487 F.2d 1280 (1st Cir. 1973), 73-1088, Palmigiano v. Baxter

Docket Nº:73-1088.
Citation:487 F.2d 1280
Party Name:Nicholas A. PALMIGIANO, Appellant, v. Joseph BAXTER et al., Appellees.
Case Date:November 16, 1973
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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487 F.2d 1280 (1st Cir. 1973)

Nicholas A. PALMIGIANO, Appellant,


Joseph BAXTER et al., Appellees.

No. 73-1088.

United States Court of Appeals, First Circuit.

November 16, 1973

Argued Sept. 5, 1973.

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Stephen J. Fortunato, Jr., with whom McKinnon & Fortunato, Providence, R. I., and Ellen Katz, were on brief, for appellant.

Cary J. Coen, Providence, R. I., John M. Roney, Washington, D. C., Max D. Stern, Stern & Shapiro, Boston, Mass., and Stanley A. Bass, New York City, on brief for Robert Flint and Michael Roberts, amici curiae.

W. Slater Allen, Jr., Asst. Atty. Gen., with whom Richard J. Israel, Atty. Gen., was on brief, for appellees.

Before COFFIN, Chief Judge, KILKENNY [*] and McENTEE, Circuit Judges.

COFFIN, Chief Judge.

This is an action seeking damages and declaratory and injunctive relief pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3) to redress certain alleged deprivations of procedural due process in the administration of discipline at Rhode Island's Adult Correctional Institutions (A.C.I.). Appellant is a prisoner at the A.C.I., serving a life sentence for murder. In the early evening of November 11, 1972, a fellow prisoner became violently ill. When by 8:50 p. m. no medical assistance had yet been provided, appellant allegedly advised other prisoners not to return to their cells for the 9:00 lock-up, in protest against the failure to provide medical attention.

Appellant was charged with "inciting a disturbance and disrupt [sic] of A.C.I. operations, which might have resulted in a riot", and summoned before a prison disciplinary board. He was informed

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that he might be prosecuted for a violation of state law, and that he should consult his attorney. However, his attorney was not permitted to accompany him into the prison disciplinary hearing. Just before the hearing commenced, appellant was advised by the Deputy Warden that his silence would be held against him. Even so, appellant remained silent through the hearing. The disciplinary board based its decision entirely upon the written statement submitted by a correctional officer who had witnessed the alleged infraction. Appellant was sentenced to thirty days in punitive segregation. 1 The board recommended that he lose any good time credits for which he was eligible during that period 2 and that he be considered for possible downgrading in classification at the expiration of the thirty days. 3

After reviewing the record, the district court concluded that appellant had not been denied due process and therefore was not entitled to any of the relief he sought. 4 Although the claim of use immunity arguably did not arise in the original complaint, appellant twice moved for reconsideration of the question of whether he was deprived of his Fifth and Fourteenth Amendment rights against self-incrimination in the prison disciplinary hearing, where he had not been assured that his testimony could not be used to incriminate him in a subsequent criminal prosecution, and had been penalized for his failure to testify in the prison hearing. The district court denied both motions, concluding that the authorities on which appellant relied in support of his motion were distinguishable on their facts from the present case.

This case is one of a lengthening list, raising the questions whether and to what extent due process exists behind prison walls. During the past decade, judicial reluctance to look behind the

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walls 5 has given way to a special concern that fair and orderly procedures govern there. 6 In the late 1960's federal courts established the general principle that due process follows a prisoner through the prison doors. Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1969) (Blackmun, Cir. J.); see also Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969). Our own Nolan v. Scafati, 430 F.2d 548 (1970) held that whenever substantial individual interests of prisoners are at stake, "some assurances of elemental fairness are essential". In the past three years federal courts have been faced with the difficult task of giving specific content to that general principle. 7 Recently the Supreme Court articulated specific requirements for minimum due process applicable to parole revocation proceedings, marking the first time that Court has ventured so directly into the area of due process rights for individuals under custodial authority. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

