Toussaint v. McCarthy

• Decision Date: 27 February 1991
• Docket Number: 89-15613,Nos. 87-2910,s. 87-2910
• Citation: 926 F.2d 800
• Parties: Joseph TOUSSAINT, et al., Plaintiffs-Appellees, v. Daniel McCARTHY, et al., Defendants-Appellants. Joseph TOUSSAINT, et al., Plaintiffs-Appellees, v. James ROWLAND, Director, California Department of Corrections; Daniel Vasquez; Robert Borg, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 800

926 F.2d 800

Joseph TOUSSAINT, et al., Plaintiffs-Appellees, v. Daniel McCARTHY, et al., Defendants-Appellants.

Joseph TOUSSAINT, et al., Plaintiffs-Appellees, v. James ROWLAND, Director, California Department of

Corrections; Daniel Vasquez; Robert Borg,

Defendants-Appellants.

Nos. 87-2910, 89-15613.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 16, 1990.

Decided Oct. 30, 1990.

As Amended Jan. 2, 1991.

As Second Amended Feb. 27, 1991.

John K. Van De Kamp, Atty. Gen., Bruce M. Slavin, Peter J. Siggins and George D. Prince, Deputy Attys. Gen., San Francisco, Cal., for defendants-appellants.

Sanford Jay Rosen, Rosen & Phillips, San Francisco, Cal., for plaintiffs-appellees.

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

Before CHAMBERS, WIGGINS and NOONAN, Circuit Judges.

NOONAN, Circuit Judge:

These consolidated appeals involve a class of prisoners, who, as a class, are the toughest for a prison to handle. They are at the bottom of the social heap. They have, nonetheless, a human dignity and certain rights secured by the Constitution of the United States. The command of the Constitution has to be made concrete. At the same time prisons must be run by prison officials not judges. The tension between proper administrative discretion and necessary constitutional concreteness has produced this appeal, the fifth in this case.

The basic case was begun 17 years ago, in 1973 as a class action under 42 U.S.C. Sec. 1983 by inmates of four maximum security prisons administered by the State of California. The defendants were the administrators. The relevant principles and law of the case have been established in prior decisions, most notably and relevantly in Toussaint IV, Toussaint v. McCarthy, 801 F.2d 1080 (9th Cir.1986), cert. denied, 481 U.S. 1069, 107 S.Ct. 2462, 95 L.Ed.2d 871 (1987). It is not our Sisyphean task to revisit those decisions or revise their holdings. We apply them, determining here only those issues where their application has been challenged. We review the scope of the injunctive relief for an abuse of discretion, mindful that when the injunction directs a state agency to comply with constitutional standards, we "scrutinize the injunction closely to make sure that the remedy protects the plaintiffs' constitutional rights and does not require more of state officials than is necessary to assure their compliance with the [C]onstitution." Id. at 1089.

The appeal presents five issues where the administrator of San Quentin challenges the district court's modification of its permanent injunction:

1. The Monitor. The modified injunction appoints a monitor "to entertain requests on behalf of individual prisoners for review of decisions to assign the prisoners to segregation for 'administrative' reasons." The district court under Toussaint IV at 1114 had authority to appoint such a monitor if the district court determined that these conditions existed: (1) the administrators' procedures for segregation did not comply with due process; (2) the administrators were "unlikely to comply voluntarily"; and (3) a monitor was necessary to obtain compliance.

These conditions have not been met. The record shows that the defendants "have not wilfully violated the due process rights of any prisoner. In fact, [the officials] operate an elaborate system of procedures with every hope that it will prevent due process violations." [ER 2935 at p.48] A monitor who was already in place invited the segregated prisoners, then numbering 780, to complain if they had been improperly segregated. On the basis of the complaints that followed this invitation, the monitor found five prisoners the basis of whose segregation was not supported by evidence. A rate of unintentional constitutional error of 5/780 does not show an inability to comply with constitutional norms. See McCrae v. Hankins, 720 F.2d 863, 868 (5th Cir.1983); Ruiz v. Estelle, 679 F.2d 1115, 1132 (5th Cir.), vacated and amended in part on other grounds, 688 F.2d 266 (5th Cir.1982), cert. denied, 460 U.S. 1042, 103 S.Ct. 1438, 75 L.Ed.2d 795 (1983). The federal district court as an institution, or the court of appeals for this circuit, is not error-free and scarcely has a better record of non-intentionally depriving persons of rights secured by the Constitution.

