# John Wesley Clutchette v. Raymond J. Procunier

> Court of Appeals for the Ninth Circuit · July 29, 1974 · 497 F.2d 809

URL: https://www.frixlaw.com/law-library/cases/9460652

## Case

- **Full name:** John Wesley CLUTCHETTE Et Al., Plaintiffs-Appellees, v. Raymond J. PROCUNIER Et Al., Defendants-Appellants
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** July 29, 1974
- **Citations:** 497 F.2d 809
- **Precedential status:** Published
- **Opinion:** Concurrence by Kilkenny
- **Judges:** Tuttle, Hufstedler, Kilkenny
- **Cited by:** 70 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed on other grounds by Baxter v. Palmigiano, 425 U.S. 308 (1976).
- Negative treatments: 2
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9460652

## Opinion text

KILKENNY, Circuit Judge
(concurring and dissenting):
I agree with the majority’s treatment of the three-judge issue, but I do not condone the strictures placed by the majority on the overall impact of Preiser v. Rodriguez, 411 U.S. 475 , 93 S.Ct. 1827 , 36 L.Ed.2d 439 (1973), in connection with the exhaustion of state remedies.
Utilizing Wilwording v. Swenson, 404 U.S. 249 , 92 S.Ct. 407 , 30 L.Ed.2d 418 (1971), in support of jurisdiction, the majority incorrectly says: “. . . Plaintiffs attack neither the fact nor the duration of their confinement.” The inaccuracy of this statement is demonstrated by the following quotation from Clutchette’s amended complaint:
“In addition to the above punishments imposed upon plaintiff CLUTCHETTE by the disciplinary committee, the action of the disciplinary committee will be referred by defendants to the California Adult Authority, which under California law is charged with the responsibility of setting plaintiff’s sentence and term of imprisonment and determining whether plaintiff should be released on parole. Resolution No. 216 (6/5/64) of the Adult Authority requires that a report of all disciplinary actions involving an inmate be presented to the Adult Authority at the time when the Adult Authority considers the fixing of the sentence and parole date. On information and belief, the Adult Authority takes into consideration and *825 views unfavorably disciplinary records of the kind involved in plaintiff’s case. Therefore, the action of the disciplinary committee in finding plaintiff guilty of misconduct and imposing serious punishment may seriously prolong plaintiffs actual term of imprisonment.” [Emphasis supplied]
Paragraph (c) of the prayer requests the following relief:
“(c) A preliminary and permanent injunction setting aside the disciplinary actions taken against plaintiff CLUTCHETTE on November 20, 1970, and against plaintiff JACKSON on November 25, 1970, expunging such actions from defendants’ records, restraining defendants from reporting such actions to the Adult Authority and reinstating plaintiffs’ normal prison privileges;”. [Emphasis supplied]
Jackson makes precisely the same charges.
That the duration of appellees’ imprisonment is at stake is made clear by the findings of the trial judge from which I quote:
“Needless to say, an inmate’s prison behavior is a key factor in the Adult Authority’s decision making process. Currently, Resolution No. 216 (6/5/64) of the Adult Authority requires that a report of all disciplinary actions be presented to the Adult Authority at the time it considers the fixing of sentence and parole date. While a disciplinary proceeding cannot result in loss of good-time credits — • since there are no good-time credits in California due to the internal inconsistency of earning credits against an indeterminate sentence — it is obvious that disciplinary action taken against a prisoner and reported to the Adult Authority can and does have an adverse effect on the length of his sentence, parallel to the loss of good-time credits in other jurisdictions.
“If the disciplinary committee finds an inmate guilty of a disciplinary offense occurring after the Adult Authority has set his sentence and parole date, the offense must be reported to the Adult Authority for immediate action. A single disciplinary offense is sufficient cause for the Adult Authority to rescind the parole release order and reset the prisoner’s sentence at the statutory maximum, and the disciplinary committee is authorized to recommend that the Adult Authority rescind the parole date.” 328 F.Supp. 767, 777 (N.D.Cal.1971). [Emphasis supplied]
Following through on these findings of fact, the lower court, as part and parcel of its judgment, declared:
“4. The decisions of the disciplinary committee in the disciplinary hearings of the named plaintiffs, Clutchette and Jackson, are set aside, and, said plaintiffs shall be restored to the status of confinement they enjoyed prior to the institution of such proceedings, and such decisions shall be expunged from all their records, and shall not be referred to the Adult Authority,”. 328 F.Supp. 784 (N.D.Cal.1971). [Emphasis supplied]
