Dallas v. Spalding

20 F. App'x 669

Opinion

MEMORANDUM

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The commencement of prison disciplinary proceedings before the criminal trial on Dallas’s escape charge did not violate his Fifth Amendment right against self-incrimination. Even rights “basic to a fair hearing” are “necessarily circumscribed by the penological need to provide swift discipline in individual cases.” Ponte v. Real, 471 U.S. 491, 495, 105 S.Ct. 2192, 85 L.Ed.2d 553 (1985). See also Ryan v. Montana, 580 F.2d 988, 993 (9th Cir.1978), cert, denied, 440 U.S. 977, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979).

Nor did the hearing officer’s limited consideration of Dallas’s silence in his prison hearing violate due process. Because Dallas’s silence “in and of itself [was] insufficient to support an adverse decision,” the hearing officer’s partial reliance on it did “not smack of an invalid attempt by the state to compel testimony ... or to penalize the exercise of the [Fifth Amendment] privilege.” Baxter v. Palmigiano, 425 U.S. 308, 317-18, 96 S.Ct. 1551, 47 (1976). See also Ryan, 580 F.2d at 992-93.

The state’s refusal to reinstate Dallas’s good time credits after his subsequent acquittal of a criminal escape charge did not violate due process. In the “distinctive setting of a prison,” when officials discipline already-convicted prisoners for violating prison rules and regulations, the “flexible ... requirements of due process” impose a lesser burden of proof on the state than in criminal trials. Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454-55,105 S.Ct. 2768, 86 L.Ed.2d 356 (1985). Because the government’s burden in a criminal case is higher, Dallas’s acquittal does not preclude a different conclusion by the hearing officer applying a lower standard of proof.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.