Newkirk v. Butler

• Decision Date: 03 June 1974
• Docket Number: No. 979,Docket 73-2858.,979
• Citation: 499 F.2d 1214
• Parties: James NEWKIRK, Plaintiff-Appellee, v. Harold N. BUTLER, Superintendent, of Wallkill Correctional Facility, and Peter Preiser, Commissioner of Correctional Services, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

499 F.2d 1214 (1974)

James NEWKIRK, Plaintiff-Appellee, v. Harold N. BUTLER, Superintendent, of Wallkill Correctional Facility, and Peter Preiser, Commissioner of Correctional Services, Defendants-Appellants.

No. 979, Docket 73-2858.

United States Court of Appeals, Second Circuit.

Argued May 9, 1974.

Decided June 3, 1974.

Certiorari Granted October 21, 1974.

Hillel Hoffman, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of N. Y., Samuel A. Hirshowitz, First Asst. Atty. Gen., New York City, of counsel), for defendants-appellants.

Daniel Pochoda, New York City (William E. Hellerstein, Marjorie M. Smith, The Legal Aid Society, Prisoners' Rights Project, New York City, of counsel), for plaintiff-appellee.

Before ANDERSON, FEINBERG and MANSFIELD, Circuit Judges.

Certiorari Granted October 21, 1974. See 95 S.Ct. 172.

MANSFIELD, Circuit Judge:

On June 8 and 9, 1972, appellee James Newkirk and four other inmates of Wallkill Correctional Facility ("Wallkill" herein), a medium security institution, were summarily transferred to maximum security facilities in New York in response to their alleged activities in support of a prisoners' union at Wallkill. Newkirk and three of the other four brought suit in the Southern District of New York pursuant to 28 U.S.C. § 1343(3), (4), and 42 U.S.C. § 1983 against the Superintendent of Wallkill and the State Commissioner of Correctional Services for a declaration that the transfers were in violation of the Constitution and laws of the United States and for injunctive relief. Prior to a decision in the action, which was tried in November, 1972, before Judge Robert J. Ward, sitting without a jury, all plaintiffs except Newkirk were released on parole and the action was dismissed as to them. Newkirk was returned to Wallkill but the action continued as to him. In a decision dated October 9, 1973, the district court held that the transfer violated the due process clause of the Fourteenth Amendment since it had been made without any explanation to Newkirk or opportunity to be heard. On October 23, 1973, the court entered a declaratory judgment accordingly, which, while denying injunctive relief, directed that no adverse parole action be taken against Newkirk, or punishment administered, because of the transfer and that Newkirk be told the "scope of permissible behavior at Wallkill and the circumstances which . . . would warrant his transfer to another prison." The Superintendent and State Commissioner appeal. With modification we affirm.

Wallkill is a unique state correctional facility because it permits its inmates, who live in rooms rather than cell blocks, maximum free time and freedom of movement and gives access to numerous recreational and rehabilitative programs not available at other state correctional facilities. Because of its several advantages, which are more fully described in the district court's opinion, see 364 F.Supp. 497 (S.D.N.Y.1973), admission to Wallkill is generally sought after and usually comes only after a state prisoner has spent time at a maximum security facility and has undergone an extensive screening procedure.

Appellee Newkirk, after being convicted of second degree murder in 1962, was incarcerated at Sing Sing and Green Haven before first applying in 1965 for admission to Wallkill, to which he was not admitted until 1971. At Wallkill he took instruction in auto mechanics, attended classes in mathematics, history and English, and, during his leisure time, played musical instruments and pursued other artistic interests. Newkirk also drove a truck at Wallkill and at times was permitted to leave the prison grounds as part of this employment.

Sometime prior to June 1972 several Wallkill inmates began circulating petitions to form an inmates' union. These activities were openly opposed, not by prison officials but by members of the elected Inmate Liaison Committee (the "Committee"), which had general responsibility for the processing of inmate grievances. On June 2, 1972, the Committee held a general meeting of the inmates at which it disclaimed any support for the union. The discussions at this meeting, although vociferous, were not violent. Newkirk, who had previously signed a proposed union constitution, did not attend this meeting but immediately prior to it received a union petition from a fellow inmate, signed it, and passed it along to another inmate.