In light of appellees’ complaint, and the court’s findings, I would hold that Rodriguez, supra, is controlling and that appellees should be required to exhaust their state remedies before resorting to other relief. I speak to the merits only under the compulsion of the majority holding that appellees need not exhaust their state remedies.
ON THE MERITS
At the outset, we must recognize the fundamental difference between a normal society and a society within prison walls. The absolute necessity of strict security and discipline, with its troublesome, but unavoidable, restraint on an inmate’s freedom to act, is a controlling principle of safe and efficient prison administration. The inherent characteristics of a prison community are such that prison officers, such as here, must make prompt decisions as problems confront them, and this governmental interest in maintaining disciplined order in the prison far outweighs the individual interest in perfect justice. Here, the offi *826 cers were faced with two defiant prisoners who refused to obey orders. The confrontation turned the prison visiting room into a bloody battleground, in which Clutchette assaulted one of the officers with the leg of a broken chair and, in turn, was placed in handcuffs. In these circumstances, due process is highly flexible and calls for only those procedural protections which the situation suggests.
I will respond to the contentions of the majority in the order in which they are set forth in the opinion.
NOTICE
Before us are the written institutional guidelines and procedures to be followed by the officers of the institution in disciplinary matters. First, there is the detailed code of rules of the Director of Corrections and of the Wardens and Superintendents of the State of California Prison System. Within this Code are the specific rules guiding the officers of San Quentin Prison in the administration of inmate discipline. Second, there is the San Quentin Prison Institution Plan for the Administration of Inmate Discipline. This Plan is divided into four specific chapters consisting of: (I) general introduction, (II) administrative policies and responsibilities, (III) operating procedures with reference to inmate discipline, and (IV) disciplinary unit operations. Section ID-II-OI provides that: “. . . when the conduct of an inmate results in a serious violation of the rules, or of the law, . . . ” it is the duty of the employee having knowledge of the violation to immediately report the facts in writing on a Form CDC-115. 1 This Form, “Report of Vio *827 lation of Institution Rules”, sets forth the facts which form the basis for the purported violations. The Form, after completion, is forwarded to the writer’s (officer who submitted the Form) “area supervisor” for screening. If the supervising officer concludes that the charge is legitimate, and the report is properly prepared, the supervisor will indicate approval by initialing the Form, and will then forward it to the Custody Officer for scheduling on the appropriate Hearing Court Docket.
To be complete, the Form must set forth the nature of the violation, when it occurred, where it occurred, and who committed the violation. The attached supplemental reports mentioned on the face of the Form were introduced in evidence as appellant’s Exhibit One. These reports were prepared by correctional officers who either participated in the struggle, or witnessed the incident in the visiting room.
The Form is not given to the inmate, but the charges set forth therein are read to him within twenty-four hours of the infraction, and again at the hearing. In the instant case, both the Form, and portions of the supplemental reports attached thereto, were read to Clutchette *828 at the hearing. Additionally, when an inmate commits an infraction sufficient to warrant an appearance before the disciplinary committee, a CDC Form 263, 2 or “Notice of Complaint”, is prepared. This Notice must contain the inmate’s name and number, the probable date of appearance before the disciplinary committee, and the charge. The Notice is read to the inmate prior to the hearing, and in accordance with prison rules must be completed in duplicate with the *829 original going to the inmate for his signature. In the instant case, the. Notice introduced in evidence was in blank. However, appellees’ only witness testified that the Notice contained the violations in language similar to that used on the Form CDC-115. It is noteworthy that appellees’ sole witness testified that the Notice was tendered to Clutchette for his signature, but Clutchette refused to sign it.
Even conceding, which I do not, that the rights of an inmate in prison are precisely the same as the rights of a parolee at liberty, as those rights are enunciated in Morrissey v. Brewer, 408 U.S. 471 , 92 S.Ct. 2593 , 33 L.Ed.2d 484 (1972), I would hold that the disciplinary notice requirements of the San Quentin Prison, as previously outlined, are constitutionally adequate and that we should not force upon the warden a set of guidelines which could seriously impair the effectiveness which inheres in prompt prison disciplinary proceedings.
RIGHT TO BE HEARD AND TO PRESENT WITNESSES
