Petition — O'Brien v. Hall

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1976

wo. %6§~-1453

GORDON O'BRIEN,

Petitioner,

v.

FRANK A. HALL,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FIRST CIRCUIT

Francis J. Dimento

Dimento & Sullivan

100 State Street

Boston, Mass. 02109

Of Counsel:

Daniel F. Featherston, Jr.

Seven Water Street

Boston, Mass. 02109

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1976

No.

GORDON O'BRIEN,

Petitioner’,

Vv.

FRANK A. HALL,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR Ti FIRST CIRCUIT

Francis J. Dimento

Dimento & Sullivan

100 State Street

Boston, Mass. 02109

Of Counsel:

Daniel F. Featherston, Jr.

Seven Water Street

Boston, Mass. 02109

INDEX

Opinions Of The Courts Below ....+-+-:

Jurisdiction ...s++«+seseseseeee-s

Questions Presented .. +++ see ees

Constitutional And Statutory Provisions

Statement Of The Case ..++++e-s

Reasons For Granting The Writ... +:

Conclusion ...++*e*eseee#e-. >. eee

Appendix A - Court of Appeals Opinion

Appendix B - District Court Opinion... .

Appendix C - Regulations ...++++ +s

TABLE OF CITATIONS

CASES

Baxter v. Palmigiano, 425 U.S. 308

(1976) . we eevee eevee _

. 16

Breedon v. Jackson, 457 F. 2d 578

(With Cir. 1972)... 2 ee eee ee ee 2

Cook v. Brockway, 424 F, Supp. 1046

(N.D. Texas 1977) . + +++ eee ll, 20

Cooper v. Riddle, 540 F. 2d 731

(4th Cir. 1976) es 6.6 @.0 ere 10, 20

Daigle v. Hall, 387 F. Supp. 652

(Mass. 1975)... eee ee ee eee 18

Fano v. Meachum, 520 F. 2d 374

(Ist Cir. 1975) .. + + ee eee . 8, 21

Finley v. Staton, 542 F. 2a 250

(Sth Cir. 1976) «2+ + eee eevee 25

Ford v. Board of Managers of New

Jersey State Prison, 407 F. 2d

937 (34 Cir. 1969)... + eee eee 20

Four Certain Unnamed Inmates of

Massachusetts Correctional

Institution at Walpole, Mass.

v. Hall, __F. 2d _ (lst Cir.

1977), No. 76-1554, March 18, 1977. 10, 23

25, 27

Franklin v. Fortner, 541 F. ad 4g

(Sth Cir. 1976) .- + ee ee eee 10, 20

Goss v. Lopez, 419 U.S. 565, 576 (1975) 19

Haines v. Kerner, 404 U.S. 519 (1972) 15

Hodges v. Klein, 421 F. Supp. 1224

(N.J. 1976) ». 2+ 2 ee ee * a a ae 19, 25

27

Lavine v. Wright, 423 F. Supp. 357

(C.D. Utah 1976) Tree eres.

27

Lombardo v. Meachum, — _ oo

(Ist Cir. 1977)» se ee ee ee # 1Oe 25

27

MacKinnon v. Patterson, __F. Supp.

__(S.D. N.Y. 1976), No. 73-3998,

September 13, 1976. «see eeeee 27

Martinez v. Oswald, 425 F. Supp. lle

(W.D.N.Y. 1977) oe eee 10

Mawhinney v. Henderson, 542 F. 2d 1

(24 Cir. 1976) «2+ eee ee eee , ll, 20

Meachum v. Fano, 427 U.S. 215 (1976) 8, 9,

’ ’ ’

| 14, 15, 16,

Tit 17, 21, 23,

25, 27

Montanye v. Haymes, 427 U.S. 236, In the

— 2u2 (1976) .. + es we ew we we ew woe 12, 27 SUPREME COURT OF THE UNITED STATES

Powell v. Ward, 392 F. Supp. 628 October Term, 1976

(S.D. N.Y. 1975), modified, 542

F, 24 101 (2d Cir. 1976) . +++» ll

e No.

Sites v. McKenzie, 423 F. Supp. 1190

(N.D. W. Va. 1976) : . . + . + 7 . ll

GORDON O'BRIEN,

Smith v. Fenton, 424 F. Supp. 792 Petitioner,

¢d (E.D. Tll. 1976) 8 @ ss @& 2 ee 20

Sweet v. South Carolina Department -

of Corrections, 529 F. 2d 854 FRANK A. HALL,

(lth Cir. 1975). «+ es ee wo 20 Respondent

© Wolff v. McKonnell, 418 U.S. 539,

| 571, n. 19 (1974) Ss 4. €¢ 2 Vie. 13, 15,

16, 17, 19, PETITION FOR A WRIT OF CERTIORARI

25, 26 | TO THE UNITED STATES COURT OF

e ; | APPEALS FOR THE FIRST CIRCUIT

|

| Petitioner, Gordon O'Brien, prays that

@ a writ of certiorari issue to review the

opinion and judgnent of the United States

Court of Appeals for the First Circuit,

IV entered on December 29, 1976, Petition For

e Rehearing denied on Jarwary 20, 1977.

>

—_——_ —-——

OPINIONS OF THE COUPTS BELOW

The United States Court of Appeals for

the First Circuit ordered that its opinion

was "NOT FOR PUBLICATION”, so petitioner

assumes it will not be reported, but it is

set out in Appendix A hereto, pages 27 -33,

infra. The opinion of the United States

District Court fer the District of Massa-

chusetts, which was reversed by the Court of

Appeals, is set out in Appendix B hereto,

pages 34 -49, infra, but it too will not

be reported, in accordance with Appendix B

of the Rules of the United States Court of

Appeals for the First Circuit.

JURISDICTION

The judgment of the court below was

entered on December 29, 1976, and a Petition

For Rehearing was denied on Jarmwary 20, 1977.

The jurisdiction of this Court is invoked

under 28 U.S.C. § 1254 (1), since petitioner

seeks review of a decision of a court of

appeals.

Corrections ordered the petitioner into

disciplinary solitary confinement without

notice or hearing. He remained there for

seven weeks until charges were devised and

Disciplinary Board hearings held. While

attempting tc establish cause for petitioner's

confinement, the hearings themselves did not

afford him his limited due process protections.

Petitioner remained in solitary for more than

@ year. There were no solitary confinement

cells in the prison where petitioner was

a “trusty” in "general population,” so

he had to be moved to another prison in order

for the respondent to effectuate his solitary

conf'inemerit .

1. Did the lower court err in

holding that since in its view the power

to transfer prisoners is unbridled in

Massachusetts, and petitioner's solitary

confinement and hearings were preceeded by a

transfer from one prison to another, both his

confinement and the hearings were insulated

from constitutional attack in this Federal

Civil Rights Act case?

2. If this prisoner mist demonstrate

that he had "some right or justifiable expecta-

tion rooted in state law" in order to be

afforded scme limited protections of the Due

Process Clause, did the Massachusetts prison

disciplinary regulations then in effect

create such a right?

While not presented herewith as

a ground for the issuance of the writ, if it

issues, a subsidiary question "on the merits"

would also be presented:

a. Was petitioner denied the

limited Due Process protections to which he

was entitled at the Disciplinary Board

hearings, and was it, therefore, error for

the Court of Appeals to reverse the District

Court and dismiss the canmplaint?

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Section 1., Fourteenth Amendment,

Constitution of the United States of America

(in relevant part): "...{NJor shall any

State deprive any person of life, liberty,

or property, without due process of law;...."

Just the relevant parts of the Massachusetts

prison disciplinary regulations, D.O. 4310.1,

Disciplinary Process — Rules and Regulations,

are lengthy, so their pertinent text is set

forth as Appendix C hereto, pages 50-56 ,

infra.

STATEMENT OF THE CASE

On September 16, 1975, petitioner was

a prisoner with, so-called, "trusty" status

in, so-called, "general population" at the

Massachusetts Correctional Institution at

Bridgewater. On that date the Massachusetts

Commissioner of Corrections, the respondent

herein, ordered that petitioner be put in strict

solitary confinement. The opinion below

erroneously implies that the decision on

solitary confinement was sometime after the

transfer. There were no solitary confinement

cells at Bridgewater, so, solely to effectuate

the solitary confinement order, petitioner was

moved to the strict solitary confinement section

—so-called, "Ten Block"——in the nearby

Massachusetts Correctional Institution at

Walpole. The only reason for the geographical

move was because Bridgewater did not have

confinement cells sufficiently solitary for

the respondent's purpose of isolating the

petitioner. It is admitted that at least this

"transfer resulted in a significant adverse

modification of the overall conditions of

confinement" of petitioner, and that it was

accomplished with no prior notice or hearing.

