Jackson v. Vose

• Court: Court of Appeals for the First Circuit
• Decided: September 30, 1994
• Docket: 93-2202
• Status: Published

Opinion

USCA1 Opinion

September 30, 1994      [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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No. 93-2202

                                 ANTOINE M. JACKSON,

                                Plaintiff, Appellant,

                                          v.

                                   GEORGE A. VOSE,

                                 Defendant, Appellee.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                   [Hon. Douglas P. Woodlock, U.S. District Judge]
                                              ___________________

                                 ____________________

                                        Before

                                Torruella, Chief Judge,
                                           ___________
                           Selya and Stahl, Circuit Judges.
                                            _______________

                                 ____________________

            Antoine M. Jackson on brief pro se.
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            Nancy  Ankers  White,  Special  Assistant  Attorney  General,  and
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        Stephen G. Dietrick, Deputy General Counsel, Department of Correction,
        ___________________
        on brief for appellee.

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                                 ____________________

Per Curiam.  Plaintiff Antoine  Jackson appeals the
                      __________

            district  court's  grant  of  summary judgment  in  favor  of

            defendants on Counts  II and  V of his  amended civil  rights

            complaint.1   "We review  the  grant of  summary judgment  de
                                                                       __

            novo, employing the same criteria incumbent upon the district
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            court in  the first instance," Guzman-Rivera  v. Rivera-Cruz,
                                           _____________     ___________

            1994 U.S. App. LEXIS 17,298 at *3 (1st Cir. July 13, 1994.

                      Jackson is a prisoner at Massachusetts Correctional

            Institution  in   Cedar   Junction.     He   challenges   the

            constitutional  adequacy of prison disciplinary hearings held

            on January 17,  1990 and  March 1, 1990,  which followed  two

            discrete   encounters   between   Jackson  and   correctional

            officers.   Both  hearings resulted  in guilty  findings, and

            sentences  of 15 and 30 days respectively in isolation in the

            Departmental Segregation Unit (DSU).

                      Jackson argues  that  his due  process rights  were

            violated because he was denied the opportunity to call inmate

            witnesses from  the general  prison population to  testify in

            person  at each hearing.  At the  time of the hearings he was

            housed  outside of the general prison population in the upper

            tier of  the West  Wing Segregation  Unit (WWSU),  which held

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            1.  The district court dismissed a third count for failure to
            state a claim, and others were tried to a jury which returned
            a verdict in favor of defendants.  Plaintiff has not appealed
            those decisions.

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disruptive  inmates  on "awaiting  action" status.2   Jackson

            had been  transferred to WWSU for  security reasons following

            the second incident.3  

                      Jackson  initially  named  five general  population

            inmates  whom he wished to call as witnesses at each hearing,

            in addition to "the whole [cell] block."   The subject of the

            inmates'   expected  testimony  was  not  revealed,  however,

            despite  a  specific  request  for  a  brief summary  on  the

            official forms provided to  Jackson for witness requests.   A

            second request  for inmate witnesses,  made through Jackson's

            student  attorney, named  two general population  inmates for

            one  hearing, and three for  the other.   Again, however, the

            inmates' expected testimony was  not described, although each

            was identified as an eyewitness to the relevant incident.

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            2.  Another tier of the WWSU  held prisoners sentenced to the
            DSU following a disciplinary offense hearing and a finding of
            guilt.  The conditions  of confinement for the two  groups of
            prisoners differed in that awaiting action prisoners had more
            privileges and  their status  was reviewed every  seven days,
            rather  than every  90  days.   Jackson  claims that  he  was
            actually confined illegally under DSU conditions prior to his
            hearings, but  the conditions  of his confinement  within the
            WWSU are immaterial to the issues before us.  See infra p. 8.
                                                          ___ _____

3.      In  the  first  incident  Jackson  was  charged  with
            assaulting  an  officer, but  he  had  remained, on  awaiting
            action status, confined  to a cell within  the general prison
            population.    When  the  second incident  resulted  in  five
            disciplinary reports from as  many officers, charging Jackson
            with threatening  and disruptive behavior,  and encouraging a
            work stoppage, he was moved to WWSU.    

