Lamb v. Hutto

• Decision Date: 29 March 1979
• Docket Number: Civ. A. No. 78-0498-R.
• Parties: Claude Z. LAMB, Jr. v. Terrell D. HUTTO et al.
• Court: U.S. District Court — Eastern District of Virginia

467 F. Supp. 562

Claude Z. LAMB, Jr. v. Terrell D. HUTTO et al.

Civ. A. No. 78-0498-R.

United States District Court, E. D. Virginia, Richmond Division.

March 29, 1979.

COPYRIGHT MATERIAL OMITTED

Claude Z. Lamb, pro se.

Guy W. Horsley, Jr., Asst. Atty. Gen., Richmond, Va., for defendants.

MEMORANDUM

MERHIGE, District Judge.

Claude Z. Lamb, Jr., an inmate at the Mecklenburg Correctional Center of the Virginia Correctional System, proceeding pro se, brings this action in forma pauperis under 42 U.S.C. § 1983 (1970). Jurisdiction of the Court lies under 28 U.S.C. § 1343(3) (1970). Plaintiff's first claims allegedly arose while plaintiff was incarcerated in the Virginia State Penitentiary and the second while plaintiff was incarcerated at the Mecklenburg Correctional Center. Defendants have filed motions for summary judgment under Rule 56, Federal Rules of Civil Procedure, accompanied by supporting affidavits. Plaintiff responded to defendants' motion by restating his claims supported by the affidavits of five (5) fellow inmates. Defendants' motions for summary judgment are therefore ripe for disposition.

Plaintiff alleges that, while he was confined at the Virginia State Penitentiary in March, 1977, defendants Zahradnick and Kennedy threatened to transfer him to the Mecklenburg Correctional Center for his refusal to withdraw a statement that he was to offer on behalf of another inmate during a hearing. Plaintiff further alleges that, after a prison demonstration in August, 1977, he was falsely accused of creating and participating in a disturbance during that demonstration and subsequently transferred to the Mecklenburg Correctional Center. Plaintiff's inference, of course, is that defendants used his alleged participation in the August disturbance as a pretext for carrying out their threat allegedly made in March. Plaintiff alleges next that, although he was given an Institutional Classification Committee ("I.C.C.") hearing prior to his transfer, defendants failed to follow their own procedures at the hearing.

After his arrival at the Mecklenburg Correctional Center, plaintiff contends that on December 24, 1977 defendants Nordan, Tuck, Bacon, and Everett, officers of that center, came to his cell to move him to another complex, restrained him with handcuffs and a belt, and then without cause beat, kicked, and dragged him from his cell, through the building he had been assigned to, across the grounds into Building 5. Finally, plaintiff contends that after the December 24, 1977 incident, prison officials have threatened him and stopped his incoming and outgoing mail. Plaintiff's complaints will be addressed with reference to where the alleged deprivations took place.

Liberally construing the complaint as required by Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), plaintiff's claims regarding the Virginia State Penitentiary may be summarized as (1) infringement of his First Amendment rights by the allegedly unjustified transfer to Mecklenburg, and (2) denial of procedural due process at his transfer hearing. Plaintiff's complaint with reference to the Mecklenburg Correctional Center alleges (1) violation of the Fourteenth Amendment when he was beaten, (2) violation of the Fourteenth Amendment when he was threatened, and (3) denial of his First Amendment rights by virtue of the stopping of his mail.

State Penitentiary Claims:

Plaintiff contends he was punished by defendants Kennedy and Zahradnick for refusing to retract or withdraw a statement he intended to make on behalf of another inmate. The Court is of the view that plaintiff's allegations in this regard state an actionable claim under the First Amendment's guarantee of freedom of expression. Of course, a prisoner has no absolute right or entitlement to testify at a hearing on behalf of another inmate. Wolff v. McDonnell, 418 U.S. 539, 566, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). In order validly to limit a prisoner's First Amendment rights, however, a regulation or practice must "further an important or substantial governmental interest unrelated to the suppression of expression . . . and . . . must be no greater than is necessary or essential to the protection of the particular governmental interest involved." Procunier v. Martinez, 416 U.S. 396, 413, 94 S.Ct. 1800, 1811, 40 L.Ed.2d 224 (1974). Thus, defendants under appropriate circumstances could have precluded the plaintiff from making any statement. For example, the defendants conceivably could have precluded the statement in the interest of security. There is an obvious distinction, however, between preclusion for security or other valid reasons and punishing plaintiff for not retracting a statement of no particular significance other than the fact that it was to be offered on behalf of another inmate. The controlling issue, therefore, is whether defendants transferred plaintiff to silence him or for other, constitutionally permissible, reasons. This situation is somewhat analogous to that which led the court in Cavey v. Levine, 435 F.Supp. 475, 481 (D.Md.1977) to find that the warden in that case:

