497 F.2d 809 (9th Cir. 1974), 71-2357, Clutchette v. Procunier

Docket Nº:71-2357.
Citation:497 F.2d 809
Party Name:John Wesley CLUTCHETTE et al., Plaintiffs-Appellees, v. Raymond J. PROCUNIER et al., Defendants-Appellants.
Case Date:April 25, 1974
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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497 F.2d 809 (9th Cir. 1974)

John Wesley CLUTCHETTE et al., Plaintiffs-Appellees,


Raymond J. PROCUNIER et al., Defendants-Appellants.

No. 71-2357.

United States Court of Appeals, Ninth Circuit.

April 25, 1974

Rehearing Granted July 29, 1974.

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[Copyrighted Material Omitted]

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William D. Stein, Deputy Atty. Gen. (argued), Evelle J. Younger, California Atty. Gen., San Francisco, Cal., for defendants-appellants.

William Bennett Turner (argued), San Francisco, Cal., John E. Thorne, San Jose, Cal., Floyd Silliman, Silliman & House, Salinas, Cal., Fay A. Stender, Franck, Hill, Stender, Hendon, Kelley & Larson, Berkeley, Cal., for plaintiffs-appellees.


Before TUTTLE, [*] HUFSTEDLER and KILKENNY, Circuit Judges.

HUFSTEDLER, Circuit Judge:

Plaintiffs, who are inmates of San Quentin state prison, filed a civil rights class action challenging the constitutionality of the prison's disciplinary procedures. The district court held that the procedures violated the due process and equal protection clauses of the Fourteenth Amendment and granted the plaintiffs declaratory, 1 injunctive, and other relief. The prison authorities have appealed.

The issues on appeal, phrased broadly, are these: (1) Did the district court lack jurisdiction either because 28 U.S.C. § 2281 compelled convening a three-judge court to consider the constitutional issues or because Preiser v. Rodriguez (1973), 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439, required the plaintiffs to exhaust state remedies before resort to the district court? (2) Do the protections of the due process clause extend to prisoners who were subjected to the challenged disciplinary procedures? (3) What process is due these prisoners in the context of San Quentin's disciplinary system?


We agree with the district court that a three-judge panel did not

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have to be convened to hear the cause. Section 2281 2 does not apply to a suit to enjoin enforcement of regulations that have local, rather than 'statewide application.' (Board of Regents v. New Left Education Project (1972), 404 U.S. 541, 92 S.Ct. 652, 30 L.Ed.2d 697; Moody v. Flowers (1967), 387 U.S. 97, 87 S.Ct. 1544, 18 L.Ed.2d 643; Hatfield v. Bailleaux (9th Cir. 1961), 290 F.2d 632.) The plaintiffs' attack is limited to procedures conducted within the walls of San Quentin, and San Quentin's rules do not apply statewide. (Compare Hatfield v. Bailleaux, supra (three-judge court not required when regulation challenged applied only to single Oregon prison), with Gilmore v. Lynch (9th Cir. 1968), 400 F.2d 228 (three-judge court required where regulation challenged established rules for every prison in California). See also Sands v. Wainwright (5th Cir. 1973), 491 F.2d 417.)

A more difficult question is whether the gloss of Wilwording v. Swenson (1971), 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418, by the Court in Preiser v. Rodriguez (1973), 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439, compels the plaintiffs to seek relief via habeas corpus instead of using the Civil Rights Act (42 U.S.C. § 1983). If the plaintiffs' sole recourse were to habeas, they could not maintain their federal suit because they have not exhausted state remedies. 3

The prisoners in Rodriguez brought section 1983 actions seeking restoration of good time credits that had been revoked through disciplinary procedures that they claimed violated their due process and equal protection rights. The Court, stressing that relief would result in either immediate or more speedy release from confinement, held that a writ of habeas corpus was the exclusive federal remedy because the prisoners' lawsuits were 'within the core of habeas corpus in attacking the very duration of their confinement itself.' (411 U.S. at 487-488.) However, the Court expressly reaffirmed its earlier holding in Wilwording that state prisoners challenging on constitutional grounds the conditions of confinement, rather than the fact or length of custody, could properly bring section 1983 actions, thus eliminating the habeas corpus exhaustion requirement. (411 U.S. at 498-499.) 4

The Clutchette plaintiffs attack neither the fact nor the duration of their confinement. No plaintiff seeks immediate or earlier release from prison. They challenge on constitutional grounds prison procedures which can result in sanctions ranging from loss of privileges enjoyed by the general prison population to prolonged isolation from other prisoners, all of which have a significant impact on the conditions of their confinement.

