King v. Higgins

• Decision Date: 30 January 1974
• Docket Number: Civ. A. No. 73-2227-T.
• Citation: 370 F. Supp. 1023
• Parties: Arnold L. KING, Plaintiff, v. Joseph HIGGINS et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

370 F. Supp. 1023

Arnold L. KING, Plaintiff, v. Joseph HIGGINS et al., Defendants.

Civ. A. No. 73-2227-T.

United States District Court, D. Massachusetts.

January 30, 1974.

COPYRIGHT MATERIAL OMITTED

Roxbury Defenders Committee, Edward E. Berkin, Roxbury, Mass., for plaintiff.

Dennis LeCroix, Asst. Atty. Gen., Boston, Mass., for defendants.

OPINION

TAURO, District Judge.

This is a civil rights action (42 U.S.C. §§ 1983, 1985) for injunctive, declaratory and monetary relief in which plaintiff, an inmate in M.C.I. Concord at the time in question, alleges deprivation of his rights to due process of law and effective assistance of counsel. Defendants are the then acting Commissioner of Corrections and Superintendent of M.C.I. Concord.

Pursuant to an Order of Reference, the matter was heard by the magistrate, who made findings of fact and recommended dismissal of the complaint. For the reasons outlined below, the court is unable to approve the magistrate's recommendation.

All parties have stipulated that "the case should be considered fully submitted and therefore ripe for a decision on the merits."

The magistrate made the following findings of fact, which stand uncontested by the parties.

Plaintiff is twenty years old. Following a judgment of conviction for murder in the first degree, he was sentenced on June 21, 1972 to M.C.I. Walpole to serve a life sentence. Plaintiff is not eligible for parole. He remained at Walpole until December 21, 1972 when he was transferred to M.C.I. Concord.

Prior to the incident giving rise to this complaint, disciplinary action was taken against plaintiff on several occasions at both Walpole and Concord, all on the basis of alleged disobedience.

At Concord, plaintiff was active in several rehabilitative projects, such as the tutor and teaching aid programs. He worked in the library where he was given a great deal of responsibility, and was a member and treasurer of the Inmate council.

On June 14, 1973 plaintiff was transferred to the Farm Section of M.C.I. Concord, in which the inmates are housed in a dormitory-like facility some distance from the main institution. On July 2, 1973 plaintiff was late reporting to work on the Farm, and a dispute developed between plaintiff and the officer in charge of the work detail. The officer in his report claimed that plaintiff walked off the field without permission and refused to return to work, and that he spoke to other inmates who also walked off the field. Plaintiff asserts that he merely sought a drink of water.

Plaintiff and the other inmates were immediately taken to the main institution and confined in "Awaiting Action" cells. Plaintiff remained in the cell from 11:45 a. m. to 4:30 p. m. when he was taken before a disciplinary board consisting of two deputy superintendents and a social worker. A hearing was held in which plaintiff was charged with refusing to work, refusing a direct order, and inciting a riot. The report of the officer was read to plaintiff, and the board asked for his version of the incident. Plaintiff denied the charges and claimed that all he wanted was a drink of water. After a discussion, the board decided that plaintiff was lying, and ordered him to serve fifteen days in isolation.

No member of this board advised plaintiff that he could seek the advice of counsel, confront the complaining officer, or present witnesses in his own behalf. Plaintiff made no requests to do so.

Following the hearing plaintiff was advised of his right to appeal and was provided with an appeal form which he conpleted. The form was forwarded to the Superintendent, who denied the appeal.

The other seven inmates involved appeared before the disciplinary board and were similarly ordered to isolation.

The following day Robert Sarafian, Director of Treatment at Concord, was asked to hold a reclassification hearing on plaintiff and four other inmates. Chosen to sit on the board with Sarafian were James Veves, Assistant Deputy Superintendent, Robert Craig and Jerard Gagnon, both Correction Officers, and one unidentified member. Sarafian was the only member of the board not aware of the farm incident of the previous day.

Plaintiff was not given written notice prior to the hearing. Nor was he advised one way or the other with respect to any right to counsel he might have. He was informed, however, of his right to present testimony and evidence in his own behalf. Plaintiff was also asked to comment on evidence which the reclassification board had before it.

After the hearing, the board decided to recommend that plaintiff be transferred to M.C.I. Walpole. He was advised of this recommendation and of his right to appeal to the Superintendent or the Commissioner of Corrections. Plaintiff did not exercise his right of appeal.

