Petition — Vinzant v. King

Supreme Court brief1983

Ask Donna

What actually matters in this document.

Text

JUL 26 1985

CLERK —

No.

83-144

IN THE SUPREME COURT

OF THE UNITED STATES

ALEXA

DOUGLAS VINZANT,

Petitioner

ARNOLD KING,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE FIRST CIRCUIT

FRANCIS X. BELLOTTI

ATTORNEY GENERAL

COMMONWEALTH OF MASSACHUSETTS

Barbara A.H. Smith

Assistant Attorney General

Chief, Criminal Appellate

William D. Luzier, Jr.

Assistant Attorney General

One Ashburton Place

Boston, Massachusetts 02108

Tel: (617) 727-2240

TI.

QUESTIONS PRESENTED

Was the state of the law at the

time of a prison disciplinary board

hearing such that a prison

superintendent charged with

administrative review of the

findings of said board should have

known that his actions would

deprive an inmate of a

constitutional right so as to

vitiate his qualified immunity?

Is there a duty on the part of a

prison superintendent exercising

administrative review of a prison

disciplinary hearing to investigate

the circumstances of the hearing to

determine the process which was

afforded the inmate?

TABLE OF CONTENTS

QUESTIONS ee A ee ee eee ee

OPINIONS CO ee 2 eee eee

jj ies a. e ee nee 68 666666660600062

STATUTES DT Titineh~eebnoeaceseosetseeeevesd

STATEMENT OF THE CASE. .cccccccccccccceeed

REASONS FOR GRANTING THE WRIT....2....8°9

is aces eeeeeeesedsicoececoocees

I. THE DUTIES OF AN OFFICIAL EXERCISING

ADMINISTRATIVE REVIEW SHOULD NOT BE

EXPANDED TO INCLUDE FACTFPINDING

a EE

II. A PRISON OFFICIAL WHO IS NOT

ACTUALLY INVOLVED IN AN ALLEGED

DEPRIVATION OF CONSTITUTIONAL

RIGHTS AND HAS NO ACTUAL KNOWLEDGE

OF THE VIOLATION SHOULD NOT BE HELD

LIABLE FOR MONETARY DAMAGES......-.12

EE a er ©

ctte

TABLE OF AUTHORITIES

Cases

Butz v. Economu,

438 Voebs 478 8 9, | Pere SC Prare 6

Carey v. Piphus,

435 Uebe 47 C29 TO) coeccesdédseteseet

Harlow v. Fitzgerald,

U.S. 102 6.Ct. 3727

gh DR er cg eee aR epee res fT Pe

Hayes v. Thompson,

637 F. 463 (7th Cie. 1980) sccccebs

Monell v. New York City Dept. of

Social Services

436 U.S- 658 [iS 7O) 6 aveceeeeceesonaa

Rizzo v. Goode,

423 Ueweo 362 CASTS) beeess ce ennesecsaan

Scheuer v. Rhodes

6 Baws 230 (1978) cceées céeseeescan

Ward yv. Johnson,

667 F.2d 1126 (4th Cir. 1981)..10,11

Statutes

28 U0. 8.Ce C1296 (2) ccc'ccceseesvecsveoneces

42 U.8.Ce, C19ES « weesvdseeecesesdoseeneae

e-iii-

No.

IN THE SUPREME COURT

OF THE UNITED STATES

DOUGLAS VINZANT,

Petitioner

Vv.

ARNOLD KING,

Re spondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE FIRST CIRCUIT

OPINIONS BELOW

The opinion of the Court of Appeals

for the First Circuit, Arnie King v.

Douglas Vinzant, No. 82-1580 is not yet

reported. (App. A) The order on the

petition for rehearing in the same

matter is not yet reported. (App. B)

The orders of the United States

District Court for the District of

Massachusetts are unreported. Arnold

King v. Joseph Higgins, Slip Op. C.A.

No. 73-3337-T, May 7, 1982 and March 30,

1982. (App. C and D)

The Magistrates Findings and

Recommendations on Magistrates

Recommended Damage Award are

unreported. Arnold King v. Joseph

Higgins, Slip Op., C.A. No. 73-2227-T,

(March 12, 1983). (App. £E)

The Magistrates Report is

unreported. Arnold King v. Joseph

Higgins, Slip Op., C.A. No. 73-2227-T,

(May 17, 1978) (App. F).

The opinion of the Court of Appeals

for the First Circuit King v. Higgins,

is reported at 495 F.2d 815 (lst Cir.

1974). (App. G)

The opinion of the United States

District Court for the District of

Massachusetts is reported at 370 F.Supp.

1023 (Mass. 1974). (App. 8)

JURISDICTION

The decision below denying a timely

petition for rehearing en banc was

issued on April 27, 1983. The

jurisdiction of this court is claimed

under 28 U.S.C. §1254(1).

STATUTES INVOLVED

42 U.S.C. §1983. Civil Action for

Deprivation of Rights

Every person who, under color of any

statute, ordinance, regulation,

custom, or usage, of any State or

Territory, subjects, or causes to be

subjected, any citizen of the United

States or other person within the

jurisdiction thereof to the

deprivation of any rights,

privileges, or immunities secured by

the Constitution and laws, shall be

liable to the party injured in an

action at law, suit in equity, or

other proceeding for redress.

STATEMENT OF THE CASE

Arnold King, on July 2, 1973 was an

inmate in the farm section of

M.C.I.-Concord. Following an incident

at his place of work, he was brought

before a disciplinary board and charged

with refusing to work, refusing a direct

order, and inciting to riot. The

plaintiff was not afforded prior notice

of the hearing, nor advised of his right

to counsel, to confront the complaining

officer, or to present witnesses on his

own behalf. At the time of the hearing,

[Department of Corrections]

Commissioner's Bulletin 72-1, which

granted those cada ieae rights to

prisoners appearing before a

Gisciplinary board, was in effect. The

prisoner was found guilty of ali

offenses and sentenced to 15 days

isolation. He appealed the punishment

to the Superintendent of M.C.I.-Concord,

the Petitioner herein, characterizing

the disciplinary proceeding as a

"Kangaroo Court". Vinzant, the

Superintendent, after examining the

reports of the cisciplinary board, which

mentioned nothing in regard to the

procedure afforded the inmate, denied

the appeal.

King brought the instant civil

rights action against Douglas Vinzant,

former Superintendent, M.C.I.-Concord,

and Joseph Higgins, former Acting

Commissioner of Corrections for

injunctive, declaratory and monetary

relief under the provisions of 42 U.S.C.

§1983, alleging that his right to due

process of law was violated in the

course of prison disciplinary and

reclassification hearings, wherein he

was not afforded prior notice of the

proceedings, nor advised of his rights

to counsel, to confront the complaining

officer, and to call witnesses on his

own behalf. After hearing by a

magistrate, the United States District

Court, in King v. Higgins, 370 F.Supp.

1023 (1974) (App. H) ruled that the

plaintiff had been deprived of due

process of law in both the disciplinary

and reclassification proceedings, and

ordered that the records be expunged of

the results of both hearings. The

matter was then referred to a magistrate

for consideration of the plaintiff's

claims for compensatory and punitive

damages. The United States Court of

Appeals for the First Circuit affirmed,

on the narrow ground that the

disciplinary hearing might have been a

factor in the reclassification

decision. King v. Higgins, 495 F.2d 815

(1974). (App. G) A Magistrate's Report

was issued on May 17, 1978 (App. F),

which absolved the defendant Higgins of

any liability, and recommended that

defendant Vinzant be held liable in the

amount of $390.00 ($15.00 for 15 days'

loss of wages at $1.00 per day and

$25.00 per day for the 15 days of

isolation) as compensation for pain

suffering allegedly sustained. The case

was remanded to the magistrate for

reconsideration in light of Carey v.

