Gates v. Collier

• Decision Date: 30 June 1978
• Docket Number: No. GC 71-6-K.,GC 71-6-K.
• Citation: 454 F. Supp. 579
• Parties: Nazareth GATES et al., Plaintiffs, United States of America, Plaintiff-Intervenor, v. John COLLIER et al., Defendants.
• Court: U.S. District Court — Northern District of Mississippi

454 F. Supp. 579

Nazareth GATES et al., Plaintiffs, United States of America, Plaintiff-Intervenor, v. John COLLIER et al., Defendants.

No. GC 71-6-K.

United States District Court, N. D. Mississippi, Greenville Division.

June 30, 1978.

Ronald R. Welch, Jackson, Miss., Shawn Moore, Dept. of Justice, Washington, D. C., H. M. Ray, U. S. Atty., Oxford, Miss., for plaintiffs.

W. W. Westbrook, IV, Asst. Atty. Gen., Jackson, Miss., Pascol J. Townsend, Jr., Drew, Miss., for defendants.

MEMORANDUM OPINION

KEADY, Chief Judge.

The court is presented with the motion of the Mississippi Department of Corrections and its Commissioner for the adoption of revised disciplinary rules and procedures applicable to inmates incarcerated at the state penitentiary and the approval of proposed booklet entitled Inmate Handbook Rules and Regulations. The revised disciplinary regulations are set forth in sixteen sections, eight of which (§§ I, II, III, IV, VII, XIV, XV and XVI) are objected to by neither counsel for plaintiff-inmates nor by the Department of Justice, representing plaintiff-intervenor. Of the remaining eight regulations, the Department of Justice counsel objects to five (§§ V, VI, VIII, XI, XII). In addition to joining in these objections, counsel for plaintiff-inmates interposes certain other objections, some of which are without merit and require no discussion.

1. BACKGROUND

Originally, the disciplinary rules and regulations for inmates at the state penitentiary were prepared by the prison's security chief, Col. Mailly; they were submitted to and approved by this court on October 20, 1972; they appear in extenso in the margin and text of the Fifth Circuit opinion in Gates v. Collier, 501 F.2d 1291, 1315-17, n.14 (1974). By that opinion, the Fifth Circuit generally affirmed our approval of the rules, except that the defendant officials were directed to make certain limited revisions in the light of the then recent Supreme Court decision of Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). On remand, defendants revised their rules in accordance with the Fifth Circuit's mandate. The revised submission, after hearing of objections, was approved by us and ordered to be implemented, printed and distributed to the inmate population. See Gates v. Collier, 390 F.Supp. 482, 491 (N.D.Miss.1975). No one appealed from this portion of the court's order, and the state prison has, until this date, operated under the prison rules thereby adopted.

2. SUMMARY OF OBJECTIONS

The principal objections to the revised rules interposed by plaintiff-intervenor and plaintiff-inmates are twofold: (1) The creation of the office of a classification officer, holding the rank of Major or above, assigned by the Warden or a Program Associate Warden, to classify Rules Violations Reports (RVR) as either Minor, Serious or Major, who would possess discretionary authority to decide upon the seriousness of the offense reported and recommend corresponding appropriate punishment therefor. This proposal is in marked contrast to a fixed schedule of acts listed as major or minor violations, with stated punishments, as detailed in the Fifth Circuit opinion, 501 F.2d at 1315, n.14. (2) All offenses specifically delineated as major or minor would be eliminated, with the determination to be arrived at on an individualized, ad hoc basis, after the offense was found to have been committed.

3. FACTS

At the evidentiary hearing, Col. Mailly was the only witness to testify as to the need or desirability for the revised regulations. Mailly stated that in his opinion it would improve the procedure to have a classification officer with power to decide whether certain misconduct of an inmate should be classified as major, serious or minor instead of having specific violations categorized as either major or minor, with stated punishment for each such violation. Mailly stated that the investigating freeworld employee interviewing the inmate accused of a rule infraction would not necessarily appear before the disciplinary hearing committee, or council, whenever the inmate indicated an intention to plead guilty to the charge and signed a waiver to that effect in the presence of the investigating officer. In any case, Mailly stated that the hearing council which imposed discipline, in its discretion, would have the right under the new rules to call the investigating employee for testimony. In contested actions the investigating employee would list witnesses having knowledge of the alleged infraction.

