Jermosen v. Smith

OAKES, Chief Judge,

dissenting:

In connection with a February 1982 Attica Adjustment Committee Hearing, Donald R. Jermosen was denied his procedural rights under Wolff v. McDonnell, 418 U.S. 539 , 94 S.Ct. 2963 (1974). At that time, this court had already held that keeplocks of the nature ordered in Jermosen’s case provide the predicate for recognition of due process rights under Wolff See Powell v. Ward, 643 F.2d 924, 927-28, 932 (2d Cir.) (per curiam), cert. denied, 454 U.S. 832 , 102 S.Ct. 131 , 70 L.Ed.2d 111 (1981). Thus, Donald Jermosen’s Wolff procedural rights were sufficiently well-established as of his Adjustment Committee hearing to overcome the defendants’ claim of qualified immunity.

On February 19, 1982, Donald Jermosen became involved in an “incident” in the Attica Prison mess hall. According to Jer-mosen, a guard approached him for putting milk in his coffee (a customary practice among the inmates) in violation of prison rules. The guard, in contrast, claimed that Jermosen disobeyed an order not to return for a second cup of milk. Whether either Jermosen or the guard properly characterized the situation is irrelevant; the question at hand is whether the Adjustment Committee accorded Jermosen his well-established due process rights under the Fourteenth Amendment.

Wolff v. McDonnell established the principle that, in an intraprison disciplinary action in which a substantial deprivation of rights may be imposed, the Due Process Clause of the Fourteenth Amendment requires, inter alia, written notice of the charges twenty-four hours prior to the hearing and “a ‘written statement by the factfinders as to the evidence relied on and reasons’ for the disciplinary action.” 418 U.S. at 564 , 94 S.Ct. at 2978 -2979 (quoting Morrissey v. Brewer, 408 U.S. 471, 489 , 92 S.Ct. 2593, 2604 (1972)). The precise issue before this court is whether the right to Wolff procedures, in proceedings in which a maximum of one week of keeplock could be imposed, was sufficiently well-established on the date of Donald Jermosen’s hearing *553 to overcome the qualified immunity accorded prison officials.

In McKinnon v. Patterson, 568 F.2d 930 (2d Cir.1977), cert. denied, 434 U.S. 1087 , 98 S.Ct. 1282 , 55 L.Ed.2d 792 (1978), Judge Timbers spoke to this issue, holding, in no uncertain terms, that Wolff rights applied to the fourteen-day keeplocks that an Adjustment Committee could impose under New York correctional regulations in force at the time:

We conclude that keeplock is not significantly different from the other forms of punishment which we have held to constitute substantial deprivations. Accordingly we hold that the imposition of keep-lock by the Adjustment Committee must be pursuant to a hearing with minimal due process safeguards.

568 F.2d at 938 . Subsequently, in 1980, the state promulgated new regulations limiting to seven days the maximum keeplock term that might be imposed by an Adjustment Committee. See 7 N.Y.C.R.R. § 252.5(e)(2) (1980).

Although in McKinnon we ruled only on the fourteen-day maximum keeplock term, I believe our reasoning foreshadowed a ruling on terms of less than two weeks. Yet I need not navigate solely on the basis of the reasoning in McKinnon . In Powell v. Ward, 487 F.Supp. 917 (S.D.N.Y.1980), aff'd as modified, 643 F.2d 924 (2d Cir.), cert. denied, 454 U.S. 832 , 102 S.Ct. 131 , 70 L.Ed.2d 111 (1981), a class action involving the applicability of Wo Iff procedural protections at Bedford Hills Correctional Facility, 1 Judge Stewart held that “keeplock is clearly included in the language and spirit of [this] order.” Powell, 487 F.Supp. at 925 . He went on, in a footnote, to elaborate on what was meant by the inclusion of keeplock in the order: “In our view, the possibility that the Adjustment Committee can impose one week of keeplock or detain an inmate in the Special Housing Unit pending a determination of the Superintendent’s Proceeding warrants the application of Wolff v. McDonnell, to Adjustment Committee Proceedings.” 2

That case was appealed to our court and we affirmed, modifying the district court’s order only insofar as it related to the dates after which records of disciplinary proceedings were to be expunged. Powell, 643 F.2d at 927, 934. We termed the argument that the original order did not include Adjustment Committee Proceedings as one “borderpng] on the frivolous,” id. at 932, and made it very clear that we recognized that the district court’s holding was directed to “any of the various ‘special’ confinements.” Id. at 927 (emphasis added). The phrase “special confinements” was defined to encompass the imposition of keeplock by an Adjustment Committee, id. at 927-28 & 928 nn. 2 & 4, a punishment which the court labeled “as severe a form of discipline as the other special confinements and potentially even more severe.” Id. at 928 n. 4. The court specifically noted that recent amendments to the New York regulations had reduced the maximum period of keeplock to seven days. 3

