Street v. Rakiey

• Court: Court of Appeals for the First Circuit
• Decided: March 31, 1993
• Docket: 92-1927
• Status: Published

Opinion

USCA1 Opinion

March 30, 1993
                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

No. 92-1927
        No. 91-1928 

RICHARD A. STREET,

                                Plaintiff, Appellant,

                                          v.

                                 PAUL RAKIEY, ET AL.,

                                Defendants, Appellees.

____________________

                    APPEALS FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                   [Hon. Edward F. Harrington, U.S. District Judge]
                                               ___________________

                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                            Selya and Cyr, Circuit Judges.
                                           ______________

                                 ____________________

            Richard A. Street on brief pro se.
            _________________
            Nancy  Ankers  White,  Special  Assistant  Attorney  General,  and
            ____________________
        Catherine A. Arnold,  Counsel, Department of Correction,  on brief for
        ___________________
        appellees.

                                 ____________________

____________________

Per Curiam.  Plaintiff Richard Street, an inmate at MCI-
                 __________

            Cedar Junction in Massachusetts, was charged in 1990 with two

            disciplinary offenses.   After conducting  separate hearings,

            prison officials in each  instance found plaintiff guilty and

            imposed a  sanction of isolation time.   Plaintiff thereafter

            filed these pro se  actions under 42 U.S.C.    1983, alleging

            that the two disciplinary hearings suffered from assorted due

            process violations.    He requested  relief  in the  form  of

            damages and  the removal  of the  offenses  from his  record.

            Named as defendants were  the prison superintendent and other

            correctional  officials.   In  both  cases, over  plaintiff's

            opposition, the  district court granted defendants' motion to

            dismiss  under Fed.  R.  Civ.  P.  12(b)(6).   Plaintiff  now

            appeals.                      I.

                 Plaintiff advances the  following factual  allegations.1

            Appeal No. 92-1927 involves  an incident on June 18,  1990 in

            which plaintiff is alleged to have destroyed a light fixture.

            William  Cabino,  the  reporting  staff  person,  prepared  a

            disciplinary  report stating  as follows:  (1) at  6:55 a.m.,

            Cabino  was directed to remove plaintiff from a security cell

____________________

            1.  The   factual  allegations  are  drawn  from  plaintiff's
            verified complaints and the exhibits  attached thereto (which
            consist of the  records of the disciplinary  hearings).  Such
            exhibits are considered  part of the  complaint, see Fed.  R.
                                                             ___
            Civ. P. 10(c), and may properly be reviewed when evaluating a
            motion to dismiss  under Rule 12(b)(6).  See,  e.g., Hamilton
                                                     ___   ____  ________
            v. O'Leary, 976  F.2d 341,  343 (7th Cir.  1992); O'Brien  v.
               _______                                        _______
            DiGrazia,  544  F.2d 543,  545  n.1  (1st Cir.  1976),  cert.
            ________                                                _____
            denied, 431 U.S. 914 (1977).
            ______

"due to his disruptive behavior"; (2) upon entering the cell,

            he noticed that a lighting fixture had been broken; and (3) a

            subsequent  search  uncovered  a  five-inch  piece  of  metal

            located under a mattress and a "large piece of glass" located

            under the  toilet, both  of which  "apparently came  from the

            lighting  fixture."   Plaintiff  was charged  with four  code

            offenses  under   103  C.M.R.     430.24   (1987),  including

            possession  of  a weapon  and  willful  destruction of  state

            property.  

                 At the disciplinary hearing, which was  held on June 28,

            1990,  plaintiff pled not guilty  by reason of  insanity.  In

            his complaint, he alleges that he submitted a written request

            for  two   witnesses--Cabino  and   Dr.  Navaras,   a  prison

            psychiatrist--but  that a  correctional official  (Lt. Ayala)

            tore up the witness form in plaintiff's presence.  The record

            of  the hearing contains a  partial reference to this matter,

            explaining the denial of plaintiff's request for  witness(es)

            as follows:

                 Request   for   witness  Dr.   Navaras   denied  in
                 accordance  with  CMR   430.11(4).[2]    Failed  to
                 submit  witness form.   Inmate  Street claimed  Lt.
                 Ayala tore it up.   Lt. Ayala states he  never tore
                 it up.

