DocketNumber： 92-1014
Filed Date： 7/27/1992
Status： Precedential
Modified Date： 9/21/2015
July 27, 1992 [NOT FOR PUBLICATION]
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No. 92-1014
DAVID A. JOSSELYN,
Plaintiff, Appellant,
v.
PHILIP POIRIER, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
___________________
___________________
Before
Selya, Circuit Judge,
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Campbell, Senior Circuit Judge,
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and Boudin, Circuit Judge.
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David A. Josselyn on brief pro se.
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Nancy Ankers White, Special Assistant Attorney General and
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Charles M. Wyzanski, Senior Litigation Counsel, Department of
____________________
Correction, on Memorandum of Law in Support of Summary
Disposition.
__________________
__________________
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Per Curiam. Plaintiff/appellant, David A. Josselyn,
___________
appeals the grant of summary judgment in favor of the prison
officials against whom he brought an action, pursuant to 42
U.S.C. 1983. We affirm.
Josselyn, a prisoner at the Massachusetts Correctional
Institution (MCI) at Norfolk, was suspected of attempting to
escape in the early morning hours of September 15, 1989.
That evening he was transferred to MCI at Cedar Junction.
In March 1990, he filed suit with claims stemming from
the investigation of the escape attempt and his transfer.
Eventually, the parties cross-moved for summary judgment with
the prison officials prevailing.
I.
Before turning to the underlying merits, we dispose of
some preliminary complaints appellant raises on appeal.
First, Josselyn contends that he did not have adequate notice
that defendants' motion would be treated as one seeking
summary judgment. This argument is specious. Defendants'
motion was permissibly phrased in the alternative, as a
motion to dismiss or for summary judgment.1 The motion
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1. There were actually two such motions. The first was
filed in February 1991 with an accompanying memorandum. This
motion recited that it was filed on behalf of 13 named
defendants. There were, however, 16 named defendants and the
omission of 3 names appears to have been inadvertent.
Josselyn filed his opposition and cross-motion in March 1991.
In October 1991, the defendants filed a second motion,
this one reciting all 16 names. This subsequent addition of
earlier-omitted names did not prejudice Josselyn, as this
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itself gave notice to Josselyn and he was given a reasonable
opportunity to respond, which he did, with an opposition, a
cross-motion for summary judgment, and accompanying
memorandum.
Second, Josselyn argues that the district court erred in
failing to hold a hearing before granting summary judgment.
The court properly may grant summary judgment, without an
evidentiary hearing or oral argument, "if no dispute over
material fact exists and a trial or hearing would not enhance
its ability to decide the [remaining legal] issue." Posadas
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de Puerto Rico, Inc. v. Radin, 856 F.2d 399, 401 (1st Cir.
_____________________ _____
1988); see also Fed. R. Civ. P. 43(e) (court may "hear"
_________
motion on affidavits). As discussed infra, contrary to
_____
Josselyn's contention, there is no genuine issues of material
fact and no necessity for a hearing.
Third, Josselyn complains that the court's grant of
summary judgment was not accompanied by any supporting
memorandum. Findings of fact and conclusions of law are
unnecessary on decisions of summary judgment motions. Fed.
R. Civ. P. 52(a). The court endorsed, as "allowed," the
defendants' motion, which sought summary judgment based on
____________________
second motion relied on the previously filed memorandum. In
any event, Josselyn had an opportunity to file a further
response, if it was warranted, but did not do so. The
district court granted summary judgment in defendants' favor
on November 26, 1991, with judgment entering on December 20,
1991.
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the reasoning set forth in their memorandum. The basis for
the court's ruling, therefore, is apparent from the record.
While a supporting memorandum is useful to a reviewing court,
the absence of such is not fatal in this case. Domegan v.
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Fair, 859 F.2d 1059, 1065-66 (1st Cir. 1988).
____
II.
We turn to the merits of this appeal. We review the
grant of summary judgment de novo. See, e.g., Rodriques v.
