Petition — Hayward v. Procunier

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80-1154

No.

FE Supreme Court, U. S,

| ase P| LED

EL RODAK, JR. » CLERK |

In the Supreme Comat Oo

United States

Octoser Term, 1980

Art Haywarp, Jr., MicHaEL McNass

and Morris L. Brown,

Petitioners,

vs.

Raymonp K. Procunier, Jiro J. Enomoto,

Water Britt, Rosert M. Ress, L. H. Fuper,

C. L. Swacerty, D. W. SmitH and Don R. Weser,

Respondents.

Petition for Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

Rosert A, Goopin

505 Sansome Street

San Francisco, California 94111

Telephone: (415) 392-7900

STrePpHEN V. BomMsE

44 Montgomery Street

San Francisco, California 94104

Telephone: (415) 772-6000

Attorneys jor Petttioners.

Armoor, St. Jonn, Witcox & Goopin

Of Counsel.

SORG PRINTING COMPANY OF CALIFORNIA, 346 FIRST STREET, SAN FRANCISCO 94108

QUESTION PRESENTED

When prison administrators impose a

five month lockdown, consisting of 22 to

24 hour per day confinement of prisoners

to their cells, with attendant restric-

tions upon their usual ‘activities and

routines, and when the imposition and

continuation of that lockdown is con-

ditioned by state law, rules, and prac-

tice upon the onset and continuation of

a specific factual predicate, to wit: a

state of emergency, does the Fourteenth

Amendment to the United States Consti-

tution require that some form of pro-

cedural due process be afforded to the

prisoners affected.

Table of Contents

Opinions below ......

Jurisdiction ..

Constitutional provision

IIVOLVOG. ke a as Perle Pech ga ce

Statement of the case .....

A. The 1974-75 lockdown at

San Quentin State Prison

B. The proceedings below

Reasons for granting the writ

A. The lower court misapplied

procedural due process

precedents as they apply to

an important area o

conditions of prison

CORTIINIIIIG 6s ee ee

B. There is a significant

disparity of view point

among the circuits on the

uestion of the applicabi-

ity of procedural due

process to lockdown

Situa j ons io 2 ° a > © . © *

CORRE. oS ee ee ‘

Pages

Index to Appendices

Appendix A--Opinion of the United States

Court of Appeals for the Ninth Circuit

Appendix B--Order of the District Court

approving the Findings of Fact and

Conclusions of Law of the United

States Magistrate

Appendix C--Findings of Fact and

Conclusions of Law of the United

States Magistrate

Table of Authorities Cited

Cases Pages

Gilliard v. Oswald,

‘ 552 F.2d 456

Cae Meee) Meee A 6k 6 seer 17

Greenholtz v. Inmates of

Nebraska Penal and Correc-

tional ee 442 U.S. 1

(1979) -. erty yas “ae i ee

Hoitt v. Vitek,

497 F.2d 598 (lst Cir. 1974) . 16, 17

° Johnson v. Anderson,

370 F.Sup PD. iy (D.

Delaware 1974 4 Ce

Labatt v. ma

513 F.2d 641 (7th Cir. 1975) . pC Sai es ,

Meachum v. Fano,

Oa? iwc eae CATO). 6 8 we 11

Sostre v. McGinnis,

442 F.2d 178 (24° ee Ghee 5 75 oe 12

’*

Rules

California Rules and |

Regulations of the Direc-

tor of Corrections:

Section 4402 .

Fed. R. Civ. P.:

Rule 23(b)(2)

Constitutional Provisions

Fourteenth Amendment, |

United States Constitution .

Statutes

California Penal Code:

Section 5058 .

28 U.S.C.:

Section 1254(1)

Section 1983 .

IN THE SUPREME COURT

OF THE

UNITED STATES

October Term, 1980

No.

ART HAYWARD, JR., MICHAEL MCNABB

and MORRIS L. BROWN, Petitioners,

vs.

RAYMOND K. PROCUNIER, JIRO J.

ENOMOTO, WALTER BRITT, ROBERT M.

REES, L. H. FUDGE, C. L.

SWAGERTY, D. W. SMITH and

DON R. WEBER, Respondents.

PETITION FOR WRIT OF CERTIORARI

to the United States Court of Appeals

for the Ninth Circuit

Art Hayward, Jr., Michael McNabb,

Morris L. Brown, and the class which

they have been certified to represent

(hereinafter “the prisoners") petition

for a writ of certiorari to review the

opinion and judgment of the United

States Court of Appeals for the Ninth

Circuit, entered in this case on

October 3, 1980.

OPINIONS BELOW

The opinion of the United States

Court of Appeals for the Ninth Circuit

is attached hereto as Appendix A and is

reported at 629 F.2d 599. fThe trial

court order, adopting, as modified

therein, the Findings of Fact and Con-

clusions of Law of the United States

Magistrate before whom the case was

tried is attached hereto as Appendix B.

The Findings of Fact and Conclusions of

Law of the United States Magistrate

before whom the action was tried is

attached hereto as Appendix C. Neither

Appendix B or C has been reported.

JURISDICTION

Judgment of the United States Court

of Appeals for the Ninth Circuit in this

case was entered on October 3, 1980.

The jurisdiction of this Court is in-

voked under 28 U.S.C. Section 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The Fourteenth Amendment to the

’*

*-*%

United States Constitution provides in

pertinent part:

". . . nor shall any state deprive

any person of life, liberty, or

property, without due process of

RS 6 Se

STATEMENT OF THE CASE

‘A. The 1974-75 Lockdown at

San Quentin State Prison

On December 19, 1974, following

several incidents of violence at San

Quentin State Prison in Tamal,

California, prison authorities imposed

what is commonly known as a "lockdown"

or "deadlock" on the prison. At the

beginning of the lockdown the prisoners

were confined to their cells 24 hours a

day and were served sack lunches twice a

day in their cells. Gradually this

regimen was relaxed. Within two to

three weeks following imposition of the

lockdown the prisoners began receiving

one hot meal per day out of their cells.

Some two weeks thereafter they began to

receive two hot meals per day out of

their cells and it was not until June

1975, six months after the lockdown

began that the normal routine of three

hot meals a day was restored.

Similarly, yard exercise and

showers were abrogated entirely at the

outset of the lockdown but’ were

gradually reintroduced on a restricted

basis. Finally, a great many inmate

privileges such as school attendance,

movies, and visiting rights were either

abrogated entirely or substantially cur-

tailed. As late as May of 1975, five

months after the imposition of the lock-

down, prisoners were spending approxi-

mately 22 hours per day confined to

their cells, making this lockdown one of

the longest and most restrictive in San

Quentin history.

The authority for imposing this

lockdown was found in Section 4402 of

the California Rules and Regulations of

the Director of Corrections and the

emergency disturbance control plan

promulgated pursuant thereto.* Under

both the plan and San Quentin's prac-

tice, lockdowns were imposed only in an

* These rules have been promulgated pursuant

to the express statutory authorization contained

in California Penal Code Section 5058.

’%

7’.

emergency situation and only for the

duration of the emergency. The plan and

normal practice at San Quentin called

for efforts to isolate the disturbance

and to ameliorate conditions to normal

operations as soon as the emergency sub-

sided.

It was undisputed below that

neither prior to* during or at any time

following the imposition of the lockdown

and during its five month continuance

was a hearing or any other systematic

fact finding procedure conducted to test

the necessity for continuation of this

lockdown.

B. The Proceedings Below

Following the conclusion of the

lockdown the prisoners initiated this

action in the United States District

Court for the Northern District of Cali-

fornia, on behalf of themselves and on

* Prisoners made no claim below that, under

the circumstances of this case, procedural due

process should have preceded the imposition of

the emergency measures; rather prisoners con-

tended that at some point following the impo-

sition of the lockdown and while its extra-

ordinary effects continued, some procedural due

process protections were required.

behalf of a class consisting of all of

the residents of the East Cell Block of

San Quentin State Prison, wherein they

were housed during relevant periods of

this lockdown. The prisoners made two

principal claims under 28 U.S.C. Section

1983 arising out of this lockdown:

first, that their right to procedural

due process pursuant to the Fourteenth

Amendment to the United States Consti-

tution had been violated, and second,

that their right to be free of cruel and

unusual punishment as guaranteed by the

Eighth and Fourteenth Amendments to the

United States Constitution had been in-

fringed.

The action was subsequently certi-

fied as a class action pursuant to

Rule 23(b)(2) of the Federal Rules of

Civil Procedure. The case was referred

to a United States Magistrate for trial

without a jury, and the trial commenced

on November 7, 1977. The Magistrate

entered his Findings of Fact and Con-

clusions of Law on February 2, 1978,

denying the prisoners' claims in their

entirety. The magistrate concluded that

the procedural due process clause of the

Fourteenth Amendment of the United

7’.

States Constitution was inapplicable to

the lockdown and that no denial of the

right to be free from cruel and unusual

punishment had been demonstrated by the

prisoners. See Appendix C hereto. By

Order dated October 16, 1978 the United

States District Court to whom the case

was assigned approved the Magistrate's

Findings of Fact and Conclusions of Law

with a minor amendment and entered judg-

ment thereon. See Appendix B hereto.

A timely appeal was filed to the

United States Court of Appeal for the

Ninth Circuit, and that court, by judg-

ment dated and entered on October 3,

198 , affirmed the judgment of the

United States District Court. With

‘respect to the procedural due process

claim the court held "that there is no

due process right to the hearing sought

by plaintiffs in this case. In so

deciding we do not minimize the serious-

ness of a lockdown nor do we deny that

administrative review of a lockdown

decision might be desirable. ... We

are simply unable to say that the Con-

stitution dictates such a procedure."

See Appendix A at p. 8.

With respect to the Eighth Amend-

'”™

°%

ment claim the court held that "these

decisions [the lockdown decisions] are

delicate ones and those charged with

them must be given reasonable lee-

way. ... The court below carefully

reviewed the restrictions of the lock-

dower in light of the emergency at the

prison and determined that they did not

cross the Eighth Amendment line. We

agree with that conclusion." Id. at

S. 9,

REASONS FOR GRANTING THE WRIT

A. The Lower Court Misapplied

Procedural Due Process Precedents

As They Apply To An Important

Area Of Conditions Of Prison

Confinement

This case presents a question never

addressed by this Court concerning an

important and recurring area of prison

regulation of the conditions of confine-

ment of inmates. At the outset we em-

phasize the urgency of dealing with the

general problem of conditions of con-

finement of prisoners, a concern which

was underscored by the tragedy at the

New Mexico State Penitentiary during

1979, and which has been forcefully

°°.

singled out for special attention by the

Chief Justice of this Court in his year

end report on the judiciary. See e.g.,

The New York Times, December 29, 1980 at

me &

The utilization of lockdowns or

deadlocks is common in many prison sys-

tems across the United States, as is

revealed by the numerous cases involving

this situation in various circuits. See

cases discussed in Section B infra.

