
USCA1 Opinion

	




        December 30, 1992       [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1429                                   LLOYD MATTHEWS,                                 Plaintiff-Appellant,                                          v.                                 PAUL RAKIEY, ET AL.,                                Defendants-Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. A. David Mazzone, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                               Torruella, Cyr and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            Lloyd Matthews on brief pro se.            ______________            Nancy  Ankers  White,  Special  Assistant  Attorney  General,  and            ____________________        Robert G. Brown,  Counsel, Department of Correction, on  Memorandum of        _______________        Law in Support of Their Motion for Summary Disposition, for appellees.                                 ____________________                                 ____________________                 Per  Curiam.   In  1989,  Lloyd Matthews,  an  inmate at                 ___________            Massachusetts  Correctional  Institution  -  Cedar  Junction,            filed a complaint,  pursuant to  42 U.S.C.    1983 and  state            law,  followed by  two amendments  to the  complaint, against            numerous prison  officials, alleging, inter alia, due process            violations   with   respect   to  several   separate   prison            disciplinary proceedings.  The district court granted summary            judgment  in the defendants' favor on these claims on May 29,            1990.1  We affirm, in part, and vacate and remand, in part.                 The district court wrote a 16 page memorandum and order,            in which it detailed the factual underpinnings of the various            disciplinary charges against Matthews  and the rationale  for            its ruling.   Except for its  grant of summary  judgment as a            matter of law  to the prison disciplinary  board with respect            to  the  board's  refusal  to  grant  Matthews  access  to  a            videotape  of events  of  November 3,  1989,  or to  view  it            itself, we  affirm the court's ruling of May 29th.  We see no            need  to  replicate the  expressed  rationale  with which  we            agree.  We write  only to explain our disagreement  with this            one aspect of  the court's  ruling and to  elaborate on  some                                            ____________________            1.  At the  same time, the  court denied summary  judgment on            other  claims  of  excessive  force  and  inadequate  medical            treatment,  related  to  the  episodes giving  rise  to,  but            distinct from,  the claims anent  the procedures used  in the            disciplinary proceedings.   These  related claims were  later            tried  to a jury and returned in  Matthews' favor.  As  such,            they form no part of Matthews' present appeal.  Our review is            solely focused on the court's ruling vis-a-vis the conduct of            the disciplinary proceedings.                                         -2-            other  aspects, which,  his brief  reveals, Matthews  has not            understood.   We recite here only the facts necessary to give            context  to  those  claims  we  have  felt  required  further            comment.            Disciplinary Report No. 89-2221            Disciplinary Report No. 89-2221            _______________________________                 In Matthews' view, he should not have been placed in the            Awaiting  Action Unit  (AAU) on  August 16,  1989,  while his            rehearing on Disciplinary  Report No. 89-2221 (possession  of            marijuana  and  a  weapon) was  pending.    He  suggests this            violates Mass. Regs. Code tit. 103,   421.07(2) (1986), which            says   that  an  inmate  shall  not  be  transferred  to  the            Departmental Segregation Unit (DSU) for committing a specific            punishable  offense unless  a  disciplinary  board has  first            found him guilty of  that offense and imposed a  sanction and            the  commissioner   has  found   that  the  inmate   poses  a            substantial  threat (a)  to the  safety of  others or  (b) of            damaging or  destroying property  or (c) of  interrupting the            operation of the  prison if  he is confined  in the  prison's            general  population.  See also Parenti v. Ponte, 727 F.2d 21,                                  ________ _______    _____            24-25 (1st Cir. 1984) (holding that this regulation creates a            liberty interest).   He says  that, because his  rehearing on            Disciplinary Report  No. 89-2221 was still  pending in August            (and, therefore, the commissioner  had not made the necessary            finding), he could not be transferred to the DSU on the basis            of that pending report.                                         -3-                 The short answer is that Matthews was not transferred to                                                       ___            the DSU prior to the rehearing of Disciplinary Report No. 89-                ___            2221.   