_________ _________
Furtado, 950 F.2d 805, 808 (1st Cir. 1991). "Summary
_______
Judgement is appropriate only if there is no genuine dispute
as to material fact and the moving party is entitled to
judgment as a matter of law." Id. at 809. We "review the
___
record, together with all reasonable inferences therefrom, in
the light most favorable to the non-moving party, here
appellant." Id.
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Unless otherwise indicated, these facts are essentially
undisputed. On September 15, 1989, at approximately 8:45
a.m., after a night of heavy rain, prison officials found a
rope made of prison bedsheets hanging from a wall at Norfolk,
a hole, approximately 2 feet by 1 feet, cut in an adjacent
inner perimeter chain-link fence, and, close by, a pair of
needle nose pliers. The pliers had pieces of conduit pipe
attached to the ends with blue electrical tape. The
bedsheets had Josselyn's laundry identification number on
them. Josselyn's room was searched that afternoon and
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several articles of his clothing, including sneakers, were
found to be soaking wet. The sneakers had scuff marks on the
inner foot area. Defendants contend, although Josselyn now
denies, that Josselyn's hot pot had blue electrical tape on
it, identical to the tape used to connect the pliers and
pipe.2
Josselyn was placed in Norfolk's segregation unit and a
visual body cavity search was done. At approximately 9:30
p.m., he was transferred to Cedar Junction, where he was
placed in Awaiting Action (AA) status in that prison's
segregation unit. On October 25, 1989, a classification
meeting was held. The classification board recommended that
Josselyn remain in AA status pending the results of the
investigation into the attempted escape and related
disciplinary action.
On November 10, 1989, Josselyn received a copy of the
disciplinary report. This report related the facts
previously noted regarding the homemade rope, hole in the
perimeter fence, pliers, and pipe. The report also stated
that interviews were conducted, at which Josselyn was
identified as the inmate who had attempted the escape.
Although the attempted escape occurred between 2 and 3 a.m.,
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2. Josselyn did not contest the existence of the blue
electrical tape on his hot pot at the disciplinary hearing
and a photograph showing the hot pot with blue tape attached
to its cord was admitted into evidence at the hearing.
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the inner perimeter fence and the wall were lit. According
to the report, some of the inmates who were interviewed
recited that Josselyn climbed out the fire escape window in
his room, crawled along the fence, cut through the inner
perimeter fence, and crawled across the "dead zone." These
interviewees further recited that, with the assistance of
broomsticks with blocks attached, Josselyn placed a hook,
with a sheet attached, to the top of the wall and attempted
to climb the wall. According to the report, when the attempt
failed, Josselyn moved the hook and sheet down to a different
area, tried and again failed to climb the wall, then crawled
back through the "dead zone" and returned to his unit. The
report recited that every article of evidence was either
directly tied to Josselyn or he had access to that material
and was seen with it.
After two continuances at Josselyn's request so that
counsel could be present and one continuance due to the
reporting officer's illness, the disciplinary hearing was
held on February 2, 1990. The investigating officer
testified. Because the escape incident had been referred to
the district attorney's office for possible prosecution,
Josselyn invoked his fifth amendment right to remain silent
and did not testify in his own behalf. Josselyn was
represented by a law student, who argued that, on the morning
after escape attempt, it was damp outside and that Josselyn
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had been out jogging and had made no attempt to hide his wet
clothes, which were laying around his room.
On February 12, 1990, Josselyn was found guilty of
attempted escape. He was given 15 days in isolation and the
disciplinary board recommended that Josselyn be reclassified
to higher security, placed in the departmental segregation
unit (DSU), and lose 1000 days of good time credit. Josselyn
appealed the recommended loss of good time credit. The
superintendent recommended, and the commissioner ordered,
that 500, rather than 1000, good time days be forfeited.
An initial DSU review was held on April 20, 1990. The
DSU board recommended a 2 year placement in DSU. Josselyn
was ultimately released to the Cedar Junction general
population on July 9, 1991.
III.
On appeal, Josselyn argues that there exist 5 genuine
issues of material fact, which preclude entry of summary
judgment in the defendants' behalf.
A.
__
Josselyn claims that when he was taken to Norfolk's
segregation unit, prior to his transfer to Cedar Junction, he
had to remove all of his own clothes, underwent a visual body
cavity search, and was left naked for several hours. He
claims that these actions amounted to punishment and an
unreasonable search and seizure.