Thus the question presented here is of

national importance and application. As

noted above, the prisoners challenged

the five month San Quentin 1974-1975

lockdown on two principal grounds: that

it was continued without procedural due

process, and that it violated plain-

tiffs' rights to be free of cruel and

unusual punishment.

Petitioners, while disagreeing with

the Court of Appeals' conclusion on the

cruel and unusual punishment issue, do

not believe that claim, standing alone,

warrants review here, because no new

and/or generally applicable standards

would be derived therefrom. According-

ly, petitioners seek review only of the

lower courts disposition of the pro-

cedural due process question which, we

submit, both was erroneously decided

below, and is of national application in

an important area of conditions of

prison confinement.

As indicated in the quotation

above, the Court of Appeals conceded the

serious and substantial nature of the

deprivations incident to a five month

lockdown and the desirability of some

systematic review or fact finding pro-

cedure to insure their necessity. None-

theless it concluded that such a review

was not constitutionally compelled by

the due process clause and that the only

scrutiny to which such a lockdown should

be subject is Eighth Amendment scrutiny.

As developed below, in relegating scru-

tiny of a lockdown solely to the bases

afforded by the Eighth Amendment, the

Court of Appeals both departed from

procedural due process precedents of

this Court and enunciated a principle

which is unsound from a policy view-

point. F

In rejecting the prisoners due

process claim, the Ccurt of Appeals

decided first, that the prisoners' ex-

pectation to be free of the deprivations

incident to a lockdown was too "“emphem-

eral" to trigger procedural due process

protection under the tests enunciated in

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

its progency, and second, that even if

such expectations were not deemed "em-

phemeral", no workable process could be

fashioned here because the deprivations

were visited upon a prison as a whole

rather upon one prisoner. Neither of

these contentions, we submit, is per-

suasive.

First, the record below established

that prisoners had an expectation that,

absent a state of emergency they would

not be subjected to the magnitude of

deprivations incident to a lockdown. As

the Court of Appeals conceded, this

expectation was grounded both in the

rules of the California Department of

Corrections and the actual California

practice in imposing lockdowns. See

Appendix A at p. 5. Accordingly, under

the principles enunciated by this Court,

that expectation even if "ephemeral"

(which prisoners dispute) was entitled

to some (even if limited) measure of due

process protection. See Greenholtz v.

Inmates of Nebraska Penal and Correc-

tional Complex, 442 U.S. 1 (1979) at 12.

With respect to the second basis

_for the court's due process holding, the

prisoners do not dispute that the situ-

ation of a loczkdown is different from

other situations which affect only one

prisoner, e.g., solitary confinement,

loss of good time credits, etc. We sub-

mit, however, that this difference

affects only the type of process which

should be fashioned to deal with a

lockdown situation, not the requirement

that some systematic factfinding be

undertaken. See, Greenholtz, supra at

12-14. In essence, the Court of

Appeals' due process analysis disregards

the fundamental predicate for procedural

due process in the prison context: "if

substantial deprivations are to be

visited upon a prisoner it is wise that

such action should at Jeast be premised

upon the facts rationally determined."

Sostre v. McGinnis, 442 F.2d 178 at 198

(2nd Cir. 1971). As this Court has

succinctly stated in Greenholtz, supra,

"the function of due process as that

concept is embodied in the constitution

and in the realm of factfinding, is to

minimize the risk of erroneous

’>

decisions. Because of the broad spec-

trum of concerns to which the term must

apply, flexibility is necessary to gear

the process to the particular needs; the

quantimum quality of process due in a

particular situation depends on the need

to serve the purpose of minimizing the

risk of error." See Greenholtz, supra

at’ p. 13.

The Court of Appeals decision com-

pletely ignores this flexibility. Thus

the decision to lockdown a prison and to

continue that lockdown, while consider-

ably different in character from some

other prison decisions affecting

individual inmates only, nonetheless

visits equally serious consequences upon

the prisoners involved, and the need to

minimize the risk of erroneous decisions

is therefore equally great. Accord-

ingly, individualized adversary hearings

of the type which attend individual

deprivations would clearly be inappro-

priate in lockdown situations. That

fact, however, simply does not vitiate

the need for some systematic factfinding

review by a prison administrator not

personally responsible for the lockdown

decision, tailored to test the factual

predicate for an extended lockdown.

In addition to being unsupported by

precedent, we submit that the Court of

Appeals decision to relegate scrutiny of

an extended lockdown solely to. the

Eighth Amendment is unsound on a policy

basis. Thus, as the Court of Appeals

observed in its Eighth Amendment analy-

Sis, those charged with "lockdown

decisions must be given reasonable lee-

way". See Appendix A at p. 9. This is

a proposition with which we do not

quarrel, since prison administrators

clearly possess expertise not possessed

by reviewing federal courts. We submit,

however, that, concomitant to the leeway

accorded under the Eighth Amendment, is

a procedural due process obligation upon

the prison officials to insure that in

exercising that leeway they are acting

upon facts rationally determined. The

instant lockdown, we submit, strongly

supports imposition of such a procedural

due process obligation. Thus, it is

clear that the prison administrators who

implemented and continued the lockdown

for five months believed that a lockdown

of that scope and duration was necessary

to deal with the emergency presented at

San Quentin in 1974-75. Equally clearly

the prisoners involved disagreed,

believing that a lockdown of a much

shorter duration and lesser scope would

have sufficed, a belief supported by the

testimony of a prison psychologist, to

the effect that lockdowns exceeding one

to two weeks in duration do not have a

beneficial effect on the stability of

the prison but in fact may create the

very tensions which breed violence in

the first instance.

Under these circumstances we submit

that some systematic procedure for

weighing the competing contentions, con-

ducted by someone within the prison

hierarchy other than the individual

making the lockdown decisions is both

reasonable and necessary. The Court of

Appeals conceded that such process was

desirable but concluded that it was not

constitutionally mandated... In so con-

cluding, we submit, it failed to appre-

hend the flexibility of procedural due

process.

B. There Is A Significant Dis-

parity Of View Point Among

The Circuits On The Question

Of The Applicability Of Pro-

cedural Due Process To Lock-

down Situations

In addition to the importance of

the question here presented to prison

administration, and its erroneous dis-

position below, another cogent reason

exists for review by this Court. At

least four of the circuits, including

the Ninth Circuit Court of Appeals in

this case, have been presented with

lockdown situations and have given quite

disparate treatment to the _ subject.

Perhaps the leading case is Labatt v.

Twoomey, 513 F.2d 641 (7th Cir. 1975).

The court there concluded that in a

lockdown of sufficient duration, a hear-

ing or other procedural protection must

afford the prisoners either prior to, or

if conditicns prevent, sometime after

the lockdown is initiated and while its

extraordinary effects continue. The

court found, however, that the nine day

lockdown there involved did not impli-

cate such procedures. Id. at 646.

Similarly, the First Circuit, in Hoitt

v. Vitek, 497 F.2d 598 (lst Cir. 1974),

indicated that while a lockdown of

several weeks did not implicate the pro-

cedural due process protections of the

Fourteenth Amendment, a lockdown of

longer duration would require some due

process. Id. at 600. |

In its opinion the Ninth Circuit

specifically rejected the reasoning of

the Seventh Circuit in Labatt and impli-

edly rejected the reasoning of the First

Circuit in Vitek. In accord with the

Ninth Circuit view in this conflict is a

case from the Second Circuit, Gilliard

v. Oswald, 552 F.2d 456 (2d Cir. 1977),

wherein the court indicated that a lock-

down does not implicate the procedural

due process clause. See also, Johnson

v. Anderson, 370 F.Supp. 1373 (D. Dela-

ware 1974), (where the court held that

no procedural due process protections

need attend the imposition of a lockdown

because it was a rule change of general

applicability, not one directed to par-

ticular individuals, a rationale adopted

by the Ninth Circuit in this case.)

Thus, it is apparent that lockdowns

are a national phenomenon, and that the

question of the applicability of the

procedural due process clause to them is

one to which various circuits have

applied conflicting analyses. Accord-

ingly, it is a question which should be

resolved by this Court.

CONCLUSION

For the reasons set forth above,

the petitioners respectfully submit that

the writ of certiorari should be

granted. mrt

Dated, San Francisco, California,

December 31, 1980.

Respectfully submitted,

Robert A. Goodin

Attorneys for Petitioners

Stephen V. Bomse —y.

Attorneys for Petitioners

ARMOUR, ST. JOHN, WILCOX & GOODIN

Of Counsel

(Appendices Follow)

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ART HAYWARD, JR., MICHAEL

MCNABB and MORRIS L. BROWN,

Plaintiffs/Appellants

-V-

RAYMOND K. PROCUNIER, JIRO J.

ENOMOTO, WALTER BRITT, ROBERT

M. REES, L. H. FUDGE, C. L.

SWAGERTY, D. W. SMITH and DON

R. WEBER,

Defendants/Appellees.

No. 78-3701

D.C. No. C-75-0653

OPINION

Bag en from the United States District

ourt for the Northern District of

aii California |

William A. Ingram, ey Ted he af

Presiding Argued and Submitte

July 9, 1980

BEFORE: DUNIWAY, TANG and CANBY,

| Circuit Judges

CANBY, Circuit Judge

In this appeal we must decide

whether state prisoners’ constitutional

rights to procedural due process and

7’.

Appendix A

freedom from cruel and unusual punish-

ment were violated by a five-month

"lockdown"? of the prison. The district

court held that there was no constitu-

tional violation. We agree and affirm.

FACTS:

Between 1970 and 1974 California's

San Quentin Prison became an increasing-

ly turbulent institution. The rate of

violent incidents more than tripled dur-

ing this period, and the influence of

prison gangs steadily grew. 1974 was a

particularly violent year. There were

82 assaults with weapons and 12 kill-

ings, as well as 71 cases of possession

of weapons and 2 attempted escapes.