____________________

            2.  Under 103 C.M.R.    430.11(1), an inmate is to  be served
            with a "request for witness form" within twenty-four hours of
            the  designation of the offense  as a major  matter.  Section
            430.11(4)  in  turn provides  that  an  inmate's "failure  to
            submit  a request for ... witness form may, in the discretion
            of the disciplinary board chairperson, constitute a waiver of
            the inmate's rights to call witnesses."

                                         -3-

The record also  contains a notation  that plaintiff did  not

            request  Cabino's  presence.    Admitted  into evidence  were

            Cabino's  disciplinary report  and  the pieces  of metal  and

            glass recovered from the  cell.  Based on such  evidence, the

            disciplinary board  found plaintiff guilty of both possessing

            a weapon and destroying property.  He was given a sanction of

            fifteen  days in  isolation on  each charge,  for a  total of

            thirty  days.     Plaintiff   appealed  the  matter   to  the

            superintendent,  claiming  that  his   so-called  "disruptive

            behavior"  had  in  fact  been  a suicide  attempt,  that  he

            suffered  from "severe mental illness," and that he should be

            transferred to a hospital.  Plaintiff alleges that his appeal

            was denied without explanation.

                 Appeal No. 92-1928 involves  an unrelated incident which

            allegedly  occurred one  day  later.   A disciplinary  report

            prepared by staff  person John Lopes stated: "On 6/19/90 ...,

            this officer did see  Inmate R.A. Street run from  the Mental

            Health office to the  Hospital ward grill and spit  on Inmate

            John Debella  ...."  Plaintiff was  subsequently charged with

            disruptive conduct  and "assaulting  ... another  person with

            any offense  against his person."   103 C.M.R.    430.24(18).

            At  a disciplinary  hearing held on  July 5,  1990, plaintiff

            again  pled   not  guilty  by  reason   of  insanity,  adding

            (according to the  hearing record)  that he had  been at  the

            health unit to see a psychiatrist due to an episode of mental

-4-

illness, and  that he did  not recall the  incident.   In his

            complaint, plaintiff alleges that he requested two witnesses-

            -Lopes and  Dr. Navaras.   The hearing record  indicates that

            Lopes' presence was initially  requested but was later waived

            by   plaintiff  (an   assertion  plaintiff   denies   in  his

            complaint).   The  disciplinary board  denied the  request to

            call  Dr. Navaras on the ground that "witness was not present

            at  the  incident."    Based on  Lopes'  written  report, the

            disciplinary  board  found  plaintiff  guilty  and imposed  a

            sanction  of  fifteen  days  isolation.   On  appeal  to  the

            superintendent, plaintiff argued that he had had a "psychotic

            episode ... I  was hallucinating and thought  [Debella] was a

            devil about to attack me, so I spat on him to break his  evil

            spell."   This appeal, according  to the complaint,  was also

            denied without explanation.

                                         II.

                 In  his pair  of  complaints, plaintiff  advanced nearly

            identical challenges  to these two  disciplinary proceedings.

            He argued that the  following due process violations occurred

            in  each instance: (1)  inadequate notice of  the charges was

            provided;  (2) he  was denied  the right  to call  and cross-

            examine  witnesses;  (3)  the  conviction was  not  based  on

            substantial evidence; (4) the board failed to reach a finding

            after  the close  of the  evidence; and  (5) no  reasons were

            provided  for  the denial  of his  appeal.   He  charged that

-5-

imposing multiple  sanctions for  a single act  of misconduct

            violated  double   jeopardy.    He  argued   that  the  board

            contravened  "common  law"  by  (1) basing  its  findings  on

            unsupported written testimony and  (2) failing to explain its

            credibility findings.   And  he contended that  each incident

            was attributable to the negligent supervision of defendants--

            conduct which in No. 92-1927, at least, amounted to cruel and

            unusual  punishment.  The  district court found  that none of

            these allegations presented a federal claim  cognizable under

            42 U.S.C.   1983.  

                 Appellate review  of a dismissal under  Rule 12(b)(6) is

            plenary.   See, e.g., Miranda v. Ponce Federal Bank, 948 F.2d
                       ___  ____  _______    __________________

            41, 44 (1st Cir. 1991).  We must accept all well-pled factual

            allegations  as  true  and  draw  all  reasonable  inferences

            therefrom  in plaintiff's  favor.   See, e.g.,  Leatherman v.
                                                ___  ____   __________