I am unable to find anything in the regulations which would prevent inmates from testifying, or from calling witnesses in their own behalf. True enough, a prison official testified that an inmate is not allowed to call witnesses. If this be the fact, the procedure should be changed. To this extent, I concur in the opinion of the majority. However, I do not believe that an inmate is entitled to call, for the purpose of confrontation and cross-examination, the persons who filed charges against him. This subject will be discussed under the next heading.
RIGHT TO CONFRONTATION AND CROSS-EXAMINATION
One of the most controversial questions in the field of prisoners’ rights is whether inmates should be permitted to confront and cross-examine the person making the charge against them. A good many courts and commentators, in weighing the interest of the inmate against that of prison administration, have concluded that the prison’s interest in security must yield to the inmate’s right to confront and question his accusers. Cases along this line are cited in the majority opinion. In general, I would say that the state’s interest in prompt, decisive action decidedly outweighs the individual inmate’s interest in cross-examining the superintendent, the guard, or the fellow prisoner who might have made the charge against him. This is particularly true where, under the regulations, there is no prohibition against the inmate calling witnesses and testifying in his own behalf. Such a confrontation would inevitably go beyond the usual consequences of a cross-examination in court. The imposition of the right to confrontation would lead to a chaotic procedure where in every instance of discipline the inmate would insist on confronting his accuser. It is only in rare cases that even a parolee is entitled to the additional procedural safeguard of the right to confront witnesses and in those special instances the burden is on the parolee to allege facts demonstrating that the failure to provide this procedural safeguard is, under the circumstances of his case, an essential element'of due process. Dennis v. California Adult Authority, 456 F.2d 1240 (CA9 1972).
If it is only in exceptional cases that a parolee is entitled to confront his accusers, then, beyond question, it is only in very exceptional cases that an inmate in a prison may be accorded such a right. I would not grant a wholesale right of cross-examination and confrontation to inmates, but would limit the right to those cases where the loss to the inmate might be “severe” or “grievous”. Here, I would say that the charges against appellees were ‘“grievous” and that under these circumstances, they should have been allowed to confront their accusers. Generally, Meyers v. Alldredge, Warden, 492 F.2d 296 (CA3 1974), is in support. *830 of these views. Moreover, except in the most unusual cases, the prison authorities should not be compelled to identify other prison inmates who supplied information as to the conduct of the accused. Such a disclosure, in all probability, would lead to reprisals against those assisting in prison discipline and in such cases the safety of the cooperating inmates far outweighs any alleged right of the accused to confrontation and cross-examination. This flow of valuable information would cease if the accused had the rights suggested by the majority. The evidence contained in the written statements and considered by the committee should be likened to the statements in a pre-sentence report considered by the sentencing judge, Cf. United States v. Weston, 448 F.2d 626, 633 (CA9 1971), cert. denied, 404 U.S. 1061 , 92 S.Ct. 748 , 30 L.Ed.2d 749 (1972). The majority would give an inmate greater rights than those of a defendant prior to sentencing.
A “NEUTRAL AND DETACHED” HEARING BODY
To the extent that an inmate, prior to the imposition of sanctions, has a right to be heard by an impartial disciplinary committee, I concur with the majority. However, I am not convinced that a member of the disciplinary committee should be barred from sitting merely because he participated in the case in an investigatory capacity or because he might have some knowledge of the material facts relating to the inmate’s involvement. The promulgation and enforcement of such a rule would paralyze the execution of prison disciplinary procedures. It is probably seldom, if at all, that the facts in a major or “severe” prison disturbance are not broadcast, by underground or otherwise, to the entire prison population. Consequently, most, if not all, of the prison officials would have some knowledge of the affair. The enforcement of such a rule would be akin to preventing a judge from testifying in a case in which he was presiding. Needless to say, there is no such rule. Of course, a member of the disciplinary committee with knowledge of the facts outside of the record as presented, should not take those facts into consideration in the decisional process. Here, the record shows that a member of the disciplinary board arrived on the scene of the incident a short time after it occurred. Thereafter, he observed the appellees being restrained with handcuffs. There is nothing whatsoever in his report that would indicate he in any way participated in the investigation or had any knowledge of the incident other than to say that Clutchette allowed examination of the cut on his head and refused medical aid. Nothing in the record even suggests that this member of the committee had any inside knowledge of the occurrence. Therefore, I would hold that the disciplinary committee was constitutionally constituted.
