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USCA1 Opinion
January 5, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1118
BRUCE K. MOORE,
Plaintiff, Appellant,
v.
PETER PEPE, ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Selya and Stahl, Circuit Judges. ______________
____________________
Bruce K. Moore on brief pro se. ______________
Nancy Ankers White, Special Assistant Attorney General, and ____________________
Michael H. Cohen, Counsel, Department of Correction, on brief for __________________
appellees.
____________________
____________________
Per Curiam. Pro se plaintiff-appellant Bruce ___________
Moore, a prison inmate, has appealed from the district
court's grant of summary judgment in favor of defendants-
appellees Peter Pepe, the Superintendent at MCI-Norfolk,
Philip Poirier, Michael Little, and James Giblin, all
officials at MCI-Norfolk.
Background __________
The facts that are undisputed are as follows. In
February 1991, Moore was implicated in a scheme to falsely
inculpate other inmates by placing contraband items, such as
homemade knives and banned substances, in their cells.
Consequently, on March 5, 1991, Moore was placed on "awaiting
action" ("AA") status in the administrative segregation unit
in the Receiving Building ("RB").
On March 15, Moore received a disciplinary report
charging him with a number of disciplinary offenses,
including, among other things, conduct which disrupted or
interfered with the security or orderly running of the
institution; possession or introduction of a weapon,
sharpened instrument, knife, or tool; and aiding another
person to commit the other charged offenses. On March 26,
1991, a disciplinary hearing was held. At that hearing,
Moore admitted that he knew that another inmate was putting
contraband in other inmates' cells, and that Moore had helped
this other inmate type a note falsely inculpating others.
The hearing officer, defendant Little, found Moore
guilty of conduct which disrupted the orderly running of the
institution, and of aiding another inmate to introduce
sharpened instruments into other inmates' cells.
Accordingly, the hearing officer sanctioned Moore with thirty
days of isolation, and recommended that Moore be reclassified
to higher security. Moore then appealed to defendant
Superintendent Pepe, who denied the appeal on April 4.
On April 10, the classification board held a hearing and
recommended that Moore's request to stay at MCI-Norfolk, "in
the RB on the RB workforce", be granted. The recommendation
was subsequently approved. At Moore's next classification
hearing, on June 5, 1991, the board recommended transfer to
Bay State Correctional Center. On July 8, 1991, Moore was
transferred to Southeastern Correctional Center.
Moore filed the instant suit on May 28, 1992. His
complaint sought damages and injunctive relief under 42
U.S.C. 1983 on the ground that his right to due process
under the fourteenth amendment of the United States
Constitution had been violated in the course of his
disciplinary conviction and by his confinement in the RB.
The complaint might also be read to allege violation of
applicable Department of Correction regulations.
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Specifically, Moore alleged (1) that the disciplinary
finding against him was not supported by adequate reasons;
(2) that certain of the disciplinary charges against him were
vague and overbroad; (3) that before and at the disciplinary
hearing, he was denied access to the evidence against him,
despite making several requests for such access; (4) that his
rights were violated by his being ordered into isolation, and
(5) that his rights were violated by his being kept in
administrative segregation, i.e., on AA status, without a
conditional release date from segregation and without
conditions of behavior to obtain release from segregation.
On January 20, 1994, the district court granted
defendants' motion for summary judgment. In a brief order,
the district court ruled, "Plaintiff failed to timely appeal
his disciplinary conviction. In addition, plaintiff's due
process arguments are inapplicable to his claims regarding
alleged errors in the disciplinary process" (citations
omitted). Moore appeals. We affirm.
The Merits __________
We have held that where a prison inmate faces the risk
of isolation time as a result of a disciplinary charge, the
inmate has a liberty interest under the due process clause in
the disposition of that charge. Smith v. Massachusetts Dep't _____ ___________________
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of Correction, 936 F.2d 1390, 1399 (1st Cir. 1991); see ______________ ___
O'Malley v. Sheriff of Worcester County, 415 Mass. 132, 139, ________ ___________________________
612 N.E.2d 641, 647 (1993). Accordingly, Moore, who received
a disciplinary sanction of thirty days in isolation, had a
liberty interest in the disciplinary proceeding.
