USCA1 Opinion
December 30, 1992 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1429
LLOYD MATTHEWS,
Plaintiff-Appellant,
v.
PAUL RAKIEY, ET AL.,
Defendants-Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
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Before
Torruella, Cyr and Stahl,
Circuit Judges.
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Lloyd Matthews on brief pro se.
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Nancy Ankers White, Special Assistant Attorney General, and
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Robert G. Brown, Counsel, Department of Correction, on Memorandum of
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Law in Support of Their Motion for Summary Disposition, for appellees.
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Per Curiam. In 1989, Lloyd Matthews, an inmate at
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Massachusetts Correctional Institution - Cedar Junction,
filed a complaint, pursuant to 42 U.S.C. 1983 and state
law, followed by two amendments to the complaint, against
numerous prison officials, alleging, inter alia, due process
violations with respect to several separate prison
disciplinary proceedings. The district court granted summary
judgment in the defendants' favor on these claims on May 29,
1990.1 We affirm, in part, and vacate and remand, in part.
The district court wrote a 16 page memorandum and order,
in which it detailed the factual underpinnings of the various
disciplinary charges against Matthews and the rationale for
its ruling. Except for its grant of summary judgment as a
matter of law to the prison disciplinary board with respect
to the board's refusal to grant Matthews access to a
videotape of events of November 3, 1989, or to view it
itself, we affirm the court's ruling of May 29th. We see no
need to replicate the expressed rationale with which we
agree. We write only to explain our disagreement with this
one aspect of the court's ruling and to elaborate on some
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1. At the same time, the court denied summary judgment on
other claims of excessive force and inadequate medical
treatment, related to the episodes giving rise to, but
distinct from, the claims anent the procedures used in the
disciplinary proceedings. These related claims were later
tried to a jury and returned in Matthews' favor. As such,
they form no part of Matthews' present appeal. Our review is
solely focused on the court's ruling vis-a-vis the conduct of
the disciplinary proceedings.
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other aspects, which, his brief reveals, Matthews has not
understood. We recite here only the facts necessary to give
context to those claims we have felt required further
comment.
Disciplinary Report No. 89-2221
Disciplinary Report No. 89-2221
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In Matthews' view, he should not have been placed in the
Awaiting Action Unit (AAU) on August 16, 1989, while his
rehearing on Disciplinary Report No. 89-2221 (possession of
marijuana and a weapon) was pending. He suggests this
violates Mass. Regs. Code tit. 103, 421.07(2) (1986), which
says that an inmate shall not be transferred to the
Departmental Segregation Unit (DSU) for committing a specific
punishable offense unless a disciplinary board has first
found him guilty of that offense and imposed a sanction and
the commissioner has found that the inmate poses a
substantial threat (a) to the safety of others or (b) of
damaging or destroying property or (c) of interrupting the
operation of the prison if he is confined in the prison's
general population. See also Parenti v. Ponte, 727 F.2d 21,
________ _______ _____
24-25 (1st Cir. 1984) (holding that this regulation creates a
liberty interest). He says that, because his rehearing on
Disciplinary Report No. 89-2221 was still pending in August
(and, therefore, the commissioner had not made the necessary
finding), he could not be transferred to the DSU on the basis
of that pending report.
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The short answer is that Matthews was not transferred to
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the DSU prior to the rehearing of Disciplinary Report No. 89-
___
2221. He was not returned to the DSU until September 15,
1989, after the rehearing took place. Between August 16th
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and September 15th, he was held in the AAU, which is "[a]n
area ... designated by a superintendent in which a resident
may be confined pending a hearing to determine whether such
resident shall be transferred to a departmental segregation
unit." Mass. Reg. Code tit. 103, 421.06(1) (1986). And,
430.21(1) (1987) provided:
At the discretion of the Superintendent
or his/her designee, and subject to any
applicable review requirements, an inmate
who is under investigation for a possible
disciplinary offense, or who has been
charged with or found guilty of a
disciplinary offense, may be placed on
awaiting action status at the institution
where he/she is then confined. Such
status may include more restrictive
confinement as deemed appropriate by the
Superintendent or his/her designee.