-8-
Contrary to Josselyn's contention, this claim does not
present any genuine issue of material fact, for even
________
accepting these assertions as true, they would not affect the
outcome of the case under the applicable law. See Anderson
___ ________
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (reciting
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that only disputes over facts that might affect the outcome
of the suit under the governing law will properly preclude
the entry of summary judgment). Balancing the significant
and legitimate security interests of the prison against the
privacy interest of the inmate, a visual body cavity search
conducted of an inmate suspected of an attempted escape does
not constitute punishment nor an unreasonable search and
seizure in violation of the Constitution. Bell v. Wolfish,
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441 U.S. 520, 558-60 (1979) (holding that probable cause is
not necessary to conduct a visual body cavity search of an
inmate after a contact visit with a person from outside the
institution); Cookish v. Powell, 945 F.2d 441, 446 n.7 (1st
_______ ______
Cir. 1991) (concluding that a visual body cavity search
conducted when transferring inmates after a prison
disturbance is not an unreasonable search); Arruda v. Fair,
______ ____
710 F.2d 886, 886-88 (1st Cir.) (holding that a visual body
cavity search conducted when an inmate enters or leaves his
unit on his way to or from the prison law library and
infirmary, and after he receives visitors in the unit's
visiting rooms does not violate the Fourth or Eighth
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Amendments), cert. denied, 464 U.S. 999 (1983). The fact
____________
that, according to Josselyn, after the search was completed,
he spent several hours, naked in a cell in Norfolk's
segregation unit, before he was given a jumpsuit and slippers
for his transfer to Cedar Junction, in our view, does not
elevate this claim into a constitutional violation.
B.
__
Josselyn claims that the defendants negligently lost
some of the property that he was forced to leave behind,
including the clothing he had been wearing just before his
transfer to Cedar Junction. Again, as with the claim just
discussed, this claim does not present any genuine issue of
material fact, precluding entry of summary judgment in
defendants' favor. "[T]he Due Process Clause is simply not
implicated by a negligent act of an official causing
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unintended loss of or injury to life, liberty, or property."
Daniels v. Williams, 474 U.S. 327, 328 (1986) (emphasis in
_______ ________
the original). Josselyn's contention that the defendants'
refusal to reimburse him for the replacement cost of the lost
property is punishment for his attempted escape does not
advance his claim of a federal constitutional violation. We
express no view as to the existence of any state remedy.
C.
__
Josselyn complains of his transfer to AA status at Cedar
Junction without a hearing and of the 7 month delay before a
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DSU review occurred. Again, this contention presents no
factual dispute and, accepting these facts as asserted by
Josselyn, we conclude defendants are entitled to judgment as
a matter of law.
The transfer of an inmate to more restrictive quarters
pending investigation of misconduct charges does not impinge
on any liberty interest protected by the Due Process Clause
in and of itself. Hewitt v. Helms, 459 U.S. 460, 468 (1983).
______ _____
A state, however, may create a substantive liberty interest
protected by the Due Process Clause through statutory or
regulatory law. Id. at 469. Josselyn argues that
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Massachusetts has done so here via the department of
correction's regulations related to the use of segregation
and that the defendants' alleged failure to comply with those
regulations violated his due process rights.
"[A] State creates a protected liberty interest by
placing substantive limitations on official discretion."
Olim v. Wakinekona, 461 U.S. 238, 249 (1983). "[O]ur method
____ __________
of inquiry" is "to examine closely the language of the
relevant statutes and regulations." Kentucky Dep't of
___________________
Corrections v. Thompson, 490 U.S. 454, 461 (1989). If the
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relevant regulations give the defendant prison officials
essentially unfettered discretion to place an inmate in AA
status, no liberty interest has been created.
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We reviewed the Massachusetts Department of Corrections
"awaiting action status" detention regulations in Stokes v.
