Collazo Leon v. US Bureau of Prisons

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

          No. 94-2061

                                VLADIMIR COLLAZO-LEON,

                                Plaintiff - Appellee,

                                          v.

                       UNITED STATES BUREAU OF PRISONS, ET AL.,

                               Defendants - Appellants.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

                  [Hon. Carmen Consuelo Cerezo, U.S. District Judge]
                                                ___________________

                                 ____________________

                                        Before

                          Selya and Boudin, Circuit Judges,
                                            ______________

                             and Carter,* District Judge.
                                          ______________

                                _____________________

               Sean   Connelly,  Attorney,  United   States  Department  of
               _______________
          Justice, with  whom Guillermo Gil, United  States Attorney, Mar a
                              _____________                           _____
          Hortensia  R os-G ndara, Assistant  United  States Attorney,  and
          _______________________
          Paul W. Layer, United States Bureau of Prisons, were on brief for
          _____________
          appellants.
               Marcia G. Shein, with whom Law Office of Miller & Shein, was
               _______________            ____________________________
          on brief for appellee.

____________________

                                    April 7, 1995
                              
          ____________________

          *  Of the District of Maine, sitting by designation.



____________________

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CARTER,   Chief  District  Judge.    Appellee  Vladimir
                    CARTER,   Chief  District  Judge
                              ______________________

          Collazo-Le n, a  pretrial detainee at the  Metropolitan Detention

          Center  at Guaynabo, Puerto Rico, brought  a habeas corpus action

          alleging that he  had been denied both substantive and procedural

          due process by the United States  Bureau of Prisons (BOP) when he

          was placed  in disciplinary segregation  for ninety days  and had

          his telephone and visitation privileges taken away for six months

          as punishment for misconduct.  After being placed in segregation,

          Collazo-Le n  applied  for a  writ  of  habeas corpus  which  the

          magistrate judge  recommended that the court deny.   The district

          court  disagreed  and  granted  the  petition  finding  that  the

          practice violated  substantive  due  process  of law.    The  BOP

          appeals the district court's  grant of a writ of habeas corpus to

          Collazo-Le n.

                                        FACTS
                                        FACTS
                                        _____

                    Collazo-Le n was named in  eleven counts of a thirteen-

          count  indictment,  returned  in  the District  of  Puerto  Rico,

          charging conspiracy to  import and distribute cocaine.   On April

          7,  1994, while  being held  in pretrial  detention, Collazo-Le n

          appeared   before  a  disciplinary  hearing  officer  (DHO),  was

          informed of disciplinary charges against him, and, based  upon an

          affidavit, was found to have attempted escape and to have offered

          a bribe to a prison guard to induce his assistance in Defendant's

          escape attempt.  The charges for  both acts arise out of the same

          set of facts:  Collazo-Le n offered  a prison  guard one  million

          dollars to  get him "to the avenue."  The sanction imposed by the

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DHO  for the attempted escape  was sixty days  of segregation and

          the loss of  visiting privileges  for six months.   The  sanction

          imposed  by the  DHO for  the offer  of a  bribe was  thirty days

          segregation  and  the  loss   of  telephone  privileges  for  six

          months.1

                    Collazo-Le n  was placed in segregation and applied for

          a  writ of habeas corpus,  charging a denial  of both substantive

          and procedural  due process.  28  U.S.C.   2255.   The magistrate

          judge found  that Collazo-Le n  had been afforded  procedural due

          process and that the  practice of placing a pretrial  detainee in

          disciplinary  segregation,  and  taking  away  his telephone  and

          visitation   privileges  as   punishment   for  misconduct,   was

          permissible under the circumstances.  Accordingly, the magistrate

          judge recommended that the district court deny the writ of habeas

          corpus.  Despite this  recommendation, the district court granted

          the writ, permitting Collazo-Le n's  return to the general prison

          population before the end of his ninety-day segregation.

