Gomes v. Moran

• Decision Date: 02 March 1979
• Docket Number: 78-610.,Civ. A. No. 4794
• Parties: Douglas GOMES et al. v. John J. MORAN et al. Romeo GABRIELLE v. Griffin BELL et al.
• Court: U.S. District Court — District of Rhode Island

468 F. Supp. 542

Douglas GOMES et al. v. John J. MORAN et al.

Romeo GABRIELLE v. Griffin BELL et al.

Civ. A. Nos. 4794, 78-610.

United States District Court, D. Rhode Island.

March 2, 1979.

William J. Rutzick of R. I. Legal Services, John A. MacFadyen, III, Barbara Hurst, John F. Cicilline, Providence, R. I., for plaintiffs.

Maureen E. McKenna, Providence, R. I., Paul Foster, Dept. of Corrections, Cranston, R. I., for State defendants.

Robert Gammell, Asst. U. S. Atty., Providence, R. I., for Federal defendants.

MEMORANDUM AND ORDER

PETTINE, Chief Judge.

The state and federal defendants in these cases have filed motions to dismiss based on the recent decision in Sisbarro v. Warden, Massachusetts State Penitentiary, 592 F.2d 1 (1st Cir. 1979), rendered seventeen days subsequent to this Court's ruling on the state defendants' motion to dismiss. The Court's denial of the motion to dismiss by the state defendants was rendered in its Memorandum and Order dated January 22, 1979, wherein it consolidated these cases for trial. At that time Sisbarro was pending on appeal.

These cases challenge the legality of the transfer of fifteen inmates from Rhode Island's Adult Correctional Institution to federal prisons throughout the country. The plaintiff inmates claim that they possess a liberty interest in freedom from interstate transfer and that their transfers, therefore, must be accompanied by certain due process protections under the Fourteenth Amendment. In its Opinion of January 22, this Court held that plaintiffs do possess a liberty interest, within the meaning of the due process clause. On the basis of this holding the Court concluded that the inmates correctly claimed the right to due process protections in connection with their transfers and indicated that it would hold a hearing to determine whether proper procedures were afforded. Gomes v. Moran, see Appendix, p. 544 at p. 549.

The Court also held that plaintiff Romeo Gabriele did state a cause of action by alleging that his transfer was accomplished in retaliation for his exercise of First Amendment rights. Id., at 550-551. Ruling only on the state defendants' motion to dismiss, the Court did not address plaintiffs' third claim, that the federal statute which authorizes the Bureau of Prisons to accept state transferees, 18 U.S.C. § 5003, gives rise to a due process interest which may be asserted by those transferees.

In Sisbarro, supra, the First Circuit Court of Appeals explicitly refused to follow the holding of Lono v. Fenton, 581 F.2d 645 (7th Cir. 1978) (en banc), that the federal transfer statute creates a due process interest in transferees. Plaintiffs rely on this holding in their claim against the federal defendants. Therefore, this element of plaintiffs' complaint in Gabriele v. Bell must be rejected here, and the federal defendants' motion to dismiss will be granted.

The state defendants argue that this Court should dismiss these cases against them in light of the First Circuit's analysis of the federal transfer statute. The state claims that the First Circuit's analysis would be the same when applied to the Rhode Island transfer statute, R.I.G.L. § 13-12-1 et seq., with the result that no due process interest would be found under state law.

The state and federal transfer statutes are very similar; arguably, one may be viewed as the converse of the other. Both provide that transfers may be accomplished when "proper and adequate treatment, facilities, and personnel are unavailable" within the state, for the purposes of "custody, care, subsistence, education, treatment, and training" of state prisoners. In Sisbarro, supra, the First Circuit held that

. . . as the Lono v. Fenton dissent notes, neither the language of the federal transfer statute nor its administrative interpretation by the Bureau of Prisons suggests "a substantive limitation or restriction on the purposes for which prisoners may be transferred." Id. at 649. To the contrary, the provision allows a prisoner to be contracted for "custody, care, subsistence, education, treatment, and training" — a list that runs the gamut of penological purposes.

Sisbarro v. Warden, supra, at 4 (citations omitted).

For these reasons the appellate court found that no due process interest is created by the federal transfer statute.

The First Circuit's interpretation of 18 U.S.C. § 5003 is unambiguous. Because of the great similarity of language between that statute and Rhode Island's interstate transfer statute, R.I.G.L. § 13-12-1, the First Circuit's reasoning is controlling upon this Court to the extent that no due process interest may be derived exclusively from the Rhode Island transfer statute.

