
USCA1 Opinion

	




        September 30, 1994      [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-2202                                 ANTOINE M. JACKSON,                                Plaintiff, Appellant,                                          v.                                   GEORGE A. VOSE,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Douglas P. Woodlock, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Selya and Stahl, Circuit Judges.                                            _______________                                 ____________________            Antoine M. Jackson on brief pro se.            __________________            Nancy  Ankers  White,  Special  Assistant  Attorney  General,  and            ____________________        Stephen G. Dietrick, Deputy General Counsel, Department of Correction,        ___________________        on brief for appellee.                                 ____________________                                 ____________________                      Per Curiam.  Plaintiff Antoine  Jackson appeals the                      __________            district  court's  grant  of  summary judgment  in  favor  of            defendants on Counts  II and  V of his  amended civil  rights            complaint.1   "We review  the  grant of  summary judgment  de                                                                       __            novo, employing the same criteria incumbent upon the district            ____            court in  the first instance," Guzman-Rivera  v. Rivera-Cruz,                                           _____________     ___________            1994 U.S. App. LEXIS 17,298 at *3 (1st Cir. July 13, 1994.                      Jackson is a prisoner at Massachusetts Correctional            Institution  in   Cedar   Junction.     He   challenges   the            constitutional  adequacy of prison disciplinary hearings held            on January 17,  1990 and  March 1, 1990,  which followed  two            discrete   encounters   between   Jackson  and   correctional            officers.   Both  hearings resulted  in guilty  findings, and            sentences  of 15 and 30 days respectively in isolation in the            Departmental Segregation Unit (DSU).                      Jackson argues  that  his due  process rights  were            violated because he was denied the opportunity to call inmate            witnesses from  the general  prison population to  testify in            person  at each hearing.  At the  time of the hearings he was            housed  outside of the general prison population in the upper            tier of  the West  Wing Segregation  Unit (WWSU),  which held                                            ____________________            1.  The district court dismissed a third count for failure to            state a claim, and others were tried to a jury which returned            a verdict in favor of defendants.  Plaintiff has not appealed            those decisions.                                         -2-            disruptive  inmates  on "awaiting  action" status.2   Jackson            had been  transferred to WWSU for  security reasons following            the second incident.3                        Jackson  initially  named  five general  population            inmates  whom he wished to call as witnesses at each hearing,            in addition to "the whole [cell] block."   The subject of the            inmates'   expected  testimony  was  not  revealed,  however,            despite  a  specific  request  for  a  brief summary  on  the            official forms provided to  Jackson for witness requests.   A            second request  for inmate witnesses,  made through Jackson's            student  attorney, named  two general population  inmates for            one  hearing, and three for  the other.   Again, however, the            inmates' expected testimony was  not described, although each            was identified as an eyewitness to the relevant incident.                                            ____________________            2.  Another tier of the WWSU  held prisoners sentenced to the            DSU following a disciplinary offense hearing and a finding of            guilt.  The conditions  of confinement for the two  groups of            prisoners differed in that awaiting action prisoners had more            privileges and  their status  was reviewed every  seven days,            rather  than every  90  days.   Jackson  claims that  he  was            actually confined illegally under DSU conditions prior to his            hearings, but  the conditions  of his confinement  within the            WWSU are immaterial to the issues before us.  See infra p. 8.                                                          ___ _____            3.      In  the  first  incident  Jackson  was  charged  with            assaulting  an  officer, but  he  had  remained, on  awaiting            action status, confined  to a cell within  the general prison            population.    When  the  second incident  resulted  in  five            disciplinary reports from as  many officers, charging Jackson            with threatening  and disruptive behavior,  and encouraging a            work stoppage, he was moved to WWSU.                                             -3-                      The chairman of  the disciplinary board,  defendant            Aho, allowed  Jackson the  opportunity to obtain  and present            affidavits from the named inmates,  but he denied the request            that the inmates'  testimony be presented  in person.   