assuming liberty interest, inmate had procedure in place to challenge report
How later courts described this case
- assuming liberty interest, inmate had procedure in place to challenge report
- calling such an inquiry “fruitless and impossible”
Written by the judges who cited it.
The opinion
WILL, Senior District Judge,
concurring.
I concur with the majority’s disposition of the case but write separately to emphasize that the warden’s discretion to transfer prisoners from one institution to another is not unlimited, as the majority’s opinion seems to suggest.
The majority concludes that section 541.-13 places no “substantive limits upon the Attorney General’s discretion to transfer inmates from one institution to another when the transfer is for disciplinary reasons” and that “[b]ecause no substantive criteria exist to circumscribe the warden’s discretion to designate a transfer as one done for security rather than disciplinary reasons, a hearing is not constitutionally required.” Majority opinion, supra p. 984. Section 541.13(a), however, states that *987 “[i]mposition of a sanction requires that the inmate first is found to have committed a prohibited act,” and that language constitutes a substantive limit on the warden’s discretion. Unless there has been a finding that a prohibited act has been committed, the sanction of a “disciplinary” transfer may not be imposed. To conclude, as the majority does, that because the regulations do not contain an explicit, specific definition for the word “disciplinary,” “no substantive criteria exist to circumscribe the warden’s discretion” in recommending disciplinary transfers, renders section 541.-13(a) meaningless.
As the majority’s opinion points out, in many cases prisoners are transferred for a mixture of disciplinary and security reasons. Nevertheless, to the extent that the transfer is solely or even primarily for disciplinary reasons, section 541.13(a) limits the warden’s discretion sufficiently to create a due process right to a hearing.
It is clear from the record, however, that in this instance Castaneda was transferred primarily, if not entirely, for security reasons. On that basis, I agree, therefore, with the majority that in the case of this nondisciplinary transfer Castaneda was not deprived of liberty without due process of law and did not have a right to a hearing.