Walker v. Hughes

• Decision Date: 12 August 1977
• Docket Number: No. 76-1974,76-1974
• Citation: 558 F.2d 1247
• Parties: Randolph WALKER, Daniel S. Bridge and Melvin Drain, et al., Plaintiffs- Appellees, v. Charles HUGHES, former warden, and Herb Beal, Individually and in his capacity as Warden of the Federal Correctional Institution at Milan, Michigan, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1247

558 F.2d 1247

Randolph WALKER, Daniel S. Bridge and Melvin Drain, et al Plaintiffs- Appellees, v. Charles HUGHES, former warden, and Herb Beal, Individually and in his capacity as Warden of the Federal Correctional Institution at Milan Michigan, Defendants-Appellants.

No. 76-1974.

United States Court of Appeals Sixth Circuit.

Argued Oct. 20, 1976.

Decided June 24, 1977.

Rehearing Denied Aug. 12, 1977.

Philip Van Dam, U. S. Atty., Gwenn L. Carr, Michele C. Mayes, Detroit, Mich., Glenda G. Gordon, Chief, Sp. Litigation Section, Crim. Div., Dept. of Justice, S. Cass Weiland and George W. Calhoun, Washington, D. C., for defendants-appellants.

Gail S. Benson, John W. Tapp, F. Randall Karfonta and William L. Woodard, Detroit, Mich., for plaintiffs-appellees.

Before EDWARDS, PECK and LIVELY, Circuit Judges.

JOHN W. PECK, Circuit Judge.

Defendant Warden of the Federal Correctional Institution at Milan, Michigan (FCI-Milan), perfected this appeal from a judgment rendered for a plaintiff class of inmates. ¹ The plaintiff class challenges the constitutional adequacy of procedures afforded prisoners in disciplinary hearings at FCI-Milan. The plaintiff class is certified to consist of all inmates at FCI-Milan who have been subject to "Adjustment Committee" procedures existing as of July 10, 1973. ² Because the Bureau of Prisons and the FCI-Milan Policy Statements, which instituted the Adjustment Committee procedures existing as of July 10, 1973, were both in effect from July 7, 1972, to October 4, 1974, the plaintiff class in effect consists of those inmates who faced disciplinary charges between July 7, 1972, and October 4, 1974.

FCI-Milan is a medium security institution for young offenders and offers a wide range of rehabilitation programs for the inmates. The district court found that four prisoners at the institution were charged with various disciplinary infractions, appeared at Adjustment Committee hearings, and were transferred to other prisons as a consequence of the findings from those hearings. The district court determined that the Adjustment Committee hearings did not provide a number of procedural rights for the plaintiff class of inmates that it held to be necessary to meet Fifth Amendment due process requirements. Walker v. Hughes, 386 F.Supp. 32 (E.D.Mich.1974). ³ The procedures held to be required included the right to written notice of the charges, the right to remain silent, the right to call witnesses and produce evidence, the right to confront the accusing officer, the right to cross-examine adverse witnesses, the right to a written decision based only upon the evidence produced at the hearing, and the right to counsel or counsel substitute in certain situations. The district court ordered that these procedural rights be given to inmates before they suffered "grievous loss" by being placed in more restrictive living status (including but not limited to segregation), transferred to maximum security penitentiaries for adult offenders, subjected to significant and adverse effects on parole dates, or deprived of privileges (such as participation in rehabilitation programs). We must reverse because the district court did not use the analysis that the Supreme Court requires for determining how the Due Process Clause of the Fifth or Fourteenth Amendment is involved in this case.

I

The Fifth Amendment prohibits the United States from depriving a person of life, liberty, or property without due process of law. The first question asked in a due process analysis is whether a life, liberty, or property interest within the meaning of the Due Process Clause is implicated in the case. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). If such an interest is present, then the second question for resolution is what process must be granted before the person can be deprived of the protected interest. Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). Thus, the initial inquiry here must be whether the plaintiff class of inmates possessed any Fifth Amendment liberty interests.

The Supreme Court has now made it clear in Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976), that an individual's grievous loss as a result of state action is not itself enough to trigger the application of the Due Process Clause.

"We reject . . . the notion that any grievous loss visited upon a person by the State is sufficient to invoke the procedural protections of the Due Process Clause. In Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), a university professor was deprived of his job, a loss which was surely a matter of great substance, but because the professor had no property interest in his position, due process procedures were not requires in connection with his dismissal. We there held that the determining factor is the nature of the interest involved rather than its weight." (Emphasis supplied.)