            Tarrant County Narcotics, Etc.  Unit, 61 U.S.L.W. 4205, 4206-
            ____________________________________

            07 (U.S. March 3, 1993); Roth v. United States, 952 F.2d 611,
                                     ____    _____________

            613 (1st  Cir. 1991); Dartmouth Review  v. Dartmouth College,
                                  ________________     _________________

            889  F.2d 13,  16 (1st  Cir. 1989).   In  addition, a  pro se

            complaint is  held to  "less stringent standards  than formal

            pleadings drafted  by lawyers" and  can only be  dismissed if

            "it appears 'beyond doubt that the plaintiff can prove no set

            of  facts in support of his  claim which would entitle him to

            relief.'"   Haines v. Kerner,  404 U.S. 519,  520 (1972) (per
                        ______    ______

            curiam)  (quoting  Conley  v.  Gibson,  355  U.S.  41,  45-46
                               ______      ______

-6-

(1957)); accord, e.g.,  Estelle v. Gamble,  429 U.S. 97,  106
                     ______  ____   _______    ______

            (1976).

                 Our task  is to  determine not whether  the disciplinary

            hearings   comported   in  every   detail   with  the   state

            regulations,  but  whether  they  were  consistent  with  the

            "minimal safeguards afforded by the Due Process Clause of the

            Fourteenth  Amendment."   Ponte v.  Real, 471  U.S.  491, 495
                                      _____     ____

            (1985).3  "Prison disciplinary proceedings are not  part of a

            criminal prosecution,  and the full  panoply of rights  due a

            defendant  in  such proceedings  does not  apply."   Wolff v.
                                                                 _____

            McDonnell,  418 U.S.  539, 556  (1974).   As outlined  by the
            _________

            Court  in  Wolff,  the applicable  constitutional  safeguards
                       _____

            include  the  following:  providing "written  notice  of  the

            charges"  to the inmate at least 24 hours before the hearing,

            id. at  564;  allowing  the  inmate "to  call  witnesses  and
            ___

            present  documentary evidence in  his defense when permitting

            him  to do so will  not be unduly  hazardous to institutional

            safety or  correctional goals,"  id. at  566;  and, should  a
                                             ___

            finding of  guilt be reached, providing  "a written statement

            by the factfinders as  to the evidence relied on  and reasons

            for the disciplinary action," id. at 564 (quotation omitted);
                                          ___

            accord,  e.g.,   Superintendent,  Massachusetts  Correctional
            ______   ____    ____________________________________________

____________________

            3.  It  is  clear  that  the  loss  of  liberty  entailed  in
            isolation time suffices to trigger constitutional safeguards.
            See, e.g., Wolff v. McDonnell, 418 U.S. 539, 571 n.19 (1974);
            ___  ____  _____    _________
            Smith  v. Mass. Dep't of Correction, 936 F.2d 1390, 1399 (1st
            _____     _________________________
            Cir. 1991). 

                                         -7-

Institution  v.  Hill, 472  U.S.  445, 454  (1985);  Smith v.
            ___________      ____                                _____

            Massachusetts Dep't  of Correction, 936 F.2d  1390, 1398 (1st
            __________________________________

            Cir. 1991).

                                         III.

                 Few of plaintiff's claims require extended comment.  His

            contention that he received  inadequate notice of the charges

            is entirely  conclusory.   The hearing records  indicate (and

            plaintiff  does not dispute) that he was afforded at least 24

            hours  advance notice.   In  particular, he does  not dispute

            that  he  received  copies  of the  disciplinary  reports  in

            advance,  in  which the  charges  were adequately  described.

            Plaintiff likewise presents no cognizable claim in contending

            that defendants violated double jeopardy by imposing multiple

            punishments for  a single act of  misconduct.  As we  said in

            rejecting an analogous double jeopardy  contention in Langton
                                                                  _______

            v. Berman,  667  F.2d  231 (1st  Cir.  1981),  this  argument
               ______

            "fail[s] to  appreciate the essential  differences between  a

            disciplinary hearing  and a  criminal trial."    Id. at  234;
                                                             ___

            accord, e.g., United  States v. Rising,  867 F.2d 1255,  1259
            ______  ____  ______________    ______

            (10th Cir. 1989); see generally Breed v. Jones, 421 U.S. 519,
                              _____________ _____    _____

            528   (1975)   ("jeopardy   describes  the   risk   that   is

            traditionally associated with a criminal prosecution").  