He was not  returned to  the DSU until  September 15,            1989, after the  rehearing took place.   Between August  16th                  _____            and September 15th,  he was held in  the AAU, which  is "[a]n            area  ... designated by a superintendent  in which a resident            may  be confined pending a  hearing to determine whether such            resident shall be  transferred to a departmental  segregation            unit."  Mass. Reg. Code tit. 103,   421.06(1) (1986).  And,              430.21(1) (1987) provided:                      At the discretion  of the  Superintendent                      or his/her designee,  and subject to  any                      applicable review requirements, an inmate                      who is under investigation for a possible                      disciplinary  offense,  or  who has  been                      charged  with   or  found  guilty   of  a                      disciplinary  offense,  may be  placed on                      awaiting action status at the institution                      where  he/she  is  then confined.    Such                      status   may  include   more  restrictive                      confinement as deemed appropriate  by the                      Superintendent or his/her designee.                 Furthermore,  Matthews  had  been   mistakenly  released            prematurely from the DSU  on August 11, 1989, when,  in fact,            his placement in the DSU as  a result of an attempted assault            on the prison law librarian (Disciplinary Report No. 88-4510)            had   been  extended   to  January   1990.2     Granted,  the                                            ____________________            2.  Matthews was  mistakenly released from the  DSU on August            11th,  before   the  proper  officials  were   aware  of  the            commissioner's decision to extend Matthews' DSU  placement an            additional 6  months because  of Disciplinary Report  No. 89-            2221.   The commissioner may reject the recommendation of the            department  review  board and  set  a  proposed release  date                                         -4-            commissioner  had  extended Matthews'  expected  release date                               ________            from his  DSU  placement for  the  attempted assault  for  an            additional  6  months because  of  the  marijuana and  weapon            incident.   But, the DSU  placement did not  occur because of                                      _________                _______            that later incident.   And, as noted, a release date from the            DSU  is  a  projection   only,  which  the  commissioner  may            condition  on,  for  example,  the  absence  of  disciplinary            reports.  Mass. Regs. Code tit. 103,   421.08(2) (1986).3                 Matthews' rehearing  on Disciplinary Report  No. 89-2221            was  held on September 13,  1989.  Matthews  alleged that the            124 days between  the May 12th marijuana and  weapon incident            and the September 13th  rehearing violated the requirement of            Mass. Regs. Code tit. 103,   430.11(2) (1987) that "a hearing            before  the  disciplinary  board"   be  scheduled  "within  a            reasonable time."                 Again, the short answer reveals the fallacy of Matthews'            premise.   Matthews  received his  hearing regarding  the May                                            ____________________            dependent  on conditions of his  own, such as  the absence of            disciplinary reports.  Mass. Regs. Code tit. 103,   421.08(2)            (1986).            3.  We also note that on August 12th, the day after Matthews'            mistaken  release from the DSU,  he was involved  in a fight.            This fact may also have played  a part in his placement on AA            status on August 16th.   See Smith v. Massachusetts  Dep't of                                     ___ _____    _______________________            Correction, 936 F.2d 1390, 1397 (1st Cir. 1991) (where one of            __________            the requisite substantive predicates for placing an inmate on            AA status was  present, there was no  due process violation);            Mass.  Regs.  Code  tit.  103,     430.21(1)  (1987)  (prison            official  has discretion  to  place an  inmate, who  is under            investigation  for a  possible  disciplinary offense,  on  AA            status).                                         -5-            12th  incident on  May 18th,  certainly "within  a reasonable            time"  as contemplated by   430.11(2).  On September 13th, he            received a "rehearing" pursuant to his administrative  appeal            and  the administrative  regulations do  not provide  for any            time constraints within which a rehearing must be held.4                                            ____________________            4.  Moreover,   430.23 (1987) provided that "[a]ll procedural            time  limits set  forth in  these  rules and  regulations are            directory  and may  be waived  by the  Superintendent  or the            Commissioner or their designees."                 