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October 1, 1976

Louis W. HODGES et al., Plaintiffs,
Ann KLEIN et al., Defendants. Clifford F. LEWIS, Plaintiff, v. Alan R. HOFFMAN, Defendant. John WASHINGTON, Plaintiff, v. Alan R. HOFFMAN, Defendant. Charles E. ALLEN, Plaintiff, v. Ann KLEIN et al., Defendants. Joseph MOSS, Plaintiff, v. Alan HOFFMAN, Defendant

The opinion of the court was delivered by: FISHER

 This opinion marks another chapter in a major piece of litigation which has already produced a series of temporary restraining orders, numerous discovery and other miscellaneous orders, a preliminary and now permanent injunction, and a reported opinion. Hodges v. Klein, 412 F. Supp. 896 (D.N.J.1976). The case essentially involves a constitutional challenge to the creation and maintenance of a special unit at Trenton State Prison known as the Management Control Unit (hereinafter referred to as the MCU). *fn1" Several other cases have either been consolidated with or are very similar to the instant matter, *fn2" and the Court has certified a plaintiff class for purposes of this suit. *fn3" The plaintiffs seek a permanent injunction which would close down the unit or alter its operation. The defendants are Ann Klein, the Commissioner of the New Jersey Department of Institutions and Agencies, William H. Fauver, the Director of the Division of Correction and Parole, Alan R. Hoffman, Superintendent (Warden) of Trenton State Prison, William Anderson, Chief Deputy at Trenton State Prison, and Robert Simmons, corrections captain. *fn4" Shortly after the completion of extensive hearings on this matter, the Division of Correction and Parole promulgated Standards for the operation of the MCU. The validity of these Standards is also before the Court. *fn5"



 Trenton State Prison, (also to be referred to as TSP), is the only fully maximum security penal institution in the State of New Jersey and it also is the oldest. The original portion of the prison was built in the 1830's and its most modern segment, 7 wing, was built in the early 1900's. The prisoners assigned to Trenton State are generally those serving a maximum sentence in excess of twenty years, and/or those who present difficult management problems from within the entire state prison system. Because of overcrowded conditions at TSP, a conscious policy to reduce the population was followed by prison officials. This was to be accomplished by moving the less serious offenders to other institutions in the State. These offenders included those inmates who did not present disciplinary problems and those who had lower security classifications. At the same time, TSP was the receiving institution for the difficult management cases which were found to exist in other institutions. In short, TSP has the majority of the maximum security and problem inmates from the entire prison system.

 On October 16, 1975 a major confrontation took place within the prison between two rival Muslim groups, which left the acting minister of one group dead and several inmates critically injured. The battle took place in the prison school area, a place which had heretofore been considered safe since it was air-conditioned and the offices of most inmate organizations were located there. *fn6" Prison officials responded by locking all TSP inmates in their cells twenty-four hours a day while a prison-wide search was made and calm was restored. This general "lock-up" lasted until the second week in November, making it one of the longest prison-wide lock-ups in memory. Also during this time: The inmate offices were moved to a more secure location; the private telephones utilized by several organizations, a source of many problems long before the October 16th incident, were removed; and several inmates, mostly Muslims, were transferred to other institutions or placed in protective custody in the Vroom Building within the TSP complex.

 Gradually normal operations returned in mid-November; however, the situation was far from stable. There was much anti-Muslim sentiment among the inmate population for the former's actions had had a severe impact upon the latter. There was also much anti-administration sentiment because of the continued curtailment of several inmate programs and privileges. An additional factor which contributed to the instability was the lack of leadership among the inmates themselves. It is no secret to anyone familiar with prison life that within an inmate population there are those who, either by their organizational position or by the force of their own personality, are able to exert a controlling influence over many other inmates. In the view of Warden Hoffman, because of the transfers which had been made both to reduce the TSP population and after the October 16th incident, most of the former leaders were no longer present, and the roles had been filled by a greater number of less stable individuals.

 By late November there had been numerous events which seemed to reveal the continued presence of tension, including an upsurge in disciplinary charges and letters requesting a transfer out of TSP. Defendant Hoffman testified that he had learned through informers of death threats against him and other prison officials. On the afternoon of December 2, 1975, approximately 200 inmates in the main exercise yard held an informal meeting which was called by the Prisoners' Representative Committee. This Committee is a recognized organization created at the request of the Governor. It was intended to serve as a representative liaison between the inmates and prison officials, but its activities, like those of all other prison groups, had been sharply curtailed since the October 16th incident. The meeting was apparently to discuss ways of demonstrating inmate concern and dissatisfaction with the continuing withdrawal of group activities at TSP. Members of various groups and sub-groups (both recognized and unrecognized) were, of course, present and a variety of approaches to the problem were suggested. The views ranged from violent to moderate and apparently included everything from a show of force to work slowdowns. The meeting ended peacefully and, so far as it appears, the inmates reached no decision on how to proceed.

