Vice v. Harvey, Civ. A. No. 77-1515.

• Decision Date: 13 September 1978
• Docket Number: Civ. A. No. 77-1515.
• Citation: 458 F. Supp. 1031
• Court: U.S. District Court — District of South Carolina
• Parties: Rosco VICE, Plaintiff, v. Warden HARVEY, Kirkland Correctional Institution, Officer Pardue, Joe Martin, Warden, Central Correctional Institution, and William D. Leeke, Commissioner, S.C.D.C., Defendants.

458 F. Supp. 1031

Rosco VICE, Plaintiff, v. Warden HARVEY, Kirkland Correctional Institution, Officer Pardue, Joe Martin, Warden, Central Correctional Institution, and William D. Leeke, Commissioner, S.C.D.C., Defendants.

Civ. A. No. 77-1515.

United States District Court, D. South Carolina, Columbia Division.

September 13, 1978.

COPYRIGHT MATERIAL OMITTED

Rosco Vice, pro se.

Emmet H. Clair, Asst. Atty. Gen., Columbia, S. C., for defendants.

ORDER

BLATT, District Judge.

This court, by its Order dated March 28, 1978, disposed of plaintiff's various § 1983 claims involving hygiene and interprison transfers reserving for decision, after receiving requested additional information, a disposition of the issue involving the summary imposition of administrative segregation for disciplinary infractions. The requested information has been provided to the court so this issue is now ripe for decision.

The basic facts pertaining to the remaining claim are set forth in this court's Order of March 28, 1978, and are briefly repeated here. Plaintiff was in the process of being transferred from the Kirkland Correctional Institution (KCI) to the Central Correctional Institution (CCI) on June 2, 1977, for "interference with an officer in the performance of his duty and his general attitude"—(4/21/78 affidavit of Warden James L. Harvey)—when he committed a violation of disrespect to an officer.¹ For this offense, he was placed in administrative segregation upon arrival at CCI, instead of being housed in the general prison population.² On June 6, 1977 — (or at least by June 18th according to plaintiff) — plaintiff received notice of the charge but refused to attend his Institutional Adjustment Committee (IAC) hearing on July 1, 1977, at which time he was given six (6) months administrative segregation and six (6) months loss of good time. Plaintiff here does not — (nor could he) — challenge the substantive findings of the IAC, but instead argues that the timing of the hearing was improper, i. e., that he should have received a hearing before his reclassification for punitive reasons.

As the recent Supreme Court pronouncements in 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) as well as the statements by the Fourth Circuit Court of Appeals in Cooper v. Riddle, 540 F.2d 731 (4th Cir. 1976) make clear, a prisoner may be transferred to another institution for administrative — (Meachum, Cooper) — or disciplinary — (Montanye) — reasons without a hearing, absent a state statute giving such prisoner a reasonable expectation that he will remain where he is confined.³ As stated in Montanye v. Haymes, supra, at 242, 96 S.Ct. at 2547:

"The Due Process Clause does not require hearings in connection with transfers whether or not they are the result of the inmate's misbehavior or may be labeled as disciplinary or punitive."

However, in Montanye v. Haymes, the Court expressly recognized that:

"No loss of good time, segregated confinement, loss of privileges, or any other disciplinary measures accompanied the transfer." Id. at 238, 96 S.Ct. at 2545.

In the present case, in contrast, the first two of these enumerated additional consequences of the disciplinary infraction are present and call for a Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) hearing as the parties have recognized.⁴ The question of the timing of the hearing requires this court to focus on the nature of the interests protected, and to balance the competing interests of the prisoner desiring to be heard before suffering serious consequences and the duty of prison authorities seeking to maintain prison order. In a different context, the Supreme Court has grappled with the interests of a judgment debtor and his creditor in deciding the timing of a seizure hearing concerning a debtor's assets. Compare, C.I.R. v. Shapiro, 424 U.S. 614, 96 S.Ct. 1062, 47 L.Ed.2d 278 (1976); North Georgia Finishing, Inc. v. Di-Chem, 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975); Mitchell v. W. T. Grant, Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969). These cases, while differing in their results and involving property interests alone, rather than the combination of property and liberty interests involved here, sustain the principle that a careful weighing of the respective interests involved is required to determine the contours of due process in each case. As the deprivation of rights becomes more severe, the procedures which must be followed to constitutionally effect such deprivation become more stringent. As the Supreme Court has recently said:

"This Court has recently and repeatedly held that, at least where irreparable injury may result from a deprivation of property pending final adjudication of the rights of the parties, the Due Process Clause requires that the party whose property is taken be given an opportunity for some kind of predeprivation or prompt post-deprivation hearing at which some showing of the probable validity of the deprivation must be made." C.I.R. v. Shapiro, supra, at 1072. See also, Board of Curators of the University of Missouri v. Horowitz, 435 U.S. 78, 99, 98 S.Ct. 948, 960, 55 L.Ed.2d 124 (Marshall, J., dissenting) (1978).

The Court has also indicated that an analogous interpretation of Due Process protection should be applied to deprivations of "liberty" interests:

"This analysis as to liberty parallels the accepted due process analysis as to property. The Court has consistently held that some kind of hearing is required at some time before a person is finally deprived of his property interests." Wolff v. McDonnell, supra, 94 S.Ct. at 2975.

Although an argument can be made that a prisoner suffers irreparable and final deprivation of his freedom the moment he is placed in segregation—(i. e., that a day spent in segregation is lost forever to a human being with a finite life expectancy) —and that a hearing must always precede such action, the Supreme Court has indicated that a person's liberty can be summarily restricted temporarily in certain circumstances. Thus, in Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), the Court held that an arrestee may be held temporarily while a "prompt" probable cause determination is made. However, Wolff v. McDonnell, supra, indicated that normally advance notice should accompany any imposition of "solitary confinement"— (94 S.Ct. at 2982 n. 19)—but that Court did not speak in detail to the exact situation presented here where many of the incidents of traditional solitary confinement are absent (see, page 1038, infra.) The indications from that opinion, and the later pronouncement in Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976), are that less stringent due process procedures are involved as a less severe penalty is contemplated. These cases represent a specific application of the established maxim that:

"`. . . "due process," unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.'" Mathews v. Eldridge, 424 U.S. 319 at 334, 96 S.Ct. 893 at 902, 47 L.Ed.2d 18. See also, Board of Curators of the University of Missouri v. Horowitz, 435 U.S. 78, 98 S.Ct. 948, 55 L.Ed.2d 124 (1978).

The Courts of Appeals' decisions which have considered factual situations related to that here involved have illustrated an accommodation between the two competing forces expressed in Wolff v. McDonnell, supra, 94 S.Ct. at 2978:

"With some, prisoners, rehabilitation may be best achieved by simulating procedures of a free society to the maximum possible extent; but with others, it may be essential that discipline be swift and sure."

In Aikens 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), opinion on remand, 547 F.2d 372 (7th Cir. 1976), the Court modified its earlier opinion which had mandated that prison authorities provide a statement of reasons for refusal to allow cross-examination, which requirement ran afoul of Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976); however, it left standing its requirement of written notice — (two days) — before disciplinary confinement could be imposed, noting (at 372, n. 1) that neither Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976) nor Montanye v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976) affected the situation present there — (and here) — where disciplinary confinement or segregation was involved. In Gray v. Creamer, 465 F.2d 179, 185 (3rd Cir. 1972), a decision anticipating Wolff v. McDonnell, the Court said:

". . . that the transfer of a prisoner from the general prison population to solitary confinement without either notice of the charges or a hearing6 does not, absent unusual circumstances not evident in the pleadings, meet minimal due process requirements."

The footnote cited in that sentence explained:

6 This is not to say, of course, that this notice or hearing must in all cases precede the transfer to solitary confinement; in some cases, as, for example, during a prison riot, notice and hearing must be delayed a reasonable period of time.

The Third Circuit Court of Appeals elaborated on its holding in the later case of Biagiarelli v. Sielaff, 483 F.2d 508 (3rd Cir. 1973), when it held that a prisoner whom authorities suspect of planning to escape can be held in solitary for a reasonable time without a hearing. However, the Court was careful to note:

"This was not the ordinary case of a prisoner being placed in administrative or punitive segregation for disciplinary purposes, . . ." at 511-12.

The Eighth Circuit in a post-Wolff v. McDonnell case approved a three-day lapse between...