USCA1 Opinion
June 13, 1995
[NOT FOR PUBLICATION]
UNITED STATES OF COURT OF APPEALS
FOR THE FIRST CIRUIT
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No. 94-1578
BERNARDO FIGUEROA,
Plaintiff, Appellant,
v.
GEORGE VOSE, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Timothy M. Boudewyns U.S. Magistrate Judge]
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Before
Selya, Circuit Judge,
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Campbell, Senior Circuit Judge, and
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Boudin, Circuit Judge.
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Bernardo Figueroa on brief pro se.
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David J. Gentile, Esq., On Memorandum In Support of Motion for
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Summary Disposition for appellees.
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Per Curiam. Bernardo Figueroa appeals from the
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district court's decision that a prison disciplinary board
did not violate his federal due process rights under 42
U.S.C. 1983 when it found him guilty of planning to murder
Captain Ronald Brodeur, a correction officer. We affirm.
Since the facts have been described in the district court's
opinion, we do not repeat them here except as is necessary to
explain our affirmance. We turn immediately to Figueroa's
contentions on appeal.
1. Notice of Time of Disciplinary Hearing
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Figueroa claims that he was not given a required
24-hour notice of his disciplinary hearing and that delivery
of the disciplinary report to him two days before the hearing
was insufficient notice. Federal law does not require 24-
hour advance notice of a disciplinary hearing, however. It
requires only that inmates be given written notice of the
charges against them at least 24 hours before the
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disciplinary hearing. See Wolff v. McDonnell, 418 U.S. 539,
___ _____ _________
564 (1974). This court has said that delivering a
disciplinary report describing the charges against an inmate
to the inmate meets that requirement. See Langton v. Berman,
___ _______ ______
667 F.2d 231, 234 (1st Cir. 1981). Since Figueroa does not
dispute that he received a copy of the disciplinary report
describing the charge against him two days before the
disciplinary hearing, the district court correctly concluded
that the notice given to Figueroa satisfied due process.1
2. Provision of Interpreter
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Figueroa alleges that he should have been given a
Spanish-speaking counselor to assist him at the disciplinary
hearing rather than an English-speaking counselor. He
acknowledges that he understands English, except for an
occasional word, but says he does not speak English well and
so could not participate "fully" in the hearing. (His spoken
English can be hard to understand, as the hearing and trial
transcripts show.) At trial, Figueroa said that he had asked
both Jack Ward, his English-speaking counselor, and Captain
Andrew Anderson, the chairman of the disciplinary board, for
Maria Pezza's assistance, but was told that she was
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1. On appeal, Figueroa appears to claim as well that failure
to provide 24-hour advance notice of the hearing violated the
Morris Rules, which are regulations governing the discipline
and classification of inmates at the state facility where
Figueroa is incarcerated and which have the force and effect
of state law. See Rodi v. Ventetuolo, 941 F.2d 22, 26-28
___ ____ __________
(1st Cir. 1991). The version of the Morris Rules at issue is
appended to Morris v. Travisono, 499 F. Supp. 149 (D.R.I.
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1980). Figueroa's state law claims are not before us.
Although his complaint asserted both state and federal
claims, in his pre-trial memorandum Figueroa argued only his
due process claims, relying on cases discussing federal due
process. Without objection by Figueroa, the district court
issued a pre-trial order limiting the evidence to be
presented at trial to the federal due process issues. The
court's decision resolved only the federal due process
claims. Since the court never asserted pendent jurisdiction
over Figueroa's state law claims and did not resolve those
claims, Figueroa remains free to bring his state law claims
in state court if not otherwise barred from doing so by state
law, e.g., by any applicable statute of limitations.
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unavailable.2 Figueroa wanted her to assist him at the
hearing because she could explain words he did not understand
and she would have "defend[ed]" him.
