Shimabuku v. Britton
| Decision Date | 10 September 1974 |
| Docket Number | 73-1396 and 73-1420,Nos. 73-1323,s. 73-1323 |
| Citation | 503 F.2d 38 |
| Parties | George SHIMABUKU et al., Plaintiffs-Appellants, v. Samuel J. BRITTON, Warden, United States Penitentiary, et al., Defendants-Appellees. Ernest NORMAN et al., Plaintiffs-Appellants, v. Samuel J. BRITTON, Warden, United States Penitentiary, et al., Defendants-Appellees. Christopher T. GLUMB, Plaintiff-Appellant, v. Samuel J. BRITTON, Warden, United States Penitentiary, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Ronald L. Roseman, Kansas City, Mo. (Stanley A. Bass, New York City, Robert Claus, Kansas City, Kan., Allen M. Ressler, Shelton, Wash., with him on the brief), for appellants.
Robert J. Roth, U.S. Atty., Topeka, Kan. (Monti L. Belot, and Bruce E. Miller, Asst. U.S. Attys., Topeka, Kan., with him on the briefs), for appellees.
Before LEWIS, Chief Judge, DURFEE, * Judge, Court of Claims, and BARRETT, Circuit Judge.
These cases originated in three separate actions, each brought by a prisoner at the United States Penitentiary at Leavenworth, Kansas. 1 Generally, the appellants challenge the constitutionality of prison regulations and procedures pursuant to which they were investigated for, and confined in segregation for, infractions of prison disciplinary rules. Significantly, in each case the facts underlying the particular disciplinary infraction have overtones indicating the potential of a subsequent federal criminal prosecution.
The district courts, treating each complaint as an application for habeas corpus relief, held that appellants were entitled to no relief whatsoever. Shimabuku v. Britton, 357 F.Supp. 825, 827 (D.Kan.1973); order filed May 3, 1973, in consolidated cases Norman v. Britton, L-2532, and Glumb v. Britton, L-2529 (D.Kan.). While the appeals from the district courts were pending, the Supreme Court decided Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), in which it was held, inter alia, that certain of Nebraska's prison regulations governing the conduct of state prison disciplinary proceedings failed to satisfy the minimal requirements of constitutional due process.
In order to determine precisely the impact of Wolff on these appeals, we must first examine both the facts involved in appellants' complaints and the applicable Bureau of Prison regulations.
The facts were stipulated and are set out in the opinion below as presented to the district court. 357 F.Supp. at 827-832. They may be summarized as follows.
On June 14, 1972, inmate Morrow was found dead as the result of numerous knife wounds. Thereafter, each of the named appellants was removed from the general prison population and confined in one of the penitentiary's two control (or 'segregation') units. On June 22, a penitentiary employee, H. E. Bailey, filed with prison officials reports in which all appellants except Coleman and Williams were charged with 'investigation of possible involvement in inmate homicide.' Coleman was charged with 'suspicion of involvement in inmate homicide,' Williams with 'suspicion of involvement in inmate homicide and unaccountable absence from institutional assignment.'
Bailey's reports were based, at least in part, on information received by penitentiary employees from 'unofficial sources.' Thus, it was reported that appellants Shimabuku, Brown, James, and Graven had actively participated in the killing of Morrow; that appellant Williams was missing from his assignment area for about two hours during the time of the killing, that he had told an unidentified informer of his plan to kill another inmate, and that he was later seen by the same informer, first entering the area where Morrow was found and then coming out alone; and that appellant Coleman had offered a bribe to an unidentified person to 'get his friends off the hook.' Penitentiary employees indicated further that the FBI had informed them that an inmate had admitted serving as a lookout and that appellant Pineda was near the incident area during the time of the killing.
On June 26, the penitentiary's Adjustment Committee held individual hearings for each of the appellants. 2 At each hearing the appropriate report of Bailey and Lt. J. A. Junk, who as control unit supervisor had previously questioned each appellant, was read to the appellant. The same report had also been read earlier to the particular appellant, although none had received a written report. The members of the committee then asked questions. The appellants' responses thereto and the report itself were the only evidence received by the Adjustment Committee in each of the hearings.
The record shows that none of the appellants was advised, either at the hearing or at any earlier time, that he had any rights in respect to the conduct of the hearing or the questioning that preceded it. None of the appellants was permitted during his hearing to crossexamine or confront his accuser, to present witnesses or any other evidence, to be represented by counsel, or to have access to the committee's records and reports. None was advised that anything Said before the committee would be summarized in a report that later could be used in a federal criminal prosecution. PP11, 18, and 20, Stipulated Facts, 357 F.Supp. at 829-831.
