George Segarra v. M.J. McDade Ralph Edwards , 706 F.2d 1301 ( 1983 )

CHAPMAN, Circuit Judge:

This case, an appeal from the District Court for the Eastern District of North Carolina, concerns the award of $1.00 in damages and $1500.00 in attorney fees for the purported denial of appellee’s procedural due process rights. Appellee McDade had filed a pro se complaint under 42 U.S.C. § 1983 seeking only declaratory and injunc-tive relief for alleged violations of his civil rights. His complaint did not seek damages. We reverse the court below.

I

This case arose from events that occurred when George Segarra was an inmate housed at North Carolina Central Prison (Central) in Raleigh, North Carolina. On the date in question he had been an inmate at Central for a period of three years.

On July 6, 1978 Segarra was observed standing at a chain link fence talking with another inmate, one Julio Herencio. (Inmate Herencio was segregated from the general prison population in Indefinite Non-punitive Segregation (IDS)). The two men were observed by Correctional Officer F.S. Walker who, in his statement, affirmed that as another officer approached, Segarra threw a napkin at Herencio. Walker approached Herencio, picked the napkin up from Herencio’s feet and found that the napkin contained ten pills. The officer took the pills to the hospital pharmacy, which reported that the pills were not from its stock and that the pills were phenobarbitol.

Correctional Officer J.B. Phillips was assigned to investigate the incident. Approximately two hours after the action took place in the yard Phillips interviewed Segarra. Segarra refused to make a statement himself and stated he did not wish to have anyone else’s statement taken. When questioned about this occurrence at trial, Segarra stated that he always refused to give out witnesses’ names and to have statements taken from them.¹ Segarra also testified that he could have given Herencio’s name and Phillips could have obtained the witness’s statement to be submitted at the disciplinary hearing.²

Officer Phillips filed his report on July 6, 1978 and Inmate Segarra was given written notice of the offense and disciplinary report on July 7th, five days before the hearing.

At the disciplinary hearing on July 12th, Segarra plead not guilty to the charge of possession of drugs. The disciplinary committee considered the written statements of Officers Walker and Phillips. Segarla then testified that the pills were not his and that instead they belonged to Julio Herencio. It was at this juncture that Segarra attempted to have the committee consider a note purportedly written by Herencio claiming ownership of the pills.

The chairman of the committee, defendant appellant McDade, refused to let the committee consider this note. He refused to accept it because it was not possible to determine the authenticity of the letter. The letter was not dated, it was not addressed to the committee and it was not signed.³

The appellee then requested that Herencio be brought in from lockup to testify at the hearing. McDade refused to bring Herencio in to testify because: (1) the written and oral testimony offered sufficient evidence on which the committee could base a fair decision; (2) Segarra had refused the opportunity to name witnesses or have any statements taken; and (3) the Committee was trying to determine the question of possession, not ownership.⁴

The committee unanimously found Segar-ra guilty; and they suspended his television and recreational privileges for thirty days and took away thirty days of good conduct time. Segarra appealed this decision to the Warden. He attached to his appeal both the letter proffered to the committee and a statement made by Herencio. The record was reviewed by the deputy warden at defendant Edwards’ direction. The deputy warden found that McDade had the discretion to exclude Herencio’s testimony, there were no procedural errors; and in his opinion, the evidence supported the committee’s decision. This decision was affirmed by the Warden on appeal.

Segarra, proceeding pro se, then filed this § 1983 claim in the district court. He sought expungement of the violation from the prison’s records and alleged he had not been accorded due process. He did not seek monetary damages.

The parties agreed to have this case tried by magistrate. The magistrate, relying on the panel decision of Ward v. Johnson, 667 F.2d 1126 (4th Cir.1981) rev’d en banc, 690 F.2d 1098 (1982), found that a prisoner faced with loss of good time “has a constitutional right to call witnesses in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals.” 667 F.2d at 1130. The magistrate, applying this rule, held that the refusal to call Herencio as a witness was a denial of Segarra’s procedural due process rights guaranteed by the fourteenth amendment and, despite the fact that there had been no prayer for damages, awarded the plaintiff-appellee $1.00 in damages and $1500.00 in attorney’s fees. This appeal followed.