We agree with the district court that no due
process violation occurred here. In part, Figueroa seems to
have hoped that Pezza could have presented his case more
persuasively to the disciplinary board than he did. In other
words, Pezza would have been useful to him as an advocate.
In Wolff, the Supreme Court held that inmates do not have a
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right to counsel in disciplinary proceedings, 418 U.S. at
570, a position it confirmed in Baxter v. Palmigiano, 425
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U.S. 308, 315 (1976). The Court suggested, however, that
illiterate inmates or inmates with complex cases should be
able to "seek the aid of a fellow inmate, or . . . to have
adequate substitute aid in the form of help from the staff .
. . ." See Wolff, 418 U.S. at 570. Assuming that Figueroa
___ _____
should have been treated as an illiterate inmate, any right
that he may have had to staff assistance under Wolff was
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satisfied when Ward was assigned to help him. In addition,
nothing in the record suggests that any deficiency in
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2. The district court apparently discredited Figueroa's
testimony at trial that he had asked for Pezza's assistance,
relying on the transcript of the disciplinary hearing which
did not record any such request. Anderson testified that
Figueroa had never asked him for a Spanish-speaking counselor
or interpreter and that he would have readily granted any
such request. However, Figueroa testified that he had also
asked Ward for Pezza's assistance.
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Figueroa's English adversely affected the disciplinary
proceedings. As the transcript of the hearing confirms,
Figueroa understands spoken English. Despite sometimes
unclear syntax, he can also make himself understood in
English. At the hearing, he denied his guilt, explained why
he wanted to call Captain Brodeur as a witness, challenged
his lack of access to confidential reports, and denied that
he had been working in the prison kitchen at the time the
alleged murder weapon disappeared. Furthermore, Ward
appeared with him at the hearing and, according to Figueroa's
post-trial brief, participated in questioning Investigating
Officer Joseph Forgue.3 Figueroa presented his own case and
the transcript does not reflect that he ever sought Ward's
aid in making his presentation.4 Moreover, Figueroa
testified that Anderson and Ward had told him that Pezza was
unavailable, but does not allege any unconditional denial of
the assistance of a Spanish-speaking counselor. Although his
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3. Ward's participation is not evident from the hearing
transcript which apparently incorrectly attributes his
questions to disciplinary board members.
4. At trial, Figueroa stated that Ward had been of no help
to him, but he does not suggest that Ward's alleged failure
to help him is actionable under section 1983. In any event,
because there is no right to counsel at prison disciplinary
hearings, an inmate has no cause of action for a staff
assistant's allegedly ineffective assistance. See Bostic v.
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Carlson, 884 F.2d 1267, 1274 (9th Cir. 1989); Harrison v.
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Seay, 856 F. Supp. 1275, 1281 (W.D. Tenn. 1994); cf. Coleman
____ ___ _______
v. Thompson, 501 U.S. 722, 755 (1991) (because an inmate has
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no right to counsel to collaterally attack his conviction, he
has no claim for ineffective assistance of such counsel).
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testimony may suggest that he was told to proceed with the
hearing or to proceed with Ward as his counselor,5 he
apparently did not actually ask prison officials to postpone
his hearing until Pezza was available. Anderson testified at
trial that he had never denied any inmate the counselor of
his choice and that he had postponed hearings if the inmate's
preferred counselor was absent. We therefore affirm the
district court's determination that defendants did not
violate Figueroa's constitutional rights by not appointing a
Spanish-speaking counselor or interpreter to aid him at the
hearing.
3. Denial of Witnesses
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According to Figueroa, he should have been
permitted to call as witnesses at his disciplinary hearing
Captain Brodeur, the correction officer Figueroa allegedly
intended to murder; an Officer Fletcher, who apparently
investigated the alleged murder plot and/or prepared the
disciplinary report against Figueroa; and two inmates, Larry
Botton (also given as Boton or Baton in the record) and Gary
Ortiz. At the hearing, Figueroa stated that he wanted to
call Brodeur to confirm that he and Brodeur had had no
problems with each other. On appeal, Figueroa says that, if
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5. Figueroa testified as follows: "I ask [Ward and
Anderson] if I can have Spanish counsellor, specific, Maria
Pezza. I was told that Maria Pezza was embarcation at the
time, [inaudible]. I have to proceed."
