USCA1 Opinion
October 6, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1281
GLEN M. SULLIVAN,
Plaintiff, Appellant,
v.
PETER PEPE, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
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____________________
Before
Torruella, Chief Judge,
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Cyr and Boudin, Circuit Judges.
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Glen M. Sullivan on brief pro se.
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Nancy Ankers White, Special Assistant Attorney General, and
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Michael H. Cohen, Counsel, Department of Correction, on brief for
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appellee.
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Per Curiam. Pro se prisoner Glen Sullivan appeals
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a district court order which granted the defendant prison
officials summary judgment in this civil action that Sullivan
filed under 42 U.S.C. 1983. Sullivan's verified complaint
sought declaratory and injunctive relief and damages as a
result of Sullivan's confinement in administrative
segregation pending a disciplinary investigation and
subsequent disciplinary conviction for participating with
other inmates in the fraudulent use of a credit card to buy
running shoes. As a result of the disciplinary conviction,
Sullivan was required to forfeit sixty (60) days of good time
credits. We affirm the judgment for the defendants with
one modification.
I.
The complaint named the following defendants in their
individual capacities: Peter Pepe, Superintendent of the
Massachusetts Correctional Institution (M.C.I.) at Norfolk,
Larry Dubois, the Massachusetts Commissioner of Corrections,
David Malone, the disciplinary hearing officer who presided
at Sullivan's disciplinary hearing, and Sergeant Stephen
Gatewood, the investigating officer at M.C.I. Norfolk. The
complaint alleged that the defendants deprived Sullivan of
his good time credits without due process by "establishing
guilt without evidence" and "allow[ing] perjured testimony
into the record and bas[ing the finding of] guilt on that
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testimony." Sullivan asked the court to issue a declaratory
judgment to that effect and to expunge his institutional
record of the incident and reinstate his good time credits.
Sullivan also sought compensatory damages in the amount of
$1000 against each defendant for each day that he spent in
segregation and $10,000 in punitive damages from each
defendant.1
Before the defendants were served, the district court
reviewed Sullivan's complaint in connection with his motion
to proceed in forma pauperis (IFP) under 28 U.S.C. 1915(a).
__ _____ ________
On October 8, 1993, the court issued a memorandum and order
which allowed that motion. However, the court noted that
Sullivan's claim for the restoration of his good time credits
could only be raised by a habeas corpus petition under
Preiser v. Rodriguez, 411 U.S. 475 (1973). The court allowed
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Sullivan's remaining claims against the defendants to
proceed, noting that its ruling did not determine whether the
complaint was otherwise sufficient to state a claim upon
which relief could be granted. Thereafter, the defendants
were served with Sullivan's complaint.2
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1. Although the complaint is somewhat ambiguous, Sullivan's
subsequent filings indicate that his damages claim is based
solely on his confinement in administrative segregation.
2. However, the record suggests that the defendants did not
receive the court's October 8, 1993 order.
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3
The defendants filed a motion to dismiss or, in the
alternative, for summary judgment. The motion was supported
by affidavits from defendants Malone and Gatewood and
numerous documents from the disciplinary proceeding,
including copies of the disciplinary report that charged
Sullivan with various offenses and the disciplinary hearing
record, which reported officer Malone's description of the
evidence and of the reasons that he found Sullivan guilty.3
Sullivan filed an opposition to the defendants' motion. The
parties' respective filings and Sullivan's verified complaint
indicate that the following facts are undisputed.
Sullivan is serving a 12-20 year sentence for armed
assault. Before the disciplinary incident in issue, he had
accumulated over 280 good time credits and suffered no
forfeitures. On June 9, 1993, Sullivan was removed from the
general population at M.C.I. Norfolk, a medium security
prison, and placed in the institution's Receiving Building.
He was told that he was being placed on pending investigation
status due to claims concerning the fraudulent use of a
credit card. On the following day, Sullivan was interviewed
by Sgt. Gatewood. Gatewood told Sullivan that someone had
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3. The defendants also submitted Sullivan's form request for
witnesses, which identified inmate Steven Santo as the sole
witness Sullivan wished to call in his defense, Sullivan's
letter appealing Malone's disciplinary finding to
Superintendent Pepe, a form recording that that appeal had
been denied, and a record of Sullivan's forfeiture of the
good time credits.
