Battick v. Stoneman, Civ. A. No. 75-17.

• Decision Date: 22 March 1976
• Docket Number: Civ. A. No. 75-17.
• Citation: 421 F. Supp. 213
• Parties: Edward BATTICK v. R. Kent STONEMAN, Individually and in his capacity as Commissioner of Corrections for the State of Vermont.
• Court: U.S. District Court — District of Vermont

421 F. Supp. 213

Edward BATTICK v. R. Kent STONEMAN, Individually and in his capacity as Commissioner of Corrections for the State of Vermont.

Civ. A. No. 75-17.

United States District Court, D. Vermont.

March 22, 1976.

COPYRIGHT MATERIAL OMITTED

James R. Flett, Montpelier, Vt., for plaintiff.

Robert L. Orleck, Alan W. Cook, Asst. Attys. Gen., Dept. of Corrections, Montpelier, Vt., for defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

HOLDEN, Chief Judge.

This action was brought by the plaintiff for declaratory and injunctive relief under 42 U.S.C. § 1983 (1970) against the Commissioner of Corrections for the State of Vermont to prevent his transfer from the Vermont Corrections Department to the Federal Prison System. Plaintiff contends that his transfer and incarceration outside of Vermont, because of the defendant's administrative decision to close the State's only maximum security prison for economic reasons, have violated his rights as guaranteed by the Sixth, Eighth and Fourteenth Amendments to the United States Constitution, as well as the constitution and statutes of the State of Vermont. Jurisdiction is invoked under 28 U.S.C. § 1343 (1970).

The cause of action is related to various companion cases that were generated by the application of the provisions of the Vermont statutory law (28 V.S.A. § 706). The statute was constitutionally challenged in a proceeding in this court constituted under 28 U.S.C. § 2284. Rebideau v. Stoneman and Reuschel v. Stoneman, 398 F.Supp. 805 (D.Vt.1975). The three-judge panel denied injunctive relief against the transfer of Vermont prisoners to the custody of the Federal Bureau of Prisons. In reaching this result the court held the statute did not patently deny equal protection of the laws to the prisoners who were transferred into the federal system. The question of whether federal rehabilitative treatment and the procedures involved in the transfer trenched upon other constitutionally protected rights of transferred prisoners was reserved for decision by a single district judge upon dissolution of the three-judge court. Id. 813-814. The legislative history of the statute and the factual background which caused its enactment are fully set forth in reported cases and will not be repeated here. Proceeding to the application of the statutes as applied to this plaintiff, Edward Battick, the court finds and reports the facts which follow.

The Vermont Correctional System

The abandonment of the state prison at Windsor reduced the Vermont correctional facilities to several minimum security Community Correctional Centers located at various localities throughout the state and the St. Albans Diagnostical Treatment Facility near the Canadian border. The function of the community centers is to integrate prisoners into the community through work release and furlough programs over an anticipated period of time ranging from six months to nine months. In some isolated instances the period has been extended as long as two years.

The St. Albans facility has limited medium security capacity. It functions as a holding point for inmates that the Department of Corrections expects to place in community correctional centers in the foreseeable future. It provides programming for the resident inmates in an environment of constant supervision; it also contains a diagnostic component. It has a small inner perimeter security component for short-term incarceration of high security inmates. St. Albans is not designed for custody of long-term inmates who present a high security risk. Prisoners in this category are not eligible to participate in programs conducted outside the protected security area. It is the considered judgment of the correction officials that, absent the incentive of early release, which is the primary goal of the majority of the St. Albans inmates, maximum security residents are likely to produce an adverse effect on the programs offered to short-term offenders and tend to be disruptive to their rehabilitation.

Transfer Procedure

With the impending closing of the prison at Windsor, the defendant, as Commissioner of Corrections, directed his subordinates to develop procedures and criteria for determining out-of-state transfers. This resulted in a revision of the Department Policy No. 891, designed to establish the criteria for transfer and the procedure for recommendations for such transfers.

Revised Policy No. 891 provides that Vermont prisoners could be transferred out of state if one or more of three criteria were met:

1. All in-state treatment and rehabilitative programs available for that individual have been considered and determined unsuitable.

