Petition — Savage v. Lerma

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IN THE |} saa & 18

SUPREME COURT OF THE unrTeaenases 0° |

OCTOBER TERM, 1977

no. _%777951

OSCAR S. SAVAGE, W. J. ESTELLE, JR.,

AND BILLY G. McMILLAN

Petitioners

V.

ENRIQUE CARRERA LERMA,

Respondent

+ . +

Petition For Writ of Certiorari To The

United States Court of Appeals For The Fifth

Circuit

* * *

PETITION FOR CERTIORARI

* * *

JOHN L. HILL

Attorney General of Texas

DAVID M. KENDALL

First Assistant Attorney General

JOE B. DIBRELL, JR.

Assistant Attorney General

Chief, Enforcement Division

RICHEL RIVERS

Assistant Attorney General

NANCY SIMONSON

Assistant Attorney General

P.O. Box 12548, Capitol Stat on

Austin, Texas 78711

Telephone: (512) 475-8281

Attorneys for Petitioners

SUBJECT INDEX

PAGE

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STATUTORY PROVISIONS INVOLVED ................... 2

REASONS FOR GRANTING THE WRIT ................... 3

I. The Decision Of The Fifth Circuit Court Of

Appeals Conflicts With The Decision Of

The Court Regarding Inmate Transfers.............

II. The Decision Of The Fifth Circuit Sets

Out An Unworkable Rule For Prison

Administrators And The Federal Courts............

-ii-

INDEX OF AUTHORITIES

CASES PAGE

Haymes V. Montanye, 547 F.2d 188 (2nd Cir. 1976) ........... 6

Jones V. North Carolina Prisoners’ Labor Union Inc.,

U.S. ——, 97 S.Ct. 2532 (1977) ........ eee ee cece eeeeeees 7,8

Meachum V. Fano, 427 U.S. 215 (1976) ................2.. 3,4,6,7

Montanye V. Haymes, 427 U.S. 236 (1976) ............... 3,4,5,6

Pell V. Procunier, 417 U.S. 817 (1974) ..........0000ee000 nad

Rizzo V. Goode, 423 U.S. 362 (1976) ......... 2. cece cece eeeeee 8

Russell V. Oliver, 552 F.2d 115 (4th Cir. 1977) .............+-.. 6

Wolff V. McDonnell, 418 U.S. 539, 577 (1976) .........---0006- 7

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

x* * *

NO.

* *

OSCAR S. SAVAGE, W. J. ESTELLE, JR.,

AND BILLY G. McMILLAN,

Petitioners

V.

ENRIQUE CARRERA LERMA,

Respondent

* * *

Petition For Writ of Certiorari To The

United States Court of Appeals For The Fifth

Circuit

* * *

PETITION FOR CERTIORARI

*- * *

TO THE HONORABLE JUSTICES OF THE

SUPREME COURT:

Petitioners, Oscar S. Savage, W. J. Estelle, Jr., and

Billy G. McMillan, respectfully pray that a Writ of

Certiorari issue to review the judgment and opinion of

the United States Court of Appeals for the Fifth Circuit

entered in this proceeding on August 25, 1977.

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OPINION BELOW

The unpublished opinion of the Court of Appeals for

the Fifth Circuit appears as Appendix A hereto.

The Order of Dismissal entered in the Southern

District of Texas, Houston Division, appears as

Appendix B hereto.

JURISDICTION

The judgment of the Court of Appeals for the Fifth

Circuit was entered on August 25, 1977. A timely

petition for rehearing en banc was denied on October 6,

1977, and this petition was filed within ninety (90) days

of that date. This Court’s jurisdiction is invoked under

28 U.S.C. §1254(1).

QUESTION PRESENTED

Whether Respondent’s complaint that he was

transferred from one prison unit of the Texas

Department of Corrections to another in retaliation for

his legal activities was properly dismissed for failure to

state a claim under 42 U.S.C. §1983.

STATUTORY PROVISIONS INVOLVED

United States Code, Title 48:

§1983. Civil action for deprivation of rights

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory, subjects, or causes to be

subjected, any citizen of the United States or other

person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable

to the party injured in an action at law, suit in

equity, or other proper proceeding for redress.

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REASONS FOR GRANTING THE WRIT

The Court of Appeals held that Plaintiff's allegations

that he was transferred in retribution for testifying

before a Legislative committee and for his legal

activities on behalf of himself and other inmates may

implicate first amendment rights and rights of access to

the courts. The Court of Appeals ruled that these issues

are not clearly foreclosed by this Court’s opinions in

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

Haymes, 427 U.S. 236 (1976). Defendants urge that this

ruling is unsupportable under the facts of the Meachum

and Montanye cases, universally intrudes in the domain

of prison officials’ discretion, and exposes the federal

courts to a possibility of vast numbers of frivolous

prisoner cases.