A DECISION BASED ON THE EVIDENCE PRESENTED
I concur in the majority’s view that the decision of a disciplinary committee must be based on the evidence presented at the hearing and that it should state briefly the reasons for its decision. However, I would not require the committee to recite the evidence on which it relied in reaching its decision.
RIGHT TO COUNSEL
I have already expressed myself on this subject in my dissent in Palmigiano v. Baxter, 487 F.2d 1280 (CA1 1973), and I find nothing in the observations of the majority to change my views. The presence of counsel at hearings in prison disciplinary proceedings would create havoc. Counsel’s presence would be meaningless unless they could participate in the proceedings. If, as I said in Palmigiano , a defendant under indictment for the major crime of bank robbery, is not entitled to the presence of counsel during a display of photographs arranged for the specific purpose of *831 identification, I cannot bring myself to believe that a prison inmate, with very limited rights, is constitutionally entitled to counsel at a disciplinary hearing, even though the hearing might result in “severe” or “grievous” loss to the inmate. Always to be kept in mind is the fact that a prison disciplinary proceeding is not to be equated with a criminal trial.
An inmate is charged with a violation of a disciplinary rule, not with a criminal offense. The charge might incidentally involve a crime under state or federal law, but a finding of guilt in the disciplinary action would in no way affect the inmate’s rights in a criminal action growing out of the controversy. The majority’s reliance on Mathis v. United States, 391 U.S. 1 , 88 S.Ct. 1503 , 20 L.Ed.2d 381 (1968), is completely misplaced. The distinction between our case and Mathis is readily apparent. There, although the defendant was in custody, he was only a suspect and was entitled to his full constitutional rights. Here, as everyone concedes, the inmates' constitutional rights were severely narrowed upon their conviction and imprisonment. By strong implication United States ex rel. Miller v. Twomey, 479 F.2d 701, 715-716 (CA7 1973), supports my view. Meyers v. Alldredge, supra, is directly in point and holds that inmates are not entitled to counsel in prison disciplinary proceedings. In Meyers, the court said:
“The need for legal skills is less acute at a prison hearing, where there are no formal evidentiary rules, and the interjection of counsel in prison disciplinary hearings would severely conflict with and undermine the prison administration’s interest in summary disposition of disciplinary matters.” At 309.
What was said in Mathis in connection with the right to counsel has no application to our factual background.
The majority proposal that disciplinary proceedings be postponed until after criminal actions have been completed in the courts would be impossible of fulfillment in the atmosphere of a prison where maximum security is required. The postponement suggestion is even more unique than the “use immunity” proposal outlined in Palmigiano v. Baxter, supra. The only alternative to postponement offered by the majority is that the accused inmate be provided with an attorney under Miranda guidelines. I cannot accept either proposal.
The trial in the lower court was at best a bobtailed affair. There never was a trial on the merits unless it can be said that the hearing on the application for a preliminary injunction took the place of a full-fledged trial. As the record now stands, it is next to impossible to decide the precise procedures followed in this case. Appellees called the only witness, an official in the San Quentin system. A trial on the merits in the state court would certainly clear the atmosphere and give the courts a solid ground on which to base a ruling. Despite appellees’ argument that appellants waived their right to a trial on the merits, as provided for in Rule 65(a)(2), F.R.Civ.P., I believe such a trial would give a court a much clearer picture of what occurs in disciplinary proceedings in San Quentin.
CONCLUSION
Since appellees made no attempt to exhaust their state remedies, I would reverse and give the state courts an opportunity to judicially examine, in a full blown trial, the constitutionality of the prison rules and of the procedures utilized to enforce them.
DEPARTMENT OF CORRECTIONS REPORT OF VIOLATION OF INSTITUTION RULES
*827
. NOTICE OF COMPLAINT

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9460652. Public record. Not legal advice.