
USCA1 Opinion

	




          October 6, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                  _________________        No. 94-1281                                   GLEN M. SULLIVAN,                                Plaintiff, Appellant,                                          v.                                 PETER PEPE, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                           Cyr and Boudin, Circuit Judges.                                           ______________                                 ____________________            Glen M. Sullivan on brief pro se.            ________________            Nancy Ankers White, Special Assistant Attorney General, and            __________________            Michael H. Cohen, Counsel, Department of Correction,  on brief for            ________________        appellee.                                 ____________________                                 ____________________                      Per Curiam.   Pro se prisoner Glen Sullivan appeals                      __________        __            a  district court  order which  granted the  defendant prison            officials summary judgment in this civil action that Sullivan            filed under  42 U.S.C.  1983.   Sullivan's verified complaint            sought  declaratory and  injunctive relief  and damages  as a            result   of   Sullivan's   confinement    in   administrative            segregation   pending   a   disciplinary  investigation   and            subsequent  disciplinary  conviction  for participating  with            other inmates in the fraudulent  use of a credit card to  buy            running shoes.  As  a result of the  disciplinary conviction,            Sullivan was required to forfeit sixty (60) days of good time            credits.    We   affirm the judgment  for the defendants with            one modification.                                          I.                 The complaint named  the following  defendants in  their            individual capacities:    Peter Pepe,  Superintendent of  the            Massachusetts Correctional Institution  (M.C.I.) at  Norfolk,            Larry Dubois, the  Massachusetts Commissioner of Corrections,            David Malone, the disciplinary  hearing officer who  presided            at  Sullivan's  disciplinary  hearing,  and  Sergeant Stephen            Gatewood, the  investigating officer at M.C.I.  Norfolk.  The            complaint alleged that  the defendants  deprived Sullivan  of            his good  time credits  without due process  by "establishing            guilt  without evidence"  and "allow[ing]  perjured testimony            into the record  and bas[ing  the finding of]  guilt on  that                                         -2-            testimony."  Sullivan asked the court  to issue a declaratory            judgment  to that  effect  and to  expunge his  institutional            record of the  incident and reinstate his  good time credits.            Sullivan also  sought compensatory  damages in the  amount of            $1000  against each defendant for  each day that  he spent in            segregation  and  $10,000  in   punitive  damages  from  each            defendant.1                 Before the defendants  were served,  the district  court            reviewed  Sullivan's complaint in  connection with his motion            to proceed in forma pauperis (IFP)  under 28 U.S.C.  1915(a).                       __ _____ ________            On October 8, 1993,  the court issued a memorandum  and order            which allowed  that motion.   However,  the court  noted that            Sullivan's claim for the restoration of his good time credits            could  only  be raised  by  a  habeas corpus  petition  under            Preiser v. Rodriguez, 411 U.S. 475 (1973).  The court allowed            _______    _________            Sullivan's  remaining  claims   against  the  defendants   to            proceed, noting that its ruling did not determine whether the            complaint  was otherwise  sufficient  to state  a claim  upon            which relief  could be  granted.  Thereafter,  the defendants            were served with Sullivan's complaint.2                                            ____________________            1.  Although the complaint  is somewhat ambiguous, Sullivan's            subsequent filings  indicate that his damages  claim is based            solely on his confinement in administrative segregation.            2.  However, the record suggests  that the defendants did not            receive the court's October 8, 1993 order.                                         -3-                                          3                 The  defendants  filed a  motion to  dismiss or,  in the            alternative, for summary judgment.   The motion was supported            by  affidavits  from  defendants  Malone  and  Gatewood   and            numerous   documents   from   the  disciplinary   proceeding,            including  copies  of  the disciplinary  report  that charged            Sullivan with  various offenses and the  disciplinary hearing            record, which  reported officer  Malone's description  of the            evidence and of the reasons  that he found Sullivan  guilty.3            Sullivan filed an opposition to the defendants' motion.   The            parties' respective filings and Sullivan's verified complaint            indicate that the following facts are undisputed.                  Sullivan  is serving  a  12-20 year  sentence for  armed            assault.   Before the disciplinary incident in  issue, he had            accumulated  over  280  good  time credits  and  suffered  no            forfeitures.   On June 9, 1993, Sullivan was removed from the            general  population  at  M.C.I.  