from prison records, determinations of misconduct arrived at in hearings that fail to comport with minimum due process requirements. 7 See, Neb.R.R.S. 1943, § 83-185 (1971); McDonnell v. Wolff, supra 342 F.Supp. at 640.

We recognize that the above result may mean that the federal courts may often establish minimum due process standards for all types of disciplinary hearings for serious misconduct in state prisons and that there may be simultaneous litigation in state and federal courts, but the Supreme Court anticipated these results would probably occur. Preiser, Commissioner of Correctional Services, et al. v. Rodriguez et al., supra 411 U.S. at 499, n. 14, 93 S.Ct. 1841.

To summarize, the District Court must, on remand, determine what procedures are necessary to meet minimum procedural due process standards and whether they are being met. If the defendant is not meeting these standards, the court may grant such declaratory and injunctive relief as it deems necessary, except that it may not restore good time.

We turn next to the questions of whether the Complex's regulations relating to inmate legal assistance and mail censorship are unconstitutional and should be enjoined. These questions clearly relate to conditions of confinement, and thus relief may be granted under § 1983.

II. Inmate Legal Assistance

The court upheld as reasonable a...

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