Piphus, 435 U.S. 247 (1978). No action

was taken, and the matter was referred

to a second magistrate for a

determination of the factual basis of

the first magistrate's recommended

damages award. The second magistrate

upheld the recommended damages in the

Findings and Recommendations on

Magistrate's Recommended Damage Award,

issued March 12, 1982, (App. £)

concluding that the plaintiff would not

have been placed in isolation had he

been afforded due process protections,

and that he had shown actual injury

resulting from the deprivation of his

constitutional rights. The District

Court approved the magistrate's

recommendation on March 30, 1982, and

ordered that judgment be entered agains

he defendant Vinzant for $390.00 in

compensatory damages and in favor of the

defendant Higgins. After reviewing the

defendant's objections to the

magistrate's findings, the District

Court directed that the order remain in

effect. (App. C and D) The First

Circuit Court of Appeals affirmed the

decision of the District Court. (App.

A) Petition for rehearing en banc was

denied. (App. B)

REASONS FOR GRANTING THE WRIT

I. The decision below constitutes an

unwarranted expansion of the duties

of an official exercising

administrative review of a prison

disciplinary hearing which expansion

is not constitutionally mandated.

II. The decision below is not

constitutionally compelled and

conflicts with the tenor of

decisions of this and other lower

federal courts concerning the

availability of qualified immunity

for prison officials and the

application of respondent superior

in civil rights actions.

ARGUMENT

T. THE DUTIES OF AN OFFICIAL

EXERCISING ADMINISTRATIVE REVIEW

SHOULD NOT BE EXPANDED TO INCLUDE

FACTPINDING INVESTIGATION.

A summary of the rationale in the

court below is that the petitioner as

the administrative reviewing authority

is under an obligation to investigate

the procedural amenities which were

afforded an inmate at a disciplinary

hearing in a prison setting. This

position expands the duty of an

authority who is in essence a

gQuasi-administrative law judge. It

imposes upon the quasi-judicial

functionary the duty to investigate

whether each and every inmate who is

involved in a disciplinary infraction

has been afforded the procedures which

are to be afforded inmates at such

hearings.

This is in direct conflict with the

holdings of the Fourth Circuit in the

case of Ward v. Johnson, 667 F.2d 1126

(4th Cir. 1981) where the Court held

that the reviewing authority could not

be held liable in a 42 U.S.C. §1983

action because the reviewing authority

played no actual part in the denial of

-10-

the privileges which were to be afforded

inmates at that time. Ward, supra at

1131.

As the Court of Appeals aptly noted

in the instant matter this is not a case

where the plaintiff had erred a failure

to exercise sufficient supervision and

offer adequate training to inferiors.

See, for example, Hayes v. Thompson, 637

F.2d 483 (7th Cir. 1980).

Once regulations are in effect, a

prison official should be able to assume

that the regulations are being followed

by line officers. Otherwise, the burden

of reviewing disciplinary reports which

falls upon prison officials is odious.

It is highly likely that the ultimate

impact of the holding of the Court of

Appeals will be to discourage correction

officials in the First Circuit, and

elsewhere, from promulgating any

“1le

regulations beyond those

constitutionally required, and to

encourage them to limit as far as

possible the review functions of

supervisory officials, lest an error in

judgment or failure to make what a

federal court would regard as a complete

enough investigation subject them to

liability for damages for violation of a

less than clearly defined constitutional

right.

II. A PRISON OFFICIAL WHO IS NOT

ACTUALLY INVOLVED IN AN ALLEGED

DEPRIVATION OF CONSTITUTIONAL

RIGHTS AND HAS NO ACTUAL KNOWLEDGE

OF THE VIOLATION SHOULD NOT BE HELD

LIABLE FOR MONETARY DAMAGES.

This court has consistently held

that there must be a causal connection

between a defendant in a civil rights

action and the harm claimed by the

plaintiff. Rizzo v. Goode, 423 U.S.

362, 370 (1976), Monell v. New York City |

-12-

Dept. of Social Services, 436 U.S. 658,

692 (1978). Here the causal connection

between the failure to provide

procedural amenities and the actions of

the reviewing authority are tenuous at

best. |

In addition, the reasoning used by

this Court in rejecting defendant

Vinzant's good faith immunity defense

was that he had a duty to fully

investigate the plaintiff's allegation

in his appeal from the disciplinary

board finding that "I thought this had

ended in March the last time I was in

Kangaroo Court but I can see that it has

not", and that his failure to do more

than Look beyond the reports he got from

the members of the disciplinary board

(which did not indicate that all of the

applicable regulations had been

followed) constituted a "reckless

disregard" of the plaintiff's rights.

el3-

King v. Higgins, No. 82-1580, (lst Cir.

March 9, 1983). (App. A) Thus, even

though the "precise bounds" of

constitutional due process required for

Gisciplinary hearings were not clear at

the time of Vinzant's review, Id., his

failure to correct possible disregard of

regulations by his subordinates

constituted a violation of state law,

and therefore made his conduct unlawful

for immunity purposes.

The implication of this rationale is

that a supervisory correction official

who negligently performs an

administrative review function cannot

assert good faith immunity for a

constitutional violation even if the

constitutional rights in question were

not firmly established, where relevant

department regulations were violated by

someone else in the proceeding being

=l4-

reviewed. It is suggested that this

conclusion is inconsistent with the

decisions of this court in Harlow v.

Pitzgerald, U.S. » 402 8.Ct-

272 (1982), Butz v. Economu, 438 U.S.

478 (1978), and Scheuer v. Rhodes, 416

U.S. 232 (1974) and that those cases

require a finding that an official

entitled to immunity has violated a

clearly established constitutional right

or federal statute by his own conduct

before he can be found liable for

damages for that violation.

The applicable standard was

enunciated in Harlow as follows:

"We therefore hold that government

officals performing discretionary

functions generally are shielded from

liability for civil damages insofar as

their conduct does not violate clearly

established statutory or constitutional

rights of which a reasonable person

would have known.” 102 S.Ct. at 2738.

That case, as well as Butz and Scheuer,

discussed only violations of federal,

«15

constitutional law in the context of the

immunity defense. An extension of this

principle to state regulations is not

mandated or even suggested by these

cases, or the policies underlying the

availability of the good faith immunity

defense for discretionary conduct of

state officials. See, e.g., Harlow,

supra at 2739, fn. 32, in which the

court mentions that it did not need to

decide whether the state of the law

should be "'evaluated by reference to

the opinions of this Court, of the

Courts of Appeals, or of the local

District Court.'”

Furthermore, an analysis that

depends on a prison superintendent's

recklessness in not adequately

performing his duty of review (which is

not defined in the regulations at issue

here) injects the subjective element of

-16-

the good faith defense back into the

evaluation of the claim, a result

contrary to the holding of this court in

Harlow, supra, eliminating that portion

of the test.

CONCLUSION

For the reasons stated above, the

writ of certiorari should issue to

review the decision of the Court of

Appeals for the First Circuit.

Respectfully submitted,

FRANCTS X. BELLOTTI

ATTORNEY GENERAL

Barbara A.H. Smith

Assistant Attorney General

Chief, Criminal Appellate

* ey eT)

By: William D. Luzfer, Jy

Assistant Attorney~General

One Ashburton Place

Boston, MA 02108

Tel: (617) 727-2240

eis

APPENDIX

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 82-1580

ARNIE KING,

Plaintiff, Appellee,

Vv.

JOSEPH HIGGINS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE

DISTRICT OF MASSACHUSETTS

{[Hon. Joseph L. Tauro,

U.S. District Judge]

Before

Coffin, Chief Judge

Bownes, Circuit ada,

and Pettine,* Senior District Judge,

March 9, 1983

* Of the District of Rhode Island,

sitting by designation.

COFFIN, Chief Judge. This is an

appeal from an award of $390 in

compensatory damages to

plaintiff-appellee Arnold King for

deprivation of his due process rights at

a prison disciplinary hearing. At the

time of the proceedings, on July 2,

1973, plaintiff was an inmate at the

farm section of M.C.I., Concord.