Furthermore, Matthews had been mistakenly released
prematurely from the DSU on August 11, 1989, when, in fact,
his placement in the DSU as a result of an attempted assault
on the prison law librarian (Disciplinary Report No. 88-4510)
had been extended to January 1990.2 Granted, the
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2. Matthews was mistakenly released from the DSU on August
11th, before the proper officials were aware of the
commissioner's decision to extend Matthews' DSU placement an
additional 6 months because of Disciplinary Report No. 89-
2221. The commissioner may reject the recommendation of the
department review board and set a proposed release date
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commissioner had extended Matthews' expected release date
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from his DSU placement for the attempted assault for an
additional 6 months because of the marijuana and weapon
incident. But, the DSU placement did not occur because of
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that later incident. And, as noted, a release date from the
DSU is a projection only, which the commissioner may
condition on, for example, the absence of disciplinary
reports. Mass. Regs. Code tit. 103, 421.08(2) (1986).3
Matthews' rehearing on Disciplinary Report No. 89-2221
was held on September 13, 1989. Matthews alleged that the
124 days between the May 12th marijuana and weapon incident
and the September 13th rehearing violated the requirement of
Mass. Regs. Code tit. 103, 430.11(2) (1987) that "a hearing
before the disciplinary board" be scheduled "within a
reasonable time."
Again, the short answer reveals the fallacy of Matthews'
premise. Matthews received his hearing regarding the May
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dependent on conditions of his own, such as the absence of
disciplinary reports. Mass. Regs. Code tit. 103, 421.08(2)
(1986).
3. We also note that on August 12th, the day after Matthews'
mistaken release from the DSU, he was involved in a fight.
This fact may also have played a part in his placement on AA
status on August 16th. See Smith v. Massachusetts Dep't of
___ _____ _______________________
Correction, 936 F.2d 1390, 1397 (1st Cir. 1991) (where one of
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the requisite substantive predicates for placing an inmate on
AA status was present, there was no due process violation);
Mass. Regs. Code tit. 103, 430.21(1) (1987) (prison
official has discretion to place an inmate, who is under
investigation for a possible disciplinary offense, on AA
status).
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12th incident on May 18th, certainly "within a reasonable
time" as contemplated by 430.11(2). On September 13th, he
received a "rehearing" pursuant to his administrative appeal
and the administrative regulations do not provide for any
time constraints within which a rehearing must be held.4
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4. Moreover, 430.23 (1987) provided that "[a]ll procedural
time limits set forth in these rules and regulations are
directory and may be waived by the Superintendent or the
Commissioner or their designees."
In any event, according to Matthews, the request for a
rehearing was granted on June 24th and, according to the
rehearing report, the rehearing was delayed until September
13th because of three continuances: the first, because
Matthews had requested legal representation, the second,
because the reporting officer was on vacation, and the third,
because of "rescheduling." "The Disciplinary Officer may
continue a hearing at his/her discretion." Mass. Reg. Code
tit. 103, 430.11(2) (1987). The continuances appear to
have been both authorized and legitimate. Even were a
rehearing required to be heard "within a reasonable time," no
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flagrant violation is apparent.
And, in any event, we are unpersuaded by Matthews' claim
of prejudice from the delay due to the unavailability of
witnesses. In particular, with respect to Officer Bruce,
Matthews suggests that his field drug analysis report should
not have been accepted. Matthews cites Wightman v.
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Superintendent, Massachusetts Correctional Inst., 19 Mass.
