
USCA1 Opinion

	




          July 27, 1992         [NOT FOR PUBLICATION]                                 ___________________          No. 92-1014                                              DAVID A. JOSSELYN,                                Plaintiff, Appellant,                                          v.                                PHILIP POIRIER, ET AL.,                                Defendants, Appellees.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. William G. Young, U.S. District Judge]                                            ___________________                               ___________________                                        Before                                Selya, Circuit Judge,                                       _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ___________________               David A. Josselyn on brief pro se.               _________________               Nancy Ankers White, Special  Assistant Attorney General  and               __________________          Charles M.  Wyzanski,  Senior Litigation  Counsel, Department  of          ____________________          Correction,  on  Memorandum   of  Law  in   Support  of   Summary          Disposition.                                  __________________                                  __________________                                         -2-                 Per  Curiam.   Plaintiff/appellant,  David  A. Josselyn,                 ___________            appeals  the grant of summary judgment in favor of the prison            officials against whom  he brought an action,  pursuant to 42            U.S.C.   1983.  We affirm.                 Josselyn,  a prisoner at  the Massachusetts Correctional            Institution (MCI) at Norfolk,  was suspected of attempting to            escape  in the  early morning  hours of  September  15, 1989.            That evening he was transferred to MCI at Cedar Junction.                 In March 1990, he  filed suit with claims stemming  from            the  investigation of  the escape  attempt and  his transfer.            Eventually, the parties cross-moved for summary judgment with            the prison officials prevailing.                                          I.                 Before turning  to the underlying merits,  we dispose of            some  preliminary  complaints  appellant  raises  on  appeal.            First, Josselyn contends that he did not have adequate notice            that  defendants'  motion would  be  treated  as one  seeking            summary judgment.   This  argument is specious.   Defendants'            motion  was  permissibly phrased  in  the  alternative, as  a            motion to  dismiss  or for  summary  judgment.1   The  motion                                            ____________________            1.  There  were actually  two such  motions.   The first  was            filed in February 1991 with an accompanying memorandum.  This            motion  recited that  it  was filed  on  behalf of  13  named            defendants.  There were, however, 16 named defendants and the            omission  of  3  names  appears  to  have  been  inadvertent.            Josselyn filed his opposition and cross-motion in March 1991.                 In October  1991, the defendants filed  a second motion,            this  one reciting all 16 names.  This subsequent addition of            earlier-omitted  names did  not prejudice  Josselyn, as  this                                         -3-            itself  gave notice to Josselyn and he was given a reasonable            opportunity to respond,  which he did, with an  opposition, a            cross-motion   for   summary   judgment,   and   accompanying            memorandum.                 Second, Josselyn argues that the district court erred in            failing to  hold a hearing before  granting summary judgment.            The  court properly  may grant  summary judgment,  without an            evidentiary  hearing or  oral argument,  "if no  dispute over            material fact exists and a trial or hearing would not enhance            its ability to decide the [remaining  legal] issue."  Posadas                                                                  _______            de Puerto  Rico, Inc. v. Radin,  856 F.2d 399, 401  (1st Cir.            _____________________    _____            1988);  see  also Fed.  R. Civ.  P.  43(e) (court  may "hear"                    _________            motion  on  affidavits).   As  discussed  infra, contrary  to                                                      _____            Josselyn's contention, there is no genuine issues of material            fact and no necessity for a hearing.                 Third, Josselyn  complains  that the  court's  grant  of            summary  judgment  was  not  accompanied  by  any  supporting            memorandum.   Findings of  fact and  conclusions  of law  are            unnecessary on  decisions of summary judgment  motions.  Fed.            R.  Civ. P.  52(a).   The court  endorsed, as  "allowed," the            defendants' motion,  which sought  summary judgment  based on                                            ____________________            second motion relied on the previously filed memorandum.   In            any event,  Josselyn had  an opportunity  to  file a  further            response,  if it  was  warranted, but  did not  do  so.   The            district court granted summary judgment in  defendants' favor            on November 26, 1991, with judgment entering on  December 20,            1991.                                         -4-            the reasoning set forth  in their memorandum.  The  basis for            the court's  ruling, therefore, is apparent  from the record.            While a supporting memorandum is useful to a reviewing court,            the absence  of such is not  fatal in this case.   Domegan v.                                                               _______            Fair, 859 F.2d 1059, 1065-66 (1st Cir. 1988).            ____                                         II.                 We  turn to the  merits of this  appeal.  We  review the            grant of summary judgment  de novo.  See, e.g.,  Rodriques v.                                                 _________   _________            Furtado,  950 F.2d  805,  808  (1st  Cir.  1991).    "Summary            _______            Judgement is appropriate only if there  is no genuine dispute            as  to  material fact  and the  moving  party is  entitled to            judgment as a  matter of law."   Id. at 809.  We  "review the                                             ___            record, together with all reasonable inferences therefrom, in            the  light  most  favorable  to the  non-moving  party,  here            appellant."  