Opposition — Hall v. DiMarzo

‘Supreme Court, U.S.

EILED

SBP 27 1978

In the MIGHAM. RODAK, JR., CLERK

Supreme Court of the United States.

Ocroser TERM, 1978.

No. 78-176.

FRANK A. HALL,

PETITIONER,

v

JAMES DiMARZO er At.,

RESPONDENTS.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT.

Brief of Respondents in Opposition.

Of Counsel: Susan E. T. Srup.ien,

ALVIN J. BRONSTEIN, Massachusetts Civil Liberties

National Prison Project Union Foundation,

of the American Civil 68 Devonshire Street,

Liberties Union Boston, Massachusetts 02109.

Foundation, (617) 742-8020

1346 Connecticut Avenue, N.W.,

Washington, D.C. 20036.

(202) 331-0500

Ernest WINsor,

Massachusetts Law Reform Institute,

2 Park Square,

Boston, Massachusetts 02116.

(617) 482-0890

On the Brief:

Date S. DoeENcEs.

BATEMAN & SLADE, INC. BOSTON, MASSACHUSETTS.

Table of Contents.

Opinions below

Jurisdiction

Questions presented

Statement of the case

A. Prior proceedings

B. Factual background

Reasons for denying the petition for a writ of certiorari

A. The Massachusetts commissioner of correc-

tion is a proper defendant in this case, and the

courts below correctly refused to grant his mo-

tion to dismiss 6

B. The decisions of the courts below concerning

fire safety and out-of-cell time remedied consti-

tutional violations which were conceded by

Essex officials, which the lower courts found

served no legitimate purpose, and which Essex

or DN NS |

officials expressed a willingness to remedy 10

Conclusion 13

Appendix A AR-1

Appendix B AR-2

Table of Authorities Cited.

CASES.

Adams v. Mathis, ____ F.Supp. ___._ (M..D..Alla.

74-70-S, 2/28/78) 8

ii TABLE OF AUTHORITIES CITED.

DiMarzo v. Cahill, 575 F.2d 15 (1st Cir. 1978) 3, 4, 5,

7, 8, 9, 10 et seq.

Kostka v. Hogg, 560 F.2d 37 (1st Cir. 1977) 8

Lewis v. Hyland, 554 F.2d 93 (3d Cir. 1977), cert.

denied, 434 U.S. 931 (1977) 8

Lucas v. Wasser, 425 F.Supp. 955 (S.D.N.Y. 1976) 8

Miller v. Carson, 563 F.2d 757 (5th Cir. 1977) 7.8

Milliken v. Bradley, 418 U.S. 717 (1974) (Milliken I) 10

Milliken v. Bradley, 433 U.S. 267 (1977) (Milliken II) 10

Monroe v. Pape, 365 U.S. 167 (1961) 7

Rizzo v. Goode, 423 U.S. 362 (1976) 7, 8,9, 10

Sims v. Adams, 537 F.2d 829 (5th Cir. 1976) 7

STATUTORY PROVISIONS.

Civil Rights Act of 1871, 42 U.S.C. §1983 2,7

Mass. Gen. Laws c. 34

§3 9n

§14 9n

Mass. Gen. Laws c. 124

§1 9n

§1(d) 6, 8

§1(q) 6, 8

Mass. Gen. Laws c. 125, §1 9n

Mass. Gen. Laws c. 126

$l 9n

§2 , 9n

§11 9n

§16 9n

TABLE OF AUTHORITIES CITED. iii

Mass. Gen. Laws c. 127

§1 9n

§1A 6, 8, 9n

§1B 6, 8, 9n

§10 : 6, 9n

§97 9n

1955 Mass. Acts c. 770, §7 8

PROCEDURAL RULEs.

Rules of the Supreme Court of the United States, Rule

19(1) 10, 11

MISCELLANEOUS.

Standards for County Correctional F acilities, 106 Mas-

sachusetts Register 19-99 (May 11, 1978) 6n

In the

Supreme Court of the United States.

Ocroser TERM, 1978.

No. 78-176.

FRANK A. HALL,

PETITIONER,

v.

JAMES D1MARZO er At.,

RESPONDENTS.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT.

Brief of Respondents in Opposition.

Opinions Below.

The respondents accept the statement of the petitioner.

Jurisdiction.

The respondents accept the statement of the petitioner.

2

Questions Presented.

1. Should this Court grant certiorari to review the question

whether the petitioner, a state commissioner of correction who

is required by Massachusetts law to inspect all county institu-

tions in the state at least semi-annually, to issue minimum

standards of care and custody for all persons confined thereto,

and to seek compliance with these standards pursuant to spe-

cific statutory enforcement procedures, is a proper defendant

in this case challenging conditions and practices in one of those

county institutions?