The respordent then initiated an investiga-

tion into irmate conditions at Bridgewater with

particular emphasis upon whether petitioner

had been one of the leaders of a group of

prisoners who assaulted and intimidated other

prisoners. After seven weeks—petitioner

remaining in solitary confinement in Ten Block

the whole time (a fact ignored in the opinion

below)—-on November 5, 1975, six disciplinary

charges were brought against petitioner (a

seventh was later brought during the disciplinary

hearings) alleging, solely on the basis of

"informants'" information, assaults on various

Bridgewater inmates on various dates, going

back more than a year, and Disciplinary Board

hearings were scheduled on those charges. The

next day petitioner filed a pro se complaint

under 42 U.S.C. § 1983 in the United States

District Court for the District of Massachusetts,

which was subsequently amended by counsel, and

upon which the actions in issue were taken.

Disciplinary Board hearings on the charges

began on November 14, 1975, continued on four

later dates, and concluded on December 10, 1975,

at which petitioner was represented by counsel,

and transcripts of the hearings were prepared.

In the course of the hearings two of the charges

were withdrawn, and petitioner was found not

guilty on one and guilty on the remaining four.

The Disciplinary Board recommended thirty days

"isolation" (a Massachusetts corrections

"term of art," consisting of the only confine-

ment even more solitary than Ten Block segrega-

tion). In the course of the preliminary

injunction hearings on petitioner's complaint,

the respondent, as reviewing authority,

affirmed the Disciplinary Board actions, but

suspended execution of the "isolation" time

specifically because of petitioner's already

lengthy Ten Block confinement.

Petitioner's Federal Civil Rights Act

complaint alleged that his transfer from

Bridgewater, his Ten Block conf‘inement

without charges or hearings, and the subsequent

Disciplinary Board procedures each violated

his constitutional rights. After extensive

evidentiary hearings on his preliminary injunc-

tion prayer to at least be released from Ten

Block and returned té "general population,"

Julian, J. on April 28, 1976, filed a lengthy

Order (Appendix B, pages 34 - 49, infra) grant-

ing a preliminary injunction releasing the

petitioner from Ten Block and ordering his

transfer to "general population" anywhere in

the Corrections system except Bridgewater or

Walpole, because he had been denied due process

of law in the course of the Disciplinary Board

hearings. The transfer aspect of the

complaint was not reached. The respordent

appealed, ard at his request Judge Julian

stayed execution of his injunction order.

The petitioner cross-appealed the scope of

the order.

Just before briefs were due to be filed

in the United States Court of Appeals for the

First Clreuit, this Court reversed Fano v.

Meachum, 520 F. 2d 374 (1st Cir. 1975), sub

nom, Meachum v. Fano, 427 U.S. 215 (1976),

and in the court below the petitioner, there-

fore, admitted that he was now foreclosed from

pressing any damages resulting solely from

the geographical transfer from Bridgewater.

(That issue was not involved in the appeal,

since, as noted, the district court had not

addressed it.) However, petitioner maintained

that this Court's opinion in Meachum did not

vitiate the unconstitutionality associated

with his solitary confinement and his subsequent

Disciplinary Board hearings, and that he was

entitled to limited Due Process protections,

both on the basis of the Cons‘itution itself and

rights with "roots in state law." The Court of

Appeals held that Meachum "leaves plaintiff's

case in shreds", vacated the injunction, and

remanded with instructions to dismiss. Petitioner

sought rehearing, pointing out that the court

had not addressed the state law issue, and that

he had demonstrated a sufficient "liberty

interest" to trigger Due Process protections.

Rehearing was denied without opinion and this

petition duly presented herewith.

REASONS FOR GRANTING THE WRIT

Because petitioner's disciplinary

solitary confinement necessitated his transfer

from a prison where he was in "general

population" to a prison having solitary

confinement cells, the lower court here read

Meachum v. Fano, 427 U.S. 215 (1976), as

insulating his subsequent solitary confinement

and his disciplinary hearings from constitutional

attack, even though it was admittedly

accomplished without due process of law, because,

as the court viewed Massachusetts law, the

power to transfer prisoners was unbridled. The

court said that Meachum "drastically changed

the climate for prisoners' due process claims.

Now these claims must withstand a strict pre-

liminary test: the prisoner mist show that

he has been deprived of a ‘liberty interest’

at the hands of the state. And, in this

corner of due process at least, ‘liberty’ is

largely defined by state law and by the specific

guaranties of the federal constitution."

—————————

10

Appendix A, page 32, infra. Since its un-

published opinion in this case, the First Cir-

cuit has twice more made its position even

clearer.1 Petitioner maintains that this is

a@ dangerously mistaken reading of several of

this Court's opinions in this important and

burgeoning area of prisoners' rights, anid unless

the Court corrects this error and clarifies the

law, even greater injustices will perforce

follow. Since Meachum, two other Circuits,

ard at least one district court already share

this First Circuit aberration. @ However,

lLombardo v. Meachum, F.2d (Ast

Cir. 1977), No. 76-1265, January 20, 1977; Four

Certain Unnamed Inmates of Massachusetts Cor-

rectional Institution at Walpole, Mass. v. Hall,

__ F. 2d ss (Ast Cir. 1977), No. 76-1554,

March 18, 1977.

2pranklin v. Fortner, 541 F. 2d 494 (Sth

Cir: 1976); Cooper v. Riddle, 540 F. 2d 731

(4th Cir. 1976); Martinez v. Oswald, 425 F.

Supp. 112 (W.D.N.Y. 1977)

ll

a third Circuit, and at least three district

courts, have taken contrary (and, petitioner

submits, correct) positions.3 This fundamental

disarray in the lower courts will, of course,

multiply unless this Court clarifies the

constitutional parameters, and this case pre-

sents a compelling vehicle in which to do so.

Spowell v. Ward, 542 F. 2d 101 (2d

Cir. 1976); Mawhinney v. Henderson, 542

F. 2d 1 (2d Cir. 1976); Cook v. Brockway,

424 F. Supp. 1046 (N.D. Texas 1977); Sites v.

McKenzie, 425 F. Supp. 1190 (N.D. W. Va.

1976); Lavine v. Wright, 423 F. Supp. 357

(C.D. Utah 1976). See also, albeit pre-

Meachum, Powell v. Ward, 392 F. Supp. 628

(S.D. N.Y. 1975), modified, post-Meachum,

542 F. 2d 101 (2d Cir. 1976), supra.

In Montanye v. Haymes, 427 U.S. 236, 242

(1976), the Court described its Meachum holding

thusly: "We held in Meachum v. Fano, that no

Due Process Clause liberty interest of a duly

convicted prison inmate is infringed when he is

transferred fom one prison to another within the

State, whether with or without a hearing, absent

some right or justifiable expectation rooted in

state law that he will not be transferred except

for misbehavior or upon the occurrence of other

specified events." Since the Court had held in

Meachum that Massachusetts law permitted prison-

er transfers "for no reason at all," the lower

court here held that to be dispositive: that

the transfer provided, in essence, a constitu-

tional prophylactic — that the court would not

look beyond the transfer to determine if the pe-

tioner had been unconstitutionally put into soli-

tary at the transferee prison — because this was

"a transfer ase." Even if petitioner had no

rights or expectations "rooted in state law"

13

(which petitioner controverts, see pages

24 = 27, infra) he maintains that that

absence here is not the sine qua non to relief,

because the Constitution itself requires that

at least he cannot be put into solitary without

affording him some Due Process protections.

Meachum, correctly interpreted, did not make

prisoners wholly dependent upon the vagaries

of state law as the only triggers to some

constitutional Due Process. Some hard core

of fundamental "liberty interests" are "rooted"

in the Constitution itself, and wherever that

line may come to be drawn, petitioner maintains

that a prisoner has a constitutional right

not to be put in solitary "for no reason at

all." Meachum is not to the contrary. The

"transfers" it addressed were only changes in

geographical confinement, not the "major change

in the conditions of confinement"4 surely

worked by a "transfer" to solitary. State law

4wolff v. McDonnell, 418 U. S. 539,

$71, n. 19 (1974).