Defendant Douglas Vinzant was the

Superintendent at that prison. His

codefendant in the proceedings below was

Joseph Higgins, Acting Commissioner of

Corrections.

Following an incident at his place

of work, plaintiff was brought before a

disciplinary board and charged with

refusing to work, refusing a direct

order and inciting to riot. He was not

afforded prior notice of the hearing,

nor advised of his right to seek the

advice of counsel, to confront the

complaining officer and to present

witnesses on his own behalf. He was

found guilty of all offenses and

sentenced to 15 days isolation. He

appealed to defendant Vinzant,

Characterizing the disciplinary

proceeding as a "Kangaroo Court”.

Defendant Vinzant denied the appeal.

After the disciplinary hearing,

prison officials held a reclassification

hearing. The reclassification board

recommended that because of his frequent

Gisciplinary infractions, plaintiff be

transferred to a more secure

institution, M.C.I., Waipole.

Plaintiff brought suit under 42

U.S.C. §1983, alleging deprivation of

his right to due process of law and

effective assistance of counsel.2/

After a hearing by a magistrate, the

district court, in King v. Higgins, 370

F. Supp. 1023 (D. Mass. 1974), ruled

that the procedures employed at his

disciplinary hearing deprived plaintiff

of due process of law and that the

deprivation also tainted his

reclassification hearing. The court

ordered that the findings of the

disciplinary and reclassification boards

be expunged from his record and new

l/ Plaintiff claimed that defendant

Vinzant had prevented counsel from

speaking with plaintiff for a number of

days when he was confined in isolation.

The district court noted that the

magistrate had made no findings

regarding that claim and, in view of its

order invalidating the proceedings on

other grounds, found it unnecessary to

do so itself. The court found it

sufficient to note that prisoners retain

their constitutional right to effective

assistance of counsel and the corollary

right to free and private communication

with counsel. Plaintiff's ineffective

assistance of counsel claim is not at

issue before us.

hearings be held, and referred to a

magistrate plaintiff's claims for

compensatory and punitive damages

against defendants Vinzant and Higgins.

We affirmed the invalidation of the

disciplinary and reclassification

hearings, but found the issue of damages

not yet appealable. King v. Higgins,

495 P.2d 815 (lst Cir. 1974). Ina de

novo hearing on March 8, 1974, plaintiff

was found not guilty of inciting to riot

and guilty of the other two offenses.

He was removed from the farm at Concord,

but no isolation time was imposed.

On May 17, 1978, the Magistrate

recommended that plaintiff be awarded

$390 in damages against defendant

Vinzant resulting from the lack of

protections afforded plaintiff at his

disciplinary hearing -- $375 for pain

and suffering during 15 days in

isolation and $15 for loss of wages.

The Magistrate recommended no damages

against defendant Higgins, because

plaintiff had produced insufficient

evidence that Higgins knew or should

have known that departmental procedure

was not being followed. He found

neither defendant liable for damages

flowing from the reclassification

hearing, since the law regarding a

prisoner's rights at such a hearing was

unclear at the time of the incident.

On September 20, 1978, the district

court remanded the report to the

Magistrate, in light of Carey v. Piphus,

435 U.S. 247 (1978), for findings of

fact on which his recommended award was

based. No action was taken until March

12, 1982, when a second magistrate

concluded that there was a factual basis

for the imposition of the $390 damage

award. The district court approved the

Magistrate's findings and ordered that

judgment be entered in favor of

plaintiff. Prom that opinion, defendant

Vinzant appeals.

Good Faith Immunity

Defendant urges that he should be

immune from damages under 42 U.S.C.

§1983 both because the state of the law

regarding a prisoner's rights at a

disciplinary hearing was unclear at the

time of plaintiff's appeal and because

he neither knew nor should have known

that his conduct violated those rights.

We agree with defendant that he is

entitled to a qualified immunity from

damages under Section 1983. Procunier

v. Navarette, 434 U.S. 555 (1978).

Thus, he is liable for damages only if

he knew or should have known that his

action would violate plaintiff's

constitutional rights. Id. at 562; Wood

v. Strickland, 420 U.S. 308, 322

(1975). We disagree, however, with

defendant's contention that he should

not reasonably have known that plaintiff

was entitled to certain minimum

procedural safeguards at his

disciplinary hearing or that plaintiff

had not received those safeguards.

It has long been settled that

"whenever substantial individual

interests of prisoners are at stake,

'some assurances of elemental fairness

are essential.'" Palmigiano v. Baxter,

487 F.2d 1280, 1282 (lst Cir. 1973)

(quoting Nolan v. Scafati, 430 F.2d 548,

550 (lst Cir. 1970)). As defendant

points out, at the time of plaintiff's

disciplinary hearing the precise bounds

of those required assurances were not

clear. In Palmigiano, supra, decided

after plaintiff's hearing and appeal, we

set out certain due process standards

for a hearing that may result in a

marked change in a prisoner's status.

Then, in Wolff v. McDonnell, 418 U.S.

539 (1974), the Supreme Court held that

due process required that a prisoner be

given advance written notice of the

Claimed violation and a written

Statement of the factfindings as to the

evidence relied upon and the reasons for

the disciplinary action taken. Because

the hearing in this case antedated both

Wolff and Palmigiano, defendant urges

that he should not be held responsible

for having deprived plaintiff of those

rights. we disagree.

In its opinion invalidating

plaintiff's hearing, the district court

noted the requirements newly enunciated

in Palmigiano, but determined that it

need not rely on them because "measured

against even the most basic standards of

due process and fundamental fairness,

the disciplinary procedure afforded

plaintiff fails to pass constitutional

muster." King v. Higgins, supra, 370 F.

Supp. at 1028. Plaintiff risked and was

punished by a substantial deprivation of

liberty. As the district court

recognized, it had long been clear that

at a hearing which could result in such

punishment plaintiff was entitled at

least to notice and the opportunity to

present evidence in his own behalf. Id.

(citing Goldberg v. Kelly, 397 U.S. 254,

267-68 (1970)).2’ We agree with the

2/. The district court also listed as

fundamental the right to confront

adverse witnesses. 370 F.Supp at 1028.

The Supreme Court, however, would leave

the availability of that right to the

sound discretion of the officials of

State prisons. Wolff v. McDonnell,

supra, 418 U.S. at 569.

- 10 -

district court that those safeguards

should be considered part of the

"assurances of elemental fairness" to

which a prisoner is entitled and that

needed no specific judicial articulation.

Our decision is bolstered by the

presence of departmental regulations

guaranteeing the rights of which

plaintiff was deprived. The district

court held that defendant's failure to

adhere to those guidelines itself

constituted a violation of due process.

In light of recent Supreme Court

guidance, see United States v. Caceres,

440 U.S. 741 (1979), we have now

retreated from our earlier position that

a failure to adhere to administrative

regulations promulgated to protect

constitutional rights is itself a

violation of due process, see United

States v. Irvine, Slip op. No. 82-1386,

« 12 @

lst Cir., Jan. 28, 1983, although we

note that the presence of those

regulations may signal a state created

liberty interest entitled to federal due

process protection, see Hewitt v.

Helms, U.S. , 51 U.S.L.W. 4124,

4126 (Feb. 22, 1983) (No. 81-638). Even

if, standing alone, a violation of the

regulations does not provide a basis for

a due process claim, however, the

presence of those regulations certainly

rebuts defendant's "good faith"

defense. Even if he did not know that

the Constitution required that plaintiff

be given advance notice and an

opportunity to present evidence, he knew

or should have know that his own

departmental regulations required those

protections. Defendant should not be

able to escape liability for a

constitutional violation simply because

o 12 <

he thought the rights being denied were

protected only by his own departmental

regulations (which have the effect of

State law). See Niles v. Boston Rent

Control Administrator, 6 Mass. App. Ct.

135, 150 (1978) ("Rules which have been

promulgated pursuant to a legislative

Grant of power have the force of law and

are binding on the agency which issued

them.").

