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April 29, 1974


The opinion of the court was delivered by: Foreman, District Judge:


This is an action for declaratory and injunctive relief and monetary damages, brought on behalf of a class of inmates at the United States Penitentiary, Marion, Illinois (hereinafter "Marion"), raising significant questions under the United States Constitution concerning inter alia cruel and unusual punishment, due process safeguards for men placed into punitive segregation, and the Constitutional rights of those inmates in segregation. The Court has jurisdiction of this action pursuant to 28 U.S.C. § 1331(a) and had previously certified this matter to be a class action.

The Plaintiff class, including the four-named plaintiffs, were inmates who had been placed in the segregation units at Marion on or about July 23, 1972.

Defendant, Norman A. Carlson, is Director of the Federal Bureau of Prisons, United States Department of Justice and, as such, has direct responsibility for and control over the policies and practices of the Federal Bureau of Prisons. Defendant, George W. Pickett, was Warden of Marion. Defendant Fenton was formerly an Associate Warden and Defendant Buzzard is the Chief Correctional Supervisor at that institution. The events leading to this litigation began with work stoppages and disturbances within the prison on July 17, 1972, and July 24, 1972, and a subsequent fire and general disturbance in the segregation unit on August 17 and 18, 1972. For a more complete description of the events which preceded this litigation, see this Court's earlier opinion at 352 F. Supp. 882.

The Court first heard this matter upon the Plaintiffs' motion for a temporary restraining order, for which a hearing was held and the motion was denied. Subsequently, a two-day hearing was held on November 2 and 3, 1972, upon Plaintiffs' motion for a preliminary injunction. This Court rendered its opinion on January 15, 1973, granting in part and denying in part the relief sought.

Plaintiffs appealed that decision to the United States Court of Appeals for the Seventh Circuit which on August 23, 1973, remanded the case for further proceedings. Adams v. Carlson, 488 F.2d 619 (7th Cir., 1973).

This Court issued a subsequent order on September 7, 1973, further interpreting the Due Process requirements enunciated by the Seventh Circuit and requiring that prison officials hold new hearings to conform with the newly announced standards for all members of the Plaintiff class still in the segregation units. The order also required the prison officials to remove the partition and phones from the present attorney-client visiting room or provide a new room without a partition for the Plaintiffs to confer with their attorneys. It also required that all legal material be returned to the members of the Plaintiff class.

Pursuant to the order of September 7, 1973, the prison officials held new hearings for the 49 Plaintiffs then remaining in segregation. These hearings which were held September 17-21, 1973, encompassed 112 alleged rule infractions. The 49 Plaintiffs were found to have committed all 112 rule infractions and all Plaintiffs were retained in segregation. At the new hearings, the Plaintiffs requested a total of 143 witnesses. Only one or two were actually called as witnesses before the Adjustment Committee. In addition, one member of the Committee did interview several other prospective witnesses. In requesting witnesses, each accused inmate submitted a brief statement of the expected testimony of his prospective witnesses. The usual practice of the Committee was to find that it was unnecessary to call the witnesses and to accept the summary of testimony as if it were a sworn statement. Prison employees did not testify at the hearings and inmates were not allowed to confront or cross-examine their accusors. Plaintiffs were given 24 to 36 hours notice of the charges against them prior to the time of the hearing. Plaintiffs were not represented by counsel at the hearings, although some Plaintiffs requested such representation. The attorneys for the Plaintiffs in this litigation wrote the Defendants and asked that they be permitted to represent members of the class without payment, but this request was denied.

There was a written memorandum report of each hearing. Notes were taken in longhand and later typed by one of the prison personnel. There were no verbatim records of the proceedings before the Adjustment Committee. The record of the proceedings for each Plaintiff consisted of a copy of the incident report, the decision memorandum, the investigator's report, and the inmate's list of requested witnesses. The hearing memorandum shows the manner, time and date on which these inmates were given notice of the charges which they would be required to answer. The reports also indicate the approximate time and date each Plaintiff appeared before the Committee.

The members of the Adjustment Committee were Associate Warden Johnson, in charge of Custody and Operations, Associate Warden Frey, and Lt. Shields. All Plaintiffs were given indefinite sentences for the offenses they were found to have committed.

Lt. Wilcott was the investigator for all 112 charges for the 49 rehearings, despite the fact that at the hearing there was unrebutted testimony that Wilcott had been involved in the August disturbances at H Unit, one of the two segregation units. Those disturbances formed the basis of some of the charges which he investigated.

