
USCA1 Opinion

	




                           UNITED STATES COURT OF APPEALS                                 FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1479                                 BRENDAN MCGUINNESS,                                 Plaintiff, Appellee,                                          v.                               LARRY E. DUBOIS, ET AL.,                               Defendants, Appellants.                                 ___________________        No. 95-1480                                BRENDAN M. MCGUINNESS,                                Plaintiff, Appellant,                                          v.                               LARRY E. DUBOIS, ET AL.,                                Defendants, Appellees.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                        FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Selya, Stahl and Lynch,                                   Circuit Judges.                                   ______________                                 ____________________            Brendan M. McGuinness on brief pro se.            _____________________            Nancy  Ankers  White,  Special  Assistant  Attorney  General,  and            ____________________        Philip W.  Silva, Department of  Correction, on  brief for  appellees,        ________________        Larry E. Dubois, et al.                                 ____________________                                  February 12, 1996                                 ____________________                 Per   Curiam.     The   defendants,   John   Treddin,  a                 ____________            disciplinary  hearing  officer at  Massachusetts Correctional            Institute  - Cedar  Junction (MCI-CJ)  and Ronald  Duval, the            superintendent at  MCI-CJ, appeal the grant  of a declaratory            judgment in  favor of inmate Brendan  McGuinness.  McGuinness            cross-appeals the grant of summary judgment on the  ground of            qualified  immunity in favor of  the defendants on his claims            for damages.  We reverse the declaratory judgment in favor of            McGuinness  and affirm  the summary  judgment on  the damages            claims.                                          I.                 In  November 1991,  McGuinness got  into  an altercation            with a  prison guard, Sergeant John Andrade,  and was charged            with  various prison disciplinary  code violations, including            being  out  of  place,  disrupting the  security  or  orderly            running  of  the institution,  fighting  and  use of  abusive            language.  A  few days  later, McGuinness was  notified of  a            disciplinary  hearing  and   moved  to  MCI-CJ's   West  Wing            Segregation  Unit ("West Wing").1  He was placed in the upper                                            ____________________            1.  The  West Wing  is comprised  of two  sections.   The two            upper  tiers are  denominated as  the "Awaiting  Action Unit"            ("AAU").   The AAU is  a secure  holding area  for an  inmate            while he is awaiting a disciplinary hearing.  The lower tiers            of  the  West  Wing  are the  Departmental  Segregation  Unit            ("DSU").  According to  prison regulations, an inmate may  be            placed in the DSU only after a finding by the Commissioner of            Correction  (or his designee)  based on  substantial evidence            that, if confined in the general population, the inmate poses            a substantial threat  (i) to  the safety of  others, (ii)  of            damaging or destroying property, or (iii) to the operation of                                         -2-            tier  of  the  West Wing,  i.e.,  in  the  AAU.   McGuinness'            disciplinary  hearing was held in the West Wing on January 9,            1992.   Both  McGuinness  and Andrade  testified and  Andrade            submitted his  written report.   McGuinness admitted  that he            argued with,  used foul language toward,  and struck Andrade,            but claimed  that he was  provoked when  Andrade pushed  him.            Andrade  acknowledged that  he  pushed  McGuinness away  when            McGuinness  got right up in his face.  McGuinness' request to            call three inmate witnesses from the general population, (who            he  alleged  were  eyewitnesses),  was  denied  "for security            reasons."   However, Officer Treddin considered their written            affidavits.   Ultimately, Treddin deemed the three affidavits            "non-credible" because in Treddin's opinion all three inmates            saw the confrontation only in part.  Treddin found McGuinness            guilty  based  on McGuinness'  own  admissions  and Andrade's            written report and  testimony.  Treddin imposed a sanction of            30 days in isolation and recommended that McGuinness lose 100            days of good-time credit.                 McGuinness    appealed    the   matter    to   defendant            Superintendent  Duval,  claiming,  inter  alia,  that Treddin            wrongfully   portrayed  McGuinness   as  the   aggressor  and            wrongfully   denied   his  request   for  witnesses   due  to            McGuinness' placement in the  West Wing.  He argued  that his                                            ____________________            the correctional  facility.   Mass.  Reg.  