______
Fair, 795 F.2d 235 (1st Cir. 1986). In Stokes, we concluded
____ ______
that the regulations did create a liberty interest protected
by the Due Process Clause because, as then written, they
permitted prison officials to place an inmate in AA status
only upon occurrence of certain conditions, i.e., pending
(a) a hearing on a disciplinary offense
by the inmate
(b) an investigation of a possible
disciplinary offense by the inmate
(c) a transfer or a reclassification of
the inmate to a higher custody status, or
(d) imposition of isolation time
sanction on the inmate when the inmates's
continued presence in the general
population poses a serious threat to
persons, property, or the security of the
institution.
Id. at 237.
___
Subsequent to our decision in Stokes, the relevant
______
regulations were revised and, at the time of appellant's
transfer to Cedar Junction and placement in AA status, the
relevant regulation, Mass. Regs. Code tit. 103, 430.21
(1987), read:
(1) At the discretion of the
Superintendent or his/her designee, and
subject to any applicable review
requirements, an inmate who is under
investigation for a possible disciplinary
offense, or who has been charged with or
found guilty of a disciplinary offense,
may be placed on awaiting action status
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at the institution where he/she is then
confined. Such status may include more
restrictive confinement as deemed
appropriate by the Superintendent or
his/her designee.
(2) An inmate who is under investigation
for a possible disciplinary offense, or
who has been charged with or found guilty
of a disciplinary offense, may be
transferred to another Massachusetts
institution, or an out of state
institution prior to a classification
hearing. An inmate so transferred may,
at the discretion of the Superintendent
or his/her designee at the receiving
institution, and subject to any
applicable review requirements, be placed
on awaiting action status. Such status
may include more restrictive confinement
as deemed appropriate by the
Superintendent or his/her designee.
We interpreted the pre-1987 regulations as limiting the
prison officials' discretion to place an inmate in AA status
to those instances expressly set out in the regulations, one
of which was pending investigation of a possible disciplinary
offense. We note that the 1987 regulation permitted the
prison officials to transfer an inmate, who is under
investigation for a possible disciplinary offense, prior to a
classification hearing and to place that transferred inmate
in AA status "at the discretion of the Superintendent or
his/her designee." We need not, and do not, determine
whether this revision worked a substantive change in an
inmate's liberty interest in remaining in the general prison
population. We will assume, consistent with our Stokes
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analysis, that an inmate has a reasonable expectation that he
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will be placed in AA status only if he is (a) under
____
investigation for, (b) has been charged with, or (c) found
guilty of a disciplinary offense. In other words, we will
assume that (a) (b) and (c) is an exhaustive list of the
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conditions permitting placement in AA status. But cf.
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Berrier v. Allen, 951 F.2d 622, 625 (4th Cir. 1991) (finding
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no liberty interest created where language of regulations did
___
not explicitly prohibit prison officials from confining
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inmate in administrative segregation unless one of the four
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enumerated situations existed).
Assuming that the department of corrections' regulations
created a liberty interest, there was, nonetheless, no due
process violation. One of the expressed substantive
predicates required for placing an inmate in AA status was
present in Josselyn's case; he, in fact, was under
investigation for a possible disciplinary offense when he was
placed in AA status. See Smith v. Massachusetts Dep't of
___ _____ _______________________
Correction, 936 F.2d 1390, 1397 (1st Cir. 1991) (where one of
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the requisite substantive predicates for placing an inmate on
AA status was present, there was no due process violation).
That he was transferred to Cedar Junction and placed in AA
status prior to a hearing, likewise, raises no due process
concern, either as a matter of the Due Process Clause itself,
Hewitt v. Helms, 459 U.S. at 472 (due process is satisfied by
______ _____
an informal, non-adversary review within a reasonable time
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after confinement to administrative segregation), or as a
matter of any state-created liberty interest as 430.21(2)
permitted the transfer and placement in AA status prior to a
classification hearing.
It appears that Josselyn's real complaint is his
suggestion that the 7 month delay, between his transfer to
Cedar Junction and his DSU review and reclassification,
during which time he remained in AA status, was an
impermissible attempt by the defendants to use AA status as a
substitute for a formal DSU classification. The Court, in
Hewitt v. Helms, 459 U.S. at 477 n.9, noted:
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administrative segregation may not be
used as a pretext for indefinite
confinement of an inmate. Prison
officials must engage in some sort of
periodic review of the confinement of
such inmates.
