Cofone v. Manson

• Decision Date: 27 March 1979
• Docket Number: No. 673,D,673
• Citation: 594 F.2d 934
• Parties: Louis COFONE, Plaintiff-Appellant, v. John R. MANSON, Commissioner, Department of Correction, State of Connecticut, et al., Defendants-Appellees. ocket 78-2150.
• Court: U.S. Court of Appeals — Second Circuit

Page 934

594 F.2d 934

Louis COFONE, Plaintiff-Appellant, v. John R. MANSON, Commissioner, Department of Correction, State of Connecticut, et al., Defendants-Appellees.

No. 673, Docket 78-2150.

United States Court of Appeals, Second Circuit.

Argued Feb. 20, 1979.

Decided March 27, 1979.

Martha Stone, Hartford, Conn., for plaintiff-appellant.

Stephen J. O'Neill, Asst. Atty. Gen., Hartford, Conn. (Carl R. Ajello, Atty. Gen., Hartford, on brief), for defendants-appellees.

Before LUMBARD, OAKES and VAN GRAAFEILAND, Circuit Judges.

LUMBARD, Circuit Judge:

Louis Cofone, a prisoner of the state of Connecticut currently serving a life sentence for murder in the 1st degree, filed suit under 42 U.S.C. § 1983 challenging the legality of his transfer from the state prison at Somers, Connecticut to the federal penitentiary in Atlanta, Georgia. Finding no violation of any federal constitutional right in the circumstances of Cofone's transfer, we affirm the order of Judge Blumenfeld entering judgment for defendant Manson, Connecticut Commissioner of Corrections.

Cofone's transfer grew out of a series of incidents at the Somers Facility connected with inmate efforts to force establishment of a prisoner grievance committee. The incidents date from September 10, 1976, when prison guards were required to break up a fight that erupted in the prison's weight room. On the following day, a group of inmates who believed that the guards had used unnecessary force to quell the disturbance voiced their demand for a full investigation of the incident as well as formation of a prisoner grievance committee by refusing to return indoors after recreation. Though the warden turned down the demand for a grievance committee, he promised a full investigation of the previous day's incident and the inmates returned peacefully to their cells.

In the days following the demonstration prison guards overheard a number of discussions, in which Cofone took an active part, concerning the inmates' demand for a grievance committee. One of the guards reported a prison yard meeting of 28 inmates at which a prison strike was planned for October 12. According to the guard, Cofone at the time "advocated that one way or another there will be a grievance committee, either through electoral vote or due to a prison shutdown."

A few days later a group of about 90 inmates, Cofone included, refused initially to return from the outside recreation yard after recall had been sounded. They did not return inside until they had taken some sort of vote among themselves. Portions of this meeting were recorded on videotape, but since there was no sound recording the subject of the vote was not known.

On September 19, Cofone and seven other inmates were charged with conspiring to riot as a result of their attempts to organize some form of prison disturbance. Though Cofone denied that he ever advocated any disturbance at the Somers facility, he was found guilty on the conspiracy charge and was sentenced to be confined to punitive segregation for up to 20 days and to administrative segregation for an indefinite period thereafter.

Having been convinced of Cofone's disruptive potential and the consequent need for segregating him from the rest of the prison population, the authorities at Somers began to consider transferring Cofone to another prison. Since Somers was the only maximum security institution in the Connecticut state prison system an out-of-state transfer was thought necessary and, accordingly, Somers officials contacted the U. S. Bureau of Prisons. Shortly thereafter, Cofone was notified that a hearing would be held to determine whether he should be transferred to the federal penitentiary in Atlanta, the facility designated by the Bureau of Prisons. ¹

Cofone was informed that he would be able at the hearing to offer any reasons contraindicating his transfer and, moreover, that he was entitled to be represented by a staff advocate. As his advocate Cofone selected Mr. Raymond LaFountain, alcohol counselor at Somers and Cofone's representative at the earlier disciplinary hearing. Cofone met with Mr. LaFountain shortly before the hearing on October 12. At that time he asked LaFountain to call one of his attorneys to appear at the hearing, but LaFountain explained that he could not do that. Cofone requested no further assistance from LaFountain.

The panel at Cofone's transfer hearing consisted of James Singer and Alex Cybulski, Assistant Wardens, and Richard Orzak a Supervisory Counselor who had also served on the panel at Cofone's disciplinary hearing. The hearing lasted for about one hour and 20 minutes. Cofone did not request an opportunity to call witnesses, but argued that a transfer would injure his position in pending litigation, end a relationship he had developed with a psychiatrist at Somers, and prevent him from visiting with his two daughters who lived in Connecticut. ² Cofone also produced a five page typewritten statement that he had prepared for the hearing. In it he asked for a continuance to allow him to consult with an attorney, to see the Commissioner's comments on his disciplinary hearing report, and otherwise to prepare for the transfer hearing.

After deliberating for approximately 15 minutes the panel announced that it would recommend Cofone's transfer. Commissioner Manson promptly approved that recommendation, concluding that the transfer would protect ". . . the security of the institution, the welfare of the inmates, and the staff in the institution against the dangers that Mr. Cofone obviously presented in terms of getting his way, as it were, at virtually any cost, including prison shut-down." An additional reason for the Commissioner's approval of the transfer was that ". . . Mr. Cofone would be a longtime prisoner in segregation at Somers. We don't like that to occur if we can help it. We'd prefer to get him in general population in another facility." Immediately after the transfer recommendation was approved, Cofone was turned over to the custody of a Bureau of Prisons travel team which then transported him to the federal penitentiary in Atlanta.

On October 14, 1976, Cofone brought the present action in the District Court for Connecticut, alleging that his transfer to the federal penitentiary in Atlanta was a denial of his constitutional rights to due process of law and freedom of speech. After a trial on the merits, Judge Blumenfeld concluded that Cofone's transfer was not improper and entered judgment for defendant Commissioner Manson.

Cofone's argument on appeal has been narrowed to the claim that his transfer was a deprivation of liberty without due process of law. ³ Of course, the threshold question with respect to such a contention is whether the challenged action abridged an interest "encompassed by the 14th Amendment's protection of liberty . . ." Board of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972). Though Cofone concedes that a transfer from one prison facility to another does not in itself constitute a deprivation of liberty protected by the Due Process Clause, See Meachum v. Fano, 427 U.S. 215, 224-25, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976), ⁴ he argues that Connecticut prisoners have a liberty interest against out-of-state transfer because Connecticut law and administrative practice significantly limit the power of state prison officials to order such transfers.

As Cofone points out, the Supreme Court has recognized that a prisoner's transfer may infringe a Due Process Clause liberty interest where there exists "some right or justifiable expectation rooted in state law that he will not be transferred except for misbehavior or upon the occurrence of other specified events." Montanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1975), citing Meachum v. Fano,supra. In claiming that Connecticut law creates such a right or expectation, Cofone relies primarily on Conn.Gen.Stat. § 18-91(a), which authorizes the Commissioner of Corrections to transfer state prisoners into federal custody:

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