Prison officials responded to the prob-

lem by temporarily “locking down" the

prison several times in 1974; Department

of Corrections officials even considered

closing San Quentin.

1. "Lockdown" is not a term of art. It gener-

ally refers to a condition of abnormally height-

ened security during which prisoners are con-

fined to their cells totally or for a much

greater portion of the day than usual. As will

be seen, the restrictive incidents of the lock-

down in this case changed during the period it

was in effect.

’%

Appendix A

On December 19, 1974, two were

killed in separate incidents of gang

violence. Prison officials feared that

the violence might spread. The warden

decided that a state of emergency exis-

ted and, acting pursuant to § 4402 of

the California Rules and Regulations of

the Director of Corrections, he imposed

a lockdown on the entire prison.

At first the prisoners were con-

fined to their cells 24 hours a day and

were served sack lunches twice a day in

their cells. Gradually, however, the

regimen was relaxed. Within two weeks

the prisoners received one hot meal per

day in the dining room. Two weeks later

they received two hot meals per day and

finally in June 1975, six months after

the lockdown began, the normal routine

of three hot meals per day was restored.

Similarly, yard exercise and trips to

the showers were forbidden entirely at

the outset of the lockdown, but were

gradually reintroduced. Showers were

fully reintroduced by February 1975.

Some yard exercise was permitted within

a month after the lockdown. began, and

the normal exercise routine was restored

by May. Of course a great many inmate

Appendix A

privileges such as movies, school atten-

dance and visitation were partially or

wholly abrogated during the five to six

months of the lockdown.

The plaintiffs in this action were

residents of East Block, one of the four

major housing units at San Quentin, dur-

ing the lockdown. fThey brought this

action on behalf of themselves and the

Class of East Block residents for

damages and declaratory and injunctive

relief under 42 U.S.C. § 1983. They do

not argue that the initial decision to

impose the lockdown was necessarily im-

provident; indeed, the record discloses

that many inmates were urging the warden

to lockdown the prison after the two

killings on December 19, 1974. They do,

however, urge that continuance of the

lockdown for more than a short time

without some sort of notice and hearing

at which the inmates could participate

deprived them of their liberty without

procedural due process, in violation of

the fourteenth amendment. The prisoners

also argue that the lockdown, continuing

as long as it did, constituted cruel and

unusual punishment in violation of the

eighth and fourteenth amendments. The

Appendix A

district court rejected these claims and

the prisoners appealed.

PROCEDURAL DUE PROCESS:

In Meachum v. Fano, 427 U.S. 215

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

236 (1976), the Supreme Court held that

state prisoners had not lost any liberty

or property interest, and hence were not

entitled to procedural due process, by

being transferred to a less favorable

prison within the same prison system.

Crucial to these decisions was the

court's conclusion that the relevant

state statutes, regulations and customs

did not give rise to any justifiable

expectation on the part of prisoners

that they wou)d not be transferred for

any reason or no reason. Had the state

law been to the contrary, it was pos-

sible that inmates would have had a

liberty interest in not being trans-

ferred which could not have _ been

abridged without procedural due process.

The prisoners in this case argue

that, unlike the inmates in Meachum and

Montanye, they did have a legitimate

expectation under California law and

prison custom that they would not be

’*>

Appendix A

subjected to a lockdown unless a certain

specified condition -- the existence of

an emergency -- was met. They argue that

they were therefore entitled to a hearing

before an impartial fact-finder at some

point soon after the lockdown was imposed.

We have difficulty finding support

for the plaintiffs' contentions in the

California prison regulations or prac-

tices. Section 4402 of the Rules and

Regulations of the Director of Correc-

tions simply provides that "[{eJach

institution head must have in effect at

all times a plan, approved by the

Director, for meeting emergencies, such

as riots, strikes, attacks upon inmates,

visitors or staff, explosions or fires,

suicides or attempted suicides or acci-

dental injuries to inmates or visitors

and employees." The variety and inclu-

Siveness of this list suggest that the

regulation is not intended to impose

fixed conditions upon the warden's exer-

cise of his authority. In any event, it

is undisputed that there were "attacks

upon inmates" which led the warden to

implement the prison's Disturbance Con-

trol Plan and impose the lockdown. We

do not understand the prisoners to be

Appendix A

seeking a hearing merely to determine

whether in fact such attacks took place.

They wish a hearing to determine whether

the increased level of security repre-

sented by the lockdown was justified by

the emergency. Yet nothing in the regu-

lations nor, in our view, in the customs

of the prison is sufficiently specific

to create a justifiable expectation of

any particular level of prison-wide

security. That omission distinguishes

the present case from those in which

prisoners were held to be entitled to

procedural due process. We do not find

here the equivalent of a statute confer-

ring a particular benefit, such as good

behavior time or parole, with a specifi-

cation of conditions under which that

benefit can be lost. See Wolff v.

McDonnell, 418 U.S. 539 (1974);

Greenholtz v. Inmates of Nebraska Penal

and Correctional Complex, 442 U.S. 1, 99

S.Ct. 2100 (1979). The regulations here

do not purport to enumerate specific

reasons for which a prisoner can be

placed in solitary confinement and to

require documentation of those reasons.

See Wright v. Enomoto, 462 F.Supp. 397

(N.D. Cal. 1976), aff'd mem., 434 U.S.

Appendix A

1052 (1978). Nor are prisoners being

subjected to treatment wholly outside

the foreseeable consequences of criminal

conviction, such as commitment to a

mental institution in the absence of a

mental disease or defect. See Vitek v.

Jones, ‘_ (U.S. ___ , . 100 §.Ct. 1254

(1980). Here were have only a regulation

requiring a warden to have a plan for

meeting emergencies, along with a non-

exhaustive list of possible emergencies.

It is certainly true that in the

ordinary course of events prisoners

expect that there will be no lockdowns

in the absence of an emergency, just as

in Meachum and Montanye prisoners

naturally expected that they would not

be transferred in the absence of miscon-

duct, "unless it be assumed that trans-

fers are mindless events". 427 U.S. at

228. But the Supreme Court found that

type of expectation to be too ephemeral

to give rise to a due process liberty

interest, and we think the same conclu-

sion follows.in the present case.

There is another fundamental defect

in the procedural due process arguments

of the prisoners, and it lies in the

nature of the hearing they seek. In

Appendix A

every case cited by plaintiffs or

revealed by our research in which pri-

soners were found to be entitled to a

due process hearing, the subject of that

hearing was the fate of individual pri-

soners, and the facts to be examined

dealt with their conduct or their condi-

tion. See, e.g., Wolff v. McDonnell,

supra; Greenholtz v. Inmates of Nebraska

Penal and Correctional Complex, supra;

Wright v. Enomoto, supra. In this case, -

however, the facts in dispute are not

those which would differentiate the

plaintiffs from the general prison popu-

lation and cause them to be subjected to

distinctive treatment. The conduc. of

the plaintiffs is not in issue. Instead,

the question to be decided is whther the

degree of emergency justifies a continua-

tion of the lockdown -- a determination

involving a high degree of policy and

prediction. See Gilliard v. Oswald, 552

F.2d 456, 459 (2nd Cir. 1977). To

address this question, the plaintiffs

urge us to fashion a hearing at which

selected members of the inmate population

can present their views on the advisabil-

ity of a lockdown. Both the subject

matter and the suggested procedure cause

Appendix A

us to doubt that the Constitution

requires any such hearing. See Vermont

Yankee Nuclear Power Corp. v. Natural

Resources Defense Council, Inc., 435 U.S.

519 (1978); Alaska Airlines, Inc. v.

Civil Aeronautics Board, 545 F.2d 194,

200 (D.C. Cir. 1976).

Plaintiffs rely on three cases in-

volving procedural due process and lock-

downs. All three were decided before

Meachum and Montanye, supra, and in none

of them was a due process hearing

actually ordered. The case most sup-

portive of plaintiffs is Labatt v.

Twoomey, 513 F.2d 641 (7th Cir. 1975).

There the Court held that a nine-day lock-

down did not implicate due process

because it was short and in response to

an emergency. The court stated, however,

that in some cases of a general lockdown

the Constitution would require that the

prisoners be given "notice of the cause

of the deprivation, the reasons for its

continuation, * ‘ an opportunity to

respond." Id. at 646. The second case,

Hoitt v. Vitek, 497 F.2d 598 (lst Cir.

1974) is more equivocal. The court held

that there was no procedural due process

violation in a lockdown of several weeks'

Appendix A

duration, but added that in the event of

a long and unreasonable lockdown the pri-

soner could properly seek an injunction,

or even damages if "the confinement was

being continued in bad faith as a subter-

fuge for the denial of prisoners' proce-

dural rights." Id. at 600. We do not

necessarily read that language as an

endorsement of plaintiffs' position but

in any event we are not persuaded by it

or by the dictum in Labatt that we should

interpret the due process clause to

require the type of hearing sought by

the prisoners in this case. Our position

is supported by Gilliard v. Oswald, 552

F.2d 456 (2d. Cir. 1977) in which the

court rejected a claimed right to hearing

of 140 prisoners administratively con-

fined to their cells because of a prison

emergency arising from a series of

assaults.

The third lockdown case upon which

plaintiffs rely, Johnson v. Anderson,

‘370 F. Supp. 1373 (D. Del. 1974) is also

in accord with our views. There the

court held that a lockdown of an entire

cell block did not implicate procedural

due process because the lockdown deci-

sion was "a rule change of general appli-

-*%

Appendix A

cability affecting an entire class of

prisoners. Since such a rule change is

not directed at particular persons, indi-~

vidual prisoners are neither more acutely

affected by it than other members of

their class nor uniquely able to bring

personal knowledge to bear on the appro-

priateness of its implemenation." Id.

at 1382. The same reasoning applies with

even greater force to the lockdown of an

entire prison.

We therefore hold that there is no

due process right to the hearing sought

by plaintiffs in this case. In so decid-

ing we do not minimize the seriousness

of a lockdown nor do we deny that admi-

nistrative review of a lockdown decision

might be desirable. See McGruder v.

Phelps, 608 F.2d 1023 (5th Cir. 1979).

We are simply unable to say that the Con-

stitution dictates such a procedure.