14

was not intended to envelop every prisoner's

right. Justices Stevens, Brennan, and

Marshall, dissenting in Meachum, at 235

well recognized this in expostulating that

physical transfers should also be entitled

to constitutional protection:

",...On the other hand,

I am unable to identify a

principled basis for differenti-

ating between a transfer from

the general prison population to

solitary confinement and a transfer

involving equally disparate conditions

between one physical facility and

another."

The former was, of course, entitled to Due

Process protections (this case); the latter

was the Meachum case. As noted above (cases

in footnote 3, page 11, supra) , the Second

Circuit and three District Courts have

correctly so interpreted Meachum in the light

of the Court's earlier cases, but the First,

Fourth and Fifth Circuits misapprehend

(cases set out in footnote 2, page 10, supra).

That solitary confinement is Constitutionally

protected, whatever state law may or may not

provide, should be clear from the watershed

15

of Wolff v. McDonnell, 418 U.S. 539, 555-556

(1974), where Mr. Justice White for the Court

said, with no allusion to the provisions of

state law eventually held determinative

therein, that "a prisoner is not wholly

stripped of constitutional protections when

he is imprisoned for crime. There is no iron

curtain drawn between the Constitution and

the prisons of this country....They may not

be deprived of life, liberty, or property

without due process of law. Haines v. Kerner,

404 U.S. 519 (1972)...." Specifically

reaffirming that part of Wolff, Mr. Justice

White, again, for the Court noted in Meachum,

at 225, with no reference to state law, "that

the convicted felon does not forfeit all

constitutional protections by reason of his

conviction and confinement in prison. He

retains a variety of important rights that

the courts must be alert to protect." Haines v.

Kerner, supra, cited in Wolff, also said nothing

about state-created rights: the Federal Civil

Rights Act "complaint was premised on alleged

action of prison officials placing him in

solitary confinement as a disciplinary

measure,..." in violation of his rights to

Due Process, and it was held to state a valid

16

cause of action. A pure-bred "red cow case.”

Just as clear is Baxter v. Palmigiano, 425 U.S.

308 (1976), where, again not mentioning any

state law nexus, the Court noted: "None of the

named plaintiffs in No. 74-1194 was subject

solely to loss of privileges; all were brought

before prison disciplinary hearings for allega-

tions of the type of ‘serious miscorduct,'...

that we held in Wolff to trigger procedures

therein."> Without rights "rooted in state

law" it is clear since Meachum that no prisoner

may complain of his transfer without status

change to another prison, but it should be

equally clear that rights "rooted" in the

Constitution protect him from solitary con-

* The infraction of remaining plaintiff

ein Baxter, ps. 310-311, “could have also led to

state criminal proceedings," and after the

hearings “he was assigned to ‘segregation.'"

All of these petitioner's charges were actually

referred to the District Attorney for prosecu-

tion, and he was, of course, in solitary, before

and after his hearings, and the Disciplinary

Board recommended "isolation."

17

finement, (it, of course, takes a “transfer”

to get him there) unless he is afforded the

limited Due Process procedures specified by the

Court in Wolff. The lower court here erred in

ruling that since Meachum state law has occupied

the field, (footnote, * , pages 32- 33, infra)

and this Court should now make that clear

before other courts are infected with the same

error.

While the court below recognized the fact

of petitioner's solitary conf‘inement , © it simply

ignored the reality of that substantial change

in his status of confinement:

"... He argues, for example,

that enforced isolation meets the

"liberty interest’ test. We note,

_ however, that the hearings led, not

to isolation, but to a susperded sen-

tence. The period of suspension has

Sv. .On September 16, 1975, plaintiff

was transferred without warning to a segregation

unit (‘ten block') in the Walpole prison."

Appendix A, page 3], infra.

18

has now expired without incident.

The disciplinary hearings, in

short, have not impinged on

plaintiff's interest in avoiding

isolation." Appendix A, page 33,

infra.

The Court did not indicate, even to use

quotation marks around “isolation” in the

second sentence, but “isolation” in Massachusetts

corrections law is "a term of art." There

are a few cells at Walpole, used for discipli-

nary purposes, which are even more solitary

than Ten Block. A restrained description of

how solitary wd confining the conditions in

Ten Block are, may be found in Daigle v.

Hall, 387 F. Supp. 652 (Mass. 1975). The

lower court seemingly felt that Ten Block

was not “solitary” enough, as a matter of

constitutional law; that Due Process was re-

quired (maybe) before "isolation" in Massachu-

setts, but Ten Block awaited any prisoner

"for no reason at all." That is a cruel joke,

not constitutional law. A reading of Daigle v.

Hall, supra, should easily demonstrate that

whatever may come to be meant by "solitary

confinement," any prisoner in "general popula-

tion” would have a very keen “interest” in

19

not being so confined—-that in any sense of

the human condition, it is an interest in

"liberty"-—-and as such, an interest conferring

on the prisoner some limited Due Process Clause

protections. It is at least as important as

"the liberty interest in reputation,” which

the Court has held protected by the Due Process

Clause. Goss v. Lopez, 419 U.S. 565, 576

(1975).

This Court has not constitutionally

defined “solitary confinement," but in Wolff,

page 571, it was equated to "a major change in

the conditions of confinement." It is clearly

not "a term of art," however, for in the Wolff

opinion the Court also uses interchangeably:

"confinement in a disciplinary cell" (page 547),

"a dry cell” (Page 552), and "disciplinary

confinement" (pages 557 and 571). Always

speaking of "solitary cénfhement or conditions

similar to it,"’ other courts have used other

7Hodges v. Klein, 421 F. Supp. 1224

(N.J. 1976).

20

words: "maximum security,"8 "segregation, "9

"punative segregation,"10 "a segregation cell,"2

or "segregated confinement."12 In some cases

the descriptive word was the one used at the

prison in question, and sometimes the word was

Spranklin v. Fortner, 541 F. 2d 494 (Sth

Cir. 1976); Cooper v. Riddle, 540 F. 2d 731 (4th

Cir. 1976); Breedon v. Jackson, 457 F. 2d 578

(4th Cir. 1972).

%smith v. Fenton, 424 F. Supp. 792 (E.D.

Ill. 1976).

10“awhinney v. Henderson, 542 F. 2d 1, 2

(2d Cir. 1976).

cook v. Brockway, 424 F. Supp. 1046 (N.D.

Texas 1977).

12sweet v. South Carolina Department of

Corrections, 529 F. 2d 854 (4th Cir. 1975); Ford

v. Board of Managers of New Jersey State Prison,

407 F. 2d 937 (3d Cir. 1969).

21

the court's own selection, but for constitution-

al purposes they were all talking about the same

thing. It may develop that the exact kind of

confinement which triggers Due Process protec-

tions becomes semantically difficult -- another

one of those things you know when you see it —

but for now this petitioner asks that an easy

line be drawn: Ten Block is "solitary confine-

ment" for constitutional purposes, and he could

not be put there "for no reason at all".

One comment in the lower court's opinion

might be thought to blunt the relevance of this

constitutional issue. The court said that Mea-

chum "leaves plaintiff's case in shreds, for the

heart of his claim was the illegality of his

transfer." (Appendix A, page 33,infra) As the

complaint was brought before Fano v. Meachum,

supra, was reversed, the petitioner did allege

that his move to Walpole was itself unconstitu-

tional, as a matter of chronology, but he also

alleged that his Ten Block confinement and his

Disciplinary Board hearings deprived him of con-

stitutional rights. Lest the Court be troubled

that the clean constitutional issue may not be

reached because of a fuzzy question of inept

pleading, the easiest proof that the Court of

Appeals' characterization of the complaint is

simply wrong, is the District Court opinion here.

