Moore v. Pepe

Opinion

USCA1 Opinion

January 5, 1995
                                [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

No. 94-1118

                                   BRUCE K. MOORE,

                                Plaintiff, Appellant,

                                          v.

                                 PETER PEPE, ET AL.,

                                Defendants, Appellees.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                    [Hon. Richard G. Stearns, U.S. District Judge]
                                              ___________________

                                 ____________________

                                        Before

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

                                 ____________________

            Bruce K. Moore on brief pro se.
            ______________
            Nancy  Ankers  White,  Special  Assistant  Attorney  General,  and
            ____________________
        Michael  H.  Cohen, Counsel,  Department of  Correction, on  brief for
        __________________
        appellees.

____________________

                                 ____________________



Per  Curiam.    Pro  se  plaintiff-appellant  Bruce
                      ___________

            Moore,  a  prison  inmate,  has appealed  from  the  district

            court's  grant of  summary judgment  in favor  of defendants-

            appellees  Peter Pepe,  the  Superintendent  at  MCI-Norfolk,

            Philip  Poirier,   Michael  Little,  and  James  Giblin,  all

            officials at MCI-Norfolk.

Background
                                  __________

The  facts  that  are undisputed  are  as  follows.   In

            February  1991, Moore was  implicated in a  scheme to falsely

            inculpate other inmates by  placing contraband items, such as

            homemade  knives  and  banned  substances,  in  their  cells.

            Consequently, on March 5, 1991, Moore was placed on "awaiting

            action" ("AA") status in the  administrative segregation unit

            in the Receiving Building ("RB").  

                 On  March  15,  Moore  received  a  disciplinary  report

            charging  him  with   a  number  of   disciplinary  offenses,

            including,  among other  things, conduct  which  disrupted or

            interfered  with  the  security  or orderly  running  of  the

            institution;   possession  or   introduction  of   a  weapon,

            sharpened  instrument,  knife, or  tool;  and  aiding another

            person to commit the other charged offenses.  On   March  26,

            1991,  a disciplinary  hearing  was held.   At  that hearing,

            Moore  admitted that he knew  that another inmate was putting



contraband in other inmates' cells, and that Moore had helped

            this other inmate type a note falsely inculpating others.  

                 The  hearing  officer,  defendant  Little,  found  Moore

            guilty of conduct which disrupted the orderly running of  the

            institution,  and  of  aiding  another  inmate  to  introduce

            sharpened    instruments    into   other    inmates'   cells.

            Accordingly, the hearing officer sanctioned Moore with thirty

            days of isolation, and recommended that Moore be reclassified

            to  higher  security.    Moore  then  appealed  to  defendant

            Superintendent Pepe, who denied the appeal on April 4. 

                 On April 10, the classification board held a hearing and

            recommended that Moore's request  to stay at MCI-Norfolk, "in

            the  RB on the RB workforce", be granted.  The recommendation

            was subsequently  approved.   At Moore's  next classification

            hearing,  on June 5, 1991, the  board recommended transfer to

            Bay  State Correctional Center.   On July 8,  1991, Moore was

            transferred to Southeastern Correctional Center.

                 Moore  filed  the instant  suit on  May  28, 1992.   His

            complaint  sought damages  and  injunctive  relief  under  42

            U.S.C.    1983 on  the ground that  his right  to due process

            under  the   fourteenth  amendment   of  the   United  States

            Constitution  had   been  violated  in  the   course  of  his

            disciplinary  conviction and  by his  confinement in  the RB.

            The  complaint might  also  be read  to  allege violation  of

            applicable Department of Correction regulations. 

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Specifically,  Moore alleged  (1) that  the disciplinary

            finding against  him was  not supported by  adequate reasons;

            (2) that certain of the disciplinary charges against him were

            vague and overbroad; (3) that before and at the  disciplinary

            hearing, he  was denied access  to the evidence  against him,

            despite making several requests for such access; (4) that his

            rights were violated by his being ordered into isolation, and

            (5)  that his  rights  were violated  by  his being  kept  in

            administrative segregation,  i.e.,  on AA  status, without  a

            conditional  release  date   from  segregation  and   without

            conditions of behavior to obtain release from segregation.

