                                                                  FILED
                                                      United States Court of Appeals
                       UNITED STATES COURT OF APPEALS         Tenth Circuit

                                    TENTH CIRCUIT                          December 19, 2012

                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court

 RUSSELL EUGENE FREEMAN,

        Plaintiff - Appellant,

 v.                                                           No. 12-1057
                                                 (D.C. No. 1:06-CV-00405-MSK-KMT)
 JOHN CARROLL, Case Manager III;                               (D. Colo.)
 CHARLES TAPPE, Hearing Chair Off.;
 BRIAN BRADEN, Life Safety Coord.;
 BETTY RIGGIN, Lieutenant,


        Defendants - Appellees.


                                 ORDER AND JUDGMENT*


Before O’BRIEN, HOLMES and MATHESON, Circuit Judges.


       Russell Freeman has been a prisoner at the Fremont Correctional Facility (“FCF”)

and the Colorado State Penitentiary (“CSP”), both part of the Colorado Department of

Corrections (“CODC”) system. On July 6, 2004, Mr. Freeman was the subject of a

disciplinary hearing at CSP for events that took place at FCF. He was found guilty of



       * This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
assault on a guard and sanctioned with the loss of 45 days of good time credits, 90 days

of lost privileges, and $1,626.20 in restitution.1

       After pursuing his state court remedies, Mr. Freeman filed a 42 U.S.C. § 1983

action in the United States District Court for the District of Colorado against the hearing

board members—Lts. Charles Tappe, Brian Braden, and Betty Riggin—and John Carroll,

the staff member assigned as a staff substitute for an inmate representative at the

disciplinary hearing (collectively “Defendants”). In several orders, the district court

granted summary judgment in favor of the Defendants.

       On appeal, Mr. Freeman argues that the district court erred in (1) concluding that

he was not denied due process at his disciplinary hearing, and (2) refusing to grant his

motion to reopen discovery. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

                                  I.     BACKGROUND

       A. Factual Background

              1. June 26, 2004 Incident

       Mr. Freeman has served over 30 years of a 40-year-to-life sentence. On June 26,

2004, an incident occurred between Mr. Freeman and Officer Maria Bork at FCF.

Officer Bork’s report, according to the notice of charges, stated:


       1
         He was also found guilty of and sanctioned for tampering with a lock or a
security device. On December 18, 2008, the Colorado Court of Appeals affirmed the
assault conviction but overturned the tampering conviction. See Freeman v. Watkins, No.
08CA0423 (Colo. App. Dec. 18, 2008). The tampering conviction is not at issue on
appeal.

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                                              2
              On Saturday, June 26, 2004, at approximately 1:25 p.m.,
              Officer Maria Bork observed an inmate leaving the cell
              assigned to [Mr. Freeman and another inmate]. The inmate
              exiting the cell had something under his shirt. Officer Bork
              approached the cell and saw that there were (3) inmates still
              in the cell, including [Mr. Freeman] and (2) visiting inmates.
              Officer Bork asked the visitors to leave the cell and they
              complied. [Officer] Bork then entered the cell and asked [Mr.
              Freeman] what was in the box. [Mr. Freeman] became
              agitated[,] stating “You guys just want to take all my fucking
              things.” [Officer] Bork then tried to calm [Mr. Freeman]
              down and asked him to come to the operations office to
              discuss the contents of the box. [Mr. Freeman] then came
              toward [Officer] Bork with the box and forcibly shoved the
              box at her, striking her in the chest. [Mr. Freeman] then took
              an aggressive posture, yelling and clenching his fists at her.
              [Officer] Bork then attempted to disengage by exiting the cell
              and ordering [Mr. Freeman] to stay in the cell. As [Officer]
              Bork closed the cell door with her key set, [Mr. Freeman]
              blocked the door from closing with his body and exited the
              cell. [Officer] Bork raised up her right hand at [Mr.
              Freeman’s] stomach-level to stop his attack. [Mr. Freeman]
              then pushed her with his body into the 2nd tier railing
              fronting the cell, causing Officer Bork’s back to strike the
              railing with considerable force. [Mr. Freeman] then left the
              area. [Officer Bork] followed and observed [Mr. Freeman]
              next to the [Cell House 8] entry talking to Sgts. Bell and
              McMorran. She immediately reported what had transpired
              earlier and that [Mr. Freeman] needed to cuff up. [Mr.
              Freeman] then lunged toward [Officer] Bork in an aggressive
              manner and Sgt. McMorran stepped between [Mr. Freeman]
              and [Officer] Bork. [Mr. Freeman’s] left hand was cuffed by
              [Officer] Bork when he pulled away from her, causing injury
              to her right hand. Security staff responded and finally
              restrained [Mr. Freeman’s] right hand. [Mr. Freeman] was
              then escorted out of the area by security staff and placed on
              RFP status.

ROA at 370.

     Mr. Freeman’s account of the incident is different. In a declaration prepared for
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                                            3
the district court, he stated: Officer Bork confronted him about a box of art supplies that

another inmate had left in his cell. Officer Bork told him to give her the box. He handed

it to her, and she then put her hand up to his chest to stop him from leaving his cell and

used her security key to close his cell door. He lived in a cell block where he was free to

come and go, except at night, so he waited five seconds for the locking mechanism to

reset and then pushed a button to open the cell door. As he left his cell, he walked around

Officer Bork, who was standing to the side of the doorway, and went downstairs. He

said, “At no point did I make any contact with Officer Bork.” Id. at 373.

