Clark v. Brewer

• Decision Date: 19 December 1983
• Docket Number: Civ. No. 76-54-1.
• Citation: 578 F. Supp. 1501
• Parties: Edward CLARK, Plaintiff, v. Lou V. BREWER, et al., Defendants.
• Court: U.S. District Court — Southern District of Iowa

578 F. Supp. 1501

Edward CLARK, Plaintiff, v. Lou V. BREWER, et al., Defendants.

Civ. No. 76-54-1.

United States District Court, S.D. Iowa, C.D.

December 19, 1983.

COPYRIGHT MATERIAL OMITTED

Barbara Schwartz, Prisoners Assistance Clinic, Iowa City, Iowa, for plaintiff.

Thomas J. Miller, Atty. Gen. of Iowa, Gordon E. Allen, Sp. Asst. Atty. Gen., Patricia M. Hulting, Asst. Atty. Gen., Des Moines, Iowa, for defendants.

RULING AND ORDER

STUART, Chief Judge.

On October 11, 1983, the parties presented arguments as to the constitutional validity of the "close management policy" adopted by defendants on March 3, 1983, for implementation at Iowa State Penitentiary ("ISP"). All issues argued had been extensively briefed by the parties before the October 11 hearing. Accordingly, this action is now fully submitted and ready for the Court's ruling.

In its Order, dated April 21, 1980, the Court determined that defendants' then current plan for review of inmates in administrative solid lockup ("ASL"—the progenitor of "close management") for possible release to ISP's general population ("GP") violated plaintiff's substantive and procedural due process rights.¹ The Court determined that the criteria applied by defendants were so subjective in nature that the decision whether to continue an inmate in ASL would not even be rationally related to the stated goals of ASL placement. Thus, following Kelly v. Brewer, 525 F.2d 394, 401-02 (8th Cir.1975), the Court directed defendants to prepare and submit guidelines for determining in a rational manner whether an inmate should be retained in ASL.

The Court also ruled that defendants' indefinite continuation of plaintiff in ASL violated his procedural due process rights. Finding that, in his ten years in ASL, plaintiff had been given no opportunity to show his ability to conform to GP living and no guidance as to how he could attempt to prove his rehabilitation in ASL, the Court ordered defendants to prepare and submit a plan setting forth the minimal procedural protections that would be afforded ASL inmates in the review decisionmaking process. Specifically, the Court requested that defendants include provisions for periodic review, for explaining to inmates proper modes of showing rehabilitation, for ASL inmates' right to compel witnesses to testify at review hearings, and for allowing conforming inmates an opportunity to prove their increasing ability to conform to the standards of life in GP.

After extensive discussion between the parties as to the minimal requirements for the ASL review plan,² it appeared they were near agreement on all but a few elements. On February 22, 1983, the United States Supreme Court decided Hewitt v. Helms, ___ U.S. ___, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983). Based on the holding of Hewitt defendants have re-opened several procedural issues that had already been agreed to and integrated in defendants' close management ("CM"—the descendant of "administrative solid lockup") policy. There are ten issues still in dispute.³ The Court will address each issue and determine the minimal constitutional requirements.

It is important for all, including the Court, to recognize the distinction between the inmates' narrow range of liberty interests protected by the Due Process Clause of the Constitution and the privileges that may be extended to the inmates under the broad and discretionary authority prison officials have over the institutions they manage.⁴ It is equally important for the court to use caution in raising privileges and freedoms granted by the administration as part of a good sound administrative policy to constitutional levels by virtue of that policy itself.

In Hewitt v. Helms the Supreme Court said:

Respondent seems to suggest that the mere fact that Pennsylvania has created a careful procedural structure to regulate the use of administrative segregation indicates the existence of a protected liberty interest. We cannot agree. The creation of procedural guidelines to channel the decision making of prison officials is, in the view of many experts in the field, a salutary development. It would be ironic to hold that when a State embarks on such desirable experimentation it thereby opens the door to scrutiny by the federal courts, while States that choose not to adopt such procedural provisions entirely avoid the stricture of the Due Process Clause. The adoption of such procedural guidelines, without more, suggests that it is these restrictions alone, and not those federal courts might also impose under the Fourteenth Amendment, that the State chose to require.

Hewitt v. Helms, ___ U.S. ___, ___-___, 103 S.Ct. 864, 871, 74 L.Ed.2d 675 (1983). The Court will approach the remaining issues with these principles in mind.