We reverse the judgment of the district court for three reasons. First, the plaintiff did not seek monetary damages below: he only requested expungement of the record of the proceeding and a declaration that his due process rights had been violated. Second, Segarra did receive the process he was due under Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). And third, the decision below followed the precedent of our panel decision in Ward v. Johnson; that case, however, has been reversed by this court sitting en banc. Further, Ward v. Johnson held that members of disciplinary committees in a prison system are entitled to immunity.⁵

II

Because the plaintiff did not request monetary damages, the defendants had no prior notice that they could be exposed to this liability. Although the damages awarded may have been nominal, the potential exposure to paying attorney’s fees could be oppressive. The defendants should therefore be notified of this exposure before having to face the consequential liability. Further, in a § 1983 suit that seeks actual damages, a defendant is entitled to a jury trial. Burt v. Abel, 585 F.2d 613, 616 (4th Cir.1978); Cook v. Cox, 357 F.Supp. 120, 124-125 (E.D.Va.1973).⁶ If a plaintiff was allowed to receive monetary damages without requesting them, a defendant could be deprived of his right to trial by jury because of a defect in notice; to allow this result can hardly be just.

III

Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L.Ed.2d 935 (1974) delimitates the process that is due a prisoner in a prison disciplinary proceeding involving the loss of “good time” credits. Wolff requires two procedures, both of which Segarra received here: (1) written notice of the charges at least twenty-four hours before the hearing and (2) a written statement by the fact finders as to the evidence relied on and reasons for the disciplinary action. 418 U.S. at 564, 94 S.Ct. at 2969. The Court, however, stopped short of requiring witnesses in every instance.⁷

While stating that an inmate facing disciplinary proceedings should be allowed to call witnesses when it will not be unduly hazardous to institutional safety or correctional goals, the Court also recognized that this right was not unfettered. In fact, this case presents the very problem that the court recognized — the “obvious potential for disruption and for interference” with the necessary disciplinary action. 418 U.S. at 566, 94 S.Ct. at 2979.

At the time of the disciplinary hearing, Segarra had been housed at Central for three years. He had been before the disciplinary board before and he testified that he was familiar with the board’s practice and procedure. Despite the fact that he was familiar with the procedure, he refused to make a statement, list any potential witnesses or have a statement taken from a witness. He later testified that he “always said no” when asked to make a statement or have a witness’s statement taken. He also testified that he knew the investigating officer could have taken a witness’s statement if he had requested it. There were five days between the date he was given notice of the charge and the date of the hearing, yet he requested no statements to be taken during this interim.⁸ Instead, it was during the hearing, after his own testimony, that Segarra gave notice he wished to bring a witness in to testify to the ownership of the pills. The chairman concluded that such testimony was unnecessary to determine possession of the pills in light of the statement of the officer who testified that he had seen Segarra throw the pills to the ground. Segarra had offered his version to the committee and the committee felt there was sufficient evidence to resolve the dispute of facts, unfortunately for Se-garra, the committee accepted the correctional officer’s version of the facts as being more credible.

The decision by the committee to omit the testimony of the witness was entirely within its discretion; it also was justifiable to avoid disruption and interference with the proceeding. The Supreme Court recognized in Wolff that courts must allow officials some degree of flexibility to refuse to call witnesses for several reasons. The court recognized the need for swift punishment, the necessity of keeping hearings within reasonable limits and the need to maintain authority. It also recognized that correction committees could refuse to hear witnesses because of irrelevance of testimony, lack of necessity and hazards in particular cases.⁹ Here the committee was concerned with the possibility of disruption of the disciplinary process and the chairman explained that the testimony did not reach the question of possession; therefore admission of the testimony was unnecessary.

