author: SIMMONS, District Judge.

text:
    The PEOPLES NATURAL GAS COMPANY, Plaintiff, v. ASHLAND OIL, INC., Defendant.
    Civ. A. No. 84-120.
    United States District Court, W.D. Pennsylvania, Pittsburgh Division.
    March 26, 1985.

      John R. Kenrick, Patricia L. Dodge, Eckert, Seamans, Cherin & Mellott, Pittsburgh, Pa., for plaintiff.
    Theodore O. Struk, Larry A. Silverman, Dickie, McCamey & Chilcote, Pittsburgh, Pa., for defendant.
   OPINION

SIMMONS, District Judge.

This is an admiralty action arising out of a collision between a towboat and a stationary submarine gas pipeline.

The Peoples Natural Gas Company, owner of a natural gas pipeline extending across the Monongahela River, brought this suit for damages against Ashland Oil, Inc., owner and operator of a towboat that struck and ruptured Peoples’ pipeline while attempting to dock an oil barge. Peoples contends that this is a case of negligent pilotage. At trial, Peoples proceeded under the theory that the towboat pilot’s negligence in the navigation of his vessel was the legal cause of the damage sustained by Peoples’ pipeline. The defendant, on the other hand, contends that this is a case of statutory fault. Ashland Oil asserts that Peoples’ violation of navigational regulations was the cause in fact of the collision, not the pilot’s negligence.

This ease was tried to the Court sitting without a jury. After consideration of the applicable rules of law and the evidence adduced at trial, this Court makes the following findings of fact and conclusions of law, followed by an integrated discussion of both.

I. FINDINGS OF FACT.

1. On January 21,1981, Captain Eugene H. Dent was piloting the M/V Aetna Louisville, a towboat owned by Ashland Oil, Inc., to spot an oil barge at the Reserve Petroleum Dock along the western shore of the Monongahela River near mile post 40.8.

2. Prior to the late 1950s, the petroleum docking site along the river’s shore had been used as a lock channel, with gates at each end for raising or lowering vessels by admitting or releasing water. In the late 1950s, when the United States Corps of Engineers abandoned the lock, it became a docking facility for the American Oil Company. Two concrete walls, which were the easternmost and center walls of the lock chamber, now form the Reserve Petroleum Dock. A third wall, the westernmost wall of the abandoned lock, is now inland, the area between it and the center wall having been filled with soil.

3. The former lock chamber now used as a petroleum dock is 56 feet wide, but is only accessible from the downstream or northernmost position on the river because a gate sill, 1 foot below the river’s surface, impedes access to the dock from the upstream or southernmost position on the river. The sill on the northernmost or downstream position of the river is 10 feet below the river’s surface.

4. In the area where the lock’s gates were formerly installed, there are gate jamb recesses 3 feet deep and 30 feet long, the edges of which will fracture or puncture an oil barge if it is not properly aligned between the lock chamber walls during the docking procedure. When spotting barges at the dock, a towboat pilot’s visibility is impaired by the two lock walls which protrude 20 feet above the surface of the water. Together, these physical conditions pose a hazard for barges accessing the Reserve Petroleum Dock.

5. Proceeding upstream near mile post 40.8 the Monongahela River bends in a sharp easterly direction. The mouth of the lock chamber is situated along the western shore of the river’s curve. Because of the river’s easterly curvature, the location of the dock on the river’s western shore, and the absence of downstream access into the lock chamber, towboats must operate close to the western shore of the river downstream from the lock chamber’s entrance to spot barges between the lock walls at the Reserve Petroleum Dock.

6. On September 23, 1949, pursuant to an application made by Peoples, the United States Corps of Engineers issued a Department of Army permit to install a 14 and % inch (outside diameter) metal, non-coated gas pipeline across the Monongahela River between Fallowfield Township, Washington County and the City of Monessen, Westmoreland County. A similar Permit was issued by the Pennsylvania Water and Power Resources Board.

7. Two technical drawings which outlined Peoples’ proposed plan for constructing a pipeline across the Monongahela River were incorporated into the Corps’ permit. The permit expressly provided that only the work shown on the drawings was authorized, “[a]ny deviations therefrom or additions made without the prior permission of the [Corps was] illegal and subject to an order requiring removal.” See Department of Army Permit, Joint Trial Exhibit No. 2.

8. The permit’s technical drawings specified that the pipeline would be installed at a minimum depth in the channel area of 15 feet below the pool full elevation and 4 feet below the riverbed beyond both United States harbor lines, a distance which spans the entire width of the river.

9. Prior to issuance of the permit, the Corps gave notice to navigational interests that Peoples had made application for permission to install a pipeline. Consistent with the permit’s technical drawings, the public notice stated that “[t]he proposed pipe line will be [installed] at least 15 feet below pool full elevation ... or 4 feet below the bed of the river, whichever is the greater, for the width of the channel and 4 feet below the surface of the ground on each bank.” See Corps of Engineer Public Notice, Joint Trial Exhibit No. 4. No objections were made and the permit was issued.

10. Shortly after Peoples had completed its construction of the pipeline, the Corps’ Operation and Maintenance Division inspected the pipeline and determined that the installation had been done in accordance with the permit. Peoples thereafter submitted a profile of the submerged pipeline which was obtained by soundings. The profile also indicated that the location of the pipeline was in conformity with the permit.

11. On October 3, 1961, a marine diving contractor inspected Peoples’ pipeline and discovered that approximately 40 feet from the western shore, a 15 feet section of the pipe was exposed above the riverbed, that the river bottom immediately below the pipe was washed-out, and that barges with a draft of 8 and lk feet crossed directly over the exposed section of the pipeline to access the petroleum dock. The diver reported his findings to Peoples and suggested that Peoples jet out the river bottom beneath the pipeline for a distance of 250 feet from the western shore and lower the pipeline to a depth of 12 feet below the river’s surface. The diver opined that his recommendation would facilitate access to the petroleum dock by barges with drafts of 9 and V2 to 10 feet without hazard to Peoples’ pipeline.

12. Shortly following the diver’s inspection, Peoples made application to the Corps to riprap a 20 feet section of the pipeline. Riprapping is a technique whereby a quantity of broken stones or other masonry materials are thrown together irregularly to build a wall, foundation or reventment of an embankment. Peoples believed that the pipeline’s exposure resulted from docking activity at the petroleum dock. The technical drawing attached to Peoples application made specific engineering recommendations that the exposed area be riprapped with a material other than concrete. The permit was granted and notice of the repair was given. Contrary to the specific engineering recommendation against using concrete, Peoples riprapped the exposed pipeline using sakrete", a trademarked product consisting of a premixed dry concrete formula in a sack. Upon completion of the pipeline repair, Peoples notified the Corps that it had riprapped a 30 feet section of the pipeline and submitted a profile of the pipeline in the river after the repair had been made.

13. Following the repairs, Peoples’ pipeline was not inspected for exposure again until September 4, 1979, almost 18 years after the repairs. During this inspection the diver, using neither a probe nor an electronic device to determine the pipeline’s depth beneath the riverbed, made a visual inspection, zigzagging north and south over the pipeline. In his report the diver concluded that the pipeline was completely covered. At trial, however, the diver conceded that by using a zigzagging technique he may not have visually inspected the entire riverbed along the pipeline’s path. Nor did his inspection reveal how deep the pipeline was buried.

14. Peoples’ pipeline was installed approximately 350 feet downstream from the northern mouth of the Reserve Petroleum Dock. The location of the pipeline crossing is marked on navigation charts and by billboard signs posted on both banks of the river. The signs contain the following notice to mariners:

CAUTION

DO NOT ANCHOR

OR DREDGE

Gas Pipeline Crossing

Peoples Natural Gas Company

15. On the day of the collision which gave rise to this lawsuit, about 40 feet from the western shore of the Monongahela River a 15 to 20 feet section of Peoples’ pipeline sat exposed on top of the riverbed.