The continued appointment of the monitor was not justified under Toussaint IV. The initial appointment was for one year from the date of the court's order, April 21, 1989. The initial appointment expired. On April 30, 1990 the district court ordered the monitor to continue his duties until further notice. We hold that there is no justification for continuation of the appointment. In order to allow the monitor to windup his business in an orderly fashion, we hold that his appointment will cease 60 days from the date of the issuance of the mandate.

2. Polygraph Examinations. The district court prohibited the use of polygraph examinations by prison officials in determining whether a prisoner had really given up his gang association. The officials used them in conjunction with other evidence and did not rely on them as absolute predictors of behavior. The district court forbade them because the officials did not offer proof that the tests were reliable.

"Lie detectors," as they were once popularly called, are not infallible instruments for measuring veracity. The results of a polygraph examination can constitute corroboratory evidence. Zimmerlee v. Keeney, 831 F.2d 183, 187 (9th Cir.1987), cert. denied, 487 U.S. 1207, 108 S.Ct. 2851, 101 L.Ed.2d 888 (1988). As used at San Quentin, the results of such examinations do constitute sufficient evidence to meet the standard laid down by Superintendent v. Hill, 472 U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985), and by Toussaint IV, 801 F.2d at 1105.

Under Hill what is required in a prison disciplinary hearing is "some evidence from which the conclusion of the administrative tribunal could be deduced." Hill 472 U.S. at 455-456, 105 S.Ct. at 2773-75. What is "some evidence" in this context is pointedly distinguished by the Supreme Court from the kind of evidence that would be required by due process "in less exigent circumstances." Id. The kind of evidence found constitutionally sufficient in Hill would not have passed muster to send a man to prison. Interpreting Hill, Toussaint IV at 1105 noted that "the administrator's experience and awareness of general prison conditions" had to be taken into account in determining whether or not the administrator was acting on evidence. Judged by this generous standard, polygraph examinations which are used as a helpful tool in decisions about gang membership, but which are not treated as unfailingly accurate, violate no due process right of prisoners.

There "must be some indicia of reliability of the information that forms the basis for prison disciplinary actions." Cato v. Rushen, 824 F.2d 703, 705 (9th Cir.1987). Uncorroborated hearsay by a confidential informant is not reliable information. Id. Nor is such reliability increased by a polygraph examination that is admittedly "inconclusive." Id. But a careful review of polygraph evidence by the Eleventh Circuit notes that "in recent years polygraph testing has gained increasingly widespread acceptance as a useful and reliable scientific tool." United States v. Piccinonna, 885 F.2d 1529, 1535 (11th Cir.1989) (en banc). Accordingly, that circuit permits polygraph evidence to be used by stipulation or to corroborate or impeach a witness. Id. at 1536. It would be strange that tests which could be used to impeach or corroborate did not constitute "some evidence." Polygraphs are not infallible. But "a great deal of lay testimony routinely admitted is at least as unreliable and inaccurate, and other forms of scientific evidence involve risks of instrumental or judgmental error." McCormick on Evidence Sec. 206 at 629 (1984). Id. In the special context of prison discipline use of the polygraph test does not violate due process.

3. The Decision to Segregate. San Quentin gives an inmate the reasons in writing why he is to be segregated and the inmate has the opportunity to speak at a hearing before the Institutional Classification Committee. The committee is the warden's designated decision-maker as to segregation. But, so the district court found, the actual decision to segregate is made by the Criminal Activities Coordinator, an official who is in contact with counterparts at other prisons as to gang activities.

Due process requires that a prisoner have "an opportunity to present his views" to the official "charged with deciding whether to transfer him to administrative segregation." Hewitt v. Helms, 459 U.S. 460, 476, 103 S.Ct. 864, 874, 74 L.Ed.2d 675 (1983). At San Quentin a committee hears, but the coordinator decides. The district court was right in correcting this gap by ordering that the coordinator hear.

4. Periodic Review. San Quentin reviewed the decision to segregate every 120 days; the monitor agreed; the district court said it should be every 90 days. The authority for the action of the district court is the Constitution. The Constitution does not support a nice distinction between 90 days and 120 days. The question is one of discretion. Is it to be the discretion of the prison administrators or the discretion of a district court? Nothing in the Constitution invests the district court with discretion to override the discretion of the prison officials on this administrative point. Here administrative discretion must prevail; 120 days satisfies due process.

5. Access to the Courts. Toussaint IV accorded the district court authority to fashion a plan for "meaningful access" to the courts if the parties failed to agree on a plan. 801 F.2d at 1110. An understandably acute tension exists between the administrators' concern for safety and the prisoners' interest in getting books that will help...