22

That court specifically noted that the petition-

er alleged unconstitutionality both as to his

Ten Block confinement and the Disciplinary Board

hearings, ruled the latter were unconstitutional

and ordered his release from Ten Block, and did

"not address the issue" of the illegality of his

transfer from Bridgewater. (Appendix B, pages

3839, infra).13 ‘The Court of Appeals’ comment

is susceptible of another, yet equally erroneous,

meaning: that rather than referring to the alle-

gations of the complaint, it meant that since

petitioner's solitary confinement perforce neces-

sitated a "transfer" from "general population"

13the Court below said that the district

court "relied on our short-lived authority in

Fano v. Meachum, 520 F. 2d 374 (list Cir. 1975S);

it held that the plaintiff's transfer must meet

standards imposed by the due process clause of

the Fourteenth Amendment". (Appendix A, page 51,

infra. That is dead wrong. Not only did the

district court specifically say that it did "not

address the issue" of transfer, it provided re-

lief because the Disciplinary Board hearings did

not afford the petitioner due process of law, as

the court noted two sentences later.

23

this was a “transfer case", governed by Meachum.

That the court holds that view, applied to almost

exactly the same conditions as this case, is

spelled out in its opinion in Four Unnamed Inmates

of Massachusetts Correctional Institution at Wal-

pole, Mass. v. Hall, f. 2a (lst Cir.

1977), No. 76-1554, March 18, 1977. Meachum , of

course, does not so hold, as above demonstrated.

If the Court intended Meachum's reach to encom-

pass all status transfers, rather than only geo-

graphical transfers, it would not have done so

sub silentio, requiring the reversal of a dozen

prior decisions. It is sheer sophistry to hold

that since solitary confinement from general pop-

ulation requires a "transfer", it may be accan-

plished "for no reason at all", unless there is

a right "rooted in state law" — yet that is the

lower court's holding. It must be struck down.

On the issue of the Disciplinary Board hear-

ings, which the district court ruled were uncon-

stitutional, the Court of Appeals held in essence

that was moot because the sentences of "isola-

tion" were suspended. (Appendix A, page 33, infra

That cavalier disposition not only ignores the

fact that the suspension was, specifically, only

because of the lengthy, unconstitutional Ten

Block time he had already served, but also ignores

24

the other results of the illegal hearings. One

simple example will suffice: the district court

correctly found that Board's findings "serve as

&@ predicate” for the subsequent reclassification

hearing; that the "denial of due process in the

disciplinary hearings contaminates, therefore,

the classification hearing"; and that "[a]ny sub-

stantial adverse modification of the conditions

of confinement resulting from the classification

hearing would obviously result in irreparable in-

Jury to the plaintiff.” (Appendix B, page 43, in-

fra). So mesmerized by the pervasiveness of the

"transfer" issue was the lower court, and so in-

sensitive to the realities, that it simply ig-

nored this wholly separate issue of unconstitu-

tionality, which is viable even if the petition-

er's prior solitary confinement had not occurred.

Even if the Court were to determine that

petitioner's solitary confinement is not a suffi-

cient "liberty interest" to be afforded Due Pro-

cess protection by force of the Constitution

alone, and that he must demonstrate that some

right “rooted in state law" was here violated,

petitioner maintains that that Due Process "trig-

ger" is also present.14 State regulations, en-

ad noted above, this alternative basis

25

acted pursuant to statute, constitute part of

"state law", of course. The Court considered

"Nebraska statutes and regulations” in Wolff, in

determining the import of "state law", and Mea-

chum spoke of "statute . . . rule or regulation",

"specific laws or regulations", and even “state

law or practice” in searching for any "roots".15

for constitutional protection was argued in peti-

tioner's First Circuit brief, not addressed in

the court's opinion, the oversight urged upon re-

hearing, and again ignored by the court's denial

of rehearing without comment or reason.

MS even the First Circuit has no difficulty

with the proposition that regulations constitute

part of "state law", routinely evaluating them

in Four Unnamed and Lombardo, supra, as have

other courts in this context. Finley v. Staton,

$42 F. 2d 250 (Sth Cir. 1976); Lavine v. Wright,

423 F. Supp. 357 (C.D. Utah 1976); Hodges v.

Klein, 421 F. Supp. 1224 (N.J. 1976).

26

The respondent Commissioner had, in accor-

dance with statute, duly promilgated disciplinary

regulations which were in force at the times here

relevant. (Appendix C, pages 50-56, infra).

Under those regulations, the prisoner's "custody

prior to the [Disciplinary Board] hearing will

normally remain unchanged. He may be placed in

prehearing detention only where he is a threat

to himself or others." (Page 56, infra). "Under

no circumstances" could more than six days go by

between the violation serious enough to warrant

a Disciplinary Board hearing and the hearing it-

self. (Pages 55-56, infra). No Massachusetts

prisoner could be disciplined in a "major matter",

so-called, such as the charges against the peti-

tioner, without a Disciplinary Board hearing (un-

less "the sanction" is "accepted" by the prisoner,

which, of course, did not happen here), and his

custody status could not be changed prior to the

hearing for more than six days. Massachusetts,

rhe regulations then in effect governing

the procedures before the Disciplinary Board,

generally "track" the limited Due Process pro-

cedures specified by the Court in Wolff.

27

therefore, having interposed these regulations

between its prisoners and any disciplinary sanc-

tion, including the assurance of no pre-hearing

change in status for longer than six days, this

petitioner had "some right or justifiable expec-

tation rooted in state law that he [would] not be

transferred except for misbehavior or upon the

occurance of other specified events" -- at least

for no more than six days -- (even if, arguerdo,

"transfer" means more than geographical change).

Montanye v. Haymes, supra, at 242. Note well that

these disciplinary regulations are not the re-

Classification regulations the Court assessed in

Meachum, which were the same regulations this low-

er court also found not to constitute a substan-

tive right in Four Unnamed and Lombardo, supra.

In the former case, the District Court judge had

ruled the regulations did create a "justifiable

expectation", 424 F. Supp. 357 (Mass. 1976). Pe-

titioner has been able to locate only three other

decisions addressing this issue, post-Meachum, and

all three directly support petitioner's contention,

and are, therefore, in conflict with the court be-

low, albeit sub silentio. Lavine v. Wright, 423

F. Supp. 357 (C.D. Utah 1976); Hodges v. Klein,

421 F. Supp. 1224 (N.J. 1976); MacKinnon v. Patter-

son, _F. Supp. ___ (S.D. N.Y. 1976), No. 73-

~

28

A A

3998, September 13, 1976. APPENDIX A

NOT FOR PUBLICATION

CONCLUSION

UNITED STATES COURT OF APPEALS

For the reasons 3et forth above, it is

respectfully submitted that this petition for , FOR THE FIRST CIRCUIT

a writ of certiorari should be granted.

No. 76-1195.

Francis J. Dimento

Dimento & Sullivan GORDON O'BRIEN,

100 State Street Plaintiff, Appellee,

Boston, Mass. 02109 m

FRANK A, HALL, ETC.,

Defendant, Appellant.

Of counsel:

Daniel F. Featherston, Jr. No. 76-1202.

y ee GORDON O'BRIEN,

Boston, Mass. 02109 Plaintiff, Appellant,

Vv.

FRANK A, HALL, ETC.,

Defendant, Appellee.

APPEALS FOR THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Anthony Julian, Senior District Judge]

Before COFFIN, Chief Judge,

CLARK*, Associate Justice, U.S. Supreme

(Ret), and CAMPBELL, Circuit Judge.

Daniel F. Featherston for Gordon O' Brien

Lee Carl Bromberg, Special Assistant Attorney

General, for Frank A. Hall, etc.

December 29, 1976

*Sitt ing by designation.

31

COFFIN, Chief Judge. Plaintiff is a Massachu-

setts prisoner; defendant is the state commissioner

of corrections. In 1975, the commissioner became

concerned about conditions in the state prison at

Bridgewater, Massachusetts. He came to suspect

that plaintiff was intimidating inmates and guards

alike. When he decided to investigate the prison,

the commissioner ordered plaintiff summarily trans-

ferred to the state prison at Walpole, Massachu-

setts. The Walpole prison is generally regarded as

a less desirable place to serve time than the prison

at Bridgewater. On September 16, 1975, plaintiff

was transferred without warning to a segregation

unit ("ten block") in the Walpole prison. After a

long investigation, plaintiff was charged with sev-

eral assaults. He responded with this suit, seek-

ing a return to Bridgewater. While this suit was

pending, elaborate disciplinary hearings were held

on the assault charges in November and December

of 1975. Plaintiff was found guilty on four counts

and sentenced to isolation for thirty days. He had

been in the segregation unit for almost three

months at this point. When plaintiff appealed-to

the commissioner, the sentence was suspended for

ninety days because of the time plaintiff had spent

in segregation.