In any event, according to  Matthews, the request for  a            rehearing was  granted on  June  24th and,  according to  the            rehearing report, the rehearing  was delayed until  September            13th  because  of  three  continuances:  the  first,  because            Matthews  had requested  legal  representation,  the  second,            because the reporting officer was on vacation, and the third,            because  of "rescheduling."   "The  Disciplinary Officer  may            continue  a hearing at his/her  discretion."  Mass. Reg. Code            tit. 103,    430.11(2)  (1987).   The continuances  appear to            have  been  both  authorized  and legitimate.    Even  were a            rehearing required to be heard "within a reasonable time," no            _________            flagrant violation is apparent.                 And, in any event, we are unpersuaded by Matthews' claim            of  prejudice  from the  delay due  to the  unavailability of            witnesses.   In  particular, with  respect to  Officer Bruce,            Matthews suggests that his  field drug analysis report should            not  have   been  accepted.    Matthews   cites  Wightman  v.                                                             ________            Superintendent,  Massachusetts  Correctional Inst.,  19 Mass.            __________________________________________________            App.  Ct. 442  (1985),  in which  the  court ruled  that  the            unsworn statement  of the reporting officer that  he found in            the  inmate's possession  an  "unknown"  substance which  the            officer  "believed"  to be  angel  dust  was an  insufficient            ground for the board's finding of guilt.  By contrast, in the            present case, Officer Bruce provided a report which stated:                      On  May 12,  1989 this  Reporting Officer                      conducted a  drug field test  on four (4)                      rolled cigarettes confiscated from inmate                      Lloyd Matthews.                      The  cigarettes  were  found  to  contain                      Marijuana  and  its  Resin  -  a Class  D                      Controlled  Substance  under 94C  Sec. 31                      MGL.                                         -6-            Disciplinary Reports Nos. 90-192, 90-206, 90-208, 90-233            Disciplinary Reports Nos. 90-192, 90-206, 90-208, 90-233            ________________________________________________________                 Contrary  to Matthews' contention,  the board's findings            of guilt on these reports were not constitutionally defective            because, in each case, the board relied on the report  of the            reporting officer without other corroborating evidence.  Most            of  the cases  cited  by Matthews  involve instances  where a            disciplinary  board merely incorporated a reporting officer's            report,   and   instances   where,   in  addition   to   mere            incorporation, the report, in  turn, contained a mere recital            of the  reporting officer's conclusion  that an  unidentified            informant was reliable.   Some courts have determined  that a            board's finding of  guilt is defective in  these instances on            two grounds: a) because a  statement such as - "Based  on the            reporting officer's report, we find the inmate guilty" - does            not  specify the  evidence  upon which  the  board relied  in            finding guilt5 and b)  there is no indication that  the board                                            ____________________            The  board is not bound by courtroom rules of evidence, Mass.            Regs. Code tit. 103,   430.13(3) (1987), and the instant case            is  distinguishable  from  Wightman  such  that  the  board's                                       ________            acceptance of Bruce's  report despite his  unavailability for            questioning by Matthews was permissible.            5.  Courts rely on  the teaching of  Wolff v. McDonnell,  418                                                 _____    _________            U.S. 539, 563 (1974), that due process requires,  inter alia,            "a  written statement of  the factfinders as  to the evidence            relied upon."                                         -7-            made  its  own independent  determination of  the informant's            credibility.6                 By contrast,  the board's  findings in each  instance in            this case reflected no  such shortcomings.  First of  all, no            informant information  was involved in any  of the incidents.            Each disciplinary  report reflected an eyewitness  account of            the reporting  officer.  Second, although  the board's report            of the disciplinary hearing indicated, in each instance, that            the  "Board  based  guilt  on  the  eyewitness  testimony  as            recorded  in  the  officer[']s  report,"  that  "STATEMENT OF            EVIDENCE RELIED  UPON TO SUPPORT FINDING,  also specified, in            each  instance, the  evidence  in each  report  that, in  the            board's view, sufficed for a guilty finding.7                                            ____________________            6.  See,  e.g., Nelson  v.  