Were we faced with somewhat different facts perhaps the result on this issue would be different. There is a difference, however, between a first offender, who has never been before a disciplinary committee and a person, such as Segarra, who makes the statement that he never gives out the names of his witnesses. If the court were to condone his behavior we would open the door to allowing inmates like Segarra to manipulate the disciplinary procedure. Such an inmate could always refuse to do anything to assist the investigating officer in preparing the statements for the hearing and then always demand to call witnesses, relevant or not, during the hearing. It was the plaintiff’s practice not to cooperate with the investigating officer. Once given that opportunity, we cannot approve a rule that would allow him to disrupt and impede the disciplinary proceedings. Segarra received the due process protections mandated by Wolff and cannot now profit by his own manipulative behavior.

IV

The last ground for reversing the district court is that the prison officials are entitled to immunity from damages liability. The case relied upon by the court to establish liability has since been reversed. At the time the court below made its decision, Ward v. Johnson, 667 F.2d 1126 (4th Cir.1981), rev’d., 690 F.2d 1098 (4th Cir. 1982), stood for the proposition that a prisoner faced with a loss of good time credit had a constitutional right to call a witness as long as it would not interfere with the prison’s safety or correctional goals.¹⁰ 667 F.2d at 1130. If this right were violated, according to the panel decision, the prisoner should at least be granted nominal damages. Subsequent to Segarra's trial, however, Ward was reversed by this court sitting en bañe.

Ward v. Johnson discussed both qualified and absolute immunity in reaching the conclusion that members of disciplinary committees were absolutely immune. Applying Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), the court concluded that absolute immunity attaches and extends to certain members of the executive branch when their role in administrative adjudicatory proceedings is functionally comparable to that of a judge. For this immunity to arise the proceeding must possess “many of the same safeguards ... available in the judicial process.” 690 F.2d at 1105. Qualified immunity from liability for civil damages will arise unless the official’s conduct “violate[s] clearly established statutory or constitutional rights of which a reasonable person would have known.” 690 F.2d at 1111. (Quoting Harlow v. Fitzgerald, - U.S. -, -, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)).

We feel it is obvious that the defendants are entitled to qualified immunity from damages. The procedural history of Ward, the case upon which liability was grounded, dictates this conclusion. The disposition of Ward emphasizes the fact that the question of when a witness must be called and when a hearing officer may refuse to hear live testimony on behalf of an inmate had not been clearly settled so that a reasonable person would have clearly known what the constitutional right of the prisoner was at the time of the hearing. Moreover, Pollard v. Baskerville, 481 F.Supp. 1157, 1161 (E.D. Va.1979), aff’d, 620 F.2d 294 (4th Cir.1980) (table) stands for the proposition that the hearing officer has the discretion to exclude live witnesses from the hearing. Therefore, we conclude that the defendants were entitled to qualified immunity from civil damages.

The question of whether to apply absolute immunity in the present case is a more difficult one to reach. Ward v. Johnson and Butz v. Economou have set forth a seven element test to determine if sufficient procedural safeguards exist to ensure a fair and impartial hearing in an administrative adjudicatory proceeding wherein the hearing officer is functionally equivalent to a judge.¹¹ 690 F.2d 1105-06. After examining the record and the regulations of the North Carolina Division of Prisons, we conclude that the procedural safeguards are present here and that the officials are entitled to absolute immunity.

McDade’s posture is like that of the defendant in Ward who was chairman of the disciplinary committee that functioned in a judicial capacity. He was required to make the evidentiary ruling concerning the propriety and necessity of admitting the letter and the witness’s testimony. This is functionally comparable to a judge’s action in a judicial proceeding. 690 F.2d 1106. We next examine the proceedings in the context of the seven safeguards that guarantee a fair and impartial proceeding.

The proceedings were adversarial in nature. The prisoner is entitled to have a member of the staff represent him before the committee; if necessary to permit a fair decision he may confront and cross-examine his accuser; and, he has the right to refute or explain evidence against him as well as to present evidence and statements in his own behalf. 5 NCAC 2B.0203(b)(4), (6).

