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The holding in Wolff, supra, that inmates do not have the right to retained or appointed counsel in disciplinary proceedings was reaffirmed in Baxter v. Palmigiano, 425 U.S. 308, 96 S. Ct. 1551, 47 L. Ed. 2d 810 (1976).180 The plaintiff had been charged by correctional officials with inciting a disturbance and with disrupting prison operations. He was told that he might be prosecuted for a violation of state law and that he should consult with his attorney, although his attorney could not be present during the disciplinary hearing. He was also informed that he had the right to remain silent during the hearing but that his silence would be held against him. The disciplinary board decided to place him in "punitive segregation" for thirty days. The Court noted that inmates would have to be offered immunity before being compelled to furnish testimonial evidence which might incriminate them in later criminal proceedings. However, in Palmigiano's case no criminal proceedings were pending. His silence at the hearing in the face of incriminating evidence was merely considered along with the other evidence. The Court concluded that

This

in the circumstances underlying the charge
from sitting on the disciplinary body.
would normally include only those such as
the charging and the investigating staff
officers who were directly involved in the
incident. It would not include those who
are only tangentially affected by the
alleged misconduct, such as prison officials
who may have some administrative connection
with such misconduct prior to hearings.

492 F.2d at 306.

Main Road v. Aytch, 565 F.2d 54, 58-59 (3d Cir. 1977) held that regulations were not unconstitutional where the review board which could review the warden's decisions included his subordinates.

180. Accord, Feeley v. Sampson, 570 F.2d 364 (1st Cir. 1978). However, in Ruiz v. Estelle, 550 F.2d 238, 239 (5th Cir. 1977), the court approved the district court's preliminary injunction apparently requiring the prison officials to permit plaintiffs to have substitute counsel at disciplinary hearings during pendency of the action. As a result of their participation in the litigation the plaintiffs had been treated as a special class of inmates and had been subjected to "threats, intimidation, coercion, punishment, and discrimination."

the Fifth Amendment does not forbid adverse influences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.

As to confrontation of witnesses, the court of appeals had ordered the prison authorities to give written reasons when they refused to let inmates crossexamine or confront witnesses against them. The Supreme Court noted that although in Wolff it had characterized this practice as "useful" it had indicated that it would not be required. For the Court to mandate confrontation and cross-examination, except where prison officials can justify their denial on one or more grounds, would preempt the area Wolff left to the sound discretion of prison officials. 425 U.S. at 322, 96 S. Ct. at 1560, 47 L. Ed. 2d at 824.

Walker v. Hughes, 558 F.2d 1247 (6th Cir. 1977) found that under federal statutory law federal prison officials had full discretion in the treatment of prisoners, and therefore the prisoners did not have liberty interests in not being placed in more restrictive living status and in not being deprived of privileges. However, as a result of a Milan institution policy statement, the prisoners did have liberty interests not to be placed in segregation, transferred to other prisons, or to lose good time credits or privileges except upon a finding of major misconduct by the adjustment committee. However, the district court had gone too far in ordering that inmates be given written notice of their procedural rights; in ordering that there be instituted a neutral, detached, and continuously identical panal of fact finders from which investigators, case workers, and confidants were excluded; in ordering that an inmate be given an opportunity to call witnesses and present evidence in his defense unless the record clearly indicated that to do so would present a grave threat to institutional security; in requiring the adjustment committee to provide an inmate counsel or counsel substitute when the right to call witnesses was denied; and in ordering the committee to provide a written decision based only upon the evidence presented at the hearing and that mere written accusation and rumor not be used as adequate evidence of a violation of prison rules by an inmate. These requirements went beyond the requirements of Wolff and Baxter and were not required by due process. 558 F.2d at 1259-60. The other requirements imposed by the district court were already required by the policy statements issued by the bureau of prisons

and the Milan institution and therefore there was no need for the court to order them.

Where the plaintiff admits to misconduct the denial of a hearing may not constitute a Fourteenth Amendment violation. See Codd v. Velger, 429 U.S. 624, 97 S. Ct. 882, 51 L. Ed. 2d 92 (1977). Clardy v. Levi, 545 F.2d 1241, 1246 (9th Cir. 1976) held that the Administrative Procedure Act does not apply to federal prison disciplinary hearings.

b.

Proceedings Required for Lesser Penalties
Such as Loss of Privileges

Wolff, supra, stated: "We do not suggest, however, that the procedures required by today's decision for the deprivation of good time would also be required for the imposition of lesser penalties such as the loss of privileges." 418 U.S. at 572 n. 19, 96 S. Ct. at 2982 n. 19, 47 L. Ed. 2d at 960 n. 19. In Baxter, 425 U.S. at 323-24, 96 S.Ct. at 1560, 47 L. Ed. 2d at 824, the Court referred to this comment in Wolff and, finding that the record before the district court did not present the issue of denial of privileges since the plaintiffs had been charged with serious misconduct, reversed the holding of the court of appeals that inmates were entitled to notice, opportunity for response, and a statement of reasons where they were deprived of privileges.