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Fletcher, Botton and Ortiz had appeared at the hearing, their
"testimony could have brought forth new or previous[ly]
unsolicited facts."
At the disciplinary hearing and again at trial,
Captain Anderson, the chairman of the disciplinary board,
explained the board's determination that testimony by Brodeur
about his relationship with Figueroa would not be relevant.
Although lack of animosity might normally seem relevant in
determining whether one individual might be motivated to kill
another, Officer Joseph Forgue, who had investigated the
charge against Figueroa, explained at the hearing that such
evidence would be irrelevant in Figueroa's case. According
to Forgue, it was "well known" in the prison that there was a
"contract" on Brodeur's life and that confidential informants
had reported that Figueroa had "pick[ed] up" that contract.
For that reason, an inmate would not "have to have a problem
with someone to stick them. That's irrelevant whether you
had a problem with them or not." Given Forgue's statement,
the board did not abuse its discretion in not calling Brodeur
as a witness. See Smith v. Massachusetts Department of
___ _____ _____________________________
Correction, 936 F.2d 1390, 1399-1400 (1st Cir. 1991)
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(applying abuse of discretion standard in reviewing
disciplinary board's failure to call inmate witnesses);
Turner v. Caspari, 38 F.3d 388, 391, 392 (8th Cir. 1994)
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(noting that prison disciplinary boards have great discretion
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to decline to call inmate witnesses whose testimony would be
irrelevant or unnecessary).6
Nor is there merit in Figueroa's claims respecting
Botton and Ortiz. The transcript of the disciplinary hearing
shows that he never asked the board to call them as
witnesses, and so the board obviously did not violate his due
process rights in not calling them. See Harrison v. Seay,
___ ________ ____
856 F. Supp. 1275, 1281 (W.D. Tenn. 1994).7
On appeal, Figueroa alleges that Officer Fletcher's
testimony "could have brought forth new or previous[ly]
unsolicited facts."8 The record indicates that Figueroa
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6. Brodeur's testimony would also have been cumulative and
was unnecessary for that reason. Figueroa told the board
that he had had no problems with Brodeur, and Forgue agreed,
telling the board that Figueroa had no motive to kill Brodeur
that he knew of and that, as Figueroa had said, he and
Brodeur did not appear to have problems with each other.
7. In his pre-trial memorandum, Figueroa told the district
court that Botton would testify at trial that Figueroa had
been "set up" by a correction officer and another inmate and
that Ortiz would testify that an Officer Martinez and inmate
Armando Perez had plotted to set him up. The district court
would not let Botton and Ortiz testify, ruling, correctly,
that the question before the court was not whether Figueroa
was actually innocent of the charge against him. On appeal,
Figueroa appears to have abandoned the claim that Botton and
Ortiz would have testified that he had been set up.
8. In his post-trial memorandum, Figueroa stated that
Fletcher was the original investigating officer, that another
inmate had been under investigation, and that Fletcher would
testify that Figueroa was the "wrong man." In his pre-trial
memorandum, however, Figueroa had shown no interest in
calling Fletcher as a witness, proffering instead the
distinctly different theory described above that another
inmate and a correction officer had set him up. On appeal,
he has obviously abandoned his claim that Fletcher would have
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had told the board that Fletcher would either offer favorable
character testimony or would corroborate Figueroa's trouble-
free relationship with Brodeur. The disciplinary transcript
indicates that Figueroa told the board that Fletcher would
testify that Figueroa was "not of that type of character" and
that the board regarded his testimony to be irrelevant.9
According to Anderson's trial testimony, Figueroa had said
that Fletcher would testify that Figueroa and Brodeur had not
had any problems with each other.10 Under the
circumstances, the court did not err in concluding that the
board had not violated due process by declining to call
Fletcher as a witness. As noted above, testimony about
Figueroa's relationship with Brodeur was irrelevant and
unnecessary. In addition, without further specifics, the
simple testimony that Figueroa was not the "type" of person
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testified that a different inmate than Figueroa had plotted
to murder Brodeur.
