Lokey v. Richardson

• Decision Date: 11 July 1979
• Docket Number: No. 77-1689,77-1689
• Citation: 600 F.2d 1265
• Parties: Bob LOKEY et al., Plaintiffs-Appellants, v. H. L. RICHARDSON et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1265

600 F.2d 1265

Bob LOKEY et al., Plaintiffs-Appellants, v. H. L. RICHARDSON et al., Defendants-Appellees.

No. 77-1689.

United States Court of Appeals Ninth Circuit.

July 11, 1979.

Russel E. Spitler, Mill Valley, Cal., for plaintiffs-appellants.

Don Jacobson, Deputy Atty. Gen., San Francisco, Cal., for defendants-appellees.

Appeal from the United States District Court for the Northern District of California.

Before BROWNING, ELY and ANDERSON, Circuit Judges.

PER CURIAM:

Appellant Lokey's section 1983 action challenging termination of his minimum custody status by California prison officials is before us for the third time. The events upon which the action is based are stated in Lokey v. Richardson, 527 F.2d 949 (9th Cir. 1975). That judgment was vacated by the Supreme Court for reconsideration in light of Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976), and Montanye v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976). Since the parties and the district court had not addressed the legal and factual issues made relevant by Meachum and Montanye, we remanded to the district court. Lokey v. Richardson, 540 F.2d 1022 (9th Cir. 1976).

The district court dismissed the complaint with the following order:

This matter having been submitted to the Court for consideration and decision on the record and pleadings on file, IT IS HEREBY ORDERED that plaintiffs' Complaint be dismissed both in light of Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 and Montanye v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976), and because plaintiffs' present confinement in minimum security renders the issue moot.

Restoration of appellant's minimum custody status mooted his request for an injunction restraining prison officials from altering his custody classification without a hearing. But appellant also prayed for damages. At a minimum, appellant's allegations and the record developed thus far assert a claim for damages for mental and emotional distress arising from the failure to observe appellant's procedural rights that could be compensable. See Carey v. Piphus, 435 U.S. 247, 258-59, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). Moreover, regardless of actual damages, appellant could be entitled to nominal damages if he prevailed. Id. at 266, 98 S.Ct. 1042. His action therefore was not mooted by his return to minimum custody.

Nor is appellant's claim necessarily extinguished by Meachum and Montanye. Those cases rejected the theory that the due process clause alone protected appellant from deprivation of his conjugal rights and minimum custody status without procedural safeguards, absent state law or practice which give rise to a right or a justifiable expectation that the prisoner's degree of confinement will change only for certain reasons or after certain procedures. See Montanye v. Haymes, supra, 427 U.S. at 242, 96 S.Ct. 2543; Meachum v. Fano, supra, 427 U.S. at 226-28, 96 S.Ct. 2532. The record neither establishes nor eliminates the possibility that such state-based expectations or rights with respect to appellant's confinement existed.

Appella...