2. Should this Court grant certiorari to review the question

whether the courts below erred in their decisions concerning

fire safety and out-of-cell time, when those decisions remedied

constitutional violations which were conceded by Essex of-

ficials, which the courts below found served no legitimate pur-

pose, and which Essex officials expressed a willingness to

remedy?

Statement of the Case.

A. Prior PROCEEDINGS.

This case was filed in the district court as a class action on

behalf of all persons who are or will be inmates at the Essex

County Jail and House of Correction in Salem, Massachusetts

(hereafter Essex]. The inmates brought suit pursuant to 42

U.S.C. §1983, seeking declaratory and injunctive relief against

numerous unconstitutional conditions and practices. Named

as defendants in the case were the Essex county commis-

sioners, sheriff and deputy master of the institution, and the

petitioner, the Massachusetts commissioner of correction. Ina

motion for a preliminary injunction, the plaintiffs requested

equitable relief against specific constitutional violations in the

3

areas of fire safety, health, sanitation and out-of-cell time for

persons awaiting trial (A-2).! After a hearing and a personal

tour and examination of Essex, the district judge found the in-

stitution to fall below minimum constitutional standards.

The district court issued a modest injunction directing cer-

tain changes to bring Essex within constitutional bounds.

Specific fire safety measures and improvements in sanitation

were ordered (A-14-15). Windows were ordered framed and

glazed with clear glass (A-14). An increase in staff was man-

dated both for fire safety and to allow detainees substantially

the same time out of their cells as sentenced prisoners (A-13).

The petitioner did not request a stay of the district court’s

order, but appealed certain provisions of that order to the

court of appeals.* In addition, he challenged the failure of the

district court to grant his motion to dismiss. The defendant

sheriff and deputy master joined the petitioner in his appeal,

but filed no brief in the court of appeals. 575 F.2d 15, 16

(A-2).

In an opinion without dissent, the court of appeals affirmed

the district court’s order in its entirety. 575 F.2d at 20 (A-11).

The court of appeals also found the petitioner a proper defend-

ant because of his six-year-old legislative mandate to establish

and enforce minimum standards of confinement for all Massa-

chusetts county institutions, including Essex, and his failure to

comply with this mandate. 575 F.2d at 17-18 (A-6).

The petition for a writ of certiorari is not joined by the

defendant county commissioners, sheriff or deputy master.

The petitioner’s motion to the court of appeals for a stay of the

injunction was denied.

"References preceded by “A-” are to the appendices to the petition for a

writ of certiorari.

*Indeed, as noted by the court of appeals, 575 F.2d at 16, 19, 20 (A-2, 8-9,

10), many of the changes ordered by the district court have already been ef-

fectuated by the defendant county commissioners, sheriff and deputy master.

f

+

B. FAcruaL BACKGROUND.

The building that comprises the Essex County Jail and

House of Correction was constructed in 1815 with an addition

in 1884. It houses approximately 88 sentenced prisoners and

25 persons awaiting trial (A-18). In the center of the structure

are two rows of cells, back to back, each four tiers high (A-18).

Four of the tiers comprise the jail for detainees, the other four

the house of correction, where convicts are located. Access to

each tier, except the ground floor tier, is by a catwalk (A-18).

