Aikens v. Lash
| Decision Date | 07 April 1975 |
| Docket Number | Nos. 74-1320 and 74-1328,s. 74-1320 and 74-1328 |
| Citation | 514 F.2d 55 |
| Parties | Marvin Lee AIKENS et al., Plaintiffs-Appellees-Cross-Appellants, v. Russell E. LASH, Individually and as the Warden of the Indiana State Prison, et al., Defendants-Appellants-Cross-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Harold R. Berk, Russell E. Lovell, II, Indianapolis, Ind., John P. Forhan, South Bend, Ind., for Aikens.
Theodore L. Sendak, Atty. Gen., Eugene M. Fife, III, Deputy Atty. Gen., Indianapolis, Ind., for Russell Lash.
Before CUMMINGS and SPRECHER, Circuit Judges, and MARKEY, Chief Judge. *
This appeal and cross-appeal arise from a district court decision granting in part and denying in part certain declaratory and injunctive relief requested by a class of prisoners at the Indiana State Prison.
This action was brought by nine named plaintiffs all of whom were then inmates at the Indiana State Prison and had been transferred from the Indiana Reformatory. The district court ordered that the suit be maintained as a class action. 1
The defendants were the Warden, Assistant Warden and Director of Classification at the Indiana State Prison at Michigan City (Prison), the Superintendent and Assistant Superintendent at the Indiana State Reformatory at Pendleton (Reformatory), and the Commissioner of the Indiana Department of Corrections.
The trial lasted ten days, and because many of the witnesses were prisoners or guards it was held in the visitor's lounge of the Prison Administration Building.
In an order dated February 8, 1974, the district judge ordered the following injunctive relief be granted:
(1) No inmate was to be transferred from the Reformatory 2 to the Prison 3 and confined in segregation at the "I" Cellhouse Detention Unit (I.D.U.) 4 upon his arrival (disciplinary transfer) 5 unless the following procedures were provided: (a) advance written notice, delivered at least two days prior to prisoner's hearing, of the fact that a disciplinary transfer was contemplated including a statement of reasons for the proposed transfer and the date and time of the hearing; (b) an impartial decision maker one or more Reformatory personnel other than individuals who had accused or investigated the behavior of the prisoner which formed the basis for the transfer proposal; (c) a fair opportunity for the inmate to be present during the hearing and to explain or refute accusations; (d) a fair opportunity to request that witnesses be called or interviewed in the presence of the inmate and that adverse witnesses be cross-examined unless the hearing officer or board determined that good cause existed to deny the right of confrontation, in which case the written record shall reflect sufficient proof of the reliability of the absent or anonymous informer and a statement of the reasons for denying confrontation; 6 (e) representaton by a lay advocate either institution personnel or another inmate not then in segregation; (f) a written statement of findings of fact and conclusions based on substantial evidence made available to the inmate; (g) an administrative review of the decision by the Commissioner of Corrections or his designate.
(2) The foregoing provisions for notice and hearing need not be provided in a true emergency situation where the general security of the transferring institution is immediately threatened. In such an unusual situation, the inmate may be transferred and then provided with the procedures outlined above within five days of his arrival at the transferee institution.
(3) All prisoners in segregation at the Prison who were there pursuant to a disciplinary transfer from the Reformatory were to be provided with a hearing conforming with the above requirements concerning the basis for their transfer.
(4) Inmates confined in a segregation unit at the Prison for an indefinite term were to be accorded a periodic review (at least every thirty days) of their segregated status conducted in an adversary setting conforming with the procedures outlined above.
(5) The Deputies Office-Seclusion Unit (D.O.) at the Prison was ordered closed, and all inmates were to be removed from that unit. 7
(6) The inmates confined in segregation at the Prision were to be accorded access to an adequate law library either by bringing the inmate to the library or by bringing to the inmate and leaving for a reasonable period of time legal materials or photocopies thereof.
(7) Mail sent between attorneys and prisoners at the Prison was not to be opened, read, censored or copied, and its prompt delivery and transmission was not to be interfered with except if Prison officials have reasonable grounds to believe that a piece of attorney-client or client-attorney mail may contain contraband, then a Prison official may open such mail but only in the presence of the prisoner involved and without reading, censuring, copying, or further interfering with the delivery of the material.