At the time the facts were stipulated in the district court, no written report had yet been issued by the committee in which its findings or conclusions were set out. The record fails to show whether such a report was ever issued or whether any adverse report of any kind was included in the official case records of the appellants. Indeed, the record fails to show the disposition of the disciplinary proceedings altogether. In its brief, the United States asserts that none of the appellants has ever been charged, either administratively or criminally, in connection with the murder of inmate Morrow and that none of the appellants remains confined in segregation as a result thereof. It is clear that appellants Graven and Brown were released from the control unit in August 1972, but nothing is said of the others. 357 F.Supp. at 832.
Seeking both declaratory and injunctive relief, Shimabuku alleged in his complaint that, in the course of the aforementioned disciplinary proceedings, he was not accorded the protection of certain procedural safeguards to which he was entitled under the fifth amendment. Specifically, he claimed that where a prison disciplinary infraction involves facts which, if proven, also constitute a federal criminal violation, the prisoner is entitled to advance written notice of the disciplinary charges; the presence of retained counsel at the disciplinary hearing; an opportunity to confront and cross-examine adverse witnesses, call witnesses, and present evidence; access to all relevant prison records; an impartial hearing board; a written decision based on clear and convincing evidence; written reasons for any sanctions imposed; a means of review and freedom from segregated confinement except on a showing of a need for institutional security or safety. It was further argued that the failure to accord these safeguards was aggravated, and the right to them made more clear, by the self-incrimination which was threatened by the Bureau of Prisons' practice of providing disciplinary reports to the FBI for its use in subsequent federal criminal prosecution.
The district court considered the merits of Shimabuku's constitutional claim and concluded that the class members 'have been and are accorded hearings meeting the due process requirements of the Federal Constitution, and that the plaintiffs are entitled to no relief' 357 F.Supp. at 827. Thus, it was constitutionally sufficient that, as the court found, each plaintiff had been confronted at the disciplinary hearing with the accusation against him, informed of the evidence against him, and afforded a reasonable opportunity to explain his actions. In regard to the fifth amendment self-incrimination claim, the court referred approvingly to Sands v. Wainwright, D.C., 357 F.Supp. 1062, vacated on jurisdictional grounds, 5 Cir., 491 F.2d 417, cert. denied sub nom. Guajardo v. Estelle, 416 U.S. 992, 94 S.Ct. 2403, 40 L.Ed.2d 771, in which it was held that a prisoner is entitled to use immunity in a subsequent criminal prosecution, such that his statements in the prison's prior disciplinary proceeding may not be used affirmatively against him.
On March 24, 1973, fires were set in the penitentiary's industrial area. Soon thereafter, both Norman and Glumb were confined in the penitentiary's segregation unit, apparently on suspicion of arson. As appears from Norman's complaint, both appellants were subsequently questioned by FBI agents in regard to the setting of the fires. Appellants state that they were compelled by prison officials and by the situation of their segregated confinement to submit to this questioning.
Appellants originally claimed that their continued confinement was, by itself, a violation of their due process right to be free from such confinement and its resultant loss of privileges, unless imposed pursuant to findings of a properly conducted disciplinary proceeding. It is not clear from the record whether, in fact, any disciplinary hearing was ever held. Appellants' primary claim, however, was that, during the course of the FBI investigation, they were entitled to the assistance of counsel for the purpose of preserving from prejudice their ability to defend effectively in any subsequent criminal prosecution. In their brief, appellants' arguments are now more elaborately stated, and the issues presented are identical to those in Shimabuku.
Based upon its review of the allegations made by Norman and Glumb, the district court dismissed the complaints, stating that 'it appears beyond doubt that neither petitioner could prove facts which would entitle him to...
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...Estelle, 416 U.S. 992, 94 S.Ct. 2403, 40 L.Ed.2d 771 (1974); Shimabuku v. Britton, 357 F.Supp. 825, 827 (D.Kan.1973), Aff'd. 503 F.2d 38, 44--45 (10th Cir. 1974); Carter v. McGinnis, 351 F.Supp. 787, 793--95 (W.D.N.Y.1972). Cf. Melson v. Sard, 131 U.S.App.D.C. 102, 402 F.2d 653, 654--55 (D.......
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