
USCA1 Opinion

	




          June 13, 1995                                [NOT FOR PUBLICATION]                          UNITED STATES OF COURT OF APPEALS                                 FOR THE FIRST CIRUIT                                 ____________________        No.  94-1578                                  BERNARDO FIGUEROA,                                Plaintiff, Appellant,                                          v.                                 GEORGE VOSE, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                  [Hon. Timothy M. Boudewyns U.S. Magistrate Judge]                                             _____________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                         Campbell, Senior Circuit Judge, and                                   ____________________                                Boudin, Circuit Judge.                                        _____________                                 ____________________            Bernardo Figueroa on brief pro se.            _________________            David  J. Gentile, Esq.,  On Memorandum  In Support  of Motion for            ______________________        Summary Disposition for appellees.                                  ____________________                                 ____________________                      Per  Curiam.   Bernardo  Figueroa appeals  from the                      ___________            district  court's decision that  a prison  disciplinary board            did  not violate  his  federal due  process  rights under  42            U.S.C.   1983 when it found him guilty of planning  to murder            Captain  Ronald Brodeur,  a correction  officer.   We affirm.            Since  the facts have been described  in the district court's            opinion, we do not repeat them here except as is necessary to            explain our  affirmance.   We turn immediately  to Figueroa's            contentions on appeal.                      1.  Notice of Time of Disciplinary Hearing                          ______________________________________                      Figueroa claims  that he  was not given  a required            24-hour notice of his  disciplinary hearing and that delivery            of the disciplinary report to him two days before the hearing            was insufficient  notice.  Federal  law does not  require 24-            hour  advance notice of a disciplinary  hearing, however.  It            requires only  that inmates  be given  written notice of  the            charges   against  them   at  least   24  hours   before  the            _______            disciplinary hearing.   See Wolff v. McDonnell, 418 U.S. 539,                                    ___ _____    _________            564  (1974).    This   court  has  said  that   delivering  a            disciplinary report describing the  charges against an inmate            to the inmate meets that requirement.  See Langton v. Berman,                                                   ___ _______    ______            667 F.2d 231,  234 (1st Cir. 1981).  Since  Figueroa does not            dispute that  he received a  copy of the  disciplinary report            describing  the  charge  against  him  two  days  before  the            disciplinary  hearing, the district court correctly concluded            that the notice given to Figueroa satisfied due process.1                      2.  Provision of Interpreter                          ________________________                      Figueroa alleges  that he should have  been given a            Spanish-speaking counselor  to assist him at the disciplinary            hearing  rather  than  an  English-speaking  counselor.    He            acknowledges  that  he  understands English,  except  for  an            occasional  word, but says he does not speak English well and            so could not participate "fully" in the hearing.  (His spoken            English can be hard  to understand, as the hearing  and trial            transcripts show.)  At trial, Figueroa said that he had asked            both Jack Ward, his  English-speaking counselor, and  Captain            Andrew Anderson, the chairman of the disciplinary board,  for            Maria  Pezza's   assistance,  but  was  told   that  she  was                                            ____________________            1.  On appeal, Figueroa appears to claim as well that failure            to provide 24-hour advance notice of the hearing violated the            Morris Rules,  which are regulations governing the discipline            and  classification of  inmates at  the state  facility where            Figueroa is incarcerated and which have the  force and effect            of state  law.  See  Rodi v.  Ventetuolo, 941 F.2d  22, 26-28                            ___  ____     __________            (1st Cir. 1991).  The version of the Morris Rules at issue is            appended to  Morris v.  Travisono, 499  F. Supp.  149 (D.R.I.                         ______     _________            1980).    Figueroa's  state law  claims  are  not before  us.            Although  his  complaint  asserted  both  state  and  federal            claims, in his pre-trial  memorandum Figueroa argued only his            due process  claims, relying on cases  discussing federal due            process.   