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April 8, 1981

William O'CALLAGHAN, Plaintiff,
R. O. ANDERSON, et al., Defendants

The opinion of the court was delivered by: NEALON



 This litigation concerns the scope of a federal prisoner's right to procedural due process. William O'Callaghan, a former inmate at Allenwood Federal Penitentiary, initiated this suit for injunctive and monetary relief. Subject matter jurisdiction presumably rests on 28 U.S.C. § 1331 and the Due Process Clause of the Fifth Amendment. Davis v. Passman, 442 U.S. 228, 245-48, 99 S. Ct. 2264, 2276-78, 60 L. Ed. 2d 846 (1979). The plaintiff claims that the defendants flouted his procedural rights by the manner in which they found him guilty of a disciplinary infraction. The Government has moved to dismiss the complaint for failure to state a claim upon which relief can be granted or, in the alternative, for summary judgment.

 In January 1980, O'Callaghan received an institutional "incident report" accusing him of transgressing a prison regulation. Specifically, he was accused of "being unsanitary, failing to keep (his) quarters in accordance with posted standards." *fn1" The matter was referred to a Unit Disciplinary Committee ("UDC") for consideration. The UDC held a hearing which did not contain the full umbrella of procedural rights recognized in Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974). O'Callaghan was permitted to make a statement and to present evidence in his possession. In line with applicable regulations, however, the UDC did not allow the inmate to call witnesses on his behalf. *fn2" The plaintiff was found guilty.

 According to 28 C.F.R. § 541.13, a UDC has two options once it decides that an inmate has committed an institutional infraction. In the event that the violation is "minor," the panel may impose appropriate sanctions. If, conversely, the transgression is serious and, therefore, potentially implicates a greater degree of punishment, the UDC must refer the matter to an Institutional Disciplinary Committee ("IDC") for a further hearing replete with the Wolff procedural protections. 28 C.F.R. § 541.14. In the instant case, the UDC followed the former course of action. O'Callaghan's quarters were removed from "preferred housing" to the "hallway." *fn3"

 The complainant presently contends that the UDC violated his due process rights by not affording him greater procedural protections. O'Callaghan particularly attacks the decision of the panel to refrain from taking testimony and to deny him the right to call or cross-examine witnesses. He claims that this procedure rendered the proceeding a sham. Assessment of this proposition requires an examination of procedural due process. *fn4"


 One other item must be addressed before the court reaches their merits of the litigation. On August 7, 1980, the plaintiff contacted the court and explained the defendants were harassing him by interfering with his mail and delaying his transfer to a Community Treatment Center ("CTC"). *fn5" The court ordered the Government to respond to these allegations.

 The defendants have submitted several letters which demonstrate that O'Callaghan was in fact transferred to a CTC in Camden, New Jersey, soon after his protest. These documents, moreover, demonstrate that the Government never intended to delay the move. See the attachments to Document 19 of the Record. The complainant has not attempted to contradict the defendants' version of the facts. Furthermore, the court has learned through the Allenwood Record Office that the plaintiff was paroled in December 1980. In light of these developments, it can be concluded that O'Callaghan was not prevented from presenting his case because of any improprieties on the part of the Government. Furthermore, the complaint will be dismissed as moot to the extent that it seeks injunctive relief. Weinstein v. Bradford, 423 U.S. 147, 148-49, 96 S. Ct. 347, 348, 46 L. Ed. 2d 350 (1975).


 Procedural due process analysis must occur in two steps. Initially, the trier of fact has to determine if the challenging litigant has a sufficient "liberty" or "property" interest at stake to trigger the protection of either the Fifth or Fourteenth Amendment. If the answer to this inquiry is affirmative, it is then necessary to decide the type of hearing that is required to afford that interest adequate protection. Morrissey v. Brewer, 408 U.S. 471, 481-90, 92 S. Ct. 2593, 2600-04, 33 L. Ed. 2d 484 (1972). In order to prevail, O'Callaghan must demonstrate that: (1) he has an adequate liberty interest to give rise to due process protection and (2) the nature of the interest is such that he deserves the procedural safeguards demanded. Under the facts of this suit, he fails on both counts.