9. The disciplinary hearing transcript shows that Figueroa
asked to call Fletcher as a witness, but does not record any
discussion of the substance of Fletcher's testimony. That
discussion apparently occurred, however. The transcript
indicates that Figueroa assented to Anderson's statement that
"you request . . . Officer Fletcher to come up here to
testify that you're not of that type of character" and his
explanation that the proposed testimony was irrelevant. In
addition, in his appellate statement of facts, Figueroa
states that he told the board that Fletcher would have
testified that he was not the "type of person who would
commit the act alleged."
10. Although Figueroa objected to Anderson's statement, he
did not explain his basis for disagreeing and did not tell
the court that Fletcher would have given different testimony.
-9-
to commit murder would not have impugned the confidential
informants' clear identification of Figueroa as the inmate
who planned to kill Brodeur. See Graham v. Baughman, 772
___ ______ ________
F.2d 441, 445 (8th Cir. 1985) (prison officials who had to
determine whether an inmate had started a fire outside of his
cell were well within their discretion in concluding that
character evidence was either irrelevant or unnecessary).
4. Sufficiency of Evidence and Related Claims
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Figueroa claimed below that the board's decision
was not supported by substantial evidence. The district
court concluded that its task in a section 1983 action
alleging a violation of federal due process was to determine
whether "some evidence" supported the board's decision,
citing Superintendent, Massachusetts Correctional Institution
______________________________________________________
v. Hill, 472 U.S. 445 (1985). In Hill, the Supreme Court
____ ____
held that federal due process is satisfied if "some evidence"
in the record supports a disciplinary decision, defining that
term to mean "any evidence in the record that could support
the conclusion reached by the disciplinary board." Id. at
___
455-56. Using that standard, the district court found that
"some evidence" supported the board's decision, and we
agree.11 We also agree with the court that the Hill
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11. The district court cited the following facts: that
different informants, who had had no contact with each other,
had identified Figueroa as the inmate who was to stab
Brodeur; that each informant's information corroborated the
information proffered by the other informant; that the
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standard describes the relevant federal due process standard
even though state law imposes a stricter evidentiary
standard.12 See id. at 456 ("We decline to adopt a more
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stringent evidentiary standard [than the some evidence
standard] as a constitutional requirement."); see Goff v.
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Dailey, 991 F.2d 1437, 1441 n.9 (8th Cir.) (state regulations
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may provide more protection than the federal Constitution,
but cannot raise the standard of due process under the
Constitution), cert. denied, 114 S. Ct. 564 (1993); but see
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Brown v. Fauver, 819 F.2d 395, 399 n.4 (3d Cir. 1987) (Hill
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did not establish whether the Constitution requires a
particular burden of proof in disciplinary proceedings, but
spoke only to appellate review standards).
In connection with his argument that the board's
decision was not supported by substantial evidence, Figueroa
asserts two additional claims, which we consider in turn.
First, he complains that neither he nor his counselor, Jack
Ward, had access to a confidential investigative report based
on information provided by unidentified informants "as did
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informants had personal knowledge of the matter and had
provided accurate information in the past; that there was
evidence that the informants were credible; that the weapon
the informants claimed Figueroa intended to use -- a soup
ladle honed to a knife blade -- had disappeared from the
kitchen when Figueroa worked in the kitchen; and, finally,
that Figueroa had offered no rebuttal information or any
exonerating evidence.
12. Accordingly, we do not decide whether substantial
evidence in the record supported the board's decision.