Commissioner of  Correction,  390                __________  ______      ___________________________            Mass. 379, 393 (1983)                      The reliance  by a disciplinary  board on                      the secondary information of  a reporting                      officer without any  primary evidence  of                      guilt being presented to the board, is to                      compound the prospect for abuse.  To rely                      on such secondary  information is  simply                      to "rubberstamp"  the disciplinary report                      and to delegate the decisionmaking to the                      reporting or investigating officer.            (Citation omitted).            7.  The  findings of  the board,  in each  instance, complied            with regulatory, as well as constitutional, requirements.                 "If a guilty  finding is reached,  the disciplinary                 board shall  prepare a written  decision containing                 the following:                      (a)  A description of the evidence relied upon                           in reaching the guilty finding;"            Mass. Regs. Code tit. 103,   430.17(1) (1987).                                         -8-                 Disciplinary  Report  No.  90-206: "Report  clearly                 indicates  that  R/O  [reporting officer]  observed                 subject throw the meal tray against the unit wall."                 Disciplinary  Report  No.  90-192: "Report  clearly                 indicates that R/O positively identified subject as                 the  one who  was encouraging  a work  stoppage and                 unauthorized group demonstration."                 Disciplinary  Report  No.  90-208: "Report  clearly                 indicates  that   subject  was  insolent   to  R/O,                 disruptive in  the unit, and  verbally abusive  and                 threatening to the R/O."                 Disciplinary  Report  No.  90-233: "Report  clearly                 indicates  that R/O  observed subject  threaten the                 block  workers, encourage  other inmates  to follow                 his lead, resulting in Inmate Matthews assaulting a                 block worker, by throwing human feces on him."                 Matthews  has also cited and attached, as an addendum to            his  brief,  three  unpublished   memoranda  and  orders   of            Massachusetts superior  court judges  - Stokes v.  Ponte, No.                                                    ______     _____            90-463 (Mar. 21, 1990) (Zobel,  J.); Greenwood v. Rakiey, No.                                                 _________    ______            90-4154  (Jul. 17, 1990) (Bohn, J.);  and Colantonio v. Vose,                                                      __________    ____            No. 90-4684  (Jul. 30,  1991) (White,  J.).  These  decisions            held that,  when an  inmate disputes the  reporting officer's            account  of  events,  a  disciplinary  board  cannot  find  a            reporting  officer's  written  report more  credible  than an            inmate's  live testimony,  in  the absence  of the  reporting            officer's own live testimony.  They conclude that, in sifting                                            ____________________                 "The evidence  relied upon  for the guilty  finding                 and the reasons for  the sanction shall be  set out                 in specific terms."            Mass. Regs. Code tit. 103,   430.17(2) (1987).                                         -9-            through contradictory testimony, a factfinder must assess the            credibility  of the witnesses, which it cannot do without the            live presence of the witness.                 We pass  the question of the  persuasive weight accorded            unpublished  superior court  memoranda  and orders.   In  any            event,  in these decisions the inmates  had testified and the            board had to weigh the credibility of the reporting officers'            written statements versus the inmates' live testimony.                 In  Matthews' case,  however, he  pled not  guilty, then            expressly declined  to provide  any statement in  his behalf.            Each  of the relevant  hearing reports states  in the section            for SUMMARY OF INMATE TESTIMONY:                      States  to prior  experience with  the D-                      Board -  and he feels  that his testimony                      is not always recorded properly - and for                      that reason he has no statement.            In  view of his failure  to testify, this  is not a situation            where  the board then had  to assess the  credibility of live            testimony versus  written statements.  His  apparent distrust            of  the accuracy of the recordation of his testimony does not            alter that.                 Matthews  would  have it  that  in  instances where  the            evidence consists of an  accusation by a correctional officer            based on personal observation and a bare "not guilty" plea by            an  inmate,  the board  could not  find  guilt, based  on the            written  eyewitness account,  in the  absence of  independent            corroborating  evidence.   