We are similarly unpersuaded by

defendant's argument that he neither

knew nor should have known that

plaintiff had been denied his

constitutional rights. Defendant

apparently does not dispute the fact

that as the official designated to hear

prisoners' appeals, he should be liable

in damages for his inaction in curing

deficiencies in the disciplinary

proceedings of which he was aware. See

Rizzo v. Goode, 423 U.S. 370, 371 376

(1976) (for liability under Section

1983, there must be a sufficient link

between the constitutional violations

and any action or inaction on the

defendant's part). He suggests,

instead, that based on the information

before him, a general complaint from

plaintiff that the proceeding was a

"Kangaroo Court” and reports of the

disciplinary board members that

indicated no deprivation of

constitutional rights, he had no reason

to know that plaintiff's rights had been

violated.

Defendant confuses a lack of

Knowledge of the failure of other

officials to ensure plaintiff's

constitutional rights with a lack of

duty on his part to assure that the

proceedings below were constitutionally

- 14

sound. As the official designated to

hear prisoners' appeals, he had a duty

to conduct at least a minimal

investigation to determine whether there

was any merit to plaintiff's appeal.

See Dimarzo v. Cahill, 575 P.2d 15,

17-18 and n.3 (lst Cir. 1978)

("(flJailure to act where there is a duty

to act can give rise to an actionable

Claim under section 1983"). Defendant

insists that he fulfilled that duty by

asking for reports from the members of

the disciplinary board. Those reports,

however, were sufficient at least to put

him on notice of the constitutional

violations. Whether or not,

3/ Defendant is thus distinguishable

from the warden in Hayes v. Thompson,

637 F.2d 483 (7th Cir. 1980), who,

despite his supervisory

responsibilities, was found not to be

responsible for the procedures employed

(footnote continued)

oi. «

based on the appeal and the reports of

the disciplinary board members,

defendant knew or should have known that

plaintiff had been deprived of his

rights, he knew or should have known

enough to have investigated further.

The reports of the board members were

conspicuous in their silence regarding

plaintiff's prior notice of the

proceeding and his opportunity to

confront the complaining officer and

Present witnesses on his own behalf. In

addition, one of the reports indicated

(footnote continued)

by the Institutional Adjustment

Committee. The warden had issued

regulations regarding the conduct of the

disciplinary proceedings, but he had no

specific responsibility to review the

findings and procedures of the

Committee. The court declined to reject

as “clearly erroneous" the district

court's conclusion that the warden had

fulfilled his supervisory

responsibilities.

°e 16 -

that the board's decision was based in

part on a private conversation with the

complaining officer. We agree with the

Magistrate that in light of the

information before him, defendant's

failure to investigate further to

determine whether plaintiff had received

his constitutional rights constituted

reckless disregard of plaintiff's rights

and leaves nim unable to assert a good

faith defense to his liability for

damages under 42 U.S.C. §1983.

Proof Of Actual Injury

Defendant argues that compensatory

damages should be denied because there

was no proof that plaintiff was actually

injured by the due process violations.

Carey v. Piphus, 435 U.S. 247 (1978).

He insists that since plaintiff was

found guilty at a de novo hearing of two

of the three offenses of which he was

convicted at the first hearing, the

failure to afford procedural due process

cannot properly be viewed as the cause

of the sanctions, specifically the

sanction of isolation, imposed at the

first hearing.

Defendant's argument is without

merit. On the basis of plaintiff's

first, improper disciplinary hearing, he

was found guilty of refusing to obey a

direct order, refusing to work and

inciting to riot. He was sentenced to

and served 15 days in solitary

confinement. In the de novo hearing

ordered by the district court, plaintiff

was convicted only of the first two

offenses but was found not guilty of the

most serious offense (inciting to riot)

and given no time in isolation. His 15

days in isolation can therefore

reasonably be attributed to the

—'

deprivation of due process at his first

hearing and damages based on his pain

and suffering and lioss of wages during

those 15 days are proper.

The judgment of the district court

is affirmed.

« 19 «

APPENDIX B

UNITED STATES COURT OF APPEALS

POR THE FIRST CIRCUIT

No. 82-1580

ARNIE KING,

Plaintiff, Appellee,

JOSEPH HIGGINS,

Defendant, Appellant.

DOUGLAS VINZANT,

Defendant, Appellant.

BEFORE

Campbell, Chief, Judge,

Coffin, Bownes and Breyer, Circuit Judges

and Pettine,* Senior District Judge

ORDER OF THE COURT

2Pntered: April 27, 1983

Defendant suggests that our analysis

failed to follow the guidance of the

Supreme Court in Harlow v. Fitzgerald,

50 U.S.L.W. (June 24, 1982), that the

availability of a “good faith® immunity

defense be determined by an objective

standard -- whether the law was so

Clearly established at the time the

violation occurred that an official knew

or reasonably should have known that the

action he took would violate the

constitutional rights of the plaintiff.

As we noted in the opinion, the federal

right which plaintiff was denied was

Clearly established at the time of the

violation. The presence of departmental

regulations setting out the requirements

which we found to be constitutionally

required simply reinforced our judgment

that defendant could claim no relevant

legal standard. See id. at 4820; see

also id. at 4821 (The standard adopted

by the court] would not allow the

official who actually knows that he was

violating the law to escape liability

for his actions, even if he could ot

‘reasonably have been expected' to know

what he actually did know.") (Brennan,

Marshall and Blackmun, J.J., concurring

in the opinion of the Court).

The petition for rehearing is denied.

The judges of the panel having voted

to deny the petition for rehearing and

the judges of the Court who are in

regular active service having voted

rehearing en banc,

It is further ordered that said

application for hearing en banc is

hereby denied.

By the Court:

Clerk.

*Of the District of Rhode Island,

sitting by designation.

APPENDIX C

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

ARNOLD L. KING,

Plaintiff,

Vv. a 73-2227-T

JOSEPH HIGGINS and

DOUGLAS VINZANT,

Defendants.

eee

ORDE

TAURO, D.J. March 30, 1982

Magistrate Alexander's Findings and

Recommendations on the Magistrate's

Recommended Damage Award are approved

without opposition. Thus it is ORDERED

that judgment shall enter, and judgment

is hereby entered, in favor of the

plaintiff in his claim for monetary

relief against defendant Douglas

Vinzant. It is ORDERED that judgment

shall enter, and judgment is hereby

entered, in favor of defendant Joseph

Higgins, on plaintiff's claim for

monetary relief against him,

The court having granted plaintiff's

request for injunctive relif previously,

it is ORDERED that judgment shall enter,

and judgment is hereby entered, in favor

of the plaintif¢ in his claim for

injunctive relief,

It 16 so ORDERED.

United States District Judge

Appendix D

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

ARNOLD L. KING,

Plaintiff,

Vv. CoA. 73°2227°T

JOSEPH HIGGINS,

DOUGLAS VINZANT,

Defendant,

— ee ee

QRDER

TAURO, DJ. May 7, 1982

The court has reviewed the

defendants' objections to the

Magistrate's Findings and

Recommendations of March 12, 1982, and

finds them unpersuasive,. Accordingly

the court's order of March 30, 1982

shall remain in effect.

It 18 80 ORDERED.

United States District Court

APPENDIX £

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

ARNOLD L. KING, CIVIL ACTION

Plaintiff NO. 73=2227=T

JOSEPH HIGGINS and’

DOUGLAS VINZANT,

Defendants

March 12, 1982

ALEXANDER, M,

This case was originally remanded on

September 20, 1978 to a Magistrate for

findings of fact on which hia

recommended damages award was based in

ligne of Carey v. Piphus, 435 U.S. 247

(1978). No action having been taken,

the matter was referred to this

Magiatrate for a determination of the

factual basis of the former Magistrate's

recommended damages award,

This court hag read the report of

the Magistrate and can find no facts

explicitly articulated therein to

Support an award of compensatory

damages, particularily in light of Carey

Vi, Piphus, 435 U.S. 247 (1978),

However, a review of memoranda

Submitted herein and a court review of

the pleadings and records filed

persuades this Court that a factual

basis for the imposition of compensatory

damages pursuant to Carey v. Piphus, 435

U.S. 247 (1978) exists,

SUPPLEMENTAL PINDINGS OF PACTS

1. That on oF about July 2, 1973, the

plaintiff was taken before a

disciplinary board for a hearing which

did not afford him his constitutional

due process rights. King v. Higgins,

370 P.Supp. 1023 (1974).

2. That as a result of said hearing,

plaintiff was found guilty of three

disciplinary offenses, i.e.,

a. inciting to riot;

b. refusing to obey a direct order;

and

c. refusing to work.