Code tit.  103,               421.09 (1990).                                         -3-                                         -3-            witnesses "would have been able to explain what they saw much            better if given a chance  to give an oral testimony."   Duval            denied  McGuinness' appeal.    Eventually, the  incident  was            referred to the DSU  board and, pursuant to a  finding, based            on this November  1991 incident and a  subsequent incident or            incidents  in  January  1992,  that  McGuinness  presented  a            substantial  threat  to  the  safety  of  others,  McGuinness            received  a two year sentence  of confinement to  the DSU (in            addition to the sanction of 30 days in  isolation and loss of            100 days of good-time credit).                                         II.                 In  November 1993,  McGuinness  filed an  action in  the            district court, pursuant to 42 U.S.C.   1983, naming  Officer            Treddin and  Superintendent Duval  as defendants (as  well as            other  prison  officials not  pertinent  here).   McGuinness'            complaint  raised  several  claims,  most of  which  are  not            involved  in these  cross-appeals.   The counts  which remain            relevant  are these:  Count 2  alleged that  Treddin violated            McGuinness' right to due  process.  In particular, McGuinness            alleged that he  had been unlawfully transferred to  the West            Wing prior to any  guilty finding and that Treddin  used this            alleged illegal placement in the West Wing as the sole reason            for  denying his request for witnesses.  Count 4 alleged that            Superintendent  Duval  violated   McGuinness'  right  to  due            process  by  denying  his  appeal  without  any  explanation.                                         -4-                                         -4-            McGuinness  asked  for compensatory  and punitive  damages on            these  claims.  In Count 6 McGuinness requested a declaratory            judgment  that his placement in the West Wing was illegal and            the denial  of witnesses due to his  placement there violated            due process.                 The  parties cross-moved  for  summary judgment.   In  a            memorandum  and order,  dated  March 15,  1995, the  district            court concluded that genuine  issues of material fact existed            as  to   whether  (a)   McGuinness'  placement  in   the  AAU            constituted an unlawful placement in a segregation unit prior            to a  guilty finding,  the imposition of  sanctions, and  the            appropriate   finding   of   "substantial  threat"   by   the            Commissioner; and  (b) Treddin's refusal to  allow McGuinness            to  call   witnesses  violated   "the  rule  of   Kenney  [v.                                                              ______            Commissioner  of  Correction, 393  Mass.  28  (1984)]."   The            ____________________________            court,  therefore, declined to  enter a declaratory judgment,            as requested in Count 6, in any party's favor.  The court did            conclude,  however, that the state  of the law  on this issue            was confused and,  thus, Treddin and  Duval were entitled  to            summary  judgment  on the  ground  of  qualified immunity  on            McGuinness' damages claims  -- Count 2 (Treddin)  and Count 4            (Duval).2                                            ____________________            2.  The district court  construed Count 4 as  a claim against            Duval, not on the  basis of respondeat superior  (which would            not lie,  pursuant to   1983,  in any event), but  as a claim            that Duval was personally liable for failing to take remedial            action after  learning of  the alleged due  process violation                                         -5-                                         -5-                 Count  6 then  went to  a one-day  bench trial  at which            Officer  Treddin testified.  The court's findings of fact and            rulings of law  can be found at McGuinness v.  Dubois, 887 F.                                            __________     ______            Supp. 20,  21-23 (D. Mass. 1995).   In brief, the court ruled            that  the  AAU  is  not  a DSU.    Thus,  the  court rejected            McGuinness' initial premise, i.e.,  that his placement in the            AAU constituted an unlawful placement in the DSU prior to the            required  findings  by the  Commissioner.    Nonetheless, the            court  held that  McGuinness was  "not given  the protections            afforded  him by  Department  of Correction  regulations"  as            interpreted  by Kenney  and  subsequent caselaw.   The  court                            ______            declared that  Treddin's determination must be  set aside and            that the  rulings that followed the  disciplinary hearing are            void and  of no effect and may play no part whatsoever in any            further  classification,  penal,  disciplinary,   or  release            decisions with respect to McGuinness.                 As  noted at the  outset, Treddin and  Duval appeal this            declaratory judgment  and McGuinness cross-appeals  the March            15 summary judgment denying his claims for damages.                                         