Wilwording v. Wyrick, 18049-4.

• Decision Date: 20 November 1975
• Docket Number: No. 18049-4.,18049-4.
• Parties: Alan Daniel WILWORDING, Petitioner, v. Donald W. WYRICK, Warden, Missouri State Penitentiary, Jefferson City, Missouri, Respondent.
• Court: U.S. District Court — Western District of Missouri

405 F. Supp. 447

Alan Daniel WILWORDING, Petitioner, v. Donald W. WYRICK, Warden, Missouri State Penitentiary, Jefferson City, Missouri, Respondent.

No. 18049-4.

United States District Court, W. D. Missouri, W. D.

November 20, 1975.

Thomas Bradshaw, Asst. Fed. Public Defender, Kansas City, Mo., for petitioner.

Paul Otto, Jr., Asst. Atty. Gen., Jefferson City, Mo., for respondent.

FINDINGS, OPINION, AND JUDGMENT GRANTING IN PART AND DENYING IN PART THE PETITION FOR WRIT OF HABEAS CORPUS

ELMO B. HUNTER, District Judge.

Petitioner, Alan Daniel Wilwording, in this petition for federal writ of habeas corpus seeks to challenge the constitutionality of disciplinary procedures affecting him in 1969 and resulting in loss of good time and "blood time" credit on his sentence of 20 years' imprisonment imposed by the Circuit Court of Greene County, Missouri in June 1964. The case is presently before the undersigned Judge upon transfer from Division III of the Court following a remand by the United States Court of Appeals for the Eighth Circuit for an evidentiary hearing on the claims raised in petitioner's application for habeas corpus relief. Wilwording v. Swenson, 502 F.2d 844 (8th Cir. 1974).

The background of this litigation wherein petitioner now seeks the restoration of 66 days good time and 225 days "blood time" which he alleges was unconstitutionally denied him is reported in a series of lengthy opinions by the District Court, the United States Court of Appeals for the Eighth Circuit, and the United States Supreme Court. That history will not be repeated here or interpreted by the undersigned judge as a part of this opinion. The reader is however referred to the following reported and unreported cases for the background and collateral matters to the instant petition for writ of habeas corpus. Wilwording v. Swenson, 439 F.2d 1331 (8th Cir. 1971); Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971); Wilwording v. Swenson, No. 18049-3, Findings, Conclusions and Judgment filed December 4, 1973; Wilwording v. Swenson, 502 F.2d 844 (8th Cir. 1974); see also Wilwording v. Swenson, Civil Actions Nos. 1490 and 1492 (W.D.Mo.1971); see also Wilwording v. Swenson, 326 F.Supp. 1145 (W. D.Mo.1970); Wilwording v. Swenson, 446 F.2d 553 (8th Cir. 1971).

On April 30, 1975, pursuant to the mandate of the United States Court of Appeals for the Eighth Circuit in Wilwording v. Swenson, 502 F.2d 844 (1974), petitioner was granted a full evidentiary hearing as to his claim relating to the loss of good time which allegedly was deprived him by a denial of due process of law. Petitioner was also afforded a hearing on his claim relating to loss of "blood time" allegedly deprived him by the denial of due process.¹ The Court was advised by counsel subsequent to the evidentiary hearing in this cause, that petitioner has been released from the Missouri State Penitentiary on parole. Because the claims herein relate to the duration of petitioner's sentence, the Court does not deem the issues herein to be moot by reason of petitioner's present status as a parolee.

The claims of petitioner in the instant cause as presently asserted by him and as interpreted by the various courts which have considered his claims are as follows:

In connection with petitioner's confinement in maximum security from April 18, 1969 to September 22, 1969 and petitioner's confinement to "J" Hall and maximum security from October 20, 1969 to February 12, 1971, petitioner was not afforded a hearing of any type to determine whether his commitment to maximum security was justified or proper or based on any evidence in violation of petitioner's rights to substantive and procedural due process under the Fourteenth Amendment to the United States Constitution.

As a result of the confinement in maximum security or J-Hall, petitioner was deprived of good time of 3 days per month, was deprived of the opportunity to earn 15 days per month "blood time", and petitioner's institutional record was tainted to effect his parole eligibility consideration.

Prior to the evidentiary hearing in this cause on April 30, 1975, it was stipulated by the parties as follows:

1. That the respondent would not contend that petitioner was foreclosed from raising the claims asserted herein by reason of prior actions brought by petitioner under 42 U.S.C. § 1983.