3. The sanction imposed was fifteen

days in isolation.

4. That on or about March 8, 1974, the

plaintiff was afforded a de novo hearing

on the same offenses.

5. The disciplinary board found the

Plaintiff not guilty of the most serious

offense, i.e., inciting to riot, but

guilty of refusing to obey a direct

order and guilty of refusing to work.

6. AS a result of the de novo hearing

findings, the plaintiff was to be

removed from the farm at Concord.

Moreover, the Board recommended

reclassification.

7. No isolation time was imposed.

8. Plaintiff's Pre-Trial Memorandum

filed February 4, 1977 not only shows

that pain and suffering on the part of

the plaintiff may be proven but that

witnesses are available to so prove.

(Plaintiff's Pre-Trial Memorandum, pp.

13, 16).

9. Defendant's Pre-Trial Memorandum

filed Pebruary 4, 1977 shows that the

kind of damages due to plaintiff is a

triable issue. (Defendant's Pre-Trial

Memorandum, pp. 8, 9).

i0. An offer of proof was made

respecting the effects of confinement.

(Plaintiff's Memorandum on Damages,

January 3, 1980, pp. 3, 4).

CONCLUSIONS OF LAW

In Carey v. Piphus, supra, the Court

made it clear that when a plaintiff can

prove actual damages resulting from the

deprivation of procedural due process,

plaintiff may recover compensatory

damages in addition to nominal damages.

In applying the principles

enunciated in Carey to the case at bar,

the Court first looks to whether the

Plaintiff would have been placed in

isolation if a proper hearing had been

held. If so, plaintiff would be

precluded from recovering damages.

It is clear that the plaintiff is

not precluded from recovering damages

where the result of the proper hearing

(the de novo hearing of March 8, 1974)

was that he was found not guilty of

inciting to riot and guilty of the other

two offenses, with no isolation time

imposed, as contrasted to the improper

hearing (July 2, 1973) where he was

found guilty of all three offenses, with

fifteen days isolation imposed.

The two-prong test of Carey v,.

Piphus requires that the Court next ask

whether there is proof of actual

injury. While the record is not

illuminating, and it is difficult, if

not impossible, to discern the former

Magistrate's mind, the assertions of

plaintiff's counsel (Memorandum on

Damages Pact -- Pinding, January 3,

1980, p.3) aS to what and, more

specifically, who would be utilized to

prove damages, coupled with pre-trial

memoranda of both counsel, gives the

Court its basis for finding facts

Supporting actual injury. More

compelling, however, is the offer of

proof as to the effects of plaintiff

King's confinement (Memorandum on

Damages, January 3, 1980, p.4). None of

these assertions have been disputed by

the defendant. Accordingly, this Court

finds there was a factual basis to award

compensatory damages. Both defendant

Vinzant and plaintiff stipulate that if

compensatory damages are awarded, the

amount arrived at by the former

Magistrate should be deemed

appropriate.+/ Ie is, therefore,

recommended that the defendant Vinzant

be held liable to plaintiff for damages

in the amount of $375.00 for pain and

suffering and $15.00 for loss of wages.

UNITED STATE MAGISTRATE

I7 See Plaintiff’s Memorandum in

Response, Docket No. 36; Defendant's

Supplemental Memorandum Docket No. 35.

APPENDIX F

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO,

73-2227-T

ARNOLD KING,

Plaintiff,

JOSEPH HIGGINS,

DOUGLAS VINZANT,

Defendants.

MAGISTRATE'S REPORTL/

May 17, 1978

PIERCE, M.

This action for equitable and

monetary relief was commenced pursuant

to 42 U.S.C. §1983 (Civil Rights Act) by

i/ The Magistrate sat as a Special

Master in this matter under the

provisions of Rule 53, F.R.Civ.P., and

Local Rule 6E, Magistrates Rules.

an inmate, Arnold King, against two

corrections officials of the

Commonwealth of Massachusetts, Douglas

Vinzant (Superintendent, MCI Concord)

and Joseph Higgins (Acting Commissioner

of Corrections). In this action,

plaintiff alleges three constitutional

Geprivations:

1. That his right to due

process was violated in the

disciplinary hearing;

2. That his right to due

process was violated in the

Classification hearing; and

3. That he was denied the

assistance of counsel. AS a

consequence of the disciplinary

hearing, plaintiff was placed in

isolation; and, aS a consequence of

the classification proceeding,

plaintiff was transferred to a more

secure institution -- MCI Walpole.

This action has an extensive

judicial history. In King v. Higgins,

370 P.Supp. 1023, 1026 (D. Mass. 1974),

the District Court held that the

procedures followed by defendants in the

Gisciplinary hearing fell short of basic

Standards of due process and fundamental

fairness. Similarly, the court held

that defendants failed to accord

plaintiff, in the reclassification

hearing, the minimal due process

requirements to which he was entitled.

id 1029. The court then ordered the

expungment of the decisions of these

boards from plaintiff's record.

Subsequently, defendants appealed

the District Court ruling invalidating

the classification hearing. The Circuit

Court affirmed the District Court

decision in King v. Higgins, 495 F.2d

815, 816 (1974) but on narrower

grounds. It held that the uniawful

disciplinary hearing “was to some

uncertain extent taken into account in

appellee's reclassification."

Thereafter the matter was referred

to me for the purpose of making

additional findings of fact and

recommendations of law regarding

plaintiff's claim for compensatory and

punitive damages. Having reviewed all

the exhibits and affidavits and

otherwise taken into consideration all

of the evidence and arguments of

counsel, I hereby make the following

additional findings of fact and

recommendations of law:

PINDINGS OF pact’/

i. That on July 2, 1973

2/ I have not reiterated into the

Findings of the District Court in

Higgins. The District Court's findings

are set forth in Higgins at 1025-1026.

-4-

plaintiff was an inmate in the farm

section of MCI Concord. That as a

result of an incident which occurred

on that date at MCI Concord

involving the plaintiff, the

plaintiff was brought before a

disciplinary board for hearing.

That plaintiff was found guilty of

refusing to work, refusing a direct

order and inciting a riot. Higgins,

Supra at 1025;

2. That plaintiff appealed

this finding to defendant Vinzant.

Higgins at 1025-1026. That in this

appeal, plaintiff characterized the

disciplinary hearing as a “kangaroo

court." Plaintiff's Exhibit 2;

36 That at the disciplinary

hearing plaintiff was not afforded

the following rights:

A. Prior notice of the

hearing;

B. Advised of nis right

to counsel;

C. Advised of his right

to confront the complaining

officer, or

D. Present witnesses on

his own behalf. Higgins at

1025;

4, That the Department of

Corrections then had in effect

regulations granting inmates the

above-described rights;

5. That defendant Vinzant was

aware of the department regulations

granting inmates such rights.

Defendant's Pre-Trial Memorandum, p.

6. That defendant Vinzant

denied plaintiff's appeal from the

decision of the disciplinary board,

Higgins at 1026;

7. That even though plaintiff

Characterized the disciplinary

proceeding as a “kangaroo court’ in

his appeal, defendant Vinzant failed

to inquire as to whether plaintiff

was afforded his constitutional and

regulatory rights during the

disciplinary proceeding;

8, That defendant Vinzant

relied upon the reports of the

disciplinary board in making his

decision upon plaintiff's appeal.

