Miller v. Vitek

• Decision Date: 12 September 1977
• Docket Number: No. CV75-L-172.,CV75-L-172.
• Citation: 437 F. Supp. 569
• Parties: Charles MILLER, Plaintiff, and William George Foote, William McKinley Hines, and Larry D. Jones, Plaintiffs-Intervenors, v. Joseph VITEK, Individually and as Director of the Department of Corrections, Robert Parratt, Individually and as Warden of the Nebraska Penal Complex, Jack Cleavinger, Individually and as Director of the Department of Public Institutions, Klaus Hartmann, M. D., Individually and as Superintendent of the Lincoln Regional Center, Benjamin Coates, Individually and as head of the Security Building, Lincoln Regional Center, Defendants.
• Court: U.S. District Court — District of Nebraska

437 F. Supp. 569

Charles MILLER, Plaintiff, and William George Foote, William McKinley Hines, and Larry D. Jones, Plaintiffs-Intervenors, v. Joseph VITEK, Individually and as Director of the Department of Corrections, Robert Parratt, Individually and as Warden of the Nebraska Penal Complex, Jack Cleavinger, Individually and as Director of the Department of Public Institutions, Klaus Hartmann, M. D., Individually and as Superintendent of the Lincoln Regional Center, Benjamin Coates, Individually and as head of the Security Building, Lincoln Regional Center, Defendants.

No. CV75-L-172.

United States District Court, D. Nebraska.

September 12, 1977.

Thomas A. Wurtz, Lincoln, Neb., for plaintiff and plaintiffs-intervenors.

Mel Kammerlohr, Asst. Atty. Gen., Lincoln, Neb., for defendants.

Before LAY, Circuit Judge, URBOM, Chief Judge, and DENNEY, District Judge.

URBOM, Chief Judge.

Four¹ men who have been transferred involuntarily from the Nebraska Penal and Correctional Complex to the Security Unit of the Lincoln Regional Center because of claimed mental disease or defect challenge the constitutionality of the state statute under which they were transferred.

The action is brought pursuant to 42 U.S.C. § 1983 and jurisdiction is granted by 28 U.S.C. §§ 1343(3) and (4), as well as 28 U.S.C. §§ 2201 and 2202, which authorize declaratory and injunctive relief.

Under attack is § 83-180, R.R.S. Neb. 1943,² which provides:

". . . When a physician or psychologist designated by the Director of Correctional Services finds that a person committed to the Department of Correctional Services suffers from a mental disease or defect, the chief executive officer may order such person to be segregated from other persons in the facility. If the physician or psychologist is of the opinion that the person cannot be given proper treatment in that facility, the director may arrange for his transfer for examination, study, and treatment to any medical-correctional facility, or to another institution in the Department of Public Institutions where proper treatment is available. A person who is so transferred shall remain subject to the jurisdiction and custody of the Department of Correctional Services and shall be returned to the Department when, prior to the expiration of his sentence, treatment in such facility is no longer necessary."

Much of the evidence was stipulated or otherwise uncontested. Each of the plaintiffs was separately convicted for violations of Nebraska criminal law and sentenced to the Department of Correctional Services to a term of years. Each plaintiff began serving his term in the Nebraska Penal and Correctional Complex, which is within the Department of Correctional Services, but was involuntarily³ transferred to the Lincoln Regional Center, which is not within the Department of Correctional Services but is within the Department of Public Institutions. Each was transferred without any formal notice or hearing or any safeguard other than determinations by one or more psychiatrists that the prisoner suffered from a mental disease or defect and that he could not be given proper treatment in the Nebraska Penal and Correctional Complex.

Inmates at the Penal Complex are provided access to certain psychiatric care and treatment, but the institution does not have a staff and facilities necessary to provide for all mental health needs which may arise. It does have a psychiatric care unit, which can be used as living quarters for inmates whose conditions require that they be separated from the general population, and a hospital, where more closely guarded and segregated conditions may be imposed. Inmates within the psychiatric care unit or the prison hospital are subjected to a schedule more restrictive than that of the general prison population, but are not required to undergo psychiatric treatment involuntarily.

