Allen v. Nelson, C-72-928.

• Decision Date: 15 February 1973
• Docket Number: No. C-72-928.,C-72-928.
• Citation: 354 F. Supp. 505
• Parties: O. C. ALLEN, Petitioner, v. L. S. NELSON, Warden, Respondent.
• Court: U.S. District Court — Northern District of California

354 F. Supp. 505

O. C. ALLEN, Petitioner, v. L. S. NELSON, Warden, Respondent.

No. C-72-928.

United States District Court, N. D. California.

February 15, 1973.

William Mandel, Petty, Andrews, Olsen, Tufts, Jackson & Sander, San Francisco, Cal., for petitioner.

Evelle J. Younger, Atty. Gen., Ira J. Ross, Deputy Atty. Gen., San Francisco, Cal., for respondent.

MEMORANDUM OPINION AND ORDER

OLIVER J. CARTER, Chief Judge.

Petitioner was a prisoner in "B-Section" at San Quentin State Prison when he filed his petition for writ of habeas corpus praying transfer to the general prison population. In August, 1972, he was transferred to Palm Hall, California Institution for Men at Chino for "decompression" programming. At present, he is again at San Quentin State Prison in "B-Section" in out-of-court status awaiting the outcome of this proceeding.

Petitioner was convicted in the Los Angeles County Superior Court for second degree murder. He is not challenging his conviction, but attacks his confinement in "B-Section" at San Quentin which he has previously unsuccessfully contested in state habeas petitions. In its Order dated August 23, 1972, this Court rejected resondent's arguments that federal habeas was not an appropriate vehicle to effectuate a change in petitioner's custodial confinement and that a segregated placement fails to reach federal constitutional dimensions. Shortly after petitioner was transferred to Palm Hall, respondent filed a supplemental return contending that the relief prayed for was now moot. In its Order dated September 28, 1972, the Court found that the matter was not moot and ordered an evidentiary hearing. Such hearing was held on November 15, 1972, at which time the petitioner and other witnesses testified and exhibits were introduced and admitted into evidence. Petitioner and respondent have filed post-hearing briefs and reply briefs.

The Court has carefully reviewed all records, documents, exhibits and the testimony adduced at the hearing.

I.

Respondent contends as a preliminary matter that the issue before the Court is limited to whether petitioner's classification to undergo "decompression" at Palm Hall is proper and that the validity of his earlier classification to "B-Section" at San Quentin should not be considered. The issues cannot be so artificially separated. Adverse collateral effects from his segregated confinement may remain to vex petitioner in the future, e. g., subsequent classification, parole consideration, etc. The Court therefore rejects any arbitrary limitation on the scope of the inquiry. See West v. Cunningham, 456 F.2d 1264 (4th Cir. 1972); Black v. Warden, 467 F.2d 202 (10th Cir. 1972).

II.

The facts surrounding petitioner's confinement are complicated and will therefore be set out at length. It appears that petitioner began serving his sentence as a member of the mainline prison population. During that time he received several favorable reports on his behavior from correctional officers. (Petitioner's Exh. 1). On July 30, 1970, while he was at Soledad State Prison, he became a suspect in the killing of a correctional officer and was placed in the adjustment center. He remained there until February 2, 1971, when charges against him for the officer's death were dismissed for lack of evidence. He was transferred to San Quentin State Prison "because of serious complications that the dropping of this charge presents with managing these four men in the same facility in which we are managing the other three men still charged." (Petitioner's Exh. 3). He was thereupon confined in the segregated unit, "B-Section".

Petitioner's segregated confinement at Soledad is not in dispute, but what happened at San Quentin after his arrival on February 3, 1971, provides the gist of this action.

On February 23, 1971, a Classification Committee referred petitioner to the Associate Warden-Custody "for release consideration . . ." The Committee noted that petitioner should be retained in administrative segregation, but that "due to the fact that that case is still pending against three inmates, the Committee feels that the decision should be made at a higher level as to proper placement of this man." (Petitioner's Exh. 3). He was not released, for Warden Nelson of San Quentin, in a memorandum dated March 4, 1971, to Director Procunier stated: ". . . Mr. Jacobs, Associate Warden, Custody, decided not to release the man so that review in 90 days is the next action to occur." The reason given was that "Mr. Jacobs notes that there is a possibility of reopening the murder charge." (Respondent's Return, Exh's. C and D, emphasis added). In April and May, 1971, petitioner was found guilty of institutional violations and was punished with cell status for brief periods. (Respondent's Return, Exh's. E, F, G, H, I and J). These are not discussed here because they are not an issue, and respondent admits petitioner is not a disciplinary problem but rather a management problem.