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The chairman of  the disciplinary board,  defendant

            Aho, allowed  Jackson the  opportunity to obtain  and present

            affidavits from the named inmates,  but he denied the request

            that the inmates'  testimony be presented  in person.   Aho's

            contemporaneous  notes show  that his  decision was  based on

            security  concerns, given  the  difference between  Jackson's

            housing in the prison  and that of  the inmates he sought  to

            call  as  witnesses.    Aho explained,  in  a  deposition and

            affidavit submitted below, that  he had decided that bringing

            general population inmates into a hearing in WWSU, would have

            been  "unduly hazardous,"  particularly as Jackson  had given

            "no basis for determining the relevance or necessity of these

            witnesses."   Jackson's  attorney,  Aho  said, accepted  this

            decision with  an "okay."    If  Jackson or his  attorney had

            pressed  the objection  at  the hearing  (where the  inmates'

            affidavits were  read aloud), or otherwise  made a persuasive

            case  that   Jackson  needed  additional   evidence  or  live

            testimony, Aho  said, "I could have continued the hearing and

            [explored] the possibility of relocating the hearing . . . ."

A prisoner's  right to  call witnesses  and present

            evidence  at  a  disciplinary  hearing  is  circumscribed  by

            competing   concerns  for  institutional   safety  and  other

            correctional goals.   See Ponte  v. Real, 471  U.S. 491,  495
                                  ___ _____     ____

            (1985);  Wolff v. McDonnell, 418 U.S. at 539, 566 (1974); see
                     _____    _________                               ___

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also  Baxter  v.  Palmigiano, 425  U.S.  308,  321 (1976)  (a
            ____  ______      __________

            prisoner's  right  to  confront  and   cross-examine  adverse

            witnesses in a disciplinary hearing is generally more limited

            than  the  right  to  call friendly  witnesses,  but  similar

            interest balancing  may be  applied); Smith v.  Massachusetts
                                                  _____     _____________

            Dep't  of Correction,  936  F.2d 1390,  1399 (1st  Cir. 1991)
            ____________________

            (same).   The  presence of  witnesses at  the hearing  may be

            refused  when  it  creates  an  undue  risk  of  reprisal  or

            harassment, undermines authority,  or otherwise creates undue

            burdens on the safe administration of the prison.  Ponte, 471
                                                               _____

            U.S. at 495; Wolff, 418 U.S. at 566; see also Ramer v. Kerby,
                         _____                   ________ _____    _____

            936  F.2d   1102,  1104   (10th  Cir.  1991)   ("[L]egitimate

            penological  concerns  include,  but [are]  not  limited  to,

            safety or correctional goals, expense,  staffing requirements

            .  . .  and the  danger of  harassment.").   When challenged,

            prison  administrators bear  the burden  of showing  that the

            reasons for the denial were not arbitrary. Ponte, 471 U.S. at
                                                       _____

            497.   They may make their  reasons known at the  time of the

            disciplinary action or wait until the prisoner brings a legal

            action.   Ponte, 471  U.S. at 497;  Smith, 936  F.2d at 1399-
                      _____                     _____

            1400.

                      Our task is not to substitute our judgment for that

            of   the  prison  officials   charged  with   conducting  the

            disciplinary  hearing, but  to  determine whether  the  proof

            offered  to  explain  the  refusal to  call  these  witnesses

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satisfactorily carries defendants' burden of showing that the

            decision was not arbitrary.   Ponte, 471 U.S. at  497-99; see
                                          _____                       ___

            also Freeman v.  Rideout, 808  F.2d 949, 955  (2d Cir.  1986)
            ____ _______     _______

            (same),  cert.  denied,  485  U.S. 982  (1988).    Defendants
                     _____________

            offered evidence that the decision was based on a weighing of

            the  known risks  attendant  on  bringing general  population

            prisoners into  the WWSU, the difficulties  of relocating the

            hearing,   Jackson's   failure   to   supply   the  requested

            information,  and the  lack  of any  reason  to believe  that

            affidavits would not supply Jackson's evidentiary needs.  The

            explanation is logically  related to institutional  goals and

            clearly satisfies  the due  process requirements outlined  in

            the cases.   See Ponte, 471  U.S. at 497  ("[S]o long as  the
                         ___ _____

            reasons are logically related to preventing undue hazards . .