9, That the report of the

disciplinary board did not indicate

whether plaintiff had been afforded

his constitutional and regulatory

rights;

10, That the failure to follow

established departmental regulations

was a violation of plaintiff's due

process, Higgins at 1028;

ll. That the right to prior

written notice, the presentation of

witnesses and the confrontation of

adverse witnesses were clearly

established due process rights in

the in the disciplinary context at

the time of this incident,

Palmigiano v. Baxter, 487 F.2d 1280,

1283 n.7 (lat Cir. 1973); Higgins,

Supra 370 F.Supp. at 1027-1028;

12. That the action of

defendant Vinzant, under the

circumstances of this case,

affirming the disciplinary board's

decision constituted a reckless

disregard of the clearly established

constitutional and regulatory rights

of the plaintiff. Wood v.

Strickland, 420 U.S. 322 (1975),

Downs v. Sawtelle, No. 77-1260, Slip

Op. pp. 17, 22 (March 30, 1978).

13. That plaintiff failed to

present any evidence which

establishes that defendant Higgins

knew or should have known about the

Violations which occurred during

plaintiff's disciplinary hearing.

Cf£. Dimarzo v. Cahill, No. 77-1416,

Slip Op. p. 5-6 (lat Cir. May 2,

1978);

14. That on July 3, 1973 a

reclassification hearing was held.

Pollowing the hearing it was

recommended that plaintiff be

transferred to MCI Walpole. On July

25, 1973 defendant Higgins approved

the recommendation. Higgins at 1026;

15. That the law regarding an

inmate's due process rights in the

reclassification hearing context was

unsettled at the time of this

incident. Gomes v. Travisono, 353

F.Supp. 457, 467 (D. R.I. 1973);

Gray v. Creamer, 465 F.2d 179, 187

(3rd Cir. 1972);

16. That given the uncertain

State of the law in the

reclassification hearing context,

defendants cannot be held liable for

their actions in connection with

plaintiff's reclassification hearing;

17. That as a consequence of

the disciplinary hearing plaintiff

was sentenced to and served 15 days

in isolation in MCI Concord;

18. That plaintiff was earning

$1.00 per day at MCI Concord prior

to being placed in isolation; and

19. That plaintiff was not

paid while serving in isolation.

RECOMMENDATIONS OF LAW

1. Any of the foregoing

-10<

Pindings of Pact which should more

properly be considered

recommendations of law.

2. Defendant Vinzant is liable

to plaintiff for his [Vinzant's]

actions in connection with

plaintiff's appeal from the decision

of the Disciplinary Board.

The defendants are entitled to a

qualified immunity. Downs v. Sawtelle,

No. 77-1260, Slip Op. (lst Cir. March

30, 1978). In Wood v. Strickland, 420

U.S. 308 (1975), the Supreme Court

established a rule of qualified immunity

for certain government officials. An

official entitled to a qualified

immunity will be liable for damages

under §1983:

if he knew or reasonably should

have known that the action he took

within the sphere of his official

responsibility would violate the

consitutional rights of the

[plaintiff], or if he took the

action with the malicious intention

to cause a deprivation of

constitutional rights or other

injury to the [plaintiff]. ... A

compensatory award will be

appropriate only if the [defendant]

» « « acted with such an

impermissible motivation or with

such disregard of the [plaintiff's]

Clearly established constitutional

rights that his action cannot be

reasonably be characterized as

being in good faith." id at 322.

Hence, in determining liability in this

area at least two facts must be

weighed: (1) Were the constitutional

rights at issue clearly established at

the time of the alleged violation,

Morris v. Travisano, 528 F.2d 856, 858

n.5 (lst Cir. 1976), and, if so, (2) did

the defendants act in bad faith.

A. Plaintiff's constitutional

rights were clearly established

at the time of the alleged

violation.

The rights at issue were clearly

established in two respects at the time

of the violations. Pirst, the minimal

due process rights of prior written

aku

notice and the presentation and

cross-examination of witnesses were

Clearly recognized in the disciplinary

hearing context at the time of the

violations. See, Palmigiano v. Baxter,

487 P.2d 1280, 1283 n.7 (ist Cir.

1973). This fact was made plain by the

District Court when it held that

"plaintiff was deprived of rudimentary

elements of fundamental fairness long

recognized by the courts, and, in fact,

the Massachusetts correctional

authorities." Higgins, supra 370

P.Supp. at 1027. Second, the

regulations promulgated by the

Department of Corrections require that a

defendant in a disciplinary proceeding

receive the right to prior written

notice, the right to present witnesses

and the right to cross-examine the

reporting officer. The violation of

this regulation “constitutes a violation

of due process of law." Higgins at 1028.

B. Defendant Vinzant's action

denying plaintiff's appeal

constituted a reckless

disregard of plaintiff's

Clearly established rights.

Plaintiff appealed the decision of

the disciplinary board to the defendant

Vinzant. In his appeal, plaintiff

alleged that the institution was

"playing games" and that the hearing was

a “Kangaroo Court." (2x. 2). While

these allegations may not be artfully

drawn and are doubtiessly not new to a

corrections official, they do raise the

issue of procedural impropriety. More

important, a person who is a vital link

in the administrative hearing chain has

a responsibility to ensure that a

defendant receives his clearly

established constitutional and

regulatory rights. See, Dimarzo v.

Cahill, supra, Slip Op. at 5-6. On this

record, it is clear that defendant

Vinzant made no effort, after receipt of

defendant's appeal, to determine if

defendant was afforded the

constitutional and regulatory rights to

which he was entitled. Defendant

relied, in making his judgment, upon the

report of the hearing board. The report

said nothing about the procedural rights

received by plaintiff; therefore, at

least aafter plaintiff raised the issue

of procedural impropriety, defendant

Vinzant had a duty to determine if

Plaintiff had received his clearly

established constitutional and

regulatory rights of due process. He

failed to do so. Under the

circumstances of this case, I conclude

that this failure constitutes a reckless

disregard of the clearly established

al Se

rights of the plaintiff and renders

defendant Vinzant liable to the

plaintiff.

3. Defendant Higgins is not

liable for his actions or inactions.

In Rizzo v. Goode, 423 U.S. 362,

371, 377 (1976) the Supreme Court

indicated that before liability may be

found there must be a sufficient link

between the constitutional violations

and the actions or inactions of the

defendant. Plaintiff has failed to

establish a sufficient link between the

constitutional violations occurring in

the disciplinary hearing process and the

actions or inactions of defendant

Higgins.

In this case the Department of

Corrections had promulgated rules which

comported with due process standards.

In the absence of evidence to the

odin

contrary, defendant Higgins could

properly assume that these rules would

be followed. No evidence was presented

to establish that Higgins knew or should

have known that the established

departmental procedure was not being

Followed.

4. Neither Vinzant nor Higgins is

liable to plaintiff for actions

taken in regard to the

reclassification hearing since the

law was unclear at the time of the

incident.

While the issue of due process in a

prison disciplinary hearing was well

established by the date of this

incident, Palmigiano, supra 487 F.2d at

1283, n.7, the courts had not directly

addressed this issue in he context of a

reclassification hearing by this time

and were seemingly then in agreement

al7e

that “a state prisoner has no

constitutional right to remain in any

particular prison." Gray, supra 465

P.2d at 187. To be sure, the court in

Gomes, supra 353 F.Supp. at 467 held

that minimal requirements of due process

must be provided before a prisoner could

be transferred to a prison out of state;

however, the court did not suggest that

minimal due process requirements must be

met before a prisoner could be

transferred to another prison within the

state. Even assuming Gomes could be

interpreted as requiring that a prisoner

receive minimal due process before being

transferred intrastate, the law in this

area at the time of this incident was

still unclear. See, Gray, supra 465

P.2d at 187. For this reason I conclude

that the law at the time of this

incident had not sufficiently

crystalized to justify a finding of

liability on this issue.

