Opposition — O'Brien v. Hall

Supreme Court, U.S.

M& FILED.

JUN 20 1977

Kcr

In the

Supreme Court of the United States

Ocroper Term, 1976

No. 76-1453

GORDON O’BRIEN,

PETITIONER,

Vv.

FRANK A. HALL,

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF OF RESPONDENT FRANK A. HALL

IN OPPOSITION

Lee Cart BromBerc

Special Assistant Attorney General

Department of Correction

100 Cambridge Street

Boston, Massachusetts 02202

(617) 727-3324

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TABLE OF CONTENTS

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Constitutional Provision Involved... _.—s—_—sd—sis.

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Reasons for Denying the Writ ..—-—s—s.—s.—s'—s“—s«“s(#((‘“ay

I. The Petitioner Has Shown No Conflicts in Court

Decisions Which Would Justify a Grant of

Certiorari. .__. 6

Il. Petitioner Has Presented No ‘Substantial Josue

of Law To Justify Review ” the Supreme Court. 9

Conclusion ...................... POPP ES

ow we be

Tasie or CrraTIons

Cases

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

Cook v. Brockway, 424 F. Supp. 1046 (N.D. Texas, 1977) 8

Cooper v. Riddle, 540 F.2d 731 (4th Cir. 1976) __. 7

Fano v. Meachum, 520 F.2d 374 (1975), rev’d sub nom.

Meachum v. Fano, 427 U.S. 215 (1976) ss 5

Four Certain Unnamed Inmates vy. Hall, 550 F.2d 1291

(1st Cir. 1977) . | 7, 10

Franklin v. Fortner, 541 F.2d 494 (5th Cir. 1976) __. 7

Lavine v. Wright, 423 F. Supp. 357 (C.D. Utah 1976) 9

Lombardo v. Meachum, 548 F.2d 13 (1st Cir. 1977) ___ 7, 10

Mawhinney v. Henderson, 542 F.2d 1 (2nd Cir. 1976) 8

Meachum v. Fano, 427 U.S. 215 (1976) ..__—-:2, 3, 6, 7, 8, 9

Montanye v. Haymes, 427 U.S. 236 (1976)... 6, 7, 8,9

Powell v. Ward, 542 F.2d 101 (2nd Cir. 1974)... 7

Sites v. McK enzie, 423 F. Supp. 1190 (N.D. W. Va. 1976) 9

Wolff v. McDonnell, 418 U.S. 539 (1974)... oe

ii Table of Contents

Constitutional Provisions

United States Constitution,

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Statutes

28 U.S.C. § 1254(1) ... ecddebovtbbatdeddiestiae

Miscellaneous

Stern & Gressman, Supreme Court Practice §4.8 (4th

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Supreme Court of the United States

Ocroser Term, 1976

No, 76-1453

GORDON O’BRIEN,

PETITIONER,

v.

FRANK A. HALL,

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF OF RESPONDENT FRANK A. HALL

IN OPPOSITION

Opinions Below

The opinion of the United States Court of Appeals for

the First Cireuit, dated December 29, 1976, was ordered by

the Court to be ‘‘Not For Publication,’’ but is set out as

Appendix A to the Petition, pages 27-33. The opinion of

the United States District Court for the District of Massa-

chusetts, dated April 28, 1976, which was reversed by the

Court of Appeals, is set out as Appendix B to the Petition,

pages 34-49. It too will not be reported, in accordance with

Appendix B of the Rules of the United States Court of

Appeals for the First Cireuit.

Jurisdiction

The petitioner seeks to invoke the jurisdiction of this

Court pursuant to 28 U.S.C. §1254(1). The judgment of

the court below was entered on December 29, 1976, and a

Petition for a Rehearing was denied on January 20, 1977.

The petition was filed on April 20, 1977. By order of the

Clerk of this Court dated May 24, 1977, the time for filing

this Brief in Opposition was extended to and including

June 22, 1977.

Questions Presented

1. Does a state prisoner’s contention that the Due

Process Clause of the Fourteenth Amendment to the United

States Constitution, without reference to state law, gives

him a ‘‘liberty’’ interest which entitles him to due process

protections upon his transfer to higher custody status in

a non-disciplinary segregation unit, raise a substantial

question of law sufficient to justify certiorari in the after-

math of Meachum v. Fano, 427 U.S. 215 (1976), and in

the absence of any opinion in conflict with the negative

conclusion of the Court below?

2. Does a state prisoner’s contention that flexible pro-

cedural guidelines in state prison disciplinary regulations

ereate a right or justifiable expectation rooted in state law

sufficient to invoke the Due Process Clause raise any sub-

stantial question of law which would justify certiorari in

the aftermath of Meachum v. Fano, 427 U.S. 215 (1976),

where (a.) all disciplinary penalties ordered after hearings

resulted in guilty findings were suspended, and (b.) no

Opinion can be found which is in conflict with the negative

conclusion of the Court below?

