Gomes v. Travisono

• Decision Date: 20 December 1974
• Parties: Douglas GOMES et al., Plaintiffs, Appellees, v. Anthony P. TRAVISONO, etc., et al., Defendants, Appellants (two cases).
• Court: U.S. Court of Appeals — First Circuit

Page 537

510 F.2d 537

Douglas GOMES et al., Plaintiffs, Appellees, v. Anthony P. TRAVISONO, etc., et al., Defendants, Appellants (two cases).

United States Court of Appeals First Circuit.

Submitted Dec. 4, 1974.

Decided Dec. 20, 1974.

Richard J. Israel, Atty. Gen., with whom W. Slater Allen, Jr., Asst. Atty. Gen., Providence, R.I., was on brief, for Anthony P. Travisono, etc., and others.

Max D. Stern, Boston, Mass., with whom Stern & Shapiro, Boston, Mass., Cary J. Coen, Providence, R.I., Jack Greenberg and Stanley A. Bass, New York City, were on brief, for Douglas Gomes, and others.

ON RECONSIDERATION AFTER REMAND

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

PER CURIAM.

Pursuant to the mandate of the Supreme Court in Gomes v. Travisono, 490 F.2d 1209 (1973), vacated and remanded, 418 U.S. 908, 94 S.Ct. 3200, 41 L.Ed.2d 1155 (1974), we reconsider, with the assistance of memoranda from the parties our decision in Gomes, in light of Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).

The issue before us is the extent of the impact of the rulings and rationale of Wolff, dealing with the procedural safeguards constitutionally mandated for prison proceedings which can result in loss of credit for 'good time', on our opinion in Gomes, which dealt with the procedural safeguards which should attend proceedings looking to the transfer of a prisoner to a prison in another state. Two preliminary propositions appear clear without extended analysis. The first is our recognition in Gomes, strengthened if anything by the thrust of Wolff in stressing consideration of the pressures on prison authorities, that emergency situations may require postponement of whatever procedures are prescribed. The second is the principle, reaffirmed in Wolff, that prisoners suffering the prospect of serious deprivations are entitled to some process. Since the calculus of disadvantage to the prisoner, relevant to identifying the process which may be 'due', is not necessarily the same in a case involving loss of good time as that in an interstate transfer case, we proceed to look at the impact of such a transfer.

There were specific findings made by the district court as to the treatment of the transferees seeking relief in this case. The court found that the transferred inmates were segregated in the receiving prisons for two to six weeks, were placed in work assignments inconsistent with their prior experience, were precluded from rehabilitative and educational programs, saw few of their friends and family, and none of them saw their attorneys. Finally, the court found that parole opportunities were affected. 490 F.2d at 1213. We concluded that, beyond these specific findings, transfer inherently involves discontinuity of program, difficulty of communication, administrative isolation pending integration into the new prison community, and the possibility of a 'troublemaker' status which might occasion an unfavorable parole decision. It suffices here to say that the presence of privations which are either identical to or comparable to punishments meted out for disciplinary infractions calls for some due process safeguards in interstate transfer cases. See Wolff, supra, 418 U.S. at 571, 94 S.Ct. at 2982 n. 19.

In our prior opinion, we answered the question of how much process is due for transfers acknowledged to be for disciplinary purposes by noting that in Rhode Island a working system of rules governing disciplinary hearings within a prison had been devised under a consent decree issued in Morris v. Travisono, 310 F.Supp. 857, 871--874 (D.R.I.1970), and adopted as law by the state. Gomes, supra, 490 F.2d at 1215. We thought it would be 'anomalous, indeed, 'both from a due process and an equal protection point of view, if the prison authorities could accomplish by transfer a procedure-free punishment which they could not accomplish within their own walls." Id. ¹

We now are confident in saying that the deprivations inherent in an interstate transfer of a prisoner are sufficient to trigger the minimal due process safeguards identified in Wolff: written notice of charges, opportunity to prepare a defense, hearing, and a written statement of the evidence relied on and reasons for the decision. In disciplinary transfer cases, because the premise of finding an infraction and the consequence of such a finding cannot be distinguished from the penalty and findings in Wolff, the additional Wolff procedural rights to present witnesses and documentary evidence (subject to the judgment of administrators), and to receive some inmate or staff assistance (if the inmate is illiterate or the case complex) must be provided. Our only remaining question is whether any requirements of the Morris rules, not identified in Wolff, should apply to interstate transfers which are alleged to be (or to have been) punitive in nature. ²

The Morris rules deal with five facets of procedural due process: charge, investigation, hearing, review, and record. The section devoted to the charge, IA, deals with the method for reporting the violation and for dealing with the inmate pending hearing. These are matters of administrative convenience, giving various options to the prison authorities. Section II provides for investigation of the charge, internal reporting within the prison's chain of command, and specifies the means of giving the inmate written notice of the charge. While Wolff does not require investigation, the necessity for some evidence anticipates a need to gather it, or at least for ascertaining a source of evidence. The means is again a matter of administrative orderliness and convenience. Section III establishes hearing procedures. Beyond mechanisms for the composition of the hearing board (IIIA and B), and rule provides in C that (1) the charge be read and explained; (2) the inmate admit or deny the charge; (3) the board may interrogate the inmate and others as necessary; ³ (4) if the inmate thinks the charge against him is untrue, he may present information available to him and others. Up to this point the rules do not exceed the minimum requirements of Wolff. Subsection 5 does go beyond Wolff in that any inmate who so requests may have the assistance of a classification counselor. After decision is reached, rule 7 requires oral notice of the decision's rationale and consequences. It is now clear that written notice is required under Wolff.

Section IV provides for review by the warden who can approve the board's decision, order further proceedings, or reduce the punishment. Aside from recording the result in the inmate's...