Without objection by Figueroa,  the district court            issued  a  pre-trial  order   limiting  the  evidence  to  be            presented  at trial to the  federal due process  issues.  The            court's  decision  resolved  only  the  federal  due  process            claims.  Since the  court never asserted pendent jurisdiction            over Figueroa's state  law claims and  did not resolve  those            claims,  Figueroa remains free to bring  his state law claims            in state court if not otherwise barred from doing so by state            law, e.g., by any applicable statute of limitations.                                         -3-            unavailable.2    Figueroa wanted  her  to assist  him  at the            hearing because she could explain words he did not understand            and she would have "defend[ed]" him.                        We  agree  with  the  district court  that  no  due            process violation occurred here.   In part, Figueroa seems to            have  hoped that  Pezza  could have  presented his  case more            persuasively to the disciplinary board than he did.  In other            words,  Pezza would have been  useful to him  as an advocate.            In Wolff, the Supreme Court  held that inmates do not have  a               _____            right  to counsel  in disciplinary  proceedings, 418  U.S. at            570, a  position it  confirmed in Baxter  v. Palmigiano,  425                                              ______     __________            U.S. 308,  315 (1976).   The  Court suggested,  however, that            illiterate inmates  or inmates  with complex cases  should be            able to "seek  the aid of a  fellow inmate, or . .  . to have            adequate substitute aid in the form of help from the  staff .            .  . ."  See Wolff, 418  U.S. at 570.  Assuming that Figueroa                     ___ _____            should have been treated as  an illiterate inmate, any  right            that  he may  have had  to staff  assistance under  Wolff was                                                                _____            satisfied when Ward was  assigned to help him.   In addition,            nothing  in  the  record  suggests  that  any  deficiency  in                                            ____________________            2.  The  district  court  apparently  discredited  Figueroa's            testimony at trial that he had asked for Pezza's  assistance,            relying on  the transcript of the  disciplinary hearing which            did not  record any  such request.   Anderson  testified that            Figueroa had never asked him for a Spanish-speaking counselor            or interpreter  and that he  would have  readily granted  any            such request.   However, Figueroa testified that he  had also            asked Ward for Pezza's assistance.                                         -4-            Figueroa's  English  adversely   affected  the   disciplinary            proceedings.   As  the  transcript of  the hearing  confirms,            Figueroa  understands  spoken  English.    Despite  sometimes            unclear  syntax,  he  can  also make  himself  understood  in            English.   At the hearing, he denied his guilt, explained why            he wanted  to call Captain  Brodeur as a  witness, challenged            his  lack of access to  confidential reports, and denied that            he had been  working in  the prison kitchen  at the time  the            alleged  murder   weapon  disappeared.     Furthermore,  Ward            appeared with him at the hearing and, according to Figueroa's            post-trial brief, participated  in questioning  Investigating            Officer Joseph Forgue.3  Figueroa  presented his own case and            the transcript does  not reflect that  he ever sought  Ward's            aid  in   making  his  presentation.4     Moreover,  Figueroa            testified  that Anderson and Ward had told him that Pezza was            unavailable, but does not  allege any unconditional denial of            the assistance of a Spanish-speaking counselor.  Although his                                            ____________________            3.  Ward's  participation is  not  evident  from the  hearing            transcript  which  apparently   incorrectly  attributes   his            questions to disciplinary board members.            4.  At trial, Figueroa stated  that Ward had been of  no help            to him, but he  does not suggest that Ward's  alleged failure            to help him is actionable under section 1983.   In any event,            because there is no right  to counsel at prison  disciplinary            hearings,  an inmate  has  no cause  of  action for  a  staff            assistant's allegedly ineffective assistance.   See Bostic v.                                                            ___ ______            Carlson, 884  F.2d 1267,  1274 (9th  Cir. 1989);  Harrison v.            _______                                           ________            Seay,  856 F. Supp. 1275, 1281 (W.D. Tenn. 1994); cf. Coleman            ____                                              ___ _______            v.  