       Mr. Freeman also declared: He was speaking with two other officers when Officer

Bork left the Cell House office and ordered him to let her handcuff him. As she put the

handcuff on his left wrist, it became so tight that he “accidentally pulled [his] hand away

from the position it was in.” Id. at 373. Officer Bork had already called for security, so

he told her that he would wait for security to finish cuffing him. Security officers took

him to the security office and then to solitary confinement. Mr. Freeman was in solitary

confinement for only 10 minutes before he was taken to another office, strip-searched,

and then transported to CSP. For the next 18 days, he “had no access to the phones,

letter-writing materials, or any other means of communication.” Id. at 376.

              2. Notice of Charges

       On July 2, 2004, Mr. Freeman was served with a Colorado Department of

Corrections (“CDOC”) Notice of Charges, which charged him with assault and recited

Officer Bork’s summary of the event. No witnesses were identified in the space
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                                             4
provided. Officer Bork and Lt. Darryl Directo, the disciplinary officer assigned to

investigate the case, signed the notice to “certify that [the] charges and summary are true

and correct.” Id. at 370.

       The notice advised Mr. Freeman, “If you desire witnesses, in accordance with the

Code of Penal Discipline, please notify the Reviewing Supervisor as soon as possible, but

no later than 24 hours prior to scheduled hearing, to avoid a continuance.” Id. Mr.

Freeman checked the box indicating that he wanted an inmate representative. In the

space following “Name of representative,” someone typed, “If representation is desired,

report to hearing 10 minutes early.” Id.

                3. July 6, 2004 Hearing

       In his declaration for the district court, Mr. Freeman stated that he was escorted to

the hearing less than five minutes before it started and was introduced to John Carroll, a

CDOC case manager, who would serve as his inmate representative. Mr. Freeman also

stated that he told Mr. Carroll he wanted to call certain witnesses. Mr. Carroll responded,

according to Mr. Freeman, that he was there to help protect Mr. Freeman’s rights, not to

advocate on his behalf.

       The hearing board consisted of Lts. Charles Tappe, Brian Braden, and Betty

Riggin.2 The board advised Mr. Freeman of his right to request representation, witnesses,

and continuances, as well as his right to remain silent. The board asked if he understood


       2
           At the time of the hearing, Lt. Betty Fulton.

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                                               5
“the charges against [him], as they are defined by the Code of Penal Discipline and the

possible sanctions if [he was] found guilty,” and he responded that he did. Id. at 386-87.

The chair then read the charges and asked whether Mr. Freeman understood them. Mr.

Freeman responded that he did. The chair also stated that the sanctions for assault are up

to 90 days of lost privileges, 30 days of punitive segregation, and 45 days of lost good

time.

        After the chair noted that Mr. Freeman had requested an inmate representative but

not witnesses when he was served the notice, Mr. Freeman responded that he had

requested witnesses. The chair told Mr. Freeman that he could request witnesses while

giving his testimony. The chair asked whether Mr. Freeman understood, but the

transcript states there was no audible response. When the chair asked Mr. Freeman how

he pled, he responded not guilty. The chair then swore in Lt. Directo and directed him to

present the department’s case.

        Lt. Directo related the incident and charges as they were stated in the Notice of

Charges. He also testified that Officer Bork sought medical treatment. The chair

directed that a letter from a CDOC risk management case manager, stating the costs to

date for Officer Bork’s medical treatment, be shown to Mr. Freeman.

        After Lt. Directo finished, the chair told Mr. Freeman that he could make a

statement regarding his plea, “ask for witnesses to present evidence[,] or give testimony

if you wish.” Id. at 392-93. Mr. Freeman responded that he would “like to talk to some

witnesses first.” Id. at 393. There was a long pause. Then, apparently referring to the
                                              --
                                              6
letter stating the costs for Officer Bork’s treatment that had been handed to him, Mr.

Freeman said, “This here doesn’t say what injuries were caused. She could have got in a

car accident or something.” Id. The chair responded, “Go ahead and present your case

then, Mr. Freeman.” Id.

       Mr. Freeman related his version of the incident and tried to point out problems

with the case against him. He stated that he “never initiated any forceful or passive

contact or any physical contact with” Officer Bork. Id. He asked why, if Officer Bork

saw another inmate leave his cell with something hidden under his shirt, she had not

stopped that inmate to investigate. He stated that, given their size difference, Officer

Bork would have been in the hospital if he had pushed her. He also told the board that, if

he had done all Officer Bork said, he would not have turned around and let her cuff him

up when she told him to.

       The chair interrupted Mr. Freeman when he began talking about the difficulty

officers later had in removing the handcuffs. The chair told him that he had gone beyond

the incident in question and that the tightness of the cuffs had no bearing on the case. Mr.

Freeman stated that he was trying to explain why he turned around while being cuffed

and that Officer Bork could not be believed. The chair then repeatedly told Mr. Freeman

that he had described the pain that he felt from the tightness of the cuffs and to move on,

finally telling him that if he continued the board would cut him off completely. The chair

directed Mr. Carroll to explain to him that he needed to move on.