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placed an order for two pairs of sneakers in Sullivan's name
with East Bay Running Store, Inc. (East Bay), a Wisconsin
company. The order that Sgt. Gatewood referred to was
fraudulently made with a third party's credit card number.
Sullivan denied knowledge of any credit card or purchase from
East Bay in his name.
On June 22, 1993, Sullivan received a disciplinary
report which alleged that the aforementioned order was placed
with East Bay in Sullivan's name and M.C.I. Norfolk
address.4 The disciplinary report charged Sullivan with
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4. The disciplinary report was prepared by Sgt. Gatewood and
contained the following allegations:
On 6-7-93, an investigation was initiated into the
fraudulent use of credit cards by inmates housed at
MCI-Norfolk. Through investigative techniques and
the interview process the following facts have been
established.
On 5-27-93, an order was placed at East Bay Running
Store, Inc., 427 Third Street, Wausau, Wisconsin, for a
pair of Reebok Shaq Attack sneakers and one pair of Nike
Pantheon sneakers. This attempted purchase was fraudulently
done by using an innocent civilian's credit card number.
This order was scheduled to be shipped to Glenn (sic)
Sullivan, Two Clark Street, P.O. Box 43, Norfolk, MA.
East Bay Running Store was alerted to this credit card fraud
and this order was cancelled.
On 6-9-93, inmate Glen Sullivan was placed in the
Receiving Building Pending Investigation. Inmate
Sullivan was advised of his Miranda rights at this time.
On 6-22-93, this investigation was concluded. Inmate
Sullivan's status was changed from R.B./P.I. to R.B./AA.
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multiple offenses, including stealing.5 Sullivan also
received a Request for Representation and/or Witnesses form
which he used to request that inmate Steven Santo be called
as a witness at Sullivan's disciplinary hearing. Santo was
also under investigation for fraudulently using the credit
card, as were several other inmates.
A disciplinary hearing was convened on July 9, 1993 at
which defendant Malone presided. The disciplinary report was
read and Sullivan denied the charges. Although it appears
that inmate Santo was not called as a witness, officer Malone
received an unsworn statement from him which was admitted
into evidence.6 Thereafter, the hearing was adjourned until
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5. The disciplinary report specifically charged Sullivan
with the following offenses under 103 C.M.R. 430.24 (1992):
(2) Violating any departmental rule or regulation, or
any other rule, regulation, or condition of an institution
or community based program[,]
(8) Conduct which disrupts or interferes with the
security or orderly running of the institution.
(23) Unauthorized possession of property belonging to
another person.
(24) Possession of anything, including money or
currency, not authorized for retention of receipt by the
inmate.
(26) Stealing.
(32) Violating any law of the Commonwealth of
Massachusetts or United States[, and]
(33) Attempting to commit any of the above offenses,
aiding another person to commit any of the above
offenses, and making plans to commit any of the above
offenses shall be considered the same as commission of
the offense itself.
6. Santo's statement said, "I, Steven Santo, testify that
Glen Sullivan had no knowledge of any purchase from East Bay
Co. being shipped to him at M.C.I. Norfolk. The order was
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6
the following Monday, July 12th. On that day Sergeant
Gatewood testified that the disciplinary report was accurate,
that an order for two pairs of sneakers was scheduled to be
sent to Sullivan and that informant information showed that
Sullivan was aware that the package of sneakers was coming to
him. However, Gatewood did not know who had placed the
actual order and he acknowledged that Sullivan did not
receive anything as a result of the order.
Officer Malone's affidavit indicates that Sullivan
complained that he had been unaware that informant
information was going to be used. Malone then excused
Sullivan from the hearing room and Gatewood supplied Malone
with the informant information in executive session. Malone
completed an informant information checklist which indicated
that the disclosure of the informant evidence would be
hazardous to the informant and institutional security. Based
on information provided by Gatewood, Malone's checklist also
found that the informant was reliable because he had been
used on five previous occasions, that the informant's
information was credible, and that no favors had been sought
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for another inmate purpose." Apart from officer Malone's
averment that several inmates had disciplinary hearings
related to the fraudulent purchases on July 9th, the record
does not explain why Santo was not allowed to testify at
Sullivan's hearing.