16. The Aetna Louisville, a large and powerful towboat is 150 feet long and 50 feet wide, with a draft of 8 feet 3 inches to 8 feet 6 inches. It has three propellers, each 8 feet in diameter and powered by a separate 1,600 horsepower engine. The towboat’s propellers are shielded by cort nozzles constructed of 6 inches thick plate steel. The evidence indicates that towboats of similar size, draft and horsepower regularly operate on the Monongahela River in the channel area where Peoples’ pipeline was ruptured.

17. Oil barge S-233, a large petroleum barge, is 295 feet long and 52 and lk feet wide, with a draft on the day of the accident of 6 to 7 feet. Barge S-233, which is similar in size to other barges spotted at the Reserve Petroleum Dock, had been previously used to deliver petroleum products to that docking facility. Oil barge S-233 and the Aetna Louisville has a combined length of 445 feet.

18. The collision between the Aetna Louisville and Peoples’ pipeline occurred 330 feet north of the Reserve Petroleum Dock while the towboat’s captain was attempting to remove an empty oil barge (C-236) from the dock and spot a partially loaded oil barge (S-233) in its place. The pipeline was ruptured 40 feet from the western shore of the river.

19. On the day of the collision, oil barge C-236 sat empty in the Reserve Petroleum Dock. At ten o’clock that evening, the Aetna Louisville’s captain, pushing barge S-233, maneuvered the port side of the barge at a slight angle approximately 5 feet into the northern end of the dock’s chamber walls. The towboat’s crew attached cable lines from barge S-233 to the empty barge and the captain slowly reversed his vessel, pulling both barges downstream and toward the river channel’s center.

20. After the empty barge was completely clear of the lock chamber walls, the captain maneuvered the empty barge around to the towboat’s port side. During this procedure, the towboats starboard, stern side bumped the river bottom near the western shore. The empty oil barge was then securely fastened to the towboat’s port side.

21. With the empty oil barge secured to its port side and barge 2-333 at its bow, the captain prepared the vessel for its approach into the lock chamber walls. The bow of barge S-233 again was maneuvered at a slight angle approximately 5 feet into the northern end of the lock chamber and brought to a complete stop. By crossing the vessel’s rudders, the captain moved the towboat toward the western shore of the river to align barge S-233 parallel to the lock chamber walls and then made his final approach into the dock.

22. Proceeding at “dead slow” speed— coasting with the clutch disengaged and the propellers stationary — the towboat’s captain pushed barge S-233 directly between the lock chamber walls. As the towboat crossed over Peoples’ pipeline, the captain felt his vessel tremble: the Aetna Louisville had struck and ruptured Peoples’ natural gas pipeline. When bubbles, followed by a geyser, emerged from the starboard side of the towboat about 40 feet from the river’s western shore, the United States Coast Guard was immediately notified.

23. Captain Dent knew of Peoples’ pipeline crossing from navigation charts and billboard signs on the river banks, but did not know that a 15 to 20 feet section of Peoples’ pipeline sat exposed on top of the riverbed.

II. CONCLUSIONS OF LAW.

1. This Court has jurisdiction of this admiralty and maritime tort collision case.

2. The presumption of negligence flowing from a moving vessel striking a stationary object serves no useful purpose in this case because the defendant has presented sufficient credible evidence to rebut the presumption that its vessel was negligent merely because it struck a stationary pipeline.

3. The scope of a towboat pilot’s duty of due care is determined by what he knew or should have known at the time of a collision. In this case the towboat captain could not have foreseen that Peoples’ pipeline sat exposed on top of the riverbed and therefore had no duty of due care to the pipeline in its exposed condition.

4. Under the facts of this case the towboat captain was not negligent in the operation of his vessel. A towboat pilot is only required to exercise the ordinary degree of care and skill commonly possessed by others in his profession. Peoples has failed to prove by a fair preponderance of the evidence that the towboat captain operated his vessel in a manner in which nautical experience and good seamanship would condemn as unreasonable under the circumstances. This Court therefore holds that Captain Dent operated his vessel reasonably and prudently under the circumstances.

5. The rule of statutory fault established by the United States Supreme Court in The Pennsylvania, 86 U.S. (19 Wall.) 125, 136, 22 L.Ed. 148 (1873), places the burden on the party who violates navigational rules to prove that his rule violation could not have been a cause of the marine collision. This Court holds that Peoples’ pipeline created an obstruction to navigation on the Monongahela River and that the terms of the United States Corps of Engineers’ permit were violated because Peoples’ failed to maintain its pipeline 4 feet below the riverbed. The Pennsylvania rule therefore applies in this case because Peoples violated an express congressional mandate that navigable waters be free from obstruction and violated the terms of the Corps’ permit, both of which are rules designed to prevent marine collisions.

6. Peoples has not met its heavy burden under The Pennsylvania of proving that its statutory violations could not have been a cause of the collision. Accordingly, this Court holds that Peoples’ exposed pipeline was the sole cause of the collision in this case.

III. DISCUSSION.

This is a case under admiralty and maritime jurisdiction. Although commonly admiralty collision cases involve collisions between two moving vessels, the same rules generally regulate accidents between a moving ship and a stationary ship or a fixed object. See Orange Beach Water, Sewer And Fire Protection Authority v. M/V Alva, 680 F.2d 1374 (11th Cir.1982); The Honeybrook, 6 F.2d 736 (2d Cir.1925); Marathon Pipe Line Co. v. Drilling Rig Rowan/Odessa, 527 F.Supp. 824 (E.D.La.1981), aff'd., 699 F.2d 240 (5th Cir.1983). Under admiralty jurisdiction in torts arising from collisions, the term collision is used in its broadest sense to encompass every case where a vessel strikes another vessel or some object afloat or not. See Admiralty Jurisdiction Extension Act, 46 U.C.S. § 740 (1948). See also Rodrigue v. Aetna Casualty Co., 395 U.S. 352, 360, 89 S.Ct. 1835, 1837, 23 L.Ed.2d 360 (1969).

Under maritime tort law, “collision liability is based on fault; the mere fact of impact has no legal consequence.” See The Java, 81 U.S. (14 Wall.) 189, 20 L.Ed. 834 (1871). For it is axiomatic in admiralty cases that “[t]he liability for damages is upon the ship or ships whose fault caused the injury.” See The Pennsylvania, 86 U.S. (19 Wall.) 125, 136, 22 L.Ed. 148 (1874); Stainback v. Rae, 55 U.S. (14 How.) 532, 538, 14 L.Ed. 530 (1852). The test of fault is simply whether the vessel’s navigator has acted as a reasonably prudent mariner under the circumstances of the case.

To apply the test of fault in admiralty cases, the navigator’s conduct is measured against accepted standards of navigation. These standards are derived from the statutory rules of navigation, regulations having the full force of law, proved local custom not contradicting statutory rules, and the requirements of due care and good seamanship. See generally, Gilmore & Black, The Law of Admiralty, § 7-3, at 488 (2d ed. 1975) and authority cited therein. Collectively, these rules prescribe the speed at which a vessel may travel, the lights it must display, the sounds and signals it must emit, the maneuvers it must make when encountering another vessel, and among other things, the vessels conduct in inclement weather.