III.                 In Wolff  v. McDonnell, 418  U.S. 539 (1974),  the Court                    _____     _________            held  that  a state-created  right  to  good-time credit  for            satisfactory   behavior,   forfeitable   only   for   serious                                            ____________________            through   McGuinness'   appeal  following   the  disciplinary            hearing.   Thus  construed, the  district court  found Duval,            nonetheless, entitled to qualified immunity.                                         -6-                                         -6-            misbehavior,  is  a sufficient  liberty  interest  within the            Fourteenth Amendment to entitle  the inmate to "those minimum            procedures appropriate  under the circumstances  and required            by the Due  Process Clause to  insure that the  state-created            right  is not  arbitrarily  abrogated."   Id.  at 557.3    In                                                      ___                                            ____________________            3.  Recently, the Court, in Sandin v. Conner, 115 S. Ct. 2293                                        ______    ______            (1995),  refocused  the due  process  inquiry  away from  the            parsing  of  the mandatory/discretionary  language  in prison            regulations and back to the  nature of the deprivation, i.e.,            whether  the  restraint  "imposes  atypical  and  significant            hardship on the inmate in relation to the ordinary  incidents            of prison  life" or "will  inevitably affect the  duration of            his  sentence."   Id.  at 2299-302.    In Sandin,  the  Court                              ___                     ______            concluded that solitary confinement  did not present the type            of atypical,  significant deprivation in which  a state might            conceivably create a liberty interest.  Id. at 2301.  Nor did                                                    ___            it inevitably affect  the duration of Conner's sentence.  Id.                                                                      ___            at 2302.                 Sandin, however,  did not  retreat from Wolff's  holding                 ______                                  _____            that,  if  a  state  statutory provision  created  a  liberty            interest in  a shortened  prison sentence which  results from                     ________________________________            good-time credits, revocable only if  the inmate is guilty of            serious misconduct, that inmate is entitled to the procedural            protections outlined in Wolff.  Id. at 2297; see also Gotcher                                    _____   ___          ________ _______            v. Wood, 66  F.3d 1097,  1110 (9th Cir.  1995) (opining  that               ____            Wolff's  due process  principles  remain  applicable  in  the            _____            context  of revocation of  statutory good-time  credits after            Sandin).            ______                 Massachusetts has  a statutory provision,  Mass. Gen. L.            ch. 127,    129, awarding  a good conduct  deduction from  an            inmate's   maximum   imprisonment   term,   forfeitable   for            violations of prison rules.   And, in the instant  case, as a            result  of the  guilty  finding on  the disciplinary  charge,            McGuinness forfeited  100  days of  good-time.    McGuinness,            therefore, was entitled to  the procedural protections of the            Due Process Clause  prior to the revocation  of his statutory            good-time  credits.  (Although Mass.  Gen. L. ch.  127,   129            was repealed on  July 1, 1994,  the repealing provision  also            provided that the  law in  effect at the  time an offense  is            committed  governs  sentencing  for that  offense,  i.e., the            repealed  section still applies  to McGuinness, whose offense            was committed prior to July 1, 1994.)                 As  explained in  greater  detail, infra,  the issue  in                                                    _____            these  appeals  is what  process  was due  McGuinness  at his                                         -7-                                         -7-            Wolff, the Court determined  that, at a minimum,  due process            _____            entitled  an inmate,  facing a  disciplinary hearing,  to (1)            advance (no less than 24 hours) written notice of the claimed            violation,  (2)  a  qualified  right to  call  witnesses  and            present documentary evidence in  his defense when  permitting            him  to do so will  not be unduly  hazardous to institutional            safety or correctional  goals, and (3) a written statement of            the  factfinders  as  to  the evidence  relied  upon  and the            reasons for the disciplinary action taken.  Id. at 563-67.                                                        ___                 These  cross-appeals concern  the  second of  these  due            process  requirements  --  the  parameters  of  the  inmate's            qualified right to call witnesses.  