Robert Daigle v. Hall

REHEARING

On the motlon of the defendants the court Permitted a rehearing of the above matter to receive additional testimony, As a result of this hearing, held on December 27, 1974, I make the following additional findings and rulings,

[12] The Department of Correction has established a comprehensive disciplinary system described in Commissioner’s Bulletin 72-1, “Disciplinary Policy,” *661which has been in effect since June 5, 1972. It provides for summary disposition of “minor offenses,” with a right of an appeal to a disciplinary board, and a full hearing before a disciplinary board on “major offenses.” This bulletin calls for the promulgation of more detailed regulations for each institution by the Superintendent thereof, and on January 29, 1974, the Superintendent of MCI, Walpole, issued Institution Order 4310.1, “Disciplinary Procedures and Unit Operation.” These two governing documents, taken together, fully comply with and, in some respects, exceed the requirements of Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 706 (1974).

Commissioner’s Bulletin 72-1 provides, however, in paragraph VII D, that no formal disciplinary procedures will be held where the offense is also a felony which has been referred to the District Attorney for investigation and' prosecution in court. See also Institution Order 4310.1, Section 9.

One of the sanctions available to the disciplinary board at MCI, Walpole, as punishment for a major offense is confinement to the Isolation Unit, located in Cell Block 9. M.G.L.A., Chapter 127, Section 41. Conditions of confinement on Cell Block 9 are substantially the same as on Cell Block 10, as previously described, except that inmates are not allowed to have any personal property other than minimal clothing, and are not ordinarily admitted to any educational or counselling program. The maximum period of confinement to isolation for each offense, however, is fifteen days.

Inmates on Cell Block 10 may have personal property (Daigle in fact has a television set) and have access to some educational and counselling programs, but their confinement in Cell Block 10 is for an indefinite period, subject to review every ninety days. Inmates are transferred to Cell Block 10 for reasons other than specific infractions of the rules and indeed some transfers are voluntary on the part of inmates who fear that their lives would be endangered in the general population of the institution. Transfers to Cell Block 10 are not ordinarily perceived by the prison administration as disciplinary.

When Cell Block 9 is full, however, inmates who are serving periods of “isolation” as punishments for specific violations are transferred to Cell Block 10.

Another sanction which is open to the disciplinary board is a “Recommendation to superintendent, (for ultimate decision by the Commissioner) of transfer to department segregation unit.” Institution Order 4310.1, Section 11.5(b)(3)iii. If such a recommendation is made a hearing is then held by a Departmental Classification Committee. Departmental Order 4400.1, The Departmental Classification Committee then, as in cases of classification- for purposes of security, treatment or administrative necessity, reviews the inmate’s entire history, but does not conduct evidentiary hearings as to the offenses of which the inmate stands accused in his institutional record.

Where guilt has been established by a disciplinary board, after a hearing conducted in accordance with current rules, the Departmental Classification Committee is justified in proceeding without a further hearing. Due process does not require more than one hearing.

The plaintiffs, however, did not get that one hearing. There alleged offenses had been referred to the District Attorney, and under paragraph VII D of Commissioner’s Bulletin 72-1 and section 9.2 of Institution Order 4310.1, no disciplinary hearing could be held.

The rule against invoking disciplinary procedures when the alleged offense has been referred to the District Attorney is, according to defendants’ counsel, based on an apprehension that the combination of judicial proceeding and institutional punishment would constitute double jeopardy, and might also interfere with the inmate’s privilege against self-incrimination. This apprehension appears to me to be groundless. The constitutional prohibition against *662double jeopardy applies only to judicial proceedings. United States v. Cordova, 414 F.2d 277 (5th Cir. 1969); United States v. Shapiro, 383 F.2d 680 (7th Cir. 1967); Johnson v. Anderson, 370 F. Supp. 1373, 1382 (D.Del.1974). In any case, the constitutional problem is certainly not solved by inflicting the punishment and depriving the inmate of due process as well. The privilege against self-incrimination is preserved by Institution Order 4310.1, Section 11.4 b) and paragraph IV A of Commissioner’s Bulletin 72-1. The privilege is personal to the inmate, and he may claim it, or waive it at his option.

The plaintiffs were entitled to a full hearing on the issue of guilt before one or another of these responsible bodies, either a disciplinary board or a classification committee, before they were committed to substantially more adverse conditions of confinement because of their alleged offenses.

It appears to me, that in the future, the required result could most easily be accomplished by rescinding the rules forbidding disciplinary board hearings in cases which have been referred to outside law enforcement authorities. It does not seem to me that these rules serve any useful purpose. It is up to the defendants, however, and not the court, to determine the specific means by which they will comply with the orders hereinafter entered.

Although the present disciplinary hearing rules in force at MCI, Walpole, exceed the requiremements of Wolff, they are the rules to be applied to whatever disciplinary hearings are held. It is axiomatic that one of the basic elements of due process is uniform treatment.

C. CONCLUSION

No specific finding under the Eighth Amendment is required as to these plaintiffs in view of my conclusions with respect to due process. It is clear that the transfer of the plaintiffs to Cell Block 10 was on account of specific past conduct, and in effect was a disciplinary transfer, however else it may be officially styled. It is equally clear that the minimum requirements of due process required by Wolff were not afforded them.

There does not appear to be any material issue of fact, nor any reason to hold further hearings before making a permanent order, at least as far as injunctive relief is concerned. Under the provisions of Fed.R.Civ.P. 65, the hearings on preliminary and permanent relief are hereby consolidated. The plaintiffs’ claim for damages has not been heard and must wait upon further proceedings. Accordingly, I hereby enter the following Order.

