Carlo v. Gunter, 75-1163

• Decision Date: 04 August 1975
• Docket Number: No. 75-1163,75-1163
• Citation: 520 F.2d 1293
• Parties: Anthony CARLO et al., Plaintiffs-Appellants, v. Frank O. GUNTER et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 1293

520 F.2d 1293

Anthony CARLO et al., Plaintiffs-Appellants, v. Frank O. GUNTER et al., Defendants-Appellees.

No. 75-1163.

United States Court of Appeals, First Circuit.

Argued June 4, 1975.

Decided Aug. 4, 1975.

Richard E. Shapiro, Boston, Mass., with whom Timothy J. Wilton, Prisoners Rights Project, was on brief for plaintiffs-appellants.

Michael C. Donahue, Asst. Atty. Gen., with whom Francis X. Bellotti, Atty. Gen., and John J. Irwin, Jr., Asst. Atty. Gen., Chief, Crim. Bureau were on brief, for defendants-appellees.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

McENTEE, Circuit Judge.

On December 31, 1974, defendant Gunter was appointed Superintendent of MCI Walpole, the commonwealth's maximum security institution which for some years has been a scene of virtually continuous disruption. ¹ His appointment followed by five days the murder of an inmate, the discovery of a cache of guns and ammunition and the consequent beginning of a lockup of the entire institution. In order to end the lockup and resume normal operations Gunter determined to survey the population and segregate potentially dangerous and disruptive inmates in the B wing. Inmates were notified on January 9 that they would be meeting with classification committees to review their current classification status and program needs in relation to their placement within the prison. ² At the brief committee hearings inmates had no opportunity to hear or challenge adverse comments by committee members or record notations, which were discussed out of their presence. In making the actual housing assignments, defendants relied on personal knowledge and the inmates' reputations as well as the survey reports prepared by the five classification committees. Gunter reviewed these reports after the assignments had been made, endorsing the notation "WC" (for "wrecking crew") on the reports of those inmates thought by Butterworth and Waitkevich to be consistently involved in fomenting violence and disruption within the institution. On January 20 the new housing assignments were released and inmates were to be moved. Many forcibly resisted their transfers and caused extensive property damage. Plaintiffs were those taken to Block B-8, where near riot conditions prevailed for two and a half weeks until February 6.

Meanwhile, plaintiffs had filed suit on January 27 alleging the transfers deprived them of due process and seeking monetary and injunctive relief under 42 U.S.C. § 1983. Their motion for a temporary restraining order was denied, and after a trial beginning on February 10 their complaints were dismissed on April 29. The court found that defendants correctly perceived the situation at Walpole as an emergency, requiring the immediate reorganization of the entire institution. It found that the procedures employed in making the reassignments contravened defendants' regulations and were seriously deficient, but that defendants had intended in good faith to devise an emergency plan for housing reassignment consistent with their estimate of the need for a speedy resolution of the crisis at Walpole, and that the shortcomings were excusable in the circumstances.

We turn to the now-familiar two-step inquiry: did the transfers cause plaintiffs grievous loss? If so, what procedures does due process require, balancing the state's interest against those of the prisoner? Gomes v. Travisono, 490 F.2d 1209, 1214 (1st Cir. 1973), vacated and remanded,418 U.S. 908, 94 S.Ct. 3202, 41 L.Ed.2d 1156, on reconsideration, 510 F.2d 537 (1974); Palmigiano v. Baxter, 487 F.2d 1280, 1285 (1st Cir. 1973), vacated and remanded, 418 U.S. 908, 95 S.Ct. 2414, 44 L.Ed.2d 678, on reconsideration, 510 F.2d 534 (1974). The district court found that the conditions of confinement contemplated in the future for B wing were more stringent than those which plaintiffs had previously enjoyed. ³ We concur in its implicit conclusion that the transfers would result in a "major change in the conditions of confinement," see Wolff v. McDonnell, 418 U.S. 539, 571 n. 19, 94 S.Ct. 2963, 2982, 41 L.Ed.2d 1039, a serious deprivation requiring at least a minimal level of due process protection. Fano v. Meachum, --- F.2d --- (1st Cir. 1975); Gomes v. Travisono, supra, 510 F.2d at 539; Palmigiano v. Baxter, supra, 487 F.2d at 484-85. The fact that the reassignment was denominated an administrative reclassification rather than a punitive transfer is of no moment where the impact on the inmate is the same. Fano v. Meachum, supra at n. 2; Gomes v. Travisono, supra, 510 F.2d at 541. Nor is it determinative that the transfer occurred within a single institution. We attached little importance to a one-mile geographical dislocation in holding in Fano v. Meachum, supra, that transfer to conditions substantially more adverse constituted a grievous loss. See Palmigiano v. Baxter, supra.