The district court found,            and  the  defendants  do  not  dispute,  that  MCI-CJ  has an            institutional policy  of denying an inmate's  request to call            inmate   witnesses   from  the   general   population   at  a            disciplinary  hearing held in the West Wing.4  This policy is            based  on the  heightened security  requirements in  the West            Wing, which houses inmates with a demonstrated proclivity for            violence  and disruption,  and on  the resulting  effect that            bringing witnesses into  the West Wing has on  the allocation            of  corrections officers there and in the rest of the prison.                                            ____________________            disciplinary hearing under federal constitutional law.                                       _______            4.  The court also found, however, that there were occasions,            although  rare,  when  a disciplinary  hearing  involving  an            inmate  housed in the West  Wing had been  moved outside that            wing.                                         -8-                                         -8-            Any inmate entering the West Wing from the general population            has to  be strip-searched  and accompanied by  two correction            officers; restraints are required  to move inmates within the            West Wing; and  restraints may, or  may not, be  used in  the            presence of hearing officers at disciplinary hearings.                 The court held that the Kenney decision, i.e., "the rule                                         ______            of Kenney,"  and subsequent  caselaw prohibits the  denial of               ______            witnesses' testimony simply based  on an inmate's location in            the West Wing and that the caselaw and the prison regulations            require   an   individualized  assessment   that   calling  a            particular witness would be unduly hazardous to institutional            safety  or  correctional goals.    The  court found  that  no            individualized  assessment occurred  in McGuinness'  case and            thus McGuinness was not given the protections afforded him by            the regulations as interpreted by Kenney and its progeny.                                              ______                 To  a  large  extent,  however,  Kenney  was  simply  an                                                  ______            interpretation of the requirements of state law.   In Kenney,                                                  _________       ______            inmate  Kenney had been transferred  to the DSU  prior to his                                                 __________            disciplinary hearing  on assault  charges and confined  there            under the same conditions as those inmates transferred to the            DSU  pursuant to  a finding  by the  Commissioner that  their            behavior  posed  a  substantial  threat   to  the  residents,            property,  or  operations  of  the institution.    Kenney  v.                                                               ______            Commissioner  of  Correction,  393  Mass.  at  29.    At  his            ____________________________            disciplinary hearing, Kenney's  request that the  two alleged                                         -9-                                         -9-            victims (both  inmates in the general  population) be allowed            to  appear  as witnesses  was  denied.   Kenney  subsequently            brought an action in state court  and on appeal the SJC found            that the prison officials had violated their own regulations,            which have the force of state law, by placing Kenney in a DSU            cell for committing a  disciplinary offense before Kenney had            been  found guilty,  before sanctions  had been  imposed, and            before  the  Commissioner  had  found  that  Kenney  posed  a            substantial threat to  the institution.   Id. at  33-34.   As                                                      ___            Kenney  was  illegally incarcerated  in  the  DSU, the  court            rejected the  prison  officials'  attempt  to  justify  their            denial  of  his request  to call  witnesses  on basis  of his            location in the DSU.  Id. at 35.                                  ___                 To the extent that "the rule of Kenney" is solely a rule                                                 ______            of state law,  it has no  application in this    1983  action            claiming a  deprivation of McGuinness' rights  secured by the            federal  Constitution  and  laws.5    "Federal constitutional            standards  rather than state statutes define the requirements            of procedural due process."   Russell v. Selsky, 35  F.3d 55,                                          _______    ______            60  (2d Cir.  1994)  (internal quotation  marks and  citation            omitted).  "The failure of the [disciplinary] board to comply            with its  own regulation  would  constitute a  denial of  due                                            ____________________            5.  To  the  extent  that  the  prison officials  arbitrarily            violated  their own  state law  regulations, it  would appear            that  McGuinness could  have  pursued state  judicial review.            See Sandin v. Conner, 115 S. Ct. at 2302 n.11.            ___ ______    ______                                         -10-                                         -10-            process if  the regulation were mandated  by the Constitution            or federal  law."  