                 On  January  20,  1994,   the  district  court   granted

            defendants' motion  for summary judgment.  In  a brief order,

            the district court ruled,  "Plaintiff failed to timely appeal

            his disciplinary conviction.   In  addition, plaintiff's  due

            process  arguments are inapplicable  to his  claims regarding

            alleged  errors  in  the  disciplinary   process"  (citations

            omitted).  Moore appeals.  We affirm.

The Merits
                                 __________

We have held that  where a prison inmate faces  the risk

            of isolation time as  a result of a disciplinary  charge, the

            inmate has a liberty interest under the due process clause in

            the disposition of that charge.  Smith v. Massachusetts Dep't
                                             _____    ___________________

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of  Correction,  936 F.2d  1390,  1399 (1st  Cir.  1991); see
            ______________                                            ___

            O'Malley  v. Sheriff of Worcester County, 415 Mass. 132, 139,
            ________     ___________________________

            612 N.E.2d 641, 647 (1993).  Accordingly, Moore, who received

            a disciplinary sanction  of thirty days  in isolation, had  a

            liberty interest in the disciplinary proceeding.

                 The  Supreme  Court  has specifically  spelled  out  the

            minimum   procedural  safeguards  necessary  to  satisfy  the

            requirements  of  due   process  in  a  prison   disciplinary

            proceeding that may result in the loss of a liberty interest.

            The inmate must  receive "(1) advance  written notice of  the

            disciplinary charges;  (2)  an opportunity,  when  consistent

            with  institutional safety  and correctional  goals,  to call

            witnesses and  present documentary  evidence in  his defense;

            and (3) a written statement by the factfinder of the evidence

            relied  on  and the  reasons  for  the disciplinary  action."

            Superintendent  v. Hill,  472  U.S. 445,  454 (1985)  (citing
            ______________     ____

            Wolff v. McDonnell, 418 U.S. 539, 563-67 (1974)).
            _____    _________

                 Statement of  evidence and reasons.   Moore alleged that
                 __________________________________

            the  hearing officer's  written  statement  of  the  evidence

            relied on and the reasons for the disciplinary action was not

            adequate. We find this allegation meritless.  The factfinder,

            defendant Little, stated  in writing,  "The inmate  testified

            that  he  was  aware  that another  inmate  was  deliberately

            placing contraband items such as sharpened instruments in the

            cells  of inmates.  He  further admitted that  he helped this

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inmate finish  typing a  note pertaining to  the contraband's

            location."   There  can be  no doubt  that this  statement of

            evidence and reasons was constitutionally adequate.  

                 Insofar  as Moore  may  have intended  to challenge  the

            sufficiency of the  evidence against him, there  need only be

            "some evidence"  of guilt in  the record of  the disciplinary

            hearing to  support a disciplinary conviction.   Hill, supra,
                                                             ___________

            472  U.S. at 454-57.  Moore's own admissions easily meet that

            test.     Moore objects  that  he denied  any involvement  in

            making  sharpened instruments  or  actually placing  them  in

            other  inmates' cells.   The disciplinary  findings, however,

            suggest that  the hearing  officer credited that  denial, but

            nonetheless found  that Moore, by admittedly  helping to type

            the  falsely  inculpatory note,  aided  another  inmate in  a

            scheme  which  involved   placing  sharpened  instruments  in

            others' cells.

                 Moore did  assert  in the  district  court that  he  was

            physically  coerced into  helping the  other inmate  type the

            note.    However,  in   an  affidavit,  Moore  described  his

            testimony before the hearing officeron this point as follows:

            "Gaziano  [the other  inmate] insisted  I finish  his typing,

            Gaziano  placed a  hand on  me and  directed me  to the  seat

            behind the typewriter Gaziano was  using; I read what Gaziano

            had typed and typed  less than 2 complete lines  that Gaziano

            dictated to me . . . ."  Moore has nowhere explained why such

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seemingly  mild  conduct on  the  part of  Gaziano  should be

            thought to have constituted physical coercion.  