                    The  district  court  did  not  address the  magistrate

          judge's finding on Collazo-Le n's  claim for denial of procedural

          due  process.  Instead, the  court directed all  its attention to

          the substantive violation finding that the express intent  of the

          prison  regulation authorizing  segregation was  "punishment," 28
                              
          ____________________

          1    The  terms of  disciplinary  segregation  are  to be  served
          consecutively.   The  segregation consists  of being placed  in a
          room for twenty-three hours  a day, with the remaining  hour used
          for  active  or  passive  recreation.    Collazo-Le n's  loss  of
          telephone   and  visiting   privileges  does   not  include   any
          restriction of those activities which involve communication  with
          his attorneys.

                                         -3-



C.F.R.   541.20(a),2  and that  "less drastic resources  were not

          considered"  as  alternatives  to  the segregation  and  loss  of

          privileges.   The  court concluded  that the  disciplinary action

          taken   amounted  to  impermissible   punishment  and  served  no

          legitimate regulatory purpose in  the effective management of the

          correctional  institution.  Thereafter, the district court denied

          the  BOP's motion for reconsideration.   The BOP  now appeals the

          district court's decision.

                                      DISCUSSION
                                      DISCUSSION
                                      __________

                    The  BOP argues  that the  district court  expanded the

          principle established  by the Supreme  Court in Bell  v. Wolfish,
                                                          ____     _______

          441 U.S. 520  (1979), and  created a rule  that the  Constitution

          prohibits the  discipline of  pretrial  detainees.   Collazo-Le n
                              
          ____________________

          responds  that  the  district  court  correctly  found  that  the
          2  Section 541.20(a) provides:

          Constitution  prohibits  disciplining   pretrial  detainees   who
                      Except  as provided  in paragraph  (b) of
                      this section, an inmate may be placed  in
          violate  prison rules in the manner imposed here because doing so
                      disciplinary segregation only by order of
                      the    Disciplinary    Hearing    Officer
          amounts  to impermissible punishment.3   To a  great extent, both
                      following  a hearing in  which the inmate
                      has   been  found  to  have  committed  a
                      prohibited act in  the Greatest, High, or
                      Moderate Category, or a  repeated offense
                      in the  Low Moderate Category.   The  DHO
                      may   order  placement   in  disciplinary
                      segregation  only  when  other  available
                      dispositions  are  inadequate to  achieve
                      the purpose of punishment  and deterrence
                      necessary   to   regulate   an   inmate's
                      behavior within acceptable limits.

          3  Collazo-Le n also argues  that the case is moot because  he is
          no  longer  a  pretrial detainee  but  has  pled  guilty and  was
          scheduled to be sentenced on February 16, 1995.  The BOP responds
          that there  remains a live  controversy.   In its brief,  the BOP
          explains  that  if this  Court  reverses the  district  court, it
          intends to carry out the remainder of the  ninety-day segregation
          term  and the six-month telephone and visitation suspensions.  We
          agree with the BOP that there remains a live controversy.

                                         -4-



parties' arguments are built on semantics: labeling the action as

          either permissible discipline or  impermissible punishment.  This

          Court, however,  does  not  find  that there  is  any  meaningful

          distinction  between the terms  "punishment" and  "discipline" in

          this case.

                    In  Bell v.  Wolfish, 441  U.S. 520, the  Supreme Court
                        ____     _______

          examined some  aspects of  the constitutional rights  of pretrial

          detainees.    Bell  teaches that punishment  cannot be  inflicted
                        ____

          upon  pretrial detainees  prior to  an adjudication  of guilt  in

          accordance with due process  of law.  The inquiry,  however, does

          not end with  the designation  of a condition  of confinement  as

          "punishment."     To   distinguish   between  impermissible   and

          permissible measures, the Bell Court stated:
                                    ____

                      A   court   must   decide   whether   the
                      disability  is imposed for the purpose of
                      punishment  or  whether   it  is  but  an
                      incident   of   some   other   legitimate
                      governmental  purpose.   See  Flemming v.
                                               ___  ________
                      Nestor, [363 U.S. 603,] at 613-617. . . .
                      ______
                      [I]f    a    particular   condition    or
                      restriction  of   pretrial  detention  is
                      reasonably   related   to  a   legitimate
                      governmental  objective,   it  does  not,
                      without  more,  amount  to  "punishment."
                      Conversely, if a restriction or condition
                      is not reasonably related to a legitimate
                      goal -- if it is arbitrary or purposeless
                      -- a court permissibly may infer that the
                      purpose  of  the  governmental action  is
                      punishment that  may not constitutionally
                      be    inflicted   upon    detainees   qua
                                                            ___
                      detainees.

