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WELCH v. KELLY

March 10, 1995

BERNARD C. WELCH, Plaintiff,
v.
SHARON PRATT KELLY, et al., Defendants.



The opinion of the court was delivered by: JAMES ROBERTSON

 At the time he filed his "civil rights complaint" in this Court on October 25, 1994, plaintiff Welch was incarcerated at the United States Penitentiary in Marion, Illinois, serving a sentence imposed upon him by the Superior Court of the District of Columbia in 1981 for first degree murder. In his pleadings, filed pro se, Welch attempts to state claims against former Mayor Sharon Pratt Kelly, present Mayor Marion Barry, *fn1" and six current, former or retired officials of the D.C. Department of Corrections. His lengthy complaint recites the history of his incarceration since May 1981, when he was transferred by the D.C. Department of Corrections to the custody of the U.S. Bureau of Prisons, and of his efforts since the summer of 1992 to be returned to the custody of the D.C. Department of Corrections. The government moves to dismiss.

 Welch's first claim *fn2" invokes 42 U.S.C. § 1983 and asserts that his removal on May 22, 1981 from the D.C. Department of Corrections and transfer to the U.S. Bureau of Prisons without a hearing unconstitutionally interfered with liberty interests conferred upon him by D.C. Department of Corrections Order No. 4810.1A(6) (b) without due process of law.

 Welch's second claim is of racial discrimination and recites his belief based on prison rumors and conversations and correspondence with others that the D.C. Department of Corrections intended to return all prisoners incarcerated in the federal system to the District of Columbia by October 1992, but that, in fact, white prisoners were not transferred. He appears to assert further that the explanation for his non-transfer offered by the D.C. Department of Corrections -- namely, that he was a "protection case" whose "special needs" prevented transfer to the District of Columbia because of the D.C. Department of Corrections' "inability to meet his special needs" -- was a sham.

 Welch's third cause of action asserts violations of the Eighth Amendment in connection with the conditions of his confinement at USP Marion and makes detailed allegations of threats on his life, harassment in the cellblock, and assaults by inmates in the cellblock and the recreation yards, combined with alleged indifference or refusals to investigate on the part of prison officials. *fn3"

 Plaintiff's complaint was originally referred to a Magistrate Judge of this Court. On October 27, 1994, the Magistrate Judge ordered the appointment of pro bono counsel from the panel established by Local Rule 702.1. No such appointment has been made, and the court now withdraws the appointment order. The merits of the claims Welch presents, the complexity of the legal and factual issues involved here, and the degree to which the interests of justice would be served by appointment of counsel for Welch do not present such exceptional circumstances that denial of counsel would result in fundamental unfairness. See, e.g., Cookish v. Cunningham, 787 F.2d 1, 2-3 (1st Cir. 1986) (and cases cited therein); Martorano v. FBI, 1991 U.S. Dist. LEXIS 13680, 1991 WL 212521 (D.D.C. September 30, 1991). Locating a volunteer attorney to undertake representation of an inmate of USP Marion would tax the already scarce volunteer resources available to this Court in handling pro se cases.

 The motion to dismiss of defendants Kelly, Walter Ridley and Margaret Moore *fn4" recites the well-established law that a prisoner has no constitutional right to be housed in any particular prison and that the constitutional guarantees of due process themselves create no liberty interest in a prisoner remaining in the general prison population. Hewitt v. Helms, 459 U.S. 460, 466-68, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983). Defendants also correctly rely upon D.C. Code § 24-245 for the proposition that the Attorney General, to whose custody District of Columbia prisoners are committed by statute, is authorized to order the transfer of any prisoner from one institution to another "if, in [her] judgment, it shall be for the well-being of the prison or relieves overcrowding or unhealthful conditions in the institution where such prisoner is confined, or for other reasons."

 Defendants do not, however, address Welch's more specific claim that the "liberty interest" necessary to make his claim a constitutional one is established by D.C. Corrections Department Order No. 4810.1A(6) (b), or by the settlement of the class action case he cites in his complaint, or both. The factual context of this claim needs to be set forth in some detail:

 D.C. Department of Corrections Departmental Order (DO) 4810.1A establishes procedures for the transfer of sentenced offenders between institutions of the Department of Justice and Bureau of Prisons and the District of Columbia Department of Corrections. It was first issued on May 2, 1980, superseding an earlier Department order on the same subject. As amended on May 22, 1981, when Welch's sentence was imposed, the administrative procedures required by DO 4810.1A included the following:

 
Upon receipt of notification that a DCDC resident is to be transferred to a BOP institution it shall be the responsibility of the institution Administrator to ensure that the resident is afforded a hearing before a committee consisting of at least three institutional staff members and advised of the reason(s) for the transfer. During the hearing the resident shall be afforded the opportunity to indicate any objections, and rationale for the same, regarding the transfer.

 D.C. Department of Corrections Departmental Order 4810.1A(6) (b) (1981).

 Welch asserts that he never had a hearing. That assertion is accepted as true for purposes of this motion. Three months after Welch was sentenced and transferred to the federal prison system, the Department of Corrections amended P 6 (b), deleting the requirement of a hearing.

 Nevertheless, while the hearing requirement of DO 4810.1A was in force, it became the subject of a class action commenced in the Superior Court of the District of Columbia only days after Welch was sentenced. The plaintiff class consisted of

 
all inmates sentenced pursuant to the laws of the District of Columbia who were incarcerated in the District of Columbia Department of Corrections and who allege that they have been summarily and involuntarily transferred after April 30, 1976 and before August 17, 1981 from the D.C. Department of Corrections to institutions and facilities of the Federal ...

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