       Mr. Freeman next attempted to discredit Lt. Directo’s investigation by asking him
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                                             7
if he had spoken to any of the inmates who witnessed the incident. Lt. Directo responded

that he had not. Mr. Freeman again asked him, and Lt. Directo stated, “I asked the staff

that were involved. I completed my investigation. That’s why you are getting charged

with this.” Id. at 400. Mr. Freeman then asked if he spoke with Lance Spurlock, a

CDOC staff member, and Lt. Directo admitted that he had not.3

       Asked if he had anything else to present, Mr. Freeman requested polygraph tests

for himself and Officer Bork. He asked why, if he had pushed Officer Bork so hard, the

paints had not spilled out of the box she was holding and why she had not pushed the

panic button like she was supposed to do.

       The chair again asked if Mr. Freeman had anything else to present, and Mr.

Freeman responded that he did not.

       After conferencing with one another, the board found Mr. Freeman guilty of

assault for pushing Officer Bork into a railing, pushing the box into her chest, and pulling

away from her while she was trying to handcuff him. It explained that its decision was

“based on the report by [Officer] Bork, presentation by Lieutenant Directo and by your

own statements.” Id. at 404. It then imposed $1,626.20 in restitution for the injuries

sustained by Officer Bork, a 90-day loss of privileges, and a 45-day loss of good time.

       The board later issued a written Disposition of Charges in which it found Mr.

Freeman guilty of assault for the same conduct as in the oral disposition. The written

       3
       In his opening brief, Mr. Freeman explains that he anticipated that Officer
Spurlock would testify to having heard Officer Bork plotting to get Freeman.

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                                             8
disposition listed as supporting evidence Officer Bork’s written statement, Lt. Directo’s

presentation, and Mr. Freeman’s testimony. As the reasons for the penalties, it stated,

“The seriousness of the assault; the assault was on staff and staff was injured.” Id. at 410.

       Mr. Freeman appealed to the Colorado state district court, which affirmed the

conviction and sentence. On December 18, 2008, the Colorado Court of Appeals

affirmed the assault conviction.

       B. Procedural History

       On March 8, 2006, Mr. Freeman filed a complaint based on 42 U.S.C. § 1983 in

the United States District Court for the District of Colorado, alleging constitutional

violations related to this and other hearings at FCF and CSP. On August 28, 2006, the

district court dismissed the complaint for failure to plead exhaustion of administrative

remedies. Due to an intervening change in law, the Tenth Circuit vacated the judgment

and remanded the case for further proceedings.

              1. District Court’s May 4, 2010 Order

       On May 4, 2010, the district court made three rulings in response to a motion for

summary judgment by the Defendants.

       First, the court noted that Mr. Freeman had “not specified whether he is asserting

his claims against the Defendants in their individual or official capacities.” Id. at 204. It

liberally construed the pleadings, “assum[ing] that Mr. Freeman intended to assert both

types of claims.” Id. The court concluded, however, that “no official capacity claims are

cognizable” because “Mr. Freeman’s claims are based on discrete acts and because he
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                                              9
seeks no specific prospective remedy.” Id. The court therefore considered all the claims

as brought against the Defendants in their individual capacities. The court also dismissed

all individual capacity claims in which Mr. Freeman had not shown personal participation

by a defendant.

       Second, the district court denied the motion seeking summary judgment for Mr.

Carroll on the claim that Mr. Carroll had deprived Mr. Freeman of his right to call

witnesses while acting as his inmate representative. The court also concluded that Mr.

Carroll was not entitled to qualified immunity. The court later reversed course and

dismissed Mr. Carroll.

       Third, the court concluded there was insufficient evidence to support a prima facie

claim against Lts. Tappe, Braden, and Riggin. “[B]ecause Mr. Carroll allegedly did not

advise the hearing officers of Mr. Freeman’s desire to call witnesses, the hearing officers

cannot reasonably he held liable for failing to afford [him] a procedural protection they

were not aware he had requested.” Id. at 213.

       Following these rulings, the only remaining defendant was Mr. Carroll, to be

rejoined later by Lts. Tappe, Braden, and Riggin.

              2. Reinstatement of Claims Against Hearing Board Members

       On January 5, 2011, Mr. Freeman filed a Rule 60(b)(1) motion for relief from

judgment. He argued that the district court had erred in finding that he had failed to

allege that the hearing board members were personally involved in the deprivation of Mr.

Freeman’s rights. Given this mistake of fact, he requested that the court reinstate Lts.
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Tappen, Braden, and Riggin as parties.

       On March 4, 2011, the district court concluded it had mistakenly determined that

there were no allegations of Lts. Tappe, Braden, and Riggin’s personal participation in

the deprivation of his rights. Accordingly, the district court granted Mr. Freeman’s

motion, reinstating the claim against them for the denial of due process at the July 6

disciplinary hearing.

              3. District Court’s January 18, 2012 Order

       On May 17, 2011, Mr. Freeman moved for summary judgment. On May 20, 2011,

the defendants filed an amended motion to dismiss. On November 18, 2011, the district

court denied Mr. Freeman’s motion for summary judgment. The court also stated that the

evidence appeared to be insufficient for Mr. Freeman to establish his prima facie case and

that there appeared to be no genuine issues of material fact to be resolved at trial. It

therefore ordered him to present additional evidence demonstrating a prima facie case or

otherwise to show cause why the court should not enter summary judgment. Mr.

Freeman responded to the order with exhibits, and he requested additional time to

conduct discovery pursuant to Rule 56(d) of the Federal Rules of Civil Procedure.