            . the explanation should meet the due process requirements as

            outlined in Wolff.").  
                        _____

                      Jackson  argues  that  his  failure  to  provide  a

            description  of the witnesses' testimony was an impermissible

            factor  in the  decision because  it was  not a  "knowing and

            intelligent  waiver"  of  his constitutional  right  to  call

            witnesses.   The  argument is  beside the  point.   To enable

            prison  officials to  evaluate a  request for  live testimony

            against   competing   institutional  concerns,   obviously  a

            description  of the nature of the  expected testimony and any

            other  indicia  of need  for  the  testimony  may  be  fairly

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required.  Accord Bostic v. Carlson, 884 F.2d 1267, 1274 (9th
                       ______ ______    _______

            Cir. 1989).   Only the prisoner can supply  this information.

            Having  failed  to  supply  a  description  despite  official

            requests therefor, Jackson is in a poor position to  complain

            that,  on balance,  the  official charged  with the  decision

            found that the known risks to institutional safety outweighed

            the  prisoner's  undisclosed  needs.4    We  need  not  reach

            Jackson's  argument  that  a  blanket   proscription  on  the

            testimony of all general population inmates would violate the

            due  process  clause,  because we  do  not  read the  board's

            explanation as relying upon a blanket proscription.

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            4.   In rejecting the same argument below, the district court
            placed emphasis on a clause in the published regulations that
            was  not  added  until  after the  disciplinary  hearings  in
            question.   103  C.M.R.    430.14(4)(e) (1992)  now expressly
            includes a  prisoner's failure  to provide a  witness summary
            among  the non-exclusive list of  factors that may inform the
            disciplinary  board's decision.   Despite Jackson's denial of
            any  responsibility  for  this   error,  it  was  invited  by
            Jackson's  own  memorandum  in  support  of  partial  summary
            judgment,  which quoted  the  newer  regulation as  governing
            authority.  

                 In  any event,  based on  a de  novo review, we  find no
                                             __  ____
            fault with the district court's conclusion, and no unfairness
            under the regulation in  effect at the time.   The regulation
            provided ample notice that a  request to call witnesses would
            be  based on  an evaluation  of whether  it would  be "unduly
            hazardous to personal safety or institutional security."  103
            C.M.R.     430.14  (4) (1987).    The  non-exclusive  list of
            factors to  be considered  included "relevance," and  whether
            the evidence was  "cumulative or repetitive."   103 C.M.R.   
            430.14  (4)(a)(b).    Moreover, Jackson  was  given  personal
            notice,  via  the  official  request  form,  that  the  board
            required information from him supportive of his requests.

                                         -7-

We also agree with the  district court's conclusion

            that there was no need to reach Jackson's argument that prior

            to  the  disciplinary  hearings  he  was  actually  confined,

            illegally, in departmental segregation, rather than under the

            less  restrictive  regimen  afforded  prisoners  on  awaiting

            action  status.  First,  the   amended  complaint  cannot  be

            construed as stating  an independent claim in this regard, no

            matter  how liberally it is read.5  Second, the conditions of

            Jackson's confinement within the  WWSU are not material to  a

            determination of the due process adequacy of the disciplinary

            board's decision.   The board's security  concerns were based

            on  Jackson's  housing  within  the WWSU,  not  the  specific

            conditions  of  his confinement.    That the  WWSU  held both

            awaiting action and DSU prisoners  may have added to security

            concerns, but it did  not turn the board's decision  into the

            sort of  bootstrap  justification disapproved  in  Kenney  v.
                                                               ______

            Commissioner of Correction, 393 Mass. 28, 35, 468 N.E.2d 616,
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            621  (1984) (where  a prisoner  was illegally  transferred to

            DSU, administrators may not rely on his illegal incarceration

            as a justification for denying a request to call witnesses).

                      Lastly, we find no  fault with the district court's

            decision  that  the defendants  were  protected  by qualified

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            5.  Jackson's argument  that his first two  pro se complaints
                                                        ___ __
            may be reconstrued to  state such a claim is  irrelevant, and
            in  any event not properly before us because it is raised for
            the first time in his reply brief.  

                                         -8-

immunity  from  damages  liability  for  their  discretionary

            decision.   There was  no proof that  defendants violated any

            "clearly  established statutory  or constitutional  rights of

            which  a  reasonable person  would  have known."    Harlow v.
                                                                ______

            Fitzgerald, 457 U.S. 800, 818 (1982).
            __________

                      For  the reasons  stated, the  summary judgment  in

            favor  of  defendants  on Counts  II  and  V  of the  amended

            complaint is affirmed.
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