Nothing further apparently took place until June 1, 1971, when Mr. Hearnsberger, Classification and Parole Representative at Soledad Prison, wrote the following to Mr. J. O'Brien, his counterpart at San Quentin:

Mr. B. Doran, Chief of Classification Service, has asked that a DRB recommendation for Departmental Interest Designation be prepared on each of the inmates originally charged with participation in the assault and death of Correctional Officer Shull of CTG-North.

Petitioner's name was one of those included in the list of those charged. (Respondent's Return, Exh. K).

In compliance with this request, Mr. O'Brien wrote to Chief Deputy Director Stutsman on June 10, 1971, referring petitioner to the Departmental Review Board. He reviewed the reasons for referral, characterizing the petitioner as ". . . an active aggressive inmate and his interest centers around his Muslim affiliation and apparent desire to be a leader of this group . . ." Particular attention was called to comments made by the Adult Authority at petitioner's parole hearing on March 24, 1971, viz., petitioner "has no remorse for killing the victim in the committing offense . . ." His significant past criminal history was summarized, and discussion of his departmental history returned to the earlier theme of his "strong desire to be recognized as a militant leader using his Muslim affiliation as the vehicle to challenge rules and regulations . . ." Emphasis was given to petitioner's "strong desires to be sure his relationship to the murder of a correctional officer was recognized by his peers. It seems a necessity to prevent his position as a leader from being challenged. Considering recent behavior and philosophy this man is following there is serious danger to other persons coming in conflict with his militant goals whether inmate or staff." Therefore, it was concluded that "a recommendation as a special case designation as a dangerous and wilful person is necessary at this time to call attention to staff in the future, to handle this man with caution and proper control at all times." (Respondent's Return, Exh. L)

On June 24, 1971, a memorandum was sent under the name of R. E. Doran, Secretary, Departmental Review Board, to Chief Deputy Director Stutsman, which essentially repeated the language of Mr. O'Brien's memorandum and concluded with this notation: "DRB ACTION: DRB met on June 18, 1971, Special Case-Departmental designation approved. Case to be re-evaluated in one year for possible removal of Special Case designation if appropriate at that time." It was approved by Mr. Stutsman. (Petitioner's Exh. 4).

During this time when a Special Case Designation was being applied to petitioner, the Classification Committee at San Quentin met and, on June 7, 1971, requested petitioner's release "so that he can program on the mainline at this institution." The Committee took note of his disciplinary record at San Quentin and that prior criminal charges against all inmates involved in the Soledad officer's killing had terminated. (Petitioner's Exh. 3). While there is no documentary evidence as to the disposition of the Committee's request, on July 7, 1971, a Classification Committee memorandum bearing the notation of "Special Case" and signed by J. R. O'Brien states:

Departmental by DRB on 6-18-71. His criminal records appear to be limited to about 4½ years; but there are considerable indications of assaultive, violent behavior ending with a Murder 2nd conviction. Since 12-31-69 he seems to have developed into an acting-out dangerous militant. Considering recent behavior and the philosophy this man is following there is serious danger to other persons coming into conflict with his militant goals whether inmate or staff. (Petitioner's Exh. 5).

On July 14, 1971, another Classification Committee memorandum dealing with segregation review and signed by R. Golden says:

Two attempts have been made to have Allen released to our general population and these have been rejected by the Associate Warden Custody. The only alternative we would have at this point would be a CIM Palm Hall Recommendation. However, Allen rejects at this time possibility of programming at that institution. Allen is greatly annoyed that he was sent here from CTE Central. He feels that he is in "B" section unjustly and refuses to discuss the possibility of programming elsewhere, maintaining that his situation is a matter for the courts. (Petitioner's Exh. 5).

Subsequent memoranda from the Classification Committee dated September 30, 1971, December 15, 1971 and March 29, 1972, (Petitioner's Exh. 5) for the most part duplicate the July 7, 1971, memorandum and repeat the need for petitioner to undergo a "decompression" program at Palm Hall.

Lastly, there is a resume and evaluation of petitioner contained in the Adult Authority and Parole Release Referral Report prepared by Joe S. Ware, CCI, as of February 4, 1972 (Petitioner's Exh. 7). Without repeating the report, the Court simply...