Williams v. Rice

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS DEC 14 1998 TENTH CIRCUIT __________________________ PATRICK FISHER Clerk

GEORGE WILLIAMS,

Plaintiff-Appellant,

v. No. 98-1146 (D. Colo.) FRANK RICE, (D.Ct. No. 95-S-124) Warden/Superintendent of Denver Reception & Diagnostic Center; ROBERT TAYLOR, Shift Commander at Denver Reception & Diagnostic Center; LYNN HANSEN, Registered Nurse at Denver Reception & Diagnostic Center; STEPHEN RODGERS, Disciplinary Hearings Officer at Denver Reception & Diagnostic Center, in their official and individual personal capacities,

Defendants-Appellees. ____________________________

ORDER AND JUDGMENT *

Before SEYMOUR, BRORBY, and BRISCOE, Circuit Judges.

* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.

George Williams, a pro se litigant and inmate at a state correctional facility

in Colorado, appeals the district court’s order granting summary judgment to

certain state officials, and dismissing his 42 U.S.C. § 1983 action against them.

This § 1983 action arises from an incident that occurred during Mr.

Williams’ incarceration when he allegedly grabbed a nurse’s hand while she

administered medication. At a subsequent disciplinary hearing, the presiding

hearing officer determined Mr. Williams committed an assault and sanctioned him

to fifteen days of punitive segregation.

Mr. Williams filed a complaint pursuant to 42 U.S.C. § 1983 alleging

violation of his constitutional rights in connection with his disciplinary hearing

and actions by certain state prison officials, including the warden, nurse, shift

supervisor and hearing officer. In his complaint, Mr. Williams claims: (1)

violation of a protected liberty interest resulting from his punitive segregation; (2)

-2- violation of his due process rights based on denial of his request to present,

confront and cross-examine witnesses; (3) error because only one hearing officer,

not a three-member panel, presided at his disciplinary hearing, in violation of the

Colorado Code of Penal Discipline; (4) error due to the defendants’ lack of legal

training which resulted in unnecessary physical and mental stress; and (5) denial

of impartial review or investigation of his appeal of the disciplinary proceeding.

During litigation, Mr. Williams on several occasions requested, but was

denied, appointment of counsel. He also filed motions asking for permission to

obtain, and later compel, discovery. The magistrate judge, pursuant to the

scheduling order, authorized permission to obtain full and complete discovery.

Prior to a completion of discovery and a ruling on Mr. Williams’ motion to

compel, defendants filed a motion for summary judgment. Mr. Williams filed

another discovery request claiming summary judgment should not be granted

absent completion of discovery. The magistrate judge, after reviewing the

summary judgment motion, determined it “will need to be resolved on legal, not

factual grounds,” and advised Mr. Williams to file a detailed affidavit indicating

the facts as he understood them and what additional information may be available

through discovery. Thereafter, Mr. Williams filed an affidavit which made

-3- general and conclusory allegations of factual dispute. The only specific dispute

of fact raised by Mr. Williams concerned an escort officer, Officer Lechuga, who

he claims did not testify at the disciplinary hearing despite the hearing officer’s

contrary contentions. In his affidavit, Mr. Williams only speculates as to the

content of Officer Lechuga’s testimony, stating he probably spoke to the nurse

after the incident occurred.

The magistrate judge issued a thorough and complete recommendation

granting summary judgment to defendants. The magistrate judge concluded, in

relevant part: (1) Mr. Williams did not have a protected liberty interest in

remaining in the general prison population, rather than serving his 15 day punitive

segregation; (2) no violation of due process occurred as the hearing officer did

not abuse his discretion in disallowing Mr. Williams’ witnesses to testify since

they were either merely character witnesses or, in the case of Officer Lechuga, 1

1 The magistrate judge concedes the parties are in dispute as to whether Officer Lechuga actually testified, but nevertheless determined the record shows he did testify at the hearing and stated he did not see the incident and was only in the vicinity at the time it happened. While the Martinez report filed in this case does not affirmatively show Mr. Lechuga testified, the affidavit of the hearing officer affirmatively states Mr. Lechuga testified, and did not witness the incident. The record also shows Mr. Williams did not request any additional witnesses at the close of the hearing. Finally, the incident report and notice of charge filed by Nancy Hansen, the nurse involved, shows Mr. Williams’ body covered the medline window so escort officers could not see the assault.

-4- did not witness the alleged assault; (3) the disciplinary board’s decision was

supported by evidence in the record; (4) violation of the Code of Penal Discipline

requiring a three-panel disciplinary board does not rise to a violation of a liberty

interest nor an actionable claim; 2 (5) Mr. Williams’ conclusory allegations did not

show the defendant officers lacked appropriate legal training, or that his

administrative appeal received an impartial review or investigation; and (6) the

defendant officials were entitled to qualified immunity since the evidence is

insufficient to indicate violation of any of Mr. Williams’ well-settled

constitutional rights.