As in Hewitt, the record in this case "is sufficient to
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dispel any notions that the confinement was a pretext." Id.
___
Josselyn was transferred on September 15, 1989. The
regulations provided that when a disciplinary investigation
is pending, an initial classification hearing, consisting
"only of an evaluation of the inmate's security requirements
and programmatic needs," shall be held within 20 working days
of the transfer. Mass. Regs. Code tit. 103, 420.09(3)(b)
(1987). The regulations also provided, however, that "[a]ll
procedural time limits set forth in these rules and
regulations are directory and may be waived by the
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Superintendent or the Commissioner or their designees."
Mass. Regs. Code tit. 103, 420.12, 430.23 (1987). On
September 18, 1989, Josselyn was notified that the
Superintendent had ordered an investigation and was waiving
all procedural time limits. Josselyn's status was reviewed
thereafter every 7 days and Josselyn was notified that the
investigation was continuing.
On October 25, 1989, the initial hearing referred to in
420.09(b)(3) was held, with the board recommending that
Josselyn remain in AA status pending the disciplinary
investigation.3 Thereafter, and in conformity with
regulations which became effective while he was in AA status,
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3. That this initial classification hearing apparently was
held on the 27th working day after Josselyn's transfer,
rather than within 20 working days as specified in
420.09(3)(b), does not implicate the Due Process Clause.
Regulations which embody only procedural time limits do not
create a liberty interest. Smith v. Massachusetts Dep't of
_____ ______________________
Correction, 936 F.2d at 1397 n.11; see also Hewitt v. Helms,
__________ ________ ______ _____
459 U.S. at 471 (the mere creation of a procedural structure
to regulate the use of segregation does not indicate the
existence of a protected liberty interest); id. at 472 (due
___
process satisfied by informal, non-adversary review within a
________
reasonable time after confinement to administrative
_________________
segregation) (emphasis added).
And, we note, despite the regulation's phrasing that the
hearing "shall be held within twenty (20) working days of
such a transfer," the regulation itself cannot be read as
creating some enforceable constitutional due process
entitlement to a hearing within that time, as the regulations
expressly provided that the procedural time limits were
directory and waivable, 420.12, and, were, in fact, waived
in Josselyn's case. Cf. Maldonado Santiago v. Velazquez
___ ___________________ _________
Garcia, 821 F.2d 822, 827-28 (1st Cir. 1987) (due process
______
rights were violated by 2-day delay in post-transfer
hearing).
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Josselyn's status was reviewed every 15 days. Mass. Regs.
Code tit. 103, 421.08(3) (1989).
The disciplinary investigation was completed on November
10, 1989. After two continuances at Josselyn's request and
one due to the reporting officer's illness, the disciplinary
hearing was held on February 2, 1990. Josselyn was found
guilty on February 12, 1990. He appealed the board's
recommended recapture of good time. On March 22, 1990, the
Commissioner approved the recommendation of the
Superintendent that 500 days of good time be forfeited.
Thereafter, Josselyn's DSU review occurred on April 20, 1990.
This chronology suggests a steadily progressive
disposition of Josselyn's classification status and not an
impermissible attempt by the defendants to use Josselyn's AA
status as a substitute for a formal DSU classification, in
violation of any due process right.
D.
__
Josselyn complains that the disciplinary board relied on
information from confidential informants without assessing
the informants' reliability or the credibility of the
information.
Because the disciplinary hearing subjected him to the
loss of a state-created liberty interest in good time
credits, Josselyn was entitled to "those minimum procedures
appropriate under the circumstances and required by the Due
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Process Clause to insure that the state-created [liberty]
right is not arbitrarily abrogated." Wolff v. McDonnell, 418
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U.S. 539, 557 (1974); see also Langton v. Berman, 667 F.2d
_________ _______ ______
231, 233 (1st Cir. 1981) (same). The issue, therefore, is
whether due process requires, at a minimum, an independent
assessment by the disciplinary board of the reliability of
confidentialinformants andthe credibilityof thatinformation.4
Among the minimum requirements of due process, as
established by Wolff, is a written statement of the
_____
factfinders as to the evidence relied upon and the reasons
for the disciplinary action taken. Wolff v. McDonnell, 418
_____ _________
U.S. at 564.
