Petition — Richardson v. Lokey

_—

Supreme Court, U. &

Dd

wrt? 6 1976

MICHAEL ROUAK, JR, cieeK |

ae Se see

Iu the Supreme

OF THE

Rnited States - |

Ocroner Tera, bot

No. 75-1116

sSevatror H. L. Rrewarpson, et al.

Petitioners,

Vs,

orn LOKEY,

Respondent,

PETITION FOR A WRIT OF CERTIORARI

to the United States Court ui Appeals

for the Ninth Circuit

EveLLeE J. YOUNGER,

Attorney General State of Calitorn

Jack R. WINKLER,

ee af Assistant Atte ney CTL of

~riminal Divisior

kpwakp P. O'BRIEN,

Assistant Attorney Genera

Deranp KE. GRANBERG,

LON .PACOBSON,

leputy Attorney Genera

45000 State Building

san Francisco California 9410)

‘phone: (415) 557.1916

Atlorneys for Petitioners.

PERNAU . WALSH PRINTING CO 562 MISSION STREET . SAN FRANCISCO CA 94105

Page

BD UD a. ndcduweube obdu dean necscusbancenaneesuaes 1

EE c. . nnanagkdadcanes cekwes sous caneneen dies 2

ee SD bcs. Se acuegnn GaseeSebensaaneeennaces 2

NE Gr OU No ve oc cnt ok cA ededen eee Miabenaul 3

EE Or CE Ces ovevena ee ei nbhaeu dena ened anses t

Beemmems Gor eyatiins Che WHEE onc cc cccccccccccscececccses 5

SE 6 Catareadninaehoednssd05600sseenebesseeutweuis 8

A person committed to a California state prison upon

his conviction of a crime has no liberty or property

interest in any particular custody classification or the

privileges which may be attendant thereto .......... 8

A. The liberty interest question ................5. 8

B. The property interest question ................ 11

If

The Ninth Cireuit’s opinion conflicts with other opinions

from that cireuit and with those of this court, because

assuming a liberty interest then existed, it applied due

process hearing requirements to a 1972 deprivation.. 12

III

The federal courts do not have jurisdiction under the

Civil Rights Act to entertain respondent’s claim that

he is unlawfully confined within the security fence

because that relief may be obtained only by a peti-

ee Se es SE oo nk ddadecedeekudecssteskos 14

SFE OEE OEE POL POLE OO EET TDL RAE Pe 17

Table of Authorities Cited

Cases Pages

Board of Regents v. Roth, 408 U.S. 564 (1972) ......... 8,9, 11

Cafeteria Workers v. McElroy, 367 U.S. 886 (1961) ...... 8

Clutechette v. Procunier, 497 F.2d 809 (9th Cir. 1974),

modified on rehearing, 510 F.2d 613 (1975), cert. granted,

ee Es eee Cole eee iad ceuinaendtes 13

In re Lokey, 64 Cal.2d 626, 51 Cal. Rptr. 266 (1966) .... 4

Johnson v. Avery, 393 U.S. 483 (1969) ...............:. 15

Jones v. Cunningham, 371 U.S. 236 (1962) ............. 15

Meachum v. Fano, No. 75-252, cert. granted 44 U.S.L.Wk.

BS Sere ere rere OP ee Cer err ee 2

Montanye v. Haymes, No. 74-520 (cert. granted 43 U.S.

Rs em, See CUR Same BE, BOGE) cvicccccccccsscccess 2,10

Morissey vy. Brewer, 408 U.S. 471 (1972) ............... 9, 15

Preiser v. Rodriguez, 411 U.S. 475 (1973) ............ 9,15, 16

Wheeler vy. Procunier, 508 F.2d 888 (9th Cir. 1974) ...... 13, 14

Wolff v. MeDonnell, 418 U.S. 539 (1974) ..7,9, 10,11, 13, 14, 16

Codes

California Penal Code:

REED cn5.065.05 5440 RCKGOC NDE CRE be ee bheanenes 4

EE ote EUs e kk tse eke NASeRKekane 4

oe as co each dees Nac ck de hea dienwnees 12

EE co Cok UChnwuNiiee 6060 ok s0%anecesene’ 12

Mg c.5 5 eh dne 60s ONS 6s Stn teu ne cioeKecneees 12

Constitutions

United States Constitution, Fourteenth Amendment ...... 2,12

Statutes

i re: SE CED. ob 6'n 0 06.040 00 620000 446406K0% roy 2

42 U.S.C.:

CE cdi cu dinveeen6 56069506) 54000000060s0 3

EEOC Serer rey eT ae Tere TTT rire Te 3

SE ED 66s cavecddnensienseads6eney tenenedien 3

~~

In the Suprenw Court

OF THE

United States

OcroBer Term, 1975

No.

Senator H. L. RicHARDSON, et al.,

Petitioners,

Vs.

Bos LOKEy,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

to the United States Court of Appeals

, for the Ninth Circuit

The petitioners, Senator H. L. Richardson, et al.,

respectfully pray that a writ of certiorari issue to re-

view the judgment of the United States Court of Ap-

peals for the Ninth Circuit entered in this proceeding

on December 9, 1975.

OPINION BELOW

The opinion of the Court of Appeals, not yet re-

ported, appears as Appendix A to this petition.

2

JURISDICTION

The judgment of the Court of Appeals was entered

on December 9, 1975. This petition for certiorari was

filed within 90 days after that date. This Court’s

jurisdiction is invoked under 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. Whether the Due Process Clause applies and, if

so, requires state prison officials to afferd an inmate

serving a life sentence without possibility of parole,

notice, opportunity to be heard, and a statement of

reasons before determining, for security reasons, that

the inmate may no longer be permitted outside the se-

curity fence of the institution.’

2. Whether principles of nonretroactivity bar a

state prisoner’s claim that in December of 1972 he was

entitled to notice, opportunity to be heard, and state-

ment of reasons prior to prison officials’ determina-

tion that he may no longer be permitted outside the

security fenee of the institution.

3. Whether the federal courts have jurisdiction,

under the Civil Right Act, to entertain complaints by

state inmates attacking the degree of their custody

classification.

