George Elmer Black v. Warden, United States Penitentiary, 467 F.2d 202, 10th Cir. (1972)
George Elmer Black v. Warden, United States Penitentiary, 467 F.2d 202, 10th Cir. (1972)
2d 202
released from the isolation unit custody complained of, there is no remaining
controversy and the case is moot.
3
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