Id.                         ___                 Unless  otherwise indicated, these facts are essentially            undisputed.   On  September 15,  1989, at  approximately 8:45            a.m., after a night  of heavy rain, prison officials  found a            rope made of prison bedsheets hanging from a wall at Norfolk,            a hole, approximately 2  feet by 1  feet,  cut in an adjacent            inner perimeter  chain-link fence, and,  close by, a  pair of            needle  nose pliers.  The  pliers had pieces  of conduit pipe            attached  to  the  ends  with  blue  electrical  tape.    The            bedsheets  had Josselyn's  laundry  identification number  on            them.    Josselyn's  room  was searched  that  afternoon  and                                         -5-            several articles of  his clothing,  including sneakers,  were            found to be soaking wet.  The sneakers had scuff marks on the            inner foot  area.  Defendants contend,  although Josselyn now            denies, that  Josselyn's hot pot had blue  electrical tape on            it,  identical to  the tape  used to  connect the  pliers and            pipe.2                 Josselyn was placed in  Norfolk's segregation unit and a            visual  body cavity search  was done.   At approximately 9:30            p.m., he  was transferred  to Cedar  Junction,  where he  was            placed  in  Awaiting  Action  (AA) status  in  that  prison's            segregation  unit.   On  October 25,  1989, a  classification            meeting was held.   The classification board recommended that            Josselyn  remain  in AA  status  pending the  results  of the            investigation  into   the   attempted  escape   and   related            disciplinary action.                 On November 10,  1989, Josselyn received  a copy of  the            disciplinary  report.     This  report   related  the   facts            previously  noted regarding  the homemade  rope, hole  in the            perimeter fence, pliers,  and pipe.   The report also  stated            that  interviews  were  conducted,   at  which  Josselyn  was            identified  as  the  inmate  who had  attempted  the  escape.            Although the attempted escape occurred between 2 and 3  a.m.,                                            ____________________            2.  Josselyn  did  not  contest  the existence  of  the  blue            electrical tape  on his hot  pot at the  disciplinary hearing            and  a photograph showing the hot pot with blue tape attached            to its cord was admitted into evidence at the hearing.                                         -6-            the inner perimeter fence  and the wall were lit.   According            to the  report,  some of  the  inmates who  were  interviewed            recited that Josselyn  climbed out the fire  escape window in            his room,  crawled along  the  fence, cut  through the  inner            perimeter fence, and  crawled across the "dead  zone."  These            interviewees  further recited  that, with  the assistance  of            broomsticks  with blocks  attached, Josselyn  placed a  hook,            with  a sheet attached, to the top  of the wall and attempted            to climb the wall.  According to the report, when the attempt            failed, Josselyn moved the hook and sheet down to a different            area,  tried and again failed to climb the wall, then crawled            back  through the "dead zone" and  returned to his unit.  The            report  recited that  every  article of  evidence was  either            directly tied to Josselyn  or he had access to  that material            and was seen with it.                 After two  continuances  at Josselyn's  request so  that            counsel could  be  present and  one  continuance due  to  the            reporting  officer's illness,  the  disciplinary hearing  was            held  on  February  2,   1990.    The  investigating  officer            testified.   Because the escape incident had been referred to            the  district  attorney's  office for  possible  prosecution,            Josselyn invoked  his fifth amendment right  to remain silent            and  did not  testify  in  his  own  behalf.    Josselyn  was            represented by a law student, who argued that, on the morning            after  escape attempt, it was  damp outside and that Josselyn                                         -7-            had been out jogging and had made no attempt to  hide his wet            clothes, which were laying around his room.                 On  February  12, 1990,  Josselyn  was  found guilty  of            attempted escape.  He was given 15 days in isolation  and the            disciplinary board recommended that Josselyn  be reclassified            to higher  security, placed  in the  departmental segregation            unit (DSU), and lose 1000 days of good time credit.  Josselyn            appealed the  recommended  loss of  good  time credit.    The            superintendent  recommended,  and  the commissioner  ordered,            that 500, rather than 1000, good time days be forfeited.                 An initial DSU  review was held on April 20,  1990.  The            DSU  board recommended a 2  year placement in  DSU.  Josselyn            was  ultimately  released  to   the  Cedar  Junction  general            population on July 9, 1991.                                         III.                 On appeal,  Josselyn argues  that there exist  5 genuine            issues  of material  fact,  which preclude  entry of  summary            judgment in the defendants' behalf.                                          A.                                          __                 Josselyn  claims that  when  he was  taken to  Norfolk's            segregation unit, prior to his transfer to Cedar Junction, he            had to remove all of his own clothes, underwent a visual body            cavity  search, and  was left  naked for  several hours.   He            claims  that  these actions  amounted  to  punishment and  an            unreasonable search and seizure.                                         -8-                 Contrary to Josselyn's  contention, this claim does  not            present  any  genuine  issue   of  material  fact,  for  even                                               ________            accepting these assertions as true, they would not affect the            outcome of the case  under the applicable law.   