Constitutional Provision 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; .. .’’

Statement of the Case

In 1975 respondent Frank A. Hall, the Massachusetts

Commissioner of Correction (hereinafter the ‘‘Commis-

sioner’’), became concerned about conditions at the Massa-

chusetts Correctional Institution — Bridgewater (herein-

after ‘‘MCI Bridgewater’’). Information which the Com-

missioner received made him suspect that petitioner Gordon

O’Brien (hereinafter ‘‘O’Brien’’), a prisoner at MCI

Bridgewater, had organized and led a strong-arm group of

inmates, which assaulted other inmates and which had

intimidated inmates and guards alike. On September 16,

1975, O’Brien was summarily transferred without warning

from MCI Bridgewater to the Massachusetts Correctional

Institution — Walpole (hereinafter ‘‘MCI Walpole’’) on

orders of the Commissioner. At MCI Walpole O’Brien

was held in Block 10, a segregation unit, in awaiting action

status.

Meanwhile the Commissioner ordered a full investigation

of MCI Bridgewater. As a result of the investigation,

several assault charges were lodged against O’Brien. Elabo-

rate disciplinary hearings were held on the assault charges

4

on several days in November and December 1975. O’Brien

was represented by counsel throughout these administra-

tive proceedings. He was found guilty on four assault

charges and a cumulative sentence of thirty days isolation

was ordered. However, upon appeal to the Commissioner

the penalty was suspended for 90 days, in view of his long

stay in segregated confinement. That period having expired

without further incident, O’Brien in effect experienced no

disciplinary punishment of any kind for his assaultive

behavior at MCI Bridgewater.

In Block 10 at MCI Walpole O’Brien’s conditions of

confinement were substantially more stringent than those

he had enjoyed at MCI Bridgewater. Contrary to his

repetitious, boot-strap assertion, however, he was not

placed in ‘‘solitary’’. (See, e.g., O’Brien’s Petition, pp. 3,

5, 6, 8, 9, 13, 14, 18, 19, 23, 24.) Rather, he was held in

awaiting action status in Block 10, segregated from the

rest of the prison population. The Commissioner concedes

that O’Brien had a materially adverse change in the con-

ditions of his confinement and that he was held in strict

security, but that is far different from ‘‘solitary’’. During

his stay in Block 10 O’Brien has had a fully furnished cell,

the opportunity to have a radio and television, reading

materials and writing materials. He has enjoyed limited

contact with other inmates, adequate ventilation, regular

meals, periodic showers, regular visiting periods, a brief

daily recreation period and correspondence privileges. He

has had access to educational and counselling programs and

to religious services. By way of contrast, were he placed

in isolation (the Massachusetts term for ‘‘solitary’’ as

O’Brien acknowledges, see Petition, pp. 7, 18), he would be

required to spend his time in a minimally furnished cell

without radio or television and with limited reading matter.

The closed solid door of the isolation cell would preclude

contact with others, even in the corridor. He would have no

5

visits, no access to a shower outside his cell, no recre-

ational time outside his cell and no contact with educational

or counselling programs. He could be kept in these isolated

conditions, essentially without contact with the rest of the

prison or the world outside, for a maximum of 15 days for

any one offense. Massachusetts General Laws, ec. 127, § 40.

This is ‘‘solitary’’, referred to in Massachusetts as isola-

tion. Yet O’Brien has not served any isolation time at all

since his transfer; the Commissioner suspended O’Brien’s

30 day isolation penalty in view of his long stay in awaiting

action status, and since the 90 day suspension period passed

without incident, O’Brien effectively faced no disciplinary

punishment at all for the assaults he committed on other

inmates.

Moreover, O’Brien remained in Block 10 by his own

choice after February 20, 1976, when the Commissioner

offered to move him to a far less restrictive general popu-

lation housing area in MCI Walpole. O’Brien declined,

epparently out of concern for his own safety. He has

since been rehoused in Block 9, a unit less restrictive than

Block 10, where contact with other inmates is limited to

small groups of pre-screened prisoners.