The report of the investigator did leave much to be desired. For his report concerning one of the charges against Rafael Miranda, the investigator's sole notation under the comments and conclusion section was "as per the reporting officer Miranda must have been agitating or otherwise there would have been no reason to write a report." For one of the charges against Leon Bates, he wrote, in part, ". . . obviously a report would not have been written if the officer had not believed the incident would happen." For another report he concluded, "Since the inmate elected to discuss this report with the Committee it must at this time be concluded the report is true until proven false by him." Wilcott occasionally talked to prison employees, but does not appear to have contacted any of the witnesses requested by the inmates. His interview with prison officials appears to be little more than an affirmation of the incident report. There is no indication that the investigator asked any probing questions or sought any supporting facts. On several occasions, the investigator interviewed only the accused inmate and after listening to that inmate's denials, concluded that the inmate was guilty.

Each inmate who attended the new hearing was allowed to make a statement in his defense. There was no showing that any of the committee members had reported, investigated, or was in any other way involved in any of the charges against the inmates.

The Court held a hearing on the Plaintiffs' motion for a permanent injunction in Benton, Illinois, on November 26-29, 1973.

Subsequently, in orders dated December 6 and 13, 1973, this Court ordered that all members of the Plaintiff class still confined in the segregation units be released to the general population of the prison because their continued confinement constituted punishment disproportionate to the offenses charged during the rehearings and was, thus, in contravention of the Eighth Amendment's prohibition against cruel and unusual punishment. Adams v. Carlson, 368 F. Supp. 1050 (E.D.Ill., 1973).

This Court preliminarily enjoined the Defendants from rejecting for mailing certain letters written by the Plaintiffs generally depicting prison conditions and giving their opinions concerning how they felt they were being treated, merely because the Defendants did not deem the letters to be truthful. Neither party has offered any new evidence regarding this issue. Thus, the Court feels that the preliminary injunction should become permanent. Accordingly, it is ordered that the Defendants, their officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them who receive actual notice of this order, be and they are hereby permanently enjoined from rejecting for mailing, letters, not otherwise objectionable, by members of the Plaintiff class to family and friends, which contain the inmate's depiction of conditions and events in the prison, and his own thoughts about them, merely for the reason that the Defendants do not deem the letters to be truthful.

The Court also reaffirms its prior order that the attorneys of members of the Plaintiff class shall not be required to confer with their clients in a partitioned room.

The issues remaining for determination are as follows: (1) what shall constitute the appropriate class for this litigation and does this Court retain jurisdiction over those members of the Plaintiff class who have been transferred to other institutions beyond the jurisdiction of this Court; (2) whether the Defendants complied with the Due Process standards for in-prison disciplinary hearings enunciated by the Seventh Circuit in Miller v. Twomey, 479 F.2d 701 (7th Cir., 1973) and as supplemented by this Court in its September 7, 1973, order, and whether those standards should be further supplemented or clarified; (3) whether it is necessary to expunge the prison records for any members of the Plaintiff class; and (4) whether the Court should grant the request of the attorneys for the Plaintiffs for reasonable attorneys' fees and expenses.

Initially, the Court notes the well-established proposition that questions of internal prison discipline are not ordinarily matters for examination by federal courts, but it is well-established that judicial review is required when questions of constitutional deprivation are brought into issue. Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972); Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1972).


This Court had previously certified this litigation as a class action brought on behalf of those inmates placed in segregation at Marion as a result of the July, 1972, work stoppage. Plaintiffs now contend that those due process safeguards which are constitutionally mandated should be applied to all inmates presently confined in the H and I segregation units at Marion. Plaintiffs contend that if the Court defines the class, for the purpose of due process, to include all inmates who have been placed in punitive segregation without constitutional hearings, the Court could avoid the unnecessary burden of ruling on numerous individual pieces of litigation. Plaintiffs, in essence, seek to modify the class after the conclusion of all hearings in this matter. The Court feels that it would be inappropriate to change the class at this late date. There is no evidence regarding what due process safeguards were afforded inmates currently in segregation who are not currently members of the Plaintiff class. Thus, the Court feels that as to these inmates it could not make an informed determination concerning whether they had been afforded adequate due process safeguards and whether it would be necessary to expunge their records. Therefore, the Court feels that the appropriate class is that class which the Court previously authorized, i.e., those inmates placed in segregation pursuant to their alleged participation in the July, 1972, work stoppage.

Some of the Plaintiffs have been transferred from this judicial district to other penal institutions. Counsel for Plaintiffs assert that this Court retains jurisdiction over all members of the original Plaintiff class and that the order of this Court should apply to all its members. The Court agrees.

One of the Defendants in this case is Norman A. Carlson, Director of the Federal Bureau of Prisons, who has direct responsibility for and control over the policies and practices of the Federal Bureau of Prisons. This order is applicable to him and he has the power to carry it out in any federal institution on behalf of any prisoner under his jurisdiction. Clearly the Bureau of Prisons does not have the power to circumvent the orders of the Court of Appeals and of this Court by transferring some of these Plaintiffs to other federal institutions.

