Harrah v. Leverette

Decision Date07 October 1980
Docket Number14338,14416,14370 and 14405,14342,14431,Nos. 14321,14341,14369,14428,14346,14361,14339,14368,14322,14354,14347,s. 14321
Citation271 S.E.2d 322,165 W.Va. 665
PartiesCharles HARRAH, Lester Henderson, Gordon Dean Hall, Thomas Meredith, Larry J. Ganoe, Nathan Jackson Toler, Robin Elliotte Workman, Gordon Michael Baker, Darrell Crum, Charles Crowder, State ex rel. Terry Allen Akers, State ex rel. Gary W. Guiler v. Bobby J. LEVERETTE, Superintendent, West Virginia Penitentiary et al. David E. TAWNEY and Danny Barker v. Richard MOHN, Superintendent, West Virginia Penitentiary et al. Roy Lee HARLESS, Jackie Lee Mullins and Donald E. Pennington v. William R. WHYTE, Superintendent, Huttonsville Correctional Center et al.
CourtWest Virginia Supreme Court
Syllabus by the Court
1. Due process requirements for prison disciplinary hearings are:

(a) Written notice to the inmate of the claimed violation;

(b) Disclosure to him of the evidence against him;

(c) Opportunity to be heard and to present witnesses and documentary evidence;

(d) The right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation);

(e) A neutral and detached hearing body;

(f) A written statement by the fact-finders of the evidence relied on and reasons for discipline; and

(g) The right to counsel if the state is represented by a lawyer.

2. A disciplinary committee should be neutral and detached and should not have any member with personal knowledge of the incidents charged.

3. Article III, § 5 of the West Virginia Constitution, prohibits state prison administrators and correctional officers from using physical force on inmates, absent imminent and present danger of harm to others, themselves or state property.

4. A person brutalized by state agents while in jail or prison may be entitled to:

(a) A reduction in the extent of his confinement or his time of confinement;

(b) Injunctive relief, and subsequent enforcement by contempt proceedings, including but not limited to, prohibiting the use of physical force as punishment, requiring psychological testing of guards, and ordering guards discharged if at a hearing they are proved to have abused inmates;

(c) A federal cause of action authorized by 42 U.S.C. § 1983; and

(d) A civil action in tort.

5. A remedy for prison disciplinary hearings that violate due process may be expungement from an inmate's records of charges about which the hearing was held, and restoration to him of his pre-hearing status and privileges.

E. Joseph Buffa, Charleston, for Harrah and Henderson.

G. Charles Hughes, Moundsville, for Hall, Meredith, Ganoe, Tawney and Barker.

Hugh Rogers, Kerens, for Toler, Workman, Baker, Harless, Mullins and Pennington.

David Grabill, Charleston, for Crum and Crowder.

William E. Galloway, Weirton, for Akers and Guiler.

Chauncey H. Browning, Atty. Gen., Richard E. Hardison, Deputy Atty. Gen., Joseph C. Cometti, Asst. Atty. Gen., Charleston, for respondents.


Relators, inmates at Huttonsville Correctional Center, seek unconditional release from confinement because they were deprived of their federal and state constitutional rights to due process of law and freedom from cruel and unusual punishment following a riot at the prison on Labor Day weekend, 1978. This Court ordered that a writ of habeas corpus ad subjiciendum issue, and appointed James C. West, Jr., as Commissioner to prepare written findings and recommendations. Counsel was appointed for a majority of the relators. 1

At 10:30 P.M. on Sunday, September 3, 1978, a riot erupted among the four hundred forty-eight inmates at Huttonsville, a medium security prison. 2 The initial misbehavior was brought under control and the dormitories were secured by 6:00 A.M. on Monday, September 4; but another outbreak occurred in Dormitory 11 that afternoon at about 2:00. Correctional officers used a pepper-fogger, a machine for dispensing tear gas, and riot sticks to quell the violence. Damage to state property was estimated at $200,000 by Commissioner West, and inmates' property of unknown value was destroyed.