ORDER

It is ordered, adjudged and decreed that:

(1) The defendants are hereby enjoined from retaining the plaintiffs in detention in the Departmental Segregation Unit at MCI, Walpole, or from transferring them to such detention because of their specific prior conduct until they have been afforded a disciplinary hearing in accordance with Commissioner’s Bulletin 72-1 and Institution Order 4310.1.
(2) The defendants are enjoined from retaining the plaintiffs in or transferring them to the Departmental Segregation Unit for treatment unless a classification committee, after a hearing, has made specific findings based on evidence adduced at such hearing that there is a treatment program available in said Unit which is more appropriate for each plaintiff’s then condition than any treatment program available to the general population at MCI, Walpole.
(3) The defendant Hall shall within 60 days submit to the court for *663approval departmental regulations which will:
(a) clearly identify disciplinary proceedings in accordance with the foregoing Opinion;
(b) provide for hearings in accordance with Commissioner’s Bulletin 72-1 and substantially in accordance with Institution Order 4310.1 before an inmate is reclassified to substantially more adverse conditions of confinement because of alleged specific prior conduct, notwithstanding a referral to outside law enforcement authorities for investigation of such alleged prior conduct and possible prosecution of the inmate;
(e) provide for a procedure for the transfer of inmates to the Departmental Segregation Unit for purposes of treatment in accordance with paragraph (2) above; and
(d) provide for an institutional procedure which will prevent any disciplinary detention in the Departmental Segregation Unit, as defined in the foregoing Opinion, for unreasonably long periods, or under circumstances creating a risk of permanent mental or physical harm to an inmate, in violation of the Eighth Amendment to the Constitution of the United States.
(4) The case is to stand for further hearings on the plaintiffs’ claim for damages.

APPENDIX A

A Recommendation by Mr. Workman, D.C.C. Member, on the Case of Gerald Sousa W-938

September 27, 1974

Mr. Sousa was placed in D.S.U. status on 3-6-1974 due to the precipitating incident that occurred on 10-24-1973 (he refused to obey an officer and attempted to conceal bloodstained jacket and dungarees implicating him in the death by stabbing of an inmate earlier that day) and a history following imprisonment on 7-2-64 with a life sentence for first degree murder that has included the following: D.S.U. placement from 4-8-70 to 10-7-70 for behavior that had caused serious injury to two officers and involved assaults, drugs, and unwholesome relationships with other inmates; inciting a disturbance in a segregation unit on 6-14-71; and two incidents of Assaulting án Officer and Inciting a Disturbance on 11-20-1972 and 12-20-1972. He has been in Block 10 since 11-2-1973. It has seemed that when he is in population, he presents a threat to the safety of both other inmates and officers and potentially to the institution.

The D.C.C. noted certain areas of progress and positive involvement in its report of 3-6-1974 and recommended continued D.S.U. It recommended educational release to college courses in the MCI-W school and indicated willingness to consider transfer to MCI-N if he continued progress in his established activities. The recommendation regarding college courses was not pursued for reasons never made clear to the D.C.C. An event precipitating increased concern for security in Block 10 and a change of prison administration in June and July 1974 resulted in restrictions that sharply curtailed his work as a runner and he terminated it altogether. Counseling with the ease manager became intermittent for a short period when he wanted to be seen on the other side of a screen as other persons had recently initiated this practice with inmates in D.S.U.; visiting often interfered with counseling sessions in available rooms. Educational and personal relationships with volunteers continued.

He received a Disciplinary Report on 8-4-1974 for A&B on a Correction Officer and Direct Threats to an Officer. He is said to have struck with a broom handle two officers who were restraining a friend of his. Officers have re*664ported being verbally abused. In late August Mr. Sousa and two other inmates began a “hunger strike” of sorts in apparent protest against conditions in Block 10. He is the spokesman for the group. A list of concerns was presented much later and only when they were requested by the administration. Mr. Sousa has told selected individuals that he did not want all of the publicity that developed and that he did not support the N.P.R.A. sponsored one day hunger strike. Lawyers for Mr. Sousa have suggested he would probably not continue his hunger strike if he is released from Block 10 and that he would be embittered if retained in D.S.U.

Considering the indication that Mr. Sousa would discontinue the hunger strike on release from D.S.U., the strike appears more a tactic than a matter of principle. It would appear that he intends it to put pressure on the D.C.C. for his release. As spokesman he has assumed a leadership position whether by design or not. His assumption of leadership in the past has frequently resulted in, or been associated with, conflict and institutional disturbance. In this instance he seems privately to be trying to disassociate himself from matters attendant to the strike that may be viewed in a negative sense, even while he has made little or no effort to do the same publicly. He seems now to be right in the middle of the “jail house politics” as he has said he would not get involved in if transferred to MCI-N. He must have realized that this position was detrimental to his professed goal of transfer to MCI-N. This appears to be a repetition of past behavior in which he locks himself into a position of maintaining an image he ends up fighting to preserve to everyone’s seeming satisfaction but his own.

From a treatment and behavioral perspective it is hoped that he will be able to make better use of counseling and learn from this situation, not only how such negative and personally unfulfiljing positions are developed, but also how he has to find within himself the means to disengage himself from them. Without such a learning experience, it seems likely that he would only repeat past experience when released into the general population.

On the basis of his behavior in these past two months, that is, the impulsive and aggressive behavior for which he received the 8-4-1974 Disciplinary Report, and the negative, manipulative, and image-keeping behavior associated with the hunger strike, it appears that he has not yet reached a point of personal maturity that would allow him to make a successful adjustment to life in the general population of MCI-Walpole. It is recommended, therefore, that he remain in D.S.U. status for another 90 day period with the support of a continuing counseling program.