This suit, meanwhile, progressed in the district

court. After extensive hearings, the district court

granted a preliminary injunction in plaintiff's favor.

The court relied on our short-lived authority in Fano

v. Meachum, 520 F.2d 374 (Ist Cir. 1975); it held

that plaintiff's transfer must meet standards im-

posed by the due process clause of the Fourteenth

Amendment. The commissioner argued that due pro-

cess was provided by the disciplinary hearings held n

32

November and December. Scrutinizing the disciplin-

ary hearings through the lens of the due process

clause, the court found it likely that plaintiff would

prevail on his claim that the hearings were deficient.

A few days later, however, the court stayed the in-

junction pending appeal, and plaintiff has remained

in ten block ever since. Both parties appealed, def-

endant from the injunction and plaintiff from limi-

tations on its scope.

Weeks after these developments, our decision in

Fano v. Meachum, supra, was reversed by the Su-

preme Court in Meachum v. Fano, 44 U.S. L. W.

5053 (U.S, June 25, 1976). Meachum drastically

changed the climate for prisoners' due process

claims. Now these claims must withstand a strict

preliminary test: the prisoner must show that he

has been deprived of a “liberty interest" at the

hands of the state. And, in this corner of due pro-

cess at least, “liberty” is largely defined by state

law and by the specific guarantees of the federal

constitution. Thus if under state law, a prisoner

may be deprived of some interest only because of

serious misconduct or some other specified event,

that interest becomes part of the liberty protected

by the due process clause. Meachum v. Fano, supra,

44 U.S. L. W. at 5057.

Under Massachusetts law, a transfer from one

prison to another does not give rise to due process

rights, so long as the transfer does not infringe

other constitutional rights or violate the terms of

the original sentence.* Meachum v. Fano, supra.

*Plaintiff seems to argue that a transfer may be

protected by the constitution independent of state

law if the transfer implicates an mterest of "real

33

This holding leaves plaintiff's case in shreds, for

the heart of his claim was the illegality of his trans-

fer. To shore up his case, plaintiff suggests other

interests that were endangered by the disciplinary

hearings. He argues, for example, that enforced

isloation meets the "liberty interest" test. We

note, however, that the hearings led, not to isola-

tion, but to a suspended sentence. The period of

suspension has now expired without incident. The

disciplinary hearings, in short, have not impinged

on plaintiff's interest in avoiding isolation. Plain-

tiff suggests that "good time” is liberty interest.

But he also admits that he was convicted of rape,

Mass. Gen. L. Ann. ch. 265, § 22, and under state

law rapists are not entitled to "good time”. Id. ch.

127, §129. Finally, the fact that guilty findings

will be on plaintiff's record does not by itself im-

plicate a liberty interest. Meachum v. Fano, supra,

44 U.S.L. W. at 5058 n. 8. Plaintiff identifies no

other possible liberty interests at stake in this case;

since none of his suggestions survive scrutiny, we

need not go further. Neither the injunction nor the

plaintiff's request for damages can stand after

Meachum v. Fano.

The preliminary injunction is vacated, and the

case is remanded with instructions to dismiss.

substance", citing Wolff v. McDonnell, 418 U.S.

539, 557 (1974). This reading of Wolff cannot sur-

vive the statement in Meachum v. Fano, supra, that

"[ t]he liberty interest protected in Wolff had its

roots in state law". 44U.S.L.W, at 5057.

34

APPENDIX B

UNITED STATES DISTRICT COURT

District of Massachusetts

GORDON O'BRIEN,

Plaint iff ;

: CIVIL ACTION

v. : NO, 75-4783-]J

FRANK A, HALL, inhis capacity :

as Commissioner of Corrections :

of and for the Commonwealth of

Massachusetts,

Defendant

ORDER

April 28, 1976

JULIAN, Senior District Judge

A hearing has been held on plaintiff's application

for a preliminary injunction contained his amended

complaint. Evidence was received over a period of

eight trial days. The underlying factual situation

is set out in the Court's Order of February 19, 1976

denying the plaintiff's application for a temporary

restraining order in large part because:

"On the present state of the evidence

the Court finds that the plaintiff has

failed to establish that there is a sub-

35

stantial likelihood that he will ul-

timately prevail in his claim to be

transferred back to M.C. I. Bridge-

water and returned to his status

there prior to his transfer to Wal-

pole."

It is conceded by the defendant that the plaintiff

was transferred from the general prisoner popula-

tion of the BX Unit at M,C. L Bridgewater to seg-

regation in 'Ten Block' at M,C. 1, Walpole on Sept-

ember 16, 1975, without prior notice or hearing.

Further, the defendant admits that the transfer re-

sulted in a significant adverse modification of the

overall conditions of confinement of the plaintiff.

Accordingly, under the holding of Fano v. Meachum,

520 F. 2d 374 (1 Cir. 1975), cert. granted, 44 U.S, L.

W. 3339 UU.S, December 8, 1975), the transfer

called for the application of those protections pro-

vided, under these circumstances, by the Due Pro-

cess Clause of the Fourteenth Amendment of the

Constitution.

The plaintiff's amended complaint prays for the

issuance of a preliminary injunction enjoining the

defendant "from continuing the confinement of the

plaintiff in segregation in 'Ten Block’ in M,C, 1. Wal-

pole, and directing his transfer forthwith to M. C. L

Bridgewater and a return to his prior status there”

or, in the alternative, "to 'general population’ status

in some other Massachusetts correctional institu-

tion", from subsequently transferring the plaintiff

to "any status of higher security” without first pro-

viding the plaintiff with a constitutionally adequate

hearing including certain requested procedures; ” and

Int written notice specifically detailing the

36

from "subsequently inflicting summary physical

punishment on the plaintiff."

At the outset it must be noted that the inade-

quate and unsatisfactory manner in which both coun-

sel presented their evidence at the hearing on the

charge or basis for his proposed transfer to segre-

gation status is to be delivered to the plaintiff and

his counsel of record in this case within a reason-

able time prior to a hearing thereon, the time for

which shall be specified therein;

"IL the plaintiff is to be afforded the assistance

of counsel in preparation for the hearing;

"III. a hearing shall be held on the date specified

in the notice, or on a date either party may reason-

ably have requested it be continued to, before an

impartial tribunal consisting of three or more per-

sons to be designated by the Superintendent of such

institution, which hearing need not be conducted in

accordance with the strict rules of evidence, but

the determination of the tribunal shall be based on

reliable and substantial facts;

"IV. the plaintiff shall be afforded the right to

testify at the hearing, to call witnesses and present

evidence on his own behalf, and to cross-examine

persons giving testimony against him;

"V. a record shall be made of the hearing, either

by a stenographic reporter or a tape recorder or

other satisfactory recording device, and such record

shall be maintained and made a part of the plaintiff's

37

preliminary injunction necessitated continual parti-

cipation by the Court in order to elicit pertinent,

clarifying evidence. In particular, counsel for the

defendant went forward in a halting and markedly

unprepared fashion. He has attempted to remedy

this performance by a lengthy recitation of the

"facts" in the "Defendant's Memorandum in Lieu of

Closing Argument." However, many of the "facts"

alluded to were either not presented in evidence at

the hearing or were taken from exhibits introduced

for a purpose other than the purposes for which the

defendant has utilized them in his memorandum.

The grant of a preliminary injunction lies within

the sound discretion of the Court. Anheuser-Busch

Inc, v. Teamsters Local No. 633, etc., 511 F.2d

1097 (1 Cir. 1975), cert. denied, 44 U.S.L.W. 3226

(October 6, 1975). Its purpose is to preserve the

status quo pending a determination of the action on

institutional record, and be made reasonably avail-

able to the plaintiff and his counsel prior to the

tribunal's final determination; and

"VIL the tribunal shall make written findings of

fact upon which its determination of the charges is

based, and shall furnish a copy thereof to the plain-

tiff and his counsel."

‘yes example, information gathered from the in-

vestigation conducted after the plaintiff's transfer,

and recorded in Exhibit 6, is presented in the def-

endant's memorandum as if such information had

been known to the defendant Commissioner prior to

the transfer.

