The opinion of the court was delivered by: FLANNERY
Plaintiffs are prisoners at Lorton Correctional Complex who challenge the authority of prison officials to order their transfer, without a fact-finding hearing, to federal penal and correctional institutions in other states for disciplinary reasons. During the progress of this litigation, the Supreme Court decided two cases having an important bearing on the validity of plaintiffs' claims. Meachum v. Fano, 427 U.S. 215, 96 S. Ct. 2532, 49 L. Ed. 2d 451 (1976); Montanye v. Haymes, 427 U.S. 236, 96 S. Ct. 2543, 49 L. Ed. 2d 466 (1976). Subsequent to those decisions, the federal and District of Columbia defendants moved to dismiss the complaint. Oral argument was held July 27, 1976, on defendants' motion to dismiss, but plaintiffs requested a second hearing so that they might more fully elucidate the factors which they allege distinguish their case from the recent Supreme Court decisions.
Meachum v. Fano was a case in which a state prisoner contended that his right to due process of law had been unconstitutionally abridged by his transfer to another state institution without an adequate hearing, despite the fact that state officials apparently had absolute discretion as to the location of individual prisoners within the state system. The district court
had found that notice and hearing were required by the case of Wolff v. McDonnell, 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974), where the Supreme Court had held due process to be violated by the deprivation, without notice and hearing, of good-time credits to which the complaining prisoner was entitled by statute. The decision of the district court in Meachum was affirmed by the court of appeals.
Reversing, the Supreme Court held that due process of law does not require that inmates receive notice and hearing prior to transfer, absent a justifiable expectation under state law that they would not be subject to transfer except in the event of misbehavior or some other specified occurrence.
Central to the decision of the Court in Meachum, and in its companion case Montanye,3 was the notion that the convicted criminal is deprived of any liberty interest which might allow him to challenge his transfer from one prison to another and that, in the absence of specific state law to the contrary, prison officials are vested with virtually absolute authority to determine the place of incarceration. The Court in Meachum said:
[Given] a valid conviction, the criminal defendant has been constitutionally deprived of his liberty to the extent that the State may confine him and subject him to the rules of its prison system so long as the conditions of confinement do not otherwise violate the Constitution. The Constitution does not require that the State have more than one prison for convicted felons; nor does it guarantee that the convicted prisoner will be placed in any particular prison . . . . Confinement in any of the State's institutions is within the normal limits or range of custody which the conviction has authorized the State to impose.
Plaintiffs contend that their case is factually and legally distinguishable from Meachum and Montanye, both of which involved complaints by state prisoners who were transferred intrastate. They have submitted a number of legal arguments not addressed by the Court in Meachum and Montanye in an effort to avoid the holdings of those cases. Primarily, plaintiffs argue that the failure of the Attorney General, who by statute holds custody of both District of Columbia and federal prisoners, to grant District of Columbia prisoners the same procedural rights which federal prisoners enjoy upon transfer from one prison to another is a violation of the equal protection clause. They further allege that they have been denied equal protection of the law by the practice of D.C. prison officials of granting notice and hearing prior to the imposition of certain punishments but not prior to transfer for disciplinary purposes. In addition to these equal protection claims,
plaintiffs insist that the actions of prison officials in this case infringe certain substantive rights which were not in issue in Meachum or Montanye and that their case should not, therefore, be controlled by the Supreme Court decisions. Specifically, plaintiffs contend that their transfer, without notice and hearing, significantly abridged their first and sixth amendment rights of association, of redress of grievances, and of access to the courts and to counsel. Furthermore, they argue that both the laws and regulations of the District of Columbia and the practice of D.C. officials give rise to the sort of "justifiable expectation" which the Supreme Court suggested might trigger due process protections.
Finally, plaintiffs contend that their interest in liberty has been harmed by the stigma of transfer, which will adversely affect future parole decisions, and that the circumstances of the transfer amount to cruel and unusual punishment in violation of the eighth amendment.
With respect to the first equal protection claim, plaintiffs rely on the fact that both D.C. Code offenders and federal offenders are committed to the custody of the Attorney General by statute, but the Attorney General, through the Bureau of Prisons, allows only inmates incarcerated in federal prisons to enjoy certain procedural rights prior to transfer to another prison.