Norfolk,  a medium  security            prison, and  placed in the  institution's Receiving Building.            He was told that he was being placed on pending investigation            status  due  to claims  concerning  the fraudulent  use  of a            credit  card.  On the following day, Sullivan was interviewed            by Sgt.  Gatewood.  Gatewood  told Sullivan that  someone had                                            ____________________            3.  The defendants also submitted Sullivan's form request for            witnesses, which  identified inmate Steven Santo  as the sole            witness Sullivan  wished to  call in his  defense, Sullivan's            letter   appealing   Malone's    disciplinary   finding    to            Superintendent Pepe,  a form  recording that that  appeal had            been denied,  and a  record of Sullivan's  forfeiture of  the            good time credits.                                            -4-                                          4            placed  an order for two pairs of sneakers in Sullivan's name            with East  Bay Running  Store, Inc. (East  Bay), a  Wisconsin            company.    The order  that  Sgt.  Gatewood referred  to  was            fraudulently made  with a  third party's credit  card number.            Sullivan denied knowledge of any credit card or purchase from            East Bay in his name.                   On  June  22,  1993, Sullivan  received  a  disciplinary            report which alleged that the aforementioned order was placed            with  East   Bay  in  Sullivan's  name   and  M.C.I.  Norfolk            address.4   The  disciplinary  report charged  Sullivan  with                                            ____________________            4.  The disciplinary report was prepared by Sgt. Gatewood and            contained the following allegations:                 On 6-7-93, an investigation was initiated into  the                 fraudulent use of credit cards by inmates housed at                 MCI-Norfolk.  Through investigative  techniques and                 the interview process the following facts have been                 established.                 On 5-27-93,  an  order was  placed at  East Bay  Running            Store,    Inc., 427  Third Street, Wausau,  Wisconsin, for  a            pair of   Reebok Shaq  Attack sneakers  and one pair  of Nike            Pantheon  sneakers.  This attempted purchase was fraudulently            done      by using an innocent civilian's credit card number.            This      order was  scheduled to  be shipped to  Glenn (sic)            Sullivan,      Two  Clark Street, P.O.  Box 43,  Norfolk, MA.            East Bay  Running Store was alerted to this credit card fraud            and  this order was cancelled.                 On  6-9-93,  inmate  Glen  Sullivan was  placed  in  the                 Receiving  Building  Pending   Investigation.     Inmate            Sullivan  was advised of his Miranda rights at this time.                 On 6-22-93,  this investigation  was concluded.   Inmate                 Sullivan's status was changed from R.B./P.I. to R.B./AA.                                         -5-                                          5            multiple   offenses,  including  stealing.5    Sullivan  also            received  a Request for  Representation and/or Witnesses form            which he used to  request that inmate Steven Santo  be called            as a  witness at Sullivan's disciplinary hearing.   Santo was            also under  investigation for  fraudulently using the  credit            card, as were several other inmates.                   A  disciplinary hearing was convened  on July 9, 1993 at            which defendant Malone presided.  The disciplinary report was            read and  Sullivan denied the  charges.  Although  it appears            that inmate Santo was not called as a witness, officer Malone            received  an unsworn  statement from  him which  was admitted            into evidence.6  Thereafter,  the hearing was adjourned until                                            ____________________            5.  The  disciplinary  report  specifically charged  Sullivan            with the following offenses under 103 C.M.R.  430.24 (1992):                 (2) Violating  any departmental  rule or  regulation, or            any  other rule, regulation,  or condition of  an institution            or   community based program[,]                 (8)  Conduct  which  disrupts  or  interferes  with  the            security  or orderly running of the institution.                 (23)  Unauthorized possession  of property  belonging to                 another person.                 (24)   Possession  of   anything,  including   money  or            currency,      not authorized for retention of receipt by the            inmate.                 (26) Stealing.                 (32)  Violating   any   law  of   the  Commonwealth   of                 Massachusetts or United States[, and]                 (33)  Attempting to  commit any  of the  above offenses,                 aiding  another  person  to  commit  any  of  the  above            offenses,      and making  plans to  commit any of  the above            offenses shall      be considered  the same as  commission of            the offense    itself.              6.  Santo's statement  said, "I,  Steven Santo,  testify that            Glen  Sullivan had no knowledge of any purchase from East Bay            Co. being shipped  to him at M.C.I.  Norfolk.  The  order was                                         -6-                                          6            the  following  Monday,  July 12th.    