1Similar issues are now before this Court in Meachum v. Fano.

No. 75-252, cert. granted 44 U.S.L.Wk. (U.S. Dee. 9, 1975), and

Montanye v. Haymes, No. 74-520 (cert. granted 43 U.S.L.Wk. 3683

(U.S. June 24, 1975)).

3

STATEMENT OF THE CASE

On April 11, 1973, Bob Lokey, on behalf of himself,

Charlene Lokey, Bobbi Lokey and Jerri Lokey, filed

a complaint for injunctive relief and damages in the

United States District Court for the Northern Dis-

trict of California. The complaint alleged violations

of their civil rights under Title 42 ef the United

States Code sections 1983, 1985 and 1988. On June

12, 1973, petitioners filed a motion to dismiss and in

the alternative for summary judgment. On July 13,

1973, and October 2, 1973, respondents filed opposi-

tions to the latter motion. On December 4, 1973, the

District Court granted petitioners’ motion for sum-

mary judgment. This order appears as Appendix B

to this petition. Respondent Bob Lokey appealed this

decision,? and on April 16, 1975, the United States

Court of Appeals for the Ninth Circuit issued its

opinion reversing and remanding the matter for fur-

ther proceedings. This opinion appears as Appendix

C to this petition. On April 30, 1975, petitioners filed

a petition for rehearing and suggestion for rehearing

en bane. On December 9, 1975, the Court of Appeals

issued a second opinion in this matter (Appendix A),

The court ordered its opinion of April 16, 1975, with-

drawn, but again reversed the District Court’s order

and remanded the matter for further proceedings. On

January 6, 1976, the Court of Appeals granted peti-

tioners’ application of December 23, 1975, for a stay

20n July 13, 1975, in his amended opening brief on appeal re-

spondent advised the court that the other named plaintiffs Char-

lene Lokey, Bobbi Lokey and Jerri Lokey were abandoning their

claims for damages and not appealing the District Court’s order.

4

of mandate until January 8, 1976. On January 12,

1976, the Court of Appeals,granted petitioners’ mo-

tion of January 8, 1976, for an extension of stay of

mandate until February 7, 1976.

STATEMENT OF FACTS*

On November 2, 1972, the Chief Deputy Director of

the California Department of Corrections advised all

penal institutions within the State that effective the

latter date “. . . no inmate serving life without possi-

bility of parole is to be classified minimum custody

without prior review and concurrence by the Depart-

mental Review Board.” This change in policy was

prompted by the necessity for custody reclassifications

following court. decisions holding the death penalty

unconstitutional and the escape by an inmate serving

a life sentence without possibility of parole.

On the above date, respondent was confined at San

Quentin Prison and serving a life sentence without

possibility of parole as a result of his plea of guilty

to violation of California Penal Code sections 187

(first degree murder) and 209 (kidnaping for the

purpose of robbery with bodily harm). See In re

Lokey, 64 Cal.2d 626, 51 Cal. Rptr. 266 (1966). At

this time respondent had been in a minimum custody

Most of the complaint and the proceedings in the District

Court related to respondent's elaim that various California of-

ficials conspired to prevent commutation of his sentenee from life

without possibility of parole to life with possibility of parole. See

Appendix A, Ninth Cireuit Opinion, p. ii, nl. However, re-

spondent did not appeal the granting of petitioners’ motion for

summary judgment as to this issue.

5

classification for a period of 244 years, was permitted

to travel outside the prison accompanied only by an

unarmed security guard, was second in command of

the San Quentin firehouse located outside the prison

and which served surrounding communities as well as

the institution, and was permitted outside the prison

to take part in the overnight family visiting program.

Upon receiving the above memorandum, the San

Quentin staff referred respondent’s case to the Depart-

mental Review Board as required. On December 15,

1972, the Board made a detailed review of respond-

ent’s case-‘and ruled that he was not approved for as-

signment outside the security fence area. Thereafter

respondent was confined to areas within the security

fence.

REASONS FOR GRANTING THE WRIT

Petitioners seek the review of this Court because

the Ninth Circuit’s opinion raises serious consti-

tutional issues dramatically affecting the role of the

federal courts in the administration of state penal in-

stitutions. Petitioners’ complaint is not one of the fact

of federal jurisdiction in such matters nor do we

suggest that there be any sacrifice of constitutional

rights on the altar of institutional efficiency. Our

grievance is addressed to the alarming increase in fed-

eral litigation generated by state convicts as a result

of what appears to be the ever-intensifying and un-

necessary extension of federal review into the day-to-

day operations of state prisons.

6

In this case, by holding that even a purely classifi-

cation matter affecting merely an inmate’s privileges

is subject to federal review, the Ninth Circuit has, in

effect, extended federal jurisdiction to the very es-

sence of the prison administration processes. The

parameters of such jurisdiction have the potential

to encompass literally every decision made by prison

officials. Such an extension is not only unwarranted,

it is simply not constitutionally compelled.

It is not the function of the federal judiciary to

operate state prisons and it does not behoove the

federal judiciary to entertain the kind of litigation

which inevitably ensnares the federal courts ever

deeper into that bottomless and perplexing morass of

sociological problems intrinsic to penological admin-

istration—absent a clear and compelling federal inter-

est.

It is the very nature of the latter interest which is

of concern here. While we seek no limitation thereon,

we do query its existence and extent, for only with

an accurate comprehension thereof can there be a

true understanding of the federal judiciary’s role in

its vindication.

A convicted murderer and kidnaper serving a life

sentence without possilility of parole does not have a

constitutional right to a particular custody classifica-

tion or to be permitted outside the prison walls—

whether it he for overnight visits with his family or to

operate a fire station. By the same token, he ean-

not aequire a constitutional rieht to these privileges

merely by having taken adventage of past decisions

by prison officials to bestow them upon him.

7

Yet, the Ninth Circuit’s opinion recognizes a con-

stitutionally guaranteed “liberty” interest in a cer-

tain custody classiiication and in certain privileges

attendant thereto, despite the fact California has

never created such an interest—an elementary pre-

requisite to federal due process jurisdiction recog-

nized by this Court in Wolff v. McDonnell, 418 USS.