          Id. at 538-39 (footnotes omitted).
          ___

                    Bell was  a class action seeking  injunctive relief and
                    ____

          challenging  various general conditions,  practices, and policies

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to which all pretrial detainees were subjected, including double-
                   ___

          bunking, strip-searches,  and  various other  security  measures.

          The conditions imposed on the pretrial detainees in Bell involved
                                                              ____

          no  direct or individualized  disciplinary or  deterrent purpose.

          Here,  by contrast, the  segregation and  loss of  privileges are

          directly  related   to  the   exercise  of  the   prison  staff's

          disciplinary  authority by  both punishing  Collazo-Le n  for his

          institutional misconduct and deterring him from engaging in it in

          the future.  In Bell, the  Court was not faced with the situation
                          ____

          where  discrete  sanctions were  imposed  on  individual pretrial

          detainees   as  discipline  for   specific  in-house  violations.

          Although     factually    distinguishable,     the    theoretical

          constitutional premises of Bell's analysis provides some rational
                                     ____

          guidance in this case.

                    On the authority of  Bell, it may be divined  that even
                                         ____

          if a restriction or condition may  be viewed as having a punitive

          effect on the pretrial detainee, it is nonetheless constitutional

          if it  also furthers some legitimate  governmental objective such

          as  addressing  a specific  institutional  violation  and is  not

          excessive  in light of the  seriousness of the  violation.  Bell,
                                                                      ____

          441  U.S.  at  538-39; Youngberg  v.  Romeo,  457  U.S. 307,  320
                                 _________      _____

          (1982)(requiring  that   restrictions  on   the  liberty   of  an

          involuntarily confined  mental patient  be reasonably  related to

          legitimate government interests  in imposing those restrictions).

          Among the  legitimate objectives recognized by  the Supreme Court

          are  ensuring  a detainee's  presence  at  trial and  maintaining

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safety,  internal order,  and  security  within the  institution.

          Bell, 441 U.S. at 540.  If there is a reasonable relation between
          ____

          the sanctions and legitimate institutional policies, an intent to

          punish the detainee for prior unproven criminal conduct cannot be
                              ___________________________________

          inferred.   Accordingly,  this Court  must determine  whether the

          punishment   imposed  here   was  incident  to   some  legitimate

          governmental purpose.

                    In  this case, the district court looked at whether the

          sanction imposed  on Collazo-Le n was of  a "punitive" character.

          The court found it  to be punitive, reasoning that  because after

          Collazo-Le n serves his time in segregation, he will present "the

          same risk of flight and the same security hazard that he did when

          [the BOP] determined  that his conduct  justified placing him  in

          isolation,"  the discipline  did not  serve the  BOP's legitimate

          goal  of providing  a safe  and orderly environment  for inmates.

          This   Court  finds   that  statement   by  the   district  court

          particularly curious.  Although Collazo-Le n may continue to be a

          risk to  security after  release from  segregation that  does not

          mean  that legitimate  governmental goals are  not served  by the

          disciplinary action.  If the district court's statement regarding

          Collazo-Le n's continued  security risk  is taken to  its logical

          conclusion, any type of discipline imposed would not be allowable

          because Collazo-Le n must, inevitably, be returned to the general

          prison  population.    This  overlooks  entirely  any  reasonable

          expectation that the discipline  will have a deterrent  effect on

          the Defendant.

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The administrators  of the prison must  be free, within

          appropriate limits,  to sanction the prison's  pretrial detainees

          for  infractions  of reasonable  prison regulations  that address

          concerns of safety and security within the detention environment.