On  that day  Sergeant            Gatewood testified that the disciplinary report was accurate,            that an order  for two pairs of sneakers was  scheduled to be            sent to  Sullivan and that informant  information showed that            Sullivan was aware that the package of sneakers was coming to            him.    However, Gatewood  did not  know  who had  placed the            actual  order  and  he  acknowledged that  Sullivan  did  not            receive anything as a result of the order.                   Officer  Malone's  affidavit  indicates   that  Sullivan            complained   that  he   had   been  unaware   that  informant            information  was  going to  be  used.    Malone then  excused            Sullivan from  the hearing room and  Gatewood supplied Malone            with the informant information  in executive session.  Malone            completed an informant information checklist  which indicated            that  the  disclosure  of  the informant  evidence  would  be            hazardous to the informant and institutional security.  Based            on information provided by Gatewood, Malone's checklist  also            found  that the  informant was  reliable because he  had been            used  on   five  previous  occasions,  that  the  informant's            information  was credible, and that no favors had been sought                                            ____________________            for  another inmate  purpose."   Apart from  officer Malone's            averment  that  several  inmates  had  disciplinary  hearings            related  to the fraudulent purchases on  July 9th, the record            does  not explain  why Santo  was not  allowed to  testify at            Sullivan's hearing.                                          -7-                                          7            by,  or promises made to,  the informant in  exchange for the            information.7   The  disciplinary hearing  then  resumed  and            Malone told Sullivan that the informant information indicated            that  Sullivan had  been aware  both that  an order  had been            placed  using  his  name  and   return  address  and  that  a            fraudulently  obtained  credit  card number  had  been  used.            Sullivan  then indicated  that  he had  given another  inmate            permission  to have a  package sent to  Sullivan because that            inmate had  already received  a package  within  the last  30            days.8                   As a result of  the disciplinary hearing, officer Malone            found Sullivan guilty of conduct which disrupts or interferes            with the security  or orderly running  of the institution  in            violation  of  103 C.M.R.   430.24(8)  and  of attempting  to            commit  or aiding another to commit  stealing in violation of            103  C.M.R.   430.24(33), (26).   Malone based his finding on            Gatewood's  disciplinary report and  testimony, the informant            information,  and Sullivan's  inconsistent statements  at the                                            ____________________            7.  The  informant  information checklist  is not  before us,            although Massachusetts  regulations require  that it be  made            part  of the record of the disciplinary proceedings.  See 103                                                                  ___            C.M.R. 430.15(1)(1992)(hearing  officer's  finding  that  the            informant is  reliable and the information  is credible shall            be included in the record).            8.  Thus, while Sullivan  initially denied  knowledge that  a            package  was coming  to him,  he later  admitted that  he had            given another inmate  permission to  have a  package sent  to            Sullivan for the other  inmate.  However, Sullivan apparently            continued  to  deny knowledge  that  the  package would  have            contained sneakers procured through fraud.                                         -8-                                          8            disciplinary  hearing.   While  Malone acknowledged  that the            goods did not  actually reach Sullivan, he determined  that a            guilty finding  was warranted because  Sullivan had attempted            to fraudulently obtain the shoes.9   Malone recommended  that            Sullivan  be sanctioned with the  loss of sixty  (60) days of            good  time credits  and  a custody  status review.   Sullivan            appealed Malone's finding to Superintendent Pepe, maintaining            that  he  had  no  knowledge  of  the fraudulent  purchase.              Superintendent Pepe denied Sullivan's appeal and Commissioner            Dubois thereafter  ordered Sullivan to forfeit  sixty days of            good time credits.10                 Based on  the foregoing facts, the  defendants made four            arguments in  support of  their motion  for dismissal/summary            judgment.  They  first asserted that the  complaint failed to            state an actionable  claim because  Sullivan only  challenged            the sufficiency  of the evidence at  his disciplinary hearing            and  the  record  established  that  the  evidence supporting            Sullivan's  conviction was obviously sufficient under Hill v.                                                                  ____            Superintendent  of Mass. Correctional Institution at Walpole,            ____________________________________________________________            472  U.S. 445,  455-57  (1984)(requiring that  there be  only                                            ____________________            9.  Malone also found that Santo's statement was not credible            because Santo also was involved  in the investigation and  it            was possible  that there had been collaboration  on an alibi.            