September 30, 1994 [NOT FOR PUBLICATION]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.
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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.
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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
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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
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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
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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.
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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.
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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.
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