Hayward v. Procunier

• Citation: 629 F.2d 599
• Decision Date: 03 October 1980
• Docket Number: No. 78-3701,78-3701
• Parties: Art HAYWARD, Jr., Michael McNabb and Morris L. Brown, Plaintiffs/Appellants, v. Raymond K. PROCUNIER, Jiro J. Enomoto, Walter Britt, Robert M. Rees, L. H. Fudge, C. L. Swagerty, D. W. Smith and Don R. Weber, Defendants/Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 599

629 F.2d 599

Art HAYWARD, Jr., Michael McNabb and Morris L. Brown, Plaintiffs/Appellants, v. Raymond K. PROCUNIER, Jiro J. Enomoto, Walter Britt, Robert

M. Rees, L. H. Fudge, C. L. Swagerty, D. W. Smith

and Don R. Weber, Defendants/Appellees.

No. 78-3701.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 9, 1980.

Decided Oct. 3, 1980.

Robert A. Goodin, Armour, St. John, Wilcox & Goodin, San Francisco, Cal., for plaintiffs/appellants.

Karl Mayer, San Francisco, Cal., for defendants/appellees; Kenneth C. Young, Thomas P. Dove, Deputy Attys. Gen., San Francisco, Cal., on brief.

Appeal from the United States District Court for the Northern District of California.

Before DUNIWAY, TANG and CANBY, Circuit Judges.

CANBY, Circuit Judge.

In this appeal we must decide whether state prisoners' constitutional rights to procedural due process and freedom from cruel and unusual punishment were violated by a five-month "lockdown" ¹ of the prison. The district court held that there was no constitutional violation. We agree and affirm.

FACTS :

Between 1970 and 1974 California's San Quentin Prison became an increasingly turbulent institution. The rate of violent incidents more than tripled during this period, and the influence of prison gangs steadily grew. 1974 was a particularly violent year. There were 82 assaults with weapons and 12 killings, as well as 71 cases of possession of weapons and 2 attempted escapes. Prison officials responded to the problem by temporarily "locking down" the prison several times in 1974; Department of Corrections officials even considered closing San Quentin.

On December 19, 1974, two men were killed in separate incidents of gang violence. Prison officials feared that the violence might spread. The warden decided that a state of emergency existed and, acting pursuant to § 4402 of the California Rules and Regulations of the Director of Corrections, he imposed a lockdown on the entire prison.

At first the prisoners were confined to their cells 24 hours a day and were served sack lunches twice a day in their cells. Gradually, however, the regimen was relaxed. Within two weeks the prisoners received one hot meal per day in the dining room. Two weeks later they received two hot meals per day and finally in June 1975, six months after the lockdown began, the normal routine of three hot meals per day was restored. Similarly, yard exercise and trips to the showers were forbidden entirely at the outset of the lockdown, but were gradually reintroduced. Showers were fully reintroduced by February 1975. Some yard exercise was permitted within a month after the lockdown began, and the normal exercise routine was restored by May. Of course a great many inmate privileges such as movies, school attendance and visitation were partially or wholly abrogated during the five to six months of the lockdown.

The plaintiffs in this action were residents of East Block, one of the four major housing units at San Quentin, during the lockdown. They brought this action on behalf of themselves and the class of East Block residents for damages and declaratory and injunctive relief under 42 U.S.C. § 1983. They do not argue that the initial decision to impose the lockdown was necessarily improvident; indeed, the record discloses that many inmates were urging the warden to lockdown the prison after the two killings on December 19, 1974. They do, however, urge that continuance of the lockdown for more than a short time without some sort of notice and hearing at which the inmates could participate deprived them of their liberty without procedural due process, in violation of the fourteenth amendment. The prisoners also argue that the lockdown, continuing as long as it did, constituted cruel and unusual punishment in violation of the eighth and fourteenth amendments. The district court rejected these claims and the prisoners appealed.

PROCEDURAL DUE PROCESS :

In Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976), and Montanye v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976), the Supreme Court held that state prisoners had not lost any liberty or property interest, and hence were not entitled to procedural due process, by being transferred to a less favorable prison within the same prison system. Crucial to these decisions was the court's conclusion that the relevant state statutes, regulations and customs did not give rise to any justifiable expectation on the part of prisoners that they would not be transferred for any reason or no reason. Had the state law been to the contrary, it was possible that inmates would have had a liberty interest in not being transferred which could not have been abridged without procedural due process.

The prisoners in this case argue that, unlike the inmates in Meachum and Montanye, they did have a legitimate expectation under California law and prison custom that they would not be subjected to a lockdown unless a certain specified condition-the existence of an emergency-was met. They argue that they were therefore entitled to a hearing before an impartial fact-finder at some point soon after the lockdown was imposed.

We have difficulty finding support for the plaintiffs' contentions in the California prison regulations or practices. Section 4402 of the Rules and Regulations of the Director of Corrections simply provides that "(e)ach institution head must have in effect at all times a plan, approved by the Director, for meeting emergencies, such as riots, strikes, attacks upon inmates, visitors or staff, explosions or fires, suicides or attempted suicides or accidental injuries to inmates or visitors and employees." The variety and inclusiveness of this list suggest that the regulation is not intended to impose fixed conditions upon the warden's exercise of his authority. In any event, it is undisputed that there were "attacks upon inmates" which led the warden to implement the prison's Disturbance Control Plan and impose the lockdown. We do not understand the prisoners to be seeking a hearing merely to determine whether in fact such attacks took place. They wish a hearing to determine whether the increased level of security represented by the lockdown was justified by the emergency. Yet nothing in the regulations nor, in our view, in the customs of the prison is sufficiently specific to create a justifiable expectation of any particular level of prison-wide security. That omission distinguishes the present case from those in which prisoners were held to be entitled to procedural due process. We do not find here the equivalent of a statute conferring a particular benefit, such as good behavior time or parole, with a specification of conditions under which that benefit can be lost. See Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). The regulations here do not purport to enumerate specific reasons for which a prisoner can be placed in solitary confinement and to require documentation of those reasons. See Wright v. Enomoto, 462 F.Supp. 397 (N.D.Cal.1976), aff'd mem., 434 U.S. 1052, 98 S.Ct. 1223, 55 L.Ed.2d 756 (1978). Nor are prisoners being subjected to treatment wholly outside the foreseeable consequences of criminal conviction, such as commitment to a mental institution in the absence of a mental disease or defect. See Vitek v. Jones, --- U.S. ----, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980). Here we have only a regulation requiring a warden to have a plan for meeting emergencies, along with a non-exhaustive list of possible emergencies.

It is certainly true that in the ordinary course of events prisoners expect that there will be no lockdowns in the absence of an emergency, just as in Meachum and Montanye prisoners naturally expected that they would not be transferred in the absence of misconduct, "unless it be assumed that transfers are mindless events". 427 U.S. at 228, 96 S.Ct. at 2540. But the Supreme Court found that type of expectation to be too ephemeral to give rise to a due process liberty interest, and we think the same conclusion follows in the present case.

There is another fundamental defect in the procedural due process arguments of the prisoners, and it lies in the nature of the hearing they seek. In every case cited by plaintiffs or revealed by our research in which prisoners were found to be entitled to a due process hearing, the subject of that hearing was the fate of individual prisoners, and the facts to be examined dealt with their conduct or their condition. See, e. g., Wolff v. McDonnell, supra; Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, supra; Wright v. Enomoto, supra. In this case, however, the facts in dispute are not...