The Supreme Court has specifically spelled out the
minimum procedural safeguards necessary to satisfy the
requirements of due process in a prison disciplinary
proceeding that may result in the loss of a liberty interest.
The inmate must receive "(1) advance written notice of the
disciplinary charges; (2) an opportunity, when consistent
with institutional safety and correctional goals, to call
witnesses and present documentary evidence in his defense;
and (3) a written statement by the factfinder of the evidence
relied on and the reasons for the disciplinary action."
Superintendent v. Hill, 472 U.S. 445, 454 (1985) (citing ______________ ____
Wolff v. McDonnell, 418 U.S. 539, 563-67 (1974)). _____ _________
Statement of evidence and reasons. Moore alleged that __________________________________
the hearing officer's written statement of the evidence
relied on and the reasons for the disciplinary action was not
adequate. We find this allegation meritless. The factfinder,
defendant Little, stated in writing, "The inmate testified
that he was aware that another inmate was deliberately
placing contraband items such as sharpened instruments in the
cells of inmates. He further admitted that he helped this
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inmate finish typing a note pertaining to the contraband's
location." There can be no doubt that this statement of
evidence and reasons was constitutionally adequate.
Insofar as Moore may have intended to challenge the
sufficiency of the evidence against him, there need only be
"some evidence" of guilt in the record of the disciplinary
hearing to support a disciplinary conviction. Hill, supra, ___________
472 U.S. at 454-57. Moore's own admissions easily meet that
test. Moore objects that he denied any involvement in
making sharpened instruments or actually placing them in
other inmates' cells. The disciplinary findings, however,
suggest that the hearing officer credited that denial, but
nonetheless found that Moore, by admittedly helping to type
the falsely inculpatory note, aided another inmate in a
scheme which involved placing sharpened instruments in
others' cells.
Moore did assert in the district court that he was
physically coerced into helping the other inmate type the
note. However, in an affidavit, Moore described his
testimony before the hearing officeron this point as follows:
"Gaziano [the other inmate] insisted I finish his typing,
Gaziano placed a hand on me and directed me to the seat
behind the typewriter Gaziano was using; I read what Gaziano
had typed and typed less than 2 complete lines that Gaziano
dictated to me . . . ." Moore has nowhere explained why such
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seemingly mild conduct on the part of Gaziano should be
thought to have constituted physical coercion.
Thus, the hearing officer's implicit finding that
Moore's conduct was voluntary appears entirely reasonable.
That finding was obviously not so baseless or arbitrary as to
be constitutionally infirm.
Vagueness. Similarly lacking in merit is Moore's claim _________
that some of the disciplinary charges against him were vague
and overbroad. Our review of the charges on which Moore was
convicted finds no such deficiency. The only such charge
which could even arguably be thought vague was the charge of
"conduct which disrupt[ed] or interfere[d] with the security
or orderly running of the institution." Moore must
reasonably have been on notice, however, that the specific
conduct he admitted engaging in -- aiding another inmate to
type a note falsely inculpating other inmates -- would be
disruptive and would come under this disciplinary standard.
See El-Amin v. Tirey, 817 F.Supp. 694, 701-03 (W.D.Tenn. ____________ _____
1993), aff'd, 35 F.3d 565 (6th Cir. 1994). In any event, _____
Moore did not press this point in his brief on appeal, and
has thereby waived it.
Pre-hearing discovery. Moore next alleged that prior to _____________________
the hearing, he was denied access to evidence against him.
In his complaint, Moore asserted that on or about March 15
and March 20, 1991, he wrote two letters to defendant Pepe in
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which he "requested he be supplied with all alleged tangible
and material evidence in photographic form, or detailed
written description/report(s), or any informant(s)
information, with applicable names deleted, or laboratory
analysis report(s)." Moore alleged that he received no
response. Moore further alleged that he made a similar
request of the hearing officer, who allegedly responded that
he was not in possession of any objects or documents in
evidence against Moore, but was relying solely on the
disciplinary report.