EIGHTH AMENDMENT:

Prisoners are not left without any

remedy against an unjustifiable or unduly

oppressive lockdown. Severe conditions

of confinement are subject to eighth

amendment scrutiny, which plaintiffs have

invoked in this proceeding. They claim

Appendix A

that the lockdown constituted cruel and

unusual punishment, and rely primarily

on Jefferson v. Southworth, 447 F. Supp.

179 (D. R.I. 1978), aff'd, 616 F.2d 956

(lst Cir. 1980). In that case, however,

the district court was faced with a pri-

son administration which was either un-

able or unwilling to deal with extreme

conditions which the court had previously

found to be cruel and unusual punishment.

Palmigiano v. Garrahy, 443 F. Supp. 956

(D. R.I. 1977), aff'd, 616 F.2d 598 (lst

Cir. 1980). The Director of Corrections

in Jefferson imposed the lockdown within

a few weeks of the district court's deci-

sion in Palmigiano and apparently in

response to it. There was, the district

court found, no emergency necessitating

the lockdown and the Director had

- announced his intention to continue the

lockdown indefinitely. Neither the

extreme conditions of Palmigiano nor the

apparent bad faith of prison authorities

in Jefferson v. Southworth find a

parallel in our case.

Nor do the conditions imposed during

the emergency lockdown at San Quentin

fall within our ruling in Spain v.

Procunier, 600 F.2d 189 (9th Cir. 1979).

’%

Appendix A

In Spain we affirmed a decision of a dis-

trict court that confinement of six pri-

soners with an almost total absence of

outdoor exercise was cruel and unusual

punishment, and we upheld the court's

order requiring at least one hour of such

exercise per day, five days per week

"unless inclement weather, unsual circum-

stances, or disciplinary needs made that

impossible." Id. at 199. The present

case, however, confronts us with the

unusual circumstances reserved in Spain;

this lockdown was in response to a

genuine emergency. The measure was tem-

porary and plaintiffs here were allowed

approximately the minimum exercise man-

dated in Spain within a month after the

imposition of the lockdown. Other

restrictions were eased as the prison

administration determinted that the emer-

gency permitted. These decisions are

delicate ones, and those charged with

them must be given reasonable leeway.

See Hoitt v. Vitek, 497 F.2d 598, 601

(lst Cir. 1974); Gilliard v. Oswald, 552

F.2d 456, 459 (2nd Cir. 1977). The

court below carefully reviewed the

restrictions of the lockdown in light

of the emergency at the prison and

7>.

Appendix A

determined that they did not cross the

eighth amendment line. We agree with

that conclusion.

Affirmed.

i oe

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

ART HAYWARD JR., et al.,

Plaintiffs,

Vv.

RAYMOND K. PROCUNIER, et al.,

Defendants.

NO. C-75-0653-WAI

ORDER ,

The above-entitled action hav-

ing come duly on for trial before the

Honorable Owen E. Woodruff, Jr., United

States Magistrate, and Findings of Fact

and Conclusions of Law having been made

i. |

Appendix B

and filed with the Court on February 16,

1978; and

Objections to said Findings of

Fact and Conclusions of Law, pursuant to

Local Rule 410(b), having been filed by

plaintiffs on February 24, 1978, and

defendants' brief in response having been

filed on March 10, 1978; and

The Court having made a de novo

review of the file as required by 28

U.S.C. §636(b)(1)(B),

IT IS HEREBY ORDERED that the

said Findings of Fact and Conclusions of

Law be amended to delete the citation of

Cruz v. Skelton, 543 F.2d 86 (Sth Cir.

1976) from Conclusion of Law No. 7, p. 26,

ln. 21. As so amended, said Findings of

Fact and Conclusions of Law are hereby

approved and adopted by the Court, and

that defendants and each of them have

judgment in accordance herewith.

Dated: September 14, 1978

WILLIAM A. INGRAM

United States District Judge

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

ART HAYWARD JR., et al., )

Plaintiffs,

Vv.

RAYMOND K. PROCUNIER, et al.,

Defendants.

CIVIL NO. C-75-0653 WAI

MAGISTRATE'S FINDINGS OF

FACT AND CONCLUSIONS OF LAW

Jurisdiction of the Court is invoked

under the United States Constitution,

and particularly the provisions of the

First, Eighth and Fourteenth Amendments

’%

-. |

Appendix C

thereto, and under the laws of the United

States, particularly Title 42 of the

United States Code, section 1983. Plain-

tiffs' claim for declaratory relief is

based upon the provisions of Title 28 of

the United States Code, sections 2201

and 2202. The Court has jurisdiction of

this cause under the provisions of Title

28 of the United States Code, section

1343.

SUBSTANCE OF THE ACTION

This action arises out of incidents

which occurred on December 19, 1974, and

action by state authorities subsequent

thereto which has been described as

"lockdown". Plaintiffs' contentions are

that the extent and duration of the

"lockdown" and the nature and duration

of the conditions of confinement subse-

quent to December 19, 1974, were such as

to constitute a denial of due process

and the imposition of cruel or unusual

punishment.

Defendants contend that the nature

and extent of what has been described as

a "lockdown" was not such as described

by plaintiffs, that the nature and extent

of conditions existent after December 19,

1974, were not such as to constitute a

7’.

Appendix C

denial of due process or to be the impo-

sition of cruel or unusual punishment.

It is undisputed that the actions

of state officials on December 19, 1974,

effected a change in the conditions of

confinement of inmates incarcerated in

the East Cell Block (the nature, extent

and duration of such changes being a

matter of dispute as set forth below).

It is further undisputed that plain-

tiffs were not individually provided

with any prior notice of the lockdown

decision; that the plaintiffs were not

given either prior to or immediately

following imposition of what plaintiffs

characterize as a lockdown a hearing or

other opportunity to respond before an

impartial board or official; that plain-

tiffs were not given an opportunity to

cross-examine witnesses or to present

witnesses, evidence or arguments; and

that plaintiffs were not provided with

counsel or counsel substitutes. The un-

availability of a hearing and other pro-

cedural due process rights incident

thereto does not include the ability of

plaintiffs to pursue a state habeas cor-

pus in connection with either the lock-

down or the conditions of confinement

incident thereto.

Appendix C

Further, the unavailability of a

"hearing" does not include review of

inmates' files prior to the release of

workers subsequent to December 19, 1974,

or the continuing classification process

at San Quentin.

It is also undisputed that plain-

tiffs do not contend in this action than

any procedural due process protection

should have preceded the imposition of

what has been characterized as a "lock-

down". Rather plaintiffs confine their

procedural due process claim to the

period following the imposition on

December 19 of the "lockdown" decision.

Appendix C

DISPUTED FACTUAL ISSUES

The necessity for th continuation

of what has been characterized as a

"lockdown" in terms of its extent and

duration is in dispute between the par-

ties to this case. The nature, extent,

and duration of the conditions of confine-

ment in East Block subsequent’ to

December 19, 1974, are in dispute between

the parties. These conditions of confine-

ment include, but are, not necessarily

limited to, such~items as: confinement

to cells; broken windows; meals; clothing

and towels; cleaning supplies; exercise;

showers; canteen; schooling; law library;

entertainment and visiting. It is also

disputed by the parties as to whether

the inmates at San Quentin had actual

notice that a "lockdown" would result

from incidents of December 19, 1974. It

is further disputed between the parties

that inmates at San Quentin were reviewed

by prison officials concerning their

security classification for immediate

release as a worker and it is further

disputed between the parties that the

classification process at San Quentin

was On-going during this period of time.

It is further disputed between these par-

’%

’>

Appendix C

ties that these "hearing", administrative

appeal and the availability of state

habeas corpus constitute a sufficient

provision for review to satisfy any pos-

sible requirement of due process applic-

able to this case.

The case was tried to the Court com-

mencing November 7, 1977, Robert A. Goodin

of Heller, Ehrman, White and McAuliffe

appearing as counsel for plaintiffs, and

Mr. Kenneth Young of the California

Attorney General's Office appearing as

counsel for defendants. The Court having

considered the evidence, argument and

papers submitted to the Court for deci-

sion, the Court being fully advised now

makes findings of fact and conclusions

of law as follows:

FINDINGS OF FACT

1. Plaintiff Art Hayward was an

inmate at East Block, San Quentin State

Prison, in the County of Marin, State of

California during the period October 9,

1974 through May 27, 1975. Plaintiff

Hayward is presently residing in San

Francisco, California, and has been dis-

charged from custody. Trial Transcript

(hereinafter "Tr.") Vol. I, p. 5, ln. 10-

20, Exhibit BR-2.

Appendix C

2. Plaintiff Morris Brown was an

inmate at East Block, San Quentin State

Prison, in the County of Marin, State of

California, during the period January 21,

1975 through April 17, 1975. Plaintiff

Brown is currently residing in San

Francisco and is currently on parole.

TE wees. 440i 21, In. 22 through p. 22,

ln. 5, Exhibit BR-=3.

3. Plaintiff Michael McNabb is an

inmate in West Block, San Quentin State

Prison, in the County of Marin, State of

California. During the period

February 19, 1974 through May 7, 1975,

plaintiff Michael McNabb was an inmate

in the East Block of San Quentin State

Prison. Tr. Vol. III, p. 19, ln. 8-12,

Exhibit BR=-4.

4. Defendant J. J. Enomoto is pre-

sently Director of the California Depart-

ment of Corrections. Joint Pretrial Con-

ference Statement, p. l.

5. Defendant George W. Sumner is

presently Warden of San Quentin State

Prison, in the County of Marin, State of

California. Joint Pretrial Conference

Statement, p. l.

6. During 1974, East Block house

“main line" inmates were those who were

Appendix C

given security classifications of I or

II.. Inmates with a security classifica-

tion of I are defined as "inmates who

have demonstrated over a period of time

that they are no threat to staff or other

inmates". Inmates in category II are

defined as “inmates who have not demon-

strated that they need special housing

or are not ready for Category I". fr.

Vol. III, p. 58, ln. 5, p. 59, lin. 19,

Exhibit 31.

7. During 1974, prior to

December 19th of that year, prison

routine for inmates in East Block began

with a morning count to assure everyone's

presence. Immediately thereafter,

inmates were escorted in staggered groups

to the Mess Hall for a hot breakfast.