2. That respondent would not raise the defense of petitioner's failure to exhaust state remedies with respect to his claim that he was denied due process of law in connection with his commitment to maximum security and J-Hall in April and October 1969.

3. That the records of petitioner's commitment to maximum security and J-Hall in April and September of 1969 and the reasons for that commitment are available to the Board of Parole for use in connection with petitioner's parole consideration.

In the instant proceeding, petitioner seeks an adjudication that his constitutional right to procedural and substantive due process was violated by his commitment to administrative segregation in maximum security and J-Hall in April and October 1969. As relief, petitioner seeks the restoration of good time credit for twenty-two months at the rate of 3 days per month, credit for "blood time" of 225 days (15 blood donations), and expungement of his record concerning the disciplinary actions and proceedings which resulted in his commitment to maximum security and J-Hall in April and October, 1969.

The evidence received by the Court at the hearing of this petition reveals the following.

Petitioner, Alan Daniel Wilwording, was confined in the Missouri State Penitentiary in Jefferson City, Missouri prior to 1969 and at all relevant times mentioned herein was a prisoner confined in the Missouri State Penitentiary in Jefferson City, Missouri in the custody of the Warden of that institution.

Just prior to April 18, 1969, Captain Wyrick, who was at that time Administrative Assistant to Warden Harold R. Swenson and responsible for investigation of assaults, murders, and escape attempts occurring at the penitentiary, received information that Alan D. Wilwording, and at least two other inmates were involved in a plot to escape. Upon receipt of this information, and on April 18, 1969, petitioner and the two or three other inmates suspected were immediately placed in the "Administrative Segregation Unit" or maximum security unit of the penitentiary. Petitioner was not afforded notice of the charges or a hearing or appearance of any kind prior to his placement in maximum security on April 18, 1969. However, on April 22, 1969, petitioner was taken before the "Classification Committee" for a proceeding before that board.² Following that proceeding, petitioner was classified to and returned to the maximum security unit of the penitentiary where he remained until September 22, 1969 when he was returned to the general population by the Classification Committee.

On October 11, 1969, a general work strike occurred at the Missouri State Penitentiary. By reason of that strike, and action of the penitentiary administration virtually all work within the penitentiary came to a halt, and the situation at the penitentiary was deemed an emergency.³ In order to determine which inmates actually wished to return to work, the penitentiary administration presented to the inmates a form for their signature which gave the inmate's indication that he wished to continue work. Those inmates who refused to complete that form were considered to be refusing to work and immediately placed in administrative segregation in either the maximum security unit of the penitentiary or in "J-Hall". Petitioner at that time refused to execute the form indicating his willingness to return to work, and on October 20, 1969, he was placed in administrative segregation in J-Hall. Petitioner was not afforded a hearing or appearance prior to placement in J-Hall on October 20, 1969. On November 5th he was moved from J-Hall to the maximum security unit at the penitentiary.

On November 10, 1969, petitioner was taken before the "Classification Committee," and following the proceeding before that committee, petitioner was "classified" to administrative segregation in the maximum security unit where he remained until May 12, 1970, when he was returned to the administrative segregation unit in J-Hall. Petitioner was released from J-Hall to the general population on February 12, 1971.

Prior to his placement in administrative segregation on April 18, 1969 and October 20, 1969, petitioner was earning administrative good time credit at the rate of 8 days per month. During his confinement in administrative segregation from April 18, 1969 until September 22, 1969 and from October 22, 1969 until February 12, 1971 petitioner earned administrative good time at the rate of 5 days per month. Prior to his confinement to administrative segregation on both occasions, petitioner was within that class of prisoners who were permitted to donate blood twice per year to the Red Cross and at any other time that the prisoner's particular type of blood was needed by local hospitals, other prisoners, or patients in Missouri State Hospital at Fulton, Missouri, although prisoners were not ordinarily permitted to give blood more than once every 30 days. Inmates were awarded 15 days credit on their sentence for each blood donation. While confined in administrative segregation, petitioner was not within the class of inmates permitted to donate blood or receive credit for donations.

This cause has been remanded by the Court of Appeals for a determination of whether petitioner was afforded constitutionally required procedural and substantive due process in connection with the disciplinary action which resulted in his placement in administrative segregation and the loss of good time in April and October of the year 1969. Thus the primary issues involved herein center on the events which occurred immediately prior to and...