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App. Ct. 442 (1985), in which the court ruled that the
unsworn statement of the reporting officer that he found in
the inmate's possession an "unknown" substance which the
officer "believed" to be angel dust was an insufficient
ground for the board's finding of guilt. By contrast, in the
present case, Officer Bruce provided a report which stated:
On May 12, 1989 this Reporting Officer
conducted a drug field test on four (4)
rolled cigarettes confiscated from inmate
Lloyd Matthews.
The cigarettes were found to contain
Marijuana and its Resin - a Class D
Controlled Substance under 94C Sec. 31
MGL.
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Disciplinary Reports Nos. 90-192, 90-206, 90-208, 90-233
Disciplinary Reports Nos. 90-192, 90-206, 90-208, 90-233
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Contrary to Matthews' contention, the board's findings
of guilt on these reports were not constitutionally defective
because, in each case, the board relied on the report of the
reporting officer without other corroborating evidence. Most
of the cases cited by Matthews involve instances where a
disciplinary board merely incorporated a reporting officer's
report, and instances where, in addition to mere
incorporation, the report, in turn, contained a mere recital
of the reporting officer's conclusion that an unidentified
informant was reliable. Some courts have determined that a
board's finding of guilt is defective in these instances on
two grounds: a) because a statement such as - "Based on the
reporting officer's report, we find the inmate guilty" - does
not specify the evidence upon which the board relied in
finding guilt5 and b) there is no indication that the board
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The board is not bound by courtroom rules of evidence, Mass.
Regs. Code tit. 103, 430.13(3) (1987), and the instant case
is distinguishable from Wightman such that the board's
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acceptance of Bruce's report despite his unavailability for
questioning by Matthews was permissible.
5. Courts rely on the teaching of Wolff v. McDonnell, 418
_____ _________
U.S. 539, 563 (1974), that due process requires, inter alia,
"a written statement of the factfinders as to the evidence
relied upon."
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made its own independent determination of the informant's
credibility.6
By contrast, the board's findings in each instance in
this case reflected no such shortcomings. First of all, no
informant information was involved in any of the incidents.
Each disciplinary report reflected an eyewitness account of
the reporting officer. Second, although the board's report
of the disciplinary hearing indicated, in each instance, that
the "Board based guilt on the eyewitness testimony as
recorded in the officer[']s report," that "STATEMENT OF
EVIDENCE RELIED UPON TO SUPPORT FINDING, also specified, in
each instance, the evidence in each report that, in the
board's view, sufficed for a guilty finding.7
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6. See, e.g., Nelson v. Commissioner of Correction, 390
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Mass. 379, 393 (1983)
The reliance by a disciplinary board on
the secondary information of a reporting
officer without any primary evidence of
guilt being presented to the board, is to
compound the prospect for abuse. To rely
on such secondary information is simply
to "rubberstamp" the disciplinary report
and to delegate the decisionmaking to the
reporting or investigating officer.
(Citation omitted).
7. The findings of the board, in each instance, complied
with regulatory, as well as constitutional, requirements.
"If a guilty finding is reached, the disciplinary
board shall prepare a written decision containing
the following:
(a) A description of the evidence relied upon
in reaching the guilty finding;"
Mass. Regs. Code tit. 103, 430.17(1) (1987).
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Disciplinary Report No. 90-206: "Report clearly
indicates that R/O [reporting officer] observed
subject throw the meal tray against the unit wall."
Disciplinary Report No. 90-192: "Report clearly
indicates that R/O positively identified subject as
the one who was encouraging a work stoppage and
unauthorized group demonstration."
Disciplinary Report No. 90-208: "Report clearly
indicates that subject was insolent to R/O,
disruptive in the unit, and verbally abusive and
threatening to the R/O."
Disciplinary Report No. 90-233: "Report clearly
indicates that R/O observed subject threaten the
block workers, encourage other inmates to follow
his lead, resulting in Inmate Matthews assaulting a
block worker, by throwing human feces on him."
Matthews has also cited and attached, as an addendum to
his brief, three unpublished memoranda and orders of
Massachusetts superior court judges - Stokes v. Ponte, No.