The cells open out onto the catwalk. Between the catwalks

and the outside wall of the building is an open space which

runs the full height of the building. The district court found

that many of the windows, located in the outside walls, were

without glass, covered with dirty plastic sheeting and dirty

screens (A-18). Such conditions drastically reduce the amount

of sunshine in the cells. 575 F.2d at 16 (A-3),

None of the cells at Essex has either a toilet or running water

(A-19). Theoretically, inmates are provided with a two-quart

plastic pitcher for water, a plastic wash-basin and a covered

plastic bucket for bodily wastes. The district court found,

however, that persons are not always issued even these items at

the time they are admitted to the facility (A-18, 19). Anyone

using the plastic bucket in his cell is visible to persons on the

catwalk (A-18), In addition, the district court found that

there were several double cells in use, in which there was no

privacy whatever (A-18). The three receptacles into which

the contents of the plastic buckets may be emptied are all

located in the house of correction, and jail inmates must cross

over to the house of correction to use them (A-18-19). Only

one flush toilet and two sets of shower stalls, each with three

shower heads, existed for the entire inmate population (A-18,

19). Certain of the inmates had direct access to the single

flush toilet when they were not locked in their cells, but others

—

5

were wholly dependent upon the guards to release them from

their cell blocks to use the toilet (A-19),

None of the defendants disputed, and the district court

found, that all inmates at Essex were subjected to life-

threatening fire hazards (A-21), The facility had only two ex-

its, one through the central stairwell and one from the floor

level into the exercise yard (A-21). The wooden floors were

covered with layers of old paint and, in some cases, flammable

floor covering (A-21). Mattresses were either flammable or

composed of foam which would exude toxic fumes when ig-

nited (A-21), In addition, the inmates’ cells contained a varie-

ty of electrical equipment wired from the single light socket in

each cell (A-21), All cells must be unlocked individually

(A-21). The two existing fire hoses would be useless if there

were a fire or extensive smoke in the stairwell (A-21). Evi-

dence submitted to the district court showed that there had

been a serious fire at Essex in February, 1975, which destroyed

four cells, the foor, and electrical wiring. 575 F.2d at 18 n.4

(A-7 n.4).

Living conditions in the house of correction for sentenced

prisoners were largely the same as those in the jail. But the

district court found that persons awaiting trial in the jail were

locked in their cells, without minimal sanitary facilities, for

substantially longer hours than sentenced inmates in the house

of correction (A-20). On the issue of lock-in time for de-

tainees, the defendant sheriff asserted that he would willingly

provide more out-of-cell time for detainees who were not

demonstrable security risks if he had additional supervisory

staff (A-20-21),

6

Reasons for Denying the Petition

for a Writ of Certiorari.

A. THE MASSACHUSETTS COMMISSIONER OF CORRECTION IS A

Proper DEFENDANT IN THIS CASE, AND THE Courts BELOW

CorrecrLy Rerusep To GRANT HIS MOTION TO Dismiss.

Since 1972, the Massachusetts commissioner of correction

has had a specific and detailed legislative mandate to establish

and enforce minimum standards of care and custody for all

persons confined in county jails and houses of correction

throughout the state. Mass. Gon. Laws c. 127, §§1A, 1B

(A-32-34). Since 1972, the Massachusetts legislature has re-

quired him to publish rules regarding virtually every facet of

life in county facilities, including sanitation and safety. Mass.

Gen. Laws c. 124, §1(q) (A-28). See also Mass. Gen. Laws

c. 124, §1(d) (A-27). He has a duty to inspect each county in-

stitution at least every six months, and county officials must

report annually to him. Mass. Gen. Laws c. 127, §§1B, 10

(A-33-34) (AR-1).° He is further authorized to furnish con-

sultation services, technical assistance and grants-in-aid to

county facilities. Mass. Gen. Laws c. 127, §1A (A-32-33).

At the time this case was heard in the district court and

court of appeals, the commissioner had acted in continuous

violation of his statutory mandate for over five years. Since

1972, he had not voluntarily promulgated any standards.‘

*References preceded by “AR-” are to the appendices to this brief.

‘Pursuant to an order of the Massachusetts Supreme Judicial Court, the

commissioner had issued emergency regulations regarding discipline and

classification in county facilities on August 8, 1977. Maness et al. v. Snow et

al., No, 226 Civ. (Supreme Judicial Court, June 20, 1977) (AR-2-9). On

May 3, 1978, the day following the decision of the court of appeals in the in-

stant case, Hall approved general standards for county correctional facilities.

These were promulgated on May 11, 1978. 106 Mass. Register 19-99

7

The plaintiffs asserted that this dereliction of his clear

statutory duty made Hall at least in part responsible for the

unconstitutiona] conditions of their confinement. The court

of appeals, noting the commissioner’s detailed state law

obligations, said that “. . . the Commissioner of Correction

has statutory responsibility over precisely the conditions giving

rise to the violations.” 575 F.2d at 17 (A-5). The court

squarely rejected Hall’s assertion that he was absolved of

liability under 42 U.S.C. §1983 because he had not personally

brought about the constitutional violations at Essex, but rather

had failed to correct them. Id. It is settled law that the Civil

Rights Act of 1871 was intended to safeguard against constitu-

tional violations resulting from the dereliction of a statutory

duty by a state official as well as to correct those resulting from

more affirmative action. Monroe v. Pape, 365 U.S. 167, 180

(1961). See also Sims v. Adams, 537 F.2d 829, 831 (5th Cir.

1976) (a supervisory defendant is subject to §1983 liability

when he breaches a duty imposed by state or local law and this

breach causes the plaintiffs’ constitutional injury); Miller v.