Conceptually, maritime collision law is analagous to automobile accident law: the general principles are similar and both activities are statutorily regulated. As a practical matter, because marine vessels are far less maneuverable than land-bound vehicles, a plethora of statutes and regulations have evolved to eliminate the risk of marine collisions and to facilitate navigation. Unlike landbased tort collision law, however, violation of the maritime rules of the road constitutes statutory fault, a doctrine conceptually akin to the negligence per se doctrine. See, e.g., Jinks v. Currie, 324 Pa. 532, 188 A. 356 (1936); Gaskill v. Melella, 144 Pa.Super. 78, 18 A.2d 455 (1941).

The doctrine of statutory fault grew out of the need to enforce strict obedience to maritime rules designed to prevent collisions. In 1893, in a case involving a collision between two vessels in violation of maritime rules, the Supreme Court declared that:

when ... a ship at the time of a collision is in actual violation of a statutory rule intended to prevent collisions, it is no more than a reasonable presumption that the fault, if not the sole cause, was at least a contributing cause of the disaster. In such a case the burden rests upon the ship of showing not merely that her fault might not have been one of the causes, or that it probably was not, but that it could not have been. Such a rule is necessary to enforce obedience to the mandate of the statute.

The Pennsylvania, 86 U.S. (19 Wall.) 125, 136, 22 L.Ed. 148 (1873). In order to escape liability following The Pennsylvania decision, violaters of the mariner’s rules of the road were laden with the heavy burden of proving that their violation was not a cause in fact of the collision.

If admiralty law fails to provide a standard, marine collision liability turns on traditional tort law principles. See S.C. Loveland, Inc. v. East West Towing, Inc., 608 F.2d 160, 165 (5th Cir.1979). Absent statutory violations, the breach of a vessel’s duty of .prudent seamanship will not give rise to liability unless it is sufficiently proved that the breach was the cause in fact of the collision. See, e.g. Oriental Trading & Transport Co. v. Gulf Oil Corp., 173 F.2d 108, 110 (2d Cir.), cert. denied, 337 U.S. 919, 69 S.Ct. 1162, 93 L.Ed. 1729 (1949).

In this case Peoples does not allege nor did the evidence demonstrate that the defendant violated any statutory rule designed to prevent marine collisions. It remains an open question of whether regulations requiring due care in navigation make all maritime negligence claims a matter of statutory fault. Cf. Anthony v. International Paper Co., 289 F.2d 574 (4th Cir.1961) with, Oriental Trading & Transport Co. v. Gulf Oil Corp., 173 F.2d 108 (2d Cir.), cert. denied, 337 U.S. 919, 69 S.Ct. 1162, 93 L.Ed. 1729 (1949). See also Gilmore & Black, supra at 497. If so, deviation from the accepted standards of due care, would shift the rebuttal burden of causation to the pilot to prove his negligence did not cause the accident. This question need not be answered here because Peoples relies, not upon statutory fault, but upon two district court cases holding that a vessel is presumptively liable for a collision if it strikes a stationary object. See Patterson Terminals, Inc. v. S.S. Johannes Frans, 209 F.Supp. 705, 707 (E.D.Pa.1962); Patterson Oil Terminals v. The Port Covington., 109 F.Supp. 953, 954 (E.D.Pa.1952), aff'd, 205 F.2d 694 (3d Cir.1953).

During its closing argument and in its proposed findings of fact and conclusions of law, Peoples relied heavily on the presumption of negligence flowing from the Aetna Louisville striking Peoples’ pipeline. In summation, Peoples argued that the defendant had failed to overcome the presumption of negligence and was therefore liable for the damages to Peoples’ pipeline. Not only does Peoples overstate the function of the presumption of negligence, but its reliance on the presumption in this case is misplaced.

In his treatise on evidence, Wigmore explains that a presumption is merely a rule of law attaching to one evidentiary fact certain procedural consequences as to the duty of production of other evidence. The “presumption is not the fact itself, nor the inference itself, but the legal consequence attached to it.” 9 J. Wigmore, Wigmore on Evidence § 2491, at 304 (Chadbourn rev. ed. 1981). In operation, the presumption merely compels the fact-finder to reach a presumed fact “in the absence of evidence to the contrary from the opponent. If the opponent does offer evidence to the contrary ... the presumption disappears as a rule of law and the case is in the [fact-finder’s] hands free from any rule.” Id. at 305.

Under the federal rules, presumptions place upon the opposing party the burden of establishing the nonexistence of the presumed fact, once the party invoking the presumption establishes the basic fact. See Fed.R.Evid. 301. The advisory committee, however, rejects the so-called bursting bubble theory where the presumption vanishes upon the introduction of contrary evidence. See Fed.R.Evid. advisory committee note 301.

Apparently Peoples seeks to rely on the presumption of negligence as a make weight in the evidence to tip the scales in its favor. This notion has been previously considered and rejected. See Pennsylvania Railroad Co. v. S.S. Marie Leonhardt, 320 F.2d 262, 264 (3d Cir.1963). Here, the defendant has fully presented evidence rebutting the presumption that its vessel was negligent because it struck a stationary pipeline. In any event, no probative value can be attached solely to the fact that the Aetna Louisville struck a stationary object. The mere fact of collision between a moving vessel and a submarine pipeline furnishes no basis for any inference that the mishap was caused by the negligence of the vessel, of the pipeline, of both or without the fault of either. Accord Western & Atlantic Railroad Co. v. Henderson, 279 U.S. 639, 642-43, 49 S.Ct. 445, 447, 73 L.Ed. 884 (1929). In this case, the presumption of negligence so pales in the face of contrary evidence that it is safe to conclude that the presumption has completely vanished or has been sufficiently rebutted by the defendant.

At trial, as outlined in its complaint, Peoples proceeded under the theory that the towboat’s pilot was negligent in maneuvering its vessel near the western shore of the Monongahela River, causing the vessel to strike the river bottom over Peoples’ pipeline, and failing to heed navigational charts and billboard signs indicating the presence of a submarine pipeline. Given the river’s shore-side depth, Peoples argued that under the circumstances the pilot’s method of spotting the oil barge was unreasonable and imprudent.

The towboat’s captain, Eugene H. Dent, a licensed pilot with over 20 years of experience, testified that he had used the same spotting procedure at the Reserve Petroleum Dock on several previous occasions and under similar river conditions. In those instances, he had docked barges without incident. Captain Dent acknowledged that he knew the location of the pipeline crossing from navigation charts and billboards posted on the river banks, but thought that all pipes were submerged below the riverbed.

The Reserve Petroleum Dock’s Terminal Manager, who occasionally spotted barges himself, testified that all experienced pilots used the same docking procedure that Captain Dent had used. In his opinion, Captain Dent’s procedure was not merely the preferred method, but the only effective way to spot large oil barges at that docking site.

Captain Jack Ross, also an experienced and licensed towboat pilot, testified that the spotting procedure used by Captain Dent provided sure and positive control over the tow and afforded the pilot good visibility. Considering the precarious location of docking facility along the river’s curve, Ross opined that control and visibility were pointed factors in spotting oil barges. In reaching his opinion, Ross cited the impaired visibility from the high lock walls and the danger of fire and explosion if a petroleum oil barge is punctured. Captain Ross stated that he believed within a reasonable degree of navigational certainty that Dent had operated the Aetna Louisville in a reasonable and prudent manner.

Captain Stanley Lysicki, called by Peoples, testified that Captain Dent should have used an alternative docking procedure. Captain Lysicki, although a master pilot with over 35 years of navigational experience, had never spotted an oil barge at the Reserve Petroleum Dock, or spotted a barge between two walls. Captain Lysicki’s experience was limited to sand and gravel barges. Captain Lysicki opined, however, that in view of the pipeline crossing, changing water depth and river conditions, Captain Dent should have used a docking method which would not have endangered Peoples’ pipeline. In his report, Lysicki suggested several alternative docking methods, including a “hiptow” procedure. Captain Dent testified that he didn’t use Lysicki’s methods because they would have impaired the maneuverability and steering of the Aetna Louisville and her tow.