       On January 18, 2012, the district court denied Mr. Freeman’s request for further

discovery: (1) it doubted that he was a non-movant who could make a Rule 56(d)

motion, as he had brought the motion for summary judgment; and (2) Mr. Freeman

sought to discover evidence outside the context of the July 6, 2004 hearing, and there was

no showing that such discovery was related to his due process rights during the hearing.
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                                              11
       As will be discussed in further detail below, the district court also concluded that

Mr. Freeman had not presented sufficient evidence to establish a prima facie case for his

due process claims and therefore granted summary judgment in favor of the hearing

board defendants and Mr. Carroll.

                                     II.    DISCUSSION

       Mr. Freeman appeals regarding two issues. First, he argues that the district court

erred in granting summary judgment on his due process claim arising from the July 6,

2004 hearing. Second, he argues that the district court erred in denying his motion to

reopen discovery after the court filed an order to show cause.

       A. Official Capacity and Individual Capacity Claims

       Before reaching the due process and discovery issues, we first address whether

any official capacity claims are at issue on appeal. In its May 2010 order, the district

court concluded “that no official capacity claims are cognizable” in this case “because

Mr. Freeman’s claims are based on discrete acts and because he seeks no specific

prospective remedy.” Id. at 204. The district court therefore considered all claims to be

against the Defendants in their individual capacities. We can find nothing in the district

court’s subsequent orders indicating that it reinstated the official capacity claims.

       In his notice of appeal from the January 2012 summary judgment order and final

judgment, Mr. Freeman stated that he is “appeal[ing] from any and all orders antecedent

and ancillary thereto.” Id. at 692. In the conclusion of his opening brief, he requests that

we reverse the district court’s grant of summary judgment against CDOC Executive
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                                             12
Director Tom Clements in his official capacity and against the Defendants in their

individual and official capacities. In his reply brief, Mr. Freeman again states that he is

making a claim against Mr. Clements in his official capacity and against the Defendants

in their official and individual capacities. At oral argument, he asserted that he was

making official capacity claims for injunctive relief—reversal of the restitution order and

the return of the funds taken from his prison account—and individual capacity claims for

monetary damages from the Defendants.

       A party waives an issue when he or she fails to raise it in an opening brief.

Anderson v. U.S. Dep’t of Labor, 422 F.3d 1155, 1174 (10th Cir. 2005); see also Adams-

Arapahoe Joint Sch. Dist. No. 28-J v. Cont’l Ins. Co., 891 F.2d 772, 776 (10th Cir. 1989)

(“An issue not included in either the docketing statement or the statement of issues in the

party’s initial brief is waived on appeal. . . . Merely mentioning inherent defects in

another context is not enough.”). A party also waives an issue by raising it insufficiently

in an opening brief. San Juan Citizens Alliance v. Stiles, 654 F.3d 1038, 1056 (10th Cir.

2011). “Arguments raised in a perfunctory manner . . . are waived.” United States v.

Hardman, 297 F.3d 1116, 1131 (10th Cir. 2002).

       Mr. Freeman has not sufficiently raised the issue of whether there are any official

capacity claims, much less argued it. He asserts that he is making official capacity

claims. But he fails to argue in his briefs that the district court erred in dismissing the

official capacity claims for failure to state a prospective remedy. Mr. Freeman has

thereby waived the argument on appeal that the district court erred in dismissing the
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                                              13
official capacity claims. We therefore review Mr. Freeman’s remaining claims against

the Defendants in their individual capacities only.

       B. Legal Background on Due Process in Prison Disciplinary Hearings

       Although a prisoner’s “rights may be diminished by the needs and exigencies of

the institutional environment, a prisoner is not wholly stripped of constitutional

protections when he is imprisoned for crime.” Wolff v. McDonnell, 418 U.S. 539, 555

(1974). “[Prisoners] may not be deprived of life, liberty, or property without due process

of law,” but their due process rights are “subject to restrictions imposed by the nature of

the regime to which they have been lawfully committed.” Id. at 556. “[T]he full panoply

of rights due a defendant in [criminal] proceedings does not apply.” Id. at 556; see also

Grossman v. Bruce, 447 F.3d 801, 804-05 (10th Cir. 2006) (prisoners are entitled to some

due process in prison disciplinary proceedings, but not the full panoply of rights of a

criminal prosecution).

       Due process requires that an inmate

              receive: (1) advance written notice of the disciplinary
              charges; (2) an opportunity, when consistent with institutional
              safety and correctional goals, to call witnesses and present
              documentary evidence in his defense; and (3) a written
              statement by the factfinder of the evidence relied on and the
              reasons for the disciplinary action.

Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454 (1985) (citing

Wolff, 418 U.S. at 563-67). In addition, “the minimum requirements of procedural due

process” demand that “the findings of the prison disciplinary board are supported by

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some evidence in the record.” Id.; see also Howard v. U.S. Bureau of Prisons, 487 F.3d

808, 812 (10th Cir. 2007).

       The Supreme Court said in Wolff that it was “not prepared to hold that inmates

have a right to either retained or appointed counsel in disciplinary proceedings.” 418

U.S. at 570. Nevertheless, “[w]here an illiterate inmate is involved,” or where “the

complexity of the issue makes it unlikely that [an] inmate will be able to collect and

present the evidence necessary for an adequate comprehension of the case, he should be

free to seek the aid of a fellow inmate.” Id. If a prisoner is not allowed to seek the aid of

a fellow inmate, he should be given “adequate substitute aid in the form of help from the

staff or from a sufficiently competent inmate designated by the staff.” Id.