In its Opinion of January 22, this Court looked beyond the precise wording of the Rhode Island interstate transfer statute when it found that a liberty interest exists in favor of plaintiff inmates. By referring to "the framework of state law," including statutory declarations of legislative purpose and the responsibilities of the Director of the Department of Corrections, this Court reached a result different from that reached by the District Court of Massachusetts in Sisbarro v. Warden, C.A. No. 77-26-S, slip op. (June 21, 1978). However, in light of the First Circuit's strict interpretation of the federal transfer statute, this Court will not persevere in its application of a broader scope of analysis under the due process clause. Although the First Circuit itself has recognized that state statutory schemes might be interpreted to create "enforceable substantive rights," Lombardo v. Meachum, 548 F.2d 13, 15 (1977), its opinion in Sisbarro comes too close to the present case for this Court to adhere to its earlier holding.

Because the Court today reverses its earlier holding and may be applying Sisbarro too broadly, the Memorandum and Order of January 22, 1979 is hereby incorporated by reference in today's order. The Court now directs that its order of January 22, 1979 denying the state defendants' motion to dismiss shall be vacated. In light of the First Circuit Court of Appeals' holding in Sisbarro, the federal defendants' motion to dismiss is hereby granted. The state defendants' motion to dismiss is granted with respect to the Gomes motion for further relief and counts two and three of the complaint in Gabriele v. Bell.

Plaintiff Romeo Gabriele's First Amendment claim is unaffected by the holding in Sisbarro. The Court will schedule a hearing on this matter and will entertain plaintiffs' motion to amend the complaint in Gabriele to include other transferees under this cause of action.

APPENDIX

Douglas GOMES et al.

v.

John J. MORAN et al.

Romeo GABRIELLE

v.

Griffin BELL et al.

Civ. A. Nos. 4794, 78-610.

United States District Court, D. Rhode Island.

January 22, 1979.

MEMORANDUM AND ORDER

PETTINE, Chief Judge.

These related actions challenge the involuntary transfer of fifteen inmates from Rhode Island's Adult Correctional Institution (ACI) on September 20, 1978. In Gomes, the transferred inmates move, pursuant to Fed.R.Civ.P. 70, for further relief in light of this Court's Opinion in Gomes v. Travisono, 353 F.Supp. 457, modified, 490 F.2d 1209 (1st Cir.), vacated and remanded, 418 U.S. 909, 94 S.Ct. 3200, 41 L.Ed.2d 1155 (1973), on remand, 510 F.2d 537 (1974), and its Judgment of February 2, 1975. In that Judgment, entered by consent of the parties, this Court permanently enjoined prison officials from transferring inmates to prisons outside of Rhode Island without first affording them specified elements of procedural due process, including abbreviated procedures to be followed in the event of an emergency. In the present motion plaintiffs argue that no emergency existed at the ACI on or about September 20, and in the alternative that any emergency which did exist at that time did not justify the transfer of these inmates. In either case, plaintiffs assert that defendants have violated paragraph 2(A) of the Gomes injunction because they did not follow the full panoply of procedures set forth therein. They also argue that, even if an emergency warranting these transfers did exist, the abbreviated procedures required by paragraph 2(B) of the Gomes injunction were not followed.

Based on these arguments, the present motion seeks this Court's order that no inmates may be transferred in the future without compliance with the Gomes injunction, and that the fifteen inmates already transferred must be returned to Rhode Island. In the alternative plaintiffs seek the Court's imposition of civil contempt sanctions, of which defendants may purge themselves by returning the fifteen inmates to the ACI.

In Gabrielle, plaintiffs present additional claims of illegality regarding the transfers of September 20. Specifically, plaintiffs allege that Romeo Gabrielle was transferred in retaliation for his exercise of First Amendment rights by speaking out against conditions at the ACI, and that the transfers as to all the transferred inmates were in violation of rights accruing to all inmates under R.I.G.L. § 13-12-1 (1976 Supp.) and 18 U.S.C. § 5003 (1976). According to their theory, these statutes require pre-transfer determinations by state and federal officials, respectively, that adequate treatment facilities are not available in Rhode Island but are available in the federal system.

In Gabrielle plaintiffs seek the immediate return of all transferees, a declaratory judgment that the rights of these inmates under the cited statutes have been violated, and a declaratory judgment that Romeo Gabrielle's First Amendment rights have been violated.

The federal defendants in Gabrielle have filed their opposition to plaintiffs' request for injunctive relief. The state defendants have opposed the relief requested in both Gomes and Gabrielle, and additionally have moved to dismiss the complaint in Gabrielle.

Plaintiffs have vigorously asserted the applicability of the Gomes injunction to the...