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90-463 (Mar. 21, 1990) (Zobel, J.); Greenwood v. Rakiey, No.
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90-4154 (Jul. 17, 1990) (Bohn, J.); and Colantonio v. Vose,
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No. 90-4684 (Jul. 30, 1991) (White, J.). These decisions
held that, when an inmate disputes the reporting officer's
account of events, a disciplinary board cannot find a
reporting officer's written report more credible than an
inmate's live testimony, in the absence of the reporting
officer's own live testimony. They conclude that, in sifting
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"The evidence relied upon for the guilty finding
and the reasons for the sanction shall be set out
in specific terms."
Mass. Regs. Code tit. 103, 430.17(2) (1987).
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through contradictory testimony, a factfinder must assess the
credibility of the witnesses, which it cannot do without the
live presence of the witness.
We pass the question of the persuasive weight accorded
unpublished superior court memoranda and orders. In any
event, in these decisions the inmates had testified and the
board had to weigh the credibility of the reporting officers'
written statements versus the inmates' live testimony.
In Matthews' case, however, he pled not guilty, then
expressly declined to provide any statement in his behalf.
Each of the relevant hearing reports states in the section
for SUMMARY OF INMATE TESTIMONY:
States to prior experience with the D-
Board - and he feels that his testimony
is not always recorded properly - and for
that reason he has no statement.
In view of his failure to testify, this is not a situation
where the board then had to assess the credibility of live
testimony versus written statements. His apparent distrust
of the accuracy of the recordation of his testimony does not
alter that.
Matthews would have it that in instances where the
evidence consists of an accusation by a correctional officer
based on personal observation and a bare "not guilty" plea by
an inmate, the board could not find guilt, based on the
written eyewitness account, in the absence of independent
corroborating evidence. That is not the holding of the
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caselaw he has cited and not the holding of the caselaw we
have found. See, e.g., McLellan v. Acting Superintendent,
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M.C.I., Cedar Junction, 29 Mass. App. Ct. 122, 125 (1990)
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("[T]he disciplinary report of Officer Belisle recounted his
direct observation of the plaintiff passing a telephone to an
inmate on disciplinary isolation, an action which, without
any additional validation, may be deemed a violation of the
rules."); see also Stokes v. Commissioner of Correction, 26
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Mass. App. Ct. 585, 589 ("[T]he board refers in its decision
to the officer's incident report, and a copy of the full
report is appended to the decision. All of the officers'
reports appear to be self-validating. Thus, although more
explanation might have been preferable, in each such decision
the board's rationale is revealed, and there is at least a
basis for a reviewing court or agency administrator to
understand how the prison board reached the decision."),
further appellate review denied, 403 Mass. 1106 (1988).8 9
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8. Again arguing that the board may not properly rely on the
written statement of the reporting officer, Matthews argues
on appeal that there was insufficient evidence to support the
guilty finding on Disciplinary Report No. 88-4510 (the
precipitating event for his initial placement in the DSU,
i.e., the attempted assault on the prison librarian). That
claim of insufficiency of evidence, however, was never made
either in his original complaint, or in the later-allowed two
amendments to the complaint. It was first raised in his
opposition to defendants' motion for summary judgment and the
district court did not address it in granting summary
judgment. Thus, it was not properly presented to the
district court and, concomitantly, not preserved for review
on appeal.
