508 F2d 888 Wheeler v. K Procunier

508 F.2d 888

Houston A. WHEELER, Jr., Plaintiff-Appellant,
v.
Raymond K. PROCUNIER, Defendant-Appellee.

No. 72-1523.

United States Court of Appeals, Ninth Circuit.

Dec. 23, 1974.

J. Anthony Kline, Public Advocates, Inc., San Francisco, Cal., for plaintiff-appellant.

W. Eric Collins, Deputy Atty. Gen. (appeared), San Francisco, Cal., for defendant-appellee.

Before BARNES and TRASK, Circuit Judges, and THOMPSON,* District judge.

BARNES, Circuit Judge:

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1

The appellant, a state prisoner, appeals from the dismissal of his complaint by the district court, which found the action failed to state a claim upon which relief can be granted. The complaint was brought under the provisions of 28 U.S.C. 1343(3) and 42 U.S.C. 1983. The primary issue raised with any specific and nonconclusory language in appellant's pro se complaint was the claim that he was transferred from the general prison population to 'punitive segregation' confinement, without receiving due process safeguards, thus abridging his Fourteenth Amendment rights.

2

We now grant the rehearing requested by appellees.

3

This is, then, the third time that this case has come before this Court.1 This rehearing is granted to assess the impact of the nonretroactivity holding in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), both on this Court's decision in Clutchette v. Procunier, 497 F.2d 809 (9th Cir. 1974), as modified on rehearing October 21, 1974, and our previous opinions in this case.

4

The California Department of Corrections conducts 20,000 disciplinary actions annually (exclusive of juvenile or female infractions or transfers).2 For this Court to apply Clutchette retroactively would release a deluge of actions by inmates seeking to resurrect old infractions in the hope of affecting present parole considerations. We find the same governmental interests in efficient prison administration which led the Supreme Court in Wolff to limit that decision's affect only to prospective application, are also present here. We therefore hold that our decision in Clutchette shall only be applied prospectively. Cf. M'Clary v. California Adult Authority No. 74-1281 Memorandum (9th Cir. decided 8/6/74); Goodman v. Kerr, No. 74-1778 1778 Memorandum (9th Cir. decided 9/13/74). The alleged violation in this case occurring in the fall of 1971, being both pre-Clutchette, and pre-Wolff, we find that the district court did not err in dismissing appellant's action pursuant to Rule 12(b)(6) F.R.Civ.P.

5

Our prior opinions of January 14, 1974 and September 16, 1974 are vacated, and the decision of the district court dismissing appellant's action is

6

Affirmed.

*

The Honorable Gordon Thompson, Jr., United States District Judge for the Southern District of California, sitting by designation

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1

We heretofore denied relief in this case under date of January 14, 1974. Subsequently we granted a rehearing and reversed the district court on September 16, 1974, based on the original Clutchette opinion. On October 21, 1974, an 'Opinion on Rehearing' was issued in Clutchette modifying the original Clutchette opinion

2

(Letterhead of State of California-- Health and Welfare Agency Department of Corrections Sacramento Ronald Reagan, Governor)

March 5, 1974

Honorable Evelle Younger

Attorney General of California

300

McAllister Street

San Francisco, California 94102

Dear Sir:

SUBJECT: Population/Disciplinary Statistics-- 1973.

Records and files in this office, and information received from the various institutions, show the following totals:

                                                       1973
                                          1973     Disciplinary
             Institution               Population    Hearings
Sierra Conservation Center ................ 2,085         1,584
California Conservation Center .............. 721           479
California Correctional Institution ....... 1,150         1,314
California Men's Colony ................... 2,616         2,766
California Medical Facility ............... 1,961         1,449
California Rehabilitation Center .......... 1,617         1,712
Correctional Training Facility ............ 2,667         3,147
Deuel Vocational Institution .............. 1,505         2,511
Folsom .................................... 2,037         1,199
San Quentin ............................... 3,096         2,727
California Institution for Men ............ 2,102           940
California Institution for Women ............ 929           662
                                       ----------  ------------
                        Total ............ 22,486        20,490

Sincerely, (s) L. M. Stutsman For R. K. Rrocunier Director of Corrections

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