Hill, supra, 472 U.S. 445, and Wolff, supra, 418 U.S. ____________ _____________
539, do not specifically recognize any due process
entitlement to pre-hearing discovery. In Smith, supra, 936 _____ _____
F.2d 1390, however, we held, "While Wolff does not accord an _____
inmate a [due process] right to pre-hearing discovery, we
think that . . . when an inmate seeks relevant and important
documents central to the construction of a defense, and his
requests are repeatedly denied, an explanation of the reasons
for the denial should be furnished." Id. at 1401. We went ___
on to note that the denial of discovery did not "r[i]se to a
level of constitutional magnitude" where the requested items
did not appear central to the inmate's defense, and where
defendant's "brief on appeal is bereft of any developed
argumentation to the contrary." Id. at 1401 n.18. __
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Moore has supplied no argument, either to the district
court or to this court, why pre-hearing access to the
evidence against him should be thought central to the
construction of a defense. The importance of such access,
moreover, is far from evident. To the contrary, the hearing
officer based his ruling on Moore's admission that he helped
another inmate type a note intended to inculpate other
inmates. In a March 20, 1991 letter to defendant Pepe, Moore
made the same admission. It is hard, therefore, to see how
the denial of discovery prejudiced Moore's defense to charges
that he admitted.
Moore did argue in the district court that he was
physically coerced into helping type the note. As we have
said, however, Moore's own account of his testimony before
the hearing officer suggests that this was a weak defense.
In any event, it is unclear how access to physical evidence
would have bolstered it. For all these reasons, we find no
due process violation in the denial of Moore's discovery
request without explanation.
Isolation. Given the lack of any due process defect in _________
Moore's disciplinary proceeding, there is no basis for a
finding that his constitutional rights were violated by his
placement in isolation.
Placement on AA status in the RB. We further find that _________________________________
Moore's placement on AA status in the RB -- first pending
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investigation and resolution of the disciplinary charges
against him, and then pending transfer or reclassification --
did not violate due process.
The Supreme Court has ruled that the due process clause,
in and of itself, does not confer upon a prisoner any liberty
interest in being held in the general prison population.
Hewitt v. Helms, 459 U.S. 460, 467-68 (1983). To be sure, ______ _____
state laws or regulations may create a protected liberty
interest if, by setting forth "explicitly mandatory language"
and "specified substantive predicates," Kentucky Dep't of __________________
Corrections v. Thompson, 490 U.S. 454, 463 (1989), they ___________ ________
"plac[e] substantive limitations on official discretion,"
Olim v. Wakinekona, 461 U.S. 238, 249 (1983). ____ __________
In Stokes v. Fair, 795 F.2d 235 (1st Cir. 1986), we ______ ____
ruled that the Massachusetts Department of Correction
regulations which then governed the placement of inmates in
"awaiting action" detention did create a liberty interest
protected by the due process clause. They did so because
they permitted prison officials to place an inmate on AA
status only upon the occurrence of certain conditions, such
as pending investigation or hearing of a disciplinary offense
or pending transfer or reclassification to higher custody
status. Id. at 237. Due process would therefore require __
that an inmate placed on AA status receive an informal, non-
adversary review within a reasonable time, and receive
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subsequent periodic reviews. Hewitt, supra, 459 U.S. at 472, ______ _____
477 n.9.
In 1987, long before the events of this case, the
relevant regulations were revised, with mandatory language
replaced by language conveying discretion to prison
officials. The current prison regulations provide that "[a]t
the discretion of the Superintendent or his designee, . . . ,
an inmate who is under investigation for a possible
disciplinary offense or has been charged with or found guilty
of a disciplinary offense, may be placed on awaiting action
status . . . . Such status may include more restrictive
confinement as deemed appropriate by the Superintendent or
his designee." 103 C.M.R. 430.21(1). The regulations call
for reviews of RB placement at least weekly. Id. 423.13.