Domegan v. Fair, 603 F. Supp. 360, 364 (D.                               _______    ____            Mass.  1985); see also Olim v. Wakinekona, 461 U.S. 238, 250-                          ________ ____    __________            51 (1983) ("The  State may choose  to require procedures  for            reasons   other  than   protection  against   deprivation  of            substantive rights, of course, but in making that  choice the            State  does not  create an  independent substantive  right.")            (Footnote  omitted).   "The  rule of  Kenney," therefore,  is                                                  ______            relevant to McGuinness'   1983 action only to the extent that            Kenney  accurately  recites  the  parameters  of  federal due            ______            process.                 The SJC did consider whether Kenney's due process rights            were  violated by the denial  of his request  to call certain            witnesses.   Kenney v. Commissioner of  Correction, 393 Mass.                         ______    ___________________________            at  34.  But that  determination was based  on its conclusion            that due process requires  some support in the administrative            record to justify the  denial and none was found  in Kenney's            case.    Id.  at 35,  citing  Real  v.  Superintendent, Mass.                     ___          ______  ____      _____________________            Correctional  Inst., Walpole,  390  Mass.  399,  407  (1983).            ____________________________            However,  the Supreme Court  has since held  that due process            does not  require that  support for  the denial  of witnesses                 ___            exist  as part  of the  administrative record;  rather prison            officials may satisfy due  process by presenting testimony in            court if the deprivation of a liberty interest  is challenged            because  of that  claimed defect  in the  hearing.   Ponte v.                                                                 _____                                         -11-                                         -11-            Real, 471  U.S. 491,  496-97 (1985), vacating  and remanding,            ____                                 _______________________            Real  v. Superintendent,  Mass. Correctional  Inst., Walpole,            ____     ___________________________________________________            supra.            _____                 Insofar as Kenney speaks to the commands of due process,                            ______            therefore, we disagree with  the district court's  conclusion            that,   "properly  interpreted,"   Kenney   stands  for   the                                               ______            proposition   that  "witnesses   cannot   be   denied  in   a            disciplinary hearing  simply based  upon the location  of the            individual within  the prison."  McGuinness v. Dubois, 887 F.                                             __________    ______            Supp.  at 22.    Further, of  import  is the  Kenney  court's                                                          ______            treatment  of Devaney  v. Hall,  509 F.  Supp. 497  (D. Mass.                          _______     ____            1981).  In Devaney, the district court held that the "across-                       _______            the-board"  policy of  MCI-CJ  [then  called MCI-Walpole]  of            permitting   only   written   statements   of   witnesses  in            disciplinary hearings held in the DSU [then called  Block 10]            did  not  violate due  process as  it  was not  arbitrary nor            beyond the discretion of prison authorities to adopt.  Id. at                                                                   ___            500-01.   In Kenney,  the SJC  distinguished  Devaney on  the                         ______            _____________  _______            ground that, unlike Devaney, Kenney was  not lawfully held in            the DSU and reliance  on his location as a  justification for            the denial  of witnesses was therefore  unreasonable.  Kenney                                                                   ______            v. Commissioner of  Correction, 393  Mass. at 35  n.11.   If,               ___________________________            "properly interpreted,"  Kenney  stands for  the  proposition                                     ______            that  witnesses cannot  be denied  in a  disciplinary hearing            simply  based upon the location  of the individual within the                                         -12-                                         -12-            prison, whether lawfully confined  in that area or  not, then            the SJC would not have distinguished Devaney; rather, the SJC                                   _____________ _______            would  have expressed  disagreement  with Devaney's  holding.                                                      _______            But the SJC did not do that.                 