Shimabuku v. Britton

• Decision Date: 26 February 1973
• Docket Number: No. L-2205.,L-2205.
• Citation: 357 F. Supp. 825
• Court: U.S. District Court — District of Kansas
• Parties: George SHIMABUKU et al., Plaintiffs, v. Samuel J. BRITTON, Warden, United States Penitentiary at Leavenworth, Kansas, et al., Defendants.

357 F. Supp. 825

George SHIMABUKU et al., Plaintiffs, v. Samuel J. BRITTON, Warden, United States Penitentiary at Leavenworth, Kansas, et al., Defendants.

No. L-2205.

United States District Court, D. Kansas.

February 26, 1973.

Robert Claus, Wyandotte County Legal Aid Society, Kansas City, Kan., and Allen M. Ressler, and Ronald L. Roseman, Legal Aid and Defender Society, Greater Kansas City, Kansas City, Mo., for plaintiffs.

Robert J. Roth, U. S. Atty., Wichita, Kan., and Bruce E. Miller, Asst. U. S. Atty., Topeka, Kan., for defendants.

MEMORANDUM AND ORDER

STANLEY, Senior Judge.

This is a class action for declaratory and injunctive relief brought by the plaintiffs individually and on behalf of all past, present and future inmates of the United States Penitentiary, Leavenworth, Kansas, who have been, are now, or will be, "subjected to confinement in the segregation unit at the penitentiary in connection with any of the prohibited acts in a federal penal or correctional institution which act also violates federal statutes." (Emphasis supplied).

Jurisdiction of this court, invoked under the provisions of 28 U.S.C.A. § 1331, is claimed on the ground that the matter in controversy exceeds $10,000 and arises under the Fifth Amendment to the Constitution of the United States. The individual plaintiffs on July 12, 1972 filed an affidavit meeting the technical requirements of 28 U.S.C.A. § 1915 and were permitted to proceed in forma pauperis. The poverty affidavit, signed and sworn to by each plaintiff, includes the statement that "they are without assets, and have no income."

The defendants would have the court dismiss this case because the allegation of poverty is untrue. In answers to interrogatories the plaintiffs Shimabuku, Brown, Graven and James reported that on July 12, 1972 they had money to their credit in the accounts of the penitentiary in the amounts, respectively, of $315.31, $45.00, $51.27 and $61.41. The court finds that as to the plaintiffs Shimabuku, Brown, Graven and James, the allegation of poverty is untrue and, pursuant to 28 U.S.C.A. § 1915(d), this action will be dismissed as to those plaintiffs.

The jurisdiction of this court is challenged on the ground that the matter in controversy does not exceed $10,000, as required by 28 U.S.C.A. § 1331(a). The defendants' point is well taken. Jurisdiction under § 1331 cannot be founded on a right secured by the Constitution unless that right "has a known and certain value, which can be proved and calculated, in the ordinary mode of a business transaction." Barry v. Mercein, 46 U.S. 103, 120, 12 L.Ed. 70; Goldsmith v. Sutherland, 426 F.2d 1395 (6th Cir. 1970).

The defendants are federal, not state, officers, and the plaintiffs cannot have recourse to 42 U.S.C.A. § 1983 and 28 U.S.C.A. § 1343 as did the plaintiffs in Clutchette v. Procunier, 328 F.Supp. 767 (N.D.Cal.1971), the case upon which our plaintiffs principally rely. Nor are they helped by their prayer for declaratory relief. Title 28 U.S. C.A. § 2201 does not grant jurisdiction to the federal courts. It merely provides an additional remedy in cases where jurisdiction otherwise exists. Wright, Federal Courts 2d ed. 449; and see Duggins v. Hunt, 323 F.2d 746 (10th Cir. 1963).

However, the plaintiffs are inmates of a federal penitentiary and the district courts are frequently admonished that prisoners' complaints should receive preferred attention and that their claims of violation of their constitutional rights must be judicially determined. In the light of the prevailing legal philosophy the complaint of Coleman, Pineda and Williams will be treated as an application for habeas corpus relief and jurisdiction will be assumed.

The plaintiffs agree that the only issue involved in this case is the inadequacy of procedural safeguards at prison disciplinary hearings "when the charge involves an alleged act that is prohibited by federal statute and can result in a federal criminal prosecution." They argue that if an accused prisoner exercises his Fifth Amendment right to remain silent at the disciplinary hearing because of the risk of self-incrimination in a subsequent criminal prosecution, he is rendered defenseless to the charge of violation of prison regulations.