See Anderson                                                             ___ ________            v. Liberty  Lobby, Inc., 477  U.S. 242, 248  (1986) (reciting               ____________________            that  only disputes over facts that  might affect the outcome            of the suit  under the governing  law will properly  preclude            the entry  of summary  judgment).  Balancing  the significant            and legitimate  security interests of the  prison against the            privacy interest of the  inmate, a visual body  cavity search            conducted  of an inmate suspected of an attempted escape does            not  constitute  punishment  nor an  unreasonable  search and            seizure in  violation of the Constitution.   Bell v. Wolfish,                                                         ____    _______            441 U.S. 520,  558-60 (1979) (holding that  probable cause is            not  necessary to conduct a  visual body cavity  search of an            inmate after a contact  visit with a person from  outside the            institution); Cookish v. Powell, 945  F.2d 441, 446 n.7  (1st                          _______    ______            Cir.  1991)  (concluding that  a  visual  body cavity  search            conducted   when  transferring   inmates   after   a   prison            disturbance is  not an unreasonable search);  Arruda v. Fair,                                                          ______    ____            710 F.2d 886, 886-88  (1st Cir.) (holding that a  visual body            cavity search  conducted when an inmate enters  or leaves his            unit  on his  way  to or  from  the  prison law  library  and            infirmary,  and  after he  receives  visitors  in the  unit's            visiting  rooms  does  not   violate  the  Fourth  or  Eighth                                         -9-            Amendments), cert. denied,  464 U.S.  999 (1983).   The  fact                         ____________            that, according to Josselyn,  after the search was completed,            he  spent  several  hours,  naked  in  a  cell  in  Norfolk's            segregation unit, before he was given a jumpsuit and slippers            for his transfer  to Cedar  Junction, in our  view, does  not            elevate this claim into a constitutional violation.                                          B.                                          __                 Josselyn claims  that  the defendants  negligently  lost            some  of the  property that  he was  forced to  leave behind,            including the clothing  he had been  wearing just before  his            transfer  to Cedar Junction.   Again, as with  the claim just            discussed, this claim  does not present any  genuine issue of            material  fact,  precluding  entry  of  summary  judgment  in            defendants' favor.   "[T]he Due Process Clause  is simply not            implicated  by  a  negligent   act  of  an  official  causing                               _________            unintended loss of  or injury to life, liberty, or property."            Daniels  v. Williams, 474  U.S. 327, 328  (1986) (emphasis in            _______     ________            the  original).   Josselyn's contention that  the defendants'            refusal to reimburse him for the replacement cost of the lost            property  is punishment  for  his attempted  escape does  not            advance his claim of a  federal constitutional violation.  We            express no view as to the existence of any state remedy.                                          C.                                          __                 Josselyn complains of his transfer to AA status at Cedar            Junction without a hearing and of  the 7 month delay before a                                         -10-            DSU  review occurred.    Again, this  contention presents  no            factual  dispute and,  accepting these  facts as  asserted by            Josselyn, we conclude defendants  are entitled to judgment as            a matter of law.                 The transfer  of an inmate to  more restrictive quarters            pending investigation of misconduct  charges does not impinge            on  any liberty interest protected  by the Due Process Clause            in and of itself.  Hewitt v. Helms, 459 U.S. 460, 468 (1983).                               ______    _____            A state,  however, may create a  substantive liberty interest            protected  by the  Due  Process Clause  through statutory  or            regulatory  law.     Id.  at  469.    Josselyn   argues  that                                 ___            Massachusetts  has  done  so   here  via  the  department  of            correction's regulations  related to  the use  of segregation            and that the defendants' alleged failure to comply with those            regulations violated his due process rights.                 "[A]  State  creates  a  protected  liberty interest  by            placing  substantive  limitations  on  official  discretion."            Olim  v. Wakinekona, 461 U.S. 238, 249 (1983).  "[O]ur method            ____     __________            of  inquiry"  is  "to examine  closely  the  language of  the            relevant  statutes  and  regulations."    Kentucky  Dep't  of                                                      ___________________            Corrections  v. Thompson, 490 U.S.  454, 461 (1989).   If the            ___________     ________            relevant  regulations give  the  defendant  prison  officials            essentially unfettered  discretion to  place an inmate  in AA            status, no liberty interest has been created.                                         -11-                 We  reviewed the Massachusetts Department of Corrections            "awaiting  action status" detention  regulations in Stokes v.                                                                ______            Fair, 795 F.2d 235 (1st Cir.  1986).  In Stokes, we concluded            ____                                     ______            that the regulations did  create a liberty interest protected            by  the Due  Process Clause  because, as  then written,  they            permitted prison  officials to place  an inmate in  AA status            only upon occurrence of certain conditions, i.e., pending                      (a)  a hearing on a  disciplinary offense                      by the inmate                      (b)  an   investigation  of   a  possible                      disciplinary offense by the inmate                      (c)  a transfer or a  reclassification of                      the inmate to a higher custody status, or                      (d)  imposition    of   isolation    time                      sanction on the inmate when the inmates's                      continued   presence   in   the   general                      population  poses  a  serious  threat  to                      persons, property, or the security of the                      institution.            