       C. Summary Judgment on Due Process

       Mr. Freeman argues that his due process rights were violated due to (1) inadequate

notice of the restitution penalty; (2) insufficient evidence; (3) an inadequate written

statement explaining the board’s decision; (4) his not being allowed to present witnesses;

and (5) inadequate assistance of counsel.

       We review de novo a district court’s decision to grant summary judgment,

applying the same standards the district court should apply. E.E.O.C. v. C.R. England,

644 F.3d 1028, 1037 (10th Cir. 2011). A court “shall grant summary judgment if the

movant shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “[W]e construe all facts

and reasonable inferences in a light most favorable to the nonmoving party.” Champagne
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Metals v. Ken-Mac Metals, Inc., 458 F.3d 1073, 1078 (10th Cir. 2006) (quotations

omitted).

              1. Notice of the Restitution Penalty

       Mr. Freeman asserts that his advance written notice of the disciplinary charges

was constitutionally deficient because it did not inform him of the possible sanctions for

those charges. The district court rejected this claim. It explained that, under Wolff, the

purpose of notice “is to give the charged party a chance to marshal the facts in his

defense and to clarify what the charges are.” See Wolff, 418 U.S. at 564. Written notice

must be given at least 24 hours before the hearing “to inform [the defendant] of the

charges and to enable him to marshal the facts and prepare a defense.” Id. The district

court noted that advance notice of possible sanctions is not one of the explicit

requirements of Wolff.

       Neither Wolff nor Hill states that due process requires notice of potential sanctions

in addition to notice of the disciplinary charges. On appeal, Mr. Freeman cites to

McMillan v. Healey, 739 F. Supp. 153 (S.D.N.Y. 1990), which held that, although

inmates do not have to be informed of potential penalties prior to misconduct, “failure to

notify an inmate, after he has been charged with misconduct, of the potential penalties

that could be imposed for that misconduct,” violates due process. Id. at 157.

       Few courts have followed McMillan in requiring such notice. For example, a

federal court in Indiana granted defendants qualified immunity, noting that McMillan was

the only case holding that there is a due process right to notice of potential penalties. See
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Higgason v. Swihart, CIV. 3:93-CV-805AS, 1995 WL 358769, at *8-9 (N.D. Ind. May

11, 1995); see also Jolley v. Wezner, CV 970407988S, 1999 WL 509810, at *5 (Conn.

Super. Ct. July 6, 1999) (“The ruling in McMillan v. Healey, has not been widely used

and goes beyond the minimum requirements set forth in Wolff v. McDonnell.”).

       No federal circuit court has recognized a right to notice of penalties in prison

disciplinary hearings. In an unpublished decision, we held that “notice of potential

penalties is not one of the requirements of due process.” White v. Golder, 245 F. App’x.

763, 764 (10th Cir. 2007) (unpublished) (cited only for persuasive value, Fed. R. App. P.

32.1; 10th Cir. R. 32.1(A)). In the absence of clearly established authority that Mr.

Freeman was entitled to notice of potential sanctions, the board defendants are protected

by qualified immunity from § 1983 liability. See Currier v. Doran, 242 F.3d 905, 923

(10th Cir. 2001).4

              2. Sufficiency of the Evidence

       Mr. Freeman continues to challenge the sufficiency of the evidence to support the

disciplinary board’s determination. We review “the findings of [a] prison disciplinary

board” for “some evidence.” Howard v. U.S. Bureau of Prisons, 487 F.3d 808, 812 (10th

Cir. 2007) (quoting Hill, 472 U.S. at 454). Review under this standard “does not require

examination of the entire record, independent assessment of the credibility of witnesses,

or weighing of the evidence.” Id. (quotations omitted). Rather, the court evaluates

       4
       We note that the district court pointed to the Colorado Code of Penal Discipline,
which provides for restitution as a possible sanction.

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                                             17
“whether there is any evidence that could support the conclusion reached by the

disciplinary board.” Id. (quotations omitted). “A disciplinary board’s decision can be

upheld . . . even if the evidence supporting the decision is meager.” Id. (quotations

omitted). Here, the district court concluded that the evidence in Mr. Freeman’s hearing

met the “some evidence” requirement. See Hill, 472 U.S. at 455 (stating that

requirements of due process are “met if there was some evidence from which the

conclusion of the administrative tribunal could be deduced” (quotations omitted)).

       On appeal, Mr. Freeman argues that “[m]ere accusations unsupported by any

additional evidence do not constitute ‘some evidence.’” Aplt. Br. at 19 (quoting Moore v.

Plaster, 266 F.3d 928, 931-32 (8th Cir. 2001) (conduct violation report containing

accusations but not based on prison officer’s personal knowledge and not listing any

witnesses is not evidence). He asserts that other circuits—including the Second Circuit in

Luna v. Pico, 356 F.3d 481, 488 (2d Cir. 2004)—have found disciplinary convictions

invalid when the evidence is unreliable. He also cites Taylor v. Wallace, 931 F.2d 698

(10th Cir. 1991), for the proposition that “indicia of reliability” are particularly important

in disciplinary hearings given the limited due process rights required. Id. at 702. In

Taylor, we held “that the testimony of confidential informants cannot be given any

weight absent a determination made by the prison staff that indicated that the informant

was reliable.” Id. at 701.