The facts have been stipulated and the case submitted to the court, the stipulation providing that the court may consider all pleadings (including attached exhibits), all reports and information on file pertaining to named plaintiffs, and all discovery admissions and answers to interrogatories on file. The stipulation is incorporated by reference as the court's findings of fact.

It is true that the plaintiffs, as prisoners, have not lost all of their rights under the Federal Constitution. It is also true that "(l)awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system." Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356.

Until recently the courts have felt that a formal hearing was not constitutionally required at a prison administrative proceeding, e. g., Burns v. Swenson, 430 F.2d 771 (8th Cir. 1970). The decision of the Supreme Court in Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 has cast some doubt on the validity of such precedents. In Goldberg it was held that a welfare recipient is entitled to procedural due process at a hearing which might result in "grievous loss." Some courts, believing that disciplinary action results in "grievous loss" to charged prisoners, have applied Goldberg by analogy to prison administrative hearings. These courts have held that prisoners accused of violation of institutional regulations must be accorded procedural due process at disciplinary hearings. Sostre v. Rockefeller, 312 F.Supp. 863 (S.D.N.Y.1970); Clutchette v. Procunier, supra. On appeal from the decision of the district court in Sostre v. Rockefeller, the Second Circuit disagreed with the district court's conclusion that a prisoner must be accorded in a disciplinary hearing all of the due process safeguards set forth in Goldberg. The Court of Appeals held that due process requirements were met if the prisoner was confronted with the accusation, informed of the evidence against him, and afforded a reasonable opportunity to explain his actions. Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971).

In Clutchette the court was concerned with the dilemma confronting an accused prisoner where the act alleged as a violation of regulations also constituted an offense which might be prosecuted in a criminal proceeding. Judge Zirpoli felt that the inmate in such case should not be compelled "to sacrifice his only defense in order to exercise his equally compelling constitutional right to remain silent." (328 F.Supp. p. 779). It was held that it was a denial of due process to require a charged prisoner to give up one fundamental right as a price for exercising another.

Confronted with the same problem, the United States District Court for the Middle District of Florida ruled that an inmate is entitled to "use immunity" in a subsequent prosecution to the extent that his statements in the disciplinary proceeding may not be used affirmatively against him. Sands v. Wainwright, 357 F.Supp. 1062 (M.D.Fla., 1973). See Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562; Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247; Melson v. Sard, 131 U.S.App.D.C. 102, 402 F.2d 653 (1968). As is said by Judge Scott in his opinion, "(t)he result of this rule accommodates the interests of the parties as well as justice. The inmate is free to be heard in his defense in the disciplinary proceedings while the state is free to promote prison discipline and to protect its interest in the prosecution of crime." This court finds that each individual plaintiff was confronted with the accusation against him, informed of the evidence against him, and afforded a reasonable opportunity to explain his actions; that the same procedure is followed by the defendants in all cases in which members of the class are charged with violation of regulations by reason of alleged acts which also constitute offenses subject to criminal prosecution. The court concludes that the plaintiffs and all members of the class which they purport to represent have been and are accorded hearings meeting the due process requirements of the Federal Constitution, and that the plaintiffs are entitled to no relief.

STIPULATION OF FACT

Counsel for plaintiffs and defendants agree that the following are uncontroverted facts:

1. That all named plaintiffs are presently confined at the United States Penitentiary at Leavenworth, Kansas.

2. That on or about June 14, 1972, Elloyd Morrow was found in the vegetable preparation room, and that he was subsequently pronounced dead as the result of numerous knife wounds.

3. That between June 14 and approximately June 22, 1972, each of the named plaintiffs was removed from the general prison population and confined in one of the penitentiary's control units; that the United States Penitentiary at Leavenworth, Kansas, contains two (2) control units, one in Building 63, which houses Phase I and Phase II of the control unit, and one in C cell block, which contains Phase III of the control unit.

4. That on or about June 22, 1972, reports were filed by H. E. Bailey, an employee of the Federal Penitentiary at Leavenworth, Kansas, stating that the "charge" against each of the named plaintiffs was as follows:

(a) George Shimabuku with "investigation of possible involvement in inmate homicide."

(b) Joseph H. Brown with "investigation of possible involvement in inmate homicide."

(c) Jerry Ray James with "investigation of possible involvement in inmate homicide."

(d) Ricardo Pineda with "investigation of possible involvement in inmate homicide."

(e) Tommy Joe Graven, a/k/a Tony Graven,

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