Id. at 237.            ___                 Subsequent  to  our  decision  in  Stokes,  the relevant                                                    ______            regulations  were revised  and,  at the  time of  appellant's            transfer to Cedar  Junction and placement  in AA status,  the            relevant  regulation, Mass.  Regs.  Code tit.  103,    430.21            (1987), read:                      (1)  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                                         -12-                      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.                      (2)  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                      transferred   to  another   Massachusetts                      institution,   or   an   out   of   state                      institution  prior  to  a  classification                      hearing.   An inmate so  transferred may,                      at the discretion  of the  Superintendent                      or  his/her  designee  at  the  receiving                      institution,    and   subject    to   any                      applicable review requirements, be placed                      on awaiting action  status.  Such  status                      may include  more restrictive confinement                      as    deemed     appropriate    by    the                      Superintendent or his/her designee.                 We interpreted the pre-1987 regulations as  limiting the            prison officials'  discretion to place an inmate in AA status            to those instances expressly set out  in the regulations, one            of which was pending investigation of a possible disciplinary            offense.   We  note that  the 1987  regulation permitted  the            prison  officials  to  transfer   an  inmate,  who  is  under            investigation for a possible disciplinary offense, prior to a            classification  hearing and to  place that transferred inmate            in  AA status  "at the  discretion of  the  Superintendent or            his/her  designee."    We  need not,  and  do  not, determine            whether  this  revision worked  a  substantive  change in  an            inmate's liberty interest in  remaining in the general prison            population.    We will  assume,  consistent  with our  Stokes                                                                   ______            analysis, that an inmate has a reasonable expectation that he                                         -13-            will  be  placed  in  AA  status  only  if  he is  (a)  under                                              ____            investigation  for, (b) has  been charged with,  or (c) found            guilty  of a disciplinary offense.   In other  words, we will            assume  that (a)  (b) and (c)  is an  exhaustive list  of the                                                  __________            conditions  permitting  placement  in  AA status.    But  cf.                                                                 ________            Berrier  v. Allen, 951 F.2d 622, 625 (4th Cir. 1991) (finding            _______     _____            no liberty interest created where language of regulations did                                                                      ___            not  explicitly  prohibit  prison  officials  from  confining            _________________________            inmate in  administrative segregation unless one  of the four                                                  ______            enumerated situations existed).                 Assuming that the department of corrections' regulations            created a  liberty interest,  there was, nonetheless,  no due            process  violation.     One  of  the   expressed  substantive            predicates required  for placing an  inmate in AA  status was            present  in   Josselyn's  case;   he,  in  fact,   was  under            investigation for a possible disciplinary offense when he was            placed in AA  status.   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).            That  he was transferred to  Cedar Junction and  placed in AA            status prior to  a hearing, likewise,  raises no due  process            concern, either as a matter of the Due Process Clause itself,            Hewitt v. Helms, 459 U.S. at 472 (due process is satisfied by            ______    _____            an  informal, non-adversary  review within a  reasonable time                                         -14-            after  confinement  to administrative  segregation), or  as a            matter of  any state-created liberty interest  as   430.21(2)            permitted  the transfer and placement in AA status prior to a            classification hearing.                 It  appears   that  Josselyn's  real  complaint  is  his            suggestion that  the 7 month  delay, between his  transfer to            Cedar  Junction  and  his DSU  review  and  reclassification,            during  which  time  he  remained   in  AA  status,  was   an            impermissible attempt by the defendants to use AA status as a            substitute for a  formal DSU classification.   The Court,  in            Hewitt v. Helms, 459 U.S. at 477 n.9, noted:            ______    _____                      administrative  segregation  may  not  be                      used   as   a   pretext  for   indefinite                      confinement   of   an  inmate.     Prison                      officials  must engage  in  some sort  of                      periodic  review  of  the confinement  of                      such inmates.            As  in  Hewitt, the  record in  this  case "is  sufficient to                    ______            dispel any notions that the confinement was a pretext."  Id.                                                                     ___                 Josselyn  was transferred  on September  15, 1989.   The            regulations  provided that when  a disciplinary investigation            is  pending, an  initial  classification hearing,  consisting            "only of an evaluation  of the inmate's security requirements            and programmatic needs," shall be held within 20 working days            of the transfer.   Mass. Regs. Code tit. 103,    420.09(3)(b)            (1987).  The regulations  also provided, however, that "[a]ll            procedural  time   limits  set  forth  in   these  rules  and            regulations  are   directory  and   may  be  waived   by  the                                         -15-            Superintendent  or  the  Commissioner  or  their  designees."            