539, 556-558 (1974). The Ninth Cirecuit’s opinion

recognizes a constitutionally protected ‘‘liberty” in-

terest in a nondisciplinary occasioned loss of privi-

leges despite the fact this Court stated in Wolff v.

McDonnell, supra, that such a “‘loss of privileges”

was not actionable. The Ninth Circuit’s opinion ex-

tends federal jurisdiction in such matters retro-

actively despite this Court’s holding in Wolff v,

McDonnell, supra, that these due process guarantees

apply only prospectively. And, even assuming, argu-

endo, that a “‘liberty” interest does exist in prison

classification proceedings, the remedy is not suit under

the Civil Rights Act—it is habeas corpus.

This Court must resolve these conflicts. If it does

not, every decision made hy prison officials, be it a

matter of classification or simply administrative, will

be an express invitation for immediate federal re-

view and correctional officials will be spending more

time in federal courts defending themselves from liti-

gious prisoners in civil rights actions than in admin-

istering the prisons.

8

ARGUMENT

I

A PERSON COMMITTED TO A CALIFORNIA STATE PRISON

UPON HIS CONVICTION OF A CRIME HAS NO LIBERTY OR

PROPERTY INTEREST IN ANY PARTICULAR CUSTODY

CLASSIFICATION OR THE PRIVILEGES WHICH MAY BE

ATTENDANT THERETO

A. The Liberty interest question.

The Constitution does not require that every gov-

ernment impairment of some interest be conditioned

on notice and an opportunity to be heard. See Cafe-

teria Workers v. McElroy, 367 U.S. 886, 894 (1961).

“The requirements of procedural due process

apply only to the deprivation of interests encom-

passed by the Fourteenth Amendment’s protec-

tion of liberty and property. When protected

interests are implicated, the right to some kind of

prior hearing is paramount. (Footnote omitted. )

But the range of interests protected by proce-

dural due process is not infinite.” Board of Re-

gents v. Roth, 408 U.S. 564, 569-570 (1972).

As further observed by this Court in Roth,

“[T]o determine whether due process require-

ments apply in the first place, we must look not

to the ‘weight’ but to the nafure of the interests at

stake. See Morrissey v. Brewer, ante, at 481. We

must look to see if the interest is within the

Fourteenth Amendment’s protection of liberty

and property.” Board of Regents v. Roth, supra,

408 U.S. 564, 571 (1972).

The concept of liberty has been broadly construed

so as to encompass not only freedom from physical

restraint, but also the freedom to pursue and enjoy

9

those privileges long accorded to free men. Board of

Regents v. Roth, supra, 408 U.S. 564, 572 (1972). As

a consequence of having been convicted of a crime

and of having been committed to state prison, an in-

mate is necessarily subject to physical restraint and

his activities are delineated by his custodians. See

Preiser v. Rodriguez, 411 U.S. 475, 491-492 (1973).

In short, by virtue of his status, an inmate does not

have a liberty interest in any particular custody clas-

sification within a state prison. It is further submit-

ted that one classification as opposed to another

cannot be equated with the conditional grant of “many

of the core values of unqualified liberty. .. .” Moris-

sey v. Brewer, 408 U.S. 471, 482 (1972).

However, where the State, although not constitu-

tionally compelled to do so, statutorily creates a sub-

stantive right such as Nebraska did with respect to

good time credits, to insure that this state created

right is not arbitrarily abrogated minimum procedures

required by the due process clause must be imple-

mented. Wolff v. McDonnell, supra, 418 U.S. 539, 557.

Accordingly, if California had statutorily created in

respondent a right to a certain custody classification

and to the privileges associated therewith, there may

have existed a liberty interest in their retention. How-

ever, California has simply not created such rights

or interests. Custody classifications and privileges are

matters wholiy entrusted to the sound judgment of

California’s prison officials. In fact, in this case the

November 2, 1972, revision of the Classification Man-

ual expressly precluded respondent’s being classified

10

minim custody without Department Review Board

approvat—an entirely discretionary matter. Thus, it

is submitted respondent had no “liberty interest” en-

titled to constitutional protection.

A second distinction also compels the latter con-

clusion. Although in Wolff v. McDonnell, supra, this

Court afforded due process in disciplinary proceedings

effecting a “major change in the conditions of confine-

ment” resulting from a “major act of misconduct,”

this Court refused to require due process proceedings

“for the imposition of lesser penalties such as the

loss of privileges.” Wolff v. McDonnell, supra, 418

U.S. 539, 571, n. 19. (Emphasis idded.) In the in-

stant matter, it is just such a loss of privileges which

is the basis for respondent’s complaint. Moreover,

they were withdrawn as a matter of administrative

reclassification for reasons related to prison security.

Yet, the Ninth Circuit holds these distinctions to be

of absolutely no consequence.

If the Ninth Cireuit’s opinion is allowed to stand

any inmate with a modicum of imagination can and

will, merely by composing a list of all the infinitely

diverse changes in conditions of confinement inherent

in and routine to the evervday operation and admin-

istration of any given institution, create a compila-

tion of alleged infringements which, by their usual

illusory addition, will appear to constitute that mag-

4S’,.we the filing of the complaint in this ease, the California

Department of Corrections has implemented specific procedural

safeguards where decisions are made increasing an inmate’s eus-

tody level. See our amicus brief in Montanye v. Haymes, No.

74-520, Appendix A.

11

ical jurisdictional sum known as the “grievous loss.”

However, such fallacious arithmetical machinations

cannot be allowed to so easily camouflage the real

issue. The creation of federal jurisdiction cannot be

permitted on a “bottom line” basis for it is not the

weight of the interests lost but whether the nature of

those interests are entitled to constitutional protection.