Thompson, 501 U.S. 722, 755 (1991) (because an inmate has                ________            no right to counsel to collaterally attack his conviction, he            has no claim for ineffective assistance of such counsel).                                           -5-            testimony  may suggest that he  was told to  proceed with the            hearing or  to  proceed  with  Ward  as  his  counselor,5  he            apparently did not actually  ask prison officials to postpone            his hearing until Pezza was available.  Anderson testified at            trial  that he had never  denied any inmate  the counselor of            his choice and that he had postponed hearings if the inmate's            preferred  counselor was  absent.   We  therefore affirm  the            district  court's  determination  that  defendants   did  not            violate Figueroa's constitutional rights by not  appointing a            Spanish-speaking counselor  or interpreter to aid  him at the            hearing.                      3.  Denial of Witnesses                          ___________________                      According   to  Figueroa,   he  should   have  been            permitted to  call as  witnesses at his  disciplinary hearing            Captain  Brodeur, the  correction officer  Figueroa allegedly            intended  to  murder;  an  Officer  Fletcher, who  apparently            investigated  the alleged  murder  plot and/or  prepared  the            disciplinary  report against Figueroa; and two inmates, Larry            Botton (also given as  Boton or Baton in the record) and Gary            Ortiz.  At  the hearing,  Figueroa stated that  he wanted  to            call  Brodeur to  confirm  that he  and  Brodeur had  had  no            problems  with each other.  On appeal, Figueroa says that, if                                            ____________________            5.  Figueroa  testified  as  follows:     "I  ask  [Ward  and            Anderson] if  I can have Spanish  counsellor, specific, Maria            Pezza.   I was told  that Maria Pezza  was embarcation at the            time, [inaudible].  I have to proceed."                                         -6-            Fletcher, Botton and Ortiz had appeared at the hearing, their            "testimony  could  have  brought  forth  new or  previous[ly]            unsolicited facts."                        At the  disciplinary hearing  and  again at  trial,            Captain  Anderson, the  chairman of  the  disciplinary board,            explained the board's determination that testimony by Brodeur            about his  relationship with Figueroa would  not be relevant.            Although lack  of animosity  might normally seem  relevant in            determining whether one individual might be motivated to kill            another,  Officer Joseph  Forgue,  who had  investigated  the            charge against  Figueroa, explained at the  hearing that such            evidence would  be irrelevant in Figueroa's  case.  According            to Forgue, it was "well known" in the prison that there was a            "contract" on Brodeur's life and that confidential informants            had reported  that Figueroa had "pick[ed]  up" that contract.            For that reason,  an inmate would not "have to have a problem            with  someone to stick  them.  That's  irrelevant whether you            had a problem with  them or not."  Given  Forgue's statement,            the board did not abuse its discretion in not calling Brodeur            as a  witness.   See  Smith  v. Massachusetts  Department  of                             ___  _____     _____________________________            Correction,  936   F.2d  1390,  1399-1400  (1st   Cir.  1991)            __________            (applying   abuse   of  discretion   standard   in  reviewing            disciplinary  board's  failure  to  call  inmate  witnesses);            Turner  v. Caspari,  38 F.3d  388, 391,  392 (8th  Cir. 1994)            ______     _______            (noting that prison disciplinary boards have great discretion                                         -7-            to decline to call inmate witnesses  whose testimony would be            irrelevant or unnecessary).6                      Nor is there merit in Figueroa's claims  respecting            Botton and Ortiz.  The transcript of the disciplinary hearing            shows  that  he  never  asked  the  board  to  call  them  as            witnesses, and so the board obviously did not violate his due            process  rights in not calling  them.  See  Harrison v. Seay,                                                   ___  ________    ____            856 F. Supp. 1275, 1281 (W.D. Tenn. 1994).7                        On appeal, Figueroa alleges that Officer Fletcher's            testimony  "could  have  brought  forth  new  or previous[ly]            unsolicited  facts."8    The  record indicates  that Figueroa                                            ____________________            6.  Brodeur's testimony would  also have been cumulative  and            was  unnecessary for that  reason.   Figueroa told  the board            that  he had had no problems with Brodeur, and Forgue agreed,            telling the board that Figueroa had no motive to kill Brodeur            that  he knew  of and  that,  as Figueroa  had  said, he  and            Brodeur did not appear to have problems with each other.              