Captain Ross sternly critizied Lysicki’s suggested docking methods because, in his opinion, they lacked the control and unimpaired visibility offered by the procedure used by Dent. Ross argued that the hip-towing technique was only useful when spotting a small barge in an open dock. According to Ross, hiptowing was an unsafe procedure to use when docking large oil barges at the Reserve Petroleum Dock. When pressed at trial, Captain Lysicki stood by his assertion that he would have used a docking procedure different from the one Captain Dent used, but admitted that if, like Dent, he had used the same procedure on previous occasions without incident, he would have used Dent’s method on a subsequent occasion. On cross examination, Lysicki further admitted that under the facts of this case, he could not state that Captain Dent had operated the Aetna Louisville in an unreasonable or imprudent manner.

The testimony of Captain Lysicki, the plaintiff’s expert pilot called to establish Captain Dent’s negligence, was equivocal at best, but in fairness tended to exonerate rather than discredit Dent’s conduct. Also, although an experienced pilot, Captain Lysicki’s testimony was of nominal probative value in this case because he had never spotted an oil barge. The evidence clearly demonstrated that in his testimony and report, Lysicki failed to adequately consider the danger of fire and explosion if an oil barge is punctured during the docking procedure. Lysicki had not encountered this peril in his extensive experience in docking sand and gravel barges.

Most importantly, however, Captain Lysicki admitted that if he were armed with the same facts available to Captain Dent at the time of the collision, he would have used the same procedure that Dent had used. Against this admission, it is of no moment that in light of hindsight Lysicki would have used an alternative docking procedure. A pilot is required to exercise only the ordinary degree of care and skill commonly possessed by others in the same field; he is not required to be prescient. See generally, American Zinc Co. v. Foster, 313 F.Supp. 671, 682 (S.D.Miss.1970), modified, 441 F.2d 1100 (5th Cir.), cert. denied, 404 U.S. 855, 92 S.Ct. 99, 30 L.Ed.2d 95 (1971). On this record, Peoples has failed to prove by a fair preponderance of the evidence that Captain Dent handled his vessel in a manner inconsistent with skilled nautical experience and good seamanship.

Moreover Captain Dent did not know nor should have known that Peoples’ pipeline was uncovered and sitting on top of the riverbed. The Third Circuit has held that non-liability for unforeseeable results is a rule limiting the scope of duty, not a rule of causation. See Diamond State Tel. Co. v. Atlantic Refining Co., 205 F.2d 402 (3d Cir.1953). Compare Orange Beach Water, 680 F.2d at 1381. In Diamond State a tanker struck a submarine telephone cable which had been raised to the deck of barges for repairs. The barges did not display three vertical red lights required by navigation rules for vessels performing cable work. Citing the landmark decision of Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99 (1928), the Diamond State court held that the tanker “could not have possibly foreseen that poor navigation would have subject libellant’s cable to any harm because they neither knew nor should have known that the cable was there. Thus, as to the cable, there was no duty and, consequently, could be no negligence.” Diamond State, 205 F.2d at 407.

The Diamond State decision is particularly instructive because, like Peoples in the present cáse, the cable company in the Diamond State case argued that the location of the cable area was clearly marked on charts making the risk of harm foreseeable and thus giving rise to a duty of prudent navigation to the cable. The Diamond State court rejected that argument because it believed that markings on a chart that submarine cables were in the area was insufficient notice that a vessel had raised its cables to the deck. Id. at 407. Peoples attempts to buttress their notice argument by asserting that in addition to the pipeline being marked on navigation charts, its location is clearly indicated by billboard signs on the river banks and that the towboat’s crew could have used weights or depth gauges to determine the depth of the river close to the shore. These arguments are equally unpersuasive.

Like the charts in Diamond State, the navigation charts a.nd the billboard signs in this case only served notice that a pipeline crosses the river at a given point. Neither medium indicated that the pipeline sat uncovered on top of the riverbed. Nor would a depth gauge or weights have placed the towboat on notice of that fact. There is no dispute in the evidence that Captain Dent knew that a pipeline crossed the river, but relying on common sense and years of nautical experience, Dent expected the line to be submerged below the riverbed. Accordingly, the pilot’s duty to the pipeline is to be determined by what he knew or should have known at the time, not by what we now know in hindsight. In this case Captain Dent could not have foreseen that Peoples’ pipeline sat uncovered on the riverbed and therefore had no duty of due care to the exposed pipeline.

The defendant also seeks to invoke the operation of a presumption of law under The Pennsylvania rule which shifts a strict burden of causation to violaters of maritime rules. See generally Garner v. Cities Service Tankers Corp., 456 F.2d 476, 480 (5th Cir.1972); Green v. Crow, 243 F.2d 401, 403 (5th Cir.1957). This Court holds that The Pennsylvania rule applies in this case because the evidence shows that Peoples violated statutory rules designed to prevent marine collisions by failing to maintain its pipeline below the riverbed.

The evidence regarding the condition of Peoples’ pipeline before the collision preponderates but one conclusion: Peoples’ pipeline sat uncovered on top of the riverbed prior to being struck and ruptured by defendant’s towboat. Several years after Peoples originally installed its pipeline, its marine diver discovered that the pipeline was exposed approximately 40 feet from the western shore of the river, the same area where the pipeline was subsequently hit and ruptured by the defendant’s towboat. Peoples attributed the exposure of its pipeline to the river traffic from oil barges accessing the petroleum dock in this area. The evidence demonstrated, however, that river currents cut soil away from the western riverbed and deposited soil on the eastern riverbed. This is a natural geological phenomenon, given the river’s direction and curvature.

The defendant’s engineer testified that under the circumstances the Aetna Louisville could not have dug Peoples’ pipeline 4 feet out of the riverbed to rupture it. The engineer further testified that it was his expert opinion that the towboat struck and ruptured the pipeline as the pipeline sat on the riverbed. The engineer noted that the location, deformation, flattening and creasing of the pipeline were all consistent with the pipe having been struck as it sat on top of the riverbed. Several propeller marks on the ruptured pipeline were also instructive. Since the Aetna Louisville’s propellers are covered by cort nozzles which prevented its propellers from striking the pipe, the engineer concluded that the pipeline had been exposed and hit by the propellers of other vessels prior to the accident. Moreover, the engineer testified that his examination revealed a preexisting fracture at the pipeline’s breaking point. Peoples offered no credible testimony to contradict the engineer’s conclusions. This Court finds the engineers testimony logical, persuasive and trustworthy.

Finally, an experienced marine diver who surveyed the river’s bottom using a sophisticated scan sonar technique, also concluded that prior to the collision the pipeline sat on top of the riverbed for a distance of approximately 83 feet. His sonar tracing revealed no evidence of a trench where Peoples claimed its pipeline was buried. Nor did the diver discover any riprapping material in the area where the pipeline had been previously repaired in 1961. The diver’s testimony was also substantially uncontroverted and believed by this Court. Clearly the substantial weight of the evidence established that Peoples’ pipeline sat on top of the riverbed prior to being struck by the defendant’s towboat.

Congress has expressly declared that “[t]he creation of any obstruction ... to the navigable capacity of any waters of the United States is hereby prohibited____” See Obstruction to Navigable Waters, 33 U.S.C. § 403 (1899). This duty is said to extend to the entire width of the navigable waterway and is not, contrary to Peoples assertion, limited to the mid or dredged channels of the river. See Orange Beach Water, Sewer And Fire Protection Authority v. M/V Alva, 680 F.2d 1374, 1382 (11th Cir.1982). Moreover, the duty to maintain a free and navigable channel is breached whenever a structure not initially an obstruction becomes one through improper maintenance. Id. at 1383.

