Brown v. Frey

889 F.2d 159, 1989 WL 132424
CourtCourt of Appeals for the Eighth Circuit
DecidedNovember 7, 1989
DocketNos. 88-2643, 88-2736
StatusPublished
Cited by95 cases

This text of 889 F.2d 159 (Brown v. Frey) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. Frey, 889 F.2d 159, 1989 WL 132424 (8th Cir. 1989).

Opinion

MAGILL, Circuit Judge.

John Brown (Brown), an inmate at the Missouri Eastern Correctional Center (MECC), sued various employees of MECC under 42 U.S.C. § 1983 (1982), alleging that the defendants deprived him of numerous constitutional rights including his right: (1) to call witnesses “and/or” counsel substitute at various disciplinary hearings; (2) to receive a hearing “within three working days” of confinement in administrative segregation; (3) to obtain access to the courts; (4) to obtain a fair and impartial disciplinary hearing; and (5) to receive an “adequate investigation” surrounding charges he made improper sexual gestures towards a ten-year-old girl in the prison visiting room. The district court granted defendants’ motion for summary judgment on Brown’s claim that defendants denied his right of access to the courts and granted defendants’ motion for a directed verdict on Brown’s claims that defendants abridged his right to a fair and impartial hearing and his right to an adequate investigation. The jury found defendants Lt. Col. Gerard Frey (Frey), Superintendent of MECC, Larry Trickey (L. Trickey), Assistant Superintendent of MECC, and Bernice Trickey (B. Trickey), a caseworker at MECC, liable under § 1983 for depriving Brown of his right to call witnesses “and/or” seek counsel substitute for his disciplinary hearings (hereinafter referred to as “right to witnesses ‘and/or’ counsel substitute”). The jury also found defendants Frey and Christie Lynch (Lynch), unit manager in Housing Unit 1, liable under § 1983 for violating Brown’s right to a hearing within three working days following his confinement in administrative segregation (hereinafter referred to as “right to a hearing within three working days following confinement”).

The questions presented by defendants’ appeal include: (1) whether the district court erred in refusing to grant defendants’ motion for directed verdict based on its conclusion that neither Frey nor Lynch were entitled to qualified immunity on Brown’s claim that they deprived him of his right to a hearing within three working days following confinement; and (2) whether the district court erred in refusing to grant defendants’ motion for directed verdict based on its conclusion that Frey, B. Trickey and L. Trickey were not entitled to qualified immunity on Brown’s claim that they deprived him of his right to witnesses “and/or” counsel substitute. We hold that because defendants were entitled to qualified immunity on both claims, the district court erred in refusing to direct a verdict in favor of defendants. Therefore, the district court’s judgment is reversed.1

Brown’s cross-appeal presents four additional issues: (1) whether the district court erred in granting defendants’ motion for summary judgment on Brown’s claim that defendants denied him right of access to the courts by threats of transfer to another facility; (2) whether the district court erred in granting defendants’ motion for a directed verdict on Brown’s claim he was denied a fair and impartial disciplinary hearing because of the marital relationship of two [162]*162hearing officers; (3) whether the district court erred in granting defendants’ motion for a' directed verdict on Brown’s claim that defendants failed to adequately investigate charges of insulting behavior toward a ten-year-old girl in the prison visiting room before finding Brown guilty of the conduct violation; and (4) whether the district court erred in refusing to allow Brown to cross-examine Captain Ron Kennedy (Captain Kennedy), investigator at MECC, on his prior perjury conviction. We reject Brown’s arguments on his cross-appeal and affirm the district court.

I.

Brown was incarcerated at MECC from January 30, 1983 to March 6, 1985. He was then transferred to the Missouri State Penitentiary after MECC officials found him guilty of a conduct violation for insulting behavior. While incarcerated at MECC, prison officials charged Brown with numerous conduct violations. Only five of the violations provide the basis for Brown’s § 1983 suit and the resulting appeal and cross-appeal.

On May 6, 1984, Brown was charged with a conduct violation for destruction of state property when he allegedly damaged a prison window screen. Following a hearing on May 9, 1984, at which the statements of two witnesses taken prior to the hearing were considered, the classification team found Brown guilty of the violation and ordered him to pay $2.50 to repair the screen. B. Trickey was a member of that team. L. Trickey, in his capacity as Assistant Superintendent of Programs, received the recommendation and, finding it insufficient, supplemented Brown’s punishment with five days room restriction. B. Trickey and L. Trickey were married at all times during Brown’s confinement. In reviewing L. Trickey’s recommendation, Frey approved the punishment and issued an order to that effect. There is no claim that defendants violated Brown’s constitutional rights in failing to call witnesses at this disciplinary hearing. Furthermore, although the evidence in the record supporting Brown’s claim that he requested counsel substitute at this hearing is weak, we assume that he did in fact make that request when filling out the witness request form.2

On February 7, 1985, Brown received a conduct violation when a prison official found Brown’s clothes in another inmate’s laundry bag. On February 13, 1985, the classification team found Brown guilty and ordered him to perform an extra twenty hours of duty in the housing unit. Defendants called Brown’s only requested witness to testify at his hearing. Brown indicated his desire to be represented by counsel substitute by completing the witness request form.

On February 21, 1985, Brown received another conduct violation for giving false information to prison officials.3 Brown claimed that Captain Kennedy stated Brown could leave his personal property in his room while he was in administrative segregation. After Kennedy stated that he made no such statement, Brown was charged with the conduct violation. Brown then informed prison officials that he was not told personally by Captain Kennedy but by an inmate, Donnie Willen, that Captain Kennedy had told another prison official, Margaret Puff, who was stationed in a housing unit different from Brown’s, that Brown could keep his personal property in his room. Brown requested that Puff and inmate Willen appear as witnesses at his disciplinary hearing. The classification team refused to call either witness. Defendants informed Brown that they would not call Puff because placing a guard in the position of testifying against another guard (Captain Kennedy) would undermine prison authority. At trial, B. Trickey elaborated on the reasons neither Puff nor Willen were called. She testified that the [163]*163conduct violation as written did not involve either Willen or Puff and, because Puff worked in a different housing unit, she could not possibly have had anything to do with Brown’s property.

Brown also claims that defendants abridged his right to seek counsel substitute to help him at this conduct violation hearing. Brown testified defendants took this action because they believed that since he was the prison law clerk, he could defend himself.

B. Trickey sat on the classification team which found Brown guilty of the false information violation. L. Trickey sat as a member of the Adjustment Committee which approved the recommendation.

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Bluebook (online)
889 F.2d 159, 1989 WL 132424, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-frey-ca8-1989.