Aho's            contemporaneous  notes show  that his  decision was  based on            security  concerns, given  the  difference between  Jackson's            housing in the prison  and that of  the inmates he sought  to            call  as  witnesses.    Aho explained,  in  a  deposition and            affidavit submitted below, that  he had decided that bringing            general population inmates into a hearing in WWSU, would have            been  "unduly hazardous,"  particularly as Jackson  had given            "no basis for determining the relevance or necessity of these            witnesses."   Jackson's  attorney,  Aho  said, accepted  this            decision with  an "okay."    If  Jackson or his  attorney had            pressed  the objection  at  the hearing  (where the  inmates'            affidavits were  read aloud), or otherwise  made a persuasive            case  that   Jackson  needed  additional   evidence  or  live            testimony, Aho  said, "I could have continued the hearing and            [explored] the possibility of relocating the hearing . . . ."                      A prisoner's  right to  call witnesses  and present            evidence  at  a  disciplinary  hearing  is  circumscribed  by            competing   concerns  for  institutional   safety  and  other            correctional goals.   See Ponte  v. Real, 471  U.S. 491,  495                                  ___ _____     ____            (1985);  Wolff v. McDonnell, 418 U.S. at 539, 566 (1974); see                     _____    _________                               ___                                         -4-            also  Baxter  v.  Palmigiano, 425  U.S.  308,  321 (1976)  (a            ____  ______      __________            prisoner's  right  to  confront  and   cross-examine  adverse            witnesses in a disciplinary hearing is generally more limited            than  the  right  to  call friendly  witnesses,  but  similar            interest balancing  may be  applied); Smith v.  Massachusetts                                                  _____     _____________            Dep't  of Correction,  936  F.2d 1390,  1399 (1st  Cir. 1991)            ____________________            (same).   The  presence of  witnesses at  the hearing  may be            refused  when  it  creates  an  undue  risk  of  reprisal  or            harassment, undermines authority,  or otherwise creates undue            burdens on the safe administration of the prison.  Ponte, 471                                                               _____            U.S. at 495; Wolff, 418 U.S. at 566; see also Ramer v. Kerby,                         _____                   ________ _____    _____            936  F.2d   1102,  1104   (10th  Cir.  1991)   ("[L]egitimate            penological  concerns  include,  but [are]  not  limited  to,            safety or correctional goals, expense,  staffing requirements            .  . .  and the  danger of  harassment.").   When challenged,            prison  administrators bear  the burden  of showing  that the            reasons for the denial were not arbitrary. Ponte, 471 U.S. at                                                       _____            497.   They may make their  reasons known at the  time of the            disciplinary action or wait until the prisoner brings a legal            action.   Ponte, 471  U.S. at 497;  Smith, 936  F.2d at 1399-                      _____                     _____            1400.                      Our task is not to substitute our judgment for that            of   the  prison  officials   charged  with   conducting  the            disciplinary  hearing, but  to  determine whether  the  proof            offered  to  explain  the  refusal to  call  these  witnesses                                         -5-            satisfactorily carries defendants' burden of showing that the            decision was not arbitrary.   Ponte, 471 U.S. at  497-99; see                                          _____                       ___            also Freeman v.  Rideout, 808  F.2d 949, 955  (2d Cir.  1986)            ____ _______     _______            (same),  cert.  denied,  485  U.S. 982  (1988).    Defendants                     _____________            offered evidence that the decision was based on a weighing of            the  known risks  attendant  on  bringing general  population            prisoners into  the WWSU, the difficulties  of relocating the            hearing,   Jackson's   failure   to   supply   the  requested            information,  and the  lack  of any  reason  to believe  that            affidavits would not supply Jackson's evidentiary needs.  The            explanation is logically  related to institutional  goals and            clearly satisfies  the due  process requirements outlined  in            the cases.   See Ponte, 471  U.S. at 497  ("[S]o long as  the                         ___ _____            reasons are logically related to preventing undue hazards . .            . the explanation should meet the due process requirements as            outlined in Wolff.").                          _____                      Jackson  argues  that  his  failure  to  provide  a            description  of the witnesses' testimony was an impermissible            factor  in the  decision because  it was  not a  "knowing and            intelligent  waiver"  of  his constitutional  right  to  call            witnesses.   The  argument is  beside the  point.   