(D.C. Civil Action No. 71-331) APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
Before: McLAUGHLIN, ROSENN, and HUNTER, Circuit Judges.
This appeal by six prisoners in a federal penitentiary presents for the first time to this court the question of the extent of the procedural hearing rights to which prisoners are constitutionally entitled when they are disciplined. Although we have held prisoners are entitled in certain circumstances to a hearing before being disciplined,*fn1 we have not previously been called upon to determine the extent of due process which must be accorded in that hearing. In the case sub judice, Judge Muir of the United States District Court for the Middle District of Pennsylvania held that the prisoners had been accorded all rights constitutionally required. We agree and affirm.
Plaintiff-appellants were incarcerated in the Allenwood Prison Camp, a minimal security installation near the Federal Penitentiary at Lewisburg, Pennsylvania, in July 1971.*fn2 Plaintiff below, George Mische, confronted Correctional Officer Theodore Sulouff on July 26, 1971, complaining that the Officer had inspected the contents of Mische's personal locker in his absence. Mische suspected Sulouff of conspiring against him with a prison informer, because of Mische's political beliefs, in an attempt to frame him for possession of contraband. Sulouff wrote a Report of Misconduct on Mische, charging him with insolence toward a prison officer.
Following filing of the report and an investigation of the incident, the Camp Adjustment Committee*fn3 decided to invoke a prior suspended sentence of punitive segregation against Mische. On the afternoon of July 29, he was prepared for transportation to the Lewisburg Federal Penitentiary where he was to serve the segregation sentence. His removal had to be postponed until the next day when a crowd of unruly prisoners gathered and blocked the truck which was to transport him, an incident characterized by the district court as a near-mutiny.
On July 30, nineteen Allenwood inmates were transported to Lewisburg because they had been identified as participants in the incident. Each was placed in segregated status, pending disciplinary hearings. On August 1 each transferee was read the charges of misconduct against him. Written charges were not presented, but paper and pencil were made available.
The Lewisburg Adjustment Committee met to consider the charges on August 2. On the committee were Lewisburg Associate Warden William Rauch, and the prison's chief classification and parole officer, the chief medical officer, and the chief correctional supervisor. A standard procedure was employed in each inmate's case. The charge was read to him. The accused was then given an opportunity to speak in his own behalf. The prison official who made the charge may or may not have been present, but he was not asked to testify or subject himself to cross-examination. The accused was not given any Miranda warnings nor assistance of counsel; neither was he allowed to call witnesses, nor was he informed of his right to appeal to the prison warden.
The Adjustment Committee hearings resulted in assessment of the following penalties against appellants: Prince K. Monyea was sentenced to an unspecified term in segregation, which in fact lasted two months, and resulted in almost a nine month postponement of his tentative release date. Ken Staple spent a week in segregation before being transferred to another federal prison, thus postponing his release date approximately 75 days. John Braxton, Carl Craig and Kevin McLean spent two months, five days and about thirty-five days, respectively, in segregation; and John Hilker was sent to Lewisburg Farm. All plaintiffs had misconduct reports placed in their files. These reports are considered by the United States Parole Board.
The variances among penalties reflected not only varying conduct for which the prisoners were punished, but also the Committee's review of each accused's prison record and consideration of comments on his general behavior from prison officials.*fn4
The district court denied the prisoners' claims for injunctive and declaratory relief after holding a factual hearing at which the inmates and prison officials testified. The court assumed arguendo that the prisoners had suffered "grievous losses" as a result of their punishments and thus were entitled to due process hearings on the basis of Goldberg v. Kelly, 397 U.S. 254, 25 L. Ed. 2d 287, 90 S. Ct. 1011 (1969). It held, however, that all due process guarantees required in the prison disciplinary system had been granted as appellants had: (a) received adequate notice of the charges, (b) been informed of the substance of the evidence against them, (c) been given an opportunity to respond to the charges, and (d) been adjudged by an impartial tribunal which made a reasonable investigation into the charges.
The district court found the prisoners had failed to sustain the burden of proof to demonstrate that (a) they had been adjudged by a partial tribunal, (b) their adjudications had been based on irrelevant evidence, or (c) they were unaware of their right to appeal to the prison warden.*fn4A The court rejected the prisoners' claims to be entitled to (a) written notice of the charges, (b) representation by counsel or a lay substitute, (c) confrontation by and cross-examination of their accusers, (d) presentation of witnesses on their own behalf, and (e) written notice of the disciplinary committee's determination.
On this appeal, the prisoners dispute the district court's finding of an impartial tribunal which considered only relevant evidence and its conclusion that they were not constitutionally entitled to written notice, representation by counsel, confrontation and cross-examination of adverse witnesses, presentation of favorable witnesses, an accurate written record of the proceedings, and a written report of the committee's findings and conclusions. Appellants also seek reversal of the district court determination that immunity against future use of his testimony by a prisoner need not be given in prison disciplinary hearings.
The threshold question in this appeal is whether appellants had a constitutional right to hearings before they were disciplined. In Gray v. Creamer, 465 F.2d 179, 185 (3d Cir. 1972), we stated:
[We] do hold that the transfer of a prisoner from the general prison population to solitary confinement without either notice of the charges or a hearing does not, absent unusual circumstances..., meet minimal due process requirements.
In dicta explicating the Gray holding, we said further in United States ex rel. Tyrrell v. Speaker, 471 F.2d 1197, 1203 (3d Cir. 1973), that a transfer to punitive segregation must "be based, after hearing, on 'facts rationally determined.'" Although we dealt solely with claims of state prisoners in Gray and Tyrrell we see no ...