Following breakfast, those residents of

East Block who were assigned to a prison

job reported to work. Residents of East

Block without job assignments were

returned to their cells and stayed there

the rest of the morning. At noon, all

inmates were served another hot meal in

the Mess Hall, following which assigned

inmates returned to their jobs and non-

assigned inmates were permitted to

utilize the exercise and gymnasium facili-

Appendix C

ties in San Quentin's lower yard until

the time necessary to return for the even-

ing count. At approximately 4:00 p.m.

the eventing count took place, and follow-

ing the count East Block residents were

escorted to the Mess Hall for a hot

dinner.

After dinner inmates were permitted

night movement as required for a variety

of programs and entertainment, including

night school, self-help programs, movies,

etc. Following night movement, all resi-

dents of East Block, except those working

on the night shift, were confined to

their cells until breakfast.

In addition to the out-of-cell time

reflected in the description of the East

Block routine contained in finding 7

hereinabove, East Block residents also

spent out-of-cell time in so-called

"ducated" movement. "Ducated" movement

consists of movement for specific purpose,

e.g., dental, medical, visiting, classi-

fication hearing, etc., pursuant to a

written order or “ducat". Tr. Vol. II,

p. 9, ln. 15 through p. 12, ln. 7.

8. During 1974, prior to

December 19th of that year, showers for

East Block residents were provided on a

-s

Appendix C

rotating basis, which typically resulted

in a minimum of two showers per week for

each inmate. Tr. Vol. II, p. 13, ln. 7-

23°

9. During 1974, prior to

December 19th of that year, at the time

of showers, inmates were given a clean

set of "white clothing", e.g., shorts,

T-shirts, etc. Inmates were given an

opportunity to exchange so-called "blue

clothing", e.g., outer shirts and pants,

once per week. Bis WOes. thy: Dobe

ln. 24 through p. 14, ln. 8.

10. During 1974, prir to

December 19 of that year, cleaning

supplies for cell cleaning activities

were supplied in bulk to East Block

weekly. These supplies were broken out

and delivered upon request to inmates as

needed. Tr. Vol. V, p. 50, ln. 16-25,

TEs VOL. Ti, De. 14; in. 32S.

11. During 1974, prior to

December 19th of that year, residents of

East Block also enjoyed a variety of pri-

vileges, including visiting rights, movie

attendance, course and/or school attend-

ance, and daily use of the canteen from

which they could purchase food and per-

sonal items. Tr. Vol. II, p. 11, ln. 20

’*

Appendix C

through p. 12, In. 7; p. 15, ln. 4-17.

12. Prior to December 19, 1974,

the California Department of Correc-

tions, and San Quentin State Prison,

experienced increasing levels of vio-

lence. Defense Exhibits: 0-1 through

1653 Be Sky 2, 3, 4, 5, 6; T; OU and WY.

Defense Testimony: Britt - III, 129-

130, 131-133. Baits

13. Between 1970 and 1974 the

level of incidents within the Department

of Corrections increased from a rate of

1.36 to 4.30 per 100 average institution

population. Defense Exhibits: RB; T

(p. 1-2).

14. Much of the violence within

the Department of Corrections was gang

and/or racially oriented. Defense

Exhibits: R; Sl, 2, 3, 4, 5, 6, (pp. 2

& 3); T; Y-3 (pp. 15-17, 18). Defense

Testimony: Britt III, 135-142, IV,

46-47.

15. During the year prior to

December 19, 1974, San Quentin experi-

enced increasing levels of violence.

Defense Exhibits: 0-1 through 1165; RB;

S-1, 2, 3, 4, 5, 6 (p. 3); T; WU and Vv

(Rpts. from 1/2/74 through 6/1/75).

Defense Testimony: Hayward Deposition

VY, 140-141.

’%

Appendix C

16. Between 1970 and 1974 the

incident rate at San Quentin went from

1.99 to 6.28. Defense Exhibit: R.

17. A major portion of the inci-

dents at San Quentin were gang and/or

raclally oriented. Defense Exhibits:

O-1 through 165; R; S-l, 2, 3, 4, 5, 6

(p. 3); T; U and Y-3 (pp. 15-17, 18).

Defense Testimony: Britt - III, 136,

141-142, IV, 46-47, 49-50, 82-150;

McNabb Deposition - VI, 141-142.

18. During 1974 San Quentin

experienced 197 incidents including 82

assaults with weapons (12 fatalities), 7

fights, 71 possession of weapons and 2

attempted escapes. Defense Exhibits:

O-1 through 165; P (BR-1); Q-16 through

170; R; S-1, 2, 3, 4, 5, 6 (p. 3); U and

V (Rpts. 1/2/74 through 6/1/75).

19. Different gangs tend to pre-

dominate or control different institu-

tions within the Department of Correc-

tions. Defense Exhibits: S-1, 2, 3, 4,

5, 6 (pp. 2 & 3); T and Y=3 (pp. 15-17,

18). Defense Testimony: Britt - III,

136, 138-139.

20. This factor, and rivalries

between gangs, interferes with the

ability to transfer inmates from one

Appendix C

institution to another. Defense Testi-

mony: Britt - III, 135-136, 138-141;

IV, 51-53.

21. It is difficult to ascertain

the membership of the gangs. Defense

Exhibits: S-l, 2, 3, 4, 5, 6. Defense

Testimony: Britt - III, 143-145; IV,

50-51, 81-82, 150-152.

22. Gang influence is pervasive,

instructions are known to have been

passed from leaders to members from seg-

regation units and from one institution

to another. Defense Exhibits: Y-3 (pp.

15-17, 18). Defense Testimony: Britt -

IV, 71-74, 150-152.

23. Penalties imposed by the gangs

are generally death. Defense Testimony:

Britt - IV, 46, 48-49.

24. Gang influence spreads beyond

immediate membership. Defense Exhibits:

S-1, 2, 3, 4, 5 abd 6. Defense Testi-

mony: Britt - IV, 82-83.

25. Gang oriented incidents have

expanded to become racial in nature.

Defense Exhibits S-l, 2, 3, 4, 5 and 6;

Y-3 (p. 17). Defense Testimony: Britt -

III, 142-143.

26. At the time pertinent to this

case the major gangs at San Quentin were

*,%

Appendix C

the Aryan Brotherhood ("AB"), the Black

Guerilla Family ("BGF"), and the Mexican

Mafia ("EME"). Defense Exhibits: S-l,

2, 3, 4, 5, and 6 (p. 3); and T. Defense

Testimony: Britt - III, 135.

27. As used within the California

Department of Corrections the term

"lockdown" has no readily defined mean-

ing. The term as used by the Department

of Corrections may be generally defined

as:

a. action, affecting all or part

of a prison, in which, as a

response to an incident or inci-

dents of violence, inmates are

returned to their cells;

b. the term is also used to

describe the state of affairs fol-

lowing the initial action where

security -measures are maintained

in excess of those extant prior to

the “lockdown” but they are not

seen aS permanent revisions of pre-

existing procedures. Defense Testi-

mony: Britt - IV, 59-61, 61-63,

152-153, 154-155.

28. The duration of a "lockdown"

may not be judged from the continued

usage of the term since:

///

Appendix C

a. Increased security restric-

tions may be permanently adopted

in an effort to control violence;

b. security restrictions may be

relaxed but have not either become,

permanent or returned to pre-

existing levels; :

c. new incidents of violence

may necessitate a new ‘"“lock-

down" and subsequently in-

creased security measures.

29. The term "lockdown" is only

useful to describe the initial action,

responsive to an act or acts of vio-

lence, in which inmates in all or part

of an institution are confined to their

cells. Thereafter conditions of con-

finement must be specifically analyzed

at any particular point in time and may

not be deemed to be of a set character

by reason of the use of the term "lock-

down" .

30. In December of 1973 San Quen-

tin, together with other major institu-

tions, was the subject of a departmental

"lockdown" as part of an effort to con-

trol increasing violence within the cor-

rectional system. Defense Exhibits: S-

1, 2, 3, 4, 5 and 6; T; AB; AC and AD.

Defense Testimony: Britt - III, 133, IV,

’%

Appendix C

54-55. Weber V, 18-19.

31. In connection with this "lock-

down" new categories were created, all

inmates were screened with respect to

violence potential, and a program of in-

creased security measures, with partic-

ular emphasis upon weapons control, was

instituted. Defense Exhibits: S-l, 2,

3, 4 5 and 6; :3; Vv (Rote. (1/2/74

through 6/1/75); AA; AB; AC and AD. De-

fense Testimony: Britt - IV, 56-57,

65-66, 83-84. Weber -V, 18-19.

32. The accompanying departmental

reorganization affected San Quentin's

population in terms of size and charac-

ter. Defense Exhibits: S-l, 2, (p. 4),

3, 4, 5 (pp. 2): and’ 6; Ye3 (p.. 17)3° AF.

Defense Testimony: Britt - IV, 57-59. .

33. San Quentin received from

other portions of the system inmates who

were, or potentially were, disruptive.

Defense Exhibits: S-l, 2 (p. 4), 3, 4,

5 (p. 2) and 6; Y-3 (p. 17). Defense

Testimony: Britt - IV, 57-59.

34. This factor, together with

gang rivalries, meant that San Quentin's

violence problems had to be worked out

at that institution. Defense Testimony:

Britt - III, 135, 136, 138-141; IV 5l-

53, 57-59.

-*%

°-*s

Appendix C

35. San Quentin's population

remained at a high level. Defense

Exhibits: S-1, 2 (p. 4), 3, 4, 5 (p. 2)

and 6; AF.

36. There were subsequent "lock-

downs" at San Quentin during 1974. Con-

ditions at San Quentin never returned to

the pre-December 1973 format. Defense

Exhibits: S-l, 2, 3, 4, and 5; T; AB;

AC; AD and AE. Defense Testimony:

Britt - IV, 61-70.

37. During 1974 several sugges-

tions were made concerning operations at

San Quentin and several methods to con-

trol violence were attempted. Defense

Exhibits: S-l, 2, 3, 4, 5 and 6; T; V

(Rpts. 1/2/74 through 6/1/75); W; X;

Y-1, 2 and 3: Z; AA; AB; AC; AD and AE.

Defense Testimony: Britt -IV, 61-70,

75-81, 83-85.

38. During 1974 the major option

appeared to be closing the institution.

Defense Exhibits: AG-6 and AG-9. De-

fense Testimony: Britt - IV, 85, 125.