       Mr. Freeman’s reliance on cases like Luna and Taylor is misplaced. His case

lacks the levels of hearsay involved in Luna, where the inmate victim refused to testify.
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356 F.3d at 484. In Luna, the disciplinary determination was based on a misbehavior

report prepared by a prison officer using information provided by another prison officer

who had spoken with the victim. Id. at 489. The officer preparing the report never spoke

with the inmate victim and had no idea if the victim was telling the truth, and the officer

who had spoken with the inmate victim was not called as a witness. Id. Taylor and other

cases Mr. Freeman cites for support involve accusations by a confidential informant,5 and

that is plainly not the case here.

       Rather than a report prepared by a prison guard providing the hearsay of either an

inmate victim who refused to testify or a confidential informant, the Notice of Charges

here contains the statement of a known prison guard who was the victim and who signed

the statement of the incident, certifying it as “true and correct.” ROA at 370. And before

presenting Officer Bork’s statement at the hearing, Lt. Directo interviewed other staff

members rather than merely relying on her statement. Lt. Directo also presented a memo

to the board listing the costs of Officer Bork’s treatment as evidence of her injuries.

       We are satisfied that “the findings of the prison disciplinary board are supported

       5
          Mr. Freeman also cites the following: Sira v. Morton, 380 F.3d 57, 78 (2d Cir.
2004) (hearing officer must independently assess the credibility of confidential
informants, considering totality of circumstances); Kyle v. Hanberry, 677 F.2d 1386,
1390 (11th Cir. 1982) (hearing committee violated due process in not establishing
informant credibility, where determination based on hearsay information derived from a
confidential informant). Mr. Freeman also cites Biggs v. Terhune, 334 F.3d 910, 915 (9th
Cir. 2003) (“[T]he evidence underlying the board’s decision must have some indicia of
reliability.” (quotations omitted)), overruled by Hayward v. Marshall, 603 F.3d 546 (9th
Cir. 2010), which is inapposite to this case because the record here provided a reliable
basis for the board’s decision.

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                                             19
by some evidence in the record.” Hill, 472 U.S. at 454.

              3. Written Statement of Determination

       Mr. Freeman argues that the disciplinary board’s written statement of its decision

was insufficient. A “written statement by the factfinders as to the evidence relied on and

reasons for the disciplinary action” is required to “protect the inmate against collateral

consequences” and to ensure that the board acts fairly. Wolff, 418 U.S. at 565.

       In Taylor, the board stated only that it “found [the prisoner] guilty in reliance upon

confidential witness statements.” 931 F.2d at 703. We considered this evidence

sufficient because of “the explicit description of the conduct set out in the offense report

and the obvious institutional concerns implicated.” Id.

       In Mitchell v. Maynard, 80 F.3d 1433 (10th Cir. 1996), we rejected a prisoner’s

challenge to the sufficiency of the board’s statement when it wrote that the prisoner “was

found guilty based on an officer’s report ‘related to this officer.’” Id. at 1445. We

explained that the prisoner knew “the conduct he was accused of committing and whose

statement had incriminated him.” Id. Moreover, “[t]he lack of more specific findings

also did not hamper our ability to review the proceeding and [the board’s] findings.” Id.;

see also Smith v. Maschner, 899 F.2d 940, 946 (10th Cir. 1990) (A transcript of a

disciplinary proceeding is an adequate substitute for a written statement of findings).

       Here, the Disposition of Charges states that the supporting evidence consists of the

written statement by Officer Bork, the presentation by Lt. Directo, and the testimony by

Mr. Freeman. It also states the board’s finding that Mr. Freeman used force against
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                                             20
Officer Bork by pushing her into a railing, pushing the box of paints into her chest, and

pulling away from her as she was trying to cuff him. Finally, the disposition states that

the reasons for its decision were the seriousness of the assault, that the assault was on

staff, and that the staff member was injured.

       The notice of charges provides an explicit description of Mr. Freeman’s conduct.

See Taylor, 931 F.2d at 703. Mr. Freeman knows the conduct he was charged with and

whose statement incriminated him. See Mitchell, 80 F.3d at 1445. Nothing in terms of

notice hampers his ability to contest the ruling or our ability to review the proceeding and

the findings. The district court did not err in concluding that the board’s written

statement was adequate.

              4. Opportunity to Present Witnesses

       Mr. Freeman argues that the hearing board violated his right to call witnesses. The

district court held: “Regardless of whether Mr. Freeman told Mr. Carroll the names of

the witnesses he wanted or not, at the hearing Mr. Freeman knew that witnesses he

desired were not present. He was advised that he could call witnesses or that he could

request a continuance, but he did neither.” ROA at 678. The court therefore concluded

that the board had not denied Mr. Freeman his right to call witnesses.

       Prisoners have only a qualified right to call witnesses in a disciplinary hearing.

An inmate’s interest must be balanced “against the needs of the prison, and some amount

of flexibility and accommodation is required.” Wolff, 418 U.S. at 566. Prison officials

must have “discretion to keep the hearing within reasonable limits and to refuse to call
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                                             21
witnesses that may create a risk of reprisal or undermine authority, as well as to limit

access to other inmates to collect statements or to compile other documentary evidence.”