7.  In his pre-trial  memorandum, Figueroa told the  district            court that Botton  would testify at  trial that Figueroa  had            been  "set up" by a correction officer and another inmate and            that Ortiz would testify that an Officer  Martinez and inmate            Armando Perez had plotted to set  him up.  The district court            would not  let Botton  and Ortiz testify,  ruling, correctly,            that the question  before the court was  not whether Figueroa            was  actually innocent of the charge against him.  On appeal,            Figueroa appears to have abandoned the claim that  Botton and            Ortiz would have testified that he had been set up.            8.  In  his  post-trial   memorandum,  Figueroa  stated  that            Fletcher was the original investigating officer, that another            inmate had been under  investigation, and that Fletcher would            testify  that Figueroa was the "wrong man."  In his pre-trial            memorandum,  however,  Figueroa  had  shown  no  interest  in            calling  Fletcher  as  a  witness,  proffering   instead  the            distinctly  different  theory  described above  that  another            inmate and a correction  officer had set him up.   On appeal,            he has obviously abandoned his claim that Fletcher would have                                         -8-            had told the board that Fletcher would either offer favorable            character testimony or would corroborate  Figueroa's trouble-            free relationship with Brodeur.  The disciplinary  transcript            indicates that  Figueroa told  the board that  Fletcher would            testify that Figueroa was "not of that type of character" and            that  the board  regarded  his testimony  to be  irrelevant.9            According to  Anderson's trial  testimony, Figueroa  had said            that Fletcher would testify that Figueroa and Brodeur had not            had   any   problems   with   each  other.10      Under   the            circumstances, the court did  not err in concluding  that the            board had  not  violated due  process  by declining  to  call            Fletcher  as a  witness.   As  noted  above, testimony  about            Figueroa's  relationship  with  Brodeur  was  irrelevant  and            unnecessary.   In  addition, without  further specifics,  the            simple  testimony that Figueroa was not  the "type" of person                                            ____________________            testified that  a different inmate than  Figueroa had plotted            to murder Brodeur.             9.  The disciplinary hearing  transcript shows that  Figueroa            asked to call Fletcher as a witness, but  does not record any            discussion of  the substance  of Fletcher's testimony.   That            discussion  apparently occurred,  however.    The  transcript            indicates that Figueroa assented to Anderson's statement that            "you  request .  .  . Officer  Fletcher to  come  up here  to            testify  that you're not of  that type of  character" and his            explanation that  the proposed testimony was  irrelevant.  In            addition,  in  his  appellate statement  of  facts,  Figueroa            states  that he  told  the  board  that Fletcher  would  have            testified  that  he was  not the  "type  of person  who would            commit the act alleged."              10.  Although Figueroa  objected to Anderson's  statement, he            did  not explain his basis  for disagreeing and  did not tell            the court that Fletcher would have given different testimony.                                         -9-            to  commit murder  would not  have impugned  the confidential            informants'  clear identification of  Figueroa as  the inmate            who planned to  kill Brodeur.   See Graham  v. Baughman,  772                                            ___ ______     ________            F.2d  441, 445 (8th Cir.  1985) (prison officials  who had to            determine whether an inmate had started a fire outside of his            cell  were well  within their  discretion in  concluding that            character evidence was either irrelevant or unnecessary).                      4.  Sufficiency of Evidence and Related Claims                          __________________________________________                      Figueroa  claimed below  that the  board's decision            was  not supported  by  substantial evidence.   The  district            court  concluded  that its  task  in  a  section 1983  action            alleging a violation of federal  due process was to determine            whether  "some  evidence"  supported  the  board's  decision,            citing Superintendent, Massachusetts Correctional Institution                   ______________________________________________________            v. Hill, 472  U.S. 445 (1985).   