After disciplinary proceedings were underway, O’Brien

wrote a letter to the United States District Court for the

District of Massachusetts. The District Court treated the

letter as a Federal Civil Rights Act complaint, filed it,

and this action commenced. In his complaint (as subse-

quently amended by counsel), O’Brien challenged his trans-

fer to higher custody status at MCI Walpole as a violation

of his due process rights. Relying on the opinion of the

First Cireuit Court of Appeals in Fano v. Meachum, 520

F.2d 374 (1975), rev’d sub nom. Meachum v. Fano, 427

U.S. 215 (1976), the District Court scrutinized the discipli-

nary hearings afforded to O’Brien to see if they met due

process standards required by that case on transfer to

higher custody status. The District Court believed it found

two due process defects in the hearings and granted pre-

liminary injunctive relief on that basis. The Commissioner

appealed and on his request, the District Court stayed its

order. During the pendency of the appeal this Court issued

its opinion in Meachum v. Fano, 427 U.S. 215 (1976), which

removed the foundation of O’Brien’s case. The First Cir-

cuit applied the Meachum holding to the facts of the instant

controversy, concluded that ‘‘[n]Jeither the injunction nor

the plaintiff’s request for damages can stand after

Meachum v. Fano’’ (Appendix A to Petition, p. 33), and

remanded to the District Court with instructions to dismiss.

In his Petition for a Writ of Certiorari, O’Brien attempts

to salvage his case by asserting that alleged due process

defects in his disciplinary hearings, held subsequent to his

transfer to higher custody status in a segregation unit,

may be raised on the strength of his ‘‘liberty’’ interest in

avoiding segregated confinement, even though no discipli-

nary punishment was subsequently imposed after the guilty

findings. That claim was laid to rest in unequivocal terms

by this Court’s holding in the Meachum case.

Reasons for Denying the Writ

I. Tue Penrioner Has SHown No Conruicts 1s Court

Decisions Wuicn Wov pb Justiry a Grant or CERTIORARI.

No ‘‘conflict’’ has been presented by petitioner O’Brien

save that between his own position as stated in his Petition

(pp. 9-23) and the holdings of this Court in Meachum v.

Fano, 427 U.S. 215 (1976) and Montanye v. Haymes, 427

U.S. 236 (1976), which were scrupulously applied to the

facts of the instant case by the court below (See Appendix

A to Petition, pp. 30-33). Petitioner asserts that his own

transfer to higher custody status in a segregation unit

7

implies ‘‘{[sjome hard core of fundamental ‘liberty in-

terests’ [which] are ‘rooted’ in the Constitution itself’’

(Petition, p. 13), and thus that due process rights attach.

However, this is precisely the proposition that this Court

laid to rest in Meachum, where it held that the due process

clause does not

‘*.. . in and of itself protect a duly convicted prisoner

against transfer from one institution to another within

the state prison system. Confinement in any of the

state’s institutions is within the normal limits or

range of custody which the conviction has authorized

the State to impose. That life in one prison is much |

more disagreeable than in another does not in itself

signify that a Fourteenth Amendment liberty interest

is implicated when a prisoner is transferred to the

institution with the more severe rules.”’

427 U.S. at 225. Unduly severe conditions of confinement

may, of course, give rise to a valid claim of constitutional

deprivation independent of the Due Process Clause — e.g.,

the Eighth Amendment. Since the decision in Meachum,

three Circuits have followed its mandate and rejected due

process claims predicated upon transfers where prisoners

could demonstrate no ‘‘right or justifiable expectation

rooted in state law ... not [to] be transferred except for

misbehavior or upon the occurrence of other specified

events.’’ Montanye v. Haymes, supra, 427 U.S. at 242.

See Four Certain Unnamed Inmates v. Hall, 550 F.2d 1291

(1st Cir. 1977); Lombardo v. Meachum, 548 F.2d 13 (1st

Cir. 1977); Franklin v. Fortner, 541 F.2d 494 (5th Cir.

