In situations such as the present, 513 F.2d at 645. The court noted that "Prison officials reacting in good faith to perceived emergency situations must not be unduly hindered by overbroad federal judicial scrutiny, on the basis of hindsight, of the factual basis underlying their actions." 513 F.2d at 647. The court noted that "the standard of review of a challenge to the sufficiency of the basis for emergency response must be generous to the administration. 513 F.2d at 647. The complaints failed to reveal any allegations of bad faith and, although the affidavits revealed conflicts of fact concerning the nature and seriousness of the prisoner misconduct and the threat of disorder, they did not indicate the existence of any genuine issue of bad faith. Therefore, the court affirmed the district court's grant of summary judgment as to that issue. An award of money damages to three plaintiffs who were placed in special housing units without prior hearing and notice of the charges after the superintendent declared a state of emergency was reversed in Gilliard v. Oswald, 552 F.2d 456 (2d Cir. 1977). The district court's finding that no emergency situation existed was reversed by the court of appeals. In discussing the problems faced by the superintendent following a series of assaults by inmates upon inmates the court stated: These problems should not be analyzed in a legalistic way more than three years after the events in issue by judges who did not have to cope with the situation presented to the Superintendent at the time. Rather, if justice is to be accomplished, we must try to look through the Superintendent's eyes at what he saw and into his mind as to his reaction thereto. [W]e should look to the actual situation which confronted the man charged with the responsibility of the safety of some 1600 inmates, a man possessed of years of practical experience in prison management, to decide whether his judgment in handling the situation then before him failed to comport with permissible standards. 552 F.2d at 457-58. The court noted "that the Superintendent's acts were entirely administrative and the proceedings purely investigatory. . . [A] hearing for each prisoner would have been virtually impossible. [Further the] situation was not ripe for definite charges." 552 F.2d at 459. The court observed that charges should not be made until facts justifying them are obtained. Hayes v. Walker, 555 F.2d 625, 633 (7th Cir. 1977), cert. denied, 434 U.S. 959, 98 S.Ct. 491, 54 L.Ed.2d 320 (1978) held that an allegation that the prison authorities acted in bad faith in declaring an emergency situation required judicial review. The court stated that "[a]bsent an allegation of bad faith, 'the underlying basis of decision must be deemed to be fully within [the] expertise and discretion [of prison officials] and, accordingly, is insulated from subsequent judicial review. '"' 555 F.2d at 633. i. A Prisoner Can Be Kept in Segregation Until He Mukmuk v. Commissioner of the Department of Correctional Services, 529 F.2d 272 (2d Cir. 1976), cert. denied, 426 U.S. 911, 96 S.Ct. 2238, 48 L. Ed. 2d 838 stated: "We have held it permissible to keep a prisoner in segregation until he agrees to abide by the rules of the institution." 529 F.2d at 277, citing Sostre v. en McGinnis, 442 F.2d 178 at 187, 192 (2d Cir. 1971) banc, cert. denied, 404 U.S. 1049, 92 S.Ct. 719, 30 L. Ed. 2d 740, 405 U.S. 978, 92 S.Ct. 1190, 31 L. Ed. 2d 254 (1972). Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L. Ed. 2d 451 (1976) and Montanye v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L. Ed. 2d 466 (1976) held that a prisoner is not entitled to a due process hearing prior to a transfer to another institution even though the conditions in the second institution may be more disagreeable, where state law does not condition the right to transfer upon the occurrence of misconduct. When state officials possess the authority to make discretionary transfers, the prisoner does not have a "liberty" interest in remaining in a particular institution and, therefore, he does not have the right to a due process hearing. On remand, the court of appeals held that the complaint in Montanye stated a cause of action and a hearing was required since the plaintiff had alleged that his transfer was in reprisal for exercising his First Amendment rights and his right to help other prisoners prepare habeas corpus petitions. 547 F.2d 188 (2d Cir. 1976). 183 Gray v. Creamer, 465 F.2d 179, 187 (3d Cir. 1972) had noted that a state prisoner does not have a constitutional right to remain in any particular prison. 