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PERSICO v. GUNNELL

March 11, 1983

CARMINE PERSICO, Plaintiff,
v.
ROBERT A. GUNNELL, as Warden of the Federal Correctional Institution at Danbury, Connecticut, and J. MICHAEL QUINLAN, as Warden of the Federal Correctional Institution at Otisville, New York, Defendants



The opinion of the court was delivered by: MOTLEY

MOTLEY, C.J.

 This is an action for damages and injunctive relief in which plaintiff claims to have suffered violations of his rights under the Fifth, Eighth and Ninth Amendments to the Constitution by virtue of a series of inter-prison transfers. Plaintiff Carmine Persico (Persico) is a federal prisoner. Defendants, who are sued in their official and individual capacities, are Robert A. Gunnell (Gunnell), warden of the Federal Correctional Institution at Danbury, Connecticut (Danbury), and J. Michael Quinlan (Quinlan), warden of the Federal Correctional Institution at Otisville, New York (Otisville). This court has subject matter jurisdiction of this action under 28 U.S.C. § 1331 (Supp. V 1981). *fn1"

 The case is now before the court on defendants' motion to dismiss the complaint for failure to state a claim upon which relief can be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons stated below, defendants' motion is granted.

 Facts2

 In July of 1982, Persico was incarcerated at Danbury. On or about July 29, 1982, certain prisoners at Danbury staged a work strike. Persico did not participate in the work strike, and so informed the prison officials upon interrogation. Persico was advised by Danbury personnel that he would not be punished or transferred, since he had not been involved in the work strike, and indeed, had volunteered to take on extra work.

 In the early morning hours of July 31, 1982, however, Persico was, without prior notice or hearing, removed from Danbury and transferred to the Federal Correctional Institution at Lewisburg, Pennsylvania (Lewisburg). He was subsequently transferred from Lewisburg to Michigan, and then to the Federal Correctional Institution at Lompoc, California (Lompoc). Persico was later returned to the East Coast, and was incarcerated at Otisville. *fn3"

 In his original complaint, Persico alleged that defendants had violated his rights under the Fifth, Eighth, and Ninth Amendments "by subjecting him to arbitrary and unwarranted transfers to other federal correctional institutions without prior notice and without any opportunity to be heard." *fn4" Defendant Gunnell was alleged to have "initiated, recommended or approved" Persico's transfer from Danbury and all subsequent transfers, "in utter disregard of plaintiff's safety and welfare, and in complete disregard of the needs of plaintiff's wife and children." *fn5" Persico asserted that he was still subject to "imminent transfer" by defendant Quinlan. *fn6" The past transfers and threat of future transfers were said to have caused Persico "anxiety" and "uncertainty," and to have interfered with "a stable adjustment to institutional life," as well as to have been a source of "great anguish for plaintiff's wife and children." *fn7"

 Persico sought "compensatory and exemplory [sic] monetary damages" against Gunnell in the combined amount of $50,000, as well as injunctive relief against Quinlan prohibiting further transfers except at the direction of the court, and a hearing with respect to Persico's claims. *fn8"

 Procedural History

 The case came before the court on December 22, 1982 on order to show cause. Persico sought an order temporarily restraining Quinlan from transferring plaintiff from Otisville. In addition to the allegations of the complaint, Persico alleged that one of his sons was under psychiatric treatment which required that Persico remain close to his home in New York City. *fn9" The court denied Persico's application, and scheduled a hearing on the motion for a preliminary injunction for January 17, 1983.

 On January 4, 1983, Persico filed an amended complaint. The factual allegations of the amended complaint are substantially similar to those outlined above, with the following exceptions. Persico now alleges that defendants' actions are a "continuing, deliberate course of arbitrary, unwarranted and punitive transfers"; *fn10" defendants' actions are alleged to have been taken "deliberately and in bad faith," *fn11" in disregard of the needs of Persico and his mother in addition to those of Persico's wife and children; *fn12" and defendants' actions are alleged to "constitute continued, ongoing selective persecution." *fn13" Damages are now sought against both defendants, jointly and severally, in a total amount of $50,000. *fn14"

 The instant motion to dismiss the complaint was filed on January 11, 1983. By consent of the parties, the hearing on Persico's application for a preliminary injunction was postponed until after a decision has been rendered on defendants' motion to dismiss.

 On January 20, 1983, an oral application was made to the court for an order temporarily restraining a scheduled transfer of Persico to Lewisburg, and thence to Lompoc. After argument, the court found that no showing had been made of irreparable harm, and declined to issue the requested order. *fn15"

 The court has been informed that the transfer to Lompoc was accomplished, and that Persico is currently incarcerated at that facility.

 Discussion

 "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957) (footnote omitted).

 I. Fifth Amendment Claims:

 When presented with a challenge under the Due Process Clause to governmental action, the court must look to the nature of the claimed interest, rather than its weight. Meachum v. Fano, 427 U.S. 215, 224, 49 L. Ed. 2d 451, 96 S. Ct. 2532, reh'g denied, 429 U.S. 873, 97 S. Ct. 191, 50 L. Ed. 2d 155 (1976) (citation omitted).

 It is well settled that a convicted prisoner has no right to be incarcerated in a particular institution, and that the Due Process Clause, absent some right created by statute, regulation or policy, affords no protections against inter-prison transfers.

 In Meachum, an action brought by state prisoners pursuant to 42 U.S.C. § 1983 challenging their transfers to a less favorable institution within the state without an adequate factfinding hearing, the Court "reject[ed] at the outset the notion that any grievous loss visited upon a person by the State is sufficient to invoke the procedural protections of the Due Process Clause." 427 U.S. at 224 (emphasis in original).

 
Given a valid conviction, the criminal defendant has been constitutionally deprived of his liberty to the extent that the State may confine him and subject him to the rules of its prison system so long as the conditions of confinement do not otherwise violate the Constitution. . . . The conviction has sufficiently extinguished the ...

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