The reason given by the reclassification board for recommending the transfer was the fact that plaintiff had been involved in frequent disciplinary infractions. While not so specifying in their reclassification hearing report, the members of the board testified before the magistrate that it was their belief that plaintiff was not suitable for Concord because its programs are designed for inmates who are placed there for only a short time. The average inmate at Concord is serving an indeterminate sentence, and the average parole eligibility is from six to eighteen months. As pointed out above, plaintiff is not eligible for parole. Of the 401 inmates at Concord, ten or eleven are serving life sentences, two or three for first degree murder. All of the other inmates serving life sentences have been incarcerated at other institutions and have served many years prior to being transferred to Concord.

The transfer of plaintiff was approved by the Commissioner on July 25, 1973 and he was removed to M.C.I. Walpole, where he is presently confined.

Plaintiff argues that the procedure of the disciplinary board, resulting in his isolation, and the procedure of the reclassification board, resulting in his transfer, were constitutionally deficient under the Due Process Clause of the Fourteenth Amendment. Plaintiff also contends that he was deprived of his Sixth Amendment right to counsel while confined in isolation.¹ For the reasons outlined below, the court agrees with his first contention.

It is now settled in this Circuit that some due process is required before an inmate can be sentenced to segregation. Palmigiano v. Baxter, 487 F.2d 1280 (1st Cir. 1973). Palmigiano was decided after the incident giving rise to plaintiff's complaint, and after the magistrate's recommendation. The Court of Appeals stated in its opinion that it would give only prospective enforcement to the "novel" requirements of use immunity and right to counsel². The standards violated in the instant case, however, are far from novel. On the contrary, plaintiff was deprived of rudimentary elements of fundamental fairness long recognized by the courts and, in fact, the Massachusetts correctional authorities.³ It is unnecessary, therefore, to rely on Palmigiano in resolving the issues presented in the instant case.

The conclusion in Palmigiano that: a minimal level of due process must be achieved in reaching any decision concerning a particular inmate which may result in a marked change in the status of the inmate's confinement, with the result that he may be deprived of amenities on which he has come to rely.

Palmigiano, 487 F.2d at 1284, was a reaffirmation of the position of the Court of Appeals in 1970, when it held that:

while all the procedural safeguards provided citizens charged with a crime obviously cannot and need not be provided to prison inmates charged with violation of a prison disciplinary rule, some assurances of elemental fairness are essential when substantial individual interests are at stake.

Nolan v. Scafati, 430 F.2d 548, 550 (1st Cir. 1970).

The decision to order plaintiff from the minimal security of the prison farm⁴ to segregation, with the attendant possibility of reclassification and future re-punishment,⁵ is clearly one that markedly changed his status of confinement and constituted a grievous loss. Plaintiff was entitled, therefore, to due process safeguards. Many courts have so held prior to the recent decision in Palmigiano v. Baxter, supra. See McDonnell v. Wolff, 483 F.2d 1059 (8th Cir. 1973), cert. granted ___ U.S. ___, 94 S.Ct. 913, 39 L.Ed.2d 108 (1974); Sostre v. McGinnis, 442 F.2d 178 (2nd Cir. 1971), cert. denied sub nom. Sostre v. Oswald, 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740; Collins v. Hancock, 354 F.Supp. 1253 (D.N.H.1973); Sands v. Wainwright, 357 F.Supp. 1062 (M.D. Fla.1973); United States ex rel. Neal v. Wolfe, 346 F.Supp. 569 (E.D.Pa.1972); Meola v. Fitzpatrick, 322 F.Supp. 878 (D.Mass.1971); Urbano v. McCorkle, 334 F.Supp. 161 (D.N.J.1971), affm'd 3 Cir., 481 F.2d 1400; Landman v. Royster, 333 F.Supp. 621 (E.D.Va.1971); Sinclair v. Henderson, 331 F.Supp. 1123 (E.D.La. 1971); Clutchette v. Procunier, 328 F. Supp. 767 (N.D.Cal.1971); Bundy v. Cannon, 328 F.Supp. 165 (D.Md.1971). See also Order dated June 29, 1973 in Danese v. Moriarty, 73-504-T (D.Mass.), note 7, infra.

The issue becomes, therefore, not whether but how much plaintiff was entitled to by way of due process at his disciplinary hearing. This question has been answered by the Court of Appeals in its Palmigiano v. Baxter opinion.⁶

But this court need not rely upon these recently enunciated requirements, because measured against even the most basic standards of due process and fundamental fairness, the disciplinary procedure afforded plaintiff fails to pass constitutional muster.

Plaintiff was not afforded timely notice of the charges against him. They were read to him only after the disciplinary hearing had begun. Advance written notice is a critical element in "rudimentary due process." Goldberg v. Kelly, 397 U.S. 254, 267, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Sarzen v. Gaughan, 489 F.2d 1076, 1084 (1st Cir. 1973). For an...