Fano v. Meachum

• Decision Date: 27 June 1975
• Docket Number: No. 75-1033,75-1033
• Citation: 520 F.2d 374
• Parties: Arthur FANO et al., Plaintiffs-Appellees, v. Larry MEACHUM et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 374

520 F.2d 374

Arthur FANO et al., Plaintiffs-Appellees, v. Larry MEACHUM et al., Defendants-Appellants.

No. 75-1033.

United States Court of Appeals First Circuit.

June 27, 1975.

Michael C. Donahue, Asst. Atty. Gen., with whom Francis X. Bellotti, Atty. Gen., and John J. Irwin, Asst. Atty. Gen., Chief, Crim. Div., were on brief, for appellants.

Richard E. Shapiro, Boston, Mass., with whom Robert A. Stolzberg, Roxbury, was on brief, for appellees.

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

COFFIN, Chief Judge.

We turn once again to the task of evaluating inmates' due process claims in the wake of Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). The district court provides us with a succinct summary of the facts, which the parties accept as accurate. 387 F.Supp. 664, 666-67 (D.Mass.1975). In the fall of 1974 there was a period of unrest at the Massachusetts Correctional Institution at Norfolk. There were nine fires, thought to have been set, which were serious enough to require the presence of outside fire departments, and several other fires which were less serious. Plaintiffs were taken from the general population at Norfolk and placed in the Receiving Building at the Institution, which serves as an informal segregation unit. On October 25, 1974, each plaintiff was given a copy of a disciplinary report. The offenses charged against each plaintiff were described in substantially the same terms as appeared in the notices of reclassification hearings subsequently received. Since the alleged offenses were referred to the local district attorney for investigation and possible prosecution, the applicable regulation directed that no disciplinary hearings be held. ¹

On November 4 each plaintiff received a Notice of Classification Hearing. These notices reported that information received through reliable sources indicated that the plaintiffs were variously linked to the planning and execution of the fires, possession of contraband such as weapons, or trafficking in drugs. Classification hearings ² were held, at which each plaintiff was represented by counsel. The evidence with respect to the alleged offenses, however, was given in closed session outside of the presence of plaintiffs and their counsel and was apparently, in each case, in the form of a recitation by Superintendent Meachum of information purportedly furnished to him by a confidential informant. The nature of this information was not revealed to plaintiffs or their counsel, even in summary form, nor were they informed of the dates and places of the alleged offenses.

The classification board recommended transfer to either Walpole or Bridgewater for all of the plaintiffs except Royce. These recommendations were appealed to Commissioner Hall. The appeals were denied, though the recommendations were modified in some instances with regard to the receiving institution and Royce was ordered transferred to Walpole.

Plaintiffs sought declaratory and injunctive relief and damages. 42 U.S.C. § 1983. The district court found that the proposed transfers violated the inmates' due process rights under the Fourteenth Amendment, and defendants were enjoined from carrying out the transfers until fuller hearings were held. ³ We have occasion here to review only the propriety of this preliminary injunction, the district court having reserved decision on the damage claims pending further hearings. ⁴

The first issue presented is whether the decision to transfer inmates from Norfolk to maximum security institutions within Massachusetts is of such a character that the due process rights of potential transferees are brought into play. Palmigiano v. Baxter, 487 F.2d 1280, 1284 (1st Cir. 1973), vacated, 418 U.S. 908, 94 S.Ct. 3200, 41 L.Ed.2d 1155 (1974), after remand, 510 F.2d 534 (1974), cert. granted, --- U.S. ---, 95 S.Ct. 2414, 44 L.Ed.2d 678 (1975); Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). We first grappled with the due process issues presented by prison transfers in Gomes v. Travisono, 490 F.2d 1209 (1st Cir. 1973). That case involved Rhode Island inmates who were being transferred to prisons throughout the country, and, in concluding that such transfers had an impact on inmates' liberty sufficient to require due process protections, we took pains to emphasize that we did not view that disposition as foreclosing a contrary result with regard to intrastate transfers. Id. at 1214 n.8; id. at 1217 (Campbell, J., concurring). The Supreme Court subsequently offered its initial guidance in this area. Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Wolff established that the forfeiture or withholding of "good time" credits affects a prisoner interest which "has real substance and is sufficiently embraced within Fourteenth Amendment 'liberty' to entitle him to those minimum procedures appropriate under the circumstances and required by the Due Process Clause to insure that the state-created right is not arbitrarily abrogated." Id. 418 U.S. at 557, 94 S.Ct. at 2975. Gomes was vacated for reconsideration in light of Wolff, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935, and after remand we proceeded to reconsider "What procedures are required?", after noting that Wolff reaffirmed "that prisoners suffering the prospect of serious deprivations are entitled to some process". 510 F.2d 537, 539 (1974).

