0% found this document useful (0 votes)
41 views3 pages

George Elmer Black v. Warden, United States Penitentiary, 467 F.2d 202, 10th Cir. (1972)

This document is a court case regarding an appeal filed by George Elmer Black challenging his isolation confinement in prison without explanation or due process. The three key points are: 1) The court denied the motion to dismiss the appeal as moot despite Black's transfer to a California prison, as the isolation could still impact his good behavior credits and records. 2) While prisons have discretion over discipline, segregation alone is not cruel punishment, but substantial constitutional allegations require consideration. 3) The court vacated the dismissal of Black's complaint, as it could not be said no facts might support his claims, and remanded for a hearing to develop the facts.
Copyright
© Public Domain
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF or read online on Scribd
0% found this document useful (0 votes)
41 views3 pages

George Elmer Black v. Warden, United States Penitentiary, 467 F.2d 202, 10th Cir. (1972)

This document is a court case regarding an appeal filed by George Elmer Black challenging his isolation confinement in prison without explanation or due process. The three key points are: 1) The court denied the motion to dismiss the appeal as moot despite Black's transfer to a California prison, as the isolation could still impact his good behavior credits and records. 2) While prisons have discretion over discipline, segregation alone is not cruel punishment, but substantial constitutional allegations require consideration. 3) The court vacated the dismissal of Black's complaint, as it could not be said no facts might support his claims, and remanded for a hearing to develop the facts.
Copyright
© Public Domain
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF or read online on Scribd
You are on page 1/ 3

467 F.

2d 202

George Elmer BLACK, Appellant,


v.
WARDEN, UNITED STATES PENITENTIARY, et al.,
Appellees.
No. 71-1284.

United States Court of Appeals,


Tenth Circuit.
Sept. 21, 1972.

Robert DuVal Hicks, Englewood, Colo., for appellant.


Adrian M. Farrer, Asst. U. S. Atty. (Robert J. Roth, U. S. Atty. for District
of Kansas, and Richard L. Meyer, Asst. U. S. Atty., Topeka, Kan., on the
brief), for appellees.
Before LEWIS, Chief Judge, and HOLLOWAY and BARRETT, Circuit
Judges.
PER CURIAM.

Appellant Black filed a "Motion For Declaratory Judgment and Mandatory


Interlocutory Injunction" complaining of isolation unit confinement imposed on
him by the penal authorities at Leavenworth. Essentially his claim was that the
punishment had been administered without explanation of any reason therefor,
without a hearing and without any violation of prison rules by him, and that
Eighth Amendment and due process principles were violated, among other
things. On examining the pleading the District Court stated that administrative
remedies by complaint to the prison authorities had not been pursued and that
no reviewable issues and no constitutional deprivations were involved. The
action was therefore dismissed and this appeal followed.

First we must consider a motion to dismiss the appeal as moot. The


Government's motion represents to us that in July, 1971, Black was transferred
to the custody of the California State penal authorities for concurrent service of
Federal and California sentences. The argument is that since Black has been

released from the isolation unit custody complained of, there is no remaining
controversy and the case is moot.
3

We cannot agree. While the transfer of custody and termination of the


particular confinement complained of are not disputed by Black's response to
the motion to dismiss, there are possible continuing effects of the punishment
during service of Black's 30-year sentence which cannot be dismissed. The
computation of good time allowance is affected by being subjected to
punishment. 18 U.S.C.A. Sec. 4161. Moreover there may be a continuing effect
in the penal institutions from the use of records maintained concerning this
punishment. See Hudson v. Hardy, 137 U.S.App.D.C. 366, 424 F.2d 854, 856.
Unless such disciplinary records are expunged and not to be used against Black,
e. g. Taylor v. McElroy, 360 U.S. 709, 711, 79 S.Ct. 1428, 3 L.Ed.2d 1528, we
may not dismiss the matter as moot on the showing made to us, despite the
transfer of custody. See Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20
L.Ed.2d 554; Oughton v. Taylor, 381 F.2d 23 (10th Cir.).1

In turning to the merits, we are reminded that prison officials must be accorded
latitude in the administration of prison affairs and that prisoners are necessarily
subject to appropriate rules and regulations. See Cruz v. Beto, 405 U.S. 319,
321, 92 S.Ct. 1079, 31 L.Ed.2d 263. We also recognize that the basic
responsibility for control and management of penal institutions, including the
discipline, treatment and care of those confined, lies with the Attorney General
and is not subject to judicial review unless exercised in such a manner as to
constitute clear arbitrariness or caprice on the part of prison officials. Graham
v. Willingham, 384 F.2d 367 (10th Cir.). Moreover, segregation as such is not
cruel or unusual punishment. Id. at 368. However, where there are substantial
allegations of violation of constitutional rights in the treatment of prisoners, the
complaint must be considered on its merits by a proper hearing. Cruz v. Beto,
supra; Hoggro v. Pontesso, 456 F.2d 917 (10th Cir.), and cases there cited.

In conformity with the general rule, the prisoner's complaint should not be
dismissed for failure to state a claim unless it appears beyond doubt that he can
prove no set of facts in support of his claim which would entitle him to relief.
Cruz v. Beto, supra at 322, 92 S.Ct. 1079. Black's pro se complaint alleged that
he was subject to a 30-year sentence imposed in August, 1970; that he was
confined in the isolation unit at Leavenworth and deprived of normal privileges
granted prisoners; that such confinement commenced February 4, 1971, on his
return from court, and was continuing when his complaint was filed April 9,
1971.2 He further alleges that he was never advised of the nature of charges or
the reason for such confinement and that he has broken no institutional rules.

Without reaching the merits of any of appellant's claims we feel that the
complaint should not have been dismissed. We cannot say that it appears
beyond doubt that appellant could prove no set of facts that would entitle him to
relief. Instead we conclude that the case should be remanded for a hearing to
develop the facts in order to decide the merits of appellant's claims.
Accordingly the motion to dismiss the appeal is denied; the judgment is
vacated; and the cause is remanded for further proceedings consistent herewith.

Appellant argues that there was a violation of Rule 23, F.R.A.P., by the transfer
of custody while the case was pending. We need not reach the question of
whether the Rule applies in a case with allegations and the type of pleading
involved here, since the case should not be dismissed as moot for the reasons
stated

We are not informed how long the confinement continued. As stated previously
we are only advised that in July, 1971, before argument or briefing of this
appeal, appellant was turned over to the California authorities

You might also like