The court found the procedure employed violated defendants' own regulations and was seriously deficient in not affording plaintiffs an opportunity to rebut or explain adverse aspects of their records or unfavorable comments by prison staff. ⁴ The court found, however, that defendants correctly perceived the situation at Walpole as an emergency requiring the immediate reorganization of the entire institution. In these circumstances, it concluded, defendants were justified in dispensing with normal due process requirements and deviating from even the emergency procedure embodied in their own regulations because they were inadequate to the circumstances. ⁵

The record supports these findings. ⁶ However, the passage of time may have altered the complexion of things and the court's judgment of dismissal makes no provision for this. A decree in equity may speak as of its date. Stonega Coke & Coal Co. v. Price, 116 F.2d 618, 621 (4th Cir. 1941). The court found that the near-riot conditions in Block B-8 had abated by February 6, nearly three months before it dismissed the complaint. Several more months have passed during which plaintiffs have continued to undergo the more adverse conditions of confinement, and the date of their next classification hearing under prison regulations is indeterminate. ⁷ It is clear that while an emergency may justify postponement of due process as the court found, the minimal procedures must be granted at the earliest practicable opportunity thereafter. See La Batt v. Twomey, 513 F.2d 641, 645-46 (7th Cir. 1975); Gomes v. Travisono, supra at 539; Morris v. Travisono, 509 F.2d 1358, 1360 (1st Cir. 1974); Hoitt v. Vitek, 497 F.2d 598, 600 (1st Cir. 1974). "The unreviewable discretion of prison authorities in what they deem to be an emergency is not open-ended or time unlimited," id. Plaintiffs' misconduct after their transfer does not absolve defendants of their duty to afford them a hearing on the ground that the result would be a foregone conclusion, see Cousins v. Oliver, supra at 557, nor does it forever disentitle plaintiffs from the protection of due process under the clean hands doctrine, see Braxton v. Carlson, 340 F.Supp. 999, 1000-01 (M.D.Pa.1972), now that they have desisted, though of course it is a factor to be taken into account at subsequent disciplinary or classification hearings. This would seem especially true where the court found that there was violence and provocation by officers as well as inmates, and where it was unable to determine from the evidence which plaintiffs participated and to what extent. Nor would the fact that a wholesale reorganization of the prison was contemplated completely absolve defendants from the requirement of affording plaintiffs hearings, see Bowers v. Smith, 353 F.Supp. 1339 (D.Vt.1972), ⁸ though we agree with the district court that it could properly affect their timing.

While some process may therefore yet be due, the very magnitude of the emergency move and the probable continuance of a sensitive situation dictate a wide degree of discretion on the part of the district court on remand. As the court observed, the reclassification program is a continuing one. Presumably some plaintiffs have already been given the hearing. Others may be scheduled for hearing ⁹ in the near future. If it appears that there are some as to whom no such hearings are contemplated within a reasonable time, and no sufficient justification for such delay exists, the court will have the authority to deal with these cases. Where the hearings do not result in a determination that a reasonable basis existed for including an inmate in the mass transfer, the authorities should expunge the fact of transfer from that plaintiff's record or at least include a notation that the determination had been made under emergency conditions not comporting with due process so that there should remain no continuing adverse impact by reason of the transfer on plaintiff's opportunities for transfers, furloughs, or parole. See Preiser v. Newkirk, --- U.S. ---, 95 S.Ct. 2330, 44 L.Ed.2d 272 (1975); Chapman v. Kleindienst, 507 F.2d 1246, 1248-49 n. 2 (7th Cir. 1974). We contemplate that whatever needs to be done in light of this opinion will be done administratively on the initiative of defendants. The court, however, if not satisfied that timely and adequate proceedings are being undertaken, will have the ability to do what seems necessary.

Vacated and remanded.

1 During 1974 the Norfolk County Grand Jury returned 48 indictments for assaults within the institution. There was a murder (fifteen during the past three years), five attempted murders, two suicides, one major disturbance, and a strike of correctional officers.

2 The court below found:

"Five committees were formed for the purpose of carrying out the survey. The chairman of each committee was either a treatment director or chief social worker from another institution. The other members were one correction officer and one social worker, both from the Walpole staff. In general, the appointments were made so that the...