                 Plaintiff's challenge to the sufficiency of the evidence

            is  clearly meritless.  It is plain that the board's findings

            were supported by "some evidence in the record"--the standard

-8-

of  evidentiary  sufficiency  mandated  by  the  Due  Process

            Clause.  Hill,  472 U.S. at 454.   Nor has he  stated a claim
                     ____

            with respect to (1) the board's consideration of the evidence

            or  (2) its description of  the evidence on  which it relied.

            The  Wolff   Court  held   that  "confrontation  and   cross-
                 _____

            examination" are  not "generally  required" in  this context.

            418 U.S. at 568.   Consequently, the board's reliance  on the

            written  disciplinary reports was  proper, particularly since

            each report  contained an eyewitness account.   In explaining

            its  findings,  the board  indicated that  it relied  on "the

            eyewitness testimony as recorded  in the officer's report" in

            each  case and, in No.  92-1927, on the  physical evidence as

            well.  Such summary  explanations have been deemed sufficient

            in  other cases  (depending on  the facts  presented).   See,
                                                                     ___

            e.g.,  Forbes v. Trigg, 976 F.2d 308, 318-19 (7th Cir. 1992),
            ____   ______    _____

            cert.  denied, 61 U.S.L.W. 3456  (Feb. 22, 1993).   They were
            _____________

            clearly adequate under the  circumstances here.  The evidence

            at  the  hearings  was  straightforward.    And  rather  than

            attempting  to controvert  the  central  factual  allegations

            underlying the charges, plaintiff sought to defend himself by

            citing the collateral issue  of his mental status.4   For the

____________________

            4.  Plaintiff's  challenge  to  the superintendent's  alleged
            failure  to  explain  his  reasons for  denying  the  appeals
            similarly  falters.   No  such obligation  is imposed  by the
            state regulations.  See 103 C.M.R.    430.18.  And we find no
                                ___
            such obligation  as a  constitutional matter, given  that the
            board adequately explained its findings.

                                         -9-

same  reason,  no issue  of credibility  was presented  as to

            whether plaintiff  actually committed the acts  with which he

            was charged.

                 The issue of plaintiff's requests to call Dr. Navaras as

            a  witness  deserves closer  scrutiny.5    As mentioned,  the

            Court in Wolff held that an inmate "should be allowed to call
                     _____

            witnesses ... in  his defense  when permitting him  to do  so

            will  not  be unduly  hazardous  to  institutional safety  or

            correctional goals."  418 U.S.  at 566.  In Ponte, the  Court
                                                        _____

            clarified that prison officials have the burden of justifying

            the  denial of a witness request by tendering an explanation,

            either  during the  administrative hearing  or  in connection

            with  subsequent litigation.    471 U.S.  at 497-99;  accord,
                                                                  ______

            e.g., Smith, 936 F.2d at 1399-1400.  This rule is intended to
            ____  _____

            guard against arbitrary action by  requiring prison officials

            "to explain, in  a limited manner,  the reason why  witnesses

            were  not allowed  to  testify."   Ponte,  471 U.S.  at  497.
                                               _____

            Reasonable  explanations include not only interests of prison

            safety  and  discipline, but  also  legitimate administrative

            concerns.   See,  e.g.,  Wolff,  418  U.S.  at  566  ("Prison
                        ___   ____   _____

____________________

            5.  By contrast,  no colorable claim  is presented  regarding
            plaintiff's  alleged  requests to  call  the  authors of  the
            disciplinary  reports  as  witnesses.    Even  if  we  assume
            (contrary to  the notations in the hearing records) that such
            requests  were made,  prison officials  are not  required "to
            provide reasons in writing to inmates denied the privilege to
            ...   confront  witnesses   against   them  in   disciplinary
            proceedings."    Baxter  v.  Palmigiano, 425  U.S.  308,  322
                             ______      __________
            (1976); accord Wolff, 418 U.S. at 567-69.  
                    ______ _____

                                         -10-

officials  must have  the  necessary discretion  to keep  the

            hearing within reasonable limits  ...."); Ramer v. Kerby, 936
                                                      _____    _____

            F.2d  1102, 1104  (10th  Cir. 1991)  ("legitimate penological

            concerns  includ[e],  but [are]  not  limited  to, safety  or

            correctional  goals, expense, staffing  requirements ..., and

            the  danger of harassment").  And  in general, courts "should

            not  be too  ready to  exercise oversight  and put  aside the

            judgment of  prison administrators"  in this regard.   Wolff,
                                                                   _____

            418 U.S. at 566.   

                 We agree with the lower court  that plaintiff has failed

            to  state a  viable  claim under  these  standards.   In  the

            assault  case,  the board  denied  the  request to  have  Dr.