 The existence of a "liberty interest" is itself a bifurcated question. First, the plaintiff must demonstrate that a binding provision of state or federal law sufficiently limits official discretion to give him a "legitimate expectation" that a particular deprivation will not occur in the absence of a particular factual situation. Moody v. Daggett, 429 U.S. 78, 88 n.9, 97 S. Ct. 274, 279 n.9, 50 L. Ed. 2d 236 (1976); Montanye v. Haymes, 427 U.S. 236, 242, 96 S. Ct. 2543, 2547, 49 L. Ed. 2d 466 (1976); Meachum v. Fano, 427 U.S. 215, 223-29, 96 S. Ct. 2532, 2537-40, 49 L. Ed. 2d 451 (1976). It is safe to assume that this requirement is satisfied in the instant case. According to 28 C.F.R. § 541.13, a UDC may not impose sanctions unless the finding is "supported by substantial evidence" and preceded by specific procedures. Such a regulation can give rise to a "legitimate expectation" necessary to trigger the Due Process Clause. Bryant v. Carlson, 489 F. Supp. 1075, 1080-82 (M.D.Pa.1979). This court, moreover, has held that the latter constitutional provision may grant inmates the right to expect some type of hearing before a conscious infliction of punishment by the authorities, even in the absence of an independent legal "entitlement." Christy v. Hammel, 87 F.R.D. 381, 388-90 (M.D.Pa.1980).

 The second essential ingredient to a "liberty interest" concerns O'Callaghan's actual stake in the litigation. In his concurrence and dissent to Wolff v. McDonnell, 418 U.S. at 594, 94 S. Ct. at 2993, Justice Douglas stated, "Of course, a hearing need not be held before a prisoner is subjected to some minor deprivation, such as an evening's loss of television privileges." This is a sound observation. The Supreme Court has often admonished the federal judiciary to refrain from intervention into the day-to-day affairs of prison administration when such action is not necessary to safeguard constitutional rights. Bell v. Wolfish, 441 U.S. 520, 546-48, 99 S. Ct. 1861, 1877-79, 60 L. Ed. 2d 447 (1979); Jones v. North Carolina Prisoners' Union, 433 U.S. 119, 126, 97 S. Ct. 2532, 2538, 53 L. Ed. 2d 629 (1977); Meachum v. Fano, 427 U.S. at 228-29, 96 S. Ct. at 2540. If courts plunged into every minor regulatory transgression, they would be forced to interfere with penal authorities in many types of situations totally divorced from the interests that the Due Process Clause was designed to protect. After construing the various authorities concerning prisoners' rights, this court has held that relief is inappropriate unless the plaintiff is confronted with a substantial deprivation or "grievous loss." Bryant v. Carlson, 489 F. Supp. at 1087-88. See also Steadham v. Petrovsky, Civil No. 80-0050, slip op. at 5 n.5 (M.D.Pa., March 31, 1981); Christy v. Hammel, 87 F.R.D. at 389 n.16; Conklin v. Fenton, Civil No. 78-0508 slip op. at 12-15 (M.D.Pa., September 28, 1971). The punishment suffered by O'Callaghan, i. e., a change in sleeping quarters, can hardly be considered serious. Indeed, his situation closely parallels Justice Douglas's hypothetical inmate denied an evening's television privileges. Due process simply does not attach. *fn6"

 Even more importantly, the plaintiff's claim would fail even if he had identified a tangible "liberty interest" shielded by the Fifth Amendment. Procedural due process is clearly a pliant concept; the minimum safeguards necessary in a particular situation expand and contract as required to protect the particular interest at issue. This proposition is very true in the prison context. In Wolff v. McDonnell, for example, the Supreme Court set forth a clear set of procedural rights that must accrue to prisoners before they are denied good time credits. 418 U.S. at 563-80 & n.19, 94 S. Ct. at 2978-2986 & n.19. These same procedures have been respectively found appropriate when prisoners are subjected to pre-release parole revocation or "keeplock" for one week. Christopher v. United States Board of Parole, 589 F.2d 924, 929-32 (7th Cir. 1978); McKinnon v. Patterson, 568 F.2d 930, 935-40 (2d Cir. 1977), cert. denied, 434 U.S. 1087, 98 S. Ct. 1282, 55 L. Ed. 2d 792 (1978). *fn7" The Court of Appeals for the Sixth Circuit, moreover, actually increased the notice requirements established by Wolff when Tennessee authorities placed an inmate who had not committed a specific infraction in ...

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