5. In view of my findings of

fact and recommendations of law with

respect to the disciplinary and

reclassification hearings, I

conclude that it is unnecessary to

comment upon the issue of the

alleged deprivation of counsel.

6. Defendant Vinzant is liable

to the plaintiff for compensatory

damages in the amount of $390.00.

Claims for money damages against

officials in their individual capacity

are not barred by the eleventh

amendment. Ex Parte Young; 209 U.S. 123

(1908); Scheuer v. Rhodes, 416 U.S. 232

(1974). Once an official has been found

liable, as defendant Vinzant has in this

case, the court may assess damages

against him.

The damages available in civil

rights actions include nominal damages

or compensatory damages and/or punitive

damages. The fifteen days which

Plaintiff spent in isolation as the

result of an unconstitutional hearing

establishes actual damages; therefore,

nominal damages are inappropriate.

Where actual damages are shown,

compensatory damages should be awarded.

As the court stated in Magnett v.

Pelletier, 488 F.2d 33, 35 (lst Cir.

1973),

"If a compensable injury has been

shown, compensatory damages must be

given; if not, nominal damages

should not be used to compensate

plaintiff in any substantial manner,

Since he has shown no right to such

compensation."

In awarding compensatory damages in the

prison context, the court may consider

any loss of wages, Landman v. Royster,

354 F.Supp. 1302, 1318 (E.D. Va. 1973),

as well as pain and suffering resulting

from the violation. Vargas v. Corea,

416 P.Supp. 266, 272 (D.C. N.Y. 1976).

The evidence indicates that

plaintiff's salary at the time of the

incident was $1.00 per day. Pindings of

Pact, No. 18. As a result of the

fifteen days spent in isolation,

Plaintiff suffered a wage loss of $15.00.

Being placed in isolation from the

relatively less restricted life on

Concord's farm resulted in a serious

deprivation of plaintiff's liberty

This deprivation amounts to compensable

pain and suffering. United States Ex

Rel. Neal v. Wolfe, 346 F.Supp. at 576.

The determination of damages under these

circumstances is at best difficult.

$25.00 per day has been recognized as a

reasonable award in cases in which

prisoners have been unfairly placed in

@2i<

isolation from a prison setting.

Landman v. Royster, 354 F.Supp. 1302,

1318 (E.D. Va. 1973); United States Ex

Rel. Neal v. Wolfe, 346 F.Supp. at 576.

In the absence of other criteria for

establishing a just amount, I recommend

an additional award of $375.00 for pain

and suffering resulting from plaintiff's

being unlawfully placed in isolation.

Pinally, punitive damages must be

considered. In order for punitive

damages to be awarded, an official's

conduct must be “an outrageous invasion

of plaintiff's privacy without color of

right for an improper motive," Caperci

Vv. Huntoon, 397 F.2d 799, 801 (lst Cir.

1968) or a malicious act in gross

disregard of the plaintiff's rights.

Magnett, supra 360 F.Supp. at 907.

While defendant's failure to ensure

that plaintiff received the clearly

-22-<-

established constitutional and

regulatory rights to which he was

entitled amounts, in my judgment, to a

reckless disregard of the plaintiff's

rights, I cannot conclude on this record

that defendant's conduct was so |

egregious as to warrant the imposition

of punitive damages. Por this does not

appear to be a case where the defendant

acted “out of malicious bad faith",

Perez v. Rodriguez Bou, 77-1101 and

1102, Slip Op., p. 7 (lst Cir. May 5,

1978). Nor is this a case, apparently,

in which the violation repeatedly

occurred.

Por these reasons I conclude that an

award of punitive damages would be

inappropriate in this case.

CONCLUSION

Por all of the above reasons, I

recommend that the court find the

defendant Vinzant liable to the

plaintiff for damages in the amount of

$390.00 and that the court find that the

plaintiff has failed to present

sufficient evidence upon which to find

defendant Higgins liable.

UNITED STATES MAGISTRATE

-24-

‘ APPENDIX G

United States Court of Appeals

For the First Circuit

No. 74-1049

ARNIE KING,

PLAINTIFF, APPELLEE,

JOSEPH HIGGINS, et al,

DEFENDANTS, APPELLANTS.

APPEAL FROM THE UNITED STATES DISTRICT COURT

POR THE DISTRICT OP MASSACHUSETTS

Before Corrix, Chief Judge,

McEntge and Campnexu, Circuit Judges

Dennis J. LaCroix, Deputy Assistant Attorney General, with whom

Robert H. Quinn, Attorney General, and John J. Irwin, Jr., Assistant

Attorney General, Chief, Criminal Division, were on brief, for.

appellants.

Edward Berkin, with whom Geraldine S. Hines was on brief, for

appellee.

April 24, 1974

Pern Centum. This appeal challenges the district court

decision ruling invalid the classification hearing provided

appellee, an inmate of Massachusetts Correctional Institu-

tion at Concord.* The decision helow was a dual one, the

first part of the decision dealing with the claim that

insufficient procedures were afforded in a disciplinary

hearing at which the appellce was found to have committed

? The appellants also challenge the denial of suimary judgment by

the district court in 2 damage claim based on the same facts. As this

matter has been referred to 2 magistrate and factual findings have

not yet been made, it is not a final determination and is not appealable,

28 U.S.C. § 4291. This part of the appeal is dismissed.

2 KING UV. HIGGINS

infractions warranting imposition of a fifteen day period

of isolation. The procedures in that hearing were found

inadequate as a matter of law. The appellants do not

attack that ruling. The second prong of the decision dealt

with the challenge to the action of the classification board

at a hearing held one day after the invalid disciplinary

hearing. The board based reclassification, at least in part,

on the disciplinary findings; the district court ruled that

this procedure was also defective.

We are urged by appellee to affirm the decision below on

broad constitutional grounds. We decline the invitation,

noting that new regulations governing classification hear-

ings are being developed. It is sufficient ground for relief

in this case that the concededly invalid disciplinary hear-

ing, held on the previous day, was to some uncertain extent

taken into account in appellee’s reclassification. We think

that both fairness and common sense require a new classifi-

cation hearing.

On this narrow basis the order of the district court is

affirmed.

Adm. Office, U. 8. Courts — Blanchard Presa, Inc., Boston, Mass.

APPENDIX H

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

ARNOLD L. KING, CIVIL ACTION

Plaintiff No. 73-2227-T

Vv.

JOSEPH HIGGINS and

DOUGLAS VINZANT,

Defendants

OPINION

January 30, 1974

This is a civil rights action (42

U.S.C. §1983, 1985) for injunctive,

declaratory and monetary relief in which

plaintiff, an inmate in M.C.I. Concord

at the time in question, alleges

deprivation of his rights to due process

of law and effective assistance of

counsel. Defendants are the then acting

Commissioner of Corrections and

Superintendent of M.C.I. Concord.

Pursuant to an Order of Reference,

the matter was heard by the magistrate,

who made findings of fact and

recommended dismissal of the complaint.

Por the reasons outlined below, the

court is unable to approve the

magistrate's recommendation.

All parties have stipulated that

"the case should be considered fully

submitted and therefore ripe for a

decision on the merits."

The magistrate made the following

findings of fact, which stand

uncontested by the parties.

Plaintiff is twenty years old.

Pollowing a judgment of conviction for

murder in the first degree, he was

sentenced on June 21, 1972 to M.C.I.

Walpole to serve a life sentence.

Plaintiff is not eligible for parole.

He remained at Walpole until December

21, 1972 when he was transferred to

M.C.I. Concord.

Prior to the incident giving rise to

this complaint, disciplinary action was

taken against plaintiff on several

occasions at both Walpole and Concord,

all on the basis of alleged disobedience.

At Concord, plaintiff was active in

several rehabilitative projects, such as

the tutor and teaching aid programs. He

worked in the library where he was given

a great deal of responsibility, and was

a member and treasurer of the Inmate

Council.