by deliberately ordering the institution of disciplinary proceedings against the inmate, brought into play a form of censorship calculated to restrain Cavey from any further attempts to communicate his version of the McMahon suicide incident . . . utilizing prison regulations in a manner violative of plaintiff's First Amendment rights.

Examining issues analogous to those raised by the instant case, the Second Circuit declared, "our holding that prisoners may not be punished for their beliefs carries the necessary corollary that we may not permit punishment for the mere expression of those beliefs. One can hardly speak of beliefs apart from their expression." Sostre v. McGinnis, 442 F.2d 178, 202 (2d Cir. 1971).

That a transfer does not generally give rise to due process rights in no manner negates the fact that a transfer may be used as a punitive and retalitory measure for the exercise of protected constitutional rights. The Supreme Court has examined similar situations involving the failure to rehire nontenured public employees. It is worth noting that such decisions (i. e. whether or not to rehire) are also, like inmate transfers, largely discretionary in nature and can often validly be made for any reason or no reason. In Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), however, the Court held that a public employee had a valid claim to reinstatement if the decision not to rehire him was made because of the employee's exercise of constitutionally protected First Amendment freedoms. This ruling was limited somewhat by a unanimous decision in Mount Healthy City Board of Education v. Doyle, 429 U.S. 274, 286, 97 S.Ct. 568, 575, 50 L.Ed.2d 471 (1977):

A borderline or marginal candidate should not have the employment question resolved against him because of constitutionally protected conduct. But the same candidate ought not to be able, by engaging in such conduct, to prevent his employer from assessing his performance record and reaching a decision not to rehire on the basis of that record, simply because the protected conduct makes the employer more certain of the correctness of its decision.

Thus the Court determined that the employee could establish a constitutional violation only by showing that the decision not to renew the contract would not have been made absent the occurrence of the constitutionally protected conduct.

Applying the above rationale to the instant suit requires the Court to determine if plaintiff's transfer was justifiable on grounds other than his alleged refusal to succumb to defendants' alleged threats. In this regard, the Court notes that defendant Kennedy has offered an affidavit expressly contradicting plaintiff's version of the conversation regarding whether any threats were ever made. More importantly, in the statement of reasons given plaintiff by defendants explaining why he was being transferred, defendants cite not only plaintiff's participation in the prison disturbance, but also a history of institutional violations. Because plaintiff's participation in the disturbance and his history of disciplinary troubles stand unrebutted, defendants' decision to transfer plaintiff has more than adequate independent validity. There being no genuine issue of material fact with respect to this claim, defendants' motion for summary judgment will be granted on this issue.

Generally, a prisoner enjoys no constitutionally protected expectation to a particular institutional classification or to continue to be incarcerated at any particular institution. Ward v. Johnson, 437 F.Supp. 1053, 1055 (E.D.Va.1977); Code of Va. § 53-19.17 (1974). Specifically, the Supreme Court has stated in Montanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976):

No Due Process Clause liberty interest of a duly convicted prison inmate is infringed when he is transferred from one prison to another within the State, whether with or without a hearing . . Due process does not require hearings in connection with transfer whether or not they are the result of the inmate's misbehavior or may be labeled as disciplinary or punitive.

On the other hand, however, if an inmate can establish that a "justifiable expectation" to a pre-transfer hearing is "rooted in state law," then the general rule does not apply, and a due process right arguably has been created. Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976); Russell v. Oliver, 552 F.2d 115, 117 (4th Cir. 1977); Cooper v. Riddle, 540 F.2d 731, 732 (4th Cir. 1976). In Virginia, although not constitutionally required, it appears to be standard practice that pre-transfer hearings, conducted according to published procedural standards, are afforded inmates who are about to be reclassified or transferred to a higher security level. Cooper v. Riddle, supra, at 732; Peterson...