                 Thus,  the  hearing   officer's  implicit  finding  that

            Moore's  conduct was  voluntary appears  entirely reasonable.

            That finding was obviously not so baseless or arbitrary as to

            be constitutionally infirm. 

                 Vagueness.  Similarly lacking  in merit is Moore's claim
                 _________

            that some of the disciplinary charges against  him were vague

            and overbroad.  Our review of the charges  on which Moore was

            convicted finds no  such deficiency.   The  only such  charge

            which  could even arguably be thought vague was the charge of

            "conduct which  disrupt[ed] or interfere[d] with the security

            or  orderly   running  of  the  institution."     Moore  must

            reasonably have  been on  notice, however, that  the specific

            conduct  he admitted engaging in --  aiding another inmate to

            type a  note falsely  inculpating other  inmates -- would  be

            disruptive and  would come under  this disciplinary standard.

            See  El-Amin v.  Tirey,  817 F.Supp.  694, 701-03  (W.D.Tenn.
            ____________     _____

            1993), aff'd, 35  F.3d 565  (6th Cir. 1994).   In any  event,
                   _____

            Moore  did not press  this point in his  brief on appeal, and

            has thereby waived it.

                 Pre-hearing discovery.  Moore next alleged that prior to
                 _____________________

            the hearing,  he was denied  access to evidence  against him.

            In  his complaint, Moore asserted  that on or  about March 15

            and March 20, 1991, he wrote two letters to defendant Pepe in

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which he "requested he be supplied  with all alleged tangible

            and  material  evidence  in  photographic  form, or  detailed

            written    description/report(s),    or   any    informant(s)

            information,  with  applicable names  deleted,  or laboratory

            analysis  report(s)."   Moore  alleged  that  he received  no

            response.   Moore  further  alleged that  he  made a  similar

            request of the hearing  officer, who allegedly responded that

            he  was  not in  possession of  any  objects or  documents in

            evidence  against  Moore,  but  was  relying  solely  on  the

            disciplinary report.

                 Hill,  supra, 472 U.S.  445, and Wolff,  supra, 418 U.S.
                 ____________                     _____________

            539,   do  not   specifically  recognize   any   due  process

            entitlement to  pre-hearing discovery.  In  Smith, supra, 936
                                                        _____  _____

            F.2d  1390, however, we held, "While Wolff does not accord an
                                                 _____

            inmate  a [due  process] right  to pre-hearing  discovery, we

            think that .  . . when an inmate seeks relevant and important

            documents central to the construction  of a defense, and  his

            requests are repeatedly denied, an explanation of the reasons

            for  the denial should be furnished."   Id. at 1401.  We went
                                                    ___

            on to  note that the denial of discovery did not "r[i]se to a

            level of constitutional magnitude"  where the requested items

            did  not appear  central to the  inmate's defense,  and where

            defendant's  "brief  on appeal  is  bereft  of any  developed

            argumentation to the contrary."  Id. at 1401 n.18.
                                             __

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Moore has  supplied no argument, either  to the district

            court or  to  this  court,  why  pre-hearing  access  to  the

            evidence  against  him  should  be  thought  central  to  the

            construction of a  defense.  The  importance of such  access,

            moreover,  is far from evident.  To the contrary, the hearing

            officer based his ruling on Moore's admission that  he helped

            another  inmate  type  a  note intended  to  inculpate  other

            inmates.  In a March 20, 1991 letter to defendant Pepe, Moore

            made the same admission.   It is hard, therefore, to see  how

            the denial of discovery prejudiced Moore's defense to charges

            that he admitted.  

                 Moore  did  argue in  the  district  court that  he  was

            physically  coerced into helping type  the note.   As we have

            said, however,  Moore's own  account of his  testimony before

            the hearing  officer suggests that  this was a  weak defense.