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by, or promises made to, the informant in exchange for the
information.7 The disciplinary hearing then resumed and
Malone told Sullivan that the informant information indicated
that Sullivan had been aware both that an order had been
placed using his name and return address and that a
fraudulently obtained credit card number had been used.
Sullivan then indicated that he had given another inmate
permission to have a package sent to Sullivan because that
inmate had already received a package within the last 30
days.8
As a result of the disciplinary hearing, officer Malone
found Sullivan guilty of conduct which disrupts or interferes
with the security or orderly running of the institution in
violation of 103 C.M.R. 430.24(8) and of attempting to
commit or aiding another to commit stealing in violation of
103 C.M.R. 430.24(33), (26). Malone based his finding on
Gatewood's disciplinary report and testimony, the informant
information, and Sullivan's inconsistent statements at the
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7. The informant information checklist is not before us,
although Massachusetts regulations require that it be made
part of the record of the disciplinary proceedings. See 103
___
C.M.R. 430.15(1)(1992)(hearing officer's finding that the
informant is reliable and the information is credible shall
be included in the record).
8. Thus, while Sullivan initially denied knowledge that a
package was coming to him, he later admitted that he had
given another inmate permission to have a package sent to
Sullivan for the other inmate. However, Sullivan apparently
continued to deny knowledge that the package would have
contained sneakers procured through fraud.
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disciplinary hearing. While Malone acknowledged that the
goods did not actually reach Sullivan, he determined that a
guilty finding was warranted because Sullivan had attempted
to fraudulently obtain the shoes.9 Malone recommended that
Sullivan be sanctioned with the loss of sixty (60) days of
good time credits and a custody status review. Sullivan
appealed Malone's finding to Superintendent Pepe, maintaining
that he had no knowledge of the fraudulent purchase.
Superintendent Pepe denied Sullivan's appeal and Commissioner
Dubois thereafter ordered Sullivan to forfeit sixty days of
good time credits.10
Based on the foregoing facts, the defendants made four
arguments in support of their motion for dismissal/summary
judgment. They first asserted that the complaint failed to
state an actionable claim because Sullivan only challenged
the sufficiency of the evidence at his disciplinary hearing
and the record established that the evidence supporting
Sullivan's conviction was obviously sufficient under Hill v.
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Superintendent of Mass. Correctional Institution at Walpole,
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472 U.S. 445, 455-57 (1984)(requiring that there be only
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9. Malone also found that Santo's statement was not credible
because Santo also was involved in the investigation and it
was possible that there had been collaboration on an alibi.
Moreover, Santo did not indicate how he knew that Sullivan
was not involved.
10. Sullivan also contends that he has been reclassified to
M.C.I. Cedar Junction, a maximum security prison, as a result
of the disciplinary finding.
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"some evidence" of an inmate's guilt to sustain a prison
disciplinary conviction).11 The defendants argued that there
was ample evidence to support Sullivan's conviction because
(a) it was undisputed that an order had been placed using a
fraudulently obtained credit card number and Sullivan's name
and return address, (b) the only issue was whether Sullivan
knew of the purchase order and its fraudulent nature, (c)
informant information substantiated that Sullivan was one of
the inmates who had participated in the fraudulent use of the
credit card number, and (d) Sullivan's denial of the charges
was properly discounted since he had given inconsistent
statements concerning the state of his knowledge before and
after Gatewood testified. The defendants also argued that
Sullivan failed to state the basis for his claim that
"perjured testimony" had been used against him. They
contended that if that claim was based on the informant's
information, the claim was not actionable because Wolff v.