McKinnon v. Patterson, 568 F.2d 930, 957 (2d Cir. 1977), cert. denied, 434 U.S. 1087, 98 S.Ct. 1282, 55 L.Ed.2d 792 (1978) observed that the difference in nomenclature among the various forms of punitive or disciplinary confinement should not be dispositive in determining whether minimal due process is required.

C.

Classification and Reclassification

Proceedings, Transfer to Maximum Security

Cooper v. Riddle, 540 F.2d 731 (4th Cir. 1976) held that the requirements of Wolff, supra, did not apply to reclassification proceedings. In Cooper the plaintiffs had been transferred to maximum security by the institutional classification committee after they were allegedly involved in episodes of prison violence. The district court's grant of defendant's motion for summary judgment was affirmed on appeal.

Hodges v. Klein, 562 F.2d 276 (3d Cir. 1977)

affirmed the district court's denial of an injunction ordering that the management control unit of the Trenton state prison, to which prisoners deemed in need of close supervision were assigned, be closed or operated differently. The court noted that under Meachum v. Fano, 427 U.S. 215, 96 S. Ct. 2543, 49 L. Ed. 2d 466 (1976), and Montanye v. Haymes, 427 U.S. 236, 96 S. Ct. 2532, 49 L. Ed. 2d 451 (1976), inmate transfers are not subject to a hearing requirement, even when the transfer is to a less desirable confinement situation:

The presence in this case of
procedures for periodic hearings
to review an inmate's assignment
to the MCU leads us to conclude
that appellants' due process
rights were adequately safeguarded.

Appellants further claim

Given

that assignment to the Management
Control Unit violates the equal
protection clause by depriving
them of certain freedoms and
privileges enjoyed by the general
inmate population. If the
challenged classification furthers
some legitimate state interest,
however, it will withstand an
equal protection challenge.
the district court's factual
findings regarding the consid-
erable tension and unusual number
of discipline problems within the
prison, it is clear that classifi-
cations among prisoners maintained
the discipline and security in the
prison and thus furthered a
legitimate state interest.

562 F.2d at 278.

Polizzi v. Sigler, 564 F.2d 792 (8th Cir. 1977) found that federal prisoners were entitled to a due process hearing prior to their classification as "special" offenders upon their entrance into the federal prison system. Holmes v. United States Board of Parole, 541 F.2d 1243, 1249 (7th Cir. 1976) held that classification as a special offender constituted "grievous loss" and thus required due process

considerations, but the Seventh Circuit overruled

Holmes in Solomon v. Benson, 563 F.2d 339, 343 (7th Cir. 1977), holding that due process was not required for reclassification as a special offender.

d. Loss of Good Time

Preiser v. Rodriguez, 411 U.S. 475, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973) held that an action seeking an injunction to restore good time credit must be brought as habeas corpus rather than a civil rights action under section 1983.181 Wolff v. McDonnell stated: "Preiser expressly contemplated that claims properly brought under Section 1983 could go forward while actual restoration of good time credit is sought in state proceedings." 418 U.S. 539, 554, 94 S. Ct. 2963, 2974, 41 L. Ed. 2d 935, 950 (1974). The court could determine the validity of the procedures employed for imposing sanctions such as loss of good time and could enter a declaratory judgment as a predicate to a damage award. The Court noted that some injunctive relief, such as an injunction against enforcement of invalid prison regulations, could be granted. Only an injunction restoring good time credits is foreclosed by Preiser. Wolff held that the loss of good time credits is a sufficient loss of "liberty" to entitle the prisoner to a due process hearing.

McGinnis v. Royster, 410 U.S. 263, 93 S. Ct. 1055, 35 L.Ed.2d 282 (1973) held that a prisoner is not denied equal protection under the Fourteenth Amendment where he is denied good time credit for the period he was incarcerated in a county jail before he was sentenced. The fact that the jails do not have a significant rehabilitation program provided a rational basis for declining to give prisoners good time credit for their pretrial jail detention period.

The warden was not required in Rusher v. Arnold to restore to plaintiff the sixty-two days of good time that had been ordered forfeited upon his acquittal of the escape charge which was the basis of the forefeiture. 550 F.2d 896 (3d Cir. 1977). Since the plaintiff was a federal prisoner, the court was considering the Fifth Amendment due process clause, rather than the Fourteenth Amendment. The court based its

181. See also Section II, A supra and Section VIII,K,1 supra.

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