Opinion
No. 75-2843.
October 29, 1976.
Ulysee Franklin, pro se.
William J. Sheppard (Court-appointed), Jacksonville, Fla., for plaintiff-appellant.
Raymond W. Gearey, Asst. Atty. Gen., Civil Div., Robert L. Shevin, Atty. Gen., Donna H. Stinson, Asst. Atty. Gen., Tallahassee, Fla., for defendants-appellees.
Appeal from the United States District Court for the Middle District of Florida.
Before BROWN, Chief Judge, and TUTTLE and GEE, Circuit Judges.
Petitioner, Ulysee Franklin, appeals the dismissal of his pro se 42 U.S.C.A. § 1983 complaint alleging Fourteenth and Eighth Amendment violations. The complaint sought declaratory, injunctive and monetary relief against prison officials for transfer from minimum-medium security to maximum security without notice and hearing. It also alleged that the maximum security confinement was served under inhumane conditions. The District Court, in granting summary judgment, expressly without reaching the distinguishable Eighth Amendment claim, held that there was no material factual issue present and that the transfer was a result of a classification change by prison officials. We affirm in part and remand in part for further proceedings.
Franklin's pro se complaint alleges that on June 5, 1974 he was transferred from a minimum security classification in the Florida State Prison to a maximum security lockup in the same prison. He alleges that prison officials effectuated the transfer without providing him the benefit of notice and hearing. An allegation of an Eighth Amendment violation is made in that Franklin claimed he was subjected to cruel and unusual punishment due to the conditions of maximum security.
Prison officials moved for summary judgment and in support thereof submitted an affidavit of K.R. Snover, classification supervisor. The affidavit explained the transfer as being necessary because Franklin was a management problem. Franklin submitted a controverting affidavit stating that the transfer was for punitive reasons and that he never committed any of the violations set forth in Snover's affidavit. This affidavit also attempted to specify the conditions he thought were inhumane while confined in maximum security. The Trial Judge, finding the transfer to be a result of classification change and that no material factual issue was present, dismissed the complaint on summary judgment.
The pertinent parts of Snover's affidavit says that:
"On April 23, 1974, while inmate Franklin was housed at the "O" Unit of Florida State Prison he was assigned to the job of Inmate Truck Driver. In June of 1974, inmate Franklin requested a transfer to the Lawtey Vocational Center, however, the same was denied. When advised that his request for transfer was denied inmate Franklin became very belligerent. He was excused from the office until such time as he had calmed down. Within the same week inmate Franklin took the "O" Unit transportation bus and drove to the residence of the then Assistant Superintendent, L.C. McAllister, to discuss his transfer request that had been denied by Classification. This action by inmate Franklin resulted in his transfer back to the Main Unit at Florida State Prison and subsequent placement on Close Management June 20, 1974."
Franklin described the conditions of the maximum security confinement as follows:
"4. Defendant Bingham summarily transferred me from minimum security to maximum punitive segregation R-Wing. This wing was used to warehouse inmates who were under psychiatric care, death row inmates and inmates on punitive segregation. While on R-Wing I was constantly subjected to physical harm and I underwent great mental pain because many of the inmates under psychiatric care constantly threw urine, excrement, glass, water, fire, other harmful objects and they hardly ever stopped screaming and hollering."
Injunctive And Declaratory Relief
Franklin does not appeal the dismissal of his claim for injunctive and declaratory relief. Before the case was heard by the District Court, he was transferred from maximum security at Florida State Prison to a less restrictive form of confinement at Cross City Correctional Institution. The Supreme Court's decision in Preiser v. Newkirk, 422 U.S. 395, 95 S.Ct. 2330, 45 L.Ed.2d 272 (1975) held suits against prison officials seeking injunctive and declaratory relief for being transferred without notice or hearing were moot where the prisoner was returned to less restrictive confinement prior to the District Court's ruling.
Damages
A fair reading of Preiser v. New kirk, supra, would suggest that class actions or suits for damages under 42 U.S.C.A § 1983 for deficient transfers would not be rendered moot by a return to less restrictive confinement prior to a ruling of the District Court. Thus a claim for damages protects Franklin from the tentacle of Preiser. But that does not help him.