The members of the committee are insulated from improper supervision to assure their independent decision. The regulations require a balanced and impartial tribunal and no one initiating charges, who is a witness in the case, or who is on the staff of the unit where the accused is assigned may be a member of the committee hearing the case. 5 NCAC 2B.0203(b)(l).

The committee is required to keep a record of the proceedings. This record is to be fully developed to enable the committee to reach a proper decision on the record. The chairman has the discretion to postpone the hearing to allow a necessary witness to testify or to obtain additional information. Further, he may reopen the hearing for additional questioning if the committee feels more information is necessary to ensure a proper decision. The record must contain the committee’s findings and rationale for the findings. 5 NCAC 2B.0203(b)(6), (7), (8). Once the decision is recorded the inmate may have his objections recorded in the record. The committee’s decision is then reviewed for procedural errors and to ensure that the inmate received a full and fair hearing. The inmate is informed of the result of the review and may then appeal on the full record to the Director of the Prisons or his designee. 5 NCAC 2B.0204. This procedure provides the inmate with an automatic review of the case with his objections on record followed by an appeal on the record. Segarra was provided with both a review and an appeal on the record of the proceedings.

The last element to be examined here, the danger of retaliatory response, is proved by the very existence of the present suit. As Judge Russell recognized in Ward, “[t]he proclivities of prison inmates to engage in litigation are prodigious. It has been estimated that between 30 and 40 percent of our appeals in this Circuit concern proceedings by prison inmates.” 690 F.2d at 1108. This very suit became a retaliatory action to an unfavorable evidentiary ruling.

Because the seven elements necessary to ensure that procedural safeguards similar to a judicial proceeding are present here, and because the role of the prison officials is functionally comparable to a judge, we hold that the defendants are absolutely immune under Ward v. Johnson. To hold otherwise would be to open the doors of the courthouse to suits that would not only be burdensome, harassing and time-consuming for prison officials who serve on disciplinary committees, but would expose them to a financial risk that could result in their refusing to sit on such committees. This could seriously hamper the proper administration of our prisons.

V

As a result of our conclusion that monetary damages were not requested by the plaintiff, that Segarra received all the process due him under Wolff v. McDonnell and that the defendants are absolutely immune from any damages award, the judgment of the district court is

REVERSED.

1 . Q. Mr. Segarra, did you ever refuse to submit a list of witnesses?

A. You know, they ask you, “Do you want to have anyone to write a statement?” but it seemed like it’d be a rush job, so I always — if you would look at my records you would see that I always say no. (emphasis added).

2 . Q: And you could have given Julio Heren-cio’s name to the Investigating Officer, Sergeant Phillips, and he could have obtained the same statement for you?

A: He probably could have.

Q: And then that would have been submitted to the disciplinary proceeding, right? A: Yes.

Q: And that would have been considered by the Disciplinary Committee?

A: I guess it would have. I couldn’t swear to that.

3 . The letter was addressed to “Hey Bro” and signed “Later bro, J.J.”

4 . According to McDade’s testimony, Segarra requested that he be allowed to bring Herencio to verify the letter and to testify that the pills were his. This testimony would involve ownership and not the charged offense, possession, either actual or constructive.

5 . Although Judge Russell discussed qualified immunity, he clearly stated the immunity was absolute. 690 F.2d at 1099, 1110-1114. Judge Murnaghan, with Judge Phillips joining him, concurred in the result but stated that he felt it premature to decide whether such immunity was absolute and preferred to leave that question for a case presenting the question squarely. Id. at 1114.

6 . Cook v. Cox held that persons seeking monetary damages under § 1983 must take their claim to a jury if either of the parties demands a jury trial. Burt v. Abel held that a plaintiff who alleges actual damages exceeding twenty dollars in a § 1983 action has the right to a jury trial. 585 F.2d at 616, n. 7.