Later Monday afternoon a "riot squad", composed of correctional officers and other employees, increased disciplinary activities. Guards were dressed in full riot gear with helmets, shields, gas masks, riot batons, and tear gas. An attack dog named Gus was employed to frighten inmates and tear gas was used. Several injured prisoners were treated at the infirmary for tear gas irritation, nerves, kidney problems, and cuts and bruises. Evidence about staff harassment and abuse of inmates by gouging, beating, shoving, and verbal harassment; and by forcing them to run over broken glass through gauntlets of guards armed with riot sticks, was confirmed by several (former) correctional officers. Inmates saw guards destroy their personal property and state property. In addition to night-time harassment by turning on lights, shouting, abusing and waking prisoners, guards entered dorms to "rough-up" inmates. For the next few weeks, the entire inmate population was confined behind security doors in their dorms, except inmates who were temporarily transferred to our maximum security prison, the state penitentiary at Moundsville.

It appears that the most extensive abuse occurred in the crossover area where investigations into the uprising commenced on Tuesday, the 5th. Dorms of inmates (one Between September 4 and 8, inmates at Huttonsville were fed only bologna and/or cheese sandwiches and water. Those on medication did not receive their medicine. There was no mail call and all normal privileges were denied.

dorm at a time) were made to run to the crossover two abreast, at a double-time pace. They ran through a gauntlet of guards and were pushed, shoved, and gouged by riot sticks as they were moving. They were forced to stand spread-eagle against a wall while waiting to be interrogated. The guards subjected them to physical and verbal abuse and hit them on the legs and back with four to five-foot long riot sticks. Many groups of inmates were forced to crawl like pigs or dogs, grunting or barking, to amuse guards; do calisthenics; or stand or sit without moving against a wall for hours. Inmates were dragged by the hair and spat upon. Threats and coercion were used to force them to confess about their own and other inmates' involvement in the disturbance. Several inmates testified that they saw guards hit other inmates between the legs with riot sticks.

On September 8, some inmates were taken to the Moundsville penitentiary and put in North Hall segregation, where they were kept until the 12th, and then returned to Huttonsville. While at Moundsville, they were often double-celled in 5' X 7' rooms. There were no charges handed to or read to these inmates before they were transferred.

After the transferees were returned from Moundsville, write-ups of charges were distributed on September 13th and 14th. Disciplinary hearings that followed were conducted by Associate Superintendent Richards, Supervisor Silvester, and Lieutenant White of the Huttonsville staff. Each hearing lasted at most ten minutes, and generally consisted of correctional officers Duncil, Willis, and Tipi reading data from yellow legal pads. Inmates were told that the data was statements by inmates, but according to all their testimony the statements were never read-only summarized-and were not shown to the accused. Prisoners were permitted to use an inmate representative, but not to have an attorney present. They could bring two witnesses to testify in their behalf, 3 but cross-examination and confrontation were not allowed. An Assistant Attorney General was present at some hearings.

After the hearings, each of the forty-five inmates charged with riot participation received a written finding of fact and notification of decision. Sentences were usually loss of good time and segregation in North Hall at Moundsville for a year.

In response to the upheaval, prison administrators ordered all inmates locked behind the slam doors in their respective dorms. They were deprived of normal privileges-access to the dayroom, recreation facilities, the kitchen, mess hall, general inmate population, library, and church facilities. This withdrawal of privileges continued until September 19, 1978, according to the Commissioner's findings, and twenty hours a day until February, 1979, according to the testimony of inmates and Corrections Department Commissioner McCoy. He acknowledged that the procedures violated the three-day rule of the institution, 4 but justified the extension of time by the unusual circumstances. The lockup was labeled "close confinement".

All inmates, not just those suspected of misconduct, were confined behind slam doors with attendant withdrawal of privileges. They were not notified of charges against them; nor that they were being investigated. They were not apprised of results of the investigation; they were given no specific reasons for isolation having to do with the nature of the investigation. They were given no justification for extension

of the segregation. In addition, several inmates (Harrah, Tawney, Akers, Baker, Barker, Ganoe, Guiler, Hall, Henderson, Meredith, Toler, Workman, and Crum) were transferred to North Hall during the investigation.


This Court established minimum due process standards for placing prisoners in administrative segregation in Tasker v. Griffith, W.Va., 238 S.E.2d 229 (1977), and for transfers within the penal system, Watson v. Whyte, W.Va., 245 S.E.2d 916 (1978). Tasker, supra, held in Syllabus Point 2:

Administrative segregation for the purpose of investigating a prisoner's misconduct may involve the placement of the prisoner in solitary or close confinement in an isolated cellblock, but it may not involve any punitive withdrawal of privileges accorded to the general inmate population, such...

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