Board of Regents v. Roth, supra, 408 U.S. 564, 569-

570. Yet, it is precisely the eradication of the latter

distinction which the Ninth Circuit’s opinion in this

matter achieves,

B. The property interest question.

As further observed by this Court,

“To have a property interest in a benefit, a per-

son clearly must have more than an abstract need

or desire for it. He must have more than a uni-

lateral expectation of it. He must, instead, have

a legitimate claim of entitlement to it... .

[1] Property interests, of course, are not created

by the Constitution. Rather, they are created and

their dimensions are defined by existing rules or

understandings that stem from an independent

source such as state law—rules of understandings

that secure certain benefits and that support

claims of entitlement to those benefits.” Board of

Regents v. Roth, supra, 408 U.S. 564, 577, see

Wolff v. McDonnell, supra, 418 U.S. 539, 557

(1974).

Accordingly, an inmate can also have no property

interest to a particular custody classification or to

certain privileges unless state law grants him an en-

titlement to those amenities. California’s statutory

12

scheme is premised wpen the maintenance of a variety

of imstitutions (see Cal. Pen. Code $5003), grants

correctional officials the authority to classify inmates

and determine the institution in which the person

is to be confined (see Cal. Pen. Code §5068), and the

authority to transfer a person from one institution to

another (see Cal. Pen. Code § 5080). California law

thus precludes the establishment of a property interest

in any particular custody classification just as it pre-

cludes the right to be confined in any particular insti-

tution.

Accordingly, an inmate who is merely transferred

from outside the security fence of an institution to

inside the institution is not deprived of liberty or

property protected by the Fourteenth Amendment.

II

THE NINTH CIRCUIT’S OPINION CONFLICTS WITH OTHER

OPINIONS FROM THAT CIRCUIT AND WITH THOSE OF THIS

COURT, BECAUSE, ASSUMING A LIBERTY INTEREST THEN

EXISTED, IT APPLIED DUE PROCESS HEARING REQUIRE-

MENTS TO A 1972 DEPRIVATION

If the Ninth Circuit’s decision is allowed to stand

not only will it constitute an unwarranted enlarge-

ment of the liberty interest protected by the Due

Process Clause, but it is equally disturbing because it

extends federal review well into that period in time

which this Court held was precluded by principles

of nonretroactivity. Despite the clear holding of this

Court on June 24, 1974, that due process guarantees

apply prospectively to an inmate’s loss of liberty claim

13

and then only to the discipline of inmates for major

infractions and which measures oceasion a loss of ben-

efits guaranteed that. inmate by state law, the Ninth

Circuit holds in 1975 that nondisciplinary action

by prison officials in 1972, terminating privileges of

an inmate not guaranteed him by any state law, states

a cause of action in the federal courts for damages

and injunctive relief under the Civil Rights Act.

In the opinion of April 16, 1975 (Appendix C),

the Ninth Circuit held reversal was required under

Clutchette v. Procunier, 497 F.2d 809 (9th Cir. 1974),

modified on rehearing, 510 F.2d 613 (1975), cert.

granted, 401 U.S. 1010, and Wolff v. McDonnell,

supra. In our petition for rehearing and suggestion

for rehearing en banc, petitioners pointed out that

Wolff v. McDonnell, supra, was not retroactive and

that the Ninth Cireuit, in Wheeler v. Procunier, 508

F.2d 888 (9th Cir. 1974), had held that Clutchette v.

Procunicr, supra, was not retroactive. Wheeler v.

Procunier, supra, involved the 1971 transfer of a San

Quentin inmate from the general prison population

to punitive segregation. It therefore appeared that

respondent’s claim that in 1972 he was entitled to a

due process hearing when correctional officials trans-

ferred him from outside to inside the prison wails

was barred under Wheeler v. Procunier, supra, and

Wolff v. McDonnell, supra.

The Ninth Circuit responded by withdrawing the

April 16, 1975 opinion and holding that Wheeler v.

Procunier, supra, and Wolff v. McDonnell, supra,

were distinguishable because this case was an “exten-

14

sion of the rule in Wolff from disciplinary to admin-

istrative classification proceedings” and_ therefore

“presents substantial new issues as to whether a

‘liberty’ interest is involved, . . .” Appendix <A, p. ix,

n.6. However, this distinction is pure sophistry. The

Ninth Circuit, in this very same opinion, held that there

is no distinction for due process purposes between “ad-

ministrative” and ‘‘disciplinary” proceedings, and

between ‘‘privileges” and ‘‘rights” (Jd. p. vi), and

this holding compels the conclusion that relief is

barred by both Wheeler v. Procunier, supra, and

Wolff v. McDonnell, supra, the issue being solely one

of the time at which the alleged change in conditions

occurred.

III

THE FEDERAL COURTS DO NOT HAVE JURISDICTION UNDER

THE CIVIL RIGHTS ACT TO ENTERTAIN RESPONDENT'S

CLAIM THAT HE IS UNLAWFULLY CONFINED WITHIN THE

SECURITY FENCE BECAUSE THAT RELIEF MAY BE OB-

TAINED ONLY BY A PETITION FOR HABEAS CORPUS

The only issue before the Ninth Circuit was whether

summary judgment was proper on respondent’s claim

that the decision to no longer permit him outside the

security fence was unlawful because arrived at with-

out procedural due process. Although respondent

sought damages because of his alleged unlawful con-

tinement within the security fence, the main thrust of

his present complaint is for injunctive relief return-

ing him to his earlier custody status and narticina-

tion in those activities outside the security fence from

15

which he had been removed, such as the overnight

family visiting program. Respondent does not attack

the conditions of his present confinement—only the

location of that confinement, He has not sought to en-

join any State statute, regulation, procedure, or pol-

icy. His complaint is a personal one, directed at

specific actions taken by certain individuals at a par-

ticular time, and related solely to obtaining a lesser de-

gree of custody. He has not alleged any prior attempts

to seek redress of his grievances in the State courts.

Analytically, therefore, and but for the damages

claim, respondent is in a posture no different than any

other individual who has allegedly been confined to a

certain custody without due process. See, e.g., Moris-

sey v. Brewer, supra; Jones v. Cunningham, 371 US.

236 (1962); Johnson v. Avery, 393 U.S. 483 (1969).