Mailly stated that it promoted the interest of the prison's integrity that an inmate not be required to appear as a witness at the disciplinary hearing against his wishes, upon the reasoning that giving testimony might subject him to harm at the hands of the accused inmate or other inmates. Mailly concluded that on some occasions it was better to obtain a sworn statement from an inmate-witness and have it read in private —admittedly, a procedure which necessarily deprived the accused inmate of any opportunity for cross-examination. Mailly was of the view that in those situations where live testimony could be safely given, such would be preferable to sworn ex parte statements, but that in a prison setting, it often becomes impracticable, particularly where an inmate may be released on parole or upon detainer to another state, to obtain the personal appearance of a distant witness to testify as to the violation, whether classified as major, serious or minor, of an institutional rule. Mailly emphasized that in making a personal appearance, the option should be that of the inmate-witness and not of the investigating officer. He also maintained that the hearing committee, in its discretion, should be able to limit the number of inmate-witnesses at a hearing on the basis of the findings of the investigating employee, and the investigating employee might properly cull from his investigative file a select number of persons who might present to the disciplinary committee material matter regarding the rules infraction.

Mailly conceded that under the prior rules as originally approved and later revised under this court's order, there had been an orderly administration of the prison, but that, on the whole, he regarded the proposed new rules as better for the inmates. For example, he reduced certain punishments by decreasing time to be spent in isolation to 20 days from a maximum of 60 days, and by reducing loss of visitation days not to exceed four consecutive visiting days. He conceded that the number of reports of rules infractions contained in an inmate's personnel file might well have an influence on the classification committee in assignment of camp housing and jobs, as well as any change in the classification of the inmate. While Mailly was not familiar with standards relating to the legal status of prisoners prepared by a Committee of the American Bar Association, he stated that the revised rules closely parallel the rules presently adopted and used by the U.S. Bureau of Prisons. At the request of the court, the federal prison rules were furnished by the Department of Justice, and placed in the record.

4. CONTENTION OF THE PARTIES

Counsel for plaintiff-inmates preliminarily contend that since this court has approved the revised rules in accordance with the Fifth Circuit's 1974 opinion, and no appeal was taken therefrom by the prison officials or any other party litigant, the "law of the case" doctrine mandates that no changes can now properly be made, absent some exceptional circumstances or supervening changes in law. Admittedly, on the basis of the evidence presented by Mailly, no exceptional circumstances have developed since the original trial, nor does authority in controlling federal case law subsequent to our prior decision dictate different treatment of the disciplinary rules. As later stated, however, this argument is not dispositive since we are not concerned with conventional litigation between private persons, but rather with the ongoing operation of a state institution over which this federal district court has no control other than to insure that constitutional mandates, as opposed to mere operational changes in daily prison administration, are respected. The Department of Justice joins in the objection of plaintiff-inmates that due process requires an advance delineation of what prison infractions constitute major, serious or minor violations, and the offending inmate should know beforehand the punishment for one found guilty of any particular infraction of the prison's rules. It is therefore emphasized that vesting total discretion for classifying offenses in a free-world employee designated as a classification officer, after the misconduct has occurred, violates minimum standards of due process, both substantive and procedural, particularly where the classification officer himself may serve either as the disciplinary hearing officer or as a member of the disciplinary hearing committee, which reviews his initial classification. The ultimate position of the prison officials is that, so long as the revised rules do not offend constitutional principles, the State has the authority, from time to time, to make such revision of its rules governing inmates as experience may indicate to be beneficial or useful either to the institution, or to the inmate population, or to both. The immediate contention of the prison officials is they are handicapped in prison operations by inflexible, fixed categorization of offenses and corresponding punishment.

The "law of the case doctrine," as recently stated by the Fifth Circuit in Schwartz v. NMS Industries, Inc., 575 F.2d 553 (1978) is "not an inexorable command," and is appropriate to the type of litigation for which it is suited:

The "law of the case" rule is based on the salutary and sound public policy that litigation should come to an end. It is predicated on the premise that "there would be no

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