
USCA1 Opinion

	




          March 30, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1927        No. 91-1928                                   RICHARD A. STREET,                                Plaintiff, Appellant,                                          v.                                 PAUL RAKIEY, ET AL.,                                Defendants, Appellees.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Selya and Cyr, Circuit Judges.                                           ______________                                 ____________________            Richard A. Street on brief pro se.            _________________            Nancy  Ankers  White,  Special  Assistant  Attorney  General,  and            ____________________        Catherine A. Arnold,  Counsel, Department of Correction,  on brief for        ___________________        appellees.                                 ____________________                                 ____________________                 Per Curiam.  Plaintiff Richard Street, an inmate at MCI-                 __________            Cedar Junction in Massachusetts, was charged in 1990 with two            disciplinary offenses.   After conducting  separate hearings,            prison officials in each  instance found plaintiff guilty and            imposed a  sanction of isolation time.   Plaintiff thereafter            filed these pro se  actions under 42 U.S.C.    1983, alleging            that the two disciplinary hearings suffered from assorted due            process violations.    He requested  relief  in the  form  of            damages and  the removal  of the  offenses  from his  record.            Named as defendants were  the prison superintendent and other            correctional  officials.   In  both  cases, over  plaintiff's            opposition, the  district court granted defendants' motion to            dismiss  under Fed.  R.  Civ.  P.  12(b)(6).   Plaintiff  now            appeals.                      I.                 Plaintiff advances the  following factual  allegations.1            Appeal No. 92-1927 involves  an incident on June 18,  1990 in            which plaintiff is alleged to have destroyed a light fixture.            William  Cabino,  the  reporting  staff  person,  prepared  a            disciplinary  report stating  as follows:  (1) at  6:55 a.m.,            Cabino  was directed to remove plaintiff from a security cell                                            ____________________            1.  The   factual  allegations  are  drawn  from  plaintiff's            verified complaints and the exhibits  attached thereto (which            consist of the  records of the disciplinary  hearings).  Such            exhibits are considered  part of the  complaint, see Fed.  R.                                                             ___            Civ. P. 10(c), and may properly be reviewed when evaluating a            motion to dismiss  under Rule 12(b)(6).  See,  e.g., Hamilton                                                     ___   ____  ________            v. O'Leary, 976  F.2d 341,  343 (7th Cir.  1992); O'Brien  v.               _______                                        _______            DiGrazia,  544  F.2d 543,  545  n.1  (1st Cir.  1976),  cert.            ________                                                _____            denied, 431 U.S. 914 (1977).            ______            "due to his disruptive behavior"; (2) upon entering the cell,            he noticed that a lighting fixture had been broken; and (3) a            subsequent  search  uncovered  a  five-inch  piece  of  metal            located under a mattress and a "large piece of glass" located            under the  toilet, both  of which  "apparently came  from the            lighting  fixture."   Plaintiff  was charged  with four  code            offenses  under   103  C.M.R.     430.24   (1987),  including            possession  of  a weapon  and  willful  destruction of  state            property.                   At the disciplinary hearing, which was  held on June 28,            1990,  plaintiff pled not guilty  by reason of  insanity.  In            his complaint, he alleges that he submitted a written request            for  two   witnesses--Cabino  and   Dr.  Navaras,   a  prison            psychiatrist--but  that a  correctional official  (Lt. Ayala)            tore up the witness form in plaintiff's presence.  The record            of  the hearing contains a  partial reference to this matter,            explaining the denial of plaintiff's request for  witness(es)            as follows:                 Request   for   witness  Dr.   Navaras   denied  in                 accordance  with  CMR   430.11(4).[2]    Failed  to                 submit  witness form.   Inmate  Street claimed  Lt.                 Ayala tore it up.   Lt. Ayala states he  never tore                 it up.                                            ____________________            2.  Under 103 C.M.R.    430.11(1), an inmate is to  be served            with a "request for witness form" within twenty-four hours of            the  designation of the offense  as a major  matter.  