In Hill,  the Supreme  Court               ____                             ____            held that federal due process is satisfied if "some evidence"            in the record supports a disciplinary decision, defining that            term to mean "any  evidence in the record that  could support            the conclusion reached  by the disciplinary  board."  Id.  at                                                                  ___            455-56.  Using  that standard, the district court  found that            "some  evidence"  supported  the  board's  decision,  and  we            agree.11   We  also  agree  with  the  court  that  the  Hill                                                                     ____                                            ____________________            11.  The  district court  cited  the following  facts:   that            different informants, who had had no contact with each other,            had  identified  Figueroa  as  the  inmate  who  was to  stab            Brodeur;  that each informant's  information corroborated the            information  proffered  by  the  other  informant;  that  the                                         -10-            standard describes the relevant federal  due process standard            even   though  state  law   imposes  a  stricter  evidentiary            standard.12   See id.  at 456  ("We decline  to adopt  a more                          ___ ___            stringent   evidentiary  standard  [than  the  some  evidence            standard]  as a  constitutional requirement.");  see  Goff v.                                                             ___  ____            Dailey, 991 F.2d 1437, 1441 n.9 (8th Cir.) (state regulations            ______            may provide  more protection  than the  federal Constitution,            but  cannot  raise  the  standard of  due  process  under the            Constitution), cert. denied, 114  S. Ct. 564 (1993); but  see                           ____________                          ___  ___            Brown v. Fauver, 819  F.2d 395, 399 n.4 (3d  Cir. 1987) (Hill            _____    ______                                          ____            did   not  establish  whether  the  Constitution  requires  a            particular burden of proof  in disciplinary proceedings,  but            spoke only to appellate review standards).                        In connection  with his  argument that  the board's            decision was not supported by  substantial evidence, Figueroa            asserts  two additional  claims, which  we consider  in turn.            First, he complains that neither  he nor his counselor,  Jack            Ward, had access to a confidential investigative report based            on information  provided by  unidentified informants "as  did                                            ____________________            informants  had  personal knowledge  of  the  matter and  had            provided  accurate information  in the  past; that  there was            evidence that  the informants were credible;  that the weapon            the  informants claimed Figueroa  intended to  use --  a soup            ladle  honed to  a knife  blade --  had disappeared  from the            kitchen when  Figueroa worked  in the kitchen;  and, finally,            that  Figueroa had  offered  no rebuttal  information or  any            exonerating evidence.              12.  Accordingly,  we  do  not  decide   whether  substantial            evidence in the record supported the board's decision.                                         -11-            the disciplinary board."   Figueroa recognizes that  granting            him access  to the  confidential report "could  have violated            institutional security  and other investigations."13   But he            claims that Ward could have reviewed the report and  inquired            into the informants' mutual corroboration, personal knowledge            of the matter, and  reliability.  His point seems to  be that            Ward   might   have  uncovered   evidence   discrediting  the            informants or their information,  so that Ward's inability to            see  the  report not  only  violated  Figueroa's due  process            rights,  but should  also  preclude the  district court  from            considering  evidence deriving  from the  report.   Under the            circumstances  present  here, we  disagree.    First, as  the            chairman of  the disciplinary  board testified at  trial, the            board  did not  rely on  the confidential  report in  finding            Figueroa guilty; it did  not even see that report.   Although                                            ____________________            13.  Therefore,  Figueroa is  apparently not  challenging the            district  court's finding that he was not entitled to see the                                           __            confidential report which apparently  identified at least one            of  the inmates who had reported that Figueroa had planned to            kill  Brodeur.  It is  well established that  inmates have no            federal  due process  right  to obtain  evidence which  could            identify confidential informants.   