Mass.  Regs. Code  tit. 103,     420.12,  430.23 (1987).   On            September   18,  1989,   Josselyn   was  notified   that  the            Superintendent had ordered  an investigation and  was waiving            all procedural  time limits.  Josselyn's  status was reviewed            thereafter every  7 days and  Josselyn was notified  that the            investigation was continuing.                 On October 25, 1989, the initial hearing  referred to in               420.09(b)(3) was  held, with  the board  recommending that            Josselyn  remain  in  AA  status  pending  the   disciplinary            investigation.3     Thereafter,   and  in   conformity   with            regulations which became effective while he was in AA status,                                            ____________________            3.  That this  initial classification hearing  apparently was            held  on  the 27th  working  day  after Josselyn's  transfer,            rather  than  within  20  working  days  as  specified  in               420.09(3)(b),  does  not implicate  the  Due Process  Clause.            Regulations which  embody only procedural time  limits do not            create  a liberty interest.   Smith v. Massachusetts Dep't of                                          _____    ______________________            Correction,  936 F.2d at 1397 n.11; see also Hewitt v. Helms,            __________                          ________ ______    _____            459  U.S. at 471 (the mere creation of a procedural structure            to regulate  the use  of  segregation does  not indicate  the            existence of a protected  liberty interest); id. at 472  (due                                                         ___            process  satisfied by informal, non-adversary review within a                                                                 ________            reasonable   time   after   confinement   to   administrative            _________________            segregation) (emphasis added).                 And, we note, despite the regulation's phrasing that the            hearing "shall  be held  within twenty  (20) working days  of            such a  transfer," the  regulation itself  cannot be  read as            creating   some   enforceable   constitutional  due   process            entitlement to a hearing within that time, as the regulations            expressly  provided  that  the  procedural time  limits  were            directory and waivable,   420.12,  and, were, in fact, waived            in  Josselyn's case.    Cf. Maldonado  Santiago v.  Velazquez                                    ___ ___________________     _________            Garcia, 821  F.2d 822, 827-28  (1st Cir.  1987) (due  process            ______            rights  were   violated  by  2-day   delay  in  post-transfer            hearing).                                         -16-            Josselyn's status was  reviewed every 15  days.  Mass.  Regs.            Code tit. 103,   421.08(3) (1989).                 The disciplinary investigation was completed on November            10, 1989.   After two continuances at  Josselyn's request and            one due to the  reporting officer's illness, the disciplinary            hearing was held  on February  2, 1990.   Josselyn was  found            guilty  on  February 12,  1990.    He  appealed  the  board's            recommended recapture of good  time.  On March 22,  1990, the            Commissioner    approved    the    recommendation   of    the            Superintendent  that  500 days  of  good  time be  forfeited.            Thereafter, Josselyn's DSU review occurred on April 20, 1990.                 This   chronology   suggests   a  steadily   progressive            disposition of  Josselyn's classification  status and  not an            impermissible attempt by the  defendants to use Josselyn's AA            status as  a substitute for  a formal DSU  classification, in            violation of any due process right.                                          D.                                          __                 Josselyn complains that the disciplinary board relied on            information  from  confidential informants  without assessing            the  informants'  reliability  or   the  credibility  of  the            information.                 Because the disciplinary  hearing subjected  him to  the            loss  of  a  state-created  liberty  interest  in  good  time            credits, Josselyn  was entitled to  "those minimum procedures            appropriate under  the circumstances and required  by the Due                                         -17-            Process  Clause  to insure  that the  state-created [liberty]            right is not arbitrarily abrogated."  Wolff v. McDonnell, 418                                                  _____    _________            U.S.  539, 557 (1974); see  also Langton v.  Berman, 667 F.2d                                   _________ _______     ______            231,  233 (1st Cir. 1981)  (same).  The  issue, therefore, is            whether due  process requires,  at a minimum,  an independent            assessment by  the disciplinary  board of the  reliability of            confidentialinformants andthe credibilityof thatinformation.4                 Among  the  minimum  requirements  of  due  process,  as            established  by   Wolff,  is  a  written   statement  of  the                              _____            factfinders as to  the evidence relied  upon and the  reasons            for the disciplinary  action taken.  Wolff v.  McDonnell, 418                                                 _____     _________            U.S. at 564.                      [T]he  provision  for  a  written  record                      helps  to   insure  that  administrators,                      faced  with  possible  scrutiny by  state                      officials  and  the  public, and  perhaps                      even   the   courts,  where   fundamental                      constitutional   rights  may   have  been                      abridged,  will  act  fairly.     Without                      written records, the inmate  will be at a                      severe  disadvantage  in propounding  his                      own  cause to  or defending  himself from                      others.   It  may be  that there  will be                      occasions when  personal or institutional                      safety   is   so   implicated  that   the                      statement  may  properly exclude  certain                      items of evidence, but  in that event the                      statement should indicate the fact of the                      omission.                                            ____________________            4.  Some  of  the  cases  in  this  area  freely  interchange            reliability  and   credibility  and  so  may   refer  to  the            assessment  as   one   of  the   credibility   (rather   than            reliability)  of the  informant and  the reliability  (rather            than  credibility) of the  evidence.  We  infer no meaningful            difference in the interchange.                                         -18-            Id. at 565.            ___                 Although  the Supreme Court  has not spoken specifically            on  the issue  of the  required procedures  when confidential            informants  are  used,  some  courts  have  interpreted  this            requirement of a  written statement by the  factfinders as to            the   evidence  relied   upon  as   thereby  encompassing   a            requirement   that   a  disciplinary   committee   have  some            evidentiary basis upon which to determine for  itself that an                                                           ______            informant's story  is probably credible.   See, e.g., Hensley                                                       _________  _______            v. Wilson, 850 F.2d 269, 277 (6th Cir. 1988).               ______                      [U]nless    the   committee    makes   an                      independent determination  about what the                      facts  of the  alleged misconduct  are by                      deciding,  minimally,  that  the  hearsay                      information  has  been   supplied  by   a                      reliable   informant,    it   is   merely                      recording  the  findings   made  by   the                      investigating  officer  who  has  made  a                      determination   about   the   informant's                      reliability,    without     making    any                      determination   for   itself  about   the                      informant's reliability or even the basis                      for   the  investigator's   opinion  that                      informant  is  reliable.   To  proceed in                      that fashion is not  fact finding.  It is                      recordkeeping.            Id. at 276; see also Kyle v. Hanberry, 677 F.2d 1386, 1389-90            ___         ________ ____    ________            (11th Cir. 1982) (same);  Helms v. Hewitt, 655 F.2d  487, 502                                      _____    ______            (3d Cir. 1981) (same),  rev'd on other grounds, 459  U.S. 460                                    ______________________            (1983).  But  see Sanchez v. Miller,  792 F.2d 694, 702  (7th                     ________ _______    ______            Cir. 1986) (while requiring an indicia  of reliability is not            inconsistent  with Wolff, it  is not compelled  by it), cert.                               _____                                _____            denied, 479 U.S. 1056 (1987).            ______                                         -19-                 Three  times in the past,  we have visited  the issue of            the  procedures  required  when  confidential  informants are            used.   In Gomes v.  Travisono, 510  F.2d 537, 540  (1st Cir.                       _____     _________            1974),  we reviewed  rules  governing  disciplinary  hearings            devised  under a  consent decree  and adopted  as law  by the            state  of Rhode  Island -  the so-called  Morris rules.   The                                                      ______            Morris rules required  that any decision  arrived at must  be            ______            based on substantial evidence manifested in the record of the            disciplinary proceeding and that                      if any of the facts establishing a  Board                      determination   are   derived   from   an                      unidentified  informant:  (1) the  record                      must  contain   some  underlying  factual                      information  from  which  the  Board  can                      reasonably  conclude  that the  informant                      was credible or his information reliable;                      (2)   the   record   must   contain   the                      informant's statement in language that is                      factual  rather than  conclusionary [sic]                      and must establish by its specifity [sic]                      that  the  informant spoke  with personal                      knowledge  of  the  matters contained  in                      such statement.            Id.            ___                 We stated in Gomes that this requirement was                              _____                      aimed     at     preventing     arbitrary                      determinations, which is the major thrust                      of  Wolff,  which  commands   "a  written                          _____                      statement  by the  factfinders as  to the                      evidence  relied on and  reasons" for the                      disciplinary  action.    If  the  written                      statement   is   intended  to   withstand                      scrutiny      and      guard      against                      misunderstanding,   it   cannot  indicate                      reliance on  speculation or on  facts not                      in the record.                                         -20-            Id.  Some circuit  courts have used this language  from Gomes            ___                                                     _____            to  support a determination  that federal  constitutional due            process,  irrespective of any state  law, is the  source of a            requirement that a disciplinary board independently determine            the  reliability   of  a   confidential  informant  and   the            credibility of the informant's  information.  See, e.g., Kyle                                                          _________  ____            v. Hanberry, 677  F.2d at 1390; Helms v.  Hewitt, 655 F.2d at               ________                     _____     ______            502.    But  see Sanchez  v.  Miller,  792 F.2d  at  702 n.12                    ________ _______      ______            (expressing  doubt   that   Gomes  had   concluded  that   an                                        _____            independent    reliability/credibility    determination   was            required as a matter of federal constitutional law).                 