Section            430.11(4)  in  turn provides  that  an  inmate's "failure  to            submit  a request for ... witness form may, in the discretion            of the disciplinary board chairperson, constitute a waiver of            the inmate's rights to call witnesses."                                         -3-            The record also  contains a notation  that plaintiff did  not            request  Cabino's  presence.    Admitted  into evidence  were            Cabino's  disciplinary report  and  the pieces  of metal  and            glass recovered from the  cell.  Based on such  evidence, the            disciplinary board  found plaintiff guilty of both possessing            a weapon and destroying property.  He was given a sanction of            fifteen  days in  isolation on  each charge,  for a  total of            thirty  days.     Plaintiff   appealed  the  matter   to  the            superintendent,  claiming  that  his   so-called  "disruptive            behavior"  had  in  fact  been  a suicide  attempt,  that  he            suffered  from "severe mental illness," and that he should be            transferred to a hospital.  Plaintiff alleges that his appeal            was denied without explanation.                 Appeal No. 92-1928 involves  an unrelated incident which            allegedly  occurred one  day  later.   A disciplinary  report            prepared by staff  person John Lopes stated: "On 6/19/90 ...,            this officer did see  Inmate R.A. Street run from  the Mental            Health office to the  Hospital ward grill and spit  on Inmate            John Debella  ...."  Plaintiff was  subsequently charged with            disruptive conduct  and "assaulting  ... another  person with            any offense  against his person."   103 C.M.R.    430.24(18).            At  a disciplinary  hearing held on  July 5,  1990, plaintiff            again  pled   not  guilty  by  reason   of  insanity,  adding            (according to the  hearing record)  that he had  been at  the            health unit to see a psychiatrist due to an episode of mental                                         -4-            illness, and  that he did  not recall the  incident.   In his            complaint, plaintiff alleges that he requested two witnesses-            -Lopes and  Dr. Navaras.   The hearing record  indicates that            Lopes' presence was initially  requested but was later waived            by   plaintiff  (an   assertion  plaintiff   denies   in  his            complaint).   The  disciplinary board  denied the  request to            call  Dr. Navaras on the ground that "witness was not present            at  the  incident."    Based on  Lopes'  written  report, the            disciplinary  board  found  plaintiff  guilty  and imposed  a            sanction  of  fifteen  days  isolation.   On  appeal  to  the            superintendent, plaintiff argued that he had had a "psychotic            episode ... I  was hallucinating and thought  [Debella] was a            devil about to attack me, so I spat on him to break his  evil            spell."   This appeal, according  to the complaint,  was also            denied without explanation.                                         II.                 In  his pair  of  complaints, plaintiff  advanced nearly            identical challenges  to these two  disciplinary proceedings.            He argued that the  following due process violations occurred            in  each instance: (1)  inadequate notice of  the charges was            provided;  (2) he  was denied  the right  to call  and cross-            examine  witnesses;  (3)  the  conviction was  not  based  on            substantial evidence; (4) the board failed to reach a finding            after  the close  of the  evidence; and  (5) no  reasons were            provided  for  the denial  of his  appeal.   He  charged that                                         -5-            imposing multiple  sanctions for  a single act  of misconduct            violated  double   jeopardy.    He  argued   that  the  board            contravened  "common  law"  by  (1) basing  its  findings  on            unsupported written testimony and  (2) failing to explain its            credibility findings.   And  he contended that  each incident            was attributable to the negligent supervision of defendants--            conduct which in No. 92-1927, at least, amounted to cruel and            unusual  punishment.  The  district court found  that none of            these allegations presented a federal claim  cognizable under            42 U.S.C.   1983.                   Appellate review  of a dismissal under  Rule 12(b)(6) is            plenary.   See, e.g., Miranda v. Ponce Federal Bank, 948 F.2d                       ___  ____  _______    __________________            41, 44 (1st Cir. 1991).  We must accept all well-pled factual            allegations  as  true  and  draw  all  reasonable  inferences            therefrom  in plaintiff's  favor.   See, e.g.,  Leatherman v.                                                ___  ____   __________            Tarrant County Narcotics, Etc.  