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October 16, 1974

EDWARD H. ROBBINS, et al., Plaintiffs,
RICHARD KLEINDIENST, et al., Defendants

Flannery, D. J.

The opinion of the court was delivered by: FLANNERY

This matter is before the court on plaintiffs' motion for certification as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure and District Court Rule 1-13(b). Defendants oppose the motion, alleging that the requirements of Rule 23(a) and (b) have not been satisfied.

 The complaint is filed on behalf of all federal prisoners "who have been or are subject to arbitrary and punitive transfers from one federal penal institution to another." Complaint at 2. "Plaintiffs also sue to require defendant policy-makers to promulgate specific rules and policies that will adequately protect plaintiffs' rights and to require them to supervise and control the implementation of these policies by their agents in the Federal prison system." Motion for Certification as a Class Action Pursuant to Rule 23(c)(1) Federal Rules of Civil Procedures and Local Rule 1-13, at 1. The Complaint sets forth four claims for injunctive and declaratory relief. The first claim alleges, in summary, that any transfer, for whatever reason, violates due process of law under the fifth and sixth amendments when accomplished without adequate written standards to control such transfers and when accomplished without notice, hearing, and other procedural safeguards. Complaint at 14. The second claim asserts that defendants violate plaintiffs' constitutional rights by transferring plaintiffs for engaging in constitutionally protected activities, including pursuing litigation, voicing criticism of prison conditions, and expressing political beliefs. Id. The third claim asserts that under present procedures the transfers and denial of rights flowing therefrom constitute cruel and unusual punishment in violation of the eighth amendment. Id. at 15. The fourth claim alleges that the Bureau of Prisons violates the equal protection guarantee of the fifth amendment in providing a hearing to prisoners for internal disciplinary proceedings but not providing a hearing to those prisoners who are transferred for disciplinary reasons. Id. at 15-16.

 The court concludes for reasons stated hereafter that the first claim may be maintained as a class action pursuant to rule 23(b) (2). The court postpones consideration of class certification on the second, third and fourth claims until after consideration of plaintiffs' motion for partial summary judgment. See Fed. R. Civ. P. 23(c) (4) (A); Dist. Ct. R. 1-13(b).

 For a case to proceed as a class action all the requirements of Rule 23(a) must be met as well as one of the subsections of Rule 23(b). All parties agree that the proposed class of 23,000 federal prisoners is sufficiently numerous that joinder is impracticable. See Fed. R. Civ.P. 23(a) (1). The parties disagree, however on the remaining requirements of Rule 23.

 As to the first claim, the court feels that there are questions of law or fact common to the class. Here the claim is almost completely a question of law -- what minimal due process requirements, if any, are required before a prisoner is transferred for reasons of alleged misconduct from one federal penal institution to a more secure one. In certifying the class of federal prisoners in Abbott v. Richardson, Civil Action No. 1047-73, a case involving mail censorship by prison officials, Judge Bryant of this court stated that "the extent of constitutional protection afforded by the first amendment to prisoners' communications form the heart of this suit." Memorandum and Order, filed June 24, 1974. Similarly, in the instant case the extent of protection offered prisoners under the due process clause of the fifth amendment forms the heart of the present claim. Further, it appears from the record that the claims of the representative parties, all of whom were transferred without notice or hearing and all but one of whom were transferred to stricter confinement with consequent restriction of privileges, are representative of the claims of the rest of the class. Even though certain named representatives no longer are incarcerated, they still may represent the class. See Workman v. Mitchell, 502 F.2d 1201 (9th Cir. 1974) (slip at 7-8). Finally, there is no showing that plaintiffs' claims might be in any way antagonistic to those of the members of the class on this first claim. See Inmates of Attica Correctional Facility v. Rockefeller, 453 F.2d 12, 24 (2d Cir. 1971); Phillips v. Klassen, 502 F.2d 362 (D.C. Cir. 1974) (slip at 7). It seems clear that all inmates have an interest in being free from arbitrary, punitive and unjust transfers.

 On the first claim the requirements of Rule 23(b) (2) also have been satisfied. That rule is applicable when

the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.

 Plaintiffs charge that defendants "have not promulgated specific policies and regulations which would adequately protect the rights of plaintiffs to freedom from arbitrary and punitive transfers. Moreover plaintiffs allege that defendants Carlson and Kleindienst have not adequately supervised their agents in the implementation of existing policies and regulations." Plaintiffs' Memorandum of Points and Authorities in Support of their Motion for Certification as a Class Action, at 4. This constitutes an allegation of a refusal to act and acting on grounds generally applicable to the entire class and hence Rule 23(b) (2) is satisfied. Finally, to the extent that certification of a class action under one of the provisions of Rule 23(b) is discretionary with the court, this court concludes that as regards this first claim, the class action procedure provides the most efficient and expeditious means of dealing with this threshold question of what, if any, due process is required as regards transfer of prisoners to more secure institutions.