Id.; see also Grossman, 447 F.3d at 805 (inmates are entitled to call witnesses and present

evidence as long as doing so “will not be unduly hazardous to institutional safety or

correctional goals” (quotations omitted)). Because of the danger of reprisal and

resentment, “the Constitution should not be read to” require the right to confront and

cross-examine witnesses against a prisoner in a disciplinary hearing. Wolff, 418 U.S. at

568; see also Taylor, 931 F.2d at 701.

       Mr. Freeman states that “[t]here is no question that the hearing board and Carroll

knew that [he] desired to call witnesses to the hearing. There is no dispute that no

witnesses were ever called.” Aplt. Br. at 18. He argues that this “[b]lanket exclusion of

[his] witnesses . . . is an ‘obvious procedural defect’ entitling [him] to relief.” Id. at 17.

He also argues that his due process rights were violated when he was “prevented from

interviewing potential witnesses and identifying those who could testify in his defense.”

Id. at 18.

       When Mr. Freeman’s hearing began, the chair of the board told him that he “ha[d]

the right to request representation, witnesses, and continuances.” ROA at 385-86. When

the chair noted that Mr. Freeman had not notified the prison of his desire to request

witnesses, Mr. Freeman stated that he had done so. The chair responded that Mr.

Freeman could “request them when [he was] giving [his] testimony.” Id. at 388. The


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chair asked Mr. Freeman if he had any other questions, and Mr. Freeman stated that he

did not.

       After Lt. Directo presented his case, the chair told Mr. Freeman that he could

“make a statement regarding [his] plea” and that he could “ask for witnesses to present

evidence or give testimony.” Id. at 392-93. Mr. Freeman responded, “I’d like to talk to

some witnesses first.” Id. at 393. After a pause, and referring to the letter documenting

the costs of Officer Bork’s treatment that had been handed to him, Mr. Freeman said,

“This here doesn’t say what injuries were caused. She could have got in a car accident or

something.” Id. The chair then stated, “Okay. Go ahead and present your case then, Mr.

Freeman.” Id. During the course of Mr. Freeman’s presentation, the chair repeatedly

asked Mr. Freeman if he had anything else to present or any other questions for Lt.

Directo. Mr. Freeman finally responded, “No, man.” Id. at 402.

       Rather than requesting a continuance to gather evidence, as he had been told was

his right, Mr. Freeman proceeded to present his case. Although Mr. Freeman indicated

that he wanted to request witnesses before Lt. Directo presented the prison’s case and

was told that he could do so when it was time to present his case, he failed to do so when

that time came, even though the chair explicitly told him at that time that he could call

witnesses. The chair asked him five times if he had anything else left to present, and at

no point did Mr. Freeman name the witnesses that he had written down while speaking

with Mr. Carroll before the hearing.


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         Prisoners have only a qualified right to call witnesses, and prison officials may

evaluate a request for witnesses and refuse to provide them for various reasons. See

Wolff, 418 U.S. at 566. Regarding the calling of witnesses, the Notice of Charges

instructed Mr. Freeman to notify prison officials “as soon as possible, but no later than 24

hours prior to the scheduled hearing.” ROA at 370. The record lacks evidence that he

notified anyone of his desire to call witnesses at least 24 hours before the hearing. Mr.

Freeman had an opportunity to request witnesses, and he failed to do so at the appointed

time. The board might have asked him if he no longer desired to call witnesses, but it

was not required to act as his advocate. Mr. Freeman never asked for a continuance to

interview witnesses or obtain other evidence, although the board advised him of this

right.

         The district court therefore did not err in finding that Mr. Freeman’s qualified right

to call witnesses was not violated.

                5. Inmate Aid in Preparing and Presenting Case

         Mr. Freeman argues that he was entitled to assistance in preparing his defense

because he was unable to do it himself, and he asserts that Mr. Carroll failed to provide

such assistance.

         The district court stated that, under Wolff, “[t]he appointment of an inmate

representative . . . does not give an inmate greater procedural rights than he would

otherwise have.” Id. at 684. The court further stated that Mr. Freeman was “entitled to


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the opportunity to present evidence; this he was provided.” Id. at 685. The court

therefore dismissed the claim against Mr. Carroll.

       Prisoners have no right to the assistance of counsel in prison disciplinary hearings.

See Wolff, 418 U.S. at 569-70. Nevertheless, a prisoner is entitled to “the aid of a fellow

inmate” or an adequate substitute when he is “illiterate” or where the issues are so

complex that he cannot “collect and present the evidence necessary for an adequate

comprehension of the case.” Id. at 570.

       Neither of the situations applies to Mr. Freeman. Id. He argues, however, that he

was entitled to assistance because he was locked in isolation and unable to collect

evidence.

       Mr. Freeman’s appeal on this issue fails. Because, as discussed earlier, he has no

official capacity claims, his inadequate assistance claim must be against a defendant in

his individual capacity. The only defendant Mr. Freeman mentions with respect to his

assistance claim is Mr. Carroll. But even if Mr. Carroll were a proper defendant for this

claim, he would as a state actor have qualified immunity.

       Mr. Carroll asserts that he is entitled to qualified immunity because it is not

“sufficiently clear that a reasonable official would have understood that his conduct

violated” a right to inmate assistance under these circumstances. Aplee. Br. at 15

(quoting Currier, 242 F.3d at 923). He contends there is no Supreme Court or Tenth

Circuit decision on point and the weight of authority from the other circuits does not

clearly establish the right.
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                                             25
       We agree with Mr. Carroll that the law was not clearly established that Mr.