Moreover, Santo  did not indicate  how he knew  that Sullivan            was not involved.             10.  Sullivan also contends that  he has been reclassified to            M.C.I. Cedar Junction, a maximum security prison, as a result            of the disciplinary finding.                                         -9-                                          9            "some  evidence"  of an  inmate's guilt  to sustain  a prison            disciplinary conviction).11  The defendants argued that there            was ample  evidence to support  Sullivan's conviction because            (a) it  was undisputed that an order  had been placed using a            fraudulently obtained  credit card number and Sullivan's name            and  return address, (b) the only  issue was whether Sullivan            knew of  the purchase  order and  its fraudulent nature,  (c)            informant information substantiated that Sullivan  was one of            the inmates who had participated in the fraudulent use of the            credit card number, and (d) Sullivan's  denial of the charges            was properly  discounted  since  he  had  given  inconsistent            statements concerning  the state of his  knowledge before and            after Gatewood  testified.   The defendants also  argued that            Sullivan  failed  to  state  the basis  for  his  claim  that            "perjured  testimony"  had  been  used  against  him.    They            contended that  if that  claim was  based on the  informant's            information, the  claim was  not actionable because  Wolff v.                                                                 _____            McDonnell,  418  U.S.   539,  565  (1974),   recognized  that            _________            informant information  may properly be used  to obtain prison                                            ____________________            11.  In   Hill  the   Supreme   Court   upheld  an   inmate's                      ____            disciplinary conviction  for assaulting another  inmate based            on  a  corrections  officer's   testimony  that  he  saw  the            plaintiff/inmate with two other inmates jogging away from the            bruised victim.  The victim denied that he had been assaulted            by  the plaintiff and there  was no direct  evidence that any            one  of  the  three fleeing  inmates  had  been the  victim's            assailant.   Nevertheless,  the Supreme  Court held  that the            evidence  against  the  plaintiff  was   sufficient  although            arguably "meager."  See 472 U.S. at  456-57.                                 ___                                         -10-                                          10            disciplinary  convictions.12   The defendants  further argued            that  Sullivan's  complaint  did  not  allege any  procedural            improprieties in the admission of the informant's information            under   103  C.M.R.   430.15(1)-(4)(1992).13     Noting  that            summary judgment  was appropriate to the  extent that matters            outside the  pleadings were  considered, the  defendants also                                            ____________________            12.  While the cited  page in Wolff did not expressly address                                          _____            informant  information,  the  Court  acknowledged  that  when            personal  or  institutional  safety  was  implicated,  prison            officials  could  exclude evidence  from  their  statement of            reasons  for  taking  disciplinary  action  so  long  as  the            statement  indicated the fact of the omission.  One court has            observed that  Wolff "foreshadowed" the problem  of informant                           _____            information by  indirectly suggesting that  evidence might be            excluded from the statement  of reasons to protect informants            from retaliation.  See   Hensley v. Wilson, 850 F.2d 269, 273                               ___   _______    ______            (6th Cir. 1987).            13.  103 C.M.R.  430.15 (1992)  sets forth the Procedures for            the  Use of  Informant Information.  In general,  it provides            that  a hearing  officer may  consider evidence  that is  not            presented in the inmate's presence only  if the officer makes            a finding that the informant is reliable and  his information            is credible and that finding is included in the  record.  The            finding should  furthermore contain the facts  upon which the            hearing officer based  his conclusion and a  statement of the            informant's information  that (a) is as  specific as possible            without  creating  a  substantial  risk  of  disclosing   the            informant's   identity,  and,   (b)  demonstrates   that  the            informant  had  personal  knowledge  of  the  information  he            provided.  The hearing officer must also find that disclosure            of the  information would create  a substantial risk  of harm            and  must further present a summary of the information to the            inmate at the hearing unless disclosure in any greater detail            than that contained in the disciplinary report would create a            substantial risk of disclosing the informant's identity.  The            regulation is reproduced in the appendix to this opinion.  As            noted above at n.7, the record does not contain the informant            information checklist that this regulation requires.  