In form, his complaint is not dissimilar from that of

the plaintiff in Preiser v. Rodriguez, 411 U.S. 475

(1973), who improperly challenged, under the Civil

Rights Act, the fact of his confinement based upon

the “alleged unconstitutionality of state administra-

tive action.” 411 U.S. 475, 489. Such complaints, be-

cause they relate particularly to the fact or duration

or location of confinement by the State, raise issues

which the State is not only far better suited to dispose

of but is legally entitled, as a matter of comity, to

remedy in the first instance. Preiser v. Rodriguez,

supra, 411 U.S. 475, 489-492. Thus,

“|, when a state prisoner is challenging the

verv fact or duration of his physical imprison-

ment, and the relief he seeks is a determination

that he is entitled to immediate or speedier re-

16

lease from that imprisonment, his sole federal

remedy is a writ of habeas corpus.” Preiser v.

Rodriguez, supra, 411 U.S. 475, 500. (Emphasis

added. )

The fact respondent has inserted a claim for dam-

ages in his complaint, although altering its form,

should not be permitted to disguise its true substance

and permit him to escape the exclusivity of federal

habeas corpus relief and its concomitant exhaustion

requirements.’ Preiser v. Rodriguez, supra, 411 U.S,

475, 488-494. A claim for damages may only be enter-

tained if the suit is otherwise “properly brought

under § 1983,” as where the plaintiff challenges the

conditions of his confinement rather than the fact or

length of custody. Wolff v. McDonnell, supra, 418

U.S. 539, 554. But,

“Tf a state prisoner is seeking damages, he is

attacking something other than the fact or length

of his confinement, and he is seeking something

other than immediate cr more speedy release—

the traditional purposes of habeas corpus.” Prei-

ser v. Rodriguez, supra, 411 U.S. 475, 494.

5Respondent’s damages claim was utterly without a legal basis.

In addition to the State of California, the named defendants were

the Director of the California Department of Corrections, the

Warden of San Quentin Prison, members of the California Adult

Authority, and California State Senator H. L. Richardson. The

State of California is clearly not a proper party defendant in a

civil rights suit and all of the individual defendants were State

officials exercising discretionary judgments within the scope of

their official duties. They were therefore immune from suit. No

members of the Departmental Review Board which denied re-

spondent approval for assignment outside the security fence were

named as ye sal Accordingly, summary judgment as to the

damages claim was entirely proper.

17

Accordingly, because the substance of respondent’s

claim is return to a lesser degree of custody for which

his exclusive remedy is federal habeas corpus, it is

submitted that federal jurisdiction under the Civil

Rights Act does not exist to return him to that cus-

tody classification.

CONCLUSION

For the aforementioned reasons, petitioners respect-

fully request this Court to issue a writ of certiorari

to the United States Court of Appeals for the Ninth

Circuit to review and reverse the decision in this ease.

Dated: January 30, 1976.

EveLLe J. YOUNGER,

Attorney General, State of California,

Jack R. WINKLER,

Chief Assistant Attorney General—

Criminal Division,

Epwarp P. O’Brien,

Assistant Attorney General,

DeraLtp EF. GRANBERG,

Deputy Attorney General,

Don JACOBSON,

Deputy Attorney General,

Attorneys for Petitioners.

(Appendices Follow)

A PPEN D

1 ces

Nance nS

Appendix A

CORRECTED OPINION

Opinion of April 16, 1975 is withdrawn by Order of 12/9/75

United States Court of Appeals

for the Ninth Circuit

No. 74-1256

Bob Lokey, et al.,

Plaintiffs-A ppellants,

vs.

H. L. Richardson, ete., et al.,

Defendants-Appellees. ’

| December 9, 1975]

Appeal from the United States District Court

for the Northern District of California

OPINION

Before: BROWNING and ELY, Circuit Judges,

and ANDERSON,* District Judge

BROWNING, Circuit Judge:

Appellant Lokey, a state prisoner confined in San

Quentin serving a life sentence without possibility of

parole, appeals the order of the district court granting

*fionorable J. Blaine Anderson, United States District Judge,

District of Idaho, sitting by designation.

li

summary judgment in favor of appellees in appellant’s

suit under the Civil Rights Act, 42 U.S.C. § 1983.

The only issue before this court is whether summary

judgment was proper on appellant’s claim that the

decision of the California Department of Correc-

tions to rescind his minimum custody classification

was made without procedural due process.’

Appellant’s uncontroverted allegations depict him as

a model prisoner who had achieved a minimum secu-

rity status accorded few convicts. He entered the prison

with a sixth-grade level education. While in custody he

completed both high school and two years of college,

receiving an associate in arts degree with honors. In

addition, he completed a two-year course in office ma-

chine technology, graduating at the top of the class,

and a two-year institutional course in “creative dy-

namics.” During his imprisonment he read widely in

the field of human physiology and anatomy, and in the

behavioral sciences. He became an accomplished ar-

tist. He invented an improved Braille typewriter and

a variety of tools, including a safety power saw, and

organized a corporation to manufacture and market

his innovations. An institutional report states, “Mr.

Lokev is described by custody officials as maintaining

excellent standards within the institutional setting,

especially since 1964, Everyone that he comes in con-

1Appellant also alleged that various California officials con-

spired to prevent commutation of appellant’s sentence from life

without possibility of parole to life with possibility of parole. Most

of the proceedings below related to this issue. Appellant has re-

stricted this appeal to the issue stated in the text. Other appel-

lants are Mr. Lokey’s wife and two minor children. The appel-

lants appear pro se.

iii

tact with speaks highly of him and he is a trusted

individual working in a minimum s ting who received

work grades from above average to exceptional.” Be-

cause of his exemplary conduct appellant was given

a minimum custody classification enjoyed by only 20

or 30 inmates of San Quentin. He was permitted to

travel to points distant from the prison accompanied

only by an unarmed security gaard. He was second

in command at the San Quentin firehouse, located

outside the prison walls, serving surrounding communi-

ties as well as the institution. Most important, appel-

lant’s minimum security classification entitled him to

participate in the Family Visiting Program, under

which he was permitted to be with his wife and two

children at overnight family visiting facilities outside

the prison.