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

No conflicting decisions can be found. Powell v. Ward,

542 F.2d 101 (2nd Cir. 1976), cited by Petitioner (Petition,

8

p. 11, n. 3), is not to the contrary. That case, decided less

than three months after the Meachum decision, involved

the successful appeal by prison administrators of provisions

of a pre-Meachum District Court injunction regarded by

them as too limiting. The Second Circuit simply granted

the prison administrators the full measure of relief re-

quested without reference to the principles of due process

analysis announced in Meachum. In Mawhinney v. Hen-

derson, 542 F.2d 1 (2nd Cir. 1976), a case decided less than

two months after this Court’s decision in Meachum, the

Second Cireuit found several claims stated by a prisoner

placed in disciplinary solitary confinement, including one

alleging violation of due process. The Cireuit Court did

not mention the Meachum or Montanye decisions, and

simply stated, as to the due process claims, that remand

was required for ‘‘a fuller development of the record’’,

542 F.2d at 4. Mawhinney is entirely consistent with

Meachum, and with the First, Fourth and Fifth Circuit

cases noted above, since the prisoner in that case may

have had some right rooted in New York state law which

triggered due process protections. Alternatively, he may

have been able to breathe life into his due process claim

at trial on the basis of his other, independent claims of

const‘tutional violation arising from his disciplinary soli-

tary confinement. The three District Court decisions cited

by petitioner as raising a conflict are simply irrelevant,

since ‘*[t]he Supreme Court will not grant certiorari to

review a decision of a federal court of appeals merely

because it is in direct conflict on a point of federal law

with a decision rendered by a district court.’’ Stern &

Gressman, Supreme Court Practice, 4 4.8, pp. 161-62 (4th

ed. 1969). Moreover, none of the decisions presents a

genuine conflict. In Cook v, Brockway, 424 F. Supp. 1046,

1052 (N.D. Texas, 1977), the Court found that ‘‘placing

of plaintiff in a segregation cell did not deprive his of

any rights to which due process procedures would be appli-

eable.”’ Sites v. McKenzie, 423 F. Supp. 1190 (N.D. W. Va.

1976), and Lavine v. Wright, 423 F. Supp. 357 (C.D. Utah,

1976) both involved interpretation of state statutes which

provided a source of entitlement as a predicate for due

process claims—an element absent in the cases above

where no due process right was found.

In short, no decision can be found which conflicts at all

with the decision of the First Circuit below. The teaching

of Meachum and its progeny is clear, and is being consis-

tently applied at the Cireuit and District Court levels.

There is thus no need for this Court to speak further on

these issues, and accordingly, there is no basis here for

certiorari.

Tl. Perrriover Has Presexten No Svupstantiar Issve or

Law To Justiry Review sy tue Supreme Cover.

Petitioner acknowledges that a prisoner may not com-

plain on due proces: srounds of a ‘‘transfer without status

change to another prison’’ absent rights rooted in state

law, but argues nonetheless that ‘‘rights ‘rooted’ in the

Constitution protect him from solitary confinement, (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’’ (Petition, pp. 16-17). As the First

Cireuit noted below, ‘‘[t]}his 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.’ 44 U.S.L.W. at 5057"" (Appendix A to Petition, p. 33,

footnote). In any event the issue is insubstantial. This

Court has provided all the analytical tools necessary for

evaluation of petitioner’s due process claim in Board of

Regents v. Roth, 408 U.S. 564 (1972), Wolff v. McDonnell,

418 U.S. 539 (1974), Meachum, Montanye, and related due

10

process cases, and need give it no further attention. More-

over, petitioner’s claim cannot be evaluated on this record

since, as noted above, he never experienced solitary confine-

ment but rather was confined under less severe conditions

in a segregation unit. Even though he was found guilty

on four disciplinary assault charges, all penaities were

suspended and petitioner never served isolation time. Thus

he is not in a position to raise the potential claim that

Massachusetts statutes create a right not to serve isolation

time absent misconduct and thus trigger due process pro-

tections. But again, even if this claim could be raised,

it is of relatively insignificant dimensions and can easily

be evaluated on the basis of the analytical framework

already expounded by this Court.

Petitioner’s claim that Massachusetts Department of

Correction disciplinary regulations create rights rooted in

state law and therefore invoke due process protections

fares no better. It is again not a significant issue, but one

easily resolved on the basis of principles already enunei-

ated by this Court. The First Circuit has already addressed

a nearly identical issue in Four Certain Unnamed Inmates

v. Hall, 550 F.2d 1291 (1st Cir. 1977) ;and Lombardo v.

Meachum, 548 F.2d 13 (1st Cir. 1977); using principles

delineated in previous Supreme Court cases. Secondly,

any alleged due process violations in the disciplinary hear-

ings below are mooted by the suspension of all penalties

imposed upon petitioner. Thirdly, petitioner’s claim is

wrong on the merits, since the disciplinary regulations

merely set forth flexible procedural guidelines and do not

in themselves confer any substantive rights rooted in state

law. See Four Certain Unnamed Inmates, supra, and

Lombardo, supra. Fourthly, petitioner misconstrued en-

titlement analysis by taking the content of the regulations

as informing due process standards; failure of authorities

ll

to follow specific procedures may give rise to a state law

claim, but does not automatically become a federal consti-

tutional issue. Finally, petitioner misreads the regulations

themselves and in his discussion (Petition, pp. 26-27),

relies upon time limits for ‘‘minor’’ matters, which are

not applicable to the ‘‘major’’ disciplinary assault charges

lodged against O’Brien.

In sum petitioner raises no meritorious issues and no

significant questions; there is accordingly no justification

for certiorari.

Conclusion

For the foregoing reasons, the Petition seeking a writ

of certiorari to review the opinion and judgment of the

United States Court of Appeals for the First Cireuit ought

to be denied.

Respectfully submitted,

Lee Cart BromBerc

Special Assistant Attorney General

Department of Correction

100 ‘ambridge Street

Boston, Massachusetts 02202

(617) 727-3324

Datep: Boston, Massachusetts

June 22, 1977