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McDonnell, 418 U.S. 539, 565 (1974), recognized that
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informant information may properly be used to obtain prison
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11. In Hill the Supreme Court upheld an inmate's
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disciplinary conviction for assaulting another inmate based
on a corrections officer's testimony that he saw the
plaintiff/inmate with two other inmates jogging away from the
bruised victim. The victim denied that he had been assaulted
by the plaintiff and there was no direct evidence that any
one of the three fleeing inmates had been the victim's
assailant. Nevertheless, the Supreme Court held that the
evidence against the plaintiff was sufficient although
arguably "meager." See 472 U.S. at 456-57.
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disciplinary convictions.12 The defendants further argued
that Sullivan's complaint did not allege any procedural
improprieties in the admission of the informant's information
under 103 C.M.R. 430.15(1)-(4)(1992).13 Noting that
summary judgment was appropriate to the extent that matters
outside the pleadings were considered, the defendants also
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12. While the cited page in Wolff did not expressly address
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informant information, the Court acknowledged that when
personal or institutional safety was implicated, prison
officials could exclude evidence from their statement of
reasons for taking disciplinary action so long as the
statement indicated the fact of the omission. One court has
observed that Wolff "foreshadowed" the problem of informant
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information by indirectly suggesting that evidence might be
excluded from the statement of reasons to protect informants
from retaliation. See Hensley v. Wilson, 850 F.2d 269, 273
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(6th Cir. 1987).
13. 103 C.M.R. 430.15 (1992) sets forth the Procedures for
the Use of Informant Information. In general, it provides
that a hearing officer may consider evidence that is not
presented in the inmate's presence only if the officer makes
a finding that the informant is reliable and his information
is credible and that finding is included in the record. The
finding should furthermore contain the facts upon which the
hearing officer based his conclusion and a statement of the
informant's information that (a) is as specific as possible
without creating a substantial risk of disclosing the
informant's identity, and, (b) demonstrates that the
informant had personal knowledge of the information he
provided. The hearing officer must also find that disclosure
of the information would create a substantial risk of harm
and must further present a summary of the information to the
inmate at the hearing unless disclosure in any greater detail
than that contained in the disciplinary report would create a
substantial risk of disclosing the informant's identity. The
regulation is reproduced in the appendix to this opinion. As
noted above at n.7, the record does not contain the informant
information checklist that this regulation requires. We note
that the record also does not include a specific description
of the informant information nor any indication that the
informant had personal knowledge of the information he
provided.
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argued that they were entitled to summary judgment on grounds
of qualified immunity because they acted with the objective
good faith belief that their actions were proper, and that
the court should decline pendent jurisdiction over any state
law claims that might be read into the complaint (which
invoked both federal and pendent jurisdiction) since there
was no basis for Sullivan's federal cause of action.
Sullivan's opposition to the defendants' motion was
supported by an affidavit from inmate Santo and a photocopy
of a December, 1993 letter that Sullivan had written to East
Bay in an apparent effort to gather documents in support of
his defense.14 While Sullivan's rambling prose is
difficult to comprehend, he maintained that his complaint
stated a claim for the reinstatement of his good time
credits, the expungement of the disciplinary report, and
compensation for each day that he spent in segregation.
Sullivan alleged that he had produced an affidavit and
witness list that the defendants denied him, but he does not
identify what witnesses, apart from Santo, he wanted to call,
nor what evidence would have been elicited from them.15
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14. Sullivan asked East Bay for copies of its records of the
fraudulent orders and Sullivan's own cash transactions with
East Bay. Sullivan's opposition asserted that he had
obtained documentation that would clear him of the
disciplinary charges.
15. The affidavit from inmate Santo that Sullivan submitted
indicated that Santo had ordered items with the credit card
and that Sullivan had no knowledge or involvement in the
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Sullivan also alleged that the defendants violated his state
and federal rights by placing him in the Receiving Building
on awaiting action status without due process. However, he
alleged no facts to support this claim, but only made
conclusory assertions that his confinement in administrative
segregation constituted cruel and unusual punishment, denied
him the same privileges as the general population, and
violated Massachusetts policies and regulations.16
On March 4, 1994, the district court endorsed the
defendants' motion with an order indicating that it had
treated the motion as one for summary judgment and allowed it
for all the reasons set forth in the defendants' memorandum.
Sullivan appeals this ruling.