184 The plaintiff in Lombardo v. Meachum, 548 F.2d 13 (1st Cir. 1977), complained that his transfer hearing did not satisfy due process requirements. The court, applying Meachum v. Fano, found that the plaintiff did not have the right to a hearing prior to this transfer; therefore, his rights were not violated when he was excluded from the room during the testimony concerning an informant. 183. See also Fajeriak v. McGinnis, 493 F.2d 468 (9th Cir. 1974), decided prior to Meachum and Montanye, where plaintiffs alleged they were transferred as punishment. 184. The court in Four Certain Unnamed Inmates of Massachusetts Correctional Institution v. Hall, 550 F.2d 1291 (1st Cir. 1977), used Meachum as the basis for its holding that freedom from transfer is not a "liberty interest" to which due process attached. Meachum and Montanye were held applicable to pretrial detainees in Feeley v. Sampson, 570 F.2d 364, 376 (1st Cir. 1978), where the court held they were not entitled to a hearing prior to transfer. 185 No reason for transfer of a federal prisoner was required in Robinson v. Benson, 570 F.2d 920 (10th Cir. 1978), where the court stated: "[I]t is clear that the Attorney General pursuant to 18 U.S.C. § 4082 (b) has authority to transfer a prisoner from one place of confinement to another for any reason whatsoever or for no reason at all." 570 F.2d at 923. Where plaintiff was transferred out of the state after a hearing as provided by state law, there was sufficient evidence to support the transfer decision since plaintiff, a life prisoner, was a security risk for whom the state had no suitable treatment program. Therefore, the district court's grant of defendants' motion for summary judgment was affirmed. Rebideau v. Stoneman, 575 F.2d 31 (2d Cir. 1978). The district court in Bruce v. Wade, 537 F.2d 850 (5th Cir. 1976) had improperly dismissed plaintiff's complaint insofar as it alleged that defendants intentionally and improperly transferred plaintiff to another jail where he was subjected to inhumane conditions of confinement. Plaintiff's allegation that the transfer was made as a disciplinary measure distinguished the case from Meachum and Montanye. Referring to these two cases the court stated: Thus the Court left undisturbed represent a change in the conditions be unable to show that the transfer 185. Meachum and Montanye were followed in Franklin v. Fortner, 541 F.2d 494 (5th Cir. 1976), where the court held that transfer from a minimum to a medium security institution did not require notice or a hearing. to the Tarrant County cell amounted to such a disciplinary measure. 537 F.2d at 854 n. 9. U.S. A three-judge district court had enjoined the transfer of any state prisoner from a penal facility to a mental institution without a due process hearing, including effective and timely notice of his rights and, in the case of an indigent inmate, with legal counsel in Vitek v. Miller, 98 S.Ct. 2276, 56 L. Ed. 2d 381 (1978). A state statute authorized the transfer of a state prisoner, without his consent, to a state mental hospital upon a finding by a physician or psychologist that the prisoner suffered from a mental disease or defect and that he could not be given proper treatment within the facility in which he was confined. The Supreme Court had noted probable jurisdiction in 434 U.S. 1060, 98 S. Ct. 1230, 55 L. Ed. 2d 760 (1978); however, it was learned that the plaintiff had been granted parole for the purpose of allowing him to receive inpatient psychiatric care at the vererans hospital. Therefore, the Court vacated the judgment of the district court and remanded for consideration of mootness.186 Cruz v. Ward, 558 F.2d 658 (2d Cir. 1977), cert. denied, 434 U.S. 1018, 98 S.Ct. 740, 54 L. Ed. 2d 765 (1978) reversed the district court which held that the state had been violating the Fourteenth Amendment by returning mental patients from the hospital to prison without adequate procedural protections. The court stated: Although the hospital has no formal written or oral guidelines on when a patient should be returned to prison, the doctors testifying seemed to be in general agreement about the principal criteria. They identified the crucial questions as whether the patient is in contact with reality and reacts to the world in a rational manner, and whether his condition may be improved through further hospitalization. 558 F.2d at 660. 186. See Note, Transfer of Prisoners to Mental Institutions, 69 Journal of Criminal Law and Criminology 337 (1978). |