In response, Mr. Williams filed objections to the magistrate judge’s

recommendation, contending the magistrate judge improperly granted summary

judgment because Officer Lechuga did not testify. The district court reviewed de

novo the magistrate judge’s recommendation and Mr. Williams’ objection thereto.

The district court issued an order accepting the magistrate judge’s

recommendation and granting summary judgment to the state officials. The

district court determined (1) the factual issue regarding Officer Lechuga’s

testimony did not put the hearing officer’s findings in doubt and therefore did not

2 The record shows Mr. Williams initially requested a three-member panel, but then amended his request, and “went with a single hearing officer review.”

-5- preclude summary judgment; and (2) even if the hearing officer did not permit

Officer Lechuga to testify, 3 Mr. Williams suffered no denial of his due process

rights as his punitive segregation for fifteen days did not affect any protected

liberty interest.

Mr. Williams appeals the summary judgment determination by raising the

same issues disposed of by the magistrate judge and district court. He also raises

a host of other issues not directly related to the summary judgment decision.

Specifically, concerning the initial disciplinary hearing, Mr. Williams asserts his

“inmate counsel was ineffective in hearing.” With regard to his proceeding

before the district court, Mr. Williams claims: (1) the district court improperly

allowed Frank Rice, warden at the facility where the incident occurred, “to

proceed without any attorney entry of appearance”; (2) conflict of interest and

ineffective assistance of counsel issues exist because the warden lacked legal

representation for two years, and when he finally obtained representation, he

received ineffective assistance of counsel; (3) substitution of the warden’s

attorney with a Special Assistant Attorney General, affiliated with a private law

3 The determination to allow an inmate to call, confront and cross-examine witnesses at a disciplinary hearing is within the sound discretion of the state prison officials. See Baxter v. Palmigiano, 425 U.S. 308, 321-22 (1976).

-6- firm, caused a “diversion course of unauthorized change ... [and] prejudice,” and

a conflict of interest; (4) evidence sufficiently supports conviction of “an assistant

United States Attorney and of an attorney in private practice for conspiring to

defraud the United States”; (5) the district court abused it authority by canceling

and then not rescheduling the pretrial phone conference, and by not permitting

discovery prior to rendering summary judgment; (6) the facility at which Mr.

Williams is currently incarcerated lacks sufficient library books, hindering him

from “quoting and mustering quotation of authority that can be properly stated for

review at this time”; and (7) he is denied equal protection of the law because the

other prisoners are treated differently.

In addition, Mr. Williams filed three motions, currently pending before this

court, which include a “Mandaus [sic] Pursuant to Rule 21. (a)(1),” in which he

claims, in part, the district court improperly failed to complete its scheduling

order for a pretrial conference, grant him an opportunity to complete discovery,

subpoena Warden Rice, and appoint him counsel. He also filed motions to recuse

and disqualify the magistrate judge and district court judge.

I. Summary Judgment

We review the grant of summary judgment de novo, using the same

-7- standard as the district court under Fed. R. Civ. P. 56(c). Blue Circle Cement,

Inc. v. Board of County Comm’rs, 27 F.3d 1499, 1502 (10th Cir. 1994).

“Summary judgment is appropriate only ‘if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and the moving party is

entitled to a judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(c)).

We examine the factual record and the inferences reasonably drawn from the facts

in the light most favorable to the party opposing summary judgment. Applied

Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.

1990).

We have carefully reviewed the parties’ pleadings and briefs, the record on

appeal, the magistrate judge’s recommendation and the district court’s decision,

and considered them in light of the applicable law. The magistrate judge issued a

thorough and well-reasoned recommendation for granting summary judgment to

the prison officials. The district court accepted the recommendation, after

additional and thoughtful consideration of Mr. Williams’ objections. We cannot

better articulate the facts, applicable law or reasoning for granting the summary

judgment. Even construing Mr. Williams’ pro se pleadings in support of his

-8- appeal liberally, 4 his general and conclusory allegations of constitutional

violations are insufficient to show there is a genuine issue of material fact or that

the moving party is not entitled to summary judgment as a matter of law. See

Elsken v. Network Multi-Family Sec. Corp., 49 F.3d 1470, 1476 (10th Cir. 1995).

We therefore affirm the district court’s summary judgment decision for

substantially the same reasons stated in the magistrate judge’s February 14, 1998

Recommendation and the district court’s March 30, 1998 Order.

II. Additional Issues

Having disposed of the issues presented primarily for summary judgment

determination, we next address the additional issues raised by Mr. Williams, some

of which are constitutional in nature.