Unit, 61 U.S.L.W. 4205, 4206-            ____________________________________            07 (U.S. March 3, 1993); Roth v. United States, 952 F.2d 611,                                     ____    _____________            613 (1st  Cir. 1991); Dartmouth Review  v. Dartmouth College,                                  ________________     _________________            889  F.2d 13,  16 (1st  Cir. 1989).   In  addition, a  pro se            complaint is  held to  "less stringent standards  than formal            pleadings drafted  by lawyers" and  can only be  dismissed if            "it appears 'beyond doubt that the plaintiff can prove no set            of  facts in support of his  claim which would entitle him to            relief.'"   Haines v. Kerner,  404 U.S. 519,  520 (1972) (per                        ______    ______            curiam)  (quoting  Conley  v.  Gibson,  355  U.S.  41,  45-46                               ______      ______                                         -6-            (1957)); accord, e.g.,  Estelle v. Gamble,  429 U.S. 97,  106                     ______  ____   _______    ______            (1976).                 Our task  is to  determine not whether  the disciplinary            hearings   comported   in  every   detail   with  the   state            regulations,  but  whether  they  were  consistent  with  the            "minimal safeguards afforded by the Due Process Clause of the            Fourteenth  Amendment."   Ponte v.  Real, 471  U.S.  491, 495                                      _____     ____            (1985).3  "Prison disciplinary proceedings are not  part of a            criminal prosecution,  and the full  panoply of rights  due a            defendant  in  such proceedings  does not  apply."   Wolff v.                                                                 _____            McDonnell,  418 U.S.  539, 556  (1974).   As outlined  by the            _________            Court  in  Wolff,  the applicable  constitutional  safeguards                       _____            include  the  following:  providing "written  notice  of  the            charges"  to the inmate at least 24 hours before the hearing,            id. at  564;  allowing  the  inmate "to  call  witnesses  and            ___            present  documentary evidence in  his defense when permitting            him  to do so will  not be unduly  hazardous to institutional            safety or  correctional goals,"  id. at  566;  and, should  a                                             ___            finding of  guilt be reached, providing  "a written statement            by the factfinders as  to the evidence relied on  and reasons            for the disciplinary action," id. at 564 (quotation omitted);                                          ___            accord,  e.g.,   Superintendent,  Massachusetts  Correctional            ______   ____    ____________________________________________                                            ____________________            3.  It  is  clear  that  the  loss  of  liberty  entailed  in            isolation time suffices to trigger constitutional safeguards.            See, e.g., Wolff v. McDonnell, 418 U.S. 539, 571 n.19 (1974);            ___  ____  _____    _________            Smith  v. Mass. Dep't of Correction, 936 F.2d 1390, 1399 (1st            _____     _________________________            Cir. 1991).                                          -7-            Institution  v.  Hill, 472  U.S.  445, 454  (1985);  Smith v.            ___________      ____                                _____            Massachusetts Dep't  of Correction, 936 F.2d  1390, 1398 (1st            __________________________________            Cir. 1991).                                         III.                 Few of plaintiff's claims require extended comment.  His            contention that he received  inadequate notice of the charges            is entirely  conclusory.   The hearing records  indicate (and            plaintiff  does not dispute) that he was afforded at least 24            hours  advance notice.   In  particular, he does  not dispute            that  he  received  copies  of the  disciplinary  reports  in            advance,  in  which the  charges  were adequately  described.            Plaintiff likewise presents no cognizable claim in contending            that defendants violated double jeopardy by imposing multiple            punishments for  a single act of  misconduct.  As we  said in            rejecting an analogous double jeopardy  contention in Langton                                                                  _______            v. Berman,  667  F.2d  231 (1st  Cir.  1981),  this  argument               ______            "fail[s] to  appreciate the essential  differences between  a            disciplinary hearing  and a  criminal trial."    Id. at  234;                                                             ___            accord, e.g., United  States v. Rising,  867 F.2d 1255,  1259            ______  ____  ______________    ______            (10th Cir. 1989); see generally Breed v. Jones, 421 U.S. 519,                              _____________ _____    _____            528   (1975)   ("jeopardy   describes  the   risk   that   is            traditionally associated with a criminal prosecution").                   Plaintiff's challenge to the sufficiency of the evidence            is  clearly meritless.  