Defendants argue that the current language places decisions
regarding confinement on AA status wholly within the
discretion of the Superintendent, and therefore creates no
liberty interest.
We need not resolve that question. Even if due process
requirements do apply, we would find no constitutional
violation. There is no dispute that Moore was initially
placed on AA status in the RB pending an investigation of
disciplinary charges. Following his disciplinary conviction
he was kept there for a little over three months pending
transfer or reclassification. Thus, he was placed and
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maintained in the RB for purposes in accordance with
applicable regulations. During that period, he received two
classification board hearings regarding his status, as well
as informal weekly reviews, all that due process would
require.
In addition, Moore has not disputed defendants'
assertion that at least some significant portion of his stay
in the RB was in accordance with his own request. In his
brief on appeal, Moore acknowledges that at the April 10,
1991 classification hearing, he "requested to remain at MCI-
Norfolk, even if such classification meant a period of
confinement to receive such favorable classification." In
the district court, he stated that "at this hearing [he]
requested to remain in the general population [at MCI-
Norfolk], even if it meant an extended stay in the R.B. to
allow time for this to be approved." Before his disciplinary
conviction, in a March 20, 1991 letter to defendant Pepe,
Moore also stated, "[I]f I am to be punished for my
association and not coming forward sooner let the punishment
be a stay in the R.B." Although there is a factual dispute
in the record as to whether Moore requested or agreed to
placement in the RB for the entire period he was held there,
under all the circumstances we could find no due process
violation in Moore receiving, on a temporary basis, a
classification status he had specifically requested.
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Finally, Moore's reliance on Hoffer v. Commissioner of ______ ________________
Correction, 412 Mass. 450, 589 N.E.2d 1231 (1992), is __________
misplaced. Hoffer ruled that, given applicable prison ______
regulations, due process required that an inmate placed in
the Departmental Segregation Unit ("DSU") be given a
conditional date of release from the DSU, along with
conditions of behavior to obtain such release. 412 Mass. at
455-56; 589 N.E.2d at 1234. The record is clear, however,
that although Moore was placed on AA status in the same
building, the RB, that contains the DSU, Moore was not placed ___
in the DSU. Cf. Kenney v. Commissioner of Correction, 393 ___________ ___________________________
Mass. 28, 34, 468 N.E.2d 616, 620 (1984) (recognizing the
clear distinction between placement on AA status and
placement in the DSU).
In his brief on appeal, Moore does assert that he was
held in the DSU. However, we do not read his affidavit in
the district court to contain any such assertion. In the
affidavit, Moore stated that he was placed on the second
floor of the RB, and it is the uncontroverted assertion of
defendant Pepe's affidavit that the DSU is on the first floor
of the RB, while the second and third floors hold inmates on
AA status. Hoffer, accordingly, is inapposite. ______
State-law claims. Insofar as Moore's complaint may have ________________
raised pendent state-law claims of violation of prison
regulations, we agree with the district court's ruling that
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such claims were time-barred. Under Massachusetts law,
lawsuits challenging prison discipline must be brought within
the sixty-day statute of limitations set forth at Mass. Gen.
Laws c. 249, 4. McLellan v. Commissioner of Correction, 29 ________ __________________________
Mass. App. 933, 934-35, 558 N.E.2d 3, 4 (1990). Moore's
final administrative appeal from his disciplinary conviction
was denied in April 1991, and Moore was transferred in July
1991. This lawsuit was not filed until May 1992.
Violation of local rules. Finally, there is no merit in ________________________
Moore's argument that the district court erred in granting
defendants' motion for summary judgment because the motion
violated the district court's Local Rule 7.1(A)(2). This
Local Rule requires that the parties confer prior to the
filing of any motion, and defendants apparently sought no
such conference with Moore prior to filing their motion. The
Local Rule, however, became effective on October 1, 1992,
after defendants had already filed their motion on September
25, 1992.
The judgment of the district court is affirmed. ________
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Document Info
Docket Number： 94-1118
Filed Date： 1/5/1995
Precedential Status： Precedential
Modified Date： 9/21/2015