Our  own   post-Gomes  opinions  visiting   this  issue,                                 _____            however,  reveal a  less certain conclusion.   In  Langton v.                                                               _______            Berman, 667 F.2d  at 235,  and McLaughlin v.  Hall, 520  F.2d            ______                         __________     ____            382, 384-85  (1st Cir. 1975),  we declined to  decide whether            and  how, as a constitutional  requirement, a board must make            an independent  inquiry into the reliability  of an informant            and the credibility  of its  information.  Our  last word  on            this subject  reiterated our preference, as  voiced in Wolff,                                                                   _____            that  the  development  of  specific  procedural requirements            beyond  those  enumerated  in  Wolff be  left  in  the  first                                           _____            instance to the sound discretion  of corrections authorities.            Langton  v. Berman,  667  F.2d at  235.   At  the same  time,            _______     ______            however,                      [w]e  continue to  advise them  to follow                      Wolff's mandate to devise  regulations to                      _____                                         -21-                      assure  that   the  disciplinary  board's                      procedure  is  adequate   to  enable   it                      reasonably    to   conclude    that   any                      confidential  information  upon which  it                      acted  was   reliable.    We   say  this,                      however, without  committing ourselves as                      to what must be open for our review.            Id.            ___                 While we  remain cognizant of  the "need to  afford some            protection against arbitrary or  vindictive actions by prison            officials  stemming  from  unreliable  unidentified  or  even            nonexistent informants,"  id.,  this case  does  not  require                                      ___            resolution  of the  underlying  constitutional premise.    We            conclude in any event that no due process violation occurred.            That  is  because  those  courts  which  have  accepted  this            independent assessment  as a minimum due  process requirement            conclude that due process is  violated when the only evidence                                                            ____            offered  against  an inmate  in  a  disciplinary hearing  and            relied  upon  by  the  board  is  a  hearsay  recital  by  an            investigating  officer  of  an  uncorroborated  report  of an            unidentified informant.   See, e.g., McCollum  v. Miller, 695                                      _________  ________     ______            F.2d 1044, 1049 (7th  Cir. 1982); Kyle v. Hanberry,  677 F.2d                                              ____    ________            at 1390-91; Helms  v. Hewitt,  655 F.2d at  501-03; see  also                        _____     ______                        _________            Baker v. Lyles, 904 F.2d 925, 933 (4th Cir. 1990) ("[t]his is            _____    _____            not a case where the only evidence before the prison tribunal            was the hearsay statement of an unidentified informant"); cf.                                                                      ___            Hensley  v. Wilson, 850 F.2d at  276-77 (due process requires            _______     ______            an independent determination by a disciplinary committee of a                                         -22-            confidential    informant's   reliability    where   prisoner            misconduct is  found  upon evidence  consisting entirely,  or                                                            _____________            even  substantially, of  the  statement of  an  investigating            ___________________            officer that he has been told by confidential informants that            the  misconduct occurred);  McCollum v.  Williford,  793 F.2d                                        ________     _________            903,  905 (7th  Cir.  1986) (a  finding  of reliability  must            clearly be  made in  any disciplinary proceeding  that relies            primarily,  but not necessarily  exclusively, on confidential            ____________________________________________            informants).                 Accepting as true, as we must in reviewing this grant of            summary judgment in defendants' favor,  Josselyn's contention            that  the disciplinary  board in  this case  did not  make an            independent assessment of the reliability of the confidential            informants or  the credibility  of their information,  it is,            nonetheless, equally true, contrary to  Josselyn's attempt to            portray it  otherwise, that the board's  determination of his            guilt  was not based  solely, or even  substantially, on that                       ___            information.                 The investigating officer,  Philip Poirier, did  testify            that approximately 40 inmates  were interviewed and that none            had been informants in the past.  Poirier also testified that            of these  40 inmates, approximately 8  implicated Josselyn in            the  escape attempt  and, of  these 8  inmates, several  were            eyewitnesses  who saw Josselyn attempt to climb the wall.  In                                         -23-            addition to these  informant statements,  however, there  was            much physical evidence -                      conduit pipe attached with blue electrical tape  to                      pliers  and  recovered  just  short  of  the  inner                      perimeter fence;                      the  nose  of  the pliers  containing  a galvanized                      material, which matched the chain link fence;                      poles, fashioned  out  of broomsticks  and  blocks,                      connected  by blue  electrical tape,  found at  the                      base of the wall in the inner perimeter area, where                      the rope was attached;                      the escape rope fashioned from prison bedsheets and                      stamped  with   Josselyn's  laundry  identification                      number 533;                      Josselyn's laundry bag and pillowcase  stamped with                      his ID number 533, retrieved from his room;                      saturated  sneakers with scuff  marks on  the inner                      foot  area  and  a saturated  sweatshirt  found  in                      Josselyn's  room  and  identified  by  Josselyn  as                      belonging to him; and                      a hot pot with blue electrical tape on the cord and                      Josselyn's name printed on  the pot and  identified                      by Josselyn as his.                 