It is plain that the board's findings            were supported by "some evidence in the record"--the standard                                         -8-            of  evidentiary  sufficiency  mandated  by  the  Due  Process            Clause.  Hill,  472 U.S. at 454.   Nor has he  stated a claim                     ____            with respect to (1) the board's consideration of the evidence            or  (2) its description of  the evidence on  which it relied.            The  Wolff   Court  held   that  "confrontation  and   cross-                 _____            examination" are  not "generally  required" in  this context.            418 U.S. at 568.   Consequently, the board's reliance  on the            written  disciplinary reports was  proper, particularly since            each report  contained an eyewitness account.   In explaining            its  findings,  the board  indicated that  it relied  on "the            eyewitness testimony as recorded  in the officer's report" in            each  case and, in No.  92-1927, on the  physical evidence as            well.  Such summary  explanations have been deemed sufficient            in  other cases  (depending on  the facts  presented).   See,                                                                     ___            e.g.,  Forbes v. Trigg, 976 F.2d 308, 318-19 (7th Cir. 1992),            ____   ______    _____            cert.  denied, 61 U.S.L.W. 3456  (Feb. 22, 1993).   They were            _____________            clearly adequate under the  circumstances here.  The evidence            at  the  hearings  was  straightforward.    And  rather  than            attempting  to controvert  the  central  factual  allegations            underlying the charges, plaintiff sought to defend himself by            citing the collateral issue  of his mental status.4   For the                                            ____________________            4.  Plaintiff's  challenge  to  the superintendent's  alleged            failure  to  explain  his  reasons for  denying  the  appeals            similarly  falters.   No  such obligation  is imposed  by the            state regulations.  See 103 C.M.R.    430.18.  And we find no                                ___            such obligation  as a  constitutional matter, given  that the            board adequately explained its findings.                                         -9-            same  reason,  no issue  of credibility  was presented  as to            whether plaintiff  actually committed the acts  with which he            was charged.                 The issue of plaintiff's requests to call Dr. Navaras as            a  witness  deserves closer  scrutiny.5    As mentioned,  the            Court in Wolff held that an inmate "should be allowed to call                     _____            witnesses ... in  his defense  when permitting him  to do  so            will  not  be unduly  hazardous  to  institutional safety  or            correctional goals."  418 U.S.  at 566.  In Ponte, the  Court                                                        _____            clarified that prison officials have the burden of justifying            the  denial of a witness request by tendering an explanation,            either  during the  administrative hearing  or  in connection            with  subsequent litigation.    471 U.S.  at 497-99;  accord,                                                                  ______            e.g., Smith, 936 F.2d at 1399-1400.  This rule is intended to            ____  _____            guard against arbitrary action by  requiring prison officials            "to explain, in  a limited manner,  the reason why  witnesses            were  not allowed  to  testify."   Ponte,  471 U.S.  at  497.                                               _____            Reasonable  explanations include not only interests of prison            safety  and  discipline, but  also  legitimate administrative            concerns.   See,  e.g.,  Wolff,  418  U.S.  at  566  ("Prison                        ___   ____   _____                                            ____________________            5.  By contrast,  no colorable claim  is presented  regarding            plaintiff's  alleged  requests to  call  the  authors of  the            disciplinary  reports  as  witnesses.    Even  if  we  assume            (contrary to  the notations in the hearing records) that such            requests  were made,  prison officials  are not  required "to            provide reasons in writing to inmates denied the privilege to            ...   confront  witnesses   against   them  in   disciplinary            proceedings."    Baxter  v.  Palmigiano, 425  U.S.  308,  322                             ______      __________            (1976); accord Wolff, 418 U.S. at 567-69.                      ______ _____                                         -10-            officials  must have  the  necessary discretion  to keep  the            hearing within reasonable limits  ...."); Ramer v. Kerby, 936                                                      _____    _____            F.2d  1102, 1104  (10th  Cir. 1991)  ("legitimate penological            concerns  includ[e],  but [are]  not  limited  to, safety  or            correctional  goals, expense, staffing  requirements ..., and            the  danger of harassment").  