Gomes v. Travisono, 73-1065

• Decision Date: 28 December 1973
• Docket Number: No. 73-1065,73-1066.,73-1065
• Citation: 490 F.2d 1209
• Parties: Douglas GOMES et al., Plaintiffs, v. Anthony P. TRAVISONO et al., Defendants.
• Court: U.S. Court of Appeals — First Circuit

490 F.2d 1209 (1973)

Douglas GOMES et al., Plaintiffs, v. Anthony P. TRAVISONO et al., Defendants.

Nos. 73-1065, 73-1066.

United States Court of Appeals, First Circuit.

Argued September 7, 1973.

Decided December 28, 1973.

As Amended January 7, 1974.

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

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

Before COFFIN, Chief Judge, KILKENNY^* and CAMPBELL, Circuit Judges.

COFFIN, Chief Judge.

These appeals raise the general question: to what extent, if at all, does the Constitution require that procedural rights be extended to prisoners prior to their transfer from a prison in one state to that in another state? The district court, in a lengthy and thoughtful opinion, 353 F.Supp. 457 (D.R.I.1973), granted broad injunctive and declaratory relief. We affirm in part and reverse in part.

This action, brought on behalf of all male Rhode Island inmates under 42 U. S.C. § 1983 and 28 U.S.C. § 1343, challenges the constitutionality of transfers from Rhode Island's Adult Correctional Institution (A.C.I.) to various out of state and federal prisons¹ without prior notice, statement of reason, or hearing. The named plaintiffs were among eleven inmates of A.C.I. who were transferred to prisons throughout the country in the fall of 1971. Tensions at the correctional institution following the September prison uprising at Attica had been compounded by a work strike of correctional officers, a predominance of unseasoned employees, discovery of bomb blueprints and racial animosities. An Afro-American Society had become active and had put forward a list of grievances which were being discussed. Rumor spread that serious disruption was contemplated and planned by the Society.

As a result of these circumstances, which created anxiety among the personnel, several of the Society's most prominent members along with four white prisoners, suspected of planning to take advantage of any distraction to attempt an escape, were summarily taken out of the prison population and transferred. No charges or statement of reasons were presented to the prisoners. Neither the prisoners' attorneys nor the prisoners themselves were given notice of transfer or afforded an opportunity to be heard. They were transferred to prisons in several states, including Georgia, Kansas and Illinois. All of those removed were segregated in the receiving prisons for a period of from two to six weeks.

We note at the outset that what is not at issue in this case is the power to transfer prisoners.² Nor does the resolution of this case depend on any "right" to remain in a particular prison.³ What is at issue is whether and to what extent procedural rights exist when a prisoner's transfer out of state is contemplated. Analysis of the right to procedural due process begins with an assessment of the prisoner's deprivation on transfer. Invocation of any rights depends upon whether treatment inherent in the transfer process constitutes "grievous loss". Morrissey v. Brewer, 408 U.S. 471, 483, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L. Ed.2d 556 (1972); Board of Regents v. Roth, 408 U.S. 564, 570-571, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1969); Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring). In this case assessments of deprivation of the particular prisoners transferred are a predicate to any judgment giving them relief. And, since broad declaratory and injunctive relief was sought and granted, it is relevant to inquire whether, apart from the unique facts relating to these plaintiffs, transfer in general is attended by sufficient deprivation to warrant procedural safeguards.

The district court examined the short and long range consequences to the individuals transferred by A.C.I. to discover whether those transfers resulted in grievous loss. The court made findings, supported by the evidence, that: (1) transferred inmates were placed in "administrative" segregation in the receiving institution for a period of two to six weeks, often in cells used for discipline; (2) the records of the transferred inmates rarely accompanied them, nor was the reason for transfer made clear to receiving institutions; (3) as a result, the classification board of the receiving prison placed the inmates in work assignments and other programs not consistent with prior treatment; (4) generally, because they were transferees, they were precluded from rehabilitative programs, psychological therapy sessions, and educational programs; (5) they received less or no pay for their work; (6) all transferred prisoners had fewer visits from family and friends; (7) none saw an attorney during the period of transfer; (8) transfer affected parole chances because it denoted troublemaker status on the record and because the transferred inmate may not be present at parole board hearings while resident inmates usually are present; and (9) there were serious problems of orientation to a new environment.