After two and a half years, appellant’s minimum

security status was abruptly terminated. He received

no notice of the proposed change of status, and no

hearing. He was given no reason for the reclassifica-

tion, orally or in writing.? The revocation of his min-

imum security classification terminated the various

privileges referred to, ineluding appellant’s partici-

pation in the family visitation program.

Appellees filed three documents in support of their

motion for summary judgment. The first is an inter-

nal memorandum dated November 2, 1972, from the

Chief Deputy Director of the State Department of

Corrections, to Classification and Parole Representa-

tives. It reads:

2See note 3 infra,

Effective this date, and pending revision of

Chapter VI of the Classification Manual, no in-

mate serving life without possibility of parole is

to be classified minimum custody without prior

review and coneurrence by the Departmental Re-

view Board. Any cases now so classified should

be submitted to the Departmental Review board

for their review and action.

The second document submitted by appellees is an

interoffice memorandum dated December 15, 1972,

from the Chief of Classification Services to the Chief

Deputy Director. It reads:

REASON FOR REFERRAL

Subject referred to [Departmental Review Board ]

by San Quentin staff as a result of the Director’s

policy regarding minimum custody classification

for inmates serving Life Without Possibility of

Parole.

[DEPARTMENTAL REVIEW BOARD] AC-

TION

[Departmental Review Board] met on December

15, 1972. Following a detailed review of all case

factors Lokey not approved for assignment out-

side security fence area.

The third document submitted by appellees is a

page from the State Classification Manual, contain-

ing a revision reading: “Inmates serving life without

possibility of parole are not to be classified minimum

custody without prior review and concurrence by the

Departmental Review Board.”

A fourth document is attached to appellant’s op-

position to the motion for summary judgment. It is

Vv

a letter date April 24, 1973, from the Director of Cor-

rections, Appellee Procunier, to appellant. The por-

tion of the letter relating to termination of appellant’s

minimum custody status reads as follows:

If you recall, the abolishment of the death penalty

required the movement of many people with seri-

ous offenses and received much publie attention.

Shortly after that, a person having a Life With-

out Possibility of Parole sentence escaped from

one of our institutions. The combination of issues

demanded a removal of such cases from minimum

assignments. A Classification Manual change has

been made to make this a general order which

was made flexible to permit meritorious cases

minimum assignments by order of the Departmen-

tal Review Board only. Your case was presented to

the Departmental Review Board on December 15,

1972 for that consideration; however, the man-

ner [in which] you have handled the disappoint-

ment clearly indicates at this point that the deei-

sion to bring you inside the security area was a

proper one.*

I can understand the feeling you have expressed

and the disadvantages you have. received. Un-

fortunately, the order regarding the minimum

assignments was made to change a condition in-

volving many people, and therefore must stand.

’Appellee Procunier’s reference to “the manner [in which ap-

pellant] handled the disappointment” does not appear to be a

statement of the reason for the termination of appellant’s mini-

mal security status. As the record document referred to in the

text reflects, appellant’s minimum security status was terminated

December 15, 1972. Appellee Procunier, writing on April 24, 1973,

states that appellant's reaction indicates “at this point” that the

carlier termination decision was proper. Perhaps the reference

was to the filing of the present suit on March 31, 1973, less than

a month before Appellee Procunier wrote.

Appellees contend that these documents demonstrate

that termination of appellant’s minimal security status

was a “purely administrative and nondisciplinary de-

cision regarding the security of the institution,” and

resulted in the loss only of a “privilege.” They argue

that such a decision imposing such a loss does not re-

quire the procedural due process mandated by Wolff

v. McDonnell, 418 U.S. 539 (1974), for disciplinary

proceedings resulting in loss of good-time credit.

Summary judgment on this ground was not proper.

Appellees were not entitled to judgment “as a mat-

ter of law,” Federal Rule of Civil Procedure 56(c),

on the few uncontroverted facts reflected in this

skimpy record.

The right to procedural due process turns upon

whether there is an infringement of “liberty” (Morris-

sey v. Brewer, 408 U.S. 471, 481 (1972)), not upon

whether the deprivation is characterized as “admin-

istrative” rather than “disciplinary,” or involves loss

of a “privilege” rather than a “right.” Clutchette v.

Procunier, 510 F.2d 613, 615 (9th Cir. 1975).

Appellant. alleges that termination of his minimal

security status deprived him of highly significant

privileges (including a familial relationship, espe-

cially protected by the law, Stanley v. [llinois, 405 U.S.

645, 651 (1972)), and worsened the conditions of his

imprisonment in a most serious and substantial way.

Such losses could be imposed as punishment only by

due process of law. Clutchette v. Procunier, supra.

They constitute no less a loss of “liberty” protected by

the due process clause when imposed for “administra-

vii

RE eta (2d Cir, 1975); Urbano v. McCorkle,

334 F.Supp. 161, 168 (D. N.J. 1971), aff’d mem., 481

B.2d 1400 (3d Cir. 1973); Stone v. Egeler, 377 F.

Supp. 115, 118 (W.D. Mich. 1973), aff’d as modified,

506 F.2d 287 (6th Cir. 1974).

In Cardaropoli, the Second Circuit held that due

process safeguards must be provided in the admin-

istrative classification of a newly admitted prisoner as

a “Special Offender” or “Special Case.” The Court of

Appeals relied upon a district court finding that such

a classitication “delays or precludes social furloughs,

release to halfway houses and transfers to other cor-

rectional institutions; in some cases, the characteriza-

tion may bar early parole.” .......... ae 0 , citing

Catalano v. United States, 383 F.Supp. 346, 350 (D.

Conn. 1974). The Court of Appeals concluded, “['T]he

marked changes in the inmate’s status which accom-

pany the designation create a ‘grievous loss,’ Morris-

sey v. Brewer, supra, 408 U.S. at 481; Goldberg v.