          The district court found that the severity of the sanction on the

          pretrial  detainee for "whom no attempt  is made to deal with his

          disciplinary problem by means  of less drastic actions, compel[s]

          the conclusion that the purpose in segregating is to punish."  We

          agree that the measure is punishment, but we disagree that  it is

          improper under the circumstances of this case.  The Supreme Court

          has warned that when

                      determining   whether   restrictions   or
                      conditions are reasonably related  to the
                      Government's   interest   in  maintaining
                      security  and  order  and  operating  the
                      institution  in   a  manageable  fashion,
                      courts must heed our warning that '[s]uch
                      considerations are  peculiarly within the
                      province  and  professional expertise  of
                      corrections   officials,   and,  in   the
                      absence  of  substantial evidence  in the
                      record  to  indicate  that the  officials
                      have exaggerated their response  to these
                      considerations, courts  should ordinarily
                      defer  to their  expert judgment  in such
                      matters.'

          Id. at 540-41 n.23 (quoting Pell v. Procunier, 417 U.S.  817, 827
          ___                         ____    _________

          (1974)).    This  recognition is  a  clear  approval  of a  broad

          exercise of  discretion by prison authorities  to take reasonable

          and necessary action, including punishment, to enforce the prison

          disciplinary  regime and  to deter  even pretrial  detainees from

          violation of  its requirements.  What  the Constitution prohibits

          is  the undue expansion of the exercise of such authority for the

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purpose, or with the unintended effect, of punishing the pretrial

          detainee for the acts  that are the basis for his prosecution and

          his consequent  pretrial detention.   In other  words, reasonable

          punishment  may   be   imposed  to   enforce  reasonable   prison
                                               _______

          disciplinary  requirements but  may  not be  imposed to  sanction

          prior unproven  criminal conduct.  Recognizing the need to accord

          prison  officials considerable  latitude in  matters  of internal

          discipline,  we   will  not  interfere  with   the  execution  of

          reasonable means, such as the internal discipline effort involved

          here,  adopted by  the BOP to  achieve a  legitimate governmental

          objective.  We cannot say that the sanctions imposed, in light of

          the  seriousness  of the  violations, were  so  extreme as  to be

          unreasonable by the constitutional standard.

                    For the reasons discussed  above, the district  court's

          grant of the writ of habeas corpus on the substantive due process

          grounds is VACATED.   The case is REMANDED to  the district court
                     _______                ________

          to  determine  whether  Collazo-Le n's  right to  procedural  due

          process was violated.4
                              
          ____________________

          4  Collazo-Le n's attorney argues  that she did not know that  on
          May 23, 1994, the magistrate judge was going to hold a hearing on
          the  merits of the habeas corpus petition.  Rather, she "believed
          that  the  only  issue to  be  considered  [at  the hearing]  was
          releasing petitioner from sanctions until proceedings relating to
          due process and  constitutional issues could be presented in more
          detail  by all  parties."   Response to  Magistrate's Report  and
          Recommendation (Docket  No.  11) at  2.   This  appears  to be  a
          reasonable conclusion given the  magistrate judge's Order to Show
          Cause (Docket No. 7).  That Order provides, in part:

                      The  Warden,  Metropolitan   Correctional
                      Facility,  Guaynabo,  is ordered  to show
                      cause in my courtroom on Monday, May  23,
                      1994,  at  10:00  a.m.,   why  petitioner

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____________________

                      should not be released  from disciplinary
                      confinement  pending  resolution  of  the
                      2241   motion   now  before   the  court.
                      Petitioner  and  respondent  are  granted
                      until May 26, 1994, to file  memoranda of
                      law on  the only  other issue  before the
                      court, whether a pretrial detainee can be
                      administratively  punished   during  such
                      detention  without the benefit  of even a
                      cursory   hearing    to   determine   his
                      innocence or guilt of such charges.

             On May 23,  1994, the  magistrate judge held  the hearing  and
          filed his recommended decision in the matter including the merits
          of  the  procedural  due  process  violation.    The  recommended
          decision  was docketed  on May  24, 1994.   The  implication from
          counsel's argument is that she was not prepared at the hearing to
          present all evidence on  the issue of the procedural  due process
          violation.  The district court,  as noted above in the text,  did
          not  address this  issue.   On remand  the district  court should
          extend  a de novo review to this aspect of the magistrate judge's
                    __ ____
          decision.

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