I. The Decision Of The Fifth Circuit Court Of

Appeals Conflicts With The Decisions Of

This Court Regarding Inmate Transfer.

Plaintiff's only complaint in this case was that he was

transferred without advance notice or an opportunity to

request a hearing. Although plaintiff alleged that the

reason for the transfer was retaliation for his legal

activities, he in no way alleged or implied that he was

being denied access to the courts as a result of the

transfer. He has not alleged or implied that as a result of

the transfer he was not allowed legal materials,

resources, mailing privileges, access to legal assistance,

or any other resource which unconstitutionally

restricted his legal activities. Nor has he alleged or

implied that any constitutionally protected first

amendment rights as a state prisoner have been

impermissibly burdened. Plaintiff's only complaint is

that because he has pursued legal remedies, he was

transferred; no situation or condition other than the

transfer itself is challenged. Furthermore, the transfer

ip

is challenged only in that it was effected without notice

or opportunity for hearing.

In the companion cases of Meachum and Montanye,

this Court made it clear that the due process clause alone

does not entitle an inmate to a hearing when he is

transferred from one prison within a state prison system

to another, even one with substantially more

burdensome conditions. Absent a state law or policy

conditioning such transfers on proof of serious

misconduct or the occurrence of other specified events,

the decision to transfer an inmate is a matter of

administrative discretion.

Texas does not confer upon state prisoners a right or

expectation that they will be transfered from one unit of

the Texas Department of Corrections to another only for

misbehavior or other specified events. As the Court of

Appeals correctly observed:

Texas prison officials have wide discretion for

placement of inmates. Convicted felons in

Texas are sentenced to terms of confinement at

the Department of Corrections, not to specific

institutions within the prison system. Tex.

Penal Code §§ 12.31 - .34. Moreover, the

director of the Department has the statutory

authority to provide for the separation and

classification of prisoners according to such

factors as sex, age, health and corigibility.

Tex.Civ.Stat.Ann. art. 6166).

Per Curiam Opinion, at 1-2.

Thus, because Texas prison officials have wide

discretion in the placement of inmates within the

Department of Corrections, no constitutionally

protected right of plaintiff is affected even assuming

argquendo that his allegation that he was transferred in

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retaliation for his legal activities is true. Defendants

recognize that if the conditions in the prisca to which

Plaintiff was transfered were alleged to be so harsh as to

constitute cruel and unusual punishment, he would

state a cause of action under §1983. Similarly, if

Plaintiff had alleged that his transfer resulted in an

unconstitutional! denial of access to the courts, there

would be a basis for suit. However, since Plaintiff has

neither raised nor suggested such allegations, he has

failed to state a claim of constitutional dimension.

Plaintiff may not elevate his complaint concerning the

circumstances surrounding his transfer to

constitutional dimensions by the mere incorporation of

the allegation of “retaliation.”

Indeed, this Court’s opinion in Montanye indicates

that prison officials’ transfer of an inmate in direct

response to the inmate’s legal activities does not

implicate constitutional deprivations. There, Haymes

was transferred following his circulation among

inmates of a petition complaining that his removal from

a job in the prison law library deprived inmates of

needed legal assistance. Also, the Court of Appeals for

the Second Circuit noted that as a result of Haymes’

transfer, contacts with counsel would necessarily have

been more difficult, and he would have suffered several

other adverse consequences of the “punitive” as opposed

to “administrative” transfer. Montanye, supra at 240.

Even though Montanye’s first amendment rights and

right of access to the courts were directly implicated,

this Court firmly held that:

... no Due Process Clause liberty interest of a

duly convicted prison inmate is infringed when

he is transferred from 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

4.

be transferred except for misbehavior or upon

the occurrence of other specified events.

Id., at 242.

This Court then reversed the Appeals Court’s

judgment which had, in turn, reversed the district

court’s dismissal of the action.! The relationship

between Haymes’ legal activities and his transfer was

not considered by this Court to be a circumstance

requiring a hearing.

Defendants urge that the opinion below incorrectly

limits the reasoning of this Court in the Meachum and

Montanye cases. Meachum and Montanye indicate that

no due process liberty interest of a state prisoner is

affected by his transfer among prisons absent some

right or expectation rooted in state law.

