Appeal from a judgment of the United States District Court for the District of Connecticut, T. Emmet Clarie, Ch. J., rejecting plaintiff Salvatore J. Raffone's claim to monetary damages for the denial of his right to due process by defendants Carl Robinson, Warden of Connecticut Correctional Institution, Somers, and John R. Manson, Commissioner of the Department of Correction, State of Connecticut. Affirmed.
Before Lumbard, Friendly and Gurfein, Circuit Judges.
Salvatore J. Raffone, a prisoner at Connecticut Correctional Institution, Somers (C.C.I.S.), appeals from the March 31, 1978 judgment of Chief Judge T. Emmet Clarie, of the District of Connecticut, which rejects his claim to monetary damages for his confinement in "administrative segregation" without due process. Seeking damages under 42 U.S.C. § 1983 and its jurisdictional counterpart, 28 U.S.C. § 1343(3) and (4), Raffone argues that the district court erred in concluding (1) that his right to due process before being transferred to administrative segregation was not clearly established at the time of his segregation; and (2) that the defendants, the Warden of C.C.I.S. and the Commissioner of the Department of Correction, did not violate that right maliciously. We affirm.
On November 10, 1977, the body of Alfred Chisholm, a black prisoner, was found in a laundry cart near the prison's gymnasium. He had been murdered. Four days later, prison guards escorted Raffone, a white prisoner, from the general prison population specifically from his work assignment in the gymnasium to F Block, which houses prisoners assigned to administrative segregation. Five other white prisoners were also removed to F Block. When Raffone asked why he was being transferred, the escorting officer replied, "I'm not allowed to tell you anything." Two of the other transferred prisoners were told that they were "under investigation" in the Chisholm murder. The defendants returned two prisoners to the general population shortly thereafter; Raffone remained in administrative segregation until Chief Judge Clarie's judgment ordered his release on March 31, 1978.
The Connecticut Department of Correction's Administrative Directives, Chapter 2.6(a), state that prisoners may be placed in administrative segregation (1) at their own request, (2) for their protection or the institution's welfare, or (3) after punitive treatment if the inmate still cannot be returned safely to the general population. While in administrative segregation, prisoners are denied several privileges enjoyed by those in the general prison population. They are allowed out of their cell only one hour per day, instead of the sixteen hours per day allowed to prisoners in the general population. They are denied communal meals and daily showers. Their use of the library is restricted. And they are denied access to organized religious services, educational and recreational facilities, and employment opportunities. Moreover, they suffer the hardship of relative isolation from other people.
On November 22, after eight days in segregation, Raffone was taken to a Classification Committee hearing to discuss his status in segregation. The defendants gave Raffone no written notice of the hearing, and only a five-to-ten minute oral notice. They did not tell him the purpose of the hearing nor of his segregation; nor did they tell him that he could call witnesses on his behalf, present evidence, or enlist the aid of counsel. He did not ask for those rights. During the brief hearing, the Committee told Raffone that he would remain in segregation pending the Chisholm murder investigation, but it offered no further explanation. Commissioner Manson approved Warden Robinson's recommendation, which was based upon the Committee's hearing, that Raffone remain segregated indefinitely. Because the defendants expected the investigation of Chisholm's homicide to be lengthy, they then allowed Raffone some of the privileges available to prisoners in the general population, such as recreation and the use of some of his personal belongings. Shortly after the hearing, the defendants again informed Raffone, this time by letter, that he would be segregated "for investigation purposes" until the investigation concluded. Until the hearings on Raffone's complaint were held in January, 1978, that was the only reason the defendants gave Raffone for his segregation.
