absurdly arbitrary or cruel, probably rest in the discretion of prison authorities. This is similar to Morrissey where the Court was careful that the courts not interfere with the decision as to what violations justify revocation of parole -- that was a discretionary decision better left in most circumstances to prison authorities. The notice and hearing was required only to assure that the facts upon which such a discretionary decision was based were found fairly and reliably.
Many other federal courts have had occasion recently to consider the effect of a prisoner's transfer to tighter controls or closer supervision. The court in Walker v. Hughes, 375 F. Supp. 708 (E.D. Mich. 1974) (appeal pending), considered the transfer of inmates from Milan, Michigan, a "medium security institution for young offenders" having a "wide range of rehabilitative programs" to the maximum security institution for long-term adults at Terre Haute, Indiana. Id. at 709-11. The court found that the prisoner often is forced to undergo a period of segregation,
a loss of freedom of movement, a change from confinement with prisoners of similar age to confinement with older prisoners, and an adverse effect on his parole opportunities. Id. at 713. Further, these deprivations also affect the inmate's rehabilitation program. Id. Numerous other federal courts have described the substantial effects that transfers have on the conditions of an inmate's confinement: period of segregation, Gomes v. Travisono, 353 F. Supp. 457, 462 (D.R.I.), aff'd in part, rev'd in part, 490 F.2d 1209 (1st Cir. 1973); Newkirk v. Butler, 364 F. Supp. 497 (S.D.N.Y. 1973); Hoitt v. Vitek, 361 F. Supp. 1238, 1246 (D.N.H. 1973); Croom v. Manson, 367 F. Supp. 586 (D. Conn. 1973) (slip at 7); Ault v. Holmes, 369 F. Supp. 288 (W.D. Ky. 1973) (slip at 2); Stone v. Egeler, 377 F. Supp. 115 (W.D. Mich. 1973); restriction of accessibility of family for visits, Capitan v. Cupp, 356 F. Supp. 302 (D. Ore. 1972); Gomes v. Travisono, supra at 462; Newkirk v. Butler, supra at 500; Hoitt v. Vitek, supra at 1248; Croom v. Manson, supra at 7; Stone v. Egeler, supra at 4; disruption of rehabilitation, Gomes v. Travisono, supra at 462; White v. Gillman, 360 F. Supp. 64 (S.D. Iowa 1973); Hoitt v. Vitek, supra at 1248-49; Croom v. Manson, supra at 6; difficulty in access to counsel and to the courts, Gomes v. Travisono, supra at 462; Hoitt v. Vitek, supra at 1248-49; Croom v. Manson, supra at 7; adverse effect on parole date and parole opportunities, Gomes v. Travisono, supra at 463; Hoitt v. Vitek, supra at 1249; Croom v. Manson, supra at 8; Stone v. Egeler, supra ; adjustment to different inmate population, White v. Gillman, supra at 65; Hoitt v. Vitek, supra at 1249; harsher discipline, White v. Gillman, supra ; more limited library and recreational facilities, Newkirk v. Butler, supra at 500; increased mail censorship and more limited access to literature, Hoitt v. Vitek, supra at 1249; and less psychological and medical treatment facilities, Hoitt v. Vitek, supra at 1249. These courts, considering the substantial effect that these transfers have on a prisoner's confinement, have held that prior to transfer the inmate must be afforded substantial procedural safeguards including notice and hearing. See Walker v. Huges, supra at 715-17; Captain v. Cupp, supra ; Gomes v. Travisono, supra at 466-68; White v. Gillman, supra ; Newkirk v. Butler, supra; Hoit v. Vitek, supra at 1251-53; Croom v. Manson, supra at 9-13; Kessler v. Cupp, 372 F. Supp. 76 (D. Ore. 1973) (slip at 2); Stone v. Egeler, supra.
In the instant case the facts not in dispute show that named plaintiffs were transferred to more secure custody, each time because defendants believed it was important to increase the number and degree of controls on the inmate's life. Such changes clearly may affect adversely, inter alia, an inmate's opportunity for parole, and his access to particular rehabilitative facilities and his continuity in particular rehabilitative programs, restrict his freedom of movement, vary the inmate population with which he associates, and cause him to be placed in solitary confinement for a period of time. Under the reasoning set forth in Wolff v. McDonnell, Clonce v. Richardson and the cases cited earlier, the court holds that transfers such as these in question from a less secure to a more secure institution constitute a major change in the conditions of confinement and thus due process safeguards must be provided. The court agrees further with Clonce and holds that at a minimum, an inmate is entitled to the type of notice and hearing required by the Supreme Court in Wolff v. McDonnell.