'Petitioner challenges the subsequent ruling of the Second

Circuit in Haymes v. Montanye, 547 F.2d 188 (2nd Cir. 1976), in

which that court reversed the district court’s dismissal and

remanded for a hearing on the reasons for and circumstances of the

transfer. That court, like the Appeals Court in the instant case, held

that an inmate’s claim that atransfer in reprisal for exercising first

amendment rights and right of access to the courts states a claim

which cannot be dismissed on the pleadings. Petitioners contend

that this holding, based upon this Court’s dissenting opinion in

Montanye, is unsupportable in light of the majority opinion that:

Whatever expectation the prisoner may have in

remaining at a particular prison so long as he behaves

himself, it is too ephemeral and insubstantial to trigger

procedural due process protections as long as prison

officials have discretion to transfer him for whatever

reason or for no reason at ali.

Meachum, supra at 228. Because New York officials did not seek

review of the Second Circuit’s opinion on remand from this Court,

the instant case presents the first opportunity for the Court to

correct misinterpretations of the Meachum and Montanye opinions.

See also Russell v. Oliver, 552 F.2d 115 (4th Cir. 1977).

x7

A 7

-7-

Texas law affords nosuch right or expectation, so prison

officials have the discretion to transfer prisoners for

whatever reason or no reason at all without invoking the

procedural safeguards of the fourteenth amendment.

II. The Decision Of The Fifth Circuit Sets Out

An Unworkable Rule For Prison

Administrators And The Federal Courts.

To allow judicial review of the reasons for transfer of

inmates where there is no allegation that the transfer

has resulted in injury of constitutional dimension to the

inmate’s interests would involve the federal judiciary in

the day-to-day functioning of the state prisons to an

unwarranted degree. Meachum, supra, at 229; Jones v.

North Carolina Prisoners’ Labor Union, Inc., _— U.S.

___, 97 S.Ct. 2532 (1977); Pell v. Procunier, 417 U.S. 817

(1974). Prison administrators are the individuals best

qualified through experience and education to make the

difficult decisions regarding institutional placements.

For this reason, “wide-ranging deference [must] be

accorded the decisions of prison administrators.” Jones,

supra, at 2538; Pell v. Procunier, supra. Judicial review

of the reasons behind each transfer decision is

inconsistent with the policy of according “wide

deference” to the decisions of prison officials.

Furthermore, by providing that there are some

reasons for transfer that are impermissible, regardless

of whether the transfer is alleged to have resulted in a

burden on an inmate’s constitutionally protected rights,

the Court of Appeals’ decision opens all prison transfer

decisions to attack in the federal courts. An inmate, by

the simple expediency of alleging that he was

transferred in retaliation for certain protected

activities, can force prison officials to undertake the

expensive and time-consuming task of justifying to a

federal court a decision to transfer the inmate. Cf. Wolff

-8-

v. McDonnell, 418 U.S. 539, 577 (1976). In Texas in 1976

alone, there were 5,346 transfers of inmates among

units of the Department of Corrections after initial

assignment to a unit. The Court of Appeals’ ruling thus

raises the possibility of over five thousand additional

inmate civil rights cases, all requiring evidentiary

hearings. This possibility places an unjustifiable

burden on the prison administration and is an

unwarranted interference in matters of state

government. Jones, supra; Rizzo v. Goode, 423 U.S. 362

(1976). In addition, the potential increase in litigation

would cripple the already overburdened federal courts

with a mass of meritless prisoner cases.

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of the Fifth Circuit.

Respectfully submitted,

JOHN L. HILL

Attorney General of Texas

DAVID M. KENDALL

First Assistant Attorney General

JOE B. DIBRELL, JR.

Assistant Attorney General

Chief, Enforcement Division

RICHEL RIVERS

Assistant Attorney General

NANCY M. SIMONSON

Assistant Attorney General

P.O. Box 12548, Capitol Station

Austin, Texas 78711

Telephone: (512) 475-3281

Attorneys for Petitioners

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PROOF OF SERVICE

I, DAVID M. KENDALL, First Assistant Attorney

General of the State of Texas, and a member of the Bar

of the Supreme Court of the United States, now enter my

appearance in this cause on behalf of the Petitioners,

and do hereby certify that three copies of the foregoing

Petition for Certiorari have been served by placing

same in the United States mail, first class, postage

prepaid, certified, return receipt requested, on this the

__. day _ of , 1977, addressed to: Enrique

Carrera Lerma, Ellis Unit, Route 3, Huntsville, Texas

77340.

DAVID M. KENDALL

First Assistant Attorney General

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 77-1639

Summary Calendar*

ENRIQUE CARRERA LERMA,

Plaintiff-Appellant,

versus

OSCAR S. SAVAGE, ET AL.