On June 14, 1973 plaintiff was

transferred to the Farm Section of

M.C.I. Concord, in which the inmates are

housed in a dormitory-like facility some

distance from the main institution. On

July 2, 1973 plaintiff was late

reporting to work on the Farm, and a

dispute developed between plaintiff and

the officer in charge of the work

detail. The officer in his report

Claimed that plaintiff walked off the

field without permission and refused to

return to work, and that he spoke to

other inmates who also walked off the

field. Plaintiff asserts that he merely

sought a drink of water.

Plaintiff and the other inmates were

immediately taken to the main

institution and confined in “Awaiting

Action cells. Plaintiff remained in the

cell from 11:45 a.m. to 4:30 p.m. when

he was taken before a disciplinary board

consisting of two deputy superintendents

and a social worker. A hearing was held

in which plaintiff was charged with

refusing to work, refusing a direct

order, and inciting a riot. The report

of the officer was read to plaintiff,

and the board asked for his version of

the incident. Plaintiff denied the

charges and claimed that all he wanted

was a drink of water. After a

discussion, the board decided that

Plaintiff was lying, and ordered him to

sarve fifteen days in isolation.

No member of this board advised

plaintiff that he could seek the advice

of counsel, confront the complaining

officer, or present witnesses in his own

behalf. Plaintiff made no requests to do

so.

Following the hearing plaintiff was

advised of his right to appeal and was

provided with an appeal form which he

completed. The form was forwarded to

the Superintendent, who denied the

appeal.

The other seven inmates involved

appeared before the disciplinary board

and were similarly ordered to isolation.

The following day Robert Sarafian,

Director of Treatment at Concord, was

asked to hold a reclassification hearing

on plaintiff and four other inmates.

Chosen to sit on the board with Sarafian

were James Veves, Assistant Deputy

Superintendent, Robert Craig and Jerard

Gagnon, both Correction Officers, and

one unidentified member. Sarafian was

the only member of the board not aware

of the farm incident of the previous day.

Plaintiff was not given written

notice prior to the hearing. Nor was he

advised one way or the other with

respect to any right to counsel he might

have. He was informed, however, of his

right to present testimony and evidence

in his own behalf. Plaintiff was also

asked to comment on evidence which the

reclassification board had before it.

After the hearing, the board decided

to recommend that plaintiff be

transferred to M.C.I. Walpole. He was

advised of this recommendation and of

his right to appeal to the

Superintendent or the Commissioner of

Corrections. Plaintiff did not exercise

his right of appeal.

The reason given by the

reclassification board for recommending

the transfer was the fact that plaintiff

had been involved in frequent

disciplinary infractions. while not so

specifying in their reclassification

hearing report, the members of the board

testified before the magistrate that it

was their belief that plaintiff was not

suitable for Concord because its

programs are designed for inmates who

are placedthere for only a short time.

The average inmate at Concord is serving

an indeterminate sentence, and the

average parole eligibility is from six

to eighteen months. As pointed out

above, plaintiff is not eligible for

parole. Of the 401 inmates at Concord,

ten or eleven are serving life

sentences, two or three for first degree

murder. All of the other inmates

serving life sentences have been

incarcerated at other institutuions and

have served many years prior to being

transferred to Concord.

The transfer of plaintiff was

approved by the Commissioner on July 25,

1973 and he was removed to M.C.I.

Walpole, where he is presently tonfined.

Plaintiff argues that the procedure

of the disciplinary board, resulting in

his isolation, and the procedure of the

reclassification board, resulting in his

transfer, were constitutionally

deficient under the Due Process Clause

of the Fourteenth Amendment. Plaintiff

also contends that he was deprived of

his Sixth Amendment right to counsel

while confined in isolation.2/ For

the reasons outlined below, the court

agrees with his first contention.

It is now settled in this Circuit

that some due process is required before

an inmate can be sentenced to

segregation. Palmigiano v. Baxter, 487

F.2d 1280 (lst Cir. 1973). Palmigiano

was decided after the incident giving

rise to plaintiff's complaint, and after

the magistrate's recommendation. The

Court of Appeals stated in its opinion

that it would give only prospective

enforcement of the "novel" requirements

of use immunity and right to

l/ This contention, the basis of

plaintiff's original action, was not

dealt with by the magistrate.

counsel.2/ The standards violated in

the instant case, however, are far from

novel. On the contrary, plaintiff was

deprived of rudimentary elements of

fundamental fairness long recognized by

the courts and, in fact, the

Massachusetts correctional

2/ “We therefore conclude that

appellant was denied due process in the

disciplinary hearing only insofar as he

was not provided with use immunity for

statements he might have made within the

disciplinary hearing, and because he was

denied access to retained counsel within

the hearing. Since, however, this

solution is novel, the appellee cannot

in fairness be subject to a sanction

which would ordinarily accompany the

violation of preexisting law, Jones v.

Rundle, 358 F.Supp. 939 (B.D. Pa. 1973);

cf. Great Northern Railway Co. v.

Sunburst Oil and Refining Co., 287 U.S.

358 (1932). It follows a2 appellant's

claim for money damages must be denied.

However, appellant's in-prison record

will be expunged of all findings and

decisions pertaining to the alleged

infraction and the disciplinary board

hearing. We will apply this rule in the

future only to those cases where a

disciplinary hearing occurs subsequent

to the date of this opinion."

Palmigiano, 487 F.2d at 1292.

olGu

authorities.’ It is unnecessary,

therefore, to rely on Palmigiano in

resolving the issues presented in the

instant case.

The conclusion in Palmigiano that:

a minimal level of due process must

be achieved in reaching any decision

concerning a particular inmate which

may result in a marked change in the

status of the inmate's confinement,

with he result that he has come to

rely.

Palmigiano, 487 F.2d at 1284, was a

reaffirmation of the position of the

Court of Appeals in 1970, when it held

that: |

[w]hile all the procedural

safeguards provided citizens charged

with a crime obviously cannot and

need not be provided to prison

inmates charged with violation of a

prison disciplinary rule, some

assurances of elemental fairness are

essential when substantial

individual interests are at stake.

Nolan v. Scafati, 430 F.2d 548, 550 (lst

Cir. 1970).

3/ See disucussion of departmental

regualtions below.

The decision to order plaintiff from

the minumal security of the prison

farm’ to segregation, with the

attendant possibility of

reclassification and future

re-punishment ,>’ is clearly one that

markedly changed his status of

confinement and constituted a grievous

loss. Plaintiff was entitled,

therefore, to due process safeguards.

Many courts have so held prior to the

recent decision in Palmigiano v. Baxter,

Supra. See McDonnell v. Wolff, 483 P.2d

1059 (8th Cir. 1973), cert.

granted, _—s_s «UWS (ty 94 S2CH. 913,

39 L.Ed. 108 (1974); Sostre v. McGinnis,

4/ Douglas Vinzant, Superintendent of

M.C.I. Concord at the time in question,

described the farm as a type of

work-release program. See Transcript of

Hearing before Magistrate, I, 86-87.

+ See Gomes v. Travisono, 490 F.2d

209, 12 (lst Cir. 1973).

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

denied sub. nom. Sostre v. Oswald, 404

U.S. 1049; Collins v. Hancock, 354 F.

Supp. 1253 (D.N.H. 1973); Sands v.

Wainwright, 357 F. Supp. 1062 (M.D. Fla.

1973); United States ex rel. Neal v.

Wolfe, 346 F. Supp. 569 (E.D. Pa. 1972);

Meola v. Fitzpatrick, 322 F. Supp. 878

(D. Mass. 1971) Urbano v. McCorkle, 334

F. Supp. 161 (D.N.J. 1971), affm'd 481

F.2d 1400; Landman v. Royster, 333 F.

Supp. 621 (E.D. Va. 1971); Sinclair v.

Henderson, 331 F. Supp. 1123 (E.D. La.

1971); Clutchette vy. Procunier, 328 F.

Supp. 767 (N.D. Cal. 1971); Bundy v.

Cannon, 328 F. Supp. 165 (D. Md. 1971).