Carson, 563 F.2d 757, 761 n.8 (5th Cir. 1977) (that the abuse

of authority alleged is a dereliction of duty under state law

rather than an affirmative act makes no difference in deter-

mining liability under §1983).

As the court of appeals recognized, 575 F.2d at 17-18

(A-5-6), Rizzo v. Goode, 423 U.S. 362 (1976), cited by the

petitioner in his brief at 4, 8-15, is wholly inapposite to the in-

stant case. The court noted in its citation of cases at 575 F.2d

at 17 n.2 (A-5 n.2) that post-Rizzo courts have consistently

found supervisory personnel in positions similar to Hall’s to be

proper party defendants. As the petitioner concedes in his

brief at 13, only two post-Rizzo courts of appeals, including

(May 11, 1978). Not presently before this Court is the question of the con-

stitutionality of these standards.

8

the court in the instant case, and two district courts have even

considered the issue of liability of state correctional officials

for constitutional violations in county facilities. Contrary to

his assertion, these cases were all decided on the not merely

consistent but identical theory that the officials’ failure to

comply with a specific statutory duty was causally related to

the constitutional violations alleged. DiMarzo v. Cahill, 575

F.2d 15, 18 (1st Cir. 1978) (A-5-6); Miller v. Carson, 563 F.2d

757, 760-761 (5th Cir. 1977); Lucas v. Wasser, 425 F.Supp.

955, 961-962 (S.D.N.Y. 1976); Adams v. Mathis, _.__ F.Supp.

____ (M.D. Ala. 74-70-S, 2/28/78, slip. op. at 5-6).° Compare

Kostka v. Hogg, 560 F.2d 37, 40 n.1 (1st Cir. 1977), where, as

the court of appeals noted, 575 F.2d at 18 (A-6), the theory of

liability was respondeat superior, not statutory obligation.

The dissent from a denial of certiorari in Lewis v. Hyland, 554

F.2d 93 (3d Cir. 1977), cert. denied, 434 U.S. 931 (1977), adds

nothing to Hall’s argument. In Lewis, the district court had

found that “. . . any link between responsible officials and the

incidents of abuse is necessarily more attenuated here than in

Rizzo.” 554 F.2d at 101.

The commissioner’s implication in his brief at 10 n.4 that he

has only general supervisory authority over county institu-

tions, or perhaps none at all, ignores the plain wording of his

1972 legislative mandate. Pre-1972 Massachusetts law re-

quired only that “[the commissioner of correction] shall have

general supervision of jails and houses of correction.” 1955

Mass. Acts c. 770, §7. In contrast, the 1972 legislation re-

quired him to accomplish numerous specific acts or to see that

they were accomplished. Mass. Gen. Laws c. 124, §§1(d),

1(q) (A-27-28); c. 127, §§1A, 1B (A-32-34). Unlike Rizzo v.

‘The fact that these courts use different words to articulate the same

theory of law hardly indicates that their decisions are inconsistent, as the

petitioner purports to believe in his brief at 13.

9

Goode, supra at 376-377, there is no dispute in this case that

conditions at Essex violated the Constitution. Unlike the

supervisory defendants in Rizzo, supra, at 375-377, Hall clear-

ly knew or should have known about these conditions, and he

had the power and the responsibility to correct them. “We

are not confronted with sporadic incidents, over which the

Commmissioner might properly claim to have no knowledge

or control. Rather, we are dealing with the pervasive failure

of responsible authorities to maintain Essex in conformity with

constitutional requisites.” 575 F.2d at 17-18 (A-5). Unlike

Rizzo, supra, at 375-377, there is no dispute whatever in this

case that Hall has failed to comply with his legal obligations.

575 F.2d at 18 (A-6). The causal link between Hall’s refusal to

obey state law and the injuries alleged by the plaintiffs and

found by the district court in this case is clear.

Hall is a proper defendant because of his own statutory

duty and subsequent failure to act (and the consequent

constitutional injury) and not on the basis of the act of

others. [Emphasis in original.] 575 F.2d at 18 (A-6).

The petitioner suggests in his brief at 8 and 12 that the court

of appeals’ decision will force a restructuring of relationships

between state and county correctional officials. To the con-

trary, it was Hall’s own refusal to comply with his clear state

law obligations that necessitated the court of appeals’ decision.

The structure of relaticnships between Massachusetts state and

county correctional authorities is clearly delineated in a de-

tailed legislative scheme.* The petitioner’s role in that struc-

*The legislative scheme which details the structure of relationships be-

tween state and county correctional officials may be found in Mass. Gen.