38

the merits. Owens v. School Committee of Boston,

304 F. Supp. 1327 (D, Mass. 1969). It is a well-

settled proposition of law in'this Circuit that in or-

der to prevail in its application for a preliminary in-

junction the plaintiff bears the burden of showing (1)

immediate and irreparable injury, (2) a substantial

likelihood of success on the merits, and (3) that the

harm to the movant outweighs the harm to the oppos-

ing party and to the public. Pauls v. Secretary of

Air Force, 457 F. 2d 294 (1Cir. 1972); International

Ass'n of M, & A. W. v. Northeast Airlines, Inc. ,

473 F.2d 549 (1 Cir. 1972), cert. denied, 409 U.S,

845 (1972); Jones v. National Collegiate Athletic

Ass'n, 392 F.Supp. 295 (D. Mass. 1975).

We now turn to a consideration of the facts of

this case in light of the above-enunciated principles,

and bearing in mind that the "power to grant injunc-

tive relief should be used sparingly, cautiously, and

only where the necessity for such relief is clear."

Plumbers Local No. 519 v. Construction Industry

Stabilization Comm., 350 F.Supp. 6 (S. D. Fla. 1972),

quoted with approval in Castro v. Beecher, 386 F.

Supp. 1281 (D. Mass. 1975).

Findings of fact herein stated are based upon the

present state of the evidence and are subject to re-

vision in the light of such additional evidence as may

be introduced at the trial on the merits.

The defendant, in order to meet his concessions

that the plaintiff was transferred without prior no-

tice and hearing, has asserted that the transfer

occurred in the face of exigent circumstances, and

that the plaintiff was provided with a hearing sat-

isfying the requisites of the Due Process Clause as

soon after the transfer as was possible. The plain-

tiff disputes these contentions. We do not address

39

the issue of exigent circumstances in light of our

finding below with respect to the disciplinary hear-

ings which were provided the plaintiff subsequent to

his transfer.

The plaintiff attacks the adequacy of the discip-

linary protections afforded him at hearings held by

the Department of Corrections on November 14,

November 26, December 1, December 3, and Decem-

ber 10 of 1975, for their alleged failure to comply

with the mandate of the Due Process Clause in sev-

eral respects. The Court finds that there is a sub-

stantial likelihood that the plaintiff may prevail at

a trial on the merits in his claim that the presence

of counsel for the defendant Commissioner during

the deliberations of the Disciplinary Board, pertain-

ing to the guilt or innocence of the plaintiff on the

charges alleged against him in the disciplinary re-

ports, violated the plaintiff's due process rights.

On November 17, 1975, United States Magistrate

Davis issued an order recognizing the plaintiff's han?

written letter dated November 6, 1975, as a com-

plaint alleging a violation of 42 U.S.C. § 1983 by the

defendant. Deliberations of the Disciplinary Board

resulting in findings of guilty as to four disciplinary

reports, were held on December 1, December 3, and

December 10, 1975. Counsel for the defendant

Commissioner appears to have participated in all

deliberations.

In Daigle v. Hall, 387 F.Supp. 652 (D.C. Mass.

1975), the Court sets forth the minimum procedural

protections required by the Due Process Clause at

prison hearings such as the ones involved in this

case. One such protection is the right to an impar-

tial tribunal. The Court notes:

"Practical necessity requires that the

hearing tribunal will ordinarily be made

up of prison staff with prior knowledge

of the inmate and some general interest

in the outcome. The requirement of im-

partiality requires, at the very least,

however, that the tribunal not include

the accusing officer." (Emphasis added, )

387 F.Supp. at 660.

While counsel for the defendant Commissioner did

not act as an accusing officer at the disciplinary

hearings, it is clear that as an attorney represent-

ing the Commissioner in a suit challenging his auth-

ority to transfer the plaintiff, counsel had more

than "some general interest in the outcome".

The defendant has repeatedly argued that the

chief purpose of the transfer was to allow the Com-

missioner to cause a thorough investigation of the

plaintiff's behavior at Bridgewater in order to de-

termine whether there was a factual basis for the

issuance of disciplinary reports. The reports, if

any were filed, would be acted upon by a Disciplin-

ary Board whose findings would, in turn, provide

the basis for a classification decision. Since the

result of the disciplinary hearings would have a di-

rect impact upon the plaintiff's status and upon

the extent to which the plaintiff's transfer could

be viewed as having been justified, counsel for the

defendant had an obvious interest in the outcome of

the disciplinary hearings. Consequently, defendant's

counsel was placed in a position where he or she wouki

have have been acting in two conflicting roles during

the Disciplinary Board deliberations concerning the

plaintiff's guilt or innocence, namely, his or her

41

role as an attorney advising the Disciplinary Board

on legal questions, and his or her role as an advo-

cate for the defendant Commissioner in a suit al-

ready initiated by the plaintiff and inextricably

cound up with the proceedings before the Disciplin-

ary Board.

The defendant argues that counsel's role at the

disciplinary hearings was limited to providing legal

advice regarding procedural matters to the lay

Board members. We would find no fault with coun-

sel's actions were his or her role to have been con-

fined to giving such legal advice. We are concerned

not with the advisory role counsel played during the

presentation of the case against the plaintiff, but

the nature and extent of their participation in the

Disciplinary Board's deliberations concerning the

guilt or innocence of the plaintiff, for it is at that

juncture that the plaintiff's right to an impartial

tribunal comes into play. We are unable, however,

to determine what role counsel played during the

Board determinations, as there is no stengraphic

transcript of that portion of the disciplinary pro-

ceedings and no evidence on that issue was present-

ed at the hearing. Moreover, it would seem too

clear for argument that a fair hearing presupposes

an impartial tribunal and that participation by an

advocate at the tribunal's adjudicatory deliberations

renders impartiality most difficult, if not impossi-

ble, to maintain.

Indeed, the Supreme Court has held that the right

to an impartial tribunal is so basic a requirement of

due process, that even the probability of bias ina

decision maker must be avoided. In Re Murchison,

349 U.S, 133 (1955). In that case the Court, in hold-

ing that a state judge, serving as a “one-man grand

42

jury" under Michigan law in the investigation of

crime, violated the Due Process Clause when he

convicted, and sentenced for contempt, two wit-

nesses who, in appearing before him, had refused

to answer questions propounded by him, noted:

"A fair trial in a fair tribunal is a

basic requirement of due process.

Fairness of course requires an ab-

sence of actual bias in the trial of

cases. But our system of law has

always endeavored to prevent even

the probability of unfairness. To

this end no man can be a judge in his

own case and no man is permitted to

try cases where he has an interest in

the outcome. That interest cannot

be defined with precision. Circum-

stances and relationships must be

considered. This Court has said, how-

ever, that 'every procedure which

would offer a possible temptation

to the average man as a judge. . .

not to hold the balance nice, clear

and true between the State and the

accused, denies the latter due pro-

cess of law.' Tumey v. Ohio, 273

U.$. 510, 532. Such a stringent

rule may sometimes bar trial by

judges who have no actual bias and

who would do their very best to

weigh the scales of justice equally

between contending parties. But to

perform its high function in the best

way ‘justice must satisfy the appear-

ance of justice.' Offutt v. United

States, 348 U.S. 11, 14."

349 U.S, at 136,

Since we do not know, on the present state of

the evidence, what function counsel for the defend-

ant performed during the closed-door deliberations

of the Disciplinary Board, and since their presence

during the deliberations may have impaired the im-

partiality of the Board, the Court holds that the

plaintiff has borne his burden of showing a substan-

tial likelihood that he may prevail on the merits in

so far as his due process claim to an impartial tri-

bunal is concerned,

The defendant argues that this defect in the dis-

ciplinary hearings, if indeed it was a defect, has

been cured by the subsequent classification hearing

held on March 29, 1976, The Court does not agree.

The defendant admits that the Board's findings on

the disciplinary reports serve as a predicate to the

classification hearing. A denial of due process in

the disciplinary hearings contaminates, therefore,

the classification hearing held thereafter. See

King v. Higgins, 495 F.2d 815 (1 Cir. 1974) (per

curiam). Any substantial adverse modification of

the conditions of confinement resulting from the

classification hearing would obviously result in ir-

reparable injury to the plaintiff.

