After being transferred, without explanation or hearing, from a
medium security to a maximum security prison in New York because of
his involvement in a conflict among inmates concerning a petition
for a prisoners' "union" at the former prison, respondent brought
suit under 28 U.S.C. §§ 1343(3) and (4) and 42 U.S.C. § 1983
against petitioner prison officials, seeking declaratory and
injunctive relief. The District Court, granting relief in part,
ruled that the transfer violated the Due Process Clause of the
Fourteenth Amendment, because it was made without any explanation
to respondent or opportunity to be heard. The Court of Appeals
affirmed with some modification, holding,
inter alia, that
the suit was not mooted by the fact that respondent was returned to
the medium security prison prior to the District Court's ruling.
Respondent was later transferred to a minimum security prison, and
will soon be eligible for parole.
Held: In light of respondent's return to the medium
security prison and later transfer to a minimum security prison,
the suit does not present a case or controversy as required by Art.
III of the Constitution, but is now moot, and must be dismissed,
since, as to the original complaint, there is now no reasonable
expectation that the wrong will be repeated, and the question
presented does not fall within the category of harm capable of
repetition, yet evading review. Pp.
422 U. S.
401-403.
499 F.2d 1214, vacated and remanded.
BURGER, C.J., delivered the opinion of the Court, in which
BRENNAN, STEWART, WHITE, MARSHALL, BLACKMUN, POWELL, and REHNQUIST,
JJ., joined. MARSHALL, J., filed a concurring statement, post, p.
422 U. S. 404.
DOUGLAS, J., filed a dissenting statement,
post, p.
422 U. S.
404.
Page 422 U. S. 396
MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
Respondent Newkirk has been an inmate of the New York prison
system since his conviction for murder in the second degree in
1962. He had initially been confined at the Ossining Correctional
Facility and, subsequently, at the Attica Correctional Facility,
the Green Haven Correctional Facility, and the Auburn Correctional
Facility. These facilities were maximum security institutions
[
Footnote 1] at the time
respondent was confined in them, and are located in different parts
of New York. In April, 1971, nine years after his initial
confinement, he was transferred to the Wallkill Correctional
Facility, a medium security institution. The District Court and
Page 422 U. S. 397
the Court of Appeals found, and it is not seriously disputed
here, that the Wallkill facility is "unique," and has advantages
over other correctional institutions in the New York system in that
there are fewer restrictions and physical restraints, as well as a
more comprehensive rehabilitation program.
Early in 1972, a petition aimed at the formation of a prisoners'
"union" was circulated at Wallkill. This event produced some
vociferous controversy among the prisoners. Tension among the
inmates, according to the District Court, stemmed in part from the
hostility of an existing prisoner representative committee toward
the "union" movement. The prison administration, however, did not
forbid or actively discourage the circulation of the petition. The
administrators did, however, monitor the level of unrest within the
prison brought on by the clash of opinions on the petition. On June
2, 1972, there was a general meeting of the inmates at which the
petition was discussed loudly by the contending factions; the
meeting dispersed peacefully, however, without incidents of
violence. Respondent did not attend this meeting, but he had
previously signed a proposed "union" constitution and, immediately
prior to the meeting, had received a petition from a fellow inmate,
signed it, and passed it along.
A report prepared by the assistant deputy superintendent
identified Newkirk as one of the inmates who had been canvassing
for the "union," but did not charge him with any violation of
regulations or misconduct. This report -- including its naming of
Newkirk -- was apparently based on information other officers had
given the assistant deputy superintendent. Newkirk was not afforded
an opportunity to give his account. The following day, on June 6,
1972, the superintendent called the central office of the
Department of Corrections and
Page 422 U. S. 398
arranged for transfer of several inmates, including Newkirk, to
other facilities within the state corrections system. The transfer
of Newkirk was effected on June 8. He was summoned to the infirmary
and informed that he was being transferred.
Newkirk was transferred to the Clinton Correctional Facility, a
maximum security institution. The conditions for the general prison
population at Clinton were substantially different from those at
Wallkill. At Clinton, the cells are locked, access to the library
and recreational facilities is more limited, and the rehabilitation
programs are less extensive. Newkirk requested a truckdriving
assignment when he arrived at Clinton, and understood he was on a
waiting list. He was then assigned to the residence of the
superintendent of Clinton at the same wage he earned at Wallkill.
Since Newkirk's family lived in New York City, 80 miles from
Wallkill but 300 miles from Clinton, his transfer to Clinton made
visits by his family more difficult.
Newkirk and three of the other four prisoners transferred from
Wallkill brought suit in the United States District Court for the
Southern District of New York, pursuant to 28 U.S.C. §§ 1343(3) and
(4), and 42 U.S.C. § 1983, against the superintendent of Wallkill
and the State Commissioner of Correctional Services. They requested
a declaratory judgment that the transfers were in violation of the
Constitution and laws of the United States and an injunction
ordering their return to Wallkill, expunging all record of their
transfer, and prohibiting future transfers without a hearing. The
District Court denied a preliminary injunction, but set the case
for trial on an accelerated basis. Prior to the commencement of the
trial, two of the plaintiffs were released and the complaint was
dismissed insofar
Page 422 U. S. 399
as it related to them. During the trial, another plaintiff was
released, and the action was dismissed as to him as well;
subsequently, Newkirk was returned to Wallkill. The superintendent
of that institution also had a memorandum placed in respondent's
file which explained the nature of the transfer, noted that the
transfer was not for disciplinary reasons, and was not to have any
bearing on eligibility for parole or the decisions of the
time-allowance committee.