Kelly, 397 U.S. 254, 263 (1970): Joint Anti-Fascist

Refugee Committee v. MeGrath, 341 U.S. 123, 168

(1951) (Frankfurter, J., concurring), and may not be

imposed in the absence of basie elements of rudimen-

tary due process.” 0... F.2d at ............*

“Some Kind of Hearing,” 123 U. Pa. L. , 42 907

(1975). . Rev. 1267, 1295-96

Appellees argue, however, that the present case is

controlled by prior decisions of this court holding

that nonconsensual transfers of prisoners between

institutions may be ordered without procedural protec-

tions. Fajeriak v. McGinnis, 493 F.2d 468 (9th Cir.

1974); Hillen v. Director of Social Services & Hous-

ing, 455 F.2d 510 (9th Cir.), cert. denied, 409 US.

989 (1972); Duncan v. Madigan, 278 F.2d 695 (9th

Cir. 1960), cert. denied, 366 U.S. 919, 368 U.S. 905

(1961). The opinions in these cases do not indicate

that the conditions of confinement of the transferees

were substantially worsened by the transfers. As we

recently noted, these cases hold only that nonconsen-

sual transfers do not constitute a violation of due

process standing alone, We added, “[ H Jowever we have

also held that transfers to penalize prisoners for their

religious beliefs [are] unconstitutional, Fajeriak v.

McGinnis, 493 F.2d 468 (9th Cir. 1974), and have heen

careful to note that we reserve opinion upon any gen-

eral procedural rule involving the due process im-

plications of nonconsensual transfers.” Stinson v.

Nelson, .......... F.2d ............ online (9th Cir. 1975). See also

Tai v. Thompson, 387 F. Supp. 918, 914 (D. Hawaii

1975).

In concluding that the termination of appellant’s

minimal security status may have deprived him of

“liberty” protected by the Due Process Clause, we

have relied upon appellant’s uncontradicted allegations

as to the seriously adverse consequences flowing from

the reclassification. This will be a matter of proof on

remand.

1x

If the court on remand concludes that a “liberty”

interest is at stake, the court must then determine

what procedural protections are appropriate, based

upon a careful balancing of the interests of the pris-

oner and the state in light of the facts as they may be

developed. Peacock v. Board of Regents, 510 F.2d

1524, 1327 (9th Cir. 1975).* It would also be advisable

for the trial court to develop the facts relevant. to

whether the new procedural rules, if any, should be ap-

plied retroactively.’

5A loss may be of such slight consequence to the inmate that

it is entirely outweighed by the interest of the prison administra-

tor in summary disposition. In such a case, few procedural for-

malities, or none, may be required. See Wolff v. McDonnell, 418

U.S. 539, 571-72 n. 19 (1974); Clutehette v. Proeunier, 510 F.2d

613, 615 (9th Cir. 1975); ef. Cardaropoli v. Norton, —. F.2d

Sie ~n. 12 (2d Cir. 1975).

‘Appellees suggest that reversal is barred by the holding in

Wolff v. MeDonnell, 418 U.S. 539, 573-74 (1974), and Wheeler y.

Proeunier, 508 F.2d 888 (9th Cir. 1974), that the rule that due

process safeguards are required in prison disciplinary proceedings

is not to be applied retroactively. Appellees’ suggestion necessarily

assi.ues that this rule does apply to administrative classifieation

proceedings, a position which appellees in fact vigorously reject.

The extension of the rule in Wolff from disciplinary to admin-

istrative classification proceedings presents substantial new issues

as to whether a “liberty” interest is involved and, if so, what

protections are appropriate to protect it. The latter issue, par-

ticularly, requires the balancing of quite different considerations,

and may well result in quite different procedural requirements.

The present case is no more controlled by the nonretroactivity

of the Wolff holding regarding due process requirements in dis-

eiplinary proceedings, than Gagnon v. Searpelli, 411 U.S. 778

(1973) (involving due process requirements in proceedings to re-

voke probation) was controlled by the nonretroactivity of the

holding in Morrissey v. Brewer, 408 U.S. 471 (1972) (involving

due process requirements in proceedings to revoke parole). The

procedural requirements announced in Morrissey v. Brewer, de-

cided in 1972, were expressly applicable only “to future reveeation

of parole.” Yet Gagnon v. Scarpelli, in extending the same pro-

cedural requirements to invalidate a revocatior. of probation that

had oeceurred in 1965 (411 U.S. at 780), relied primarily upon

Morrissey v. Brewer: “Petitioner does not contend there is any

For these purposes it is important to identify clearly

the government action involved. Appellant does not

challenge the administrative determination of the De-

partment of Corrections announced in the Deputy

Director’s memorandum of November 2, 1972, that

“Celffective this date, . . . no inmate serving life

without possibility of parole is to be classified mini-

mum custody without prior review and concurrence

by the Departmental Review Board.” Appellant con-

tends only that he was entitled to due process in the

decision to terminate his minimum security status

pursuant to the statement in the second sentence of

the Chief Deputy Director’s memorandum that “[a]ny

eases now so Classified should be submitted to the

Departmental Review Board for their review and ac-

tion.” Appellant contends only that he was entitled to

due process in the decision to terminate his minimum

security states pursuant to the statement in the second

sentence of the Chief Deputy Director’s memorandum

that “[a]ny cases now so classified should be si.»mitted

to the Departmentai Review Board for their review

and accion.”

As Aprcilee Procunier pointed out in his letter of

Apri 2:, 1973, the adoption of the rule requiring prior

Review Board concurrence in subsequent decisions to

erant minimum security status to inmates serving a

difference between the revocation of parole and the revocation of

probation, nor do we perceive one.” 411 U.S. at 782.