Under the facts of this case, Peoples’ pipeline unquestionably created an obstruction to navigation. Although Peoples’ pipeline was struck close to the shore, the overwhelming weight of the credible evidence established that vessels with drafts similar to the Aetna Louisville frequently maneuvered close to the western shore of the river to access the Reserve Petroleum Dock. In the area where the pipeline was ruptured, Peoples had been warned by its marine diver years before the accident that towboats maneuvered directly over its pipeline close to the shore to spot oil barges.

The evidence also established that Peoples failed to maintain its Pipeline 4 feet below the riverbed for the width of the channel as required by the Corps’ permit. Several courts have held that failure to comply with a term of the permit issued by the Corps triggers application of The Pennsylvania rule. Accord Orange Beach Water, 680 F.2d at 1383 and cases cited therein. This Court agrees. In addition, this Court holds that the congressional mandate that navigable waters be free from obstruction and the permit provision requiring Peoples’ pipeline to be 4 feet below the riverbed were both designed to prevent the precise type of collision that occurred in this case. See generally Orange Beach Water, 680 F.2d at 1383; Gulf Oil Corp. v. Tug Gulf Explorer, 337 F.Supp. 709 (E.D.La.1971), aff'd, 472 F.2d 1406 (5th Cir.1973).

This Court need not expound on Peoples’ burden under The Pennsylvania to prove that its statutory violations could not have been a cause of the collision in this case because the Aetna Louisville sustained no damages and sought to recover nothing by this suit. Were she damaged, however, United States v. Reliable Transfer Co., 421 U.S. 397, 95 S.Ct. 1708, 44 L.Ed.2d 251 (1975), would require the allocation of liability in proportion to the relative fault of the parties. It is enough to note that the evidence established that Peoples failure to maintain its pipeline below the riverbed was the only cause of the collision. Since the exposed pipeline was the sole cause of the collision, Peoples must bear the entire responsibility for damages.

An appropriate order follows.


source: Caselaw Access Project

author: BRITT, Chief Judge.

license: Public Domain

text:
    Paul Mack BAUGH, Individually and in behalf of all other similarly situated, Plaintiff, v. James WOODARD, Secretary, N.C. Department of Correction; Amos Reed, former Secretary, N.C. Department of Correction; Ralph Edwards, Director of N.C. Department of Correction; Richard Kiel, Chief of Medical Service, N.C. Department of Correction; Billy Royal, M.D., Charles Smith, M.D., Sam Garrison, Warden, Richard Jeffries, Nurse, James Dupree, Nurse’s Aide, Frank L. Mahan, Superintendent of Wayne County Unit; Sarah T. Morrow, Secretary, N.C. Department of Human Resource, R.J. Blackley, Acting Director of N.C. Division of Mental Health, Retardation, etc.; Bruce E. Whitaker, Chairman, N.C. Commission for Mental Health & Retardation, Defendants.
    No. 81-132-CRT.
    United States District Court, E.D. North Carolina, Raleigh Division.
    March 26, 1985.

      Gregory Malhoit, R. Giroux, Christine Heinberg and Deborah Greenblatt, Raleigh, N.C., for plaintiff.
    M. Alexander Biggs, Rocky Mount, N.C., William F. O’Connell, James Peeler Smith, Raleigh, N.C., for defendants.
   MEMORANDUM OPINION

BRITT, Chief Judge.

This is a class action brought by all persons who are or will be incarcerated by the North Carolina Department of Corrections (DOC) and who have been or will be involuntarily transferred to, or subjected to inpatient treatment at, mental health facilities operated by the DOC. The plaintiff class brings this action pursuant to 42 U.S.C. § 1983 alleging that the State of North Carolina has been and will continue to violate its constitutional right to due process of law. Specifically, plaintiffs claim that the procedures followed by the DOC in transferring an inmate to a correctional mental health facility are inadequate to satisfy due process requirements. Now before the court are cross-motions for summary judgment.

The parties agree that no genuine issue of fact remains to be resolved. There are, however, two legal issues to be resolved by the court: (1) Does a North Carolina prisoner have a protectable liberty interest, arising independently under the due process clause or created by state regulations, in not being involuntarily transferred from the general prison population to a mental health care facility operated by the prison system? (2) If a North Carolina inmate does have a protectable liberty interest in not being transferred to a correctional mental health facility, do the procedures used by the Department of Corrections for involuntary transfers comport with the requirements of the due process clause?

I — FACTS

Mental health care for North Carolina inmates is provided through the Department of Corrections and administered by the Department of Prisons (DOP), a division of the DOC. The DOC system is entirely separate from the state mental health facilities operated by the Department of Human Resources for free citizens. There are three DOC facilities which are used exclusively for the treatment of mentally ill adult male inmates: (1) Central Prison Psychiatric Hospital, an inpatient facility, which houses “acutely mentally ill” prisoners; (2) Wayne Correctional Center Mental Health Facility; and (3) McCain Correctional Center Mental Health Facility, both of which house “nonaggressive, chronically mentally ill inmates.” There are separate inpatient mental health facilities for incarcerated women and juveniles. In addition, sixteen North Carolina prison facilities provide outpatient mental health care.

Paul Mack Baugh, the representative plaintiff, is a North Carolina prisoner who has been repeatedly diagnosed by prison psychiatrists as suffering from psychiatric disorders. He has been treated by prison mental health personnel on both an inpatient and outpatient basis. Plaintiff has been transferred to inpatient prison psychiatric units several times, each transfer being involúntary. Plaintiff claims he was never given a formal explanation of the reasons for those transfers. He also contends that no formal hearing was ever held to allow him to challenge the transfer decisions or the decision that he needed psychiatric treatment. It is this lack of procedural protection that plaintiff argues violates his due process rights.

Defendants insist that the standard procedures promulgated by the DOP were always followed in transferring plaintiff (and other similarly situated inmates) to inpatient mental health facilities. According to DOP regulations, transfer of an inmate to a mental health facility begins when custodial personnel observe unusual behavior by a prisoner. DOP Health Care Procedures Manual § 403.1. The prisoner is referred to the nearest available department psychiatrist or psychologist, id., who interviews the prisoner. Id. at § 404.1. If the interviewer deems it necessary, he or she refers the inmate to the appropriate inpatient mental health care facility. Id. Before being sent to the facility, the prisoner is notified of the transfer and given an explanation of the reasons for the referral. Deposition of Dr. Alan Harrop, DOP Assistant Director of Mental Health Services, pp. 73-74. At the facility, mental health personnel evaluate the prisoner and make an independent decision to admit him or her for treatment and observation. Deposition of Harrop, pp. 26, 70. Only when there is a disagreement between mental health staff at the referring and receiving institutions does the DOP Directors Mental Health Review Committee become involved. DOP Health Care Procedures Manual § 404.2. Emergency referrals to Central Prison hospital may also be made by prison personnel if an inmate becomes acutely disturbed and requires immediate treatment. Id. at § 404.1. Defendants maintain that their procedures comport with the requirements of the due process clause.

II — PRIOR PROCEEDINGS

Plaintiff originally brought this action in February of 1981 requesting that the defendants be enjoined from (1) forcibly administering psychotropic drugs to prisoners and (2) transferring inmates to inpatient prison mental health facilities without due process safeguards. He also requested class certification and damages.

In December of 1982 a consent judgment was filed on the issue of forcible administration of psychotropic drugs. In that document the state agreed that psychotropic medication would only be forceably administered to inmates if failure to do so would endanger the patient or others around him and if such forceable medication has been previously approved by an “involuntary medication committee.” Such medication may only be prescribed for a limited period of time unless further medication is approved by the committee. It was also agreed that a patient refusing medication would be appointed a staff member as a patient representative, and would be entitled to documentation of the procedures followed.