Laws c. 34, §§3, 14 (A-31-32); c. 124, §1 (A-26-29); c. 125, §1 (A-25-26);

c. 126, §§1, 2, 11, 16 (A-29-31); c. 127, §§1, 1A, 1B (A-32-34), 10, 97 (AR-1).

10

ture is set forth with specificity in his 1972 legislative mandate.

The court of appeals merely held that Hall could not demon-

strate deliberate indifference to his statutory mandate for over

five years and be held blameless for the consequences. Cf.

Milliken v. Bradley, 418 U.S. 717, 746-748 (1974) (Milliken I);

Milliken v. Bradley, 433 U.S. 267, 289-290 (1977) (Milliken

II). Both the district court (A-22-24), and the court of ap-

peals, 575 F.2d at 18-21 (A-7-10, 12), carefully considered

federalism concerns in the instant case. Their remedy was

tailored to correct only the unconstitutional conditions and

practices found by the district court. Compare Rizzo v.

Goode, supra, at 378-380. If the commissioner finds his offi-

cial position a difficult one, as he complains in his brief at 8

and 12, that difficulty was created by his own disregard of the

Massachusetts legislature’s mandate, not by the federal courts.

Since the court of appeals merely held that the commis-

sioner could not ignore a specific, detailed legislative mandate

concerning county facilities for over five years and be absolved

of responsibility for the consequences, there are clearly no

special and important reasons to grant a writ of certiorari to

review the question whether the petitioner is a proper party

defendant in this case. Supreme Court Rule 19(1).

B. Tue Decisions or THE Courts BELOw CONCERNING FIRE

SAFETY AND Out-oF-CELL TIME REMEDIED CONSTITUTIONAL

VIOLATIONS WHICH WERE CONCEDED BY Essex OFFICIALS,

WHICH THE Lower Courts Founp Served No LEGITIMATE

PURPOSE, AND WHICH Essex OFFICIALS EXPRESSED A WILLING-

NESS TO REMEDY.

The petitioner so inaccurately describes the court of appeals’

decision in his brief at 14-17 that the second question he

presents for review not only suggests no special and important

11

reasons to grant a writ of certiorari; it is a question that is not

even properly presented to this Court. See Supreme Court

Rule 19(1).

The petitioner suggests that the court of appeal: employed

an equal protection standard of strict scrutiny in its approval

of the hiring of additional staff at Essex to alleviate the con-

cededly serious fire hazards and to provide more out-of-cell

time for detainees. This suggestion ignores the plain wording

of the court’s holding on this issue:

. Many courts have held that pretria) detainees are to

be confined only to the degree necessary to guarantee

their presence at trial. [Citations omitted.] However,

the district court’s order in the present case may be af-

firmed under even less rigorous standards. “Restrictions

upon detainees that serve no proper purpose, but merely

reflect the lack of imagination or energy of local officials,

are properly the subject of judicial correction.” Feeley v.

Sampson [570 F.2d 364 (lst Cir ‘978)] at 371. [Empha-

sis added.] 575 F.2d at 20 (A-10-11).

The court noted that the sheriff and jail officials, who are not

parties to this petition for a writ of certiorari, had indicated a

willingness to allow more out-of-cell time for detainees if pro-

vided with additional supervisory staff, and that the district

judge had left it to the sheriff’s discretion how to use the addi-

tional resources to provide more out-of-cell time. 575 F.2d at

20 (A-11). “Given the flexibility of these arrangements, we

cannot say that the district court’s requirement was, under all

the circumstances, unreasonable.” Id. In affirming the

district court’s order for increased staff to alleviate life-

threatening fire hazards not disputed by any of the defendants

and to provide more out-of-cell time for detainees, the court of

12

appeals thus relied, not on a mechanistic approach, but on the

fact that Essex officials were willing to provide more out-of-

cell time if they had more staff.

The petitioner erroneously states in his brief at 15 that Cir-

cuit Judge Campbell disagreed with the standard employed by

the court of appeals in its holding on lock-in time, considering

it inappropriately “mechanistic.” In fact, Judge Campbell

noted in his concurrence that he “would not agree” if the

district court or court of appeals had employed a different

standard in deciding the issue of lock-in time, not that he did

not agree with the standard actually used. 575 F.2d at 20

(A-12). He too noted that “the authorities principally con-

cerned — the county commissioners and sheriff — have not

seriously objected on security grounds, or even on grounds of

expense, to the district court’s order.” Id. He specifically

stated:

... I think it can be fairly assumed that the district

court’s determination rests on a reasonable and practical

view of what can and should be done, in keeping with

principles set forth in Feeley, rather than upon a mere

mechanical comparison. [Emphasis added.] 575 F.2d at

21 (A-12).