 Accordingly, it is this 16th day of October, 1974,

 ORDERED that as to plaintiffs' first claim, plaintiffs' motion for certification pursuant to Federal Rules of Civil Procedure 23(a) and (b) (2) be and the same hereby is granted; and it is further

 ORDERED that the class as to the first claim shall consist of all persons who as federal prisoners, have been, or in the future may be, subjected to transfers by defendants to more secure institutions because of alleged misconduct; and it is further

 ORDERED that as to plaintiffs' second, third and fourth claims, plaintiffs' motion for certification pursuant to Federal Rules of Civil Procedure 23(a) and (b) (1), (2), and (3) be and the same hereby are denied without prejudice.



 The court has before it plaintiffs' motion for partial summary judgment and defendants' opposition thereto. Plaintiffs, a class of federal prisoners who have been, or in the future may be, transferred to more secure federal penal institutions because of alleged misconduct, complaints that the Federal Bureau of Prisons' transfer policy violates their rights to due process of law. More specifically plaintiffs make the following allegations:

The failure of defendants to promulgate written standards which adequately govern transfers between federal institutions and the failure of defendants to afford plaintiffs, and their class members, an opportunity, at a hearing before an impartial tribunal, to present reasons why a transfer is inappropriate including an opportunity to present evidence, present witnesses, cross-examine accusers, and to be represented by counsel, or counsel substitute, deny plaintiffs life, liberty and property without due process of law in violation of the Fifth and Sixth Amendments to the United States Constitution. Complaint at 14.

 This allegation, when considered in the factual context of this case, presents two basic issues for the court's consideration: whether the Federal Bureau of Prisons must promulgate new standards regarding prisoner transfers and whether a prisoner being transferred to a more secure institution because of alleged misconduct must be accorded procedural due process before the transfer. *fn1"

 Facts Not In Issue

 It is without dispute that the named plaintiffs in this class action have been transferred from prison to prison and that with one exception the transfer has been to a more secure facility. It appears further from defendants' answers to interrogatories that in each case the named plaintiffs were transferred for close custody or adjustment reasons. See Bureau of Prisons Policy Statement 7300.13C, at 8. For example, plaintiff Robbins was transferred according to Bureau of Prison records because of active involvement with radical groups that were causing disruption in normal prison routine, emotional problems, a previous nearly successful escape, and four instances of violation of institutional conduct regulations from which the Warden concluded that Robbins was a security risk. Accordingly, prison authorities decided that Robbins needed "closer controls," and thus he was transferred to a more secure facility. See Defendants' Answers to Plaintiffs' First Interrogatories, filed December 10, 1973. Similarly, on one occasion plaintiff Johnson was transferred to a more secure facility because of attempted transfer of contraband, insolence toward a staff member, leaving his assigned work area without approval, and a disturbance in one of the cell houses. Id. Plaintiff Louie violated 12 institutional regulations and was transferred because his conduct showed that he needed "closer supervision and control." Id. Accordingly, the court agrees with the following part of plaintiffs' statement of material facts which are not in dispute:

Defendants have transferred Plaintiffs several times from prison to prison. Each transfer, with the exception of Plaintiff Burke's transfer from a prison to a half-way house as part of Mr. Burke's release from custody, was to a more secure prison. In each case, Defendants believed that the transfer was an appropriate method for increasing the number and degree of controls on the transferee's life. Defendants believed that Plaintiffs required the additional controls because Plaintiffs were alleged to have engaged in misconduct within the institution. Statement Pursuant to Local Rule 1-9(g) of Material Facts Which Are Not In Dispute, filed Feb. 25, 1974 (citations to record omitted).

 It appears further that in each case, in accord with Federal Bureau of Prison policy or practice, the prisoner was not given notice of the proposed transfer, an opportunity to contest it, or reasons for it.

 Federal Bureau of Prison Transfer Policy

 The Federal Bureau of Prisons' transfer policy is set forth in Bureau of Prison Policy Statement 7300.13C, issued October 15, 1973. Under this statement the Director has delegated transfer authority to the Chief Executive Officer of each federal facility. Although the Policy Statement emphasizes that most transfers should be made at the time of an inmate's initial classification, it also recognizes that subsequent transfers may be necessary "[when] it is apparent that the welfare of the offender will be best served, or the continuity of his training and treatment program maintained, or because the resources of the institution are not adequate to meet the problems presented by him. . . ." Bureau of Prisons Policy Statement 7300.13C, at 2. When a post-classification transfer is deemed necessary, "a special progress report bringing the entire case up to date . . . should be prepared." Id. at 7. When a transfer is finally decided upon, the reason for the transfer is appended to the transfer order. Those reasons are as follows:

Institution Classification. (This reason is most appropriate for transfers made at initial classification, and will usually involve transfer to an institution of a different type.)
Nearer Release. (This reason will be used when transfer is made to an institution nearer the offender's release destination, either at time of ...

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