Class certification was granted on the remaining due process issues on 1 August 1983. The parties filed cross-motions for summary judgment which were submitted to Magistrate Alexander Denson for consideration. In a memorandum and recommendation dated 19 December 1983 Magistrate Denson concluded that plaintiff had no constitutional liberty interest in not being transferred to an inpatient mental health facility within the prison system. He found, however, that plaintiff did have a state-created liberty interest in not being transferred without due process protection. After finding a protectable liberty interest the magistrate went on to recommend that the court require the State of North Carolina to provide the following procedures in transferring an inmate to an inpatient mental health facility:

1. written notice to the prisoner that referral to an inpatient mental health facility is being made, including a statement of the reasons for the referral;
2. an informal nonadversarial review of the reasons for the referral, including an interview with the inmate where he is given an opportunity to present his views, after a sufficient time has elapsed to allow him to prepare his presentation;
3. a neutral and independent decision maker, from within the prison mental health system, who has the authority to refuse admission;
4. a written statement by the decision maker as to the reason for his decision to admit, which decision is concurred in by two prison psychiatrists;
5. periodic review of the continuing need for treatment; and
6. effective and timely written notice of the above rights.

Both parties objected to the magistrate’s memorandum and recommendation. On 23 May 1984 a hearing was held on those objections and the matter was taken under advisement.

Plaintiff has three main objections to the magistrate’s recommendations. First, he disagrees with several of the magistrate’s factual findings as to the procedures currently employed by the-North Carolina Department of Corrections. He also objects to the finding that there is no constitutional liberty interest implicated. Finally, he claims that he is entitled to due process protections in addition to those recommended by the magistrate.

Defendants have also made objections to the magistrate’s memorandum and recomí mendation. They agree with plaintiff that the magistrate erred in some of his “factual findings.” Defendants disagree with the magistrate’s conclusion that prison regulations give rise to a state-created liberty interest in not being involuntarily transferred to a mental health facility. If there is a liberty interest involved, defendants claim that the procedures currently used by the Department of Corrections are adequate to satisfy due process. If additional procedural safeguards are required then the defendants ask for a modification of the magistrate’s recommended procedures to allow more involvement by psychologists, rather than psychiatrists, to reduce duplication.

In its discussion of the facts the court has already addressed several of the objections to the magistrate’s factual summary. Specifically, the court explained that it would continue to refer to the Wayne and McCain Mental Health Facilities as inpatient mental health facilities in order to distinguish them from facilities which are not exclusively for mentally ill inmates. See p. 1531 n. 1. Also, the court has altered its summary of the facts to reflect that all types of mental health personnel are involved in transfer decisions. ■ See p. 1532 n. 2. Other challenges to the facts as summarized by the magistrate will not be addressed as they have little or no bearing on the outcome of this case. The parties have agreed that there are no genuine issues of material fact left to be decided. Therefore, disposition on summary judgment is appropriate. See Fed.R.Civ.P. 56. Accordingly, the court will proceed to a discussion of the legal questions at issue.

Ill — LIBERTY INTERESTS

Before a court may order procedural due process protections it must first find that the plaintiff has a liberty or property interest that is protected by the due process clause of the Constitution. Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976). In dealing with the issue of confinement, transfer or physical treatment of a state prisoner, the court must focus on the question of liberty interest. Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980). There are two sources of the liberty interest protected by the federal Constitution. First, a protectable liberty interest may independently arise from the due process clause when a prisoner is subjected to an aspect of confinement that is not within the conditions of incarceration ordinarily contemplated by a prison sentence. Id. at 493-94, 100 S.Ct. at 1263-64. A state may also create a liberty interest protected by the due process clause when its laws or regulations grant particular rights to an individual and expressly predicate the deprivation or revocation of those rights on the occurrence of certain specified events or conditions. Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).

A. Constitutional Liberty Interest.

Plaintiff argues that involuntary transfer or commitment of a North Carolina inmate to prison psychiatric facilities is outside of the conditions of confinement that would normally be expected to arise from a prison sentence. This, he argues, implicates a liberty interest arising independently under the due process clause.

The most compelling authority on this issue is found in the United States Supreme Court decision Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980). In Vitek the court addressed the issue of whether the transfer of a Nebraska state inmate to a state mental hospital outside of the prison system implicated a liberty interest protected by the due process clause. The court found that the prisoner had both a constitutional and a state-created liberty interest in not being transferred from the prison system to a state mental hospital. Id. Changes in condition of confinement alone were not deemed sufficient to invoke due process protection “[a]s long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him.” Id. at 493, 100 S.Ct. at 1263. .However, in very clear language the Court stated:

None of our decisions holds that a conviction for a crime entitles the State not only to confine the convicted person but also to determine that he has a mental illness and to subject him involuntarily to institutional care in a mental hospital. Such consequences visited on the prisoner are qualitatively different from the punishment characteristically suffered by a person convicted of a crime____ [Ijnvoluntary commitment to a mental hospital is not within the range of conditions of confinement to which a prison sentence subjects an individual.

Id. Thus it was determined that an inmate has a constitutional liberty interest in not being transferred from a state prison to a state mental hospital. There were two important factors cited by the Vitek court which gave rise to such an interest: (1) the social stigma attached to commitment to a mental institution and (2) compelled treatment in the form of mandatory behavior modification programs. Id.

Defendants contend, and the magistrate agreed, that the instant case is distinguishable from the Vitek decision because the plaintiff in Vitek was transferred out of the Nebraska state prison system to a state mental hospital operated by the State Department of Public Institutions, while the transfers of which plaintiff Baugh complains occurred within the prison system itself. Defendants maintain that the involuntary transfer of a prisoner to an inpatient mental health facility within the North Carolina Department of Corrections does not constitute the fundamental and drastic change in a prisoner’s status which would cause the kind of stigmatization discussed in Vitek. The magistrate also found that there was no indication that North Carolina inmates transferred to correctional psychiatric units were exposed to mandatory behavior modifications as was the plaintiff in Vitek.

An internal transfer within the North Carolina Department of Corrections system does not differ significantly from the transfer to a mental health facility run by another state agency. The magistrate put great emphasis on the distinction between being labeled as mentally ill in the eyes of the general public versus being labeled mentally ill by Department of Corrections personnel or by other inmates, claiming that it was only stigma as to the general population that was at issue in Vitek. However, stigma among other inmates and among prison personnel is at least as damaging to an inmate who has been committed to an inpatient mental health prison facility.

Denial or delay of parole, study release, work release, and gain time jobs is often attached to a prisoner’s assignment to a mental health unit. The magistrate found that it was the underlying abnormal behavior rather than an assignment to a mental health facility that was considered in making a parole or rehabilitative program decision. However, it is difficult, if not impossible, to believe that a-parole board would not more closely scrutinize the behavior of an individual who had been committed to a prison mental health facility. This is precisely the type of stigma with which the Supreme Court was concerned in Vitek. In addition, it is clear that transfer to the inpatient facilities is detrimental to prisoners’ ability to obtain gain time jobs. Although some gain time jobs are available to inmates treated in the Wayne and McCain facilities, there are not as many available as in normal prison units.

There is also undisputed evidence that a prisoner returning to the general prison population from a mental health unit are viewed as “bugs” by other inmates. These prisoners are ostracized and exploited by other prisoners. This type of labeling among the prison population is at least as damaging as being labeled a mental health patient by the general population.