Franklin claims that the dismissal by summary judgment of his Fourteenth Amendment claim was improvidently granted. The affidavits of Snover and Franklin are in direct opposition. Franklin's position is that the Court had sufficient facts before it that would raise "the slightest doubt" as to the reason for the transfer. In seeking damages for the alleged violation he asserts that an inmate may collect compensatory damages for a wrongful transfer. Supporting his claim of a wrongful transfer, due to the absence of notice or hearing, Franklin relies on Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).
The acts complained of here pre-date the Wolff decision. The Supreme Court specifically held that retroactivity would not be applied to Wolff. That was reaffirmed in Cox v. Cook, 420 U.S. 734, 95 S.Ct. 1237, 43 L.Ed.2d 587 (1975) where the Court held that the rule announced in Wolff v. McDonnell would not support a prisoner's claim for damages for alleged due process violations in placing him in solitary confinement. 420 U.S. at 736-37, 95 S.Ct. 1237. The acts in Cox pre-dated Wolff and thus the petitioner could not reap the benefits of the decision.
But Wolff, Cox and retroactivity to one side, the recent case of Montanye v. Haymes, ___ U.S. ___, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976) and its companion case Meachum v. Fano, ___ U.S. ___, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976) put an end to the claim on its merits. The Supreme Court held:
[T]hat no Due Process Clause liberty interest of a duly convicted prison inmate is infringed when he is transferred from one prison to another within the State, whether with or without a hearing, absent some right or justifiable expectation rooted in state law that he will not be transferred except for misbehavior or upon the occurrence of other specified events.
___ U.S. at ___, 96 S.Ct. 2543. On the basis of these cases we hold that the District Court was correct in dismissing this aspect of his claim.
The State of Florida has committed to prison administrators the responsibility of classifying, assigning and transferring prisoners. Pursuant to regulations, promulgated under statutory authority, "transfers are subject to grievance procedures." The grievance procedure, as outlined in the regulations, provides the "inmate with a channel for the administrative settlement of [a] legitimate grievance."
The grievance procedure is not structured along the lines of conditions which the prison authorities have to meet before the transfer can be made. It merely affords the inmate a means of gaining review of an administrative determination. As we understand it, the transfer can be immediately executed but the inmate has a right to invoke the grievance procedure.
The Florida Statute does not condition reclassification and transfer on a specific finding of misconduct. The regulations promulgated under the statute, likewise, do not limit transfers to any set of conditions or any finding of misbehavior. On the contrary, the only thing the transfer is conditioned on by the most recent regulations is that it is subject to the grievance procedure. But the grievance procedure itself is not structured to be a condition precedent to action by the administrators.
It is our view that Montanye v. Haymes, supra and Meachum v. Fano, supra mandate that we hold arrangements like this not to be within the reach of the procedural protections of the Due Process Clause.
Cruel And Unusual Punishment
With respect to his Eighth Amendment Claim, as to the unconstitutional conditions of confinement after the valid transfer to maximum security, we are satisfied that the complaint was adequate to withstand summary judgment at this time and on this skimpy record. Likewise, his affidavit set forth facts specific enough to show that there was a genuine issue of fact. F.R.Civ.P. 56(e). However, the record before us does not indicate that the District Court reached this independent claim. We therefore vacate so much of the judgment on this limited score for remand to the District Court for further proceedings on this circumscribed Eighth Amendment claim. Obviously, we intimate no predictions on the merits or even as to how far he can get. See Tyler v. Peel Corp., 5 Cir., 1967, 371 F.2d 788. We do not reach the question of personal liability or immunity as to any of the defendants.
AFFIRMED IN PART and VACATED AND REMANDED IN PART.
* * * * * *
"The reason for his placement in Close Management was that he was in an unauthorized area, used a state vehicle for an unauthorized purpose, and as he had been warned previously about his unauthorized use of a state vehicle. He was considered to be a management problem."
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Franklin described the conditions of the maximum security confinement as follows:
"4. Defendant Bingham summarily transferred me from minimum security to maximum punitive segregation R-Wing. This wing was used to warehouse inmates who were under psychiatric care, death row inmates and inmates on punitive segregation. While on R-Wing I was constantly subjected to physical harm and I underwent great mental pain because many of the inmates under psychiatric care constantly threw urine, excrement, glass, water, fire, other harmful objects and they hardly ever stopped screaming and hollering."