That  is not  the  holding of  the                                         -10-            caselaw he  has cited and  not the holding of  the caselaw we            have found.   See,  e.g., McLellan v.  Acting Superintendent,                          __________  ________     ______________________            M.C.I., Cedar  Junction, 29  Mass. App.  Ct. 122,  125 (1990)            _______________________            ("[T]he  disciplinary report of Officer Belisle recounted his            direct observation of the plaintiff passing a telephone to an            inmate on  disciplinary isolation,  an action  which, without            any  additional validation, may be  deemed a violation of the            rules."); see  also Stokes v. Commissioner  of Correction, 26                      _________ ______    ___________________________            Mass.  App. Ct. 585, 589 ("[T]he board refers in its decision            to  the officer's  incident report,  and a  copy of  the full            report is appended  to the  decision.  All  of the  officers'            reports appear  to be  self-validating.  Thus,  although more            explanation might have been preferable, in each such decision            the  board's rationale is revealed,  and there is  at least a            basis  for  a  reviewing  court or  agency  administrator  to            understand how  the  prison board  reached  the  decision."),            further appellate review denied, 403 Mass. 1106 (1988).8 9            _______________________________                                            ____________________            8.  Again arguing that the board may not properly rely on the            written statement of  the reporting officer,  Matthews argues            on appeal that there was insufficient evidence to support the            guilty  finding  on  Disciplinary  Report  No.  88-4510  (the            precipitating  event for  his initial  placement in  the DSU,            i.e.,  the attempted assault on  the prison librarian).  That            claim of  insufficiency of evidence, however,  was never made            either in his original complaint, or in the later-allowed two            amendments  to the  complaint.   It was  first raised  in his            opposition to defendants' motion for summary judgment and the            district  court  did  not  address  it  in  granting  summary            judgment.    Thus,  it  was  not properly  presented  to  the            district court  and, concomitantly, not preserved  for review            on appeal.                                         -11-            Incident of November 3, 1989            Incident of November 3, 1989            ____________________________                 We now  turn to  the only argument  offered by  Matthews            which  we find  has  merit.10   Late on  the  day of  Friday,            November 3rd,  Matthews was  notified  of the  commissioner's            approval of  the recommendation  that he  be released  to the            general population.  He  was transferred from the Segregation            Unit  to the Orientation Unit.  There  he was told that the 3            to 11 p.m. shift  commander had not received  his name as  an            inmate  to be released,  so he would  not be  released to the            general population,  but rather,  confined to his  cell until            the following Monday.  He then allegedly threw a cup of urine                                            ____________________            9.  Finally,  Matthews'  contention that  Disciplinary Report            No. 90-283  should have  been  dismissed because  it was  not            written  within 24 hours of the incident, as per   430.08(2),            is refuted by Smith v. Massachusetts Dep't of Correction, 936                          _____    _________________________________            F.2d 1390 (1st Cir. 1991).   "As these regulations [including              430.08(2)] embody only procedural time limits, they  do not            create  the necessary liberty  interest."  Id.  at 1397 n.11;                                                       ___            see also Mass.  Regs. Code  tit. 103,    430.23 (1987)  ("All            ________            procedural  time   limits  set  forth  in   these  rules  and            regulations  are   directory  and   may  be  waived   by  the            Superintendent or the Commissioner or their designees.").            10.  Although Matthews filed an amended complaint relating to            the events of November  3rd, he did not submit  copies of any            of  the relevant disciplinary reports or a copy of the report            of the  disciplinary  hearing to  the  district court.    The            following recital  of  facts  is taken  from  copies  of  the            relevant disciplinary reports submitted by the defendants  in            connection with a motion, filed on July 31, 1990, for summary            judgment on  the claims remaining after  the ruling presently            at issue.  The district court, therefore, did not have copies            of the relevant  documents before it when  it granted summary            judgment on May 29, 1990.   The description of events in  the            reports is  in general agreement  with, but is  more detailed            than, the  description provided by Matthews  in his complaint            and related filings.                                         -12-            at a correctional officer.  Thereafter,  he refused to submit            to being handcuffed and removed from his cell.  Matthews tied            bed  sheets across the floor  from his desk  to his bedframe,            apparently  to  trip  anyone  entering  the  cell.    He also            suspended  a bed sheet, as  a curtain, from  floor to ceiling            with bandaids and remained behind this curtain during much of            the  time attempts were being made to  get him to step to the            bars to be cuffed.                 A "move team" of  officers sprayed mace and/or gas  into            Matthews' cell and  then entered the  cell.  Matthews,  still            behind the sheet,  allegedly "lunged" toward the door  with a            radio in his  hand, which  struck the shield  carried by  the            first officer  to enter  ("the  shield man").   Matthews  was            forcibly shackled  and removed.  Subsequently,  a pen wrapped            in  gauze and  tape at  one  end was  found on  the floor  of            Matthews' cell.                 In December  1989, Matthews filed  an amended  complaint            which, inter  alia, alleged  that he  had  been charged  with            assault,  attempted assault,  and possession  of  a weapon.11            He  added, as  defendants,  the members  of the  disciplinary                                            ____________________            11.  According to the  later-submitted disciplinary  reports,            he was charged with, inter  alia, assault in connection  with            the precipitating incident, i.e., allegedly throwing urine at            the officer,  assaulting or  threatening the shield  man with            the radio, and possession  of a weapon, i.e., the  pen, which            the  reporting officer  concluded  was a  weapon because  the            gauze and  tape on the end  was a handle.   This officer also            stated  that the pen had  been in Matthews'  hand as the move            team entered the cell.                                         -13-            board that considered these charges.  He said that the forced            extraction had been videotaped by the prison officials (as is            apparently  the  norm),  that   he  had  never  assaulted  or            attempted to assault  the officers and  that the video  would            show what  happened, but that the  disciplinary board refused            to view  the  video  or  allow his  legal  representative  or            himself to view the video.  He said that he was sanctioned 15            days' isolation  for each disciplinary report  written by the            prison officers.                 The members  of the disciplinary board  moved to dismiss            or,  in the  alternative, for  summary  judgment.   As noted,            supra,  footnote   10,  they,  too,  failed   to  submit  the            _____            underlying  disciplinary   reports  or  the  record   of  the            disciplinary  hearing to  the  district court.   They  merely            contended,  without supporting  documents, that  the evidence            presented at the disciplinary hearing satisfied  both federal            and state  constitutional standards, that,  unlike a criminal            prosecution, an inmate is  not entitled to a full  panoply of            rights, and "[a]s  a result,  the plaintiff had  no right  to            exculpatory evidence, liberal discovery, etc...."                 In opposing the defendants' motion for summary judgment,            Matthews  said  that the  board,  in denying  his  request to            produce  the tape, indicated that  it would not  use the tape            against  him.   His  claim, however,  was  that the  tape was            exculpatory in that it would show that he was not violent and                                         -14-            never  assaulted or attempted to assault the "move team."  He            cited Mass. Regs.  Code tit. 103,   430.14(4)  (1987), (which            gives  discretion to  the  chairperson to  deny  an offer  of            evidence in  the interests  of, inter alia,  personal safety,            institutional   security,   relevance,   cumulativeness   and            repetitiveness) and said that the board's denial was based on            other than personal or institutional safety.                 The district court granted summary judgment, as a matter            of  law,  to  the defendant  board  members  with  respect to            Matthews' claim  about the board's refusal  to grant Matthews            access to  the videotape or to view it at the hearing, on the            ground that  the discipline review  board is not  required to            accept or  grant access  to  any evidence  at a  disciplinary            hearing.   This  statement  is erroneous,12  since an  inmate            facing  a disciplinary hearing that may result in the loss of            a liberty interest must receive, inter alia, "an opportunity,            when  consistent with  institutional safety  and correctional            goals, to call witnesses  and to present documentary evidence            in his defense."  