[T]he provision for a written record
helps to insure that administrators,
faced with possible scrutiny by state
officials and the public, and perhaps
even the courts, where fundamental
constitutional rights may have been
abridged, will act fairly. Without
written records, the inmate will be at a
severe disadvantage in propounding his
own cause to or defending himself from
others. It may be that there will be
occasions when personal or institutional
safety is so implicated that the
statement may properly exclude certain
items of evidence, but in that event the
statement should indicate the fact of the
omission.
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4. Some of the cases in this area freely interchange
reliability and credibility and so may refer to the
assessment as one of the credibility (rather than
reliability) of the informant and the reliability (rather
than credibility) of the evidence. We infer no meaningful
difference in the interchange.
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Id. at 565.
___
Although the Supreme Court has not spoken specifically
on the issue of the required procedures when confidential
informants are used, some courts have interpreted this
requirement of a written statement by the factfinders as to
the evidence relied upon as thereby encompassing a
requirement that a disciplinary committee have some
evidentiary basis upon which to determine for itself that an
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informant's story is probably credible. See, e.g., Hensley
_________ _______
v. Wilson, 850 F.2d 269, 277 (6th Cir. 1988).
______
[U]nless the committee makes an
independent determination about what the
facts of the alleged misconduct are by
deciding, minimally, that the hearsay
information has been supplied by a
reliable informant, it is merely
recording the findings made by the
investigating officer who has made a
determination about the informant's
reliability, without making any
determination for itself about the
informant's reliability or even the basis
for the investigator's opinion that
informant is reliable. To proceed in
that fashion is not fact finding. It is
recordkeeping.
Id. at 276; see also Kyle v. Hanberry, 677 F.2d 1386, 1389-90
___ ________ ____ ________
(11th Cir. 1982) (same); Helms v. Hewitt, 655 F.2d 487, 502
_____ ______
(3d Cir. 1981) (same), rev'd on other grounds, 459 U.S. 460
______________________
(1983). But see Sanchez v. Miller, 792 F.2d 694, 702 (7th
________ _______ ______
Cir. 1986) (while requiring an indicia of reliability is not
inconsistent with Wolff, it is not compelled by it), cert.
_____ _____
denied, 479 U.S. 1056 (1987).
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Three times in the past, we have visited the issue of
the procedures required when confidential informants are
used. In Gomes v. Travisono, 510 F.2d 537, 540 (1st Cir.
_____ _________
1974), we reviewed rules governing disciplinary hearings
devised under a consent decree and adopted as law by the
state of Rhode Island - the so-called Morris rules. The
______
Morris rules required that any decision arrived at must be
______
based on substantial evidence manifested in the record of the
disciplinary proceeding and that
if any of the facts establishing a Board
determination are derived from an
unidentified informant: (1) the record
must contain some underlying factual
information from which the Board can
reasonably conclude that the informant
was credible or his information reliable;
(2) the record must contain the
informant's statement in language that is
factual rather than conclusionary [sic]
and must establish by its specifity [sic]
that the informant spoke with personal
knowledge of the matters contained in
such statement.
Id.
___
We stated in Gomes that this requirement was
_____
aimed at preventing arbitrary
determinations, which is the major thrust
of Wolff, which commands "a written
_____
statement by the factfinders as to the
evidence relied on and reasons" for the
disciplinary action. If the written
statement is intended to withstand
scrutiny and guard against
misunderstanding, it cannot indicate
reliance on speculation or on facts not
in the record.
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Id. Some circuit courts have used this language from Gomes
___ _____
to support a determination that federal constitutional due
process, irrespective of any state law, is the source of a
requirement that a disciplinary board independently determine
the reliability of a confidential informant and the
credibility of the informant's information. See, e.g., Kyle
_________ ____
v. Hanberry, 677 F.2d at 1390; Helms v. Hewitt, 655 F.2d at
________ _____ ______
502. But see Sanchez v. Miller, 792 F.2d at 702 n.12
________ _______ ______
(expressing doubt that Gomes had concluded that an
_____
independent reliability/credibility determination was
required as a matter of federal constitutional law).