39. Despite measures taken to pre-

vent violence, during 1974, 170 inci-

dents occurred at San Quentin, including

82 assaults with weapons with 12 fatali-

ties for an incident rate of 6.28 com-

pared with 1.99 in 1970. Defense

°*?

Appendix C

Exhibits: 0-1 through 165; P (BR-10);

0-167 through 170; R; S-l, 2, 3, 4, $

and 6; U and V (Rpts. 1/2/74 through

6/1/75).

40. On December 19, 1974, resi-

dents of East Block, as were all other

inmates at San Quentin, were placed in

lockdown status. The imposition of

7 lockdown status on the Prison represents

the implementation of the institution's

disturbance control plan based on the

occurrence of one of several enumerated

types of emergency. The authority for

imposing a lockdown and the enumeration

of the types of emergency for which it

is authorized is contained in Section

4402 of the Rules and Regulations of the

Director of Corrections of the State of

California: Ts. Vol. TII,: 9. 63, In.

18 = p. 64, ln. 1; Exhibit 1; Tr. Vol.

II, p. 4, ln. 10-25; Exhibit 35.

41. On December 19, 1974, two

incidents of violence occurred, one in

the South Dining Hall and the second,

shortly thereafter, in the lower yard.

Defense Exhibit: P (BR-1). Defense Tes-

timony: Britt - IV, 86-96. Weber -

V, 19-23.

///

’*

*> >

Appendix C

42. These incidents arose from a

history of violence between the Black

Guerilla Family and the Mexican Mafia.

Defense Exhibit: P (BR-1). Defense

Testimony = Britt - V, 163.

43. Two inmates were killed in

these incidents. Defense Exhibit P

(BR-1).

44. Although consideration was

given after the first incident to the

possibility that the violence could be

contained, the nature of the second

incident showed a potential for wide-

spread violence. Defense Exhibit: P

(BR-1). Defense Testimony: Britt - IV,

93-94, 94-96. Weber - V, 22-23.

Nyberg - V, 83.

45. The initial incident involved

gang members housed in segregation

units. Defense Exhibit: P (BR-1).

Defense Testimony: Britt - IV, 92-93,

94 and 95.

46. The second incident involved

the general population and appeared to

be a gang attack on non-gang members.

Defense Exhibit: P (BR-1). Defense

Testimony: Britt - IV, 94-95, V, 5-6.

Nyberg - V, 83.

47. The gangs and inmates involved

were of different racial origins.

’%

Appendix C

Defense Exhibit: P (BR=-1). Defense

Testimony: Britt - IV, 86.

48. The incidents held the poten-

tial for racial violence. Defense

Exhibit: P (BR-1). Defense Testimony:

Britt - V, 5-6.

49. The decision to "lockdown" the

institution was made in light of the two

incidents of violence of December 19,

1974, their nature and the background of

violence at San Quentin. Defense

Exhibit: P (BR-1). Defense Testimony:

Britt - IV, 94-96.

50. The decision to place San

Quentin on lock down status on December

19, 1974 was made by the then -Warden

Kenneth Britt. In imposing the lock

down status, prison authorities acted

pursuant to Section 4402 of the Cali-

fornia Rules and Regulations of the

Director of Corrections of the State of

California and San Quentin's disturbance

control plan promulgated pursuant there-

to. The decision to impose a lock down

on San Quentin on December 19, 1974,

represented a judgment by Warden Britt

that a state of emergency existed at San

Quentin on December 19, 1974. Tr. Vol.

III, p. 62, ln. 10 = p. 63, ln. 17; p.

64, ln. 2-18; Exhibit 1; Tr. Vol. II, p.

Appendix C

4; In. 10-25; Exhibit 35; Tr. Vol. IV,

Dp. 154, In: 1 <p. 155, ln. 16.

51. None of the named plaintiffs

was in any way involved in or respon-

sible for the altercation on December

19, 1974, which precipitated the lock

down which commenced on that date. Fur-

ther, of the class which these plain-

tiffs represent pursuant to this Court's

order of October 19, 1977, the only men-

bers who were in any way involved in or .

responsible for the altercation which

occurred on December 19, 1974, and which

precipitated the lock down which com-

menced on that date are those identified

in defendants' response to plaintiffs'

Interrogatory 20, at page 114, line l,

through page 16, line 19, of defen-

dants' consolidated response to plain-

tiffs' first set of interrogatories.

ae. yea. tii, p. 92, in. 14 - p. 9, in.

20; Tr. Vol. IV, p. 45, ln. 10-16.

52. Inmates at San Quentin had

prior notice that incidents of this sort

would result in a "lockdown" because of

prior lockdowns which had occurred at

San Quentin in response to incidents of

violence. Defense Testimony: Britt IV,

61-63, 92. Weber - V, 22. Nyberg - V,

83. Hayward Deposition - V, 139-140.

Appendix C

53. Subsequently, inmates were

periodically given notice of the nature

and extent of security procedures at San

Quentin and the extent to which various

programs were available to them.

a. Broadcasts were made over KSO

News, a regularly scheduled broad-

cast. This program, and others,

was available in the cells via an

"intercom" system using earphones.

At least 70% of the inmates in East

Block had this available.

b. The San Quentin Newspaper,

intended to provide such informa-

tion, was delivered to East Block

and was either available to them

incident to meals or was delivered

to the cells.

Defense Exhibits: AG-l1 (p. 3); AW 1, 2

and 3; AX. Plaintiffs' Exhibits: PX

32. Defense Testimony: Britt - IV,

103-105. Nyberg - V, 83-34. Gard - V,

124-127. Hayward Deposition -V, 145-

148. Interrogatories V, 151, 152.

Worster - VI, 57-59, 70-71. Bolton -'

VII, 6-8. Hahn - VII, 11-14.

54. Hearings concerning degree and

conditions of confinement are and were

available within the California Depart-

ment of Corrections by the Director's

’*%

°>

Appendix C

review of institutional action, the in-

mate classification process and the in-

mate appeals procedure. Defense Testi-

mony: IV, 141-142; V, 10-11, 31; VI,

33-34, 35-36, and 93. Plaintiffs'

Exhibit: PX l.

55. If departmental remedies are

unavailing, inmates have state habeas

corpus with which to challenge degree

and conditions of confinement.

56. Immediately after the "lock-

down", priority was given by institu-

tional officials to the restoration of

essential services such as hot meals,

Visiting, laundry and canteen as soon as

possible. Defense Exhibits: AG-1 (p.

3) and AH. Defense Testimony: Britt -

IV, 97-103, 117.

57. Subsequent to the "lockdown"

institutional officials were concerned

with and attempted to ameliorate the

maximmum security precautions imposed at

San Quentin as soon as possible conso-

nant with safety to inmates and staff.

Defense Exhibits: AG-l (p. 3) and AH.

Defense Testimony: Britt -IV, 97-103,

phe by 9

58. Beginning immediately after

the "lockdown", inmate workers needed to

provide essential services at the insti-

-%s

-s

Appendix C

tution, were screened to see whether

they could be safely released for opera-

tion of the services with safety.

Defense Exhibits: AG-l (p. 3); AG-6 and

AG-8. Defense Testimony: Britt - IV,

97-98, 117.

59. Throughout the period in ques-

tion in this case inmates were screened

to see if they could be safely released

for work assignments as programs at the

institution began operating. Defense

Exhibits: AG-1 (p. 3); AG-6 and AG-8.

Defense Testimony: Britt - IV, 97-98,

169-170, Weber - V, 38, 39-40.

Worster - VI, 32-33. Hahn - VII, 73.

60. Initially, such workers who

were not already in an honor or semi-

honor unit were transferred to North

Block when work assignments were

received by them, although, throughout

this period a certain number of inmate

workers were housed in East Block.

Defense Exhibits: AG-3, AG=-5, AG-6,

AG-7, AG-8, AlI-1 (pp. 1, 2) and AJ.

Defense Testimony: Hayward Deposition -

V, 148-49. Worster - VI, 34. Hahn,

VII = 26.

61. Conversely those without work

assignments would be transferred to East

Block. Defense Exhibits: AG-3, AG-5,

Appendix C

AG-6, AG-7, AG-8, AI-l1 (pp. 1 & 2) and

AJ. Defense Testimony: Hayward Depo-

sition - V, 148-149. Worster - VI, 34.

62. At, and immediately after,

December 19, 1974, East Block housed

primarily unassigned inmates. During

1975 its character was changed. It then

primarily housed assigned workers.

Defense Testimony: VI, 40-41; VII, 26.

63. Throughout the period in ques-

tion in this case institutional person-

nel used all formal and informal sources

of information at their disposal to

evaluate the temper of the institution

with a view to reducing maximum security

precautions when it appeared that this

could be done with safety. Defense

Exhibit: AG-1 (p.3). Defense Testi-

mony: Britt - IV, 96-97, 103, 113-117,

143-144. Weber - V, 23-26. Worster -

VI, 56-57.

64. On at least one occasion a

relaxation of security procedures had to

be rescinded because of a new incident

involving East Block. Defense Exhibit:

Q-184 (BR-1). Defense Testimony:

Britt - IV, 118-120. Worster - VI, 52-

54. Hahn - VII, 26-27.

65. Subsequent to December 19,

1974, violent incidents occurred at San

> 4. SRR

*’*.

°’.

Appendix C

Quentin involving East Block and weapons

were found in the Block. Defense Ex-

hibits: Q-167 through 234, particularly

sub-numbers: 172, 175, 186, 194, 206,

220, 221, 223 (BR-1);+ Vv (Rpts. 1/2/74

through 6/1/75); AG-6, AZ (pp. dated

12/31/74, 1/4/75) and BA-l through 4

(particularly dates of 12/31/74, last

page of BA-1, 3/1/75, 3/4/75). Defense

Testimony: Britt - IV, 118-120; V, 14-

15. Worster - VI, 52-54, 55. Riley -

VI, 124-126. Hahn - VII, 26-27, 44, 81.

66. To operate the institution as

safely and effectivly as possible, over-

time was required of institutional per-

sonnel and non-custodial personnel were

assigned to custody positions. Defense

Exhibits: AG-1 (3), AG-2, AG-3, AG-5,

AH and AI-l1. Defense Testimony: IV,

100,; 124; . VV, 26827, 29% Vi.) 73; 98.