Section 24-425 of the D.C. Code provides in pertinent part:
All prisoners convicted in the District of Columbia for any offense . . . shall be committed . . . to the custody of the Attorney General of the United States or his authorized representative, who shall designate the places of confinement where the sentences of all such persons shall be served. The Attorney General may designate any available, suitable, and appropriate institutions, whether maintained by the District of Columbia Government, the federal government, or otherwise, or whether within or without the District of Columbia. The Attorney General is also authorized to order the transfer of any such person from one institution to another if, in his judgment, it shall be for the well-being of the prisoner or relieve overcrowding or unhealthful conditions in the institution where such prisoner is confined, or for other reasons.
If this provision stood in isolation, there might arguably be a valid claim that the Attorney General had unequally treated prisoners who were similarly situated by giving federal inmates valuable procedural rights and denying those same rights to D.C. prisoners at Lorton. The notion that Lorton prisoners and prisoners in federal institutions are similarly situated is, however, denied by the terms of § 24-442 of the D.C. Code. That statute provides:
Said Department of Corrections . . . shall have charge of the management and regulation of the Workhouse at Occoquan in the State of Virginia, the Reformatory at Lorton in the State of Virginia, and the Washington Asylum and Jail, and be responsible for the safekeeping, care, protection, instruction, and discipline of all persons committed to such institutions. The District of Columbia shall have power to promulgate rules and regulations for the government of such institutions and the Department of Corrections with the approval of the Commissioner shall have the power to establish and conduct industries, farms, and other activities, to classify the inmates, and to provide for their proper treatment, care, rehabilitation, and reformation.
Section 24-442 clearly commits to the discretion of the District of Columbia Department of Corrections the operation of the Lorton facility. Though the Attorney General may have custody of Lorton prisoners in a narrow technical sense by virtue of statute, such prisoners are in fact governed by rules and regulations promulgated by the D.C. government until such time as they may be transferred to a federal prison under the aegis of the Bureau of Prisons. If D.C. prison officials choose to withhold from Lorton inmates procedural rights which the Supreme Court has clearly held to be a matter of discretion, those inmates are bound by that decision for as long as they remain at Lorton, and the Attorney General is under no duty to see that such procedural rights are afforded to them. District of Columbia prisoners are not to be equated with federal prisoners, nor are their rights necessarily the same. In any event, the procedural rights at issue in this case belong to federal prisoners by virtue of their incarceration in a federal facility governed by Bureau of Prison regulations. Once a D.C. Code offender is transferred to a federal prison, or if he is initially incarcerated in a federal prison, he, too, is entitled to the procedural safeguards which plaintiffs seek. The fact that any inmates, whether federal offenders or D.C. Code offenders, enjoy such rights prior to transfer is, after the Meachum and Montanye decisions, a result of a discretionary decision of prison officials. District of Columbia prison officials, who exercise control over the Lorton facility, are not required to offer those rights merely because their counterparts in the federal prison system do so. Plaintiffs' first equal protection argument must, therefore, be rejected.
The second equal protection argument offered by plaintiffs -- that equal protection is violated by the fact that Lorton prisoners are given certain procedural rights before receiving some punishments but not before being transferred for disciplinary purposes -- is barred by the Supreme Court's action in Montanye v. Haymes. In making this argument, plaintiffs rely exclusively on the district court's decision in Gomes v. Travisono, 353 F. Supp. 457 (D.R.I. 1973). Though it was not expressly mentioned by the Court in Montanye, this case was effectively overruled by the Court's decision. The prisoner in Montanye had apparently made the very argument which plaintiffs now make, and that argument was accepted by the Second Circuit, which grounded its decision in favor of the prisoner in both the due process and the equal protection clauses. United States v. Montanye, 505 F.2d 977, 981 (2d Cir. 1974), citing Gomes v. Travisono, 490 F.2d 1209, 1215 (1st Cir. 1973). Such reasoning was expressly rejected by the Supreme Court. 96 S. Ct. at 2547. It is clear from the Court's recent decisions in Montanye and Meachum that the decision to transfer an inmate, whether it be for administrative or for disciplinary reasons, is lodged entirely within the discretion of prison officials. As the Court said in Meachum :
That an inmate's conduct, in general or in specific instances, may often be a major factor in the decision of prison officials to transfer him is to be expected unless it be assumed that transfers are mindless events. A prisoner's past and anticipated future behavior will very likely be taken into account in selecting a prison in which he will be initially ...