Neither can the court agree with the magistrate that prisoners incarcerated in inpatient mental health facilities are not subjected to compelled treatment in the form of mandatory behavior modification programs. Psychiatric or psychological treatment is, by its very nature, an attempt to modify the behavior of individuals in order to conform their behavior to that which is expected by society. Although, as the magistrate states, it is counterproductive to “forceably administer” treatment, prisoners are “strongly encouraged” to participate in psychological treatment programs. An inmate might find himself sanctioned by staff who feel that he is belligerent in not accepting the treatment they feel is necessary.

Finally, the magistrate’s reliance on Parham v. J.R. is misplaced. 442 U.S. 584, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979). Parham dealt with the due process rights of a minor whose parents voluntarily sought to have him committed to a mental institution. The Parham court conceded without discussion that a child has a substantial liberty interest in not being confined unnecessarily in a mental institution. Id. at 599, 99 S.Ct. at 2502. Analogizing the relationship of prison officials and inmates to the role of parents and children, as the magistrate did, may have some bearing on the procedures required, but does not lead to the conclusion that there is no constitutional liberty interest at stake.

In summary, the distinction made between mental hospitals run by a separate state agency and those run by the Department of Corrections is technical only. The purpose of the two types of institutions are the same, as are the consequences of being committed to one. Treatment in a prison mental health facility is not within the range of conditions normally expected during incarceration, just as treatment at a mental health facility outside the prison system is not within this range. See Vitek, 445 U.S. at 480, 100 S.Ct. at 1254. Plaintiff, and the class he represents, clearly have a protected constitutional liberty interest in not being transferred to an inpatient prison mental health facility.

B. State-Created, Liberty Interest.

Defendants contend that Magistrate Denson erred in finding that DOP regulations give rise to a state-created liberty interest in not being transferred to a prison mental health facility. Plaintiff contends that the magistrate’s finding is correct.

A state creates a liberty interest when a state statute or regulation confers a particular status on an individual and expressly predicates the deprivation or revocation of that right or privilege on the occurrence of a specified event or condition. Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979); Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Where a transfer decision is solely within the discretion of prison officials and prisoners have no justifiable expectation that they will not be transferred absent a specified event or condition then no state-created liberty interest arises. Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976); Montanye v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976).

According to prison regulations, an inmate must be suffering from an acutely severe psychiatric disorder that cannot be handled by prison outpatient mental health services before he may be transferred to an inpatient facility. DOP Health Care Procedures Manual §§ 401.1, 404.1 and 404.2; Deposition of Harrop, pp. 70-71. This requirement limits the discretion of psychiatric personnel and gives rise to a justifiable expectation by prisoners that they will not be transferred absent a finding that they are suffering from an acutely severe psychiatric disorder that cannot be treated in outpatient facilities. These are precisely the type of regulations found to give rise to a state-created liberty interest in Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980). See also Hewitt v. Helms, 459 U.S. 460, 469, 103 S.Ct. 864, 870, 74 L.Ed.2d 675 (1983); Greenholtz, 442 U.S. at 1, 99 S.Ct. at 2100; and Wolff, 418 U.S. at 539, 94 S.Ct. at 2963. Plaintiff clearly has a state-created liberty interest in not being transferred to prison mental health institutions without a finding that he is suffering from psychiatric disorders which cannot be treated at outpatient facilities.

IV — DUE PROCESS REQUIREMENTS

Plaintiff has both a constitutional and a state-created liberty interest in not being transferred to an inpatient mental health facility. He is therefore entitled to due process protection of that right. The DOP procedures provide certain safeguards for prisoners who are to be transferred. The court must now determine whether these procedures are adequate to protect plaintiffs due process rights or whether additional safeguards are necessary.

A. Factors to Consider.

The purpose of due process safeguards is to ensure fundamental fairness in judicial or administrative proceedings which may adversely affect the protected rights of an individual. See Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). To make this determination the court must balance three factors: (1) the private interest that will be affected by the official action; (2) the risk of erroneous deprivation of such an interest and the probable value of additional or different procedural safeguards; and (3) the state’s interest and the fiscal or administrative burden that additional or different procedural safeguards would entail. Id.

1. Private Interests Affected.

The court cannot agree with the magistrate’s characterization of plaintiff’s interest as “strong.” The plaintiff has a “powerful” interest in not being subjected to involuntary commitment to an inpatient prison mental health facility. Vitek v. Jones, 445 U.S. 480, 495, 100 S.Ct. 1254, 1264, 63 L.Ed.2d 552 (1980). Such a transfer exposes him to (1) the stigmatization of being labeled mentally ill; (2) subjection to behavior modification programs, possibly including drug therapy; and (3) the loss or delay of work release privileges. The private interest at stake here is identical to that at issue in Vitek. Id.

2. The Risk of Erroneous Deprivation of Inmate Interests Under the Present Procedures and the Value of Additional or Substitute Safeguards.

Under the current North Carolina procedures there is a significant risk that prisoners will be erroneously transferred to prison mental health facilities. The North Carolina procedures, although more extensive than the Nebraska procedures found to be inadequate in Vitek, suffer from many of the same deficiencies.

The Nebraska statutes at issue in Vitek provided for involuntary transfer of an inmate to a mental hospital within or without the prison system upon a finding by a prison physician or psychologist that the prisoner suffered from a mental disease or defect which could not be adequately treated in the prison facility to which he was assigned. Neb.Rev.Stat. §§ 83-176(2) and 83-180(1) (1976). No procedural safeguards were provided. The prisoner was simply transferred back to the prison system when the staff at the mental institution to which he was assigned determined that treatment was no longer necessary. Only when the state desired to retain the inmate in the mental hospital beyond the expiration of his prison sentence was it required to afford him full civil commitment proceedings. Neb.Rev.Stat. § 83-180(3) (1976).

The Vitek court held that additional procedural safeguards were necessary. 445 U.S. at 495, 100 S.Ct. at 1264. The procedures the court found to be appropriate were: (1) written notice to the prisoner that a transfer was being considered; (2) an informal, nonadversary hearing where the prisoner is given adequate notice, a disclosure of the evidence relied on by the prison authorities, and an opportunity to respond and present documentary evidence; (3) an opportunity to present and confront and cross-examine witnesses for prison officials except when good cause is found for not permitting such a hearing; (4) an independent fact finder and decision maker not necessarily from outside the prison system; (5) a written statement by the fact finder as to the evidence relied upon and the reasons for the transfer; (6) a qualified and independent adviser, provided at state expense if the prisoner is unable to afford one himself; and (7) effective and timely notice of the above rights. Id. at 494-98, 100 S.Ct. at 1264-66.

The North Carolina procedures do not afford prisoners transferred to DOC inpatient mental health institutions the extensive protections found to be necessary by the Vitek court. No notice is given to a prisoner that a transfer is being considered. Neither is the prisoner given any opportunity to present evidence or be heard on the matter. Nor is he given any assistance in preparing objections to a possible transfer. It is only after the decision to transfer is made that the prisoner is notified of the decision and given reasons for the referral. An inmate has the opportunity to object to the transfer only after it is already made; he can make objections to his “treatment team” or appeal his transfer through the grievance system.

Without the opportunity for pretransfer notice and an opportunity to be heard, a prisoner is afforded very little protection from erroneous transfer. Once the transfer is made, a prisoner has already been deprived of his due process rights, and subjected to stigmatization and compelled behavioral treatment. In addition, inmates who are mentally ill, or suspected of being so, are less likely than the average inmate to be able to present an organized defense to the charge that they are mentally ill. Thus, without help, there is a great risk that they will be erroneously transferred. Also, lack of an independent decision maker creates a great risk of erroneous deprivation. Common sense indicates that it is likely that an unruly or uncooperative inmate who is creating a problem for prison staff or the staff of an outpatient mental health facility may be erroneously classified as severely mentally ill and transferred to a mental health institution in an attempt to control his behavior, rather than for the purpose of treating any existing acute mental illness. Clearly, transfer for this reason would be inappropriate.