Concerned about a possible threat to the stability of the prison, Lieutenant Connolly, the officer in charge of Wallkill on the evening of June 2, a Friday, telephoned reports to Superintendent Butler who had left Wallkill and was at his home for the weekend. Connolly also prepared a written report for Assistant Deputy Superintendent O'Mara in which he identified, based on what other officers had told him,¹ Newkirk as one of the inmates who had been canvassing for the union. On Tuesday, June 6, O'Mara recommended to Butler that eight inmates, including Newkirk, be transferred from Wallkill. Before making his recommendations O'Mara did not talk to Newkirk² and did not know who had observed him canvassing for the union or the extent of his activities. Butler decided to transfer Newkirk and four others on O'Mara's list without ever talking to the inmates involved and without personally observing any of their activities or even discussing the events of Friday evening with Connolly who was the officer in charge and who had never recommended that anyone be transferred. The transfers were accomplished on June 8 and 9 when the inmates were summoned to the prison infirmary and told they were being sent away immediately. They were not told the reason or given any opportunity to contest the action.

Newkirk was transferred to Clinton Correctional Facility where he was placed in a barred cell, openable only by a guard, and was unable to pursue many of the activities he had engaged in at Wallkill. Although he asked for a job involving auto mechanics or driving, he was employed by the Clinton Superintendent as a housekeeper at a salary less than what he had earned at Wallkill. Newkirk worked for the Superintendent seven days a week, often for 13 or 14 hours per day. Visits to Newkirk by members of his family were more restricted, since Clinton is located further from New York City, where Newkirk's family lives, than Wallkill.³ In light of these and other deprivations suffered by Newkirk, and since the transfer was in direct response to his presumed activity in support of the inmates' union, the district court rejected appellants' argument that the transfer was "administrative," and hence beyond due process requirements, because it had not resulted from formal disciplinary proceedings and had not involved any loss of good time or segregated confinement. Specifically the court declared:

"1) plaintiff Newkirk\'s interest in continuing to be situated at Wallkill is sufficiently great that transfers in direct response to his activity deserves some sort of `due\' process, at the very least the knowledge that it is a possibility "2) transfer from Wallkill to maximum security institutions is used by the defendants for disciplinary purposes;

"3) plaintiff Newkirk could not be transferred without being afforded due process, including

a) prior notice of the rules of the institution and what acts on his part would lead to his being transferred;

b) a hearing at which he was informed of the charges against him and afforded an opportunity to explain his behavior before a relatively impartial tribunal either prior to the transfer or if prompt action is essential, as soon thereafter as practicable; . . . ."

The court entered the above-described judgment (supra, p. 2) and denied appellants' requests for a resettlement which would limit the judgment to cases involving disciplinary transfers only and for a stay of that portion of the judgment directing appellants to notify Newkirk of the conduct that would lead to transfer from Wallkill.

Appellants argue that a hearing may be constitutionally required only for "disciplinary" transfers — i. e., transfers made as punishment for past rule violations.⁴ See 7 N.Y.C.R.R. Part 250, et seq. They urge that transfers for other purposes (e. g., transfer to separate inmates who are hostile to each other or to prevent threatened disturbances before they occur, which involve no formal disciplinary proceedings, loss of good time, segregation, or adverse parole consequences) be classified as purely "administrative" and left within the exclusive discretion of prison officials. Besides being inappropriate in these cases, appellants argue, notice and a hearing might touch off exactly the disturbance which a transfer could avoid.

Classification by label (e. g., as "administrative" or "disciplinary") may facilitate prison administration but it cannot be used as a substitute for due process. In our view appellees' position gives insufficient consideration to the very real loss that an inmate may suffer even when his transfer is not part of formal disciplinary proceedings and has no adverse parole consequences. It also overlooks the danger that a transfer, when based on rumor or "confidential" information about an inmate's behavior, past or planned, may be arbitrary and unjustified by the facts. These factors, the adverse consequences to the prisoner and the chance of error, are the principal elements to be considered in determining what process is due the transferred prisoner, rather than the label put on the transfer. Where the prisoner suffers substantial loss as a result of the transfer he is entitled to the basic elements of rudimentary due process, i. e., notice and an opportunity to be heard. See Gomes v. Travisono, 490 F.2d 1209 (1st Cir. 1973); Ault v. Holmes, 369 F. Supp. 288 (W.D.Ky.1973); Hoitt v. Vitek, 361 F.Supp. 1238 (D.N.H.1973); White v. Gillman, 360 F.Supp. 64 (S.D. Iowa 1973); Capitan v. Cupp, 356 F. Supp. 302 (D.Or.1972). See also Landman v. Royster, 333 F.Supp. 621,...