See,  e.g., Langton,  667                                                __________  _______            F.2d at 235 (rejecting an inmate's contention that he had the            right to cross-examine a confidential informant or review the            informant's  statement because  Wolff  left  such matters  to                                            _____            prison officials'  discretion); Mendoza v.  Miller, 779  F.2d                                            _______     ______            1287,  1294 (7th Cir.  1985) (stating that  Wolff and Seventh                                                        _____            Circuit cases establish  "unequivocally" that an  inmate does            not  have a due process right to  be informed of the identity            of  confidential  informants),  cert. denied,  476  U.S. 1142                                            ____________            (1986);  Zimmerlee  v. Keeney,  831 F.2d  183, 186  (9th Cir.                     _________     ______            1987)  ("Due process  does  not require  that an  informant's            identity  be revealed to an inmate."), cert. denied, 487 U.S.                                                   ____________            1207 (1988).                                          -12-            the  report  had  been  attached to  Figueroa's  disciplinary            report at one time,  it had been removed before  the hearing.            Instead,  the   board  relied  solely   on  Officer  Forgue's            statements   at  the   hearing  describing  the   nature  and            reliability of  the informants'  information.  (According  to            Anderson's trial testimony,  Forgue authored the confidential            report).   Figueroa was present  at the hearing and obviously            knew  what Forgue had said.   Accordingly, he  was in exactly            the  same position as the  board in terms  of his familiarity            with the evidence  against him.   Figueroa  was permitted  to            speak freely during the  hearing and had the right  to cross-            examine Forgue.  See  Morris v. Travisono, 499 F.  Supp. 149,                             ___  ______    _________            169 (D.R.I.  1980) (Disciplinary  Procedures,   III.C.4:   An            inmate  has  "the  right  to  call  a  reasonable  number  of            witnesses,  both  adverse  and  favorable  and  examine  said            witnesses.").   At no  time during  the hearing did  Figueroa            attempt to question Forgue about the confidential informants'            information,  reliability,  or   personal  knowledge  of  the            matter.  Second, Figueroa  never asked the disciplinary board            to  let  Ward review  the  confidential  report,  nor did  he            present  that issue  to the  district court.14   Accordingly,            this issue is not  even properly before us.   Finally, prison            officials have  no general federal due  process obligation to                                            ____________________            14.  In  his pre-trial memorandum, he argued only that he had            the right to see the report.                                         -13-            disclose  confidential reports  to  staff  members  assisting            inmates  charged with disciplinary  infractions.  See Mendoza                                                              ___ _______            v.  Miller, 779 F.2d 1287, 1298 (7th Cir. 1985) (declining to                ______            adopt a  general rule that inmate counsel  should have access            to  confidential investigative  reports used  in disciplinary            hearings),  cert. denied,  476 U.S.  1142 (1986);  Freitas v.                        ____________                           _______            Auger,  837 F.2d 806, 810  n.7 (8th Cir.  1988) (rejecting an            _____            inmate's  contention  that   the  court   should  have   made            confidential reports  available to him or  his attorney after            the informants  were transferred to a  different prison); see                                                                      ___            also  Wagner v. Williford,  804 F.2d 1012,  1017-18 (7th Cir.            ____  ______    _________            1986),  and on appeal after remand Wagner v. Henman, 902 F.2d                    __________________________ ______    ______            578,  581 (7th Cir. 1990)  (both confirming that  there is no            "general  rule"  in  the Seventh  Circuit  that  confidential            reports may  be disclosed to inmates'  counsel and describing            the circumstances under which  a "limited release of redacted            material information" to counsel might be possible); White v.                                                                 _____            Nix, 43 F.3d 374,  378 (8th Cir. 1994) (concluding  that case            ___            law  concerning the  discovery of  confidential investigative            files  during prison  disciplinary hearings  "uniformly" sets            certain conditions  on an  inmate's counsel's access  to such            files).                      Next,  Figueroa  challenges  the  district  court's            reliance on  evidence that the  intended murder weapon  was a            sharpened soup  ladle which  had disappeared from  the prison                                         -14-            kitchen  at  the  time  Figueroa  worked  there.15    At  the            hearing, Officer  Forgue  told the  board  that  confidential            informants had  reported that the  murder weapon was  a honed            soup ladle.  