The court is not persuaded by defendants' claims that the requirements of notice and hearing will unduly burden internal prison administration. The Supreme Court carefully balanced the competing interests in Wolff v. McDonnell and held that some but not all due process safeguards are constitutionally required before the inmate is subjected to a major change in the conditions of confinement. The prison system has no interest in transferring a prisoner unless the factual reasons for such a transfer are reliably found. The notice and hearing requirements set forth in Wolff require little more than would be expected in order to reliably find those facts.
In the area of inmate discipline the Federal Bureau of Prisons grants procedural safeguards which approximate in many respects those required in Wolff. See Bureau of Prisons Policy Statement 7400.5B. If such safeguards can be granted in the area of inmate discipline, then certainly they also can be granted prior to transfer, especially where transfer is made for disciplinary reasons.
Plaintiffs, in their proposed Order which accompanies their motion for partial summary judgment, ask the court to order "[that] the records maintained by Defendants of each of the Plaintiffs be expunged of all alleged acts of misconduct by Plaintiffs which resulted in the transfers of Plaintiffs. . . ." The Court in Wolff dealt at length with the question of retroactivity.
The question of retroactivity of new procedural rules affecting inquiries into infractions of prison discipline is effectively foreclosed by this Court's ruling in Morrissey that the due process requirements there announced were to be "applicable to future revocations of parole," . . . . Despite the fact that procedures are related to the integrity of the fact finding process, in the context of disciplinary proceedings, where less is generally at stake for an individual than at a criminal trial, great weight should be given to the significant impact a retroactivity ruling would have on the administration of all prisons in the country, and the reliance prison officials placed, in good faith, on prior law not requiring such procedures. 94 S. Ct. at 2983.
Accordingly, the Wolff Court reversed that part of the Court of Appeals' ruling that had ordered expungement of prison records containing determinations of misconduct that had not been in accord with required procedures. Similarly in this case, while hereafter the Bureau of Prisons must afford procedural safeguards before certain prisoner transfers, this court declines to order past records expunged.
Standards Governing Prisoner Transfers
Plaintiffs also ask this court to order the Federal Bureau of Prisons to promulgate written standards to govern transfers of prisoners. Plaintiffs recognize that prison authorities need considerable flexibility in performing their duties but assert that such discretionary decisions must be within standards and principles articulated in as much detail as possible. See Memorandum of Law in Support of Plaintiffs' Motion for Partial Summary Judgment at 23-25. Defendants reply that Bureau of Prisons Policy Statement 7300.13C provides adequate guidelines for prisoner transfers. Defendants also cite at length dictum from the Supreme Court's recent decision in Procunier v. Martinez, 416 U.S. 396, 94 S. Ct. 1800, 1807, 40 L. Ed. 2d 224 (1974), to the effect that:
Prison administrators are responsible for maintaining internal order and discipline, for securing their institutions against unauthorized access or escape, and for rehabilitating, to the extent that human nature and inadequate resources allow, the inmates placed in their custody. . . . Most [of these decisions] require expertise, comprehensive planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. . . . [Courts] are ill-equipped to deal with the increasingly urgent problems of prison administration and reform.
The court agrees completely with this statement and has no desire to dictate what standards should be set governing prisoner transfers.
Bureau of Prisons Policy Statement 7300.13C in its "Reasons for Transfer," set forth verbatim earlier in this opinion, and Bureau of Prisons Policy Statement 7400.5B do enunciate some standards for prisoner transfer. The question now presented however, is whether, given the court's holding that procedural safeguards in the form of notice and hearing must be afforded prior to transfer, an inmate also should know more specifically the reasons for which he may be transferred.