Our own post-Gomes opinions visiting this issue,
_____
however, reveal a less certain conclusion. In Langton v.
_______
Berman, 667 F.2d at 235, and McLaughlin v. Hall, 520 F.2d
______ __________ ____
382, 384-85 (1st Cir. 1975), we declined to decide whether
and how, as a constitutional requirement, a board must make
an independent inquiry into the reliability of an informant
and the credibility of its information. Our last word on
this subject reiterated our preference, as voiced in Wolff,
_____
that the development of specific procedural requirements
beyond those enumerated in Wolff be left in the first
_____
instance to the sound discretion of corrections authorities.
Langton v. Berman, 667 F.2d at 235. At the same time,
_______ ______
however,
[w]e continue to advise them to follow
Wolff's mandate to devise regulations to
_____
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assure that the disciplinary board's
procedure is adequate to enable it
reasonably to conclude that any
confidential information upon which it
acted was reliable. We say this,
however, without committing ourselves as
to what must be open for our review.
Id.
___
While we remain cognizant of the "need to afford some
protection against arbitrary or vindictive actions by prison
officials stemming from unreliable unidentified or even
nonexistent informants," id., this case does not require
___
resolution of the underlying constitutional premise. We
conclude in any event that no due process violation occurred.
That is because those courts which have accepted this
independent assessment as a minimum due process requirement
conclude that due process is violated when the only evidence
____
offered against an inmate in a disciplinary hearing and
relied upon by the board is a hearsay recital by an
investigating officer of an uncorroborated report of an
unidentified informant. See, e.g., McCollum v. Miller, 695
_________ ________ ______
F.2d 1044, 1049 (7th Cir. 1982); Kyle v. Hanberry, 677 F.2d
____ ________
at 1390-91; Helms v. Hewitt, 655 F.2d at 501-03; see also
_____ ______ _________
Baker v. Lyles, 904 F.2d 925, 933 (4th Cir. 1990) ("[t]his is
_____ _____
not a case where the only evidence before the prison tribunal
was the hearsay statement of an unidentified informant"); cf.
___
Hensley v. Wilson, 850 F.2d at 276-77 (due process requires
_______ ______
an independent determination by a disciplinary committee of a
-22-
confidential informant's reliability where prisoner
misconduct is found upon evidence consisting entirely, or
_____________
even substantially, of the statement of an investigating
___________________
officer that he has been told by confidential informants that
the misconduct occurred); McCollum v. Williford, 793 F.2d
________ _________
903, 905 (7th Cir. 1986) (a finding of reliability must
clearly be made in any disciplinary proceeding that relies
primarily, but not necessarily exclusively, on confidential
____________________________________________
informants).
Accepting as true, as we must in reviewing this grant of
summary judgment in defendants' favor, Josselyn's contention
that the disciplinary board in this case did not make an
independent assessment of the reliability of the confidential
informants or the credibility of their information, it is,
nonetheless, equally true, contrary to Josselyn's attempt to
portray it otherwise, that the board's determination of his
guilt was not based solely, or even substantially, on that
___
information.
The investigating officer, Philip Poirier, did testify
that approximately 40 inmates were interviewed and that none
had been informants in the past. Poirier also testified that
of these 40 inmates, approximately 8 implicated Josselyn in
the escape attempt and, of these 8 inmates, several were
eyewitnesses who saw Josselyn attempt to climb the wall. In
-23-
addition to these informant statements, however, there was
much physical evidence -
conduit pipe attached with blue electrical tape to
pliers and recovered just short of the inner
perimeter fence;
the nose of the pliers containing a galvanized
material, which matched the chain link fence;
poles, fashioned out of broomsticks and blocks,
connected by blue electrical tape, found at the
base of the wall in the inner perimeter area, where
the rope was attached;
the escape rope fashioned from prison bedsheets and
stamped with Josselyn's laundry identification
number 533;
Josselyn's laundry bag and pillowcase stamped with
his ID number 533, retrieved from his room;
saturated sneakers with scuff marks on the inner
foot area and a saturated sweatshirt found in
Josselyn's room and identified by Josselyn as
belonging to him; and
a hot pot with blue electrical tape on the cord and
Josselyn's name printed on the pot and identified
by Josselyn as his.