The task is a delicate one for courts because of the sensitive and precarious nature of correctional institutions. Prison officials, facing complicated and combustible situations each day, must be free to make a wide range of decisions. Much must be left to their good faith discretion. Sawyer v. Sigler, 445 F.2d 818 (8th Cir. 1971); Marnin v. Pinto, 463 F.2d 583 (3d Cir. 1972). Time has proved, however, that blind deference to correctional officials does no real service to them. Judicial concern with procedural regularity has a direct bearing upon the maintenance of institutional order; the orderly care with which decisions are made by the prison authority is intimately related to the level of respect with which prisoners regard that authority. There is nothing more corrosive to the fabric of a public institution such as a prison than a feeling among those whom it contains that they are being treated unfairly. 8

Control over official discretion within prison walls is vital for other reasons as well. Most decisionmaking of correctional personnel is less visible to the public than is the decisionmaking of other public officials, and therefore less likely to benefit from the inherent constraints of public discussion and scrutiny.

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Prisoners themselves have no opportunity to participate in a political process which might otherwise provide some guidance for official discretion. 9 Moreover, because prisoners are under the constant care and supervision of correctional personnel within "total institutions" 10 which regulate evey aspect of their lives, there exist awesome possibilities for misuse of discretion to the extent that decisions which affect prisoners in important ways may be made arbitrarily or based upon mistakes of fact. Finally, it is coming to be realized that almost all of the 1.2 million individuals who are at any one time subject to correctional authority will eventually rejoin the rest of our citizens outside the prison walls; if they are to learn to respect public authority and to participate in the democratic control of that authority as normal citizens, they need to be able to challenge what appear to be arbitrary assertions of power by correctional officials during the course of their confinement. 11

In determining to what extent due process safeguards are required in prison disciplinary decisions, federal courts have employed two levels of analysis, first examining whether the questioned decision is one which requires due process at all, and then deciding upon the amount of due process which seems necessary under the precise circumstances. The first determination depends upon an assessment of the inmate's stake in the decision, rather than upon a weighing of the inmate's interest against the interests of the state. See Morrissey v. Brewer, 408 U.S. 471, 483, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Board of Regents v. Roth, 408 U.S. 564, 570-571, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). The stake will be sufficiently large to necessitate some due process if the consequences of the challenged actions of the state officials are sufficiently serious to amount to a "grievous loss". See Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring); Morrissey v. Brewer, supra, 408 U.S. at 481, 92 S.Ct. 2593.

In a prison setting where liberty is by necessity shrunken to a small set of minor amenities, such as work or schooling privileges, visitations, and some modicum of privacy, it is likely that any marked change of status which forecloses such liberties will be perceived and felt as a grievous loss. United States ex rel. Miller v. Twomey, supra, 479 F.2d at 717. This implies that a minimal level of due process must be achieved in reaching any decision concerning a particular inmate which may result in a marked change in the status of the inmate's confinement, with the result that he may be deprived of amenities on which he has come to rely. The stakes are simply too high for the inmate, and the possibility for honest error or irritable misjudgment too great to allow such decisions to be taken without giving the inmate a chance to be fully informed of the case against him so that he may contest its basis. "In most cases it would probably be difficult to find an inquiry minimally fair and rational unless the prisoner were confronted with the accusation, informed of the evidence against him . . . and afforded a reasonable opportunity to explain his actions." Sostre v. McGinnis, supra, 442 F.2d at 198. This is as true for a decision based on the security requirements of the institution or the rehabilitative

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interests of the inmate as it is for one based on a disciplinary violation.

Once it has been determined that the inmate's stake in the decision is sufficient to require a minimal level of due process safeguards, the second task facing the court, more difficult and more subtle, is to decide how much due process is required beyond this minimal level. "[C]onsideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as the private interest that has been affected by governmental action." Cafeteria and Restaurant Workers Union v. McElroy, 367 U.S. 886, 895, 81...

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