Of course, principles derived from eases involving nonretro-

active holdings are applicable to new areas, even if the events in

the later eases arose before the decision embodying the nonretro-

active holding. Wolff relied upon Morrissey v. Brewer and Gag-

non v. Scarpelli, both nonretroactive.

life sentence without possibility of parole was a policy

decision affecting many people based upon facts that

did not pertain particularly to appellant. The new rule

did not provide that the existing minimum security

classifications of all such inmates was automatically

revoked. On the contrary, it provided that such cases

should be reviewed and acted upon individually. As

noted, the new rule was effective November 2. The De-

cember 15 memorandum of the Chief of Classifications

states that on that date the Board reviewed “all ease

factors” affecting appellant, and determined not to ap-

prove his assignment outside the seeurity fence. The

complaint alleges that appellant’s minimum seeurityv

status was terminated and he was confined within the

prison on the same day. Appellant challenges only the

procedures by which this determination of appellant’s

individual status was reached,

The significance of this fact is twofold. It is rele-

vant to the procedural protections that may be appro-

priate; procedural devices affording an opportunity

for effective participation in agency determinations

are less rigorous when a rule of general application

is being determined than when the issue at stake in

the status under the rule of the particular individual

who asserts the right to participate. K. Davis, Ad-

ministrative Law Treatise §% 7.01, 7.02, & 7.04 (1958

ed. and 1970 supp.); see Friendly, “Some Kind of

Hearing,” 123.0. Pa. L. Rev. 1267, 1268 (1975). Tt is

also relevant to the retroactivity of the procedural

rules that may be adopted: the impact of retroactivity

of such rules upon the integrity of the fact finding ~

volved and upon the interests both of prison adminis-

xii

trators aml inmates may be quite different in the

context of adjudication than in the context of rule

making.

Reversed and remanded.®

7In view of the nature of the hearing that will be required on

remand, the trial court may wish to consider the appointment of

counsel to assist appellant in the presentation of his claim.

Appendix B

In the United States District Court

for the Northern District of California

Civil No. C-73-592 RFP

Bob Lokey, et al.,

Plaintiffs,

vs.

Senator H. L. Richardson, et al.,

Defendants. J

[Filed December 4, 1973]

ORDER

This matter having been submitted to the Court

for consideration and decision on the record and

pleadings on file,

It is Hereby Ordered that the Motion by defend-

ants’ for Summary Judgment, is GRANTED.

Dated: December 3rd 1973

/s/ Robert F. Peckham,

United States District Judge

Mailed to:

Robert Y. Bell, Esq.,

Attorney at Law

858 Third Street

Post Office Box 1963

Santa Rosa, Calif. 95403

Don Jacobson, Esq.,

Deputy Attorney General

6000 State Building

San Francisco, Calif. 94102

xiv

Appendix C

United States Court of Appeals

for the Ninth Cireuit

No. 74-1256

Bob Lokey, et al. )

. ; ’ Plaintiffs-Appellants,

VS. :

H. L. Richardson, et al.,

Defendants-A ppellees. |

[ April 16, 1975]

Appeal from the United States District Court

for the Northern District of California

OPINION

Before: BROWN'NG and ELY, Circuit Judges,

and ANDERSON,”* District Judge

PER CURIAM:

Appellant Lokey, a state prisoner confined in San

Quentin serving a life sentence without possibility of

parole, appeals the Order of the district court grayt-

ing summary judgment in favor of defendants. The

only issue before this Court is whether summary

judgment was proper on appellant’s claim that the

decision of the California Department of Corrections

to rescind his minimum custody classification was

made without procedural due process.

*Honorable J. Blaine Anderson, United States District Judge

for the District of Idaho, sitting by designation.

xV

In response to the decision gf the California Su-

preme Court declaring the death penalty under Cali-

fornia law unconstitutional in People v. Anderson, 6

C. 3rd 628, 493 P. 2d 880 (1972) and also in part

prompted by the escape of an inmate who was serving

a life sentence without possibility of parole, the De-

partment of Corrections in November, 1972, advised

ali penal institutions within the state that no inmate

serving a life sentence without possibility of parole

could be classified minimum custody without prior

review and concurrence of the departmental review

board. In December of 1972 the review board con-

sidered appellant’s case and decided to rescind his

minimum custody status. Up to that time appellant

had enjoyed minimum eustody status for over two

and one-half years and as one of the privileges of that

status had the ability to be with his wife and two

daughters at the overnight family visiting quarters on

a monthly basis. Appellant was not afforded a hear-

ing on the proposed reclassification. The revoeation

of minimum custody status automatically terminated

appellant’s participation in the family visitation pro-

gram.

The panel is of the opinion that had the district

judge had the benefit of this Court’s decision in

Clutchette v. Procunicr, 497 F.2d 809 (9th Cir. 1974),

opinion on rehearing, ....... F.2d... (October 21,

1974) (hereinafter Clutchette TI), and of the Supreme

Court in Wolff v. McDonald, US. ........... 94 S. Ct.

2963, 41 L. Ed. 2d 935 (1974), the contrary result

would have been reached. In Clutchette TT this Court

held that some process is due to prisoners whose priv-

xvi

ileges are to be revoked as a disciplinary measure,

where such revocation amounts to a grievous loss.

(Slip Opinion Pg. 2). “he fact that Lokey’s privi-

leges were revoked as a result of a purely administra-

tive, non-disciplinary decision, while in Clutchette II

appellant’s privileges were revoked as a disciplinary

measure, is not a controlling distinction when consid-

ering whether due process attaches at all. The loss of

appellant’s ability to see and be with his family, a

privilege previously granted him by the state, was,

and continues to be a grievous one, when considered

in the context of prison life. See Clutchette, Slip

Opinion, pg. 2. We therefore hold that appellant was

entitled to a due process hearing prior to the non-

disciplinary change in his custody classification.’

It would be inappropriate, in view of the lack of

development of the record, to decide and spell out

the procedural process due. Upon remand the district

court should consider, after further factual develop-

ment, what procedural requirements must be afforded

to meet the exigencies of the situation in light of our

holding in Clutchette II, and of the Supreme Court in

Wolff.

It appearing that significant constitutional questions

may be involved (no opinion is expressed), the Dis-

trict Court on remand may wish to consider the ap-

pointment of competent counsel to assist Lokey in

the further prosecution of his claims.

REVERSED and REMANDED for further pro-

ceedings consistent with the opinion expressed herein.

1Cf. Fajerniak v. McGinnis, 493 F. 2d 468 (9th Cir. 1974).