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Incident of November 3, 1989
Incident of November 3, 1989
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We now turn to the only argument offered by Matthews
which we find has merit.10 Late on the day of Friday,
November 3rd, Matthews was notified of the commissioner's
approval of the recommendation that he be released to the
general population. He was transferred from the Segregation
Unit to the Orientation Unit. There he was told that the 3
to 11 p.m. shift commander had not received his name as an
inmate to be released, so he would not be released to the
general population, but rather, confined to his cell until
the following Monday. He then allegedly threw a cup of urine
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9. Finally, Matthews' contention that Disciplinary Report
No. 90-283 should have been dismissed because it was not
written within 24 hours of the incident, as per 430.08(2),
is refuted by Smith v. Massachusetts Dep't of Correction, 936
_____ _________________________________
F.2d 1390 (1st Cir. 1991). "As these regulations [including
430.08(2)] embody only procedural time limits, they do not
create the necessary liberty interest." Id. at 1397 n.11;
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see also Mass. Regs. Code tit. 103, 430.23 (1987) ("All
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procedural time limits set forth in these rules and
regulations are directory and may be waived by the
Superintendent or the Commissioner or their designees.").
10. Although Matthews filed an amended complaint relating to
the events of November 3rd, he did not submit copies of any
of the relevant disciplinary reports or a copy of the report
of the disciplinary hearing to the district court. The
following recital of facts is taken from copies of the
relevant disciplinary reports submitted by the defendants in
connection with a motion, filed on July 31, 1990, for summary
judgment on the claims remaining after the ruling presently
at issue. The district court, therefore, did not have copies
of the relevant documents before it when it granted summary
judgment on May 29, 1990. The description of events in the
reports is in general agreement with, but is more detailed
than, the description provided by Matthews in his complaint
and related filings.
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at a correctional officer. Thereafter, he refused to submit
to being handcuffed and removed from his cell. Matthews tied
bed sheets across the floor from his desk to his bedframe,
apparently to trip anyone entering the cell. He also
suspended a bed sheet, as a curtain, from floor to ceiling
with bandaids and remained behind this curtain during much of
the time attempts were being made to get him to step to the
bars to be cuffed.
A "move team" of officers sprayed mace and/or gas into
Matthews' cell and then entered the cell. Matthews, still
behind the sheet, allegedly "lunged" toward the door with a
radio in his hand, which struck the shield carried by the
first officer to enter ("the shield man"). Matthews was
forcibly shackled and removed. Subsequently, a pen wrapped
in gauze and tape at one end was found on the floor of
Matthews' cell.
In December 1989, Matthews filed an amended complaint
which, inter alia, alleged that he had been charged with
assault, attempted assault, and possession of a weapon.11
He added, as defendants, the members of the disciplinary
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11. According to the later-submitted disciplinary reports,
he was charged with, inter alia, assault in connection with
the precipitating incident, i.e., allegedly throwing urine at
the officer, assaulting or threatening the shield man with
the radio, and possession of a weapon, i.e., the pen, which
the reporting officer concluded was a weapon because the
gauze and tape on the end was a handle. This officer also
stated that the pen had been in Matthews' hand as the move
team entered the cell.
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board that considered these charges. He said that the forced
extraction had been videotaped by the prison officials (as is
apparently the norm), that he had never assaulted or
attempted to assault the officers and that the video would
show what happened, but that the disciplinary board refused
to view the video or allow his legal representative or
himself to view the video. He said that he was sanctioned 15
days' isolation for each disciplinary report written by the
prison officers.
The members of the disciplinary board moved to dismiss
or, in the alternative, for summary judgment. As noted,
supra, footnote 10, they, too, failed to submit the
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underlying disciplinary reports or the record of the
disciplinary hearing to the district court. They merely
contended, without supporting documents, that the evidence
presented at the disciplinary hearing satisfied both federal
and state constitutional standards, that, unlike a criminal
prosecution, an inmate is not entitled to a full panoply of
rights, and "[a]s a result, the plaintiff had no right to
exculpatory evidence, liberal discovery, etc...."
In opposing the defendants' motion for summary judgment,
Matthews said that the board, in denying his request to
produce the tape, indicated that it would not use the tape
against him. His claim, however, was that the tape was
exculpatory in that it would show that he was not violent and
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never assaulted or attempted to assault the "move team." He
cited Mass. Regs. Code tit. 103, 430.14(4) (1987), (which
gives discretion to the chairperson to deny an offer of
evidence in the interests of, inter alia, personal safety,
institutional security, relevance, cumulativeness and
repetitiveness) and said that the board's denial was based on
other than personal or institutional safety.