Although  we   disagree   with  the   district   court's            interpretation  of  "the  rule  of Kenney,"  insofar  as  the                                               ______            district  court  interprets  that  rule as  speaking  to  the            requirements  of  federal  due  process,6  we  note  that  to            prohibit live  defense  witness testimony  at a  disciplinary            hearing,  numerous courts  have  interpreted the  due process            teachings of  the Wolff opinion to  require an individualized                              _____            decision,  based on  the  facts of  each  case.   See,  e.g.,                                                              __________            Mitchell  v. Dupnik, 67 F.3d 216, 223 (9th Cir. 1995); Forbes            ________     ______                                    ______            v.  Trigg, 976 F.2d 308,  317 (7th Cir.  1992), cert. denied,                _____                                       ____________            113 S.  Ct. 1362 (1993); Ramer v.  Kerby, 936 F.2d 1102, 1104                                     _____     _____            (10th Cir. 1991);  King v. Wells, 760  F.2d 89, 93  (6th Cir.                               ____    _____            1985);  Dalton v.  Hutto, 713  F.2d 75,  78 (4th  Cir. 1983);                    ______     _____                                            ____________________            6.  Similarly, we conclude that neither Guyton v. Dubois, No.                                                    ______    ______            92-1819 (Mass. Super.  Ct. July 20, 1992), nor  Abrazinski v.                                                            __________            Dubois, 876 F. Supp. 313 (D. Mass. 1995), further support any            ______            due process  determination.   Guyton was  found to  have been            unlawfully  held in  the  DSU and  thus  Guyton is  simply  a                                                     ______            straightforward   application  of  Kenney.    The  Abrazinski                                               ______          __________            court's discussion of Kenney was dicta and, in any event, for                                  ______            reasons  discussed, supra,  we  disagree  with  that  court's                                _____            reading of Kenney as holding that "isolation in a segregation                       ______            unit alone, even  if legal,  is not sufficient  to support  a                        ______________            denial  of witnesses."  Abrazinski v. Dubois, 876 F. Supp. at                                    __________    ______            323 (emphasis added).                                         -13-                                         -13-            Bartholomew v. Watson,  665 F.2d 915,  918 (9th Cir.  1982)7;            ___________    ______            but see Powell v. Coughlin, 953 F.2d 744, 749 (2d Cir. 1991).            _______ ______    ________            The Supreme Court,  itself, has addressed the  validity of an            "across-the-board"  policy  denying  witness   requests  only            indirectly.     While,  in  Ponte,  it   disagreed  with  the                                        _____            Massachusetts prison officials' contention that "'across-the-            board'  policies  denying  witness  requests  are  invariably            proper,"  Ponte v.  Real,  471 U.S.  at  496, as  the  Second                      _____     ____            Circuit has said, the Court "has not ruled that such policies            are invariably improper."   Powell v.  Coughlin, 953 F.2d  at                                        ______     ________            749  (holding  that an  across-the-board  policy barring  the            testimony of mental  health staff in an  inmate's presence at            prison disciplinary hearings does  not violate due process as                                            ____________________            7.  We note that while the Bartholomew opinion stated  that a                                       ___________            blanket   proscription  against  calling   certain  types  of            witnesses  violated   the  "suggestion"  in  Wolff  that  the                                                         _____            decision to deny live  witness testimony should be made  on a            case-by-case analysis of the potential hazards which may flow            from  the  calling of  a  particular  person, Bartholomew  v.                                                          ___________            Watson, 665  F.2d at 918, later cases, in citing Bartholomew,            ______                                           ___________            have,  without comment, transformed  this characterization of            Wolff's "suggestion" into a requirement.  See, e.g., Mitchell            _____                                     _________  ________            v. Dupnik, 67 F.3d at 223.               ______                 We  also note that,  apart from Bartholomew,  all of the                                                 ___________            above-mentioned  cases  that opine  that  an across-the-board            proscription  against  live  witness testimony  violates  due            process appear distinguishable from  the present case in that            nothing   in   those  cases   suggests   that  the   absolute            prohibitions  on  the calling  of  any  witnesses or  certain            categories of  witnesses were even  purported to be  based on            institutional security.   