A. Ineffective Assistance of Counsel

On appeal, Mr. Williams claims “inmate counsel was ineffective in

hearing.” Such a conclusory statement does not rise to the level of establishing

ineffective assistance of counsel. More importantly, his claim of ineffective

assistance is without merit because minimum due process does not require

4 See Haines v. Kerner, 404 U.S. 519, 520 (1972).

-9- assistance of counsel in disciplinary hearings. See Baxter, 425 U.S. at 315 (1976)

(“inmates do not ‘have a right to either retained or appointed counsel in

disciplinary hearings’” (quoting Wolff v. McDonnell, 418 U.S. 539, 570 (1974)).

Mr. Williams’ claim that his constitutional rights were somehow violated

by Warden Rice’s self-representation, failure to file an attorney appearance form,

and alleged representation by ineffective counsel, is without merit, if not

frivolous. The Sixth Amendment right to effective counsel does not extend to

civil suits. See MacCuish v. United States, 844 F.2d 733, 735-36 (10th Cir.

1988). Moreover, Mr. Williams may only raise an ineffective assistance of

counsel claim as to his own representation in a criminal proceeding, not his

opponent’s.

B. Appointment of Counsel

We next address Mr. Williams’ claim in his May 22, 1998 motion that the

district court failed to appoint him counsel. Contrary to Mr. Williams’

contentions, there is no Sixth Amendment right to appointment of counsel in a

civil suit. See MacCuish, 844 F.2d at 735. On this basis, the district court

properly denied Mr. Williams’ request for appointment of counsel in this action.

-10- C. Access to Law Library

Mr. Williams’ claim that the law library at his present facility is inadequate

is raised for the first time on appeal. This court declines to exercise jurisdiction

on an issue not raised nor addressed below. See Singleton v. Wulff, 428 U.S. 106,

120-121 (1976); Walker v. Mather (In re Walker), 959 F.2d 894, 896 (10th Cir.

1992). Nevertheless, we note “a state has no affirmative constitutional obligation

to assist inmates in general civil matters,” other than in habeas corpus actions, or

in civil rights suits regarding the conditions of current confinement. Carper v.

DeLand, 54 F.3d 613, 616-17 (10th Cir. 1995).

D. Equal Protection

Mr. Williams’ general allegation that he is treated differently than other

inmates is raised for the first time on appeal. Moreover, without supporting

evidence, his claim is insufficient to rise to an equal protection claim warranting

our review. See Abbott v. McCotter, 13 F.3d 1439, 1441 (10th Cir. 1994).

E. Other Issues Raised for the First Time on Appeal

With respect to the other issues Mr. Williams raises for the first time on

appeal, we will not address issues not presented to, nor addressed by, the district

-11- court. 5 See Singleton, 428 U.S. at 120-21; In re Walker, 959 F.2d at 896. While

we do not ordinarily consider issues raised for the first time on appeal, we

nevertheless note that the issues raised by Mr. Williams are without merit. See

United States v. Alamillo, 941 F.2d 1085, 1086 (10th Cir. 1991).

E. Motions

In his motion for mandamus, Mr. Williams claims the district court erred by

deciding the summary judgment motion without first allowing him to complete

discovery and reschedule a pretrial telephone conference. We review decisions

relating to discovery for an abuse of discretion. International Surplus Lines Ins.

Co. v. Wyoming Coal Refining Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995). Mr.

Williams’ affidavit, which we treat as a Rule 56(f) affidavit, contains nothing

more than a mere assertion that further discovery is necessary and only raises a

factual dispute as to Officer Lechuga’s attendance at the hearing. A Rule 56(f)

affidavit must also “state with specificity why extra time is needed and how the

additional time and material will rebut the summary judgment motion.” Id. at

905. While the issue of Officer Lechuga’s attendance at the disciplinary hearing

5 The issues include (1) an alleged conflict of interest caused by substitution of the warden’s attorney with a Special Assistant Attorney affiliated with a private law firm, and (2) the proposed conviction of an Assistant United States Attorney (or Special Assistant Attorney General).

-12- is in dispute, both the magistrate judge and district court judge determined the

evidence establishes Officer Lechuga did not see the incident and could not

testify to it. Therefore, neither the magistrate judge nor the district court erred in

ruling on the defendants’ summary judgment motion before completion of

discovery.

With regard to Mr. Williams’ other pending motions, we review Mr.

Williams’ request for recusal or disqualification of the magistrate judge and

district court judge under a plain error standard since Mr. Williams did not move

for, nor file, the necessary affidavit for recusal or disqualification below. See

United States v. Kimball, 73 F.3d 269, 273 (10th Cir. 1995). Even construing Mr.

Williams’ pro se pleadings liberally, his mere conclusions, beliefs, and opinions,

as set forth in his motions, are not sufficient to form a basis for recusal or

disqualification. See Hinman v. Rogers, 831 F.2d 937, 939 (10th Cir. 1987).

Accordingly, Mr. Williams’ motions for mandamus and recusal and

disqualification are denied.

-13- For the foregoing reasons, the summary judgment granted by the United

States District Court for the District of Colorado is AFFIRMED.

Entered by the Court:

WADE BRORBY United States Circuit Judge

-14-