The named plaintiffs in this action apparently have been transferred for "Adjustment Purposes," meaning the inmate is moved "primarily for the purpose of providing closer supervision and controls and is related to poor institutional adjustment," or for "Closer Custody," meaning primarily because of the danger of escape. See Bureau of Prisons Policy Statement 7300.13C, at 8. While Bureau of Prisons Policy Statement 7300.13C does not explain further these categories, the court notes that Bureau of Prisons Policy Statement 7400.5B concerning inmate discipline offers relevant amplification. In that statement the Bureau at considerable length sets forth an inmate's rights and responsibilities, the acts prohibited by the institution, and the possible sanctions for violation. See Bureau of Prisons Policy Statement 7400.5B, at 3-6. One sanction is transfer. Id. at 2. The policy statement provides that all inmates be informed in writing of these rights and responsibilities, prohibited acts, and possible sanctions. Id. The policy statement does not state precisely when transfer will be the recommended sanction but states that the "disciplinary action taken [on recommendation of the Adjustment Committee] will be individualized in keeping with such factors as the offender's past history, institutional adjustment, motivation, and attitude." Id. at 6. The court in Newkirk v. Butler, supra, stated:
Prisoners are entitled to know what the rules are, what actions will be met with sanctions. They are entitled to know the general range of sanctions that may be imposed for given offenses. 364 F. Supp. at 503 (footnote omitted).
The court believes that the guidelines and standards set forth in the two policy statements, when coupled with Wolff -type procedural safeguards which hereafter will apply, are sufficient to give notice of rules and sanctions to the inmates and to assure that no arbitrary administrative action will occur. The Supreme Court often has recognized that the courts have a very restricted role in reviewing the standards and guidelines established by prison administrators. See, e.g., Procunier v. Martinez, supra at 1807; Morrissey v. Brewer, supra at 479-80.
Accordingly, the court declines to order the Bureau to enunciate new standards governing prisoner transfer.
The court concludes that plaintiffs are entitled to summary judgment on the issue of whether an inmate is entitled to procedural due process before being transferred to a more secure institution for alleged misconduct. The court concludes, however, that plaintiffs are not entitled to summary judgment on the issue of whether defendants must promulgate new standards regarding prisoner transfers. While defendants have not moved for summary judgment on this issue, there is no dispute as to any material fact. Had defendants made an appropriate motion they would be entitled to summary judgment. Under the circumstances, such a motion is not necessary. Local 453, International Union of Electrical, Radio & Machine Workers v. Otis Elevator Co., 314 F.2d 25 (2d Cir. 1963). See 6 J. Moore, Federal Practice para. 56.12, at 2241-43 (2d ed. 1974). An appropriate judgment accompanies this Memorandum Opinion.
UNITED STATES DISTRICT JUDGE
This matter came before the court on plaintiffs' motion for partial summary judgment and defendants' opposition thereto. This motion concerned the First Claim in plaintiffs' complaint and presented two issues:
(1) Whether the Federal Bureau of Prisons must promulgate new standards governing transfers of prisoners between federal institutions; and
(2) Whether the Federal Bureau of Prisons, before transferring inmates to more secure institutions because of disciplinary infractions, must afford the inmates an opportunity to contest the factual predicate for the transfer. The court having considered the pleadings, motions, and memoranda submitted by the parties, and having found that there is no genuine issue as to any material fact, and having concluded that defendants are entitled to judgment as a matter of law as to the first issue and that plaintiffs are entitled to judgment as a matter of law on the second issue, and for the reasons stated in the Memorandum Opinion filed in this case, it is this 16th day of October, 1974,
ORDERED that plaintiffs' motion for partial summary judgment concerning issue (1) above, be, and the same hereby is, denied; and it is further
ORDERED and ADJUDGED, that as to issue (1) above, judgment be entered for defendants; and it is further
ORDERED that plaintiffs' motion for partial summary judgment concerning issue (2) above, be, and the same hereby is, granted; and it is further
ORDERED and ADJUDGED and DECLARED that before a federal prisoner is transferred for disciplinary reasons to a more secure institution, he be granted, at a minimum, the procedural safeguards enunciated in Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974), namely:
(1) written notice of the charges that form the basis for the proposed transfer must be provided at least 24 hours before the inmate is due to appear before the disciplinary committee;
(2) a written statement by the factfinders as to the evidence relied upon and the reasons for the disciplinary action must be provided;
(3) unless unduly hazardous to institutional safety or correctional goals the inmate must be allowed to call witnesses and present documentary evidence in his defense;
(4) where an illiterate inmate is involved or where the complexity of the issue makes it unlikely that the inmate will be able to collect and present the evidence necessary for an adequate comprehension of the case, he may seek the aid of a fellow inmate or staff member; and it is further
ORDERED and ADJUDGED and DECLARED that as to issue (2) above, judgment be entered for plaintiffs.
UNITED STATES DISTRICT JUDGE