The question thus becomes one of whether the detriment worked by an intrastate transfer from a medium-security institution to a maximum-security prison is serious enough to trigger the application of due process protections. Defendants correctly point out that Gomes may be distinguished from the instant case to the extent that our resolution of the interstate transfer question relied upon the assumption that interstate transfers will often be conducted between institutions which are separated by a significant distance. We noted in Gomes that the distance factor alone may make communication and visitation more difficult, and it is true that here the geographical issue is an irrelevant one. ⁵ Moreover, there has been no suggestion that the plaintiffs are subject to the administrative segregation to which interstate transferees were routinely subjected upon arrival at the receiving institutions.

In other ways, however, the disadvantages attendant upon these transfers are both more serious and more certain than those flowing from interstate transfers. While Gomes recognized that transferees were subjected to temporary administrative segregation at the receiving prisons, it was not assumed that thereafter their conditions of confinement would be more adverse than they had been before transfer. Defendants have stipulated, however, that Walpole and Bridgewater have stricter security and fewer rehabilitative programs than Norfolk, and that furloughs are more difficult to obtain at Walpole. The district court's findings of fact included the following:

"I find that the conditions of confinement at MCI, Walpole and MCI, Bridgewater, are substantially more adverse than they are at MCI, Norfolk. I further take judicial notice that these institutions have been deliberately differentiated to provide graduated conditions of confinement within the Department of Correction." 387 F.Supp. at 667.

See also Daigle v. Hall, 387 F.Supp. 652, 659 (D.Mass.1975). Defendants do not challenge the accuracy of this finding, nor could they easily do so in light of the facts to which they had stipulated, though they do argue that the hardships incurred through transfer do not assume constitutional proportions.

It should not escape notice that, aside from the distinctions discussed above, the consequences of intrastate and interstate transfers are for the most part indistinguishable. In either case "disadvantages stem from the breaking off of established programs, both educational and rehabilitative, and orientation to a new setting, programs, rules and companions." Gomes I, 490 F.2d at 1213. What was viewed in Gomes as a possibility that a transferee may be considered an identified troublemaker and treated unfavorably as a result has been stipulated to in this case. The parties agreed that the "determination to transfer Plaintiffs, and the basis therefore, will be noted on their institutional record and will be considered by the Parole Board, the Furlough Board and other administrative agencies of the Department of Correction. This may affect Plaintiffs' attempts to gain parole, furlough, work release, and other privileges." See generally Catalano v. United States, 383 F.Supp. 346 (D.Conn.1974).

In light of the disadvantages accompanying the transfers here at issue, the legal principles articulated in Wolff, Gomes and the transfer cases decided by other lower federal courts compel the conclusion that the due process clause is applicable. At issue is not a simple loss of privileges, for which a hearing may not be required, Wolff, 418 U.S. at 571-72 n. 19, 94 S.Ct. 2963, but a significant modification of the overall conditions of confinement. We hold that the inmate interests affected fall within the " liberty" protected by the Fourteenth Amendment. ⁶ Wolff, 418 U.S. at 557, 94 S.Ct. 2963; Newkirk v. Butler, 499 F.2d 1214 (2d Cir.), cert. granted, 419 U.S. 894, 95 S.Ct. 172, 42 L.Ed.2d 138 (1974); Clonce v. Richardson, 379 F.Supp. 338 (W.D.Mo.1974); Robbins v. Kleindienst, 383 F.Supp. 239 (D.D.C.1974); see Palmigiano v. Baxter, 487 F.2d 1280, 1284-85 (1st Cir. 1973), vacated, 418 U.S. 908, 94 S.Ct. 3200, 48 L.Ed.2d 1155 (1974), after remand, 510 F.2d 534 (1974), cert. granted, --- U.S. ---,95 S.Ct. 2414, 44 L.Ed.2d 678 (1975); Clutchette v. Procunier, 497 F.2d 809, 814-15 (9th Cir. 1974), on rehearing, 510 F.2d 613 (1975), cert. granted, --- U.S. ---, 95 S.Ct. 2414, 44 L.Ed.2d 678 (1975).

Wolff requires that, having found due process guarantees to be applicable, we proceed to determine what...