In Theriault v. Carlson, 353 F. Supp. 1061 (N.D.Ga. 1973), the court issued an order applicable not only to those outside the judicial district who were plaintiffs at the suit's inception, but also to all other federal prisoners who subsequently fit into the definition of the class. That court rejected the argument advanced by the Defendant Bureau of Prisons that the court did not have jurisdiction to issue and enforce an order against Defendant Norman Carlson which would affect Bureau of Prisons institutions outside its own judicial district.

    Clearly there can be no question that the court had
  jurisdiction to order defendants Carlson and Silver
  to direct prison authorities under their control to
  grant petitioners the right to freely exercise their
  religion. The court assumed jurisdiction of this

  action under 28 U.S.C. § 1361 and venue was
  provided by 28 U.S.C. § 1391(e)(4). The fact that
  defendants' subordinates resided in judicial
  districts located in other parts of the country did
  not obviate defendants' duty to comply with the
  court's order. There is nothing novel about a court
  order which directs an administrator to make certain
  changes in the organization under his control, and
  whose implementation ultimately affects subordinates
  who are beyond the geographical limits of the court's
  district. See Landman v. Royster, 333 F. Supp. 621
  (E.D.Va. 1971); Anderson v. Ellington, 300 F. Supp. 789
   (M.D.Tenn. 1969); Adderly v. Wainwright, 46
  F.R.D. 97 (M.D.Fla. 1968); Wilson v. Kelley,
  294 F. Supp. 1005 (N.D.Ga. 1968), aff'd 393 U.S. 266, 89
  S.Ct. 447, 21 L.Ed.2d 425; Lee v. Macon County Board
  of Education, 267 F. Supp. 458 (M.D.Ala. 1967), aff'd
  389 U.S. 215, 88 S.Ct. 415, 19 L.Ed.2d 422; United
  States v. State of Texas, 321 F. Supp. 1043 (E.D.Tex.
  1970), aff'd 447 F.2d 441 (5th Cir.); United States
  v. State of Georgia, 428 F.2d 377 (5th Cir. 1970);
  Peoples v. United States Department of Agriculture,
  138 U.S.App.D.C. 291, 427 F.2d 561 (1970). Id. at

The proper class for this litigation is the class of inmates who were placed in segregation after their alleged participation in the July, 1972, work stoppage, regardless of where they are now confined.


Plaintiffs claim that they did not receive hearings accompanied by the proper prophylactic procedures which the Constitution's due process clause mandates prior to their placement in punitive segregation. All the Plaintiffs have been released from the segregation imposed pursuant to the July, 1972, prison work stoppage. Under ordinary circumstances, the issue of whether they had been accorded proper procedural safeguards might be moot. In the instant case, however, the Plaintiffs have asked that their records be expunged because they continue to be penalized as a result of having these rule infractions in their prison file. Before the Court can determine the issue of expungement, it must first determine the procedural safeguards which should be accorded to inmates at a prison disciplinary hearing and then determine whether these Plaintiffs received those safeguards at their hearings.

The Court of Appeals has held that prolonged punitive segregation does constitute a grievous loss (Miller at 717) and that before an inmate may be subjected to such a grievous loss, he must be afforded certain minimal due process safeguards, including, but not limited to, the following: (1) an adequate and timely written notice of the charges; (2) a fair opportunity to explain; (3) a fair opportunity to request that witnesses be called or interviewed; and (4) an impartial decision-maker. Miller, at 718. In its September 7, order, this Court clarified these standards by requiring that an inmate be given written notice at least twenty-four (24) hours prior to the hearing of the specific charges and rules or regulations allegedly violated. A "fair opportunity to explain" was clarified as requiring that an inmate be informed of the evidence against him and that he then have the opportunity to explain his version of the incident and to raise any relevant defenses or reasons for his actions or inaction. In that order this Court also provided as follows:

    "(c) A `fair opportunity to request that witnesses
  be called or interviewed' includes the responsibility
  on the part of the accused to make some showing that
  the testimony of the requested witnesses is relevant
  and material to the charges and reasonable under the
    (d) No person who reported, investigated or was in
  any other way involved in the alleged infraction or
  charge against an inmate shall take part in the
  decision-making process.
    (e) Upon concluding the hearings, the
  decision-maker shall make a written memorandum report
  of the hearings and the decisions. Such memoranda, in
  addition to meeting the requirements of the Marion
  Federal Prison Policy Statement MI-7400.5c on Inmate
  Discipline, effective July 17, 1972, shall also
  include the names of witnesses requested by the
  accused who were neither called nor interviewed. The
  accused's statements as to the expected testimony
  from each such witness should be included together
  with the reasons for not calling or interviewing
  them. Reasons for interviewing rather than calling
  any requested witness should be set out together ...

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