For similar reasons the Court finds that there

is a substantial likelihood that the plaintiff may

prevail at a trial on the merits in a claim that the

defendant Commissioner should not have been the

reviewing authority for the plaintiff's appeals from

the Disciplinary Board's findings of guilty on four

of the disciplinary reports. Where the Commission-

44

er was the defendant in this case, and where a hear-

ing on the issue of possible violations of the plain-

tiff's due process rights during the disciplinary pro-

cess was being held at the very time the Commis-

sioner undertook to act on the appeals, it is apparent

that a substantial question is raised as to the valid-

ity of the appeal due to a denial of the plaintiff's

right to an impartial appellate review. The Court

does not, contrary to the plaintiff's argument, find

any due process violation in the Commissioner's

actions in transferring appellate authority from

Superintendent Gaughan, but rath ®Tin the Commi-

ssioner's assuming that authority for himself. In-

deed, on the basis of the evidence thus far intro-

duced, the Court finds that the Commissioner was

fully justified in relieving Superintendent Gaughan

of those appellate duties conferred by Section V(8)

of Department Order 4310.1 "[ P] rison officials

may be justified in ignoring even emergency regula-

tions if they are unworkable in the circumstances. "

Carlo v. Gunter, 520 F.2d 1293, 1296, n. 5 (1 Cir.

1975). As the Court's findings below indicate, the

Commissioner could have reasgnably concluded that

Gaughan would not have st ood impartial in this mat-

ter.

The contentions raised by the plaintiff with re-

spect to alleged violations of his due process rights

to call witnesses in his own defense, and to confront

and cross-examine those furnishing evidence against

him, are without merit. See Baxter v. Palmigiano,

44 U.S.L.W. 4487 (U.S. April 20, 1976). The re-

maining contentions concerning procedural defects

violating the plaintiff's due process rights, alleged-

ly occurring during the disciplinary hearings, are

likewise without merit.

~~

|

45

As noted earlier, the Court must consider, in

addition to the issues of substantial likelihood of

success on the merits, and immediate irreparable

injury, the public interest as well as a balancing

of the equities, in granting a preliminary injunc-

tion. The evidence presently before this Court pro-

vides an ample basis for concluding that the return

of the plaintiff in any capacity to M.C.L Bridge-

water would constitute an undue threat of harm to

the plaintiff, to . ther members of the prisoner

population at Bridgewater, and to the maintenance

of security at the institution. 3

More particularly, on the evidence presently be-

fore it, the Court makes the following findings:

During the plaintiff's incarceration at Bridgewater,

a strong-arm group of prisoners Govelages, | headed

by inmates Robert Glavin and the plaintiff. 4

3We have relied especially upon that evidence pro-

duced at the disciplinary hearings, including confi-

dential exhibits preserved in Exhibit 6, as well as

other evidence contained in Exhibit 6.

Glavin was serving a life sentence for murder.

However, according to the testimony of the Super-

intendent of Bridgewater, Charles Gaughan, Glavin

escaped from Bridgewater approximately two weeks

after the plaintiff's transfer and is still at large.

The plaintiff is serving a sentence of 40-50 years

for rape and certain other related crimes of vio-

lence. The plaintiff is 31 years old, 6 feet 4 inches

tall, weighs approximately 230 pounds, is very strong

and is of a heavy build.

Glavin, in his capacity as the "front office runner,”

met daily with the Superintendent of Bridgewater,

Charles Gaughan, and was used by Superintendent

Gaughan as a source of information as to prisoner

activities within Bridgewater.5 Additionally, the

plaintiff and Glavin were the leaders of an inmate

committee, the "Resident Committee on Individual

Responsibility," which was used by Gaughan to police

inmate activities in the BX Unit. Asa result of

their membership on the Committee, their close re-

lationship with the Superintendent, Gaughan's sub-

stantial reliance upon their opinions, and their abil-

ities to maintain an appearance of control within

the BX Unit, Glavin, the plaintiff, and their inmate

associates achieved a position of dominance whereby

they could, and did, intimidate prisoners and correc-

tions officers alike in order to acquire favored

treatment for themselves. Both Glavin and the

plaintiff exploited their positions to the point where

they had virtual access to all parts of the institu-

tion at will; where they were able to protect them-

selves from the normal operation of the prison dis-

ciplinary process by intimidating corrections offi-

cers and exercising their influence with Gaughan;

“a a report of an interview with Gaughan on Dec-

ember 9, 1975, written by James D. Hoard and

Joseph Olson, investigators of the Security Manage-

ment Team of the Department of Corrections,

Gaughan is reported as having stated that he relied

heavily upon Glavin in his capacity as an informer.

He further stated that is was his opinion that Gla-

vin used the plaintiff as his bodyguard.

an

and where they were thereby left free to intimate

and assault their fellow prisoners. As a conse-

quence of the existence of this strong-arm group,

disciplinary control at Bridgewater was weakened

and staff morale sank to a dangerously low level.

To summarize, we find exignet circumstances

did exist which would have justified the action of the

defendant in removing the plaintiff without prior

notice or hearing so that a thorough investigation

into the activities of the plaintiff, the inmate com-

mittee, and the operation of the BX Unit at Bridge-

water might be effectively conducted. The Court

leaves open, however, the following issues until

further evidence and argument may be introduced at

the trial on the merits: Whether the defendant, or

his aides upon whose recommendations he relied,

possessed sufficient knowledge of the above facts

at the time of the plaintiff's transfer to justify a

claim of exigent circumstances; and whether per-

sonal knowledge of these facts is legally required

of the defendant, as opposed to his subordinates.

It would be an act of gross negligence for this

Court to return the plaintiff to Bridgewater in the

face of these findings. Accordingly, the Court, in

responding to its duty to weigh the equities of the’

parties and to consider the public welfare, denies

the plaintiff's prayer for an injunction directing his

return to his prior status at Bridgewater. §

*wThe award of an interlocutory injunction by

courts of equity has never been regarded as strictly

a matter of right, even though irreparable injury

may otherwise result to the plaintiff. . .[The

Court] will avoid. . . injury so far as may be, by

48

"Courts of equity may, and frequently

do, go much farther both to give and

withhold relief in furtherance of the

public interest than they are accus-

tomed to go when only private inter-

ests are involved." Virginian Ry. Co.

Systems Federation, 300 U.S, 515,

552 (1936).

On the other hand, the Commissioner of Correc-

tions testified at the hearing on the preliminary in-

junction that conditions of confinement at Massa-

chusetts county houses of correction substantially

approximated the conditions of confinement of the

general population of the BX Unit at M.C.L Bridge-

water, and that generally such institutions have se-

curity capabilities which would be adequate for pur-

poses of safely confining the plaintiff. On the ba-

sis of this testimony, the Court finds that, pending

final determination on the merits, it would be pos-

sible, and practicable, for the plaintiff to be con-

fined in a correctional institution other than M, C, L

attaching conditions to the award. . ." Yakus v.

United States, 321 U.S. 414, 440 (1944). "[I]t is

the duty of a court of equity granting injunctive

relief to do so upon conditions that will protect all

. « «whose interests the injunction may affect."

Inland Steel Co. v. United States, 306 U.S, 153, 157

(1939).

49

Bridgewater, in which conditions of confinement

would be substantially the same as those provided

for the general inmate population at M,C. 1 Bridge-

water,

Plaintiff's request for other preliminary relief

is denied, since none is warranted by the evidence.

Accordingly, it is hereby ordered that the def-

endant cause the plaintiff to be transferred with-

out unnecessary delay from M.C. I. Walpole to a

Massachusetts correctional institution other than

M.C.L Bridgewater, there to be imprisoned under

conditions of confinement substantially the same as

those provided for the general inmate population at

M.C,L Bridgewater until further order of the

Court.

(signed) Anthony Julian

U.S, Senior District Judge

50

APPENDIX C

Massachusetts Prison Disciplinary Regulations

D.O. 4310.1, Disciplinary Process -

Rules and Regulations

(relevant parts)

—_— ©

The Commonwealth of Massachusetts

Department of Correction

Leverett Saltonstall Building, Government Center

100 Cambridge Street, Boston 02202

May 16, 1975

Frank A. Hall

Commissioner

The Honorable Paul H. Guzzi

Secretary of the Commonwealth

State House

Boston, MA 02133

RE: D.O. 4310.1 Disciplinary Process

Dear Sir:

The Commissioner of Correction on May 16, 1975

approved D.O. 4310.1, Disciplinary Process--Rules

and Regulations under authority of G.L. c. 124, §§

51

1 (b), (i), and (q) and chapter 127, § 33. Notice was

published in newspapers on March 26 and 31, 1975

regarding the regulations pursuant to G.L. c. 304A,

§ 3. A copy of the Disciplinary Process--Rules and

Regulations is attached for filing in your office in

accordance with G.L. c. 30, § 37.