 From the standpoint of the administration, however, this yard meeting had far greater significance. Defendant Hoffman, who never viewed the activities in the yard first hand, was advised by guards that the meeting was taking place. He was also informed that some of the rhetoric among inmates in smaller groups was inflammatory -- advocating a violent inmate response to administration policies. He stated that the meeting was a highly unusual occurrence at TSP, although it would seem not to be in view of the fact that the usual channels of group communication had been shut down. Hoffman's immediate response to the reports he was receiving was to display the strength of the administration by dispatching additional guards with automatic weapons in view to the guard towers surrounding the yard. No attempt was made to break up the meeting, however. Following the inmates' return to the main building, several events occurred which, in the view of the Warden, indicated that a true crisis might be developing. Many inmates returned from the yard with body guards close at hand. Others requested their wingkeeper to lock them in their cells because they "did not want to become involved". Inmate informers suggested that trouble was imminent and the guards' written reports suggested the same. Defendants Seidl and Fauver were called to the prison and a decision was made to run a "slowmess" that evening. This involved feeding the inmates in shifts to avoid a large gathering in the mess hall.

 As the evening progressed other events occurred which further indicated an unstable situation. Attendance at mess was unusually sparse, and attendance during wing television time was off. This latter fact was apparently most unusual since this time is highly valued by the inmates. In short, it appeared as if many inmates were afraid to come out of their cells. After the inmates were locked up for the night, the defendants agreed that there would be no regular opening in the morning. The prison was to remain under a general lock-up.

 At a meeting that night of defendants Hoffman, Seidl, Fauver and others, the situation was assessed and it was concluded that there were a number of inmates in the general population who required much stricter security measures than were possible in the general flow of population. It was decided that a close custody type unit, where these inmates could be segregated and their movements more restricted, would be needed. Given the facilities at TSP, there was only one area felt suitable for such a unit, viz., -- 7 wing. The wing officers of the prison were instructed to draw a list of inmates in their respective wings who they felt needed closer custody. These were to include security risks who were disruptive, or possibly assaultive. Borderline cases were to be included pending further review. The defendants admit they used very rough criteria at this point. These lists were then examined by the defendants and other superior officers and several inmates' names were stricken because it was felt that the wing-keeper had erred. Some of the inmates on the lists were already housed in 7 wing *fn7" which had been a part of general population up until this time. Many other listed inmates had to be moved from other parts of the prison, often trading places with those prisoners ordered to vacate 7 wing.

 The movement of those inmates listed began in the early morning hours of December 3, 1975. The inmate was told to gather as much of his personal belongings as he could and then was immediately escorted by three or four guards dressed in riot gear to 7 wing. When the initial transfer was completed twenty-five to thirty percent of the TSP inmates were located in 7 wing. At least seventy of the initial three hundred inmates in 7 wing were not on the transfer lists, but remained in what used to be their general population 7 wing cell until room could be made for them elsewhere. By December 5, 1975 the 7 wing unit, containing 230 inmates, the same number listed for transfer, was designated the Management Control Unit, (hereinafter referred to as MCU). Also on that date, the general lock-up of TSP was lifted and general population resumed a fairly normal schedule. From the administration's point of view, the crisis had passed -- the worst was over.

 Over the next few weeks the records of the MCU inmates were more thoroughly reviewed to determine whether any of the 230 were, upon further reflection, not in need of close custody. There is an apparent conflict in the testimony between defendants Hoffman and Seidl as to exactly how many inmates were transferred out of the Unit by this closer evaluation, estimates ranged from ten to one hundred. During this period, on or about December 10, 1975, the MCU inmates were given written notice that 7 wing had been designated the Management Control Unit; that a Special Classification Committee had been established and would soon begin hearings to determine which inmates should remain in the Unit; and that nine criteria (set forth in the notice) would be used to determine whether an MCU classification was warranted. *fn8" The members of the Special Classification Committee (hereinafter SCC) were appointed by the Warden. On December 31, 1975 inmates Louis Hodges and Earnest Pace brought this action pro se.

 By January 19, 1976 approximately eighty inmates were designated by the SCC to remain in the MCU and each was given a review date. Also in the Unit at that time were approximately forty inmates whom the SCC had decided should return to the general population, but who had not as yet moved out because space had not become available. On the night of the 19th and the early morning hours of the 20th, TSP was again rocked by violence -- this time not within the general population but within the MCU. Approximately a dozen to two dozen inmates in the Unit were involved in what was later discovered to be an escape attempt which left one inmate killed and a prison guard severely injured. Certain prisoners had somehow come into possession of guns, grenades and other weapons and when control of the Unit was restored, a complete search of 7 wing was undertaken by the New Jersey State Police.