*554 But the analysis cannot, of course, end here. Even if the Constitution required Wolff procedures, the issue of qualified immunity requires an additional inquiry as to whether Powell and McKinnon established sufficiently the contours of a prisoner’s constitutional right to these procedures such that a reasonable prison official would have understood that denying Jermosen these procedures violated his Due Process rights. See Anderson v. Creighton, 483 U.S. 635, 640 , 107 S.Ct. 3034, 3039 (1987). The panel majority denies that the applicability of Wolff was apparent, arguing instead that the weight of Powell can be avoided because it was a case from the Southern District without circuit-wide import. I am not at all persuaded by this argument. In our affirmance of the Powell district court in 1981 — almost one year prior to Jermosen’s Adjustment Committee hearing — we made explicit reference to the applicability of Wolff to keeplock imposed by an Adjustment Committee under the new state limitations. Powell, 643 F.2d at 928 & n. 2. Thus, before Jermosen’s case arose, there existed a clear constitutional right to Wolff procedures for the imposition of seven-days’ keeplock. 4 To hold otherwise stretches the shield of qualified immunity to the proportions of absolute immunity.

Moreover, the crowning irony of this case is that the panel majority grants the defendants immunity when — as defendants James and Lippold testified, Transcript at 244, 309, 331-32 — the new regulations limiting keeplock to a seven-day maximum, 7 N.Y.C.R.R. § 252.5(e)(2), had not been implemented at Attica by February 1982, almost two years after their promulgation. The defendants operated under the mistaken impression that Attica Adjustment Committees could impose as much as fourteen days of keeplock. Yet in McKinnon we held, almost six years prior to Jermosen’s Adjustment Committee hearing, that when a prisoner faced the threat of fourteen days of keeplock, the prisoner must be accorded Wolff rights. 568 F.2d at 938-39 . Thus, the correction officers failed to act in accordance with what they thought the keeplock regulations to be, and are permitted by the panel majority to hide behind what the regulations were.in fact. Today’s decision sends the unfortunate message that ignorance of the Constitution will be rewarded.

Accordingly, I dissent.

. The order granting class certification and imposing Wolff procedural requirements on the Adjustment Committee had been appealed only as to the time an inmate would be held in segregation pending investigation and the membership of the panels in Adjustment Committee and Superintendent's Proceedings. See Powell v. Ward, 542 F.2d 101 (2d Cir.1976).

. Id. at 925 n. 8. Judge Stewart also found that the failure to complete hearings within seven days of the inmate’s confinement violated that part of the previous order (as modified by the court of appeals) requiring a hearing to be held within seven days of confinement to Special Housing or segregation pending investigation. Id. at 931-32.

. Id. at 928 n. 2. The court went on to say:

If, as defendants would have us believe, Adjustment Committees do not have the power to order solitary confinement or the like (so that the 1975 Order perhaps should not have applied to Adjustment Committees), their appropriate remedies were to appeal this portion of the 1975 Order, which they did not do, or to seek modification of the Order in the district court, which they have not done. Perhaps the reason they did neither is that in fact Adjustment Committees in 1975 had the power to order a keeplock for up to two weeks, and currently has the power to order such confinement for up to seven days. The district court noted that a keeplock is sometimes even more restrictive than confinement in a Special Housing Unit, and this Court [in McKinnon] had held that such keeplocks provide the necessary predicate for recognition of *554 due process rights under McDonnell . In any event, the application of the 1975 Order to Adjustment Committee Proceedings is clear and unqualified.

Id. at 932 (footnotes and citations omitted).

. The panel majority cites McCann v. Coughlin, 698 F.2d 112 (2d Cir.1983), for the proposition that “Wolffs applicability to proceedings involving penalties of up to one week of keeplock was far from clearly established at the time Jermo-sen’s hearing was held.” Opinion at 551. I believe this to be a misinterpretation of McCann .

McCann concerned an incident that took place in 1979, prior to our decision in Powell, when the state fourteen-day limit on keeplock still applied. Although the Fishkill Correctional Center Adjustment Committee made a practice of limiting the imposition of keeplock in a Special Housing Unit to seven days, the Committee would impose successive seven-day sentences. McCann, 698 F.2d at 121 . Accordingly, we held that such a practice "place[d] the Committee's action squarely within our decision in McKin-non.” Id. On this basis, we affirmed the district court’s denial of qualified immunity to prison officials. Id. at 125 . Although the panel majority reads significance into McCann's absence of references to Powell (and the applicability of Wolff to the new seven-day keeplock maximum), such references would have been inappropriate, given the date of the McCann incident.

The panel majority’s reasoning also rests on a footnote in Sher v. Coughlin, 739 F.2d 77 , 81 n. 2 (2d Cir.1984), stating that Wolff procedures apply "when the possible sanctions are of a gravity that includes restrictive confinement for up to fourteen days. See McCann v. Coughlin, supra, 698 F.2d at 121 .” Id. As the citation within the quote indicates, in the Sher footnote we were merely reporting the holding in McCann . Furthermore, because the incident that provided the basis of the Sher suit occurred early in 1980, our holding in Powell would not have been relevant to the decision.