7 . Before reaching the substantive issues involved in Wolff, the Court reflected upon the nature of discipline in prisons and the special consideration that must be given to the problems prison officials face when a court frames the constitutional requirements to be imposed upon those officials. 418 U.S. at 560 to 563, 94 S.Ct. at 2976 to 2978. The Court specifically stated that it would be unwise to apply a constitutional standard to the disciplinary procedures that would call for adversary proceedings typical of a criminal trial.

8 . It is instructive to note that Segarra obtained a statement from Herencio to use during his appeal to the warden a few hours after the hearing. It was given July 12, 1978 at 10:30 a.m.

9 . In addressing the issue of when a prisoner may call witnesses and when the prison officials may refuse to call a witness the Court stated as follows:

Ordinarily, the right to present evidence is basic to a fair hearing; but the unrestricted right to call witnesses from the prison population carries obvious potential for disruption and for interference with the swift punishment that in individual cases may be essential to carrying out the correctional program of the institution. We should not be too ready to exercise oversight and put aside the judgment of prison administrators. It may be that an individual threatened with serious sanctions would normally be entitled to present witnesses and relevant documentary evidence; but here we must balance the inmate’s interest in avoiding loss of good time against the needs of the prison, and some amount of flexibility and accommodation is required. Prison officials must have the necessary discretion to keep the hearing within reasonable limits and to refuse to call witnesses that may create a risk of reprisal or undermine authority, as well as to limit access to other inmates to collect statements or to compile other documentary evidence. Although we do not prescribe it, it would be useful for the Committee to state its reason for refusing to call a witness, whether it be fpr irrelevance, lack of necessity, or the hazards presented in individual cases. Any less flexible rule appears untenable as a constitutional matter, at least on the record made in this case. The operation of a correctional institution is at best an extraordinarily difficult undertaking. Many prison officials, on the spot and with the responsibility for the safety of inmates and staff, are reluctant to extend the unqualified right to call witnesses; and in our view, they must have the necessary discretion without being subject to unduly crippling constitutional impediments.

418 U.S. at 566-67, 94 S.Ct. at 2979-80.

10 . Here the prisoner has the right to call witnesses and the unit supervisor has the duty to have witnesses needed available at the hearing when it was necessary. Otherwise, written statements may be used, particularly where more than one witness is to testify to a specific fact in question. The chairman also has¹ the authority to postpone the hearing until a witness can be present. Inmate Conduct Rules, Discipline, 5 NCAC 2B, .0203(b)(3), (6).

11 . Those seven elements listed in 690 F.2d at 1105-06 are as follows:

(1) the administrative proceedings should be “adversary in nature;” (2) the officer exercising the adjudicatory power in the administrative proceeding should not be subject to supervision or direction of other employees engaged in investigative or prosecutorial duties; (3) a party should be entitled to offer either oral or written relevant and non-repetitive evidence on his behalf; (4) the record of the proceedings should be duly recorded and, so recorded, should constitute the exclusive record for decision; (5) the proceedings should be so structured as to assure the exercise by the officer in his decision of independent judgment on the evidence before him; (6) the proceeding should be such as to prevent the danger of retaliatory response by the disappointed inmate to an adverse decision; and (7) there should be reasonable opportunity for the party involved to challenge by appeal the decision. So long as those exercising administrative adjudicatory powers are subject generally to these restraints, with their reasonable tendency to reduce the need for a judicial remedy to deter unconstitutional conduct, they “are entitled to absolute immunity from damages liability for their judicial acts.”

1 . Because the right to procedural due process is “absolute” in the sense that it does not depend upon the merits of a claimant’s substantive assertions, and because of the importance to organized society that procedural due process be observed, ... we believe that the denial of procedural due process should be actionable for nominal damages without proof of actual injury.

Carey v. Piphus, 435 U.S. 247, 266-67, 98 S.Ct. 1042, 1053-54, 55 L.Ed.2d 252 (1978) (footnote and citations omitted).