The commissioner alone, not the “authorities principally

concerned,” 575 F.2d at 21 (A-12), with implementation of

the district court’s order, seeks review of an issue not properly

presented to this Court.

13

Conclusion.

For the foregoing reasons, the petition for a writ of cer-

tiorari should be denied.

Respectfully submitted,

Of Counsel:

ALVIN J. BRONSTEIN, SUSAN E. T. STUDLIEN,

National Prison Project of the Massachusetts Civil Liberties

American Civil Liberties Union Foundation,

Union Foundation, 68 Devonshire Street,

1346 Connecticut Avenue, N.W., Boston, Massachusetts 02109.

Washington, D.C. 20036. (617) 742-8020

(202) 331-0500

ERNEST WINSOR,

Massachusetts Law Reform

Institute,

2 Park Square,

Boston, Massachusetts 02116.

(617) 483-0890

On the brief:

DALE S. DOENGES.

14

AR-1

Appendix A.

MASSACHUSETTS GENERAL Laws.

TitLe XVIII.

PRISONS, IMPRISONMENT, PAROLES AND PARDONS.

Chapter 127: Officers and Inmates of Penal and

Reformatory Institutions; Paroles and Pardons.

§10. [Annual Reports of Sheriff, County Commissioners,

etc. ]

Annually, on or before August fifteenth, the sheriffs, county

commissioners and the penal institutions commissioner of

Boston, shall make a report to the commissioner of the salaries

of prison officers, of the number and cost of support of

prisoners, and of such other details relative to the management

and discipline of the several prisons as the commissioner may

prescribe.

§97. [Transfers from and to Correctional Institutions, etc. ]

The commissioner may transfer any sentenced prisoner from

one correctional institution of the commonwealth to another,

and with the approval of the sheriff of the county from any

such institution except a prisoner serving a life sentence to any

jail or house of correction, or a sentenced prisoner from any

jail or house of correction to any such institution except the

state prison, or from any jail or house of correction to any

other jail or house of correction. Prisoners so removed shall be

subject to the terms of their original sentences and to the provi-

sions of law governing parole from the correctional institutions

of the commonwealth.

AR-2

Appendix B.

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, SS. SUPREME JUDICIAL CourT

For SuFFOLK CouNTY

No. 77-226 CIV.

ROBERT MANESS _Ert ALs

vs.

MASTER OF THE PLYMOUTH COUNTY

JAIL AND HOUSE OF CORRECTION

(LINWOOD H. SNOW) Er ALs

Order.

This matter came on to be heard and was argued by counsel,

and, as provided in a memorandum filed this day, it is hereby

ORDERED that the Commissioner of Correction promulgate

rules and regulations concerning “discipline” and “classifica-

tion” of inmates of county correctional facilities on or before

August 8, 1977, and that, if no such regulations are promul-

gated by that date, those relevant procedures applicable to in-

mates of State correctional institutions shall be followed by the

county defendants as to all persons then held in 23 hour a day

lock-up and as to all persons thereafter proposed to be placed

in 23 hour a day lock-up.

By the Court, (Wilkins, J.)

JOHN E. POWERS,

Clerk.

Entered: June 20, 1977

AR-3

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, SS. SUPREME JUDICIAL Court

For SuFFOLK County

No. 77-226 CIV.

ROBERT MANESS er ats

vs.

MASTER OF THE PLYMOUTH COUNTY

JAIL AND HOUSE OF CORRECTION

(LINWOOD H. SNOW) er ats

Memorandum Concerning the Plaintiffs’ Application

for a Preliminary Injunction.

The plaintiffs are inmates of a correction facility operated

and maintained by the County of Plymouth. Each plaintiff

has been placed in a 23 hour a day lock-up. Each, respective-

ly, was placed in special confinement on January 4, 1977,

March 31, 1977, and April 28, 1977. An agreement as to cer-

tain facts, entered into by the plaintiffs and the county defend-

ants, indicates that the plaintiffs are confined to their cells for

23 hours a day; that one at a time each is allowed out of his cell

for one hour each day during which he can move along a 100’

by 4’ catwalk. The plaintiffs have certain restrictions on extra

food which are not applicable to other inmates. They are less

likely to receive furloughs than inmates in the general popula-

tion at the county facility. Inmates in the general population

are allowed out of their cells for 9-1/2 hours per day and have

access to certain recreational facilities. The plaintiffs were

told on an informal basis why they were placed in 23 hour a

day lock-up. They have not been told how long their special

confinement will continue. None was given a hearing, af-

AR-4

forded counsel, or given an opportunity to confront or cross-

examine any accuser prior to his special confinement.