            Navaras testify on the ground that he "was not present at the

            incident."     We   cannot  say   that  this   rationale  was

            unreasonable.   Cf. Powell v. Coughlin, 953 F.2d 744, 751 (2d
                            ___ ______    ________

            Cir. 1991) (board's refusal  to allow psychiatrist to testify

            was  proper since he "was not an observer of disputed factual

            issues  concerning the  underlying incident"; receipt  of his

            notes  in lieu of his testimony "was harmless error, if error

            at  all").  To  be sure, Dr.  Navaras (apparently plaintiff's

            treating psychiatrist) likely would have been able to provide

            background  information  as  to  plaintiff's  mental  health,

            perhaps   even  as  to   his  susceptibility   to  "psychotic

            episodes."    Yet  under  the  rather  unusual  circumstances

            presented (with an inmate  personally proclaiming that he had

-11-

been "insane"  two weeks  earlier), any such  testimony would

            have  been of  marginal relevance,  and would  obviously have

            expanded the scope of the hearing in a manner the board might

            reasonably have wished to avoid.  

                 In  the  property-destruction  case, the  board  did not

            permit  Dr.  Navaras to  testify  because,  according to  the

            record, plaintiff had failed  to submit the required witness-

            request  form.   Such  a  rationale  constitutes an  adequate

            justification.  See, e.g., Hamilton v. O'Leary, 976 F.2d 341,
                            ___  ____  ________    _______

            346-47 (7th Cir. 1992); Smith, 936 F.2d at 1400 ("denial of a
                                    _____

            request to call  a witness on the ground that  the request is

            untimely   is   well    within   the   disciplinary   board's

            discretion").     As   mentioned,  plaintiff   disputes  this

            conclusion, alleging that he did submit the form but that Lt.

            Ayala  tore it up.  The  administrative record indicates that

            the  board, after hearing  these differing  explanations from

            plaintiff and Ayala, chose to believe the  latter.  Arguably,

            this   credibility   determination,   although  involving   a

            collateral  issue,  is one  subject  to  scrutiny only  under

            Hill's  "some  evidence"  standard--a test  which  "does  not
            ____

            require  examination   of  the  entire   record,  independent

            assessment of  the credibility  of witnesses, or  weighing of

            the evidence."   472 U.S. at  455.  We need  not resolve that

            issue, however,  since plaintiff's allegation,  even if true,

            would  involve at most harmless  error.  See,  e.g., Elkin v.
                                                     ___   ____  _____

-12-

Fauver, 969 F.2d  48, 53 (3d  Cir.) (applying harmless  error
            ______

            analysis  to disciplinary proceedings),  cert. denied, 113 S.
                                                     ____________

            Ct. 473 (1992);  Powell, 953 F.2d at 750-52 (same).   For the
                             ______

            reasons  discussed  above,  Dr.  Navaras'  testimony  in  the

            property-destruction case would again have been of negligible

            relevance.   Indeed,  the  fact that  plaintiff  hid the  two

            "weapons"  in  the  cell--conduct  quite  at  odds  with  any

            suggestion of "insanity"--suggests that psychiatric testimony

            would have been even less relevant here.

                 For   these  reasons,   we  conclude   that  plaintiff's

            complaints were properly dismissed under Rule 12(b)(6).6

                 Affirmed.
                 _________

____________________

            6.  As   we  read  the  complaints,  plaintiff's  "negligent-
            supervision" allegations comprise  part of  his challenge  to
            the disciplinary proceedings, rather  than being intended  as
            independent  claims for relief.   To the extent  they were so
            intended, we find no suggestion that defendants acted in such
            a  "wanton" fashion as to have violated the Eighth Amendment.
            Wilson v. Seiter, 111 S. Ct. 2321, 2326 (1991).  
            ______    ______

                                         -13-