            In any event, it  is unclear how access to  physical evidence

            would have bolstered it.   For all these reasons, we  find no

            due  process violation  in  the denial  of Moore's  discovery

            request without explanation.

                 Isolation.   Given the lack of any due process defect in
                 _________

            Moore's  disciplinary proceeding,  there  is no  basis for  a

            finding that  his constitutional rights were  violated by his

            placement in isolation.

                 Placement on  AA status in the RB.  We further find that
                 _________________________________

            Moore's placement on  AA status  in the RB  -- first  pending

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investigation  and resolution  of  the  disciplinary  charges

            against him, and then pending transfer or reclassification --

            did not violate due process.  

                 The Supreme Court has ruled that the due process clause,

            in and of itself, does not confer upon a prisoner any liberty

            interest  in being  held  in the  general prison  population.

            Hewitt v. Helms, 459  U.S. 460, 467-68  (1983).  To be  sure,
            ______    _____

            state  laws or  regulations  may create  a protected  liberty

            interest if, by setting forth "explicitly mandatory language"

            and  "specified  substantive predicates,"  Kentucky  Dep't of
                                                       __________________

            Corrections  v.  Thompson, 490  U.S.  454,  463 (1989),  they
            ___________      ________

            "plac[e]  substantive  limitations  on official  discretion,"

            Olim v. Wakinekona, 461 U.S. 238, 249 (1983).  
            ____    __________

                 In  Stokes v.  Fair, 795  F.2d 235  (1st Cir.  1986), we
                     ______     ____

            ruled  that   the  Massachusetts  Department   of  Correction

            regulations which  then governed the placement  of inmates in

            "awaiting  action" detention  did  create a  liberty interest

            protected by the  due process  clause.  They  did so  because

            they  permitted  prison officials  to place  an inmate  on AA

            status only  upon the occurrence of  certain conditions, such

            as pending investigation or hearing of a disciplinary offense

            or  pending  transfer or  reclassification to  higher custody

            status.  Id.  at 237.   Due process  would therefore  require
                     __

            that  an inmate placed on AA status receive an informal, non-

            adversary  review  within  a  reasonable  time,  and  receive

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subsequent periodic reviews.  Hewitt, supra, 459 U.S. at 472,
                                          ______  _____

            477 n.9.

                 In  1987,  long before  the  events  of this  case,  the

            relevant  regulations were  revised, with  mandatory language

            replaced  by   language   conveying  discretion   to   prison

            officials.  The current prison regulations provide that "[a]t

            the discretion of the Superintendent or his designee, . . . ,

            an  inmate   who  is  under  investigation   for  a  possible

            disciplinary offense or has been charged with or found guilty

            of a disciplinary offense,  may be placed on  awaiting action

            status .  . .  .   Such status  may include  more restrictive

            confinement as  deemed appropriate  by the Superintendent  or

            his designee."  103 C.M.R.   430.21(1).  The regulations call

            for reviews of  RB placement at least weekly.   Id.   423.13.

            Defendants argue that  the current language places  decisions

            regarding   confinement  on  AA   status  wholly  within  the

            discretion of  the Superintendent, and  therefore creates  no

            liberty interest.

                 We  need not resolve that question.  Even if due process

            requirements  do  apply,  we  would  find  no  constitutional

            violation.   There  is no  dispute that  Moore was  initially

            placed on AA  status in  the RB pending  an investigation  of

            disciplinary charges.  Following his  disciplinary conviction

            he  was kept  there for  a little  over three  months pending

            transfer  or  reclassification.    Thus, he  was  placed  and

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maintained  in  the  RB   for  purposes  in  accordance  with

            applicable regulations.  During  that period, he received two

            classification board  hearings regarding his  status, as well

            as  informal  weekly  reviews,  all that  due  process  would

            require.  