Despite the fact that the district court disposed of a great many questions, the defendants have raised on appeal only a limited number of issues, and the plaintiffs have cross-appealed on one additional issue. 8
The defendants challenge certain procedures 9 ordered by the district judge to be part of the required disciplinary hearing prior to transferring an inmate from the Reformatory to the Prison. 10
The district judge ordered that an inmate who was the subject of a disciplinary transfer hearing is entitled as of right to representation by a lay advocate of his own choosing, either institution personnel or another inmate not then in segregation.
In Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), the Supreme Court refused to recognize an absolute right to counsel at prison disciplinary hearings. The Court said:
The insertion of counsel into the disciplinary process would inevitably give the proceedings a more adversary cast and tend to reduce their utility as a means to further correctional goals. . . . At this stage of the development of these procedures we are not prepared to hold that inmates have a right to either retained or appointed counsel in disciplinary proceedings. Id. at 570, 94 S.Ct. at 2981-82.
The Court went on to say:
Where an illiterate inmate is involved, however, or where the complexity of the issue makes it unlikely that the inmate will be able to collect and present the evidence necessary for an adequate comprehension of the case, he should be free to seek the aid of a fellow inmate, or if that is forbidden, to have adequate substitute aid in the form of help from the staff or from a sufficiently competent inmate designated by the staff. Id. at 570, 94 S.Ct. at 2982.
The Supreme Court made clear that it was not only illiterate inmates who were entitled to lay counsel in a given situation, but also inmates faced with complex matters.
The Court's decision did not define what factors were to be considered in determining "the complexity of the issue." Nor have we been apprised by the State of Indiana of existing rules or procedures that would give effect to the Court's mandate. We note only that the complexity of an issue is often dependent on the amount of information available to a prisoner. It is conceivable that in many disciplinary transfer situations an inmate will already be confined in segregation, and thus unable to collect information. This will make his task of explaining his actions and defending himself all the more difficult. In these situations the inmate should be entitled to assistance in preparing and presenting his case.
On remand the district judge should modify his order in accordance with Wolff and the foregoing considerations.
The next procedure challenged by defendants is the right of an inmate to cross-examine adverse witnesses during their disciplinary hearing unless the hearing officer determines that good cause exists to deny that right, in which case the written record should reflect the reasons for the denial. 11
The Supreme Court in Wolff, after finding that an inmate should be allowed to call witnesses and present documentary evidence in his defense, stated that "(c)onfrontation and cross-examination present greater hazards to institutional interests." Wolff, supra at 567, 94 S.Ct. at 2980. 12
The Court said:
We think that the Constitution should not be read to impose the procedure at the present time and that adequate bases for decision in prison disciplinary cases can be arrived at without cross-examination.
The better course at this time, in a period where prison practices are diverse and somewhat experimental, is to leave these matters to the sound discretion of the officials of state prisons. Id. at 568, 94 S.Ct. at 2980, 2981.
Thus, while the Court rejected an absolute right to cross-examination, it left the matter to the discretion of prison officials. In interpreting this mandate the Court of Appeals for the Ninth Circuit held that in exercising this discretion, prison officials must upon request for a right to cross-examination enter into the record the reasons for the denial of the request. Clutchette v. Procunier, 510 F.2d 613 at 615-16 (9th Cir. 1974), petition for cert. filed, 43 U.S.L.W. 3517 (U.S. Mar. 20, 1975).
The concern of the Court in Wolff in not granting an absolute right of cross-examination was directed at unmanageability of the proceeding, disruption of prison routine, safety of prison personnel and possible reprisals against other inmates. Wolff, supra, 418 U.S. at 566-570, 94 S.Ct. at 2980-81. The Court recognized that there existed a "narrow range of cases where interest balancing may well dictate cross-examination . . . ." Id. at 569, 94 S.Ct. at 2981. But even in those cases the "courts will be faced with the assessment of prison officials as to the dangers involved, and there would be a limited basis for upsetting such judgments." Id.
However limited, the Court...
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