We note            that the record also does not  include a specific description            of  the informant  information  nor any  indication that  the            informant  had  personal  knowledge  of  the  information  he            provided.                                               -11-                                          11            argued that they were entitled to summary judgment on grounds            of qualified  immunity because they acted  with the objective            good faith  belief that their  actions were proper,  and that            the court should decline  pendent jurisdiction over any state            law  claims that  might  be read  into  the complaint  (which            invoked both  federal and  pendent jurisdiction)  since there            was no basis for Sullivan's federal cause of action.                 Sullivan's  opposition  to  the  defendants'  motion was            supported by an affidavit  from inmate Santo and a  photocopy            of  a December, 1993 letter that Sullivan had written to East            Bay in an apparent  effort to gather documents in  support of            his   defense.14     While  Sullivan's   rambling   prose  is            difficult  to comprehend,  he maintained  that his  complaint            stated  a  claim  for  the reinstatement  of  his  good  time            credits,  the  expungement of  the  disciplinary  report, and            compensation  for  each day  that  he  spent in  segregation.            Sullivan  alleged  that  he  had produced  an  affidavit  and            witness  list that the defendants denied him, but he does not            identify what witnesses, apart from Santo, he wanted to call,            nor  what  evidence would  have  been  elicited from  them.15                                            ____________________            14.  Sullivan asked East Bay for copies of its records of the            fraudulent orders  and Sullivan's own cash  transactions with            East  Bay.    Sullivan's  opposition  asserted  that  he  had            obtained   documentation   that  would   clear  him   of  the            disciplinary charges.            15.  The affidavit from inmate  Santo that Sullivan submitted            indicated that Santo  had ordered items with the  credit card            and  that Sullivan  had no  knowledge or  involvement  in the                                         -12-                                          12            Sullivan also alleged that  the defendants violated his state            and federal rights  by placing him in the  Receiving Building            on awaiting action  status without due process.   However, he            alleged  no  facts  to  support  this  claim,  but  only made            conclusory assertions that his confinement  in administrative            segregation constituted cruel  and unusual punishment, denied            him  the  same  privileges  as the  general  population,  and            violated Massachusetts policies and regulations.16                    On  March  4,  1994,  the district  court  endorsed  the            defendants'  motion  with an  order  indicating  that it  had            treated the motion as one for summary judgment and allowed it            for all the reasons set  forth in the defendants' memorandum.            Sullivan appeals this ruling.                                         II.                 On appeal, Sullivan  stresses that  while his  complaint            sought declaratory and injunctive relief and compensation for            his  confinement  in  administrative  segregation,  his  main            concern is  for the  restoration of  his  good time  credits.                                            ____________________            fraudulent scheme.            16.  The  only factual  allegations in  Sullivan's opposition            related to the disciplinary  investigation.  Sullivan alleged            that in contrast to  the disciplinary report, which suggested            that the  defendant prison officials had  uncovered the fraud            and contacted East Bay, East Bay had contacted the defendants            to warn them that several orders had been fraudulently placed            on  the  same  credit  card number  on  behalf  of  different            individuals  who  had the  same  address  of delivery  (i.e.,            M.C.I. Norfolk).  East Bay cancelled the orders and furnished            the defendants with a list of names that had been used in the            attempted fraud.                                         -13-                                          13            Sullivan  reiterates his  contention that  he was  denied due            process in his disciplinary proceedings because his guilt was            established "without evidence" through  informant information            and Gatewood's perjured testimony and because he was not able            to  call  witnesses  or  obtain  affidavits  or  discovery.17            Sullivan  also  maintains that  this  court  must review  the            dismissal  of his  claim that  he was  illegally  confined in            administrative segregation.   He says  that this  confinement            hampered the  preparation of  his defense,  but  he does  not            explain how.18      Sullivan's  complaint  sought relief  for            two  distinct  events:  his  confinement   in  administrative            segregation  before his  disciplinary  conviction, for  which            Sullivan  sought damages,   and  the disciplinary  proceeding            that resulted in the forfeiture of his good time credits, for                                            ____________________            17.  Sullivan also raises  several specious  arguments.   