The district court granted summary judgment, as a matter
of law, to the defendant board members with respect to
Matthews' claim about the board's refusal to grant Matthews
access to the videotape or to view it at the hearing, on the
ground that the discipline review board is not required to
accept or grant access to any evidence at a disciplinary
hearing. This statement is erroneous,12 since an inmate
facing a disciplinary hearing that may result in the loss of
a liberty interest must receive, inter alia, "an opportunity,
when consistent with institutional safety and correctional
goals, to call witnesses and to present documentary evidence
in his defense." Smith v. Massachusetts Dep't of Correction,
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936 F.2d at 1398-99 (quoting Superintendent, Massachusetts
_____________________________
Correctional Inst. v. Hill, 472 U.S. 445, 454 (1985)).
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Moreover, "'the burden of persuasion as to the existence and
sufficiency of such institutional concerns [justifying the
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12. We review the grant of summary judgment de novo. See,
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e.g., Rodriques v. Furtado, 950 F.2d 805, 808 (1st Cir.
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1991).
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denial of an inmate's request to call witnesses] is borne by
the prison officials, not by the prisoners.'" Id. at 1399-
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1400 (quoting Grandison v. Cuyler, 774 F.2d 598, 604 (3d Cir.
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1985)). And, in Smith, we found that a request for discovery
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of an item that appeared particularly important to, indeed
may have been dispositive of, a defense "stands on the same
footing as a request to call witnesses." Id. at 1401
___
(footnote omitted).
We conclude, therefore, that the district court's grant
of summary judgment in favor of the defendant/disciplinary
board members was, at best, premature. The defendants' flat-
out contention, endorsed by the district court, that Matthews
was not entitled to exculpatory evidence is wrong as a matter
of law. The board may decline to accept evidence in the
interests of institutional security and correctional goals or
for other reasons set forth in 430.14(4), such as relevance
or cumulativeness. Wolff v. McDonnell, 418 U.S. at 566-67.
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And, it may be that the board would have been within its
discretion to do so here. But, we just do not know.13 In
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13. It does not appear from the record before us that the
precipitating event, i.e., the alleged assault on an officer
by throwing urine at him, was recorded on the videotape.
Rather, the tape reveals what occurred once the prison
officials made the subsequent decision to extract Matthews
from his cell. Matthews suggests, nonetheless, that it shows
officers in close proximity to his cell after this alleged
assault and before his extraction and that they would not
have positioned themselves so if he, in fact, had thrown
urine. We leave to the district court for further
consideration what relevance, if any, the tape had to events
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failing to even argue that the board denied Matthews' request
for a legitimate reason, much less provide supporting
documentation, the board members failed to show that they
were entitled to judgment as a matter of law. See Ponte v.
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Real, 471 U.S. 491, 496-97 (1985) (due process may require
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prison officials to explain, in a limited manner, either at
the disciplinary hearing, or in a later court challenge, the
reason why witnesses were not allowed to testify).
We, therefore, vacate the district court's order of May
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29, 1990, insofar as it granted summary judgment in favor of
the defendant members of the disciplinary review board on
Matthews' claim that he was unlawfully deprived of access to
potentially exculpatory evidence before the board, i.e., the
videotape depicting events of November 3, 1989. We remand
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for further proceedings, in which the defendants may again
move for summary judgment if, in their view, they are able to
carry their burden on this issue. In all other respects, we
affirm the district court order of May 29, 1990.
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Affirmed, in part, and vacated and remanded, in
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part.14
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not recorded therein.
14. In view of our disposition of this appeal, Matthews'
"motion to allow affidavit in support of arguments in lieu of
oral arguments" is denied as moot.
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