APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. 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.
CARTER, Chief District Judge. Appellee Vladimir 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
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 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. Section(s) 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 C.F.R. Section(s) 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
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 Constitution prohibits disciplining pretrial detainees who violate prison rules in the manner imposed here because doing so amounts to impermissible punishment.3 To a great extent, both 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,
* Of the District of Maine, sitting by designation.
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.
2. Section 541.20(a) provides:
Except as provided in paragraph (b) of this section, an inmate may be placed in disciplinary segregation only by order of the Disciplinary Hearing Officer 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. 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 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.