Moore v. Pepe

January 5, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-1118

BRUCE K. MOORE,

Plaintiff, Appellant,

v.

PETER PEPE, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Torruella, Chief Judge,

Selya and Stahl, Circuit Judges.

Bruce K. Moore on brief pro se.

Nancy Ankers White, Special Assistant Attorney General, and

Michael H. Cohen, Counsel, Department of Correction, on brief for

appellees.

Per Curiam. Pro se plaintiff-appellant Bruce

Moore, a prison inmate, has appealed from the district

court's grant of summary judgment in favor of defendants-

appellees Peter Pepe, the Superintendent at MCI-Norfolk,

Philip Poirier, Michael Little, and James Giblin, all

officials at MCI-Norfolk.

Background

The facts that are undisputed are as follows. In

February 1991, Moore was implicated in a scheme to falsely

inculpate other inmates by placing contraband items, such as

homemade knives and banned substances, in their cells.

Consequently, on March 5, 1991, Moore was placed on "awaiting

action" ("AA") status in the administrative segregation unit

in the Receiving Building ("RB").

On March 15, Moore received a disciplinary report

charging him with a number of disciplinary offenses,

including, among other things, conduct which disrupted or

interfered with the security or orderly running of the

institution; possession or introduction of a weapon,

sharpened instrument, knife, or tool; and aiding another

person to commit the other charged offenses. On March 26,

1991, a disciplinary hearing was held. At that hearing,

Moore admitted that he knew that another inmate was putting

contraband in other inmates' cells, and that Moore had helped

this other inmate type a note falsely inculpating others.

The hearing officer, defendant Little, found Moore

guilty of conduct which disrupted the orderly running of the

institution, and of aiding another inmate to introduce

sharpened instruments into other inmates' cells.

Accordingly, the hearing officer sanctioned Moore with thirty

days of isolation, and recommended that Moore be reclassified

to higher security. Moore then appealed to defendant

Superintendent Pepe, who denied the appeal on April 4.

On April 10, the classification board held a hearing and

recommended that Moore's request to stay at MCI-Norfolk, "in

the RB on the RB workforce", be granted. The recommendation

was subsequently approved. At Moore's next classification

hearing, on June 5, 1991, the board recommended transfer to

Bay State Correctional Center. On July 8, 1991, Moore was

transferred to Southeastern Correctional Center.

Moore filed the instant suit on May 28, 1992. His

complaint sought damages and injunctive relief under 42

U.S.C. 1983 on the ground that his right to due process

under the fourteenth amendment of the United States

Constitution had been violated in the course of his

disciplinary conviction and by his confinement in the RB.

The complaint might also be read to allege violation of

applicable Department of Correction regulations.

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Specifically, Moore alleged (1) that the disciplinary

finding against him was not supported by adequate reasons;

(2) that certain of the disciplinary charges against him were

vague and overbroad; (3) that before and at the disciplinary

hearing, he was denied access to the evidence against him,

despite making several requests for such access; (4) that his

rights were violated by his being ordered into isolation, and

(5) that his rights were violated by his being kept in

administrative segregation, i.e., on AA status, without a

conditional release date from segregation and without

conditions of behavior to obtain release from segregation.

On January 20, 1994, the district court granted

defendants' motion for summary judgment. In a brief order,

the district court ruled, "Plaintiff failed to timely appeal

his disciplinary conviction. In addition, plaintiff's due

process arguments are inapplicable to his claims regarding

alleged errors in the disciplinary process" (citations

omitted). Moore appeals. We affirm.

The Merits

We have held that where a prison inmate faces the risk

of isolation time as a result of a disciplinary charge, the

inmate has a liberty interest under the due process clause in

the disposition of that charge. Smith v. Massachusetts Dep't

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of Correction, 936 F.2d 1390, 1399 (1st Cir. 1991); see

O'Malley v. Sheriff of Worcester County, 415 Mass. 132, 139,

612 N.E.2d 641, 647 (1993). Accordingly, Moore, who received

a disciplinary sanction of thirty days in isolation, had a

liberty interest in the disciplinary proceeding.

The Supreme Court has specifically spelled out the

minimum procedural safeguards necessary to satisfy the

requirements of due process in a prison disciplinary

proceeding that may result in the loss of a liberty interest.

The inmate must receive "(1) advance written notice of the

disciplinary charges; (2) an opportunity, when consistent

with institutional safety and correctional goals, to call

witnesses and present documentary evidence in his defense;

and (3) a written statement by the factfinder of the evidence

relied on and the reasons for the disciplinary action."

Superintendent v. Hill, 472 U.S. 445, 454 (1985) (citing

Wolff v. McDonnell, 418 U.S. 539, 563-67 (1974)).

Statement of evidence and reasons. Moore alleged that

the hearing officer's written statement of the evidence

relied on and the reasons for the disciplinary action was not

adequate. We find this allegation meritless. The factfinder,

defendant Little, stated in writing, "The inmate testified

that he was aware that another inmate was deliberately

placing contraband items such as sharpened instruments in the

cells of inmates. He further admitted that he helped this

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inmate finish typing a note pertaining to the contraband's

location." There can be no doubt that this statement of

evidence and reasons was constitutionally adequate.

Insofar as Moore may have intended to challenge the

sufficiency of the evidence against him, there need only be

"some evidence" of guilt in the record of the disciplinary

hearing to support a disciplinary conviction. Hill, supra,

472 U.S. at 454-57