The disciplinary board found "[t]he information gathered            from  inmate interviews,  coupled with the  physical evidence            confiscated  and  the  oral   testimony  obtained  from   the            reporting officer  shows the  board an  overwhelming pattern,            clearly indicative  of the fact that  [Josselyn] was directly            involved with an attempted escape."                 This case  is unlike,  for example, McCollum  v. Miller,                                                     ________     ______            695 F.2d  1004,  in  which  four inmates  were  charged  with            extortion  and pressuring other inmates to perform homosexual                                         -24-            acts  and the  only  evidence was  an  unsworn report  of  an            investigating  officer,  not  called  as  a   witness,  which            detailed statements of unidentified  confidential informants.            There  was no question in  the present case,  with the gaping            hole in the  fence and the rope, pipe, pliers and poles found            nearby, that an escape had been attempted.                 This  case is also unlike Helms v. Hewitt, 655 F.2d 487,                                           _____    ______            in  which an inmate was  found guilty of  striking an officer            during  a prison  melee  solely on  the  basis of  a  hearsay            account  of an unidentified informant's uncorroborated story.            Putting  aside the  investigating officer's testimony  that 8            inmates implicated Josselyn, including several who claimed to            have  witnessed  his attempt  to  scale the  wall,  there was            physical evidence linking Josselyn  to the attempted escape -            the rope  stamped with his  laundry ID number,  his saturated            clothing, including  sneakers with scuff marks  on the inside            foot area, and blue electrical tape, found  on an item in his            room, that was the same type as used on the escape tools.                 Despite the absence of any reference by the disciplinary            board in its report that it had independently determined that            the   confidential  informants   were   reliable  and   their            information   credible   in  identifying   Josselyn   as  the            perpetrator,  the  physical   evidence  recovered   obviously            provided  some corroboration.  Kyle v.  Hanberry, 677 F.2d at                                           ____     ________            1391  (the  inquiry  by   the  disciplinary  board  into  the                                         -25-            reliability of informants may be diminished or even satisfied            where  there  is  corroborating  physical  evidence   of  the            information   provided).     In   any  event,   because   the            disciplinary   board   did   not   rely   solely,   or   even            substantially, on any informant's identification  of Josselyn            as  perpetrator of the attempted escape,  we conclude that no            due process violation occurred by the board's alleged failure            to make an independent assessment  of the reliability of  the            confidential   informants  or   the   credibility  of   their            information.                 To be  sure, Josselyn downplays the  significance of the            physical  evidence.   He  suggests  that  his bedsheets  were            stolen; his clothing was  wet because, he claims, he  was out            jogging  that morning;  his sneakers  were worn  from playing            handball; his hot pot had no blue electrical tape on  it; and            that the entire general prison population had access to items            such as  the pipe, poles,  and tape.   But a  court does  not            review  de novo a disciplinary board's finding of guilt.  Due            process is satisfied if "some evidence" supports the decision            by  the board to  revoke good time  credits.  Superintendent,                                                          _______________            Massachusetts Correctional  Inst. v. Hill, 472  U.S. 445, 455            _________________________________    ____            (1985)  (declining  to decide  whether  due  process requires            judicial  review  of  prison  disciplinary  proceedings,  but            finding  that  state  statutory  law  provided  such review).            "Ascertaining whether  this standard  is  satisfied does  not                                         -26-            require  examination  of   the  entire  record,   independent            assessment of  the credibility  of witnesses, or  weighing of            the evidence."  Id.  There certainly was some evidence in the                            ___            record, apart from  any informant statements,  that supported            the board's conclusion and  we are not required to  set aside            decisions of  prison administrators  that have some  basis in            fact.  Id.  at 455-56.   "The Federal  Constitution does  not                   ___            require evidence that logically precludes  any conclusion but            the one reached by the disciplinary board."  Id. at 457.                                                         ___                                          E.                                          __                 Finally,  Josselyn argues  that the prison  policy which            requires DSU inmates to wear  handcuffs and leg shackles when            moving  to  one  location  to  another  is  an  arbitrary and            unconstitutional form  of  punishment because,  according  to            Josselyn,  he  has  no  prison  record  of  violence.    Even            accepting  as true  Josselyn's  contention as  to his  prison            record,  the  restraint policy  is  reasonably  related to  a            legitimate government  purpose of prison security.   There is            no constitutional deprivation.                                         IV.                 For  the  foregoing  reasons,  we affirm  the  grant  of            summary judgment in defendants' favor.                 Affirmed.                  _________                                         -27-
