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decided: May 23, 1978.



Author: Per Curiam

[ 436 U.S. Page 407]

 This appeal presents a challenge under the Due Process Clause of the Fourteenth Amendment to a state statute which authorizes the transfer of a state prisoner, without his consent, to a state mental hospital upon a finding by a physician or psychologist that the prisoner suffers from a mental disease or defect and that he cannot be given proper treatment within the facility in which he is confined.*fn1

[ 436 U.S. Page 408]

     Appellee Larry D. Jones*fn2 was convicted of the crime of robbery and was sentenced to a prison term of three to nine years. In May 1974, he began serving his sentence at the Nebraska Penal and Correctional Complex, a state prison. In January 1975, appellee was transferred to the penitentiary hospital; two days later he was placed in solitary confinement in the prison adjustment center. While there, appellee set his mattress on fire and suffered serious burns. Appellee was transferred by ambulance to the burn unit of a private hospital where he remained for some four months. In April 1975, immediately following his release from the hospital, appellee was transferred to the security unit of the Lincoln Regional Center, a hospital facility owned and operated by the State of Nebraska for the purpose of providing treatment for persons afflicted with emotional and mental disorders.

In advance of his transfer to Lincoln Regional Center,

[ 436 U.S. Page 409]

     appellee was examined by a psychiatrist as required by Neb. Rev. Stat. § 83-180 (1976). The evidence adduced before the District Court revealed that, when asked by the examining psychiatrist whether or not he wished to be transferred, appellee answered that he did. However, the District Court deemed the transfer to have been involuntary because appellee was offered no means of obtaining independent advice on the subject and because, in the view of the District Court, appellee "may well not have been competent to exercise a free choice."*fn3 It is undisputed that, in transferring appellee from a prison facility to a mental institution, the correctional authorities exercised the authority conferred on them by the state statute challenged here.

In April 1976, appellee filed a complaint in the United States District Court for the District of Nebraska seeking to intervene in a civil rights action brought by a state prisoner who, like appellee, had been transferred from the State Penal Complex to Lincoln Regional Center.

The three-judge District Court agreed that due process attached to plaintiffs' asserted liberty interest and declared § 83-180 (1) unconstitutional as applied. Miller v. Vitek, 437 F.Supp. 569. The District Court also enjoined the transfer of any state prisoner from a penal facility to a mental institution except in compliance with procedures similar to those identified in this Court's opinions in Morrissey v. Brewer, 408 U.S. 471 (1972), and Wolff v. McDonnell, 418 U.S. 539 (1974). Additional procedures set forth by the District Court require the State to furnish the inmate with effective and timely notice of his rights and, in the case of an indigent inmate, with legal counsel. We noted probable jurisdiction.*fn4

On November 17, 1977,*fn5 the Nebraska Board of Parole

[ 436 U.S. Page 410]

     granted appellee parole for the purpose of allowing him to receive in-patient psychiatric care at the Veterans Hospital in Danville, Ill. During the course of oral argument in this Court, appellee's counsel advised the Court that appellee has accepted the parole offered to him and agreed to treatment at the Veterans Hospital. Moreover, according to counsel, appellee is now cooperating with the medical staff assigned to his care and voluntarily taking medication prescribed for him.*fn6

In light of these disclosures, the judgment of the United States District Court for the District of Nebraska is hereby vacated, and the case is remanded to the District Court for consideration of the question of mootness.

Vacated and remanded.


437 F.Supp. 569, vacated and remanded.

MR. JUSTICE STEVENS, dissenting.

The question whether a person convicted of a crime has a constitutional right to a hearing before being involuntarily placed in a mental institution is an important one. In this case the three-judge District Court answered that question in the affirmative and entered an injunction protecting appellee against the risk of an arbitrary transfer. As long as he remains in appellants' custody, he will continue to encounter that risk unless the District Court's injunction remains in effect. Recognizing this, the District Court explicitly provided that appellants "are enjoined from transferring . . . Larry D. Jones, at any time before his complete discharge from the custody of the State of Nebraska,"*fn1 without following the mandated procedures.

It is undisputed that Jones remains in the custody of the State of Nebraska.*fn2 At the moment, he is on limited parole, and, as a condition of that parole, is receiving in-patient

[ 436 U.S. Page 411]

     psychiatric services in Danville, Ill. I have previously expressed my disagreement with this Court's conclusion that a parole release moots a controversy between a prisoner and the State over proper parole procedures, see Scott v. Kentucky Parole Board, 429 U.S. 60 (STEVENS, J., dissenting), and what was said in Scott applies with even greater force here. For unlike Scott, Jones has not challenged the Nebraska parole procedures, and his limited release on parole does not even arguably moot this live controversy between two adverse litigants. Jones challenged the procedures provided for the transfer of a criminal convict under the State's custody to a mental hospital. He is still in a mental hospital; he is still under the State's custody; and if he refuses treatment at this hospital, the State asserts the right to transfer him, involuntarily and without a hearing, to another mental hospital. In short, nothing has happened to destroy or even substantially lessen Jones' interest in preserving the injunction entered below, and appellants' interest in vindicating the Nebraska statute is similarly unaffected. I therefore respectfully dissent from the Court's disposition of this appeal.


* Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Edward P. O'Brien, Assistant Attorney General, and John T. Murphy, Karl S. Mayer, and Thomas P. Dove, Deputy Attorneys General, filed a brief for the State of California as amicus curiae urging reversal.

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