Bishop v. Moran

• Decision Date: 02 December 1987
• Docket Number: Civ. A. No. 4794 P.
• Citation: 676 F. Supp. 416
• Parties: Alfred BISHOP, Edward Franco, Petitioners, v. John J. MORAN, Director of Corrections for the State of Rhode Island, Kenneth R. Walker, Chairperson, Rhode Island Parole Board, Respondents.
• Court: U.S. District Court — District of Rhode Island

676 F. Supp. 416

Alfred BISHOP, Edward Franco, Petitioners, v. John J. MORAN, Director of Corrections for the State of Rhode Island, Kenneth R. Walker, Chairperson, Rhode Island Parole Board, Respondents.

Civ. A. No. 4794 P.

United States District Court, D. Rhode Island.

December 2, 1987.

John Cicilline, Providence, R.I., for petitioners.

David Dugan, Asst. Atty. Gen. of R.I., Providence, R.I., George Cappello, R.I. Dept. of Corrections, Cranston, R.I., for respondents.

OPINION AND ORDER

PETTINE, Senior District Judge.

This case presents the question of whether the Rhode Island Parole Board comes in conflict with the Fourteenth Amendment's guaranty of equal protection of the laws when it provides that only in-state inmates shall attend discretionary parole eligibility review hearings.

INTRODUCTION

Like similar agencies in other states, the Rhode Island Corrections Department is authorized by statute to transfer inmates to state and federal facilities located in other states. Some transfers are requested by the inmates. Others are ordered by the Department in response to security risks, overcrowding, or simply as a result of a determination that the rehabilitative needs of a particular inmate would be better met by another facility.

Alfred Bishop was convicted of murder in 1974. He was sentenced to life imprisonment. After spending four years in a Rhode Island facility, Mr. Bishop was transferred to the custody of the federal prison system and is currently housed in Lewisburg, Pennsylvania. Under Rhode Island law, Mr. Bishop became eligible for parole ten years after conviction. After a hearing held on November 1, 1984, at which Mr. Bishop was present, the Rhode Island Parole Board denied parole.

On December 2, 1986, Mr. Bishop, through his attorney, requested that he be transported to Rhode Island for the purpose of making a personal appearance before the Parole Board. That request was denied by Kenneth Walker, Chairman of the Parole Board. Mr. Bishop's attorney then requested, and Mr. Walker provided, a cost estimate of transporting Mr. Bishop from Lewisburg to Rhode Island. Apparently, Mr. Walker had determined that if Mr. Bishop could pay the costs, estimated at approximately fifteen hundred dollars, he could attend the hearing.

Mr. Bishop's attorney then informed Mr. Walker that Mr. Bishop could not possibly pay the estimated amount and requested that the Department of Corrections "waive those fees," that is, pay for transporting Mr. Bishop. Mr. Walker denied the request, stating, without elaboration, "I cannot in all fairness to the Department of Corrections ask them to waive a policy that has been in effect since before I became a member of the Parole Board."

Mr. Bishop then filed the instant action on April 9, 1987. He alleges that a decision rendered by this court in 1973, Gomes v. Travisono, 353 F.Supp. 457 (D.R.I.1973), provides that all inmates transferred out of state must be returned for all parole hearings and that Mr. Walker, by refusing to have him brought before the Parole Board, is in contempt of that order. He further argues that because in-state prisoners are routinely brought before the Board for identical review hearings he is being denied the equal protection of the laws as guaranteed by the fourteenth amendment of the United States Constitution.

Mr. Bishop's action was joined on June 5, 1987 by Edward Franco. Mr. Franco was convicted of assault with a deadly weapon and sentenced to a term of seven years imprisonment. Mr. Franco was transferred to the custody of the federal prison system in 1985 and is currently housed in Lewisburg, Pennsylvania, along with Mr. Bishop. A hearing was held by the Parole Board regarding Mr. Franco's parole eligibility on March 5, 1987. Mr. Franco was not present. He now argues that the March 5 hearing violated the Gomes order and also denied him the equal protection of the laws.

On October 22, 1987 this Court conducted a hearing to resolve some of the factual discrepencies presented in the parties' pleadings. Kenneth C. Pederzani, Executive Secretary of the Parole Board, testified regarding the policy of the Parole Board in reviewing the parole status of out-of-state inmates. Mr. Pederzani testified that there are two types of parole hearings. The first type, the "initial eligibility hearing," is held once the inmate first becomes eligible for parole.¹ Both in-state and out-of-state inmates attend these hearings. After this initial hearing, the Board's policy is to review an inmate's eligibility every six months to a year.² These are considered "discretionary hearings." It is the Board's policy that while in-state inmates are brought before it for these proceedings, hearings concerning out-of-state inmates are conducted in absentia.