For            example, he contends that we must review the judgment for the            defendants under the standard imposed by Neitzke v. Williams,                                                     _______    ________            490  U.S.  319  (1989),  because  the  district  court  acted            spontaneously.  But it  is clear that the district  court did            not render judgment for the defendants spontaneously but only            in response to the defendants'  motion, thus Neitzke does not                                                         _______            apply.    Sullivan  also  says  that because  he  received  a            district  court scheduling  order before  he  received notice            that the court had allowed the defendants' motion for summary            judgment  he  was misled  to believe  that  he would  have an            opportunity to amend his complaint and pursue discovery.  But            as  Sullivan  had filed  his  opposition  to the  defendants'            motion  before  the   scheduling  order  issued,   Sullivan's            misperception did not result in any prejudice.               18.  The  defendants'  motion for  dismissal/summary judgment            did not address Sullivan's segregation claim.  The defendants            now contend  that we  should deem this  claim waived  because            Sullivan did not plead it sufficiently below.                                         -14-                                          14            which  Sullivan  sought an  order expunging  his disciplinary            conviction and  compelling the  restoration of his  good time            credits.  While Sullivan's damages claim was cognizable under            42  U.S.C.   1983   as  an  attack   on  his  conditions   of            confinement, Preiser  v. Rodriguez,  411 U.S.  at 499  & n.14                         _______     _________            (1973), the district court correctly observed that Sullivan's            claim  for the restoration of  his good time  credits was not            cognizable  under  42  U.S.C.   1983.    Rather,  Preiser  v.                                                              _______            Rodriguez,  411  U.S.  at  482-500,  established that  habeas            _________            corpus, with its attendant requirement of exhaustion of state            remedies, is the sole  remedy for state prisoners challenging            the actual duration  of their confinement on  the ground that            they  have  been  unconstitutionally deprived  of  good  time            credits. This distinction appears to have gone unnoticed when            the district court  summarily allowed defendants' motion  for            summary judgment.                   As  concerns  Sullivan's  damages  claim  based  on  his            confinement  in  administrative segregation,  Sullivan merely            cites  to  cases  relating  to  other  challenges  to  inmate            confinement in administrative  and disciplinary  segregation,            see, e.g., LeMaire v.  Maass, 745 F. Supp. 623  (D. Or. 1990)            ___  ____  _______     _____            (holding conditions in  disciplinary segregation unit,  e.g.,                                                                    ____            cell  restraints, constituted cruel  and unusual punishment);            Hoffer  v.   Commissioner  of  Correction,   412  Mass.   450            ______       ____________________________            (1992)(upholding judgment that correction  officials' failure                                         -15-                                          15            to set conditional release date or  conditions of behavior to            enable inmate to secure release from departmental segregation            unit  violated   due  process);  Royce   v.  Commissioner  of                                             _____       ________________            Correction, 390  Mass. 425  (1983)  (confinement in  awaiting            __________            action status may not  be used as a pretext  for punishment),            without alleging  facts suggesting that  defendants subjected            Sullivan to similar  conditions.    Nor has Sullivan  alleged            any  facts to suggest  that his confinement  in the Receiving            Building  on awaiting action  status violated   Massachusetts            regulations.19    Thus,  we   affirm  the  judgment  for  the            defendants  insofar as  it pertains  to Sullivan's  claim for            damages   based   on   his  confinement   in   administrative            segregation.                 Sullivan's due  process  challenge to  his  disciplinary            conviction  and loss  of good  time credits  requires further            analysis,  however.   The  fact that a prisoner-plaintiff may            not have exhausted state remedies does not preclude dismissal            of  a   habeas  petition   which   is  obviously   meritless,            particularly  where   the  government  has  not  raised  non-            exhaustion  as a defense.  See, e.g., Granberry v. Greer, 481                                       ___  ____  _________    _____                                            ____________________            19.  The  defendants  correctly  point  out  that  103 C.M.R.             430.21(1)(1992) authorizes  prison  officials to  place  "an            inmate who is under investigation for a possible disciplinary            offense  or [who] has been charged with  or found guilty of a            disciplinary offense" on awaiting  action status "subject  to            any applicable  review  requirements[.]"   Sullivan  has  not            alleged  any  facts  to  suggest  that  any  review or  other            regulatory  requirements were violated  by his administrative            segregation.                                          -16-                                          16            U.S.  129, 135 n.7 (1987)("it is appropriate for the court of            appeals  to  dispose  of  nonmeritorious   petitions  without            reaching the nonexhaustion issue");  Love v. Butler, 952 F.2d                                                 ____    ______            10, 15  (1st Cir. 1991)(same).  But  we are not satisfied, at            this  point,  that  Sullivan's   due  process  claim  can  be            considered obviously meritless.   The informant's information            was the only evidence that showed Sullivan's knowledge of the            fraudulent purchases and Sullivan is attacking the use of the            informant information to prove his culpability in the scheme.             The Massachusetts regulations governing the use of informant            information were promulgated after the  Massachusetts Supreme            Judicial Court determined that  due process required  certain            safeguards when  informant information  is used.   See, e.g.,                                                               ___  ____            Nelson v. Commissioner  of Correction, 456 N.E.  2d 1100, 390            ______    ___________________________            Mass. 379  (1983); Lamoreux v.  Superintendent, Massachusetts                               ________     _____________________________            Correctional Institution, Walpole, 456 N.E.2d 1117, 390 Mass.            _________________________________            409  (1983).    Where the informant  information checklist is            not  in the record, and the record neither indicates what the            informant's  information was  nor whether  the  informant had            personal knowledge of the  information he provided, we cannot            say  that the "some evidence" test of Hill has been satisfied                                                  ____            with  respect  to  the   issue  of  knowledge  of  fraudulent            purchases.    In  these  circumstances,  we believe  Sullivan            should be  permitted to exhaust  his state court  remedies in            connection with the due process claim.                                         -17-                                          17                 Accordingly, the judgment entered for  defendants on the            damages  claim for confinement  in administrative segregation            is  affirmed.  The judgment entered for defendants on the due                ________            process claim  for restoration of good time  credits shall be            modified to reflect that this  claim is dismissed pursuant to            ________            Preiser v.  Rodriguez, 411 U.S. 475,  482-500 (1973), subject            _______     _________            to exhaustion of state remedies.                                         -18-                                          18                                       APPENDIX                                       ________            103  C.M.R.  430.15:  Procedures  for the  Use  of  Informant            _____________________________________________________________            Information              ___________                 In disciplinary cases involving informant information,                 the hearing officer may consider documentary evidence                  and/or testimony which is not presented in the presence                 of  the  inmate or  his  representative  only if,  after            viewing   and/or   hearing   such  documentary   evidence  or            testimony, the      hearing officer has:                 (1) Made a  finding that the  informant is reliable  and            that                 the  information is  credible.   This  finding shall  be                 included in the record  and should contain the following                 information:                      (a) the facts upon  which the hearing officer based                      his conclusion that the  informant was reliable and                      that the information was credible.                      (b) a statement of the information provided by the                      informant  as specific as possible without creating            a                       substantial risk of disclosing the identity of the                      informant.  The  statement should demonstrate  that            the                      informant had personal knowledge of the information                      he provided;                 (2)  Made   a  finding   that  the  disclosure   of  the            documentary    evidence   or   testimony   provided  by   the            informant to the    inmate or his representative would create            a substantial  risk of  harm to  the informant, to  any other            person, or to  the security of the institution;                 (3) The hearing officer shall  present a summary of  the                 informant  information  to the  inmate  at  the hearing.            Such      a presentation may, however,  be foregone in  cases            where     disclosure of the information in any greater detail            than      that which is contained  in the disciplinary report            itself    would create  a substantial risk  of disclosing the            identity  of the informant.                                         -19-                                          19                 (4)   The   hearing  officer   may   consider  informant            information    and base the findings  in 103 CMR 430.15(1) on            information    which  is limited to  oral or  written hearsay            evidence.  The      hearing  officer shall not be required to            interview the  informant in person.                                         -20-                                          20