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the disciplinary board." Figueroa recognizes that granting
him access to the confidential report "could have violated
institutional security and other investigations."13 But he
claims that Ward could have reviewed the report and inquired
into the informants' mutual corroboration, personal knowledge
of the matter, and reliability. His point seems to be that
Ward might have uncovered evidence discrediting the
informants or their information, so that Ward's inability to
see the report not only violated Figueroa's due process
rights, but should also preclude the district court from
considering evidence deriving from the report. Under the
circumstances present here, we disagree. First, as the
chairman of the disciplinary board testified at trial, the
board did not rely on the confidential report in finding
Figueroa guilty; it did not even see that report. Although
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13. Therefore, Figueroa is apparently not challenging the
district court's finding that he was not entitled to see the
__
confidential report which apparently identified at least one
of the inmates who had reported that Figueroa had planned to
kill Brodeur. It is well established that inmates have no
federal due process right to obtain evidence which could
identify confidential informants. See, e.g., Langton, 667
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F.2d at 235 (rejecting an inmate's contention that he had the
right to cross-examine a confidential informant or review the
informant's statement because Wolff left such matters to
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prison officials' discretion); Mendoza v. Miller, 779 F.2d
_______ ______
1287, 1294 (7th Cir. 1985) (stating that Wolff and Seventh
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Circuit cases establish "unequivocally" that an inmate does
not have a due process right to be informed of the identity
of confidential informants), cert. denied, 476 U.S. 1142
____________
(1986); Zimmerlee v. Keeney, 831 F.2d 183, 186 (9th Cir.
_________ ______
1987) ("Due process does not require that an informant's
identity be revealed to an inmate."), cert. denied, 487 U.S.
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1207 (1988).
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the report had been attached to Figueroa's disciplinary
report at one time, it had been removed before the hearing.
Instead, the board relied solely on Officer Forgue's
statements at the hearing describing the nature and
reliability of the informants' information. (According to
Anderson's trial testimony, Forgue authored the confidential
report). Figueroa was present at the hearing and obviously
knew what Forgue had said. Accordingly, he was in exactly
the same position as the board in terms of his familiarity
with the evidence against him. Figueroa was permitted to
speak freely during the hearing and had the right to cross-
examine Forgue. See Morris v. Travisono, 499 F. Supp. 149,
___ ______ _________
169 (D.R.I. 1980) (Disciplinary Procedures, III.C.4: An
inmate has "the right to call a reasonable number of
witnesses, both adverse and favorable and examine said
witnesses."). At no time during the hearing did Figueroa
attempt to question Forgue about the confidential informants'
information, reliability, or personal knowledge of the
matter. Second, Figueroa never asked the disciplinary board
to let Ward review the confidential report, nor did he
present that issue to the district court.14 Accordingly,
this issue is not even properly before us. Finally, prison
officials have no general federal due process obligation to
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14. In his pre-trial memorandum, he argued only that he had
the right to see the report.
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disclose confidential reports to staff members assisting
inmates charged with disciplinary infractions. See Mendoza
___ _______
v. Miller, 779 F.2d 1287, 1298 (7th Cir. 1985) (declining to
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adopt a general rule that inmate counsel should have access
to confidential investigative reports used in disciplinary
hearings), cert. denied, 476 U.S. 1142 (1986); Freitas v.
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Auger, 837 F.2d 806, 810 n.7 (8th Cir. 1988) (rejecting an
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inmate's contention that the court should have made
confidential reports available to him or his attorney after
the informants were transferred to a different prison); see
___
also Wagner v. Williford, 804 F.2d 1012, 1017-18 (7th Cir.
____ ______ _________
1986), and on appeal after remand Wagner v. Henman, 902 F.2d
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578, 581 (7th Cir. 1990) (both confirming that there is no
"general rule" in the Seventh Circuit that confidential
reports may be disclosed to inmates' counsel and describing
the circumstances under which a "limited release of redacted
material information" to counsel might be possible); White v.