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The profile of their action thus appears to resemble Wilwording. However, a closer examination of the features of San Quentin's disciplinary procedures in the context of California's Indeterminate Sentencing Act (Ca.Penal Code §§ 1168, 3020-3035), to which these prisoners are subject, requires a reappraisal of their case under the Rodriguez doctrine.

The line established by Rodriguez between proceedings seeking earlier release from confinement and actions challenging the conditions of confinement can be applied in a good time credit system because loss of credits has a direct and specific relationship to release dates. But in California, where good time credits are nonexistent, the line is blurred to the point of inapplicability because disciplinary sanctions have no fixed relationship to the fact or length of incarceration. Under California law, the Adult Authority is empowered within statutory limits to set and to reset the terms of imprisonment of adult male offenders sentenced to prison and to serve as the parole board for such offenders. (Cal. Penal Code §§ 1168, 3020, 5077.) All disciplinary actions against a prisoner are eventually reported to the Adult Authority. The Adult Authority has unfettered discretion to decide what effect, if any, a disciplinary inmate's confinement. 5 The Authority can and sometimes does cancel a previously set parole date or reset the inmate's sentence to a statutory maximum on the basis of even minor disciplinary actions. (See 2 California Bd. of Corrections, Correctional System Study: Prison Task Force Report 36-37 (1971). The relationship between the imposition of a disciplinary sanction and cancellation or postponement of a prisoner's release date cannot be more precisely identified. The Authority is not obligated to state reasons for its actions (See Parole Board Reform in California, supra note 5, at 16), and, therefore, the causal connection between a record of a disciplinary offense and an adverse response by the Authority is not always evident.

Because the potential effect of disciplinary sanctions on parole dates and length of sentence is so nebulous, we do not think that Rodriguez should be extended to compel the Clutchette plaintiffs to seek all of their relief through habeas corpus. Nor should Rodriguez be read to require plaintiffs to separate somehow those disciplinary proceedings that affect only the conditions of their confinement from those than can have an impact on their release dates, bringing civil rights actions challenging one type and habeas petitions challenging the other. Of course, we could verbally circumvent the problem by limiting the scope of relief available in this civil rights action to those disciplinary hearing that do not affect the length of incarceration time, leaving to prisoners, prison authorities, and state courts the task of deciding which proceedings are within or without our judgment. That course is unacceptable. Rather, we acknowledge that San Quentin's inmates cannot cast a habeas petition in Rodriguez' mold because it would be exceedingly rare, if ever, that a prisoner could aver that he would have been entitled to immediate release or release on a date certain had he not been subjected to the disciplinary procedures that he attacks on constitutional grounds. We hold that the speculative and incidental effect of prison disciplinary procedures on the duration of plaintiffs' sentences is not sufficient to bring any part of this action

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within the 'core' of habeas corpus. Therefore, it was proper for the district court to permit plaintiffs to proceed with their civil action under section 1983 without their having exhausted state remedies. 6


The plaintiffs retained a residuum of constitutionally protected liberty after they were convicted and incarcerated. Serious inroads on that liberty can be made only by following due process requirements. (Cf. Gagnon v. Scarpelli (1973), 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656; Morrissey v. Brewer (1972), 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484.) Accordingly, our circuit and others have held that those prison disciplinary proceedings that can result in the imposition of 'significant' sanctions upon prisoners must be conducted with due process safeguards. (Allen v. Nelson (9th Cir. 1973), 484 F.2d 960, aff'g (N.D.Cal.), 354 F.Supp. 505; McDonnell v. Wolff (8th Cir. 1973), 483 F.2d 1059, cert. granted (1974), 414 U.S. 1156, 94 S.Ct. 913, 39 L.Ed.2d 108; United States ex rel. Miller v. Twomey (7th Cir. 1973), 479 F.2d 701; Gray v. Creamer (3d Cir. 1972), 465 F.2d 179; Sostre v. McGinnis (2d Cir. 1971) 442 F.2d 178; See Palmigiano v. Baxter (1st Cir. 1973), 487 F.2d 1280.)

When the district court decided this case, it had little guidance in drawing a due process line other than the general principle, derived from Mr. Justice Frankfurter's concurring opinion in Joint Anti-Facist Refugee Comm. v. McGrath (1951), 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817, that procedural due process protections are due state prisoners subjected to disciplinary proceedings if, as a result of such proceedings, they will be 'condemned to suffer grievous loss.' (Id. at 168, quoted in Goldberg v. Kelly (1970), 397 U.S. 254, 263, 90 S.Ct. 1011, 25 L.Ed.2d 287, and in Morrissey v. Brewer, supra, 408 U.S. at 481.) In applying the 'grievous loss' concept, the district court...

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