II.
On appeal, Sullivan stresses that while his complaint
sought declaratory and injunctive relief and compensation for
his confinement in administrative segregation, his main
concern is for the restoration of his good time credits.
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fraudulent scheme.
16. The only factual allegations in Sullivan's opposition
related to the disciplinary investigation. Sullivan alleged
that in contrast to the disciplinary report, which suggested
that the defendant prison officials had uncovered the fraud
and contacted East Bay, East Bay had contacted the defendants
to warn them that several orders had been fraudulently placed
on the same credit card number on behalf of different
individuals who had the same address of delivery (i.e.,
M.C.I. Norfolk). East Bay cancelled the orders and furnished
the defendants with a list of names that had been used in the
attempted fraud.
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13
Sullivan reiterates his contention that he was denied due
process in his disciplinary proceedings because his guilt was
established "without evidence" through informant information
and Gatewood's perjured testimony and because he was not able
to call witnesses or obtain affidavits or discovery.17
Sullivan also maintains that this court must review the
dismissal of his claim that he was illegally confined in
administrative segregation. He says that this confinement
hampered the preparation of his defense, but he does not
explain how.18 Sullivan's complaint sought relief for
two distinct events: his confinement in administrative
segregation before his disciplinary conviction, for which
Sullivan sought damages, and the disciplinary proceeding
that resulted in the forfeiture of his good time credits, for
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17. Sullivan also raises several specious arguments. For
example, he contends that we must review the judgment for the
defendants under the standard imposed by Neitzke v. Williams,
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490 U.S. 319 (1989), because the district court acted
spontaneously. But it is clear that the district court did
not render judgment for the defendants spontaneously but only
in response to the defendants' motion, thus Neitzke does not
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apply. Sullivan also says that because he received a
district court scheduling order before he received notice
that the court had allowed the defendants' motion for summary
judgment he was misled to believe that he would have an
opportunity to amend his complaint and pursue discovery. But
as Sullivan had filed his opposition to the defendants'
motion before the scheduling order issued, Sullivan's
misperception did not result in any prejudice.
18. The defendants' motion for dismissal/summary judgment
did not address Sullivan's segregation claim. The defendants
now contend that we should deem this claim waived because
Sullivan did not plead it sufficiently below.
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which Sullivan sought an order expunging his disciplinary
conviction and compelling the restoration of his good time
credits. While Sullivan's damages claim was cognizable under
42 U.S.C. 1983 as an attack on his conditions of
confinement, Preiser v. Rodriguez, 411 U.S. at 499 & n.14
_______ _________
(1973), the district court correctly observed that Sullivan's
claim for the restoration of his good time credits was not
cognizable under 42 U.S.C. 1983. Rather, Preiser v.
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Rodriguez, 411 U.S. at 482-500, established that habeas
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corpus, with its attendant requirement of exhaustion of state
remedies, is the sole remedy for state prisoners challenging
the actual duration of their confinement on the ground that
they have been unconstitutionally deprived of good time
credits. This distinction appears to have gone unnoticed when
the district court summarily allowed defendants' motion for
summary judgment.
As concerns Sullivan's damages claim based on his
confinement in administrative segregation, Sullivan merely
cites to cases relating to other challenges to inmate
confinement in administrative and disciplinary segregation,
see, e.g., LeMaire v. Maass, 745 F. Supp. 623 (D. Or. 1990)
___ ____ _______ _____
(holding conditions in disciplinary segregation unit, e.g.,
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cell restraints, constituted cruel and unusual punishment);
Hoffer v. Commissioner of Correction, 412 Mass. 450
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(1992)(upholding judgment that correction officials' failure
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to set conditional release date or conditions of behavior to
enable inmate to secure release from departmental segregation
unit violated due process); Royce v. Commissioner of
_____ ________________
Correction, 390 Mass. 425 (1983) (confinement in awaiting
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action status may not be used as a pretext for punishment),
without alleging facts suggesting that defendants subjected
Sullivan to similar conditions. Nor has Sullivan alleged
any facts to suggest that his confinement in the Receiving
Building on awaiting action status violated Massachusetts
regulations.19 Thus, we affirm the judgment for the
defendants insofar as it pertains to Sullivan's claim for
damages based on his confinement in administrative
segregation.