And, in each  case cited, including            Bartholomew,   the   across-the-board  prohibition   extended            ___________                                          ________            prison-wide   in   an   undifferentiated   fashion   to   all            ___________            disciplinary hearings.                                         -14-                                         -14-            the  policy  is reasonably  based  on  legitimate penological            interests and is not an exaggerated response).                 Although some particular case  in the future may present            compelling  evidence  that MCI-CJ's  policy  of denying  live            testimony  from inmate  witnesses at  a  disciplinary hearing            held  in  the  West  Wing  violates  due  process,  we  leave            consideration of such  a case where  it appears presently  to            reside --  in the future.  We find that, on the facts of this            case,  the  district  court  erred  in  concluding  that  the            application of  this policy to McGuinness  violated his right            to due  process.   McGuinness contends that  he was  provoked            into  striking Andrade  and  that should  lessen any  penalty            imposed.   McGuinness concedes  that, contrary to  the prison            rules, he did not inform Officer Treddin in advance about the            content  of the expected testimony of  Justin Holmes and Jack            Shea,  other  than   characterizing  them  as   eyewitnesses.            Nonetheless,  Treddin obtained  their affidavits,  along with            the  affidavit  of  a   third  inmate,  Michael  Dowd,  whose            testimony McGuinness had not  previously requested.   Treddin            concluded  that none of the three saw the whole confrontation            - a factual determination  certainly within his discretion to            make  and not within a  court's competency to  overturn.  See                                                                      ___            Superintendent,  Mass. Correctional Inst.,  Walpole, v. Hill,            ___________________________________________________     ____            472  U.S. 445,  454-55  (1985) (holding  that procedural  due            process  is satisfied  if  the decision  to revoke  good-time                                         -15-                                         -15-            credits is supported by "some evidence"  in the record, which            "does  [not]  imply  that  a  disciplinary's board's  factual            findings ... are subject to second-guessing upon review").                 The  guilty finding  was based  on the  undisputed facts            that McGuinness was  out of his cell,  acting disruptive, and            used  abusive   language  and   assaulted  a   staff  member.            McGuinness was permitted to present his defense, supported by            witness affidavits,  that  he was  provoked.   He  has  never            suggested what  their live testimony would  have added, other            than that they would have been able to "explain what they saw            much  better."8     The  live  testimony   of  the  requested            witnesses was  denied on the  basis of a  policy --  the bona            fides of which  have not  been challenged here  -- rooted  in            legitimate   institutional  security  concerns.     In  these            circumstances, the defendants  have carried  their burden  of            proving  that  the  denial  of  live  testimony  was  neither            arbitrary  nor  capricious,  see  Smith  v.  Mass.  Dept.  of                                         ___  _____      ________________            Correction,  936 F.2d  1390, 1399  (1st Cir. 1991),  and that            __________            Treddin did  not clearly  abuse his considerable  discretion,            see Hurney v. Carver, 602  F.2d 993, 995 (1st Cir. 1979),  in            ___ ______    ______            denying McGuinness' request for the live testimony of Holmes,            Shea, and  Dowd, even if  the denial  was based on  a general                                            ____________________            8.  And, it is not certain that even this suggestion was made            at the  disciplinary hearing  so that Treddin  could consider            it.  Rather, on  the record before us, this  suggestion first            appears  in McGuinness'  written  appeal of  the disciplinary            finding to the prison superintendent.                                         -16-                                         -16-            policy of denying  live witness testimony  in the West  Wing.            "[S]o long as the reasons are logically related to preventing            undue  hazards  to   'institutional  safety  or  correctional            goals,'   the  explanation   should  meet  the   due  process            requirements  as outlined in Wolff."  Ponte v. Real, 471 U.S.                                         _____    _____    ____            at 497.                                         IV.                 The  declaratory judgment of  May 1,  1995, in  favor of            plaintiff  McGuinness on  Count 6  is reversed.   As  we have                                                  ________            concluded  that  McGuinness' constitutional  rights  were not            violated, the March 15,  1995 order granting summary judgment            in favor of defendants Treddin and Duval on Counts 2 and 4 is            affirmed.  So ordered.  No costs.            _________                                         -17-                                         -17-