67. At this time institutional

personnel concluded that because of the

level of violence at San Quentin and

prior experience with violence at San

Quentin it would be necessary to make a

1 Exhibit explained by testimony VI, 67-69.

Correlation of 103b cards (BR-1) with incident

reports (Q-167-234) was prepared by Attorney

General Staff. It is attached hereto as an

appendix.

Appendix C

complete reorganization of San Quentin

structurally and procedurally to provide

for its operation in maximum safety.

Defense Exhibits: AG-l1 (p. 3), AG=2,

AG-3 and AG-6. Defense Testimony:

Britt - V, 120-124, 125-126, 156-163.

Nyberg - V, 72-82, 85. Shepherd - VI,

9-26.

68. Because the conditions at San

Quentin required maintenance of maximum

security, operating procedures were

formalized on a short term basis, pend-

ing the long-term reorganization, to re-

organize programs and staff at San

Quentin. Defense Exhibits: AG-1l (p.

3), AG-3, AG-7, AG-8, AH and AI-1 and 2.

Defense Testimony: Britt - IV, 120-124,

156-163.

69. This short term reorganization

was memorialized in two memoranda, one

bearing a date of January 12, 1975, and

another undated, which took effect in

the latter part of February, 1975.

Defense Exhibits: AG-l1 (p. 3), AG-3,

AG-7, AG-8, AG-9, AH, AI-l1 and 2 (and

compare visiting dates, Ex. BP) and AJ.

Defense Testimony: Britt - IV, 120-124.

Weber - V, 27-31. Worster - VI, 54-55.

Hahn - VII, 23-25.

Appendix C

70. Throughout the period in ques-

tion in this case, detailed planning was

done at the institution, in conjunction

with departmental headquarters in Sacra-

mento, on a long-term structural and

procedural reorganization at San

Quentin. Defense Exhibits: AG-1l (p.

3), AG-2, AG-3, AG-4, AG-6, AG-7, AG-8,

AG-9, AK, AL, AM, AN and AO. Defense

Testimony: Britt -IV, 126-132. Nyberg -

-V, 72-82, 85. Shepherd - VI, 9-17.

71. These plans for a long-term

recrganization were approved and imple-

mentation was begun in approximately

March of 1975. Defense Exhibits: AF,

AG6, AP, AQ, AR, AS-1 through 9, AT, AU

and AV. Defense Testimony: Britt -

III, 125-126, 130-132. Nyberg - V. 72-

82. Ingram - V, 100-101. Thomas -V,

105-111. Shepherd - VI, 9-17, 17-20,

28-29. Worster -VI, 38-45, 45-46.

McHenry - VI, 101-103. #Kesner - VI,

107-108, 112-113. Hahn - VII, 16-17,

18-22.

72. What occurred in the period

December, 1974, through March, 1975, at

San Quentin may be summarized as

follows:

a. A "lockdown" occurred on

December 19, 1974. While condi-

73.

Appendix C

tions of a nature which could be

defined as a "lockdown" as dis-

cussed above existed for some few

days thereafter, institutional

officials almost immediately began

efforts to ameliorate the condi-

tions incident to the "lockdown"

insofar as possible consonant with

safety of inmates and staff.

b. What occurred thereafter was

what may be described as short-term

reorganization of San Quentin for

its operation under maximum secur-

ity precautions pending a long-term

reorganization.

c. After the lockdown, plans were

immediately formulated for a long-

term procedural and _ structural

reorganization of San Quentin.

These plans were formulated,

approved and implementation was

begun by March of 1975.

d. What occurred after the "lock-

down" was not a continuation of the

"lockdown" but a change of San

Quentin, procedurally and struc-

turally, into an institution with a

higher degree of security.

By mid-January, 1975, a significant

amount of out-of-cell time was pro-

Appendix C

vided for East Block inmates. Defense

Exhibits: AH, AI-1 and AJ. (See find-

ings relating to meals, yard exercise,

showers and visiting. See also entries

relating to visits, medical and dental

appointments, etc., in Ex. AY.)

74. The outside windows in East

Block were being constantly broken by

inmates. Institutional personnel did

replace broken windows and made reason-

able efforts to do so as promptly as

possible. Defense Exhibits: BC, BD and

BE. Defense Testimony: Britt - IV,

133-136, 149-150. Weber - V, 31-32.

Hayward Deposition - V, 141, 145.

Interrogatories V, 152-153. Shepherd -

VI, 8heZ0,>: 26; 27... Woreter - Vi;:.:3l.

Riley - VI, 124-126. Hahn - VII, 43-44.

75. With respect to meals after

the lockdown the following occurred:

a. After December 19, 1974, bag

meals, two per day, were dis-

tributed to inmates in their cells.

This continued with the exception

of at least one hot meal on or

about December 27, until December

31, 1974.

b. Thereafter one hot meal a day

plus a sack lunch was served until

January 12, 1975.

7-2.

Appendix C

c. Thereafter two hot meals a day

were served and later a bag supple-

ment was provided.

d. Providing meals was a lengthy

process. Constant supervision was

maintained enroute and during the

meal and all inmates were searched

entering and leaving the mess hall.

e. The hot meals referred to

above were served in the mess hall.

Defense Exhibits: AG-l (p. 4), AG=4, |

AG-7, AH (pp. 11, 12-12A), AI-1 (pp. 3,

4-5), AJ, AY (pp. dated 1/2/75, 1/3/75,

1/9/75, 1/21/75), AZ (pp. dated

12/19/74, 12/29/74, 1/1/75, 1/4/75, et.

seq.),“ BA-1 (pp. dated 12/26/74 and

12/27/74),> BA-2 (pp. dated 1/12/75,

L/fissto;: 1714/75,. 1715/75, 1/16/75,

Sfi9/75, ° 1/24/75, °:1/42@/775, 1/24/75,

1/26/75), BA-3 (pp. dated 2/3/75,

afaesion 2faa/is,. 27/24/15, : 2faisis,

2/28/75), BA-4 (pp. dated, 3/1/75,

3/2/75, 3/4/75, 3/18/75). BF, BG, BH-1l

& 2, BI-l1 & 2 and BV. Defense Testi-

mony: Britt - IV, 99-101, 136-137, 146-

148, Beckman - V, 89-94, 97-98.

2 Exhibit explained by testimony VI, 61-62.

3 Exhibit explained by testimony VI, 88, et.

seq.

Appendix C

Thomas, V, 104-111, 111-114, 119-120,

120-122. Worster - VI, 46-48, 77, 84-

85. Kennedy - VI, 91-92, 95. Kesner -

VI, 109-110, 111-112, 114. Riley - VI,

121-122, 122-123, 130-131, 135-137, 138.

McNabb Deposition = VI, 140, 142-143.

Brown Deposition - VI, 145-151, 153.

Hahn - VII, 27-28, 29, 30-33.

76. The warden consulted with

appropriate officials with respect to

the nutritional adequacy of meals pro-

vided inmates. Defense Testimony:

Britt - IV, 136-137. Beckman -V, 90.

77. The mess halls were cleaned

continuously during the feeding opera-

tions and they were clean. Defense Tes-

timony: Thomas - V, 114-115. Kesner -

VI, 110-111.

78. Laundry operation was sus-

pended for only approximately a week

after December 19, 1974. Defense

Exhibits: AH (p. 11) and BK-1 through

3.* Defense Testimony: Britt - IV,

137. Bruccoleri = V, 55-63, 64-65, 69-

70.

79. Although some shortages were

experienced, deliveries of clean cloth-

4 A typed copy of the list attached to

Exhibit BK is attached hereto as an appendix.

Appendix C

ing were made to East Block on dates as

set forth in the testimony of Sargeant

Bruccoleri in his review of Exhibit BK.

Defense Exhibits BK-1 through 3. Defense

Testimony: Bruccoleri - V, 57-62.

80. No severe shortage of clean

clothing or towels is shown by the evi-

dence in this case. Defense Exhibits:

BK-1 through 3. Defense Testimony:

Bruccoleri - V, 55-63, 64-65. Riley -

VI, 117-119. Brown Deposition - VI,

151-152. Hahn -VII, 41-42.

81. No shortage of cleaning sup-

plies is shown by the evidence in this

case. Defense Exhibit: BJ. Defense

Testimony: Bruccoleri - V, 49, 51-54,

Say 67-68. Shepherd -VI, 25-26.

Riley - VI, 123-125. Hahn = VII, 42-43.

82. Yard Exercise for East Block

inmates recommenced on approximately

January 16, 1975. Defense Exhibits:

AJ, AY (p. dated 1/16/75), AH and AlI-l.

Defense Testimony: Worster -VI, 51-52.

Kesner - VI, 111-112. Riley - VI, 122,

130-131. Hahn - VII, 33-35, 79-80.

83. Within a few days after

December 19, 1974, showers were provided

East Block inmates. Inmates were first

showered in small groups wnder close

custodial control. Special crews were

Appendix C

created at the institution to facilitate

showering. Showering was available

approximately once a week and efforts

were made to achieve a goal of at least

two showers per inmate per. week.

Defense Exhibit: AH (pp. 9, 11, 15).

Defense Testimony: Britt - IV, 138,

144-145. Worster - VI, 50-51, 85-87.

Riley VI, 115-117, 127-129, 131-132,

135-137. McNabb Deposition - VI,

139-140. Brown Deposition - VI,

144-145. Hahn - VII, 39-41.

84. Limited canteen was provided

East Block by December 26, 1974, and

modified canteen once-a-day per week by

January 12, 1975, and full canteen by

March 19, 1975. Initially after

December 19, 1975, "shopping lists" from

inmates were filled by institutional

personnel. Subsequently groups of ten

to fifteen inmates were escorted to the

canteen. Subsequently canteen was

available incident to meals. Defense

Exhibits: AG-7, AH (pp. 11, 14), AI-1l

(pp. 3,8), AJ, AZ (pp. dated 1/3/75,

1/4/75), BF, BG, BL and BM. Defense

Testimony: Bruccoleri - V, 49, 53-55,

67-68. Hayward Deposition - V, 145.

Worster - VI, 48-49, 85-86. Riley -VI,

119-120, 135-137. Hahn - VII, 35-36.

Appendix C

85. The evidence in this case

shows no denial of access to courts

because of any restrictions upon the use

of the institutional law library.

Defense Exhibits: AH (pp. 11, 16), AI-1l

(pp. 3, 9), BB-l & 2,” BO and BN.