And  in general, courts "should            not  be too  ready to  exercise oversight  and put  aside the            judgment of  prison administrators"  in this regard.   Wolff,                                                                   _____            418 U.S. at 566.                    We agree with the lower court  that plaintiff has failed            to  state a  viable  claim under  these  standards.   In  the            assault  case,  the board  denied  the  request to  have  Dr.            Navaras testify on the ground that he "was not present at the            incident."     We   cannot  say   that  this   rationale  was            unreasonable.   Cf. Powell v. Coughlin, 953 F.2d 744, 751 (2d                            ___ ______    ________            Cir. 1991) (board's refusal  to allow psychiatrist to testify            was  proper since he "was not an observer of disputed factual            issues  concerning the  underlying incident"; receipt  of his            notes  in lieu of his testimony "was harmless error, if error            at  all").  To  be sure, Dr.  Navaras (apparently plaintiff's            treating psychiatrist) likely would have been able to provide            background  information  as  to  plaintiff's  mental  health,            perhaps   even  as  to   his  susceptibility   to  "psychotic            episodes."    Yet  under  the  rather  unusual  circumstances            presented (with an inmate  personally proclaiming that he had                                         -11-            been "insane"  two weeks  earlier), any such  testimony would            have  been of  marginal relevance,  and would  obviously have            expanded the scope of the hearing in a manner the board might            reasonably have wished to avoid.                   In  the  property-destruction  case, the  board  did not            permit  Dr.  Navaras to  testify  because,  according to  the            record, plaintiff had failed  to submit the required witness-            request  form.   Such  a  rationale  constitutes an  adequate            justification.  See, e.g., Hamilton v. O'Leary, 976 F.2d 341,                            ___  ____  ________    _______            346-47 (7th Cir. 1992); Smith, 936 F.2d at 1400 ("denial of a                                    _____            request to call  a witness on the ground that  the request is            untimely   is   well    within   the   disciplinary   board's            discretion").     As   mentioned,  plaintiff   disputes  this            conclusion, alleging that he did submit the form but that Lt.            Ayala  tore it up.  The  administrative record indicates that            the  board, after hearing  these differing  explanations from            plaintiff and Ayala, chose to believe the  latter.  Arguably,            this   credibility   determination,   although  involving   a            collateral  issue,  is one  subject  to  scrutiny only  under            Hill's  "some  evidence"  standard--a test  which  "does  not            ____            require  examination   of  the  entire   record,  independent            assessment of  the credibility  of witnesses, or  weighing of            the evidence."   472 U.S. at  455.  We need  not resolve that            issue, however,  since plaintiff's allegation,  even if true,            would  involve at most harmless  error.  See,  e.g., Elkin v.                                                     ___   ____  _____                                         -12-            Fauver, 969 F.2d  48, 53 (3d  Cir.) (applying harmless  error            ______            analysis  to disciplinary proceedings),  cert. denied, 113 S.                                                     ____________            Ct. 473 (1992);  Powell, 953 F.2d at 750-52 (same).   For the                             ______            reasons  discussed  above,  Dr.  Navaras'  testimony  in  the            property-destruction case would again have been of negligible            relevance.   Indeed,  the  fact that  plaintiff  hid the  two            "weapons"  in  the  cell--conduct  quite  at  odds  with  any            suggestion of "insanity"--suggests that psychiatric testimony            would have been even less relevant here.                 For   these  reasons,   we  conclude   that  plaintiff's            complaints were properly dismissed under Rule 12(b)(6).6                 Affirmed.                 _________                                            ____________________            6.  As   we  read  the  complaints,  plaintiff's  "negligent-            supervision" allegations comprise  part of  his challenge  to            the disciplinary proceedings, rather  than being intended  as            independent  claims for relief.   To the extent  they were so            intended, we find no suggestion that defendants acted in such            a  "wanton" fashion as to have violated the Eighth Amendment.            Wilson v. Seiter, 111 S. Ct. 2321, 2326 (1991).              ______    ______                                         -13-