 Since January, the situation within the MCU has returned to normal and at last count there were approximately sixty inmates designated to remain in the Unit by the SCC. MCU inmates each occupy a single cell which is five feet by seven feet and approximately seven feet high. These cells have cold running water, toilet with flush control, interior controlled lighting and other items. *fn10" Inmates are confined in their cell twenty-four hours a day except for an exercise period which ranges from one to two hours almost every day. The exercise yard is the smallest at the prison, but has a basketball hoop and a chinning bar. Inmates may have their personal belongings in their cells including radios, television, record players, books, magazines, personal clothing -- in short, all items which inmates in general population are permitted to have in their cells. Their meals are the same as those served in population, except they must eat in their cells. Inmate runners provide MCU inmates with requested law books or commissary items. Medical and psychiatric assistance is available upon request or when a guard feels it is necessary. Rehabilitative facilities and programs are virtually non-existent in the Unit with the exception of an education packet which enables inmates to do school work in their cells. This program is of little value to many of the MCU inmates because their current level of education is too high. Due to their MCU confinement, these inmates are unable to pursue or continue college level courses. There are areas on each tier of 7 wing -- MCU where inmates could participate in group study, worship or recreation (i. e., T.V., cards, checkers, etc.), but these activities are not permitted nor are any planned. The only personal contact MCU inmates have with one another occurs during outdoor recreation periods. The inmates can communicate verbally with one another. MCU inmates have no contact, however, with prisoners in general population.



 There is no dispute over the fact that the plaintiffs in the instant matter were transferred to the MCU without prior notice and hearing. Assuming only for the purposes of the prior hearing issue that any notice and hearing were required at all for the instant transfers, see discussion infra, the Court is of the opinion that under the circumstances of this case such steps were not needed before the plaintiffs were transferred. The law is clear that when exigent circumstances within a prison warrant, an inmate may be subjected to more restrictive confinement without prior notice and hearing. Gray v. Creamer, 465 F.2d 179, 185 n. 6 (3d Cir. 1972); U.S. ex rel Arzonica v. Scheipe, 474 F.2d 720, 722 (3d Cir. 1973); Hoitt v. Vitek, 497 F.2d 598, 600 (1st Cir. 1974); Morris v. Travisono, 509 F.2d 1358, 1360 (1st Cir. 1975); LaBatt v. Twomey, 513 F.2d 641, 645 (7th Cir. 1975). That such exigent circumstances were in good faith apprehended here by defendant Hoffman seems clear, and this Court will not second guess the Warden's judgment on matters of internal prison security. Hoitt, supra at 600; LaBatt, supra. From the events which occurred at the prison in the latter months of 1975 and the information received by the defendant on or before December 2, 1975, it is not difficult to understand why the Warden believed the situation to be:

". . . the worst I'd ever seen at the prison since I've been there in terms of the tension level and potential for violence. I thought we were a couple of steps away from having a very nasty scene."

 T. III, p. 33. Due process did not require that he wait for violence to erupt before taking action. *fn11"

 Apart from the prior hearing issue is the question of whether any hearing was necessary in the instant case under the Due Process Clause. After the conclusion of the Court's hearings on this matter, the United States Supreme Court handed down its decisions in Meachum v. Fano, 427 U.S. 215, 96 S. Ct. 2532, 49 L. Ed. 2d 451 (1976) and Montanye, Correctional Supt. v. Haymes, 427 U.S. 236, 96 S. Ct. 2543, 49 L. Ed. 2d 466 (1976), which cast considerable doubt upon the necessity for hearings in the context of the present case. The Court rejecting the notion

". . . that any grievous loss . .. [or] . . . any change in the conditions of confinement having a substantial adverse impact on the prisoner involved is sufficient to invoke the protections of the Due Process Clause,"

 Meachum, U.S. at p. , 96 S. Ct. at p. 2538, and finding that the state had not created any right in a prisoner to remain in a particular prison, held that no sufficient liberty interest was affected by the transfer of an inmate from one prison to another to trigger the protections of due process. This was so even though an inmate is placed ". . . in substantially more burdensome conditions [than] he had been experiencing," Id., at , 96 S. Ct. at p. 2538, and regardless of ". . . whether or not [the transfers] are the result of the inmate's misbehavior or may be labeled as disciplinary or punitive." Montanye, U.S. at p. , 96 S. Ct. at p. 2547.

 In a case significant in its factual similarity to the instant matter, Carlo v. Gunter, 392 F. Supp. 871 (D.Mass.1975), vacated 520 F.2d 1293 (1st Cir. 1975), the circuit court attached little significance to the fact that the "transfers" occurred within a single institution, Id., at 1296, and, relying upon its earlier holding in Fano v. Meachum, 520 F.2d 374 (1st Cir. 1975), concluded that due process required a hearing where a transfer resulted in more stringent conditions of confinement. The subsequent reversal of Meachum suggests that Carlo and the instant plaintiffs have no right to a hearing at all. *fn12"

 From the outset of the MCU, however, it was always the intention of prison officials to provide these inmates with some type of classification hearing. The defendants went even further after the first classification hearings were completed and provided each remaining MCU inmate a re-hearing in accordance with the standards set forth in Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974). The objectives, criteria and procedures involved with these hearings were fully described in court and were later incorporated into ...

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