when unduly hazardous to institutional safety or goals. 254.19. He may request that a staff member represent him. 254.17. Any finding of guilt must be based on substantial evidence. 254.20. After the hearing, the inmate receives a written statement of the fact findings, including all evidence relied upon or a statement as to why evidence cannot be disclosed, and reasons for any refusal to call a witness or for denying the opportunity for cross-examination. 254.27.
Plaintiff was not afforded any of these procedural protections. Apparently the only process he was given was the opportunity to appear before the prison classification committee. Before the committee, he was not given the opportunity to call witnesses, or to have a staff member represent him. Most significantly, he was not given a written statement of factual findings and of the evidence relied on, nor was the committee bound by the "substantial evidence" standard. Defendants point out that they afforded plaintiff the "opportunity" to take a polygraph examination to resolve the differences between his story and Leester Williams' story, and that plaintiff refused to submit to the polygraph examination. Plaintiff explains that he declined to submit to the examination only because defendants indicated that they would not allow plaintiff's claim to be resolved in this manner unless he would sign a release promising not to sue the prison authorities for his transfer. See Letter of Plaintiff's Counsel, October 23, 1985; cf. Affidavit of Al Procell (11/18/85).
Defendants contend that plaintiff's sudden administrative reclassification did not amount to a violation of due process. Relying upon the DOC standards indicating that the initial determination to reduce status is ultimately discretionary, they claim that plaintiff had no constitutionally protected interest in reduced custody status. See Olim v. Wakinekona, 461 U.S. 238, 75 L. Ed. 2d 813, 103 S. Ct. 1741 (1983) (plaintiff had no "liberty" interest in not being transferred to out-of-state prison because transfer decision was wholly discretionary for correctional officials under state law, and plaintiff could have no concrete expectation of freedom from transfer). Even if plaintiff's interest in his reduced custody status did constitute a constitutionally protected liberty interest, they argue, plaintiff received all the process he was due when he was afforded the opportunity to appear before the prison Classification Committee. See Hewitt v. Helms, 459 U.S. 460, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983).
Examination of the DOC standards belies this analysis, however. First of all, with regard to the threshold question of plaintiff's interest in his custody status, it is true that prison inmates have no independent constitutional right to any specific custody status. Cf. Montanye v. Haymes, 427 U.S. 236, 242, 49 L. Ed. 2d 466, 96 S. Ct. 2543 (1976) ("as long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate's treatment by prison authorities to judicial oversight"). Nevertheless, states may, by statute or regulation, create a liberty interest in a particular custody status by setting forth substantive standards for classification which create a legitimate expectation on the part of prisoners to a specific status. Cf. Hewitt v. Helms, 459 U.S. at 472 (state of Pennsylvania created protected liberty interest in freedom from administrative segregation by "repeated use of explicitly mandatory language in connection with requiring specific substantive predicates" for the imposition of segregation). A state's failure to provide minimum procedural protections in the deprivation of such an interest amounts to a violation of the due process clause.
Here, because of the discretionary elements in the classification committee's decision to reduce custody status initially, plaintiff may not have had any liberty interest in reduced status before he was deemed entitled to it, insofar as he could have had no legitimate expectation of it (although the list of substantive factors to be considered in the decision, see 853.4, might be read as creating such an interest).
Plaintiff certainly had such an interest in continuing reduced status once he was granted reduced status, however. The standards make no provision for anything more than a temporary revocation of reduced status in emergency situations absent a finding of guilt for committing a "prohibited act." The plaintiff thus had a legitimate expectation of permanent reduced status absent a finding based on substantial evidence presented at a hearing that he had committed a "prohibited act." Here, plaintiff has apparently been reclassified based on hearsay reports that he planned escape, a prohibited act. Rather than affording the procedural protections that must attend disciplinary sanctions, the defendants have apparently bootstrapped the provisions for emergency, temporary, administrative status increases to justify prolonged deprivations of the plaintiff's previously acquired reduced status without a hearing.
The Supreme Court's decision in Hewitt v. Helms, supra, is not to the contrary. There, the Court held that a Pennsylvania prisoner did have a liberty interest under Pennsylvania law in remaining in the general prison population and free from administrative segregation. Yet, the Court determined, that the prisoner was entitled to no more than an "informal, nonadversary evidentiary review" prior to segregation. Id. at 476. The segregation contemplated in Helms was a temporary removal of the prisoner from the general population pending a more formal disciplinary investigation and hearing, however. Here, the state has effectively permanently increased plaintiff's custody status, while affording him no more process than he would be entitled to for a temporary increase in custody status. Plaintiff's custody status has remained at the increased level for more than a year, and there is no indication that the state considers this to be a temporary condition, subject to change upon more complete investigation. His change in custody did not amount to a temporary administrative segregation for a reasonable period of time; it was effectively a disciplinary sanction. Thus, the more formal process outlined in Wolff v. McDonnell, supra, was required in this case; Hewitt is simply inapposite.
For the foregoing reasons, the court determines that plaintiff is entitled to a formal disciplinary hearing as a prerequisite to being held in "gang minimum" as opposed to "full minimum" status. The court will therefore order the plaintiff restored to "full minimum" status unless a formal disciplinary hearing is conducted pursuant to DOC disciplinary regulations forthwith. The court notes that plaintiff has also asserted a retaliation theory to justify reduction of his custody status. As that theory involves unresolved factual questions, and the due process theory is in any event preliminary dispositive, the court will not address plaintiff's retaliation theory. Plaintiff will be free to raise it again should the prison fail to give him satisfaction at this disciplinary hearing. Defendants' cross-motion to dismiss is denied.
This matter having been opened to the court upon the application of the plaintiff for a temporary restraining order and preliminary injunction enjoining the defendants to reinstate plaintiff's full minimum custody status, absent substantial cause, to dismiss the complaint, and the court having reviewed the moving papers and the opposition thereto, and having heard argument of counsel, and for the reasons expressed in the Opinion of the court even dated herewith
IT IS on this 5 day of Dec., 1985;
ORDERED that plaintiff's application for a preliminary injunction be and is hereby granted; and it is further
ORDERED that the plaintiff be restored to full minimum custody status unless a formal disciplinary hearing is forthwith conducted pursuant to Department of Corrections Standard 254, et seq; and it is further
ORDERED that defendant's motion be dismiss be and is hereby denied.