                 In   addition,  Moore   has  not   disputed  defendants'

            assertion that at  least some significant portion of his stay

            in  the RB was  in accordance with  his own request.   In his

            brief  on appeal,  Moore acknowledges  that at the  April 10,

            1991 classification hearing, he  "requested to remain at MCI-

            Norfolk,  even  if  such  classification meant  a  period  of

            confinement to  receive such  favorable classification."   In

            the district  court, he  stated  that "at  this hearing  [he]

            requested  to  remain  in  the general  population  [at  MCI-

            Norfolk], even if  it meant an  extended stay in the  R.B. to

            allow time for this to be approved."  Before his disciplinary

            conviction,  in a March  20, 1991  letter to  defendant Pepe,

            Moore  also  stated,  "[I]f  I  am  to  be  punished  for  my

            association and not coming  forward sooner let the punishment

            be a stay in the  R.B."  Although there is a  factual dispute

            in  the record  as to  whether Moore  requested or  agreed to

            placement in the RB for the  entire period he was held there,

            under  all the  circumstances we  could find  no due  process

            violation  in  Moore  receiving,  on  a  temporary  basis,  a

            classification status he had specifically requested.

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Finally, Moore's reliance  on Hoffer v. Commissioner  of
                                               ______    ________________

            Correction,  412  Mass.  450,  589  N.E.2d  1231  (1992),  is
            __________

            misplaced.    Hoffer  ruled  that,  given  applicable  prison
                          ______

            regulations, due  process required  that an inmate  placed in

            the  Departmental  Segregation  Unit   ("DSU")  be  given   a

            conditional  date  of  release   from  the  DSU,  along  with

            conditions  of behavior to obtain such release.  412 Mass. at

            455-56;  589 N.E.2d at 1234.   The record  is clear, however,

            that  although  Moore was  placed on  AA  status in  the same

            building, the RB, that contains the DSU, Moore was not placed
                                                               ___

            in  the DSU.  Cf.  Kenney v. Commissioner  of Correction, 393
                          ___________    ___________________________

            Mass. 28,  34, 468  N.E.2d 616,  620 (1984)  (recognizing the

            clear  distinction   between  placement  on  AA   status  and

            placement in the DSU).

                 In  his brief on appeal,  Moore does assert  that he was

            held in  the DSU.  However,  we do not read  his affidavit in

            the district court  to contain  any such assertion.   In  the

            affidavit, Moore  stated that  he was  placed  on the  second

            floor  of the RB, and  it is the  uncontroverted assertion of

            defendant Pepe's affidavit that the DSU is on the first floor

            of  the RB, while the second and third floors hold inmates on

            AA status.  Hoffer, accordingly, is inapposite.
                        ______

                 State-law claims.  Insofar as Moore's complaint may have
                 ________________

            raised  pendent  state-law  claims  of  violation  of  prison

            regulations, we  agree with the district  court's ruling that

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such  claims  were  time-barred.   Under  Massachusetts  law,

            lawsuits challenging prison discipline must be brought within

            the sixty-day statute of limitations  set forth at Mass. Gen.

            Laws c. 249,   4.  McLellan v. Commissioner of Correction, 29
                               ________    __________________________

            Mass.  App. 933,  934-35, 558  N.E.2d 3,  4 (1990).   Moore's

            final administrative appeal  from his disciplinary conviction

            was denied in April  1991, and Moore was transferred  in July

            1991.  This lawsuit was not filed until May 1992.

                 Violation of local rules.  Finally, there is no merit in
                 ________________________

            Moore's argument  that the  district court erred  in granting

            defendants'  motion for  summary judgment because  the motion

            violated  the district  court's Local  Rule 7.1(A)(2).   This

            Local Rule  requires that  the  parties confer  prior to  the

            filing  of any  motion, and  defendants apparently  sought no

            such conference with Moore prior to filing their motion.  The

            Local  Rule, however,  became effective  on October  1, 1992,

            after defendants had already  filed their motion on September

            25, 1992.

                 The judgment of the district court is affirmed.
                                                       ________

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