Walker v. Hughes

EDWARDS, Circuit Judge,

dissenting.

Respectfully I dissent. This is a class action brought by certain federal prisoners at the Federal Correctional Institution at Milan, Michigan, alleging that they had been denied due process in various aspects of the prison’s disciplinary procedures. Much water has flowed under many bridges since the action was originally filed. Initially, after the District Court granted relief by Opinion and Order dated January 24, 1974, this court remanded the case for reconsideration in the light of Wolff v. McDonnell, 418 U.S. 539 , 94 S.Ct. 2963 , 41 L.Ed.2d 935 (1974), which had been decided in the meantime on June 26, 1974. On remand the District Judge again entered judgment for plaintiffs. See Walker v. Hughes, 386 F.Supp. 32 (E.D.Mich.1974).

Subsequent thereto the Supreme Court decided at least three cases which served to restrict Wolff and its predecessor, Morrissey v. Brewer, 408 U.S. 471 , 92 S.Ct. 2593 , 33 L.Ed.2d 484 (1972). See Montanye v. Haymes, 427 U.S. 236 , 96 S.Ct. 2543 , 49 L.Ed.2d 466 (1976); Meachum v. Fano, 427 U.S. 215 , 96 S.Ct. 2532 , 49 L.Ed.2d 451 (1976), and Baxter v. Palmigiano, 425 U.S. 308 , 96 S.Ct. 1551 , 47 L.Ed.2d 810 (1976).

Over and above the Supreme Court’s activity, we are informed that the Federal Bureau of Prisons has inaugurated a completely new system for grievance handling which is now in effect at Milan. This being so, little if anything remains of the original disputes except those instances where the District Court found that segregation orders for serious misconduct had been entered without minimal due process procedures.

I agree with the majority that the cases cited above require vacation of the District Judge’s order. Contrary to the majority opinion, however, I would affirm the District Judge’s holding that, absent emergency circumstances, a minimal due process hearing (restated to accord with both Wolff and Palmigiano) must be provided when a prisoner is placed in segregation. See Wolff v. McDonnell, supra, 418 U.S. at 571 -72 n. 19, 94 S.Ct. 2963 . As to the remainder of the District Judge’s order, I would simply remand for reconsideration in the light of the Meachum, Montanye, and Palmigiano cases.

The District Judge should be able to recognize the impact of these cases. In this record we face no time requirement. Nor is there need to deal with any special circumstances in application of the Supreme Court rulings. Nor is there any demonstrated District Court reluctance to apply the Supreme Court holdings. As a matter of comity between this court and the District Court, I feel we should, under such circumstances, give the District Court the opportunity to adjust to the newly declared Supreme Court case law.

Additionally, I find difficulty in joining the majority’s lengthy paraphrase of the Supreme Court’s rationale in Meachum, Montanye, and Palmigiano . It is, of course, the language of those cases and not our paraphrase which controls. If we assume a need for some discussion, I believe there should be specific recognition that our American form of government is based upon the concept that all citizens are “endowed by their Creator” with “unalienable rights” to “liberty,” that the United States Constitution was drafted in large measure to “secure” (not to create) those rights, and that even where a citizen has lawfully been deprived of liberty as a result of criminal conviction and sentence, the Constitution follows him within penitentiary walls. See Haines v. Kerner, 404 U.S. 519 , 92 S.Ct. 594 , 30 L.Ed.2d 652 (1972); Johnson v. Avery, *1262 393 U.S. 483 , 89 S.Ct. 747 , 21 L.Ed.2d 718 (1969); Wolff v. McDonnell, supra; Bounds v. Smith, 430 U.S. 817 , 97 S.Ct. 1491 , 52 L.Ed.2d 72 (1977). See also Ingraham v. Wright, 430 U.S. 651 , 97 S.Ct. 1401 , 51 L.Ed.2d 711 (1977).

In Wolff , the Supreme Court took pains to make the point that “liberty interests” in penal confinement are not rationed solely at the whim of prison officials:

There is no iron curtain drawn between the Constitution and the prisons of this country. Prisoners have been held to enjoy substantial religious freedom under the First and Fourteenth Amendments. Cruz v. Beto, 405 U.S. 319 [ 92 S.Ct. 1079 , 31 L.Ed.2d 263 ] (1972); Cooper v. Pate, 378 U.S. 546 [ 84 S.Ct. 1733 , 12 L.Ed.2d 1030 ] (1964). They retain right of access to the courts. Younger v. Gilmore, 404 U.S. 15 [ 92 S.Ct. 250 , 30 L.Ed.2d 142 ] (1971) , aff’g Gilmore v. Lynch, 319 F.Supp. 105 (NDCal.1970); Johnson v. Avery, 393 U.S. 483 [ 89 S.Ct. 747 , 21 L.Ed.2d 718 ] (1969); Ex parte Hull, 312 U.S. 546 [ 61 S.Ct. 640 , 85 L.Ed. 1034 ] (1941). Prisoners are protected under the Equal Protection Clause of the Fourteenth Amendment from invidious discrimination based on race. Lee v. Washington, 390 U.S. 333 [ 88 S.Ct. 994 , 19 L.Ed.2d 1212 ] (1968). Prisoners may also claim the protections of the Due Process Clause. They may not be deprived of life, liberty, or property without due process of law. Haines v. Kerner, 404 U.S. 519 [ 92 S.Ct. 594 , 30 L.Ed.2d 652 ] (1972) ; Wilwording v. Swenson, 404 U.S. 249 [ 92 S.Ct. 407 , 30 L.Ed.2d 418 ] (1971); Screws v. United States, 325 U.S. 91 [ 65 S.Ct. 1031 , 89 L.Ed. 1495 ] (1945).

Of course, as we have indicated, the fact that prisoners retain rights under the Due Process Clause in no way implies that these rights are not subject to restrictions imposed by the nature of the regime to which they have been lawfully committed. Cf. CSC v. Letter Carriers, 413 U.S. 548 [ 93 S.Ct. 2880 , 37 L.Ed.2d 796 ] (1973); Broadrick v. Oklahoma, 413 U.S. 601 [ 93 S.Ct. 2908 , 37 L.Ed.2d 830 ] (1973); Parker v. Levy, 417 U.S. 733 [ 94 S.Ct. 2547 , 41 L.Ed.2d 439 ] (1974). Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply. Cf. Morrissey v. Brewer, 408 U.S., at 488 [ 92 S.Ct. 2593 ]. In sum, there must be mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application.

Wolff v. McDonnell, supra, 418 U.S. at 555-56 , 94 S.Ct. at 2974 . See also Meachum v. Fano, supra, 427 U.S. at 224, 96 S.Ct. 2532 .