Smith v. Massachusetts Dep't of Correction,                              _____    _________________________________            936  F.2d at  1398-99 (quoting  Superintendent, Massachusetts                                            _____________________________            Correctional  Inst.  v.  Hill,  472 U.S.  445,  454  (1985)).            ___________________      ____            Moreover, "'the burden of persuasion as to the existence  and            sufficiency  of such  institutional concerns  [justifying the                                            ____________________            12.  We review the grant  of summary judgment de novo.   See,                                                                     ____            e.g., Rodriques  v.  Furtado, 950  F.2d  805, 808  (1st  Cir.            ____  _________      _______            1991).                                         -15-            denial  of an inmate's request to call witnesses] is borne by            the prison officials, not  by the prisoners.'"  Id.  at 1399-                                                            ___            1400 (quoting Grandison v. Cuyler, 774 F.2d 598, 604 (3d Cir.                          _________    ______            1985)).  And, in Smith, we found that a request for discovery                             _____            of an  item that  appeared particularly important  to, indeed            may have been dispositive  of, a defense "stands on  the same            footing  as  a  request to  call  witnesses."    Id. at  1401                                                             ___            (footnote omitted).                 We conclude, therefore, that the district  court's grant            of summary  judgment in favor  of the  defendant/disciplinary            board members was, at best, premature.  The defendants' flat-            out contention, endorsed by the district court, that Matthews            was not entitled to exculpatory evidence is wrong as a matter            of law.   The  board may  decline to  accept evidence  in the            interests of institutional security and correctional goals or            for other reasons set forth in   430.14(4), such as relevance            or cumulativeness.  Wolff v.  McDonnell, 418 U.S. at  566-67.                                _____     _________            And, it  may be  that the board  would have  been within  its            discretion to do so  here.  But, we  just do not know.13   In                                            ____________________            13.  It  does not appear from  the record before  us that the            precipitating event, i.e., the  alleged assault on an officer            by  throwing urine  at him,  was recorded  on the  videotape.            Rather,  the  tape  reveals  what occurred  once  the  prison            officials  made the  subsequent decision to  extract Matthews            from his cell.  Matthews suggests, nonetheless, that it shows            officers in  close proximity to  his cell after  this alleged            assault and before  his extraction  and that  they would  not            have  positioned themselves  so  if he,  in fact,  had thrown            urine.    We   leave  to  the  district  court   for  further            consideration what relevance,  if any, the tape had to events                                         -16-            failing to even argue that the board denied Matthews' request            for  a  legitimate  reason,  much  less   provide  supporting            documentation,  the board  members failed  to show  that they            were  entitled to judgment as a matter  of law.  See Ponte v.                                                             ___ _____            Real, 471  U.S. 491, 496-97  (1985) (due process  may require            ____            prison  officials to explain, in a  limited manner, either at            the disciplinary hearing,  or in a later court challenge, the            reason why witnesses were not allowed to testify).                 We, therefore, vacate the  district court's order of May                                ______            29,  1990, insofar as it granted summary judgment in favor of            the  defendant members  of the  disciplinary review  board on            Matthews' claim that he was  unlawfully deprived of access to            potentially exculpatory evidence before  the board, i.e., the            videotape depicting  events of November  3, 1989.   We remand                                                                   ______            for further  proceedings, in  which the defendants  may again            move for summary judgment if, in their view, they are able to            carry their burden on this issue.   In all other respects, we            affirm the district court order of May 29, 1990.            ______                 Affirmed,  in  part,  and   vacated  and  remanded,   in                 ________________________________________________________            part.14            _____                                            ____________________            not recorded therein.            14.  In  view of  our disposition  of this  appeal, Matthews'            "motion to allow affidavit in support of arguments in lieu of            oral arguments" is denied as moot.                                         -17-