The plaintiffs object to the failure of the county defendants

to extend to them certain procedural rights to which they

claim they were entitled before they may lawfully be placed in

special confinement. They also argue that the defendant

Commissioner of Correction (Commissioner) has failed to

comply with a statutory requirement that he issue rules and

regulations concerning (among other things) “discipline” and

“classification” of county inmates. The plaintiffs seek a

preliminary injunction directing (1) their release until they are

afforded their minimum due process rights, (2) the issuance of

county regulations by the Commissioner according to a strict

timetable, and (3) the application of the state prison regula-

tions concerning “discipline,” “departmental segregation,”

and “Administrative reclassification” until such time as the

county regulations are issued and in effect.

General Laws, c. 124, §1(q), obligates the Commissioner to

make and promulgate necessary rules and regulations regard-

ing “discipline” and “classification” for all persons committed

to all correctional facilities in the Commonwealth. The Com-

missioner concedes an obligation to make rules and regulations

governing county correctional facilities. In his brief, he refers

to such rules and regulations, now in the process of develop-

ment, as “Minimum Standards for County Correctional Fa-

cilities.” He expresses an intention to issue those standards in

the next four months. However, he is opposed to making a

current draft of those regulations available to the court unless

they are impounded and is opposed to making them available

to counsel for the plaintiffs unless they agree to restrict their

use and dissemination. In view of the fact that counsel for the

Commissioner contemplates public release and public hearings

on the proposed regulations within the next four months, it is

hard to understand the Commissioner’s reluctance to present

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an unrestricted copy of the current draft (in spite of his coun-

sel’s statement in open court that a copy would be presented),

at least as to matters of “classification” and “discipline”. At

this time, there is no indication whether the regulations will

prescribe any procedures (written reasons, hearings, etc.) con-

cerning circumstances in which county inmates are placed in

23 hour a day lock-up.

The Commissioner argues that the plaintiffs have not been

harmed because they cannot show that they have been hurt as

a result of the Commissioner’s failure to promulgate regula-

tions. Of course, it is true that the plaintiffs cannot demon-

strate they have been harmed by the absence of regulations

unless those regulations will contain provisions setting forth

procedures which must be followed in the process of placing

persons such as the plaintiffs in 23 hour a day lock-up. The

issue is not whether the plaintiffs should be in 23 hour a day

lock-up but whether certain procedures should have been

followed as a part of the process by which they were placed in

the 23 hour a day lock-up. The county defendants have agreed

that each plaintiff received only an informal oral statement of

the reason for his special confinement or that the reason for the

confinement was obvious in the circumstances. Counsel for

the county defendants represented that the plaintiffs were en-

titled to nothing further because the authorities may change

the nature of the plaintiffs’ confinement in their unfettered

discretion. The Commissioner’s counsel has taken substantial-

ly the same view.

If, of course, the plaintiffs are entitled to more procedur-

ally, the regulations should deal with those additional rights

and the plaintiffs may have been harmed by the unavailability

of those additional procedures.! The Commissioner’s brief

'They would be harmed if, as a result of such procedures, their special

confinement would never have commenced or would now have been termin-

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argues that the regulations would not have to contain any pro-

cedures which are constitutionally mandated. This is a sur-

prising suggestion. Minimum standards to be followed surely

must be standards at or above the level of constitutional re-

quirements. Any regulations which failed to expound any

statutory and constitutional requirements concerning

discipline and classification would hardly fulfil the statutory

mandate that the Commissioner issue “necessary rules and

regulations.” Of course, the extent of any constitutional rights

(and perhaps statutory rights) may be difficult to determine,

but it is better that the Commissioner undertake such an at-

tempt than to leave the matter to officials in each county.

Although the plaintiffs have not demonstrated that they are

sustaining irreparable harm because of the absence of any

regulations, the Commissioner concedes that he has a duty to

issue regulations. In this aspect of the case, the Commissioner

has granted that the plaintiffs are entitled to relief but argues

that his proposed four months implementation procedure for

his regulations should be allowed to stand. In view of the

mandate to issue such regulations which has been in effect

since 1972, a more expeditious process would appear war-

ranted, at least as to “discipli e” and “classification” regula-

tions. In this respect, the case is appropriate for the entry of

an interlocutory order finally dispositive of this aspect of the

case. Such an order will be entered directing that the Com-

missioner promulgate rules and regulations concerning

“discipline” and “classification” of inmates of county correc-

tional facilities on or before August 8, 1977, and that, if no

such regulations are promulgated by that date, those relevant

procedures applicable to inmates of State correctional institu-

ated. On the record now before the Court, it is not possible to determine

whether any plaintiff has in fact been harmed by the absence of regulations

prescribing procedures.

