Lokey v. Richardson, No. 74--1256

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore BROWNING and ELY; BROWNING
Citation527 F.2d 949
Docket NumberNo. 74--1256
Decision Date09 December 1975
PartiesBob LOKEY et al., Plaintiffs-Appellants, v. H. L. RICHARDSON, etc., et al., Defendants-Appellees.

Page 949

527 F.2d 949
Bob LOKEY et al., Plaintiffs-Appellants,
v.
H. L. RICHARDSON, etc., et al., Defendants-Appellees.
No. 74--1256.
United States Court of Appeals,
Ninth Circuit.
Dec. 9, 1975.

Page 950

Bob Lokey, in pro. per.

Don Jacobson, Asst. Atty. Gen., for the State of Cal., San Francisco, Cal., for defendants-appellees.

OPINION

Before BROWNING and ELY, Circuit Judges, and ANDERSON, * District Judge.

BROWNING, Circuit Judge:

Appellant Lokey, a state prisoner confined in San Quentin serving a life sentence without possibility of parole, appeals the order of the district court granting summary judgment in favor of appellees in appellant's suit under the Civil Rights Act, 42 U.S.C. § 1983. The only issue before this court is whether summary judgment was proper on appellant's claim that the decision of the California Department of Corrections to rescind his minimum custody classification was made without procedural due process. 1

Appellant's uncontroverted allegations depict him as a model prisoner who had achieved a minimum security status accorded few convicts. He entered prison with a sixth-grade level education. While in custody he completed both high school and two years of college, receiving an associate in arts degree with honors. In addition, he completed a two-year course in office machine technology, graduating at the top of the class, and a two-year institutional course in 'creative dynamics.' During his imprisonment he read widely in the field of human physiology and anatomy, and in the behavioral sciences. He became an accomplished artist. He invented an improved Braille typewriter and a variety of tools, including a safety power saw, and organized a corporation to manufacture and market his innovations. An institutional report states, 'Mr. Lokey is described by custody officials as maintaining excellent standards within the institutional setting, especially since 1964. Everyone that he comes in contact with speaks highly of him and he is a trusted individual working in a minimum setting who received work grades from above average to exceptional.' Because of his exemplary conduct appellant was given a minimum custody classification enjoyed by only 20 or 30 inmates of San Quentin. He was permitted to travel to points distant from the prison accompanied only by an unarmed security guard. He was second in command at the San Quentin firehouse, located outside the prison walls, serving surrounding communities as well as the institution. Most important, appellant's minimum security classification entitled him to participate in the Family Visiting Program, under which he was permitted to be with his wife and two children at overnight family visiting facilities outside the prison.

After two and a half years, appellant's minimum security status was abruptly terminated. He received no notice of the proposed change of status, and no hearing. He was given no reason for

Page 951

the reclassification, orally or in writing. 2 The revocation of his minimum security classification terminated the various privileges referred to, including appellant's participation in the family visitation program.

Appellees filed three documents in support of their motion for summary judgment. The first is an internal memorandum dated November 2, 1972, from the Chief Deputy Director of the State Department of Corrections, to Classification and Parole Representatives. It reads:

Effective this date, and pending revision of Chapter VI of the Classification Manual, no inmate serving life without possibility of parole is to be classified minimum custody without prior review and concurrence by the Departmental Review Board. Any cases now so classified should be submitted to the Departmental Review Board for their review and action.

The second document submitted by appellees is an interoffice memorandum dated December 15, 1972, from the Chief of Classification Services to the Chief Deputy Director. It reads:

REASON FOR REFERRAL

Subject referred to (Departmental Review Board) by San Quentin staff as a result of the Director's policy regarding minimum custody classification for inmates serving Life Without Possibility of Parole.

(DEPARTMENTAL REVIEW BOARD) ACTION

(Departmental Review Board) met on December 15, 1972. Following a detailed review of all case factors Lokey not approved for assignment outside security fence area.

The third document submitted by appellees is a page from the State Classification Manual, containing a revision reading: 'Inmates serving life without possibility of parole are not to be classified minimum custody without prior review and concurrence by the Departmental Review Board.'

A fourth document is attached to appellant's opposition to the motion for summary judgment. It is a letter dated April 24, 1973, from the Director of Corrections, Appellee Procunier, to appellant. The portion of the letter relating to termination of appellant's minimum custody status reads as follows:

If you recall, the abolishment of the death penalty required the movement of many people with serious offenses and received much public attention. Shortly after that, a person having a Life Without Possibility of Parole sentence escaped from one of our institutions. The combination of issues demanded a removal of such cases from minimum assignments. A Classification Manual change has been made to make this a general order which was made flexible to permit meritorious cases minimum assignments by order of the Departmental Review Board only. Your case was presented to the Departmental Review Board on December 15, 1972 for that consideration; however, the manner (in which) you have handled the disappointment clearly indicates at this point that the decision to bring you inside the security area was a proper one. 3

I can understand the feeling you have expressed and the disadvantages you have received. Unfortunately, the order regarding the minimum assignments was made to change a condition

Page 952

involving many people, and therefore must stand.