Raffone and three other segregated prisoners initiated this action on December 27, 1977, by writing to then District Judge Jon O. Newman. Their letter requested that the court issue an order to show cause why they should remain in administrative segregation. Chief Judge Clarie referred it to Magistrate F. Owen Eagen. On January 18, 19, and 31, 1978, Magistrate Eagen conducted hearings at C.C.I.S. At these hearings the defendants offered two reasons for confining Raffone in administrative segregation: (1) they had been told by the State Police, who were conducting the Chisholm murder investigation, that Raffone and the other segregated prisoners were prime suspects; and (2) they feared, because Raffone and the others were white while Chisholm was black, that black inmates would consider the murder racially motivated if they discovered that Raffone and the others were suspects, and that they would "racially polarize" the general population, endangering the six suspects, if not segregated, and the prison as a whole. The defendants testified that they had observed several objective indications of increased racial tension within the prison in the days following the murder: inmates huddled into small groups more than usually; informants reported that a black "militant element" was advocating retaliation against white inmates; searches revealed hidden weapons in the gymnasium, where the defendants suspected any racial incident would be likely to occur; and fewer inmates participated in evening recreation, which suggested to the defendants that the inmates themselves feared that racial confrontations might erupt. The defendants had a subjective feeling of increased racial tension as well.*fn1 They also testified that they had never told Raffone these reasons because they believed that further "racial polarization" would result, but they did not explain why or how they thought that would happen. The two prisoners who were segregated at approximately the same time as Raffone and shortly thereafter returned to the general population testified that they suffered no threats from black prisoners, and three black inmates testified that they had heard no rumors of threats against Raffone or the other segregated prisoners.
At the time of the hearings before Magistrate Eagen, the defendants had not returned Raffone to the general population, but Warden Robinson testified that racial tension was "back to normal" (I. e. as before the murder). The defendants presented to Magistrate Eagen no evidence of probable cause to believe that Raffone killed Chisholm. When questioned about the murder, Raffone invoked his fifth-amendment right to remain silent.*fn2 Raffone did not lose any "good time" credits during his segregation and his monetary losses were nominal.
On March 10, 1978, Magistrate Eagen submitted to Chief Judge Clarie findings of fact and a recommended decision that the defendants had violated Raffone's due process right, but that they were not liable for monetary damages because Raffone's right had not been clearly established and they did not violate it maliciously. Chief Judge Clarie adopted and affirmed the findings and recommendation on March 30; on March 31 he entered a judgment that ordered Raffone's release from administrative segregation but was silent as to monetary damages. Only Raffone appeals, and he appeals only the implicit denial of his claim for monetary damages.
The Supreme Court's Procunier v. Navarette, 434 U.S. 555, 98 S. Ct. 855, 55 L. Ed. 2d 24 (1978), accords prison officials a qualified immunity from liability for damages under § 1983: Prison officials are not liable unless (1) the constitutional right they infringe is clearly established at the time of their conduct, or (2) they act maliciously. We agree that Raffone's due process right was not clearly established at the time of his administrative segregation and that the defendants did not act maliciously.
Raffone was held in administrative segregation from November 1977 until March 1978. Although it was well-known at that time that "a prisoner is not wholly stripped of constitutional protections when he is imprisoned for (a) crime," Wolff v. McDonnell, 418 U.S. 539, 555, 94 S. Ct. 2963, 2974, 41 L. Ed. 2d 935 (1974), it was not clearly established indeed it was open to real doubt that prisoners had a right to due process before being transferred from a general prison population to a confinement like administrative segregation. That doubt arose from the Supreme Court's companion decisions in 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), and the First Circuit's application of those cases in Daigle v. Hall, 564 F.2d 884 (1st Cir. 1977).
In Meachum, the Supreme Court reviewed a First Circuit decision that a transfer from a medium- to a maximum-security prison triggers due process protections because it subjects the prisoner to a more restrictive confinement. The Supreme Court reversed, holding that inter-prison transfers within a state do not trigger due process requirements, even if the prisoner is transferred to a tighter-security prison with greater restrictions on freedom and privileges, so long as state law or practice do not condition such transfers upon the occurrence of some specific event. The Court explained:
"Confinement in any of the State's institutions is within the normal limits or range of custody which the conviction has authorized the State to impose. That life in one prison is much more disagreeable than in another does not in itself signify that a Fourteenth Amendment liberty interest is implicated when a prisoner is transferred to the institution with the more severe rules.
The First Circuit decision reviewed in Meachum had not distinguished between transfers for administrative and transfers for punitive reasons. 427 U.S. at 222 n. 6, 96 S. Ct. 2532. The Second Circuit decision that the Supreme Court reviewed in Montanye had drawn that distinction, requiring procedural due process only for Disciplinary transfers having a substantial adverse impact on the prisoners. 427 U.S. at 242, 96 S. Ct. 2543. Thus, even before Meachum and Montanye it would not have been clear under Second Circuit caselaw that Raffone's transfer to administrative segregation would have required due process. Then in Montanye the Court reversed this circuit's decision by holding that prisoners may be transferred between prisons without due process, even to a more severe regimen and for either administrative or disciplinary reasons, so long as, ...