Delbert Kaahanui Wakinekona v. Antone Olim, Edith M. Wilhelm, John Smythe, Winton Leong and Edwin Shimoda

664 F.2d 708 Delbert Kaahanui WAKINEKONA, Plaintiff/Appellant, v. Antone OLIM, Edith M. Wilhelm, John Smythe, Winton Leong and Edwin Shimoda, Defendants/Appellees. No. 78-3092. United States Court of Appeals, Ninth Circuit. Submitted Aug. 14, 1980. Decided May 26, 1981. As Amended on Denial of Rehearing and Rehearing En Banc Nov. 27, 1981. Clayton C. Ikei, Honolulu, Hawaii, for plaintiff/appellant. Michael A. Lilly, Honolulu, Hawaii, for defendants/appellees. Appeal from the United States District Court for the District of Hawaii. Before GOODWIN, FLETCHER and CANBY, Circuit Judges. CANBY, Circuit Judge. 1 In August 1976, Delbert Kaahanui Wakinekona sought to challenge his transfer from Hawaii State Prison to Folsom State Prison in California. Wakinekona sued in the Federal District Court for the District of Hawaii under 42 U.S.C. § 1983 , alleging that he was transferred in violation of the due process clause of the fourteenth amendment. The district court dismissed his complaint, holding that the Hawaii statutes and regulations governing prison transfers did not create a substantive liberty interest protected by the due process clause. Wakinekona appealed the resulting…

In August 1976, Delbert Kaahanui Wakinekona sought to challenge his transfer from Hawaii State Prison to Folsom State Prison in California. Wakinekona sued in the Federal District Court for the District of Hawaii under 42 U.S.C. § 1983 , alleging that he was transferred in violation of the due process clause of the fourteenth amendment. The district court dismissed his complaint, holding that the Hawaii statutes and regulations governing prison transfers did not create a substantive liberty interest protected by the due process clause. Wakinekona appealed the resulting judgment. We reverse the decision of the district court, 459 F.Supp. 473 .

I.

Wakinekona was an inmate of the Hawaii State Prison, sentenced to life imprisonment and confined to the maximum control unit. On August 2, 1976, he appeared at a program classification hearing, the stated purpose of which was to determine the reason for the failure of programs within the maximum control unit. As a result of that hearing, Wakinekona was one of two inmates singled out as troublemakers. On August 5, he received notice that the prison program committee would consider at an August 10 hearing whether he should be transferred…

dissenting.

The issue is not whether Hawaii’s prison authorities should transfer state prisoners without certain formalities, 1 but whether the federal constitution compels the state officers to follow to the letter those local regulations that provide inmates with an “impartial program committee” hearing if a change in prison classification results “in a grievous loss.” Because I can find no federal constitutionally-protected interest in having the state follow its own rules in this case, I would affirm the district court’s dismissal of this prisoner’s § 1983 challenge.

*713 Meachum v. Fano, 427 U.S. 215, 224 , 96 S.Ct. 2532, 2538 , 49 L.Ed.2d 451 (1976), reasoned that it is the nature, rather than the weight, of the individual interest at stake that involves due process. Thus Meachum held that the federal constitution does not apply to transfers of inmates “absent some right or justifiable expectation rooted in state law that [the inmate] will not be transferred except for misbehavior or upon the occurrence of other specified events.” Montanye v. Haymes, 427 U.S. 236, 242 , 96 S.Ct. 2543, 2547 , 49 L.Ed.2d 446 (1976) (quoting Meachum) 2 . For appellant to succeed here,…

On Petition for Rehearing and Suggestion for Rehearing En Banc

The State in its petition for rehearing directs our attention to Lono v. Ariyoshi, 621 P.2d 976 (Hawaii 1981). In that case the Supreme Court of Hawaii dealt with the same transfer regulations involved in the present case. It held that no fourteenth amendment liberty interest was created by the regulations because the prison administrator had unlimited discretion to order a transfer or not. 621 P.2d at 980-81 . With all due respect to the Hawaii Court’s conclusion, we do not find it controlling here.

It is of course the sole prerogative of the highest state court to determine the meaning of a state statute or regulation. Once that meaning is determined, however, it is a federal question whether the interest created by the state statute or regulation is to be accorded protection under the fourteenth amendment. Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1, 9 , 98 S.Ct. 1554, 1560 , 56 L.Ed.2d 30 (1978).

*715 We do not read Lono v. Ariyoshi as having interpreted Regulation IV differently from this court. While the Hawaii Court points out, as did this court, that the prison administrator ultimately has…