Appellees contend that these documents demonstrate that termination of appellant's minimal security status was a 'purely administrative and nondisciplinary decision regarding the security of the institution,' and resulted in the loss only of a 'privilege.' They argue that such a decision imposing such a loss does not require the procedural due process mandated by Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), for disciplinary proceedings resulting in loss of good-time credit.

Summary judgment on this ground was not proper. Appellees were not entitled to judgment 'as a matter of law,' Federal Rule of Civil Procedure 56(c), on the few uncontroverted facts reflected in this skimpy record.

The right to procedural due process turns upon whether there is an...

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10 practice notes
  • Davis v. Balson, No. C 73-205.
    • United States
    • U.S. District Court — Northern District of Ohio
    • September 28, 1978
    ...v. Lash, 514 F.2d 55 (7th Cir. 1975), vacated and remanded, 425 U.S. 947, 96 S.Ct. 1721, 48 L.Ed.2d 191 (1976); Lokey v. Richardson, 527 F.2d 949 (9th Cir. 1975), vacated and remanded, 427 U.S. 902, 96 S.Ct. 3186, 49 L.Ed.2d 1196 (1976); United States v. Montanye, 505 F.2d 977 (2d Cir. 1974......
  • Clardy v. Levi, Nos. 75-3069
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • November 24, 1976
    ...W. Ford, Acting Assistant Attorney General, December 5, 1956. 7 Seawell v. Rauch, 536 F.2d 1283 (9th Cir. 1976); Lokey v. Richardson, 527 F.2d 949 (9th Cir. 1975), vacated, --- U.S. ----, 96 S.Ct. 3186, 49 L.Ed.2d ---- (1976). See, e. g., Kirby v. Blackledge, 530 F.2d 583 (4th Cir. 1976); C......
  • State ex rel. Olson v. Maxwell, Cr. N
    • United States
    • United States State Supreme Court of North Dakota
    • November 4, 1977
    ...Gomes v. Travisono, 490 F.2d 1209 (1st Cir. 1973). Contra, Fajeriak v. McGinnis, 493 F.2d 468 (9th Cir. 1974); but see Lokey v. Richardson,527 F.2d 949, at 952-953 (9th Cir. 1975), which indicates that the views of the Ninth Circuit are now in a state of The requirement of a due-process hea......
  • Lokey v. Richardson, No. C-73-0592 RFP.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • February 16, 1982
    ...accorded few convicts at the San Quentin Prison. Plaintiff's impressive prison record is set forth in detail in Lokey v. Richardson, 527 F.2d 949, 950 (9th Cir. 1975). Briefly, though, while in custody he received a number of degrees in the arts and in various trades. He became an inventor ......
  • Request a trial to view additional results
10 cases
  • Davis v. Balson, No. C 73-205.
    • United States
    • U.S. District Court — Northern District of Ohio
    • September 28, 1978
    ...v. Lash, 514 F.2d 55 (7th Cir. 1975), vacated and remanded, 425 U.S. 947, 96 S.Ct. 1721, 48 L.Ed.2d 191 (1976); Lokey v. Richardson, 527 F.2d 949 (9th Cir. 1975), vacated and remanded, 427 U.S. 902, 96 S.Ct. 3186, 49 L.Ed.2d 1196 (1976); United States v. Montanye, 505 F.2d 977 (2d Cir. 1974......
  • Clardy v. Levi, Nos. 75-3069
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • November 24, 1976
    ...W. Ford, Acting Assistant Attorney General, December 5, 1956. 7 Seawell v. Rauch, 536 F.2d 1283 (9th Cir. 1976); Lokey v. Richardson, 527 F.2d 949 (9th Cir. 1975), vacated, --- U.S. ----, 96 S.Ct. 3186, 49 L.Ed.2d ---- (1976). See, e. g., Kirby v. Blackledge, 530 F.2d 583 (4th Cir. 1976); C......
  • State ex rel. Olson v. Maxwell, Cr. N
    • United States
    • United States State Supreme Court of North Dakota
    • November 4, 1977
    ...Gomes v. Travisono, 490 F.2d 1209 (1st Cir. 1973). Contra, Fajeriak v. McGinnis, 493 F.2d 468 (9th Cir. 1974); but see Lokey v. Richardson,527 F.2d 949, at 952-953 (9th Cir. 1975), which indicates that the views of the Ninth Circuit are now in a state of The requirement of a due-process hea......
  • Lokey v. Richardson, No. C-73-0592 RFP.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • February 16, 1982
    ...accorded few convicts at the San Quentin Prison. Plaintiff's impressive prison record is set forth in detail in Lokey v. Richardson, 527 F.2d 949, 950 (9th Cir. 1975). Briefly, though, while in custody he received a number of degrees in the arts and in various trades. He became an inventor ......
  • Request a trial to view additional results

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