Defense Testimony: Hayward Deposition -

V, 137-139. Interrogatories - V, 152.

McHenry - VI, 97-101. McNabb Depo-

sition - VI, 143. Brown Deposition -

VI, 152, 153.° Hahn - VII, 36-38.

86. Inmates had available to them

in their cells radios and books and, in

some instances, televisions. Defense

Testimony: Hayward Deposition - V, 145-

148. Interrogatories -V, 151, 152.

McNabb Deposition - VI, 142.

87. No denial of "entertainment"

to East Block inmates is shown by the

evidence in this case.

88. Restoration of visiting

received high priority at the institu-

tion. By December 25, 1974, there was

restricted visiting. By December 29,

1974, visiting was allowed two days per

week, three days per week by January 9,

1975, and five days a week visiting in

March. Defense Exhibits: AG-1 (p. 3),

5/Exhibit explained by testimony VI, 62-64.

Appendix C

AG-3, AG-7, AH (pp. 11, 13), AI=-1 (pp.

3, 7), AY (p. dated 1/9/75), AZ (pp.

dated 12/24/74, 12/25/74,; 12/23/74,

12/25/74), BA=-2 (pp. dated 1/7/75,

1/26/75, 1/27/75, BA-3 (pp. dated

2/1/75, 2/2/75, 2/16/75) BA=4 (p. dated

3/10/75), BF, BG, BP® and BQ.’ Defense

Testimony: Britt - IV, 99-101, 137-138.

Nyberg - V, 72-82, 85. Interroga-

tories - V, 155. Worster - VI, 66-67.

Kennedy - VI, 92-93, 93-94. McNabb

Deposition - VI, 141. Brown Depo-

sition - VI, 152-13. Hahn - VII,

38-39.

89. There is no evidence that any

plaintiff was deprived of the oppor-

tunity for schooling. Defense Testi-

mony: V, 154; VI, 141, 153.

90. Only such restrictions upon

inmate activity were imposed as were

necessary to maintain adequate security

for the safety of inmates and staff.

Defense Testimony: Britt -IV, 99-103,

154; V, 3-5.

6 Exhibit explained by testimony VI, 64-66.

A summary of these records prepared by San

Quentin Staff is appended hereto as an appendix.

7 See Worster testimony for explanation.

Appendix C

91. Plaintiff Hayward was housed

in East Block from November 13, 1974, to

April 17, 1975, in Cell 1E93. Defense

Exhibits: BR-4, BU-1. (See VI, 67-69

for explanation of exhibits.)

92. Plaintiff McNabb was housed in

East Block from February 29, 1975, to

May 7, 1975, in Cells 1E110, 3E73, and

3D70. Defense Exhibits: BR-3 and BU-2.

(See VI, 67-69 for explanation of

exhibits. )

93. Plaintiff Brown was housed in

East Block from January 22, 1975, to

April 17, 1975, in Cells 2E106 and 2E12.

Defense Exhibits: BR=-2 and BT. (See

VI, 67-69 for explanation of exhibits.)

CONCLUSIONS OF LAW

1. The due process requirements

of the Fourteenth Amendment are inappli-

cable to this case. Meachum v. Fano,

427 U.S. 215 (1976); Montayne v. Haymes,

427 U.S. 236 (1976); Moody v. Daggett,

429 U.S. 78 (1976); Gilliard v. Oswald,

552 F.2d 456 (2nd Cir. 1977), rehearing

denied, 557 F.2d 359; Newman v. Alabama,

559 F2d 283 (5th Cir. 1977); Potter v.

Clark, 497 F2d 1206 (7th Cir. 1974);

Hoitt v. Vitek, 497 F2d 598 (lst Cir.

1974).

2. Due process does not require a

Appendix C

hearing prior or subsequent to actions

by prison authorities such as were taken

on December 19, 1974, by the prison

administration at San Quentin.

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

Montayne v. Haymes, 427 U.S. 236 (1976);

Moody v. Daggett, 429 U.S. 78 (1976);

Gilliard v. Oswald, 552 F2d 456 (2nd

Cir. 1977), rehearing denied, 557 F.2d

359; Newman v. Alabama, 559 F.2d 283

(Sth Cir. 1977); Potter v. Clark, 497

F.2d 1206 (7th Cir. 1974); Hoitt v.

Vitek, 497 F.2d 598 (lst Cir. 1974);

Hodges v. Klein, 421 F.Supp. 1224

(D.M.J. 1976).

3.° The federal Constitution does

not require that subsequent to actions

such as were taken by the San Quentin

Administration on December 19, 1974, a

hearing concerning continuation of maxi-

mum security precautions be reviewed by

a Civilian body outside the Department

of Corrections. Meachum v. Fano, 427

U.S. 215 (1976); Montayne v. Haymes, 427

U.S. 236 (1976); Moody v. Daggett, 429

U.S. 78 (1976); Newman v. Alabama, 559

F.2d 283 (5th Cir. 1977).

4. The actual notice to inmates

of the likelihood of a "lockdown" after

a violent incident, the notice to in-

Appendix C

mates provided by the San Quentin admin-

istration concerning the extent and dura-

tion of security precautions and conse-

quent limitations on programs, the con-

tacts with inmates by prison staff con-

cerning the temper of the institution,

the individual screening of inmate

files, the on-going departmental classi-

fication process, the inmate appeal

process, and the avilability of state

habeas corpus more than adequately pro-

vide for any incidents of due process

which might be held applicable to a

situation such as is involved in this

suit. Cooper v. Riddle, 540 F.2d 731

(4th Cir. 1976).

5. In a situation such as this

where changed programs, policies and

security measures were applied to in-

mates as a whole, a hearing concerning

such changes is not required by the

Fourteenth Amendment. Meachum v. Fano,

427 U.S. 215 (1976); Montayne v. Haymes,

427 U.S. 236 (1976); Moody v. Daggett,

429 U.S. 78 (1976).

6. Under the facts of this case

no’ denial of access to court in viola-

tion of the federal Constitution is

shown. Phillips v. Anderson, 386 F.Supp.

371 (E.D. Okla. 1974).

7-3

3 Appendix C

7. The state has no Eighth Amend-

ment obligation to provide prisoners

with opportunities to obtain education,

attend vocational school or entertain-

ment. Moody v. Daggett, 429 U.S. 78

(1976); Newman v. Alabama, 559 F.2d 283

(Sth Cir. 1977); Cruz v. Skelton, 543

F.2d 86 (5th Cir. 1976); Nadeau v.

Helgemoe, 423 F. Supp. 1250 (D.C. N.H.

1976); Furrow V. United States Board

of Parole, 418 F. Supp. 1309 (D.C. Maine

1976). |

8. Reasonable limitations upon

inmates' visitation rights are not vio-

lative of the Eighth Amendment.

Moody v. Daggett, 429 U.S. 78 (1976);

Newman v. Alabama, 559 F.2d 283 (5th

Cir. 1977); McCray v. Sullivan, 509 F.2d

1332 (Sth Cir. 1975) on remand, 399

F.Supp. 271 (M.D. Ala. 1975).

9. Limitations upon visitation

rights as shown in this case were

reasonable. (See authorities cited

under Conclusion No. 8.)

10. It is not an infliction of

cruel and unusual punishment where

limitations or deprivations are incident

to reasonable actions intended to

preserve the safety of the inmates at

7’.

Appendix C

the institutuion. Gilliard v. Oswald,

552 F.2d 456 (2nd Cir. 1977), rehearing

denied, 557 F.2d 359; Crowe v. Leeke,

550 F.2d 184 (4th Cir. 1977).

11. Any limitations or depriva-

tions subsequent to December 19, 1974,

were incident to reasonable actions by

prison authorities necessitated by their

duty to safeguard the inmates in their

custody. (See authorities cited in sup-

port of Conclusion No. 10.)

12. A state's obligation under the

Eighth Amendment is to furnish its

prisoners with reasonably adequate food,

clothing, shelter, sanitation, medical

care and personal safety. Moody v.

Daggett, 429 U.S. 78 (1976); Sostre v.

McGinnis, 442 F.2d 178 (2nd Cir. 1971),

cert. denied, 404 U.S. 1049 (1972),

cert. denied, 405 U.S. 978 (1972);

O'Brien v. Moriarity, 489 F.2d 941 (lst

Cir. 1974); LaReau v. McDougall, 473

F.2d 974 (2nd Cir. 1972), cert. denied,

404 U.S. 878 (1973); Newman v. Alabama,

559 F.2d 283 (Sth Cir. 1977).

13. Any limitations or depriva-

tions shown by the facts of this case

were not of such a nature or of such a

duration as to constitute cruel and

Appendix C

unusual punishment under the Eighth

Amendment and prison authorities acted

with reasonable diligence to ameliorate

these conditions as soon as possible

consonant with safety of inmates and

staff. Sostre v. McGinnis, 442 F.2d

178 (2nd Cir. 1971), cert. denied, 404

U.S. 1049 (1972), cert. denied, 405 U.S.

978 (1972).

14. Plaintiffs have not shown

either a violation of the due process

Clause of the Fourteenth Amendment or

the Eighth Amendment prohibition against

cruel and unusual punishment. (See

authorities cited in support of Con-

clusions ‘1, 2,3; 5, 7; Oi By 20, Bas a

and 13.)

15. Confinement to cells is not

per se an imposition of cruel and un-

usual punishment. Sostre v. McGinnis,

442 F.2d 178 (2nd Cir. 1971), cert.

denied, 404 U.S. 1049 (1972), cert.

denied, 405 U.S. 978 (1972).

16. Where, as here, restrictions

and limitations are not punitive in

nature and are applied to a class as a

whole and not to particular individuals,

any Eighth Amendment concept concerning

relation of penalty to offense is inap-

Appendix C

plicable. Sostre v. McGinnis, 442 F.2d

178 (2nd Cir. 1971), cert. denied, 404

U.S. 1049 (1972), cert. denied, 405 U.S.

978 (1972); Sweet v. South Carolina

Department of Corrections, 529 F.2d 854

(4th Cir. 1975).

17. Under the facts of this case

any restrictions or limitations were

reasonably related to correctional

needs. (See authorities cited above.)

It is recommended that the fore-

going findings of fact and conclusions

of law entered by the Magistrate be

adopted and approved by the Court.

DATED: February 2, 1978

OWEN E. WOODRUFF, JR.

United States Magistrate

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