Defendants-Appellee.

Appeal from the United States District Court

for the Southern District of Texas

( August 25,1977 )

Before THORNBERRY, RONEY, and HILL, Circuit

Judges.

PER CURIAM:

Appellant Lerma, a prisoner in the Texas

Department of Corrections, brought this pro se action

under 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3). He

alleges that he was summarily transferred, without

notice or hearing, from a medium security prison to the

Department’s only maximum security unit as

*Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casulty

Company of New York, et al., 5 Cir. 1970, 431 F.2d 409, Part I.

-l1-

punishment for testifying before a committee of the

Texas Legislature regarding prison brutality and for

filing and assisting other prisoners in filing actions in

federal court complaining of prison conditions and acts

of prison officials at the medium security facility.

The district court dismissed the action for failure to

state a claim on which relief can be granted, relying on

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

Haymes, 427 U.S. 236 (1976). In these companion cases

the Court made clear that the due process clause of the

Fourteenth Amendment does not entitle a prisoner toa

hearing when he is transferred to a prison with

substantially less favorable conditions, absent a state

law or practice conditioning such transfers on proof of

serious misconduct or the occurrence of other specified

events. The Court rejected an argument that such a

transfer infringed or implicated a liberty interest of the

prisoners within the meaning of the due process clause

and was unwilling to require a hearing even though the

transfer would place the prisoner in more burdensome

conditions than he had been experiencing. Finally, the

Court stated that in these cases, arising in

Massachusetts and New York, a prisoner had norightor

expectation of remaining at a particular institution

since prison officials have discretion to transfer

prisoners for any reason or no reason at all.

Texas prison officials have wide discretion for

placement of inmates. Convicted felons in Texas are

sentenced to terms of confinement at the Department of

Corrections, not to specific institutions within the prison

system. Tex. Penal Code §§ 12.31-.34. Moreover, the

director of the Department has the statutory authority

to provide for the separation and classification of

prisoners according to such factors as sex, age, health

and corrigibility. Tex. Civ. Stat. Ann. art. 6166).

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However, in his pro se complaint in the district court,

appellant asserted that he was transferred in

retribution for testifying before a Legislative

committee and for his legal activities on behalf of

himself and other inmates. Neither appellee’s brief to

this Court nor the district court’s order of dismissal

address these allegations, which raise issues not clearly

foreclosed by Meachum and Montanye. For example, the

transfer in the instant case may implicate First

Amendment rights, see Montanye v. Hayes, 427 U.S.

236, __., 96 S. Ct. 2543, 2548 (Stevens, J., Dissenting), as

well as the rights of prisoners to serve as “jailhouse

lawyers” and to have access to the federal courts. See

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

Hauck, 542 F.2d 1071 (5th Cir. 1971); Corpus v. Estelle,

551 F.2d 68 (5th Cir. 1977).

We intimate no views on the merits, but rather

remand this cause to the district court for a full

ventilation of the facts and consideration of these issues.

Because appellant has brought this action in forma

pauperis, the district court may also consider whether

counsel should be appointed in the subsequent

proceedings.

VACATED and REMANDED.

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

Enrigue Carrera Lerma, (

Plaintiff,

V. ( Civil Action No.

( 76-H-784

Oscar S. Savage, et al.,

Defendants (

ORDER OF DISMISSAL

The plaintiff is an inmate of the Texas Department of

Corrections. He has filed this action pro se under 42

U.S.C. § 1983 complaining of his transfer from the

Retrieve Unit of the Texas Department of Corrections, a

medium security facility, to the Ellis Unit, a maximum

security facility, without a hearing. It is now clear that

the due process clause of the fourteenth amendment

does not protect an inmate who is transferred without a

hearing to another unit of the prison system whose

conditions are less favorable. Meachum v. Fano, __ U.S.

__., 49 L. Ed. 2d 451 (1976); Montange v. Haymes, ——

U.S. __, 49 L. Ed. 2d 466 (1976). Furthermore, under

state law transfers are at the statutory discretion of the

Director, V.A.T.S. art. 6166), and at sentencing,

confinement is ordered with the Department of

Corrections, not within any specific unit. Texas Penal

Code § 12.31-12.34.

Accordingly, it is ORDERED, ADJUDGED AND

DECREED that the above-styled-and-numbered cause

be, and the same is hereby, DISMISSED for failure to

state a claim upon which relief may be granted.

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DONE at Houston, Texas, on the /st day of February,

1977.

[John V. Singleton]

United States District Judge