Freeman was entitled to assistance. Neither this court nor the Supreme Court has

addressed Mr. Freeman’s inadequate assistance theory, and the two circuit courts that

have addressed it are in conflict. Compare Eng v. Coughlin, 858 F.2d 889, 897 (2d Cir.

1988), with Miller v. Duckworth, 963 F.2d 1002, 1004 (7th Cir. 1992).

       The district court correctly dismissed Mr. Freeman’s claim against Mr. Carroll.

       D. Denial of Request to Reopen Discovery

       Mr. Freeman argues that the district court erred in granting summary judgment

without giving him an adequate opportunity to conduct discovery. This court reviews for

an abuse of discretion a district court’s denial of a Rule 56(d) motion. Trask v. Franco,

446 F.3d 1036, 1042 (10th Cir. 2006). To constitute an abuse of discretion, the court’s

decision must exceed “the bounds of the rationally available choices given the facts and

the applicable law in the case at hand.” Valley Forge Ins. Co. v. Health Care Mgmt.

Partners, Ltd., 616 F.3d 1086, 1096 (10th Cir. 2010) (quotations omitted).

       Under Rule 56(d), “the court may . . . defer considering [a summary judgment]

motion or . . . allow time . . . to take discovery” if the “nonmovant shows by affidavit or

declaration that, for specified reasons, it cannot present facts essential to justify its

opposition.” Fed. R. Civ. P. 56(d). The nonmovant must file an affidavit explaining why

facts necessary to rebut the motion for summary judgment cannot be presented. Valley

Forge Ins., 616 F.3d at 1096. The affidavit must identify the unavailable facts, why the

facts cannot be presented, the steps taken to obtain them, and how additional time will
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                                               26
help the party obtain the facts and rebut the motion for summary judgment. Id.

       The district court denied Mr. Freeman’s Rule 56(d) motion for several reasons.

First, the court concluded that Mr. Freeman was not eligible to bring the motion because

he was not a nonmovant. It had ordered him to show cause why it should not grant

summary judgment in the Defendants’ favor in its order denying Mr. Freeman’s summary

judgment motion. Mr. Freeman filed his Rule 56(d) motion in response to this order to

show cause. The court treated the Rule 56(d) motion as connected to Mr. Freeman’s

motion for summary judgment, and thus as filed by the movant.

       Second, the court determined that the discovery Mr. Freeman desired was

irrelevant to his claims. It stated, “Mr. Freeman seeks to discover evidence outside the

context of the hearing, but there is no showing that such discovery would impact Mr.

Freeman’s rights to due process during the hearing.” ROA at 687. The court explained

that “due process provides protections as to procedure rather than outcome” and that Mr.

Freeman sought discovery that went to the board’s decision rather than the procedures

followed in the hearing. Id. at 687 n.15.

       Third, the court concluded that Mr. Freeman’s request to discover evidence of bias

was based on pure speculation and was “not a legitimate basis to reopen discovery.” Id.

       Fourth, the court stated that Mr. Freeman sought evidence to “challenge the

validity of the CDOC’s restitution regime as a whole” and concluded that such discovery

was “not pertinent to the claim asserted against these Defendants.” Id.

       Finally, in a footnote, the district court explained that counsel commenced
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                                            27
representation of Mr. Freeman after discovery closed and, rather than moving to reopen

discovery, filed a motion for summary judgment, “apparently assuming that his evidence

was sufficient . . . to prevail on the claim as a matter of law.” Id. at 685 n.12. Then, after

the court denied Mr. Freeman’s motion for summary judgment and ordered him to show

cause why summary judgment should not be entered against him, Mr. Freeman sought to

reopen discovery. The court stated that, given this history, it was “not inclined to view

Mr. Freeman’s prior pro se status as a significant factor in reviewing the request.” Id.

       On appeal, Mr. Freeman’s three arguments fail to persuade us that the district

court abused its discretion.

       First, he asserts that the district court erred in not treating liberally his initial pro se

status. This argument fails because it does not address the basis of the court’s holding:

the district court denied the motion because the desired discovery was irrelevant to the

issue of alleged due process violations at the disciplinary hearing.

       Second, he argues that the district court erred in restricting procedural due process

review to the process rather than the outcome of the hearing because a court has a duty to

review the sufficiency of the evidence. But the district court did review the evidence and

found it sufficient, and so have we.

       Third, Mr. Freeman argues that the district court erred in concluding that he did

not need further discovery. He states that the district court in its order to show cause

applied a heightened legal standard to the denial of witnesses. He therefore needed to

produce information that he had not anticipated before filing his motion for summary
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                                               28
judgment. Mr. Freeman fails to argue this issue adequately for us to address it. He has

therefore waived this argument. See Hardman, 297 F.3d at 1131 (“Arguments raised in a

perfunctory manner . . . are waived.”).

       In sum, the district court did not abuse its discretion in denying the Rule 56(d)

motion.

                                   III.   CONCLUSION

       For the foregoing reasons, we affirm the district court’s orders granting summary

judgment and denying Mr. Freeman’s Rule 56(d) motion to reopen discovery.

                                          ENTERED FOR THE COURT



                                          Scott M. Matheson, Jr.
                                          Circuit Judge




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