The disciplinary board found "[t]he information gathered
from inmate interviews, coupled with the physical evidence
confiscated and the oral testimony obtained from the
reporting officer shows the board an overwhelming pattern,
clearly indicative of the fact that [Josselyn] was directly
involved with an attempted escape."
This case is unlike, for example, McCollum v. Miller,
________ ______
695 F.2d 1004, in which four inmates were charged with
extortion and pressuring other inmates to perform homosexual
-24-
acts and the only evidence was an unsworn report of an
investigating officer, not called as a witness, which
detailed statements of unidentified confidential informants.
There was no question in the present case, with the gaping
hole in the fence and the rope, pipe, pliers and poles found
nearby, that an escape had been attempted.
This case is also unlike Helms v. Hewitt, 655 F.2d 487,
_____ ______
in which an inmate was found guilty of striking an officer
during a prison melee solely on the basis of a hearsay
account of an unidentified informant's uncorroborated story.
Putting aside the investigating officer's testimony that 8
inmates implicated Josselyn, including several who claimed to
have witnessed his attempt to scale the wall, there was
physical evidence linking Josselyn to the attempted escape -
the rope stamped with his laundry ID number, his saturated
clothing, including sneakers with scuff marks on the inside
foot area, and blue electrical tape, found on an item in his
room, that was the same type as used on the escape tools.
Despite the absence of any reference by the disciplinary
board in its report that it had independently determined that
the confidential informants were reliable and their
information credible in identifying Josselyn as the
perpetrator, the physical evidence recovered obviously
provided some corroboration. Kyle v. Hanberry, 677 F.2d at
____ ________
1391 (the inquiry by the disciplinary board into the
-25-
reliability of informants may be diminished or even satisfied
where there is corroborating physical evidence of the
information provided). In any event, because the
disciplinary board did not rely solely, or even
substantially, on any informant's identification of Josselyn
as perpetrator of the attempted escape, we conclude that no
due process violation occurred by the board's alleged failure
to make an independent assessment of the reliability of the
confidential informants or the credibility of their
information.
To be sure, Josselyn downplays the significance of the
physical evidence. He suggests that his bedsheets were
stolen; his clothing was wet because, he claims, he was out
jogging that morning; his sneakers were worn from playing
handball; his hot pot had no blue electrical tape on it; and
that the entire general prison population had access to items
such as the pipe, poles, and tape. But a court does not
review de novo a disciplinary board's finding of guilt. Due
process is satisfied if "some evidence" supports the decision
by the board to revoke good time credits. Superintendent,
_______________
Massachusetts Correctional Inst. v. Hill, 472 U.S. 445, 455
_________________________________ ____
(1985) (declining to decide whether due process requires
judicial review of prison disciplinary proceedings, but
finding that state statutory law provided such review).
"Ascertaining whether this standard is satisfied does not
-26-
require examination of the entire record, independent
assessment of the credibility of witnesses, or weighing of
the evidence." Id. There certainly was some evidence in the
___
record, apart from any informant statements, that supported
the board's conclusion and we are not required to set aside
decisions of prison administrators that have some basis in
fact. Id. at 455-56. "The Federal Constitution does not
___
require evidence that logically precludes any conclusion but
the one reached by the disciplinary board." Id. at 457.
___
E.
__
Finally, Josselyn argues that the prison policy which
requires DSU inmates to wear handcuffs and leg shackles when
moving to one location to another is an arbitrary and
unconstitutional form of punishment because, according to
Josselyn, he has no prison record of violence. Even
accepting as true Josselyn's contention as to his prison
record, the restraint policy is reasonably related to a
legitimate government purpose of prison security. There is
no constitutional deprivation.
IV.
For the foregoing reasons, we affirm the grant of
summary judgment in defendants' favor.
Affirmed.
_________
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