2. All in-state alternatives in the area of security have been considered and found unsuitable for providing the required degree of security or protective custody for a particular resident.

3. A resident voluntarily requests transfer.

These guidelines are consistent with judicial suggestions made in Bousley & Messier v. Smith, Civ. No. 6679 (D.Vt. June 11, 1973) concerning appropriate criteria for out-of-state transfer and are in keeping with the dictates of 28 V.S.A. § 706 as amended.

The administrative procedure established for making the decision on transfer of an inmate out-of-state was designed to conform with the guidance indicated in Carlson v. Moeykens, Civ. No. 74-224 (D.Vt. filed Jan. 24, 1975, amended Mar. 13, 1975). It consisted of a four stage decision process.

The Commissioner selected two existing administrative groups in the Department of Corrections to make the preliminary decisions on transfer cases to avoid arbitrary action by the warden. The Classification Committee developed the initial recommendations based on its knowledge of the history and programs of each inmate, as well as personal consultations with him. The written recommendation of the Classification Committee was reviewed by the Transfer Committee of the Department of Corrections. This committee, which had been in existence for six years, had functioned to screen all transfers between institutions in the Department of Corrections on a monthly basis. Its membership included the superintendents of all Vermont correctional facilities, all key correctional personnel with programming responsibilities and the Deputy Commissioner, the committee chairman. The Transfer Committee recommendation was considered at a formal hearing conducted before a hearing officer. At this hearing, the inmate was afforded notice of the hearing. He was informed of his rights at the hearing and of the reasons for the proposed transfer. He was given the opportunity to testify in person, to call witnesses and produce documentary evidence in his behalf. Representation by staff counsel was available. The hearing officer prepared a written decision stating the reasons for his recommendation. From the decision of the hearing officer, the transfer case was presented to the Commissioner, who reserved the discretionary power to approve or disapprove the recommended placements. See Appendix A attached, for the text of Vermont Department of Corrections Policy No. 891, as it relates to procedures for out-of-state transfers.

Case History of Edward Battick

Edward Battick is presently serving a life sentence for the murder of the chief of police of Manchester, Vermont. The offense was committed during an attempted burglary on the night of December 12, 1972, of a drug store in the Village of Manchester.¹ In the course of the burglary, the plaintiff suffered multiple gunshot wounds as the result of an exchange of gunfire with police officers.

Battick had moved to Manchester from Connecticut the preceding March. He lived in a hunting camp on the outskirts of the village until December 12, 1972. He was unemployed and was receiving unemployment compensation benefits from the State of Connecticut.

Following his arrest on December 12, 1972, the plaintiff received brief treatment at a hospital in Bennington, Vermont and was then transferred to the Medical Center Hospital at Burlington, Vermont. There he underwent a series of operations, to repair the damage caused by the various gunshot wounds, under the care and direction of Dr. James DeMeules, a thoracic surgeon. On May 22, 1973, Dr. DeMeules performed a surgical procedure which is referred to as a right colon transposition. The operation replaced part of his severely damaged esophagus with a segment of the large intestine. As a consequence of the colon transposition, plaintiff must undergo periodic maintenance-type operations on his repaired esophagus, called esophageal dilatations. This operation is required on a regular basis, to widen the stricture where the colon and the esophagus were joined, to prevent impairment of the plaintiff's ability to swallow.

Dr. DeMeules testified that generally either of two procedures can be used to perform the dilatations. The choice depends on the particular type of stricture involved. The first method, referred to as string method, requires that the patient swallow a string several days before the operation to allow the string to anchor itself; then a series of progressively larger rigid dilators are guided into the esophagus over the string until the stricture is dilated to a reasonable size. The second procedure involves the use of a rubber tube filled with mercury and tapered at one end. The tube is inserted through the mouth into the esophagus and into the area of the obstruction. This method is used in cases where the passage from the mouth to the stricture is tortuous and can be performed with or without the aid of a fluoroscope, to provide the surgeon with a continuous x-ray picture of the progress of the operation. The vast majority of esophageal dilatations are done with a local anesthesia, but occasionally the difficulty of the dilatation and the tolerance level of the patient will dictate the use of a general anesthesia. In the opinion of Dr. DeMeules, an ordinary thoracic...