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tions shall be followed by the county defendants as to all per-

sons then held in 23 hour a day lock-up and as to all persons

thereafter proposed to be placed in 23 hour a day lock-up.

The question then remains whether the plaintiffs are enti-

tled to preliminary injunctive relief against the county defend-

ants. The plaintiffs argue that they should be released from 23

hour a day lock-up until they are afforded their minimum due

process rights. At the most, the plaintiffs would be entitled to

the application of due process procedures and not automatic

release. A principal consideration is whether the plaintiffs

have any statutory or constitutional right to notice, a hearing,

a written decision, confrontation, cross-examination, and

similar items which, in various contexts, have been grouped

under the general heading of procedural due process. Under

the Federal Constitution it seems clear that the plaintiffs have

no due process rights unless a state statute (or regulation)

creates a liberty interest. Meachum v. Fano, 427 U. S. 215,

228-229 (1976). The Supreme Court has interpreted

Meachum v. Fano, supra, as holding “that no Due Process

Clause liberty interest of a duly convicted prison inmate is in-

fringed 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 be transferred except for misbehavior or upon the oc-

currence of other specified events.” Montanye v. Haymes,

427 U. S. 236, 242 (1976).

The plaintiffs cite G. L. c. 127, §41, in support of their

claim. Section 41 is concerned with county facilities and the

use of isolation units. Certain cells may be “used as isolation

units, and for the enforcement of discipline.” It is unclear

from the statutory language whether such cells may be used

only for discipline or whether they may be used, for example,

to protect an inmate or to protect others from him. If such a

cell is used for discipline, it should not be used “for more than

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ten days for any one offence.” The defendants argue that 23

hour a day lock-up is not confinement in an isolation unit

within the meaning of §41. Certainly the plaintiffs are not

totally isolated and have substantially greater privileges than

minimally mandated by the last paragraph of §41. The de-

fendants argue in effect that “isolation” in §41 means “solitary

confinement” and that clearly the plaintiffs are not being held

in solitary confinement. On this preliminary record, the

plaintiffs have not established that §41 applies to their cir-

cumstances. Moreover, there has been no showing that, if §41

applies to them, the plaintiffs have any right or expectation

under §41 that they will not be placed in isolation units. Their

claim is that they are entitled to certain precedent due process

procedures. Section 41 creates rights and expectations con-

cerning the conditions in isolation units, and it provides that

one may not be held there for disciplinary reasons for more

than ten days. Thus, §41 provides rights and expectations

only concerning conditions in isolation units and concerning

the duration of disciplinary confinement, but none concerning

transfer to an isolation unit. The plaintiffs have not estab-

lished that they have any present statutory right to procedural

due process before or as part of their being placed in 23 hour a

day lock-up.

The plaintiffs have not established that separate procedures

for state and county prisoners are without a rational basis.

Their equal protection of the laws argument is without merit

at this stage of the proceeding. Whether they can show in

time that the distinction is without a rational basis remains to

be seen.

There is no suggestion that the full bench of the Supreme Ju-

dicial Court will take a stricter view than the Supreme Court

of the United States of the rights of prisoners, by reaching dif-

ferent conclusions concerning parallel provisions of the Consti-

tution of the Commonwealth. See Commonwealth v. Boyd,

tt GI

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Mass. Adv. Sh. (1975) 687, 693-694. At this preliminary

stage, I decline to impose a stricter standard on the defendants

than that imposed by the Constitution of the United States. I

conclude that the plaintiffs are not entitled to preliminary

relief against the county defendants at this time. This conclu-

sion should not be regarded as a judicial endorsement of the

procedures (or lack of procedures) followed by the county de-

fendants. I simply conclude that, at this time, it has not been

demonstrated that the plaintiffs are entitled to injunctive relief

against the county defendants.

When the Commissioner’s regulations are issued, the situa-

tion may change. The Commissioner will have to consider

carefully any attempt to make his long-delayed regulations

concerning “discipline” and “classification” applicable only

prospectively. Whenis 2d, those regulations may well apply,

and have to apply, to persons such as the plaintiffs.

HERBERT P. WILKINS,

Associate Justice.

June 20, 1977