He also reported that Figueroa had worked in the            kitchen  at  the time  the  ladle  disappeared.   On  appeal,            Figueroa denies that he  ever worked in the kitchen  and that            he ever had access  to the soup  ladle.  At the  disciplinary            hearing, however, Figueroa acknowledged that he had worked in            the kitchen.  He also indicated that he had heard that a soup            ladle was missing, but denied that he had been working in the            kitchen at  the  time  the  ladle  disappeared.    Thus,  the            undisputed evidence  before the  board was that  Figueroa had            worked  in the kitchen and that a  soup ladle was missing.  A            controversy   existed  on  the   important  question  whether            Figueroa  had worked  in the  kitchen at  the time  the ladle            disappeared.  On that  point, the board obviously discredited            Figueroa,  choosing  to  believe  the  results  of   Forgue's            investigation.   On review, neither we nor the district court            may  revisit the  board's decision  not to  credit Figueroa's            testimony.   Cf.  Hill, 472  U.S. at  455 (indicating  that a                         ___  ____            disciplinary  board's factual  findings  are  not subject  to            "second-guessing"  upon  review, nor  is the  reviewing court            required to independently assess the credibility of witnesses                                            ____________________            15.  As  of the date of  the hearing, the  alleged weapon had            not been found.                                         -15-            or  weigh the evidence); Turner v. Scroggy, 831 F.2d 135, 140                                     ______    _______            (6th Cir.  1987) ("it is not our task nor the magistrate's to            substitute   credibility   determinations  contrary   to  the            [disciplinary]   committee's  ultimate   finding")  (majority            opinion); Harrison, 856 F. Supp. at 1280 ("Reexamination of a                      ________            prison disciplinary board's credibility choices is beyond the            scope of federal court  review of disciplinary proceedings.")            (citing Turner v. Scroggy).                      ______    _______                                         -16-                      5.  Remaining Claims                          ________________                      Figueroa  complains that defendants  failed to give            him a copy  of the  disciplinary hearing tape  in advance  of            trial as ordered  by the  district court.   Figueroa did  not            bring that fact to the court's attention until the day of the            trial.    When he  did so,  the court  recessed the  trial to            permit the parties to listen to the tape.  After the  parties            had listened to the  tape, the court asked Figueroa if he was            ready  to proceed.   Figueroa said that he  was and the trial            was   conducted   without   any   subsequent   objection   by            Figueroa.16   The  trial transcript  shows that  Figueroa was            familiar with  the contents of the  disciplinary hearing tape            and knew what  had gone on  at the hearing.   Nothing in  the            transcript suggests that his inability  to listen to the tape            in  advance had  prejudiced his  presentation of  evidence at            trial.  Under those circumstances, his claim is meritless.                        In an  "Addendum" to his  appellate brief, Figueroa            claims that Officer Forgue  sat on the disciplinary board  in            violation  of the Morris Rules.  See Morris v. Travisono, 499                                             ___ ______    _________            F.  Supp.  at 169  (Disciplinary  Procedures,    III.B:  "Any                                            ____________________            16.  In his post-trial memorandum, Figueroa alleged only that            the transcription of the tape did not accurately reflect  the            tape  of  the   hearing.     He  did  not   argue  that   any            mistranscription  had  caused  the court  to  misconstrue any            critical fact, however, but only that  responses of his which            were transcribed  as inaudible  "could have been  a response"            asking for  an  interpreter or  indicating  that he  did  not            understand the proceedings.                                           -17-            officer who initiates a  violation report or who investigates            and reviews  the initiating officer's report  is not eligible            to sit on the disciplinary board  to hear that case.").  This            claim, which  is apparently based on an  inadvertent error in            the  district  court's  description  of the  facts,  was  not            presented below and is clearly refuted by the record.                      Affirmed.                      _________                                         -18-