To enable            prison  officials to  evaluate a  request for  live testimony            against   competing   institutional  concerns,   obviously  a            description  of the nature of the  expected testimony and any            other  indicia  of need  for  the  testimony  may  be  fairly                                         -6-            required.  Accord Bostic v. Carlson, 884 F.2d 1267, 1274 (9th                       ______ ______    _______            Cir. 1989).   Only the prisoner can supply  this information.            Having  failed  to  supply  a  description  despite  official            requests therefor, Jackson is in a poor position to  complain            that,  on balance,  the  official charged  with the  decision            found that the known risks to institutional safety outweighed            the  prisoner's  undisclosed  needs.4    We  need  not  reach            Jackson's  argument  that  a  blanket   proscription  on  the            testimony of all general population inmates would violate the            due  process  clause,  because we  do  not  read the  board's            explanation as relying upon a blanket proscription.                                            ____________________            4.   In rejecting the same argument below, the district court            placed emphasis on a clause in the published regulations that            was  not  added  until  after the  disciplinary  hearings  in            question.   103  C.M.R.    430.14(4)(e) (1992)  now expressly            includes a  prisoner's failure  to provide a  witness summary            among  the non-exclusive list of  factors that may inform the            disciplinary  board's decision.   Despite Jackson's denial of            any  responsibility  for  this   error,  it  was  invited  by            Jackson's  own  memorandum  in  support  of  partial  summary            judgment,  which quoted  the  newer  regulation as  governing            authority.                   In  any event,  based on  a de  novo review, we  find no                                             __  ____            fault with the district court's conclusion, and no unfairness            under the regulation in  effect at the time.   The regulation            provided ample notice that a  request to call witnesses would            be  based on  an evaluation  of whether  it would  be "unduly            hazardous to personal safety or institutional security."  103            C.M.R.     430.14  (4) (1987).    The  non-exclusive  list of            factors to  be considered  included "relevance," and  whether            the evidence was  "cumulative or repetitive."   103 C.M.R.               430.14  (4)(a)(b).    Moreover, Jackson  was  given  personal            notice,  via  the  official  request  form,  that  the  board            required information from him supportive of his requests.                                         -7-                      We also agree with the  district court's conclusion            that there was no need to reach Jackson's argument that prior            to  the  disciplinary  hearings  he  was  actually  confined,            illegally, in departmental segregation, rather than under the            less  restrictive  regimen  afforded  prisoners  on  awaiting            action  status.  First,  the   amended  complaint  cannot  be            construed as stating  an independent claim in this regard, no            matter  how liberally it is read.5  Second, the conditions of            Jackson's confinement within the  WWSU are not material to  a            determination of the due process adequacy of the disciplinary            board's decision.   The board's security  concerns were based            on  Jackson's  housing  within  the WWSU,  not  the  specific            conditions  of  his confinement.    That the  WWSU  held both            awaiting action and DSU prisoners  may have added to security            concerns, but it did  not turn the board's decision  into the            sort of  bootstrap  justification disapproved  in  Kenney  v.                                                               ______            Commissioner of Correction, 393 Mass. 28, 35, 468 N.E.2d 616,            __________________________            621  (1984) (where  a prisoner  was illegally  transferred to            DSU, administrators may not rely on his illegal incarceration            as a justification for denying a request to call witnesses).                      Lastly, we find no  fault with the district court's            decision  that  the defendants  were  protected  by qualified                                            ____________________            5.  Jackson's argument  that his first two  pro se complaints                                                        ___ __            may be reconstrued to  state such a claim is  irrelevant, and            in  any event not properly before us because it is raised for            the first time in his reply brief.                                           -8-            immunity  from  damages  liability  for  their  discretionary            decision.   There was  no proof that  defendants violated any            "clearly  established statutory  or constitutional  rights of            which  a  reasonable person  would  have known."    Harlow v.                                                                ______            Fitzgerald, 457 U.S. 800, 818 (1982).            __________                      For  the reasons  stated, the  summary judgment  in            favor  of  defendants  on Counts  II  and  V  of the  amended            complaint is affirmed.                         ________                                         -9-