The Security Unit of the Lincoln Regional Center is a hospital owned and operated by the State of Nebraska for the purpose of treatment of emotional and mental disorders. Patients there, including inmates transferred from the Penal Complex, are frequently required to participate in behavior modification programs and to take whatever medication may be prescribed for them. Confinement conditions are substantially more restrictive than those at the Penal Complex in that the patients have less freedom of movement, are under constant supervision, have substantially fewer recreational and vocational opportunities, are unable to earn money, and must spend most of their time in their wards. When the Lincoln Regional Center determines that an inmate no longer needs to remain at the Lincoln Regional Center, arrangements are made to return the prisoner to the Penal Complex.

I.

The Fourteenth Amendment to the Constitution of the United States forbids any State to "deprive any person of . . . liberty . . . without due process of law". When a person already has lost much of his liberty because he is imprisoned, not every change of status while he is imprisoned amounts to a loss of "liberty" within the meaning of the Constitution. The opinions in Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976), and Montayne v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976), are to the effect that it is not merely the gravity of the disadvantage imposed upon the prisoner by changes of location that determines whether the liberty interest is entitled to the protection of due process. The court in Montayne said at page 242, 96 S.Ct. at page 2547:

"We held in Meachum v. Fano that 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, absent some right or justifiable expectation rooted in state law that he will not be transferred except for misbehavior or upon the occurrence of other specified events."

The plaintiffs here were not transferred from one "prison" to another but from a prison to a state mental hospital for both a continuation of their prison terms and for mental treatment. The prison and the hospital properly may be equated for due process purposes.⁴ The evidence shows that transfers to the Lincoln Regional Center are conditioned upon a finding that the prisoner suffers from a mental disease or defect and cannot be adequately treated within the Penal Complex. The statute under which the plaintiffs' transfers were made specifically so states. Furthermore, the evidence shows that transfers to the Lincoln Regional Center are so conditioned in practice. Inmates are not assigned to the Lincoln Regional Center for any administrative or correctional purposes. Therefore, there was an objective expectation, firmly fixed in state law and official Penal Complex practice, that a transfer would not occur except when the inmate suffers from a mental disease or defect and that it cannot be adequately treated at the Penal Complex. This case, therefore, comes within the exception noted in Meachum. Furthermore, the fact of greater limitations on freedom of action at the Lincoln Regional Center, the fact that a transfer to the Lincoln Regional Center has some stigmatizing consequences, and the fact that additional mandatory behavior modification systems are used at the Lincoln Regional Center combine to make the transfer a "major change in the conditions of confinement"⁵ amounting to a "grievous loss"⁶ to the inmate. We therefore hold that due process attached to the plaintiffs' liberty interest, and the task of the court is to determine what process is due and whether the procedures provided to these plaintiffs were adequate. See Morrissey v. Brewer, 408 U.S. 471, 484, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

II.

Because due process is a flexible concept to be fitted to each setting, some analytical framework is helpful in deciding the specific steps that fit a specific setting. Mathews v. Eldridge, 424 U.S. 319, 334-355, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976), suggests

". . . Our prior decisions indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. See, e. g., Goldberg v. Kelly, supra, 397 U.S. 254 at 263-271 , 90 S.Ct. 1011 at 1018-1022, 25 L.Ed.2d 287."

As to the first factor, the private interest in this case is the plaintiffs' interest in avoiding the entry of a more controlled confinement and being labeled mentally ill. Because the plaintiffs have already been deprived of much of their freedom of choice, this private interest is not identical to the interest of nonprisoners who are being considered for civil commitment, as in Doremus v. Farrell, 407 F.Supp. 509 (U.S.D.C. Neb.1975). Entry into a mental hospital still carries some distinctive stigma, which in the specific setting of this case is accompanied by techniques of behavior modification⁷ not used at the Penal Complex, so the interest of the plaintiffs is not the same⁸ as that of other prisoners who are being considered for transfer from one prison to another, as in Meachum, supra, and Montayne, supra, or that of other prisoners who are being taken through prison disciplinary proceedings, as in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).

Second, the risk of an erroneous deprivation of these private interests is relatively high where the only safeguard used is the opinion of one physician or psychologist without opportunity for anyone—the prisoner or anyone on his behalf—to question...