In its preoccupation with the "grievous loss" criterion, the district court failed to analyze properly the nature of the interest of the plaintiff class of inmates. In other words, its concern was with "the nature of (plaintiffs' loss) rather than with its weight." Roth, supra. The district judge relied on Morrissey v. Brewer, supra, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, for the proposition that "grievous loss" as a result of state action is the prerequisite for the application of the Due Process Clause. Indeed, Morrissey, supra, 408 U.S. at 481, 92 S.Ct. 2593, seemed to make the determination of the question as to whether the nature of the interest demanded the protection of the Due Process Clause depend upon a finding of grievous loss ⁴ and several Courts of Appeal did interpret Morrissey in that way. Cardaropoli v. Norton, 523 F.2d 990 (2d Cir. 1975); Bradford v. Weinstein, 519 F.2d 728 (4th Cir. 1975); Holmes v. Bd. of Parole, 541 F.2d 1243 (7th Cir. 1976). However, under Meachum, the emphasis is on whether there is entitlement to be "free from bodily restraint," Morrissey v. Brewer, supra, 408 U.S. at 484, 92 S.Ct. 2593, or "to enjoy those privileges recognized as essential to the orderly pursuit of happiness." Board of Regents v. Roth, supra, 408 U.S. at 572, 92 S.Ct. at 2706; Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). In effect, Meachum equated the threshold test for the finding of a liberty interest with that for determining whether a property interest exists. Board of Regents v. Roth, supra, 408 U.S. at 577, 92 S.Ct. at 2709, laid down this criterion in examining the nature of an alleged property interest:

"To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must . . . have a legitimate claim of entitlement to it." (Emphasis supplied.)

Contrary to assertions made on appeal by the plaintiff class, Meachum clarified due process analysis of liberty interests. The Supreme Court had observed before Meachum in Wolff v. McDonnell, supra, 418 U.S. at 557, 94 S.Ct. at 2975, that due process "analysis as to liberty parallels the accepted due process analysis as to property." The Supreme Court therein focused on the nature of the prisoners' right to good time credits rather than on the potential loss from the deprivation of such credits. In Morrissey the Court found the necessary liberty entitlement in "at least the implicit promise that parole will be revoked only if he fails to live up to the parole conditions." Morrissey v. Brewer, supra, 408 U.S. at 480-81, 92 S.Ct. at 2601.

For at least two reasons the requirement of an entitlement for the existence of a due process liberty interest, instead of a finding of grievous loss, is the prescribed approach. First, a standard of grievous loss would measure the weight of the individual interest rather than determining its nature, contrary to the intention of Roth, supra, 408 U.S. at 570-71, 92 S.Ct. 2701, and Morrissey, supra, 408 U.S. at 481, 92 S.Ct. 2593. Second, the requirement of an entitlement provides an appropriate basis for compromise between the need for the protection of individual interests and the need for government action unhampered by procedural burdens. A standard of grievous loss would interfere more directly with government responsibilities. The Supreme Court in Meachum v. Fano, supra, 427 U.S. at 225, 96 S.Ct. at 2538, recognized that fact in the context of prison management.

"(T)o hold as we are urged to do that any substantial deprivation imposed by prison authorities triggers the procedural protections of the Due Process Clause would subject to judicial review a wide spectrum of discretionary actions that traditionally have been the business of prison administrators rather than of the federal courts."

Thus for the Due Process Clause to apply in the present case the plaintiff class of inmates must have had some kind of liberty entitlement not to be placed in a more restrictive living status, not to be transferred to maximum security penitentiaries for adult offenders, not to be subjected to significant and adverse effects on parole dates, and not to be deprived of privileges. The question is whether the Due Process Clause applied to the interests of the plaintiff class at FCI-Milan.

The Supreme Court in Meachum v. Fano, supra, 427 U.S. at 224, 96 S.Ct. at 2538, rejected the idea that:

". . . any change in the conditions of confinement having a substantial adverse impact on the prisoner involved is sufficient to invoke the protections of the Due Process Clause. The Due Process Clause by its own force forbids the State from convicting any person of crime and depriving him of his liberty without complying fully with the requirements of the Clause. But given...