The District Court held that the transfer violated the Due
Process Clause of the Fourteenth Amendment since it had been made
without any explanation to Newkirk or opportunity to be heard. The
court entered a declaratory judgment which required that Newkirk be
given such an explanation and an opportunity to be heard in
connection with any future transfer, and further declared that no
adverse parole action could be taken against Newkirk or punishment
administered because of the transfer. It held that Newkirk should
be informed of the scope of permissible behavior at Wallkill and
the circumstances which would warrant his transfer to another
prison in the future. At the same time, however, the court refused
the prayer for an injunction against future summary transfers
because it was "not persuaded that the threat of transfer is
sufficiently great at this time . . ."
Newkirk v.
Butler, 364 F.
Supp. 497,
504
(1973); the court concluded that, "in the present posture of the
case, there is not a sufficiently delineated controversy to merit
its adjudication,"
id. at 500. Noting that
"an explanatory note has been included with the record of
transfer, and that no action adverse to plaintiff, whether with
reference to parole or discipline, will be based on this
information . . . ,"
id. at 504, the court also denied a request that all
record of the transfer be expunged from his file.
Page 422 U. S. 400
The Court of Appeals affirmed the judgment with some
modification. 499 F.2d 1214 (CA2 1974). It held that, when a
prisoner suffers a "substantial loss" as a result of the transfer,
"he is entitled to the basic elements of rudimentary due process,
i.e., notice and an opportunity to be heard,"
id.
at 1217, whether or not his transfer is part of a formal
disciplinary proceeding and whether or not it has any adverse
parole consequences. Noting that there were no formal disciplinary
proceedings in this case, the Court of Appeals relied on the fact
that the transfer changed Newkirk's living conditions, his job
assignment, and training opportunities. However, although agreeing
that advance publication of "rules," violation of which might
result in transfer, "would serve the salutary function of avoiding
misunderstanding and resentment . . . ,"
id. at 1219, the
Court of Appeals concluded that requiring prison officials to draw
up such rules would place officials in "an unnecessary straight
jacket [
sic]."
Ibid. It therefore modified the
judgment of the District Court to remove this requirement from its
order. Although specifically noting that Newkirk had been returned
to Wallkill from Clinton, the Court of Appeals held that the suit
was not moot, since "[e]ven after his return, he remained subject
to a new transfer at any time. . . ."
Ibid. Furthermore,
despite the District Court's reliance on the good faith assurances
of prison officials that the transfer would not have an adverse
effect on Newkirk's parole possibility, the Court of Appeals
concluded he was "entitled to a judicial decree to that effect."
Ibid.
We granted petitioners' petition for writ of certiorari which
presented the following question:
"Whether a prison inmate who is transferred within a state from
a medium security institution to a maximum security
institution,
Page 422 U. S. 401
without the imposition of disciplinary punishment, is entitled
under the Due Process Clause of the Fourteenth Amendment to notice
of the reasons for the transfer and an opportunity to be heard?
[
Footnote 2]"
In granting the petition, however, the Court directed that the
parties brief and argue the question of mootness. 419 U.S. 894
(1974).
All of the developments since the original challenged transfer
must be read in light of not only Newkirk's transfer to Wallkill,
but also his later transfer, after the decision of the Court of
Appeals, to the Edgecombe Correctional Facility, a minimum security
institution in New York City. Newkirk will be eligible for parole
in July, 1975. [
Footnote 3]
The exercise of judicial power under Art. III of the
Constitution depends on the existence of a case or controversy. As
the Court noted in
North Carolina v. Rice, 404 U.
S. 244,
404 U. S. 246
(1971), a federal court has neither the power to render advisory
opinions nor "to decide questions that cannot affect the rights of
litigants in the case before them." Its judgments must resolve
"'a real and substantial controversy admitting of specific
relief through a decree of a conclusive character, as distinguished
from an opinion advising what the law would be upon a hypothetical
state of facts.'"
Ibid., quoting
Aetna Life Ins. Co. v. Haworth,
300 U. S. 227,
300 U. S. 241
(1937). As the Court noted last Term, in an opinion by MR. JUSTICE
BRENNAN,
Steffel v. Thompson, 415 U.
S. 452,
415 U. S. 459
n. 10 (1974):
"The rule in federal cases is that an actual controversy must be
extant at all stages of review, not merely at the time the
complaint is filed.
See, e.g., 410 U. S. Wade, 410 U.S.
[113,]
410 U. S. 125 [(1973)];
Page 422 U. S. 402
SEC v. Medical Comm. for Human Rights, 404 U. S.