Additional procedural safeguards, such as those found to be necessary by the Vitek court, would be quite valuable in preventing erroneous transfer. Pretransfer notice and opportunity to be heard, the cornerstones of due process, would give prisoners an opportunity to defend themselves against charges which, under the current procedures, are never clearly presented to them. Help from an adviser in preparing a defense and the presence of an impartial decision maker from outside the prison staff would assure that the prisoner’s arguments against transfer were adequately presented and that the decision was made calmly, for the right reasons. Additional procedural safeguards such as these would be invaluable in protecting prisoners from erroneous transfer to mental institutions.

So, the risk that an inmate will be erroneously deprived of his right not to be transferred to a prison mental health institution absent a finding that he is mentally ill is extremely great under the North Carolina procedures as they currently exist. Additional procedural safeguards would be extremely helpful in preventing such erroneous deprivation.

3. The State’s Interest and the Fiscal or Administrative Burden that Additional or Procedural Safeguards Would Entail.

The state has a strong interest in segregating and treating mentally ill inmates. Vitek, 445 U.S. at 495, 100 S.Ct. at 1264. Additional procedural safeguards would, of course, make it more difficult for the state to accomplish this goal. If this court orders the state to provide prisoners with the trial-like procedures found necessary in Vitek then the valuable time of mental health professionals would be consumed by preparation for and testifying in such hearings. Parham v. J.R., 442 U.S. 584, 606, 99 S.Ct. 2493, 2506, 61 L.Ed.2d 101 (1979). The state also has an interest in treating the mentally ill quickly and in not imposing unnecessary procedural safeguards which would discourage them from seeking treatment. Id. at 604-06, 99 S.Ct. at 2505-06. Also, there can be little doubt that more formal procedural requirements would impose a greater financial burden on the state, although the parties can only speculate as to the extent of this burden. It must be noted, however, that the state, like the inmate, has an interest in not wasting resources on inmates who are erroneously transferred. Additional procedural safeguards for inmates would increase the burden on state resources. However, this consideration must be weighed against the other Mathews factors before the court can decide what procedures are constitutionally required.

B. Procedures Required.

In his memorandum and recommendation the magistrate suggested additional procedural safeguards but, because he found the plaintiff’s interest to be distinguishable from'the private interest at stake in Vitek, he did not recommend the extensive procedures ordered by the Vitek court.

In contrast, the court finds the relevant factors here to be identical to those at issue in Vitek:

... [T]he interest of the State in segregating and treating mentally ill patients is strong. The interest of the prisoner in not being arbitrarily classified as mentally ill and subjected to unwelcome treatment is also powerful, however; ... the risk of error in making the determinations [to commit prisoners to mental institutions] is substantial enough to warrant appropriate procedural safeguards against error.

445 U.S. at 495, 100 S.Ct. at 1264.

Consequently, procedural safeguards similar to those ordered by the Vitek court must be provided before a state inmate may be transferred to an inpatient mental health facility. In order to satisfy due process requirements, the state must provide:

1. written notice to the prisoner that referral to an inpatient mental health facility is being considered, including a statement of the reasons for the referral;
2. a hearing sufficiently after notice is given to permit the prisoner to prepare his objections;
3. an opportunity at the hearing for the prisoner to testify in person, present documentary evidence, present witnesses and confront and cross-examine witnesses called by the state, except upon a finding, not arbitrarily made, of good cause for not permitting such presentation, confrontation, or cross-examination;
4. a neutral and independent decision maker who may be from within the prison system but who has the authority to refuse admission;
5. a written statement by the decision maker as to reasons for his decision to transfer, which decision must be concurred in by two psychiatrists or psychologists;
6. qualified and independent assistance from an adviser, not necessarily an attorney, to help the prisoner prepare his objections;
7. periodic review of the continuing need for treatment; and
8. effective and timely notice of all of the above rights.

These procedures, while extensive enough to protect the rights of prisoners, are tailored to be as little a burden on the state as possible. All proceedings may take place within the institution from which the transfer is being considered. Likewise, all personnel may be associated with the institution, as long as the decision maker and the prisoner’s advocate are independent and properly qualified. The procedures have also been modified, as requested by defendants, to allow two psychologists, rather than require two psychiatrists, to concur in the ultimate decision to commit.

The court recognizes that emergency referrals will continue to be necessary on occasion. If an emergency situation arises, the state may, of course, treat the patient as required. Where it is not possible to provide pre-deprivation safeguards, the state must provide a post-deprivation procedure similar to that outlined above.

V — SUMMARY

State inmates have both a constitutional and a state-created liberty interest in not being transferred to a prison facility exclusively for the mentally ill. Consequently these inmates are entitled to due process protection of this interest. In balancing the private interest affected, the risk of erroneous deprivation under the present North Carolina procedures and the value of additional safeguards, and the state’s interests, the court finds that additional procedural safeguards are constitutionally required. Indeed, the interests at stake here are indistinguishable from the interests at issue in Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 522 (1983). The Vitek decision, therefore, compels the court to conclude that the North Carolina Department of Corrections must provide the full panoply of procedural protections outlined above before it may transfer state inmates to any inpatient mental health facilities.

The 19 December 1983 memorandum and recommendation of Magistrate Alexander B. Denson is accepted in part and rejected in part, as explained above. An order will issue directing defendants to comply with the procedural requirements set out in this Opinion.

ORDER

In accordance with the accompanying Memorandum Opinion, it is hereby ORDERED that plaintiffs’ motion for summary judgment be allowed and defendants’ motion for summary judgment be denied. Defendants are ordered to provide the following procedural safeguards to state inmates before transferring them to an inpatient mental health facility:

1. written notice to the prisoner that referral to an inpatient mental health facility is being considered, including a statement of the reasons for the referral;
2. a hearing sufficiently after notice is given to permit the prisoner to prepare his objections;
3. an opportunity at the hearing for the prisoner to testify in person, present documentary evidence, present witnesses and confront and cross-examine witnesses called by the state, except upon a finding, not arbitrarily made, of good cause for not permitting such presentation, confrontation, or cross-examination;
4. a neutral and independent decision maker who may be from within the prison system but who has the authority to refuse admission;
5. a written statement by the decision maker as to reasons for his decision to transfer, which decision must be concurred in by two psychiatrists or psychologists;
6. qualified and independent assistance from an adviser, not necessarily an attorney, to help the prisoner prepare his objections;
7. periodic review of the continuing need for treatment; and
8. effective and timely notice of all of the above rights.

Defendants are ordered to submit to the court within one hundred twenty (120) days from the date of this order proposed regulations implementing the procedures outlined above. The court specifically retains jurisdiction over the action.

      . Defendants have objected to the magistrate's characterization of the Wayne and McCain Mental Health Facilities as “inpatient" facilities. They contend that this label is inappropriate because these prison units are not hospitals but are much like other prisons except that they house only chronically mentally ill inmates and provide special mental health services for them. The court accepts defendants' distinctions between the Wayne and McCain units and the Central Prison hospital. However, it will continue to use the label "inpatient mental health facility” in reference to these three units in order to distinguish them from facilities which provide mental health services but which are not exclusively for the treatment of mentally ill inmates.

      . Both parties object to the magistrate’s finding that, under the current North Carolina procedures, at least two "psychiatric" professionals are involved in making referral decisions. In accordance with the assertions of both parties, the court finds that referrals decisions may be made by psychiatrists, psychologists or other mental health personnel. The court has conformed its summary of the facts to show that a mixture of mental health professionals are involved in these transfer decisions.