Mr. Pederzani testified that in-state inmates are permitted to make presentations on their behalf at these discretionary hearings. The Board is provided an opportunity to question the inmate, and at the end of the hearing the inmate is permitted to ask questions or to make a statement; "he has a chance," as Mr. Pederzani put it, "to express himself in any way."

The eligibility of out-of-state inmates is determined largely from reports submitted by the institution in which the inmate is housed. Inmates can, however, have letters submitted on their behalf to the Board and have representatives, such as clergy and lawyers, appear before the Board.

DISCUSSION

Plaintiffs' argument that the Department of Corrections' refusal to return them for parole hearings is in conflict with this court's order in Gomes v. Travisono, 353 F.Supp. 457 (D.R.I.1973), compels this court to revisit that case. In Gomes, this court held that transferring inmates out of the state of Rhode Island entailed serious deprivations to the inmate which "require the imposition of due process protections." Id. at 466. Accordingly, the Rhode Island Department of Corrections was enjoined from transferring inmates out of state unless it followed certain procedures, including hearings and subsequent periodic evaluations of the transferee's status. Id. at 472. Among these procedures, the Department was to adopt written regulations which guaranteed, among other things, "the return of a transferred inmate to Rhode Island for all hearings before the Parole Board which will consider the subject of his parole." Id. at 472. As this court stated:

Transfers have a detrimental effect on the inmate's chances of being released on parole. In order to minimize these detriments, defendants are required to promulgate written regulations providing for the return of transferred inmates to the A.C.I. for their parole hearings. The presence of the inmate at his parole hearing is important to his chances of release, and the transferred inmate should not be deprived of the opportunity to appear and speak for himself.

Id. at 469.

The First Circuit Court of Appeals reversed in part and affirmed in part the decision in Gomes. While concluding that "some due process is mandated in all transfer cases," it felt "constrained to paint with a smaller brush" in determining which procedures were actually required. Gomes v. Travisono, 490 F.2d 1209, 1214 (1st Cir. 1973). Although it rejected some of the procedures required by this court, the first circuit specifically stated that it did not "take issue with the requirements of ... regulations governing the return of transferred inmates to parole board hearings." Id. at 1216.

The case then went up to the Supreme Court, which vacated, without opinion, the circuit court's order and remanded for reconsideration in light of its recent pronouncements of the requirements of due process in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Travisono v. Gomes, 418 U.S. 909, 94 S.Ct. 3200, 41 L.Ed.2d 1155 (1974). After reconsidering the case, the first circuit modified some of its earlier requirements but did not express any views on the subject of returning transferees for parole. It nonetheless stated that "our holding in Gomes is affirmed as modified." 510 F.2d 537, 542 (1st Cir.1974).

Were the Gomes cases the only evidence that this court could examine, it would appear that that part of the district court order requiring the return of inmates for parole hearings remains intact. This court is convinced, however, that subsequent cases by the Supreme Court and the first circuit calls into question its continued vitality.

Gomes was one of the first cases to consider the constitutional implications of interstate transfers. Its holding was premised upon the belief that "the deprivations suffered by the transferred inmates require the imposition of due process protections." 353 F.Supp. at 466. That belief, in turn, was founded upon the then-prevailing conception of due process which focused on whether the transfer process constituted "grievous loss" to the inmate. 490 F.2d at 1212.

In two cases decided several years after Gomes, 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 expressly rejected the "grievous loss" approach to questions of procedural due process in prison transfers. The Court held that unless the inmate can point to some right or justifiable expectation rooted in state law, "no Due Process Clause liberty interest of a duly convicted inmate is infringed when he is transferred from one prison to another within the state, whether with or without a hearing." Montanye, 427 U.S. at 242, 96 S.Ct. at 2547.

Although the Court in those cases concerned itself with intrastate transfers, the first circuit subsequently held that the teachings of Montanye and Meachum apply to interstate transfers as well. Sisbarro v. Warden, Mass. State Penitentiary, 592 F.2d 1, 3 (1st Cir.1979). As the court stated:

We can see no reasoned basis on which to revert to the Gomes analysis ... when the prisoner has been

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