Sullivan's due process challenge to his disciplinary
conviction and loss of good time credits requires further
analysis, however. The fact that a prisoner-plaintiff may
not have exhausted state remedies does not preclude dismissal
of a habeas petition which is obviously meritless,
particularly where the government has not raised non-
exhaustion as a defense. See, e.g., Granberry v. Greer, 481
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19. The defendants correctly point out that 103 C.M.R.
430.21(1)(1992) authorizes prison officials to place "an
inmate who is under investigation for a possible disciplinary
offense or [who] has been charged with or found guilty of a
disciplinary offense" on awaiting action status "subject to
any applicable review requirements[.]" Sullivan has not
alleged any facts to suggest that any review or other
regulatory requirements were violated by his administrative
segregation.
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16
U.S. 129, 135 n.7 (1987)("it is appropriate for the court of
appeals to dispose of nonmeritorious petitions without
reaching the nonexhaustion issue"); Love v. Butler, 952 F.2d
____ ______
10, 15 (1st Cir. 1991)(same). But we are not satisfied, at
this point, that Sullivan's due process claim can be
considered obviously meritless. The informant's information
was the only evidence that showed Sullivan's knowledge of the
fraudulent purchases and Sullivan is attacking the use of the
informant information to prove his culpability in the scheme.
The Massachusetts regulations governing the use of informant
information were promulgated after the Massachusetts Supreme
Judicial Court determined that due process required certain
safeguards when informant information is used. See, e.g.,
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Nelson v. Commissioner of Correction, 456 N.E. 2d 1100, 390
______ ___________________________
Mass. 379 (1983); Lamoreux v. Superintendent, Massachusetts
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Correctional Institution, Walpole, 456 N.E.2d 1117, 390 Mass.
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409 (1983). Where the informant information checklist is
not in the record, and the record neither indicates what the
informant's information was nor whether the informant had
personal knowledge of the information he provided, we cannot
say that the "some evidence" test of Hill has been satisfied
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with respect to the issue of knowledge of fraudulent
purchases. In these circumstances, we believe Sullivan
should be permitted to exhaust his state court remedies in
connection with the due process claim.
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17
Accordingly, the judgment entered for defendants on the
damages claim for confinement in administrative segregation
is affirmed. The judgment entered for defendants on the due
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process claim for restoration of good time credits shall be
modified to reflect that this claim is dismissed pursuant to
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Preiser v. Rodriguez, 411 U.S. 475, 482-500 (1973), subject
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to exhaustion of state remedies.
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APPENDIX
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103 C.M.R. 430.15: Procedures for the Use of Informant
_____________________________________________________________
Information
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In disciplinary cases involving informant information,
the hearing officer may consider documentary evidence
and/or testimony which is not presented in the presence
of the inmate or his representative only if, after
viewing and/or hearing such documentary evidence or
testimony, the hearing officer has:
(1) Made a finding that the informant is reliable and
that
the information is credible. This finding shall be
included in the record and should contain the following
information:
(a) the facts upon which the hearing officer based
his conclusion that the informant was reliable and
that the information was credible.
(b) a statement of the information provided by the
informant as specific as possible without creating
a
substantial risk of disclosing the identity of the
informant. The statement should demonstrate that
the
informant had personal knowledge of the information
he provided;
(2) Made a finding that the disclosure of the
documentary evidence or testimony provided by the
informant to the inmate or his representative would create
a substantial risk of harm to the informant, to any other
person, or to the security of the institution;
(3) The hearing officer shall present a summary of the
informant information to the inmate at the hearing.
Such a presentation may, however, be foregone in cases
where disclosure of the information in any greater detail
than that which is contained in the disciplinary report
itself would create a substantial risk of disclosing the
identity of the informant.
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(4) The hearing officer may consider informant
information and base the findings in 103 CMR 430.15(1) on
information which is limited to oral or written hearsay
evidence. The hearing officer shall not be required to
interview the informant in person.
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