The express purpose for defendants' implementation of the current CM policy is

controlling of the intractable inmate, who by his behavior has identified himself as assaultive, predacious, riotous or disruptive to the institution ... and to impress upon these inmates the inappropriate behavior will not be acceptable at the Iowa State Penitentiary and that only through acceptable behavior can they earn their gradual release and return to the general population of the Penitentiary.

Close Management Policy at 1. This nonpunitive purpose has been understood, though less formally expressed, for at least nine years. Kelly v. Brewer, 378 F.Supp. 447, 450 (S.D.Iowa 1974), aff'd in pertinent part, rev'd in part, 525 F.2d 394 (8th Cir.1975).

Although the purpose of CM is nonpunitive, the conditions for CM inmates are much more austere and restrictive than conditions for GP inmates. Under defendants' plan any inmate at ISP may be placed in CM if certain initial placement procedures are followed. However, the testimony shows that pursuant to the current plan, it is the policy and practice at ISP to place inmates who have finished an extended term of punitive, disciplinary segregation in CM. Defendants' plan currently establishes a "management control system," under which an inmate must spend at least ninety days in CM before being allowed to participate in work and educational programs.

I. Liberty Interest Issue

The overriding issue in this action is whether an ISP inmate, once placed in CM, possesses a liberty interest in not being retained indefinitely in CM that is protected by the Due Process Clause. There is no federal statute that prohibits ISP officials from retaining inmates in CM for years without procedural safeguards of any type. Thus, unless the Due Process Clause of the Fourteenth Amendment to the United States Constitution creates a limit, the Court is without power to require defendants to adopt procedural safeguards.

Defendants contend that the United States Supreme Court's holding in Hewitt v. Helms, ___ U.S. ___, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), must control the determination of this issue. According to defendants, Hewitt holds that no prison inmate has a liberty interest, based in the Due Process Clause itself, in not being segregated and confined for years in the relatively harsh conditions of CM. Furthermore, defendants contend that Iowa law and regulations do not create for the inmates such a liberty interest.

Plaintiff, on the contrary, asserts that the holding in Hewitt is more limited: The Due Process Clause itself does not prevent prison officials from summarily segregating an inmate on a temporary basis for nonpunitive reasons. Thus, plaintiff contends that an inmate's interest in not being indefinitely retained in CM may be protected by the Due Process Clause. In addition, plaintiff contends that the Iowa parole statute, present and past good conduct- and honor-time statutes, and prison policy and regulations create a liberty interest protected by the Due Process Clause.

The Court need not reach the issue whether the Due Process Clause implicitly creates an interest in not being indefinitely retained in CM because new state law and long-established prison policy and recent prison regulations create such an interest. Senate File 302, an act creating a new method for the earning of good conduct time, was enacted on May 25, 1983, and will affect all ISP inmates convicted after July 1, 1983. Under Senate File 302, inmates will earn good conduct time in two ways: (1) automatically, at a rate of one day for each day of good conduct; and (2) by participating satisfactorily in employment, an employment program, or an educational program, at a rate of five days per month.

Although defendants contend that all CM inmates will be treated in the same manner as GP inmates in determining good conduct time, defendants' management control system is itself based on limiting the educational and employment opportunities of inmates who have spent less than ninety days in CM. The Court finds that CM inmates have less opportunity to participate in educational and employment programs than GP inmates. As a result, CM inmates' efforts to realize their statutory right to five-days-per-month good conduct time will be hindered by retention in CM. Because CM inmates convicted after July 1, 1983, will lose their opportunity to acquire some good conduct time, the Court concludes that Senate File 302 creates a liberty interest protected by the Due Process Clause. See Hewitt v. Helms, ___ U.S. ___, ___, 103 S.Ct. 864, 872, 74 L.Ed.2d 675 (1983); Martin v. Foti, 561 F.Supp. 252, 258-59 (E.D.La.1983).

The liberty interest in not being retained indefinitely in CM created by Senate File 302 is vested only in those inmates convicted after July 1, 1983. Long-standing prison policy and current written regulations also vest all other inmates with a protected liberty interest. As stated above, ISP officials have followed an unwritten policy since at least 1974 that there must be express reason for retaining an inmate in CM. Kelly v. Brewer, 378 F.Supp. 447, 450 (S.D. Iowa 1974), aff'd in pertinent part, rev'd in part, 525 F.2d 394, 401 (...