403 (1972);
United States v. Munsingwear, Inc.,
340 U. S.
36 (1950)."
In
Maryland Casualty Co. v. Pacific Co., 312 U.
S. 270 (1941), this Court, noting the difficulty in
fashioning a precise test of universal application for determining
whether a request for declaratory relief had become moot, held
that, basically,
"the question in each case is whether the facts alleged, under
all the circumstances, show that there is a substantial
controversy, between parties having adverse legal interests,
of
sufficient immediacy and reality to warrant the issuance of a
declaratory judgment."
Id. at
312 U. S. 273
(emphasis supplied). This is not a class action, and Newkirk has
not sought damages. As noted,
supra, before the ruling of
the District Court, Newkirk had been transferred back to Wallkill
and had been there for 10 months. No adverse action was taken
against him during that period. A notation had been made in his
file expressly stating that the transfer "should have no bearing in
any future determinations made by the Board of Parole or the time
allowance committee." Newkirk has now been transferred, as noted
above, to a minimum security facility in New York City. It is
therefore clear that correction authorities harbor no animosity
toward Newkirk. We have before us more than a "[m]ere voluntary
cessation of allegedly illegal conduct,"
United States v.
Concentrated Phosphate Export Assn., Inc., 393 U.
S. 199,
393 U. S. 203
(1968), where we would leave "[t]he defendant . . . free to return
to his old ways."
United States v. W. T. Grant Co.,
345 U. S. 629,
345 U. S. 632
(1953). As to Newkirk's original complaint, there is now "
no
reasonable expectation that the wrong will be repeated,'"
id. at 345 U. S. 633,
quoting United States v. Aluminum Co. of America, 148 F.2d
416, 448 (CA2 1945).
Page 422 U. S. 403
Any subjective fear Newkirk might entertain of being again
transferred, under circumstances similar to those alleged in the
complaint, or of suffering adverse consequences as a result of the
1972 transfer, is indeed remote and speculative, and hardly casts
that "continuing and brooding presence" over him that concerned the
Court in
Super Tire Engineering Co. v. McCorkle,
416 U. S. 115,
416 U. S. 122
(1974). As the Court noted in
United States v. SCRAP,
412 U. S. 669,
412 U. S.
688-689 (1973),
"pleadings must be something more than an ingenious academic
exercise in the conceivable. A plaintiff must allege that he has
been or will, in fact, be perceptibly harmed by the challenged
agency action, not that he can imagine circumstances in which he
could be affected by the agency's action."
Similarly, while there is always the possibility that New York
authorities might disregard the specific record notation that the
transfer should have no effect on good time or parole decisions in
regard to Newkirk, "such speculative contingencies afford no basis
for our passing on the substantive issues [Newkirk] would have us
decide . . . ,"
Hall v. Beals, 396 U. S.
45,
396 U. S. 49
(1969). The record of events since the challenged transfer hardly
bears out a genuine claim of an injury or possible injury "of
sufficient immediacy and reality to warrant the issuance of a
declaratory judgment."
Maryland Casualty Co., 312 U.S. at
312 U. S. 273.
Newkirk, as noted above, will be eligible for parole within a
matter of days.
See supra at
422 U. S.
401.
We conclude that the question presented does not fall within
that category of harm "capable of repetition, yet evading review,"
Southern Pacific Terminal Co. v. ICC, 219 U.
S. 498,
219 U. S. 515
(1911);
Roe v. Wade, 410 U. S. 113,
410 U. S. 125
(1973). Accordingly, we vacate the judgment of the Court of Appeals
and remand the case to that court
Page 422 U. S. 404
with directions that the complaint be dismissed by the District
Court.
United States v. Munsingwear, Inc., 340 U. S.
36,
340 U. S. 39
(1950).
It is so ordered.
MR. JUSTICE DOUGLAS dissents from the holding of mootness, and
would affirm the judgment below.
[
Footnote 1]
New York State has six correctional facilities that are
designated as maximum security institutions: Attica, Auburn,
Clinton, Green Haven, Ossining, and Great Meadow. Eight facilities,
or portions thereof, are designated as medium security institution:
Adirondack, Bedford Hill, Coxsackie, Elmira, Eastern, Fishkill,
Tappon, and Wallkill. Six others are designated minimum security
institutions: Albion, Bayview, Edgecombe, Parkside, Rochester, and
Taconic. There are also four minimum security correctional camps.
See 7 NYCRR, pt. 100, §§ 100.1-100.94.
[
Footnote 2]
Pet. for Cert. 2.
See this Court's Rule 23(1)(c).
[
Footnote 3]
Tr. of Oral Arg. 7, 22; Brief for Respondent 10.
MR. JUSTICE MARSHALL, concurring.
I join this opinion only because, for some reason, respondent
did not file this case as a class action. As a result, the State of
New York, by releasing the other three named plaintiffs,
transferring respondent back to Wallkill after the District Court
action, and finally to a lesser correctional facility after the
Court of Appeals acted, thereby made the case moot.