Colantonio v. Commissioner of Correction

On the plaintiff’s subsequent motion for the assessment of damages, the judge declined with the notation: “No violation of clearly established right by defendants. In addition, as to defendant [commissioner], no involvement.” The plaintiff has appealed, claiming entitlement to damages.

Insofar as the court denied an assessment of damages, it ruled correctly. The demands for assessment of damages and for counsel fees are predicated on 42 U.S.C. §§ 1983 and 1988 (1988), respectively. These require that the plaintiff show a Federal due process violation. Federal due process requires only “some evidence” to support a disciplinary board’s finding of a violation. Superintendent, M.C.I., Walpole v. Hill, 472 U.S. 445, 455, 456 (1985). Federal decisions establish that a written disciplinary report, unaccompanied by other evidence of violation, may constitute compliance with the “some evidence” standard, even where contradicted by testimony of the alleged violator or his witnesses. Saenz v. Young, 811 F.2d 1172, 1173, 1174 (7th Cir. 1987). Hrbek v. Nix, 12 F.3d 777, 781 (8th Cir. 1993).

For purposes of determining the plaintiff’s entitlement to damages under §§ 1983 and 1988, therefore, it is unnecessary to decide whether the correction officer’s written disciplinary report by itself constituted “substantial evidence,” presumably a higher standard than “some evidence” (see Hill v. Superintendent, M.C.I., Walpole, 392 Mass. 198, 203 n.5 [1984]), even though contradicted by the live testimony of the plaintiff.² We note, however, that the report is of the “self-validating” variety, see Stokes v. Commissioner of Correction, 26 Mass. App. Ct. 585, 589 (1988); McLellan v. Acting Superintendent, M.C.I., Cedar Junction, 29 Mass. App. Ct. 122, 125 (1990); contrast Wightman v. Superintendent, M.C.I., Walpole, 19 Mass. App. Ct. 442, 447 (1985), because it is the statement of a percipient witness to actions that manifestly constituted a violation of prison rules. Comparable reports, standing by themselves, and contradicted by the alleged violators’ testimony, have been held to comply with the “substantial evidence” standard required by New York law. Vega v. Smith, 66 N.Y.2d 130, 140 (1985). For purposes of this appeal, however, it is enough to hold that the disciplinary board did not violate Federal due process standards in relying on the disciplinary report as sufficient evidence to establish a violation.

Judgment affirmed.

2 Contrast Murphy v. Superintendent, M.C.I., Cedar Junction, 396 Mass. 830, 833-834 (1986), reviewing a decision to forfeit good time credits under a “substantial evidence” standard because the regulations of the Department of Correction, both in that case and here, see 103 Code Mass. Regs. § 430.16(1) (1987), established that as the standard for disciplinary board decisions. In 1991 the department replaced the substantial evidence language with the following: “The proponent of the disciplinary report shall have the burden of proving the offenses by a preponderance of the evidence, but need not necessarily appear before the hearing officer.” 103 Code Mass. Regs. § 430.16(1) (1991).