These regulations set forth previous departmen-

tal procedures for conducting disciplinary proceed-

ings against residents and reflect recent judicial

rulings which impose additional standards to be fol-

lowed by the Department in such proceedings. Also,

written comments regarding these regulations have

been received since the publication of the notice in

newspapers, and numerous conversations with per-

sons in the department and members of the public

have indicated that the following revisions are nec-

essary. . ."

x* *&«£ &

DISCIPLINARY POLICY

PURPOSE:

The disciplinary process is one of the most im-

portant elements of the correctional system be-

cause it affects the very lives, well-being, and at-

titudes of both residents and staff. These rules

are promulgated in the belief that a speedy and fair

adjudication of alleged wrong-doing coupled with

meaningful sanctions contributes to the maintenance

of security and the rehabilitation of the resident.

OVERALL SYSTEM:

52

These rules establish a hearing examiner system

for minor violations where a trained impartial in-

dividual (designated as the disciplinary officer) in-

vestigates the circumstances, makes a finding of

fact, and recommends a sanction(s) where approp-

riate within 24 hours of the alleged violation. If

the finding is adverse to the resident, he will have

the option of accepting the finding and sanction, or

of appealing the finding and/or sanction to a three

man disciplinary board. Major violations will be

certified to the disciplinary board for a formal hear-

ing where the resident may have the benefit of rep-

resentation, confrontation, and cross-examination.

The action of the board may be appealed to the su-

perintendent and certain sanctions may be appealed

to the Commissioner of Correction.

The rules and regulations encompass both the fol-

lowing boldfaced type and the lower case narrative.

oS eS

IL. REPORTING OF ALLEGED VIOLATIONS

A. EXCEPT FOR THOSE SITUATIONS WHERE ONLY

SLIGHT SUMMARY PUNISHMENT SHOULD BE

IMPOSED, ANY EMPLOYEE WHO OBSERVES OR

HAS RECEIVED REPORT OF AN APPARENT VIO-

LATION BY A RESIDENT AFTER TAKING APPRO-

PRIATE SECURITY MEASURES SHALL MAKE A

SUFFICIENT INVESTIGATION SO THAT HE IS

CERTAIN OF THE AVAILAPLI FACTS, HE

SHOULD IMMEDIATELY NOTIFY THE SHIFT

SUPERVISOR AND COMPLETE A DISCIPLINARY

REPORT.

53

These rules in no way preclude or discourage the

present practice of the informal handling of very

minor violations where an officer or supervisor

issues a warning or otherwise disposes of the

matter short of a formal sanction and disciplin-

ary report.

B. THE SHIFT SUPERVISOR WILL REVIEW THE

DISCIPLINARY REPORT FOR COMPLETENESS,

ACCURACY, AND POSSIBLE MITIGATING CIR-

CUMSTANCES AND SUPPLEMENT THE REPORT

WITH ANY PERTINENT DATA,

The supervisor has the authority to dismiss or

revise a charge and/or handle the matter infor-

mally. He also makes the decision as to the res-

ident's pre-hearing status pending consultation

with the disciplinary officer.

C, THE DISCIPLINARY REPORT WILL THEN BE

FORWARDED TO THE DISCIPLINARY OFFICER,

A COPY OF THE REPORT SHALL BE FURNISHED

TO THE RESIDENT.

The disciplinary officer has the responsibility

of serving the resident with both a notice of

charges and a copy of the disciplinary report as

soon as practicable. Alleged violations will be

investigated by the disciplinary officer unless he

certifies the matter directly to the board for a

formal hearing. Those matters certified direct-

ly to the board for a formal hearing are designat-

ed major matters while those retained by the dis-

ciplinary officer for his consideration are desig-

nated minor matters. Where the shift super-

visor has placed the resident in pre-hearing de-

tention, the disciplinary officer will consult with

the shift supervisor concerning the resident's

prehearing status.

IIL PROCEEDINGS BEFORE THE DISCIPLINARY

OFFICER

A, UPON RECEIPT OF THE DISCIPLINARY REPORT

THE DISCIPLINARY OFFICER WILL FIRST DE-

TERMINE WHETHER TO CERTIFY THE MATTER

TO THE DISCIPLINARY BOARD FOR A FORMAL

HEARING AS A MAJOR MATTER. WHERE THE

DISCIPLINARY OFFICER DESIGNATES THE CASE

AS A MINOR MATTER HE WILL CONDUCT AN

INDEPENDENT INVESTIGATION AND MAKE A

FINDING OF FACT WHICH SHALL SPECIFY: NOT

INVOLVED; INSUFFICIENT FACTS TO JUSTIFY

DISCIPLINARY ACTION; OR GUILTY OF A SPE-

CIFIC VIOLATION OR VIOLATIONS, A RECOM-

MENDED SANCTION SHALL ACCOMPANY A FIND-

ING OF GUILTY.

In every case to be considered on the merits by

the disciplinary officer he will interview the res-

ident after first serving him with a notice of

charges and a copy of the disciplinary report.

Where the resident contests the allegations, the

disciplinary officer shall interview the reporting

officer and others witnessing the events. The

findings of fact will be based upon reliable evi-

dence. Sanctions shall be recommended in light

of both the offense and the offender.

55

THE FINDINGS AND RECOMMENDED SANCTION

OR SANCTIONS SHALL BE IN WRITING AND PRE-

SENTED TO THE RESIDENT WHO MAY ELECT TO

ACCEPT THE FINDING AND/OR SANCTION, OR

MAY APPEAL EITHER OR BOTH TO THE DIs-

CIPLINARY BOARD.

The disciplinary officer or his representative

shall normally present the finding and recommend

ed sanction in person to the resident within 24

hours of the events, at which time he may discuss

the events and options with the resident and shall

advise the resident of his appellate remedy and

supply him with the requisite form. In the spec-

ial circumstances where the investigation cannot

be completed within 24 hours of the events, the

resident shall be so informed within the 24 hour

period. Under no circumstances will a finding

and sanction be presented after 72 hours from

the events in question.

WHERE THE FINDING AND/OR SANCTION IS AP-

PEALED, THE DISCIPLINARY OFFICER SHALL

FORWARD THE DISCIPLINARY REPORT, THE

FINDINGS, AND RECOMMENDED SANCTION TO

THE DISCIPLINARY BOARD WHICH WILL SCHED-

ULE A HEARING WITHIN FIVE DAYS,

The resident shall be notified immediately of the

scheduled date and time of the hearing and may

request a short continuance for good cause.

D. WHERE THE CASE IS CERTIFIED TO THE DIs-

CIPLINARY BOARD AS A MAJOR MATTER, A

HEARING SHALL BE SCHEDULED WITHIN THREE

56

DAYS. A CONTINUANCE FOR A SHORT PERIOD

OF TIME MAY BE GRANTED FOR GOOD CAUSE,

Upon receipt of the disciplinary report the dis-

ciplinary officer must decide within 24 hours

whether the case will be handled as a major mat-

ter. Once certified as a major matter the resi-

dent will be given notice of the charge and a copy

of the disciplinary report. The disciplinary offi-

cer may consult the resident or any other person

prior to certifying the case to the board for a

formal hearing.

a a Te

VLRESIDENT'S STATUS PENDING HEARING

THE RESIDENT'S CUSTODY PRIOR TO THE HEAR-

ING WILL NORMALLY REMAIN UNCHANGED, HE

MAY BE PLACED IN PRE-HEARING DETENTION

ONLY WHERE HE IS A THREAT TO HIMSELF OR

OTHERS.

In reviewing the disciplinary report the shift su-

pervisor makes the initial determination on the

resident's pre-hearing status. Where the resi-

dent is placed in detention the disciplinary offi-

cer, upon receipt of the disciplinary report,

shall consult with the supervisor concerning the

resident's pre-hearing status.