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Nix, 43 F.3d 374, 378 (8th Cir. 1994) (concluding that case
___
law concerning the discovery of confidential investigative
files during prison disciplinary hearings "uniformly" sets
certain conditions on an inmate's counsel's access to such
files).
Next, Figueroa challenges the district court's
reliance on evidence that the intended murder weapon was a
sharpened soup ladle which had disappeared from the prison
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kitchen at the time Figueroa worked there.15 At the
hearing, Officer Forgue told the board that confidential
informants had reported that the murder weapon was a honed
soup ladle. He also reported that Figueroa had worked in the
kitchen at the time the ladle disappeared. On appeal,
Figueroa denies that he ever worked in the kitchen and that
he ever had access to the soup ladle. At the disciplinary
hearing, however, Figueroa acknowledged that he had worked in
the kitchen. He also indicated that he had heard that a soup
ladle was missing, but denied that he had been working in the
kitchen at the time the ladle disappeared. Thus, the
undisputed evidence before the board was that Figueroa had
worked in the kitchen and that a soup ladle was missing. A
controversy existed on the important question whether
Figueroa had worked in the kitchen at the time the ladle
disappeared. On that point, the board obviously discredited
Figueroa, choosing to believe the results of Forgue's
investigation. On review, neither we nor the district court
may revisit the board's decision not to credit Figueroa's
testimony. Cf. Hill, 472 U.S. at 455 (indicating that a
___ ____
disciplinary board's factual findings are not subject to
"second-guessing" upon review, nor is the reviewing court
required to independently assess the credibility of witnesses
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15. As of the date of the hearing, the alleged weapon had
not been found.
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or weigh the evidence); Turner v. Scroggy, 831 F.2d 135, 140
______ _______
(6th Cir. 1987) ("it is not our task nor the magistrate's to
substitute credibility determinations contrary to the
[disciplinary] committee's ultimate finding") (majority
opinion); Harrison, 856 F. Supp. at 1280 ("Reexamination of a
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prison disciplinary board's credibility choices is beyond the
scope of federal court review of disciplinary proceedings.")
(citing Turner v. Scroggy).
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5. Remaining Claims
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Figueroa complains that defendants failed to give
him a copy of the disciplinary hearing tape in advance of
trial as ordered by the district court. Figueroa did not
bring that fact to the court's attention until the day of the
trial. When he did so, the court recessed the trial to
permit the parties to listen to the tape. After the parties
had listened to the tape, the court asked Figueroa if he was
ready to proceed. Figueroa said that he was and the trial
was conducted without any subsequent objection by
Figueroa.16 The trial transcript shows that Figueroa was
familiar with the contents of the disciplinary hearing tape
and knew what had gone on at the hearing. Nothing in the
transcript suggests that his inability to listen to the tape
in advance had prejudiced his presentation of evidence at
trial. Under those circumstances, his claim is meritless.
In an "Addendum" to his appellate brief, Figueroa
claims that Officer Forgue sat on the disciplinary board in
violation of the Morris Rules. See Morris v. Travisono, 499
___ ______ _________
F. Supp. at 169 (Disciplinary Procedures, III.B: "Any
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16. In his post-trial memorandum, Figueroa alleged only that
the transcription of the tape did not accurately reflect the
tape of the hearing. He did not argue that any
mistranscription had caused the court to misconstrue any
critical fact, however, but only that responses of his which
were transcribed as inaudible "could have been a response"
asking for an interpreter or indicating that he did not
understand the proceedings.
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officer who initiates a violation report or who investigates
and reviews the initiating officer's report is not eligible
to sit on the disciplinary board to hear that case."). This
claim, which is apparently based on an inadvertent error in
the district court's description of the facts, was not
presented below and is clearly refuted by the record.
Affirmed.
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