Wholly apart from the specifics of this case, we think it well recognized that transfer characteristically entails inconveniences and privations. Some arise by the distance factor alone, increasing the difficulty of communication and visitation. See Capitan v. Cupp, 356 F.Supp. 302 (D.Or.1972). Other disadvantages stem from the breaking off of established programs, both educational and rehabilitative, and orientation to a new setting, programs, rules and companions.⁴ Still other privations exist by reason of the administrative requirements of the receiving prison. New inmates must often be subject to "administrative" isolation pending examination, classification, and integration into a new prison community.⁵ Although the reason for this segregation may be distinguished from the reason for punitive segregation, the impact upon the inmate is no less. Finally, if the fact of transfer noted on an inmate's record without further explanation connotes "troublemaker", the inmate may be faced with recurrent unfavorable dispositions as to his status within the prison and might eventually suffer an unfavorable parole decision,⁶ resulting in a longer term adverse alteration of the inmate's living conditions.

Whatever may be the purpose of transfers or the inevitability of some of their consequences, we necessarily look to their effect on the inmate. Having examined both the initial or short term consequences to the transferred prisoner and the potential for continuing impact upon his liberty, we conclude that some due process is mandated in all transfer cases.⁷ Here, as in Palmigiano v. Baxter, (1st Cir.1973), 487 F.2d 1280 the extent of the process due requires more delicate examination, and a balancing of the state's interests against those of the prisoner.

The balancing of interests is more complex in these transfer cases than it is where discipline for a specific act is contemplated. Discipline, or punishment, while ranging in degrees of severity, is generically all of a piece. Transfer of a prisoner from one state to another⁸ may be made for any of a number of reasons. It may be "punitive", in the sense that the prison administration is simply attempting to punish a misdeed. It may be for "security" if, as here, it is predicated on the apprehension of general and uncontrollable disturbance or on predictions of future misconduct by an inmate. It may be made for the best interests of other inmates if the prisoner is disruptive, a threat to others, or otherwise a bad influence as would be the case of a professional with continuing outside criminal contacts. A transfer may be for the best interests of the prisoner himself, for his safety or for his rehabilitation if it is believed that he will be better off elsewhere. And a transfer may be dictated by the needs or shortcomings of the institution, e. g., to alleviate overcrowding. The variety in kinds of transfer decisions and the need for latitude in administrative discretion dissuade us from attempting to impose any extensive blanket of due process procedures to cover all transfers.

This, however, was what the district court did. It prescribed as a predicate for any transfer, except an emergency situation, notice of reasons for transfer, a review of the basis for transfer by an investigative officer, a hearing before an impartial board at which the inmate would have the right to call and examine witnesses with the help of a lay advocate, the decision to transfer to be based on substantial evidence, with a record to be kept and administrative review of the decision to be available. In addition to these hearing-related procedures, an investigation was mandated, prior to transfer, of the rehabilitative programs of the receiving institution and a statement given the receiving institution identifying in what respect Rhode Island's facilities were inadequate for the particular needs of the putative transferee. After transfer, the court required periodic review of the transferee's status and the adoption of regulations ensuring the return of transferees for parole board hearings, for conferences with counsel in preparation for legal proceedings, and for appearance in court proceedings. Finally the court ordered that the eleven inmates transferred on November 18, 1971 be returned to custody and that inmates transferred at other times be returned for hearings on the issue of the propriety of their transfer.

We feel constrained to paint with a smaller brush. While much of what the court required is appropriate for some transfer situations and some of it...