Gary Wayne Freeman v. Richard Rideout ( 1987 )

OAKES, Circuit Judge

(dissenting from denial of rehearing en banc):

I dissent from the denial of rehearing en banc.

In this case, now reported at 808 F.2d 949 (2d Cir.1986), in an opinion by Chief Judge Re for a panel including Judges Pratt and Miner, the panel held that a state prison inmate had no claim under section 1983 against a prison correctional officer for filing false charges against the inmate which resulted in thirty days of segregation after a disciplinary hearing was held. The gist of the court’s opinion is that once the procedural requirements of Wolff v. McDonnell are met, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), in that the inmate is given twenty-four hours’ advance written notice of the charges, an opportunity to appear at the hearing, to call witnesses, and to present rebuttal evidence, and a written statement by the fact finders, his rights are fully satisfied.

The opinion in this case, like that in Hanrahan v. Lane, 747 F.2d 1137 (7th Cir. 1984), engages in purely procedural due process analysis and does not follow the precedents of this court in Conway v. Village of Mt. Kisco, 750 F.2d 205 (2d Cir. 1984), reaff'd, 758 F.2d 46, 48 (2d Cir.1985), cert. granted sub nom. Cerbone v. Conway, 474 U.S. 1100, 106 S.Ct. 878, 88 L.Ed.2d 915 (1986), cert. denied as improvidently granted, — U.S. —, 107 S.Ct. 390, 93 L.Ed.2d 325 (1986); see also McClary v. O’Hare, 786 F.2d 83, 85 n. 2 (2d Cir.1986), in looking at the substantive due process aspects of the plaintiff's claim. See also Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 671, 88 L.Ed.2d 662 (1987) (concurring opinion of Stevens, J.) (due process clause contains substantive component “which bars certain arbitrary government actions ‘regardless of the fairness of the procedures used to implement them’ ”). It is on this basis that police officers and other state agents may be sued under section 1983 for transmitting false information to a prosecutor or in filing false charges. Conway, supra; Wheeler v. Cosden Oil and Chemical Co., 734 F.2d 254, 260, modified, 744 F.2d 1131 (5th Cir.1984); Dellums v. Powell, 660 F.2d 802 (D.C.Cir. 1981); Hampton v. Hanrahan, 600 F.2d 600, 630 (7th Cir.1979), rev’d on other grounds, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980). It is precisely in this situation where an individual is in the control of the state that substantive due process plays a major role. See Wells & Eaton, Substantive Due Process and the Scope of Constitutional Torts, 18 Ga.L.Rev. 242-45 (1984); see also Johnson v. Glick, 481 F.2d 1028 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973) (substantive due process analysis per Friendly, J.). See also Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935); Alcorta v. Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957); Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). While a life or death sentence is not involved here, thirty days of segregation is a lot. It is my belief that the knowing proffering of false evidence by a state agent, even in the prison context, works a denial of substantive due process which is not cured by a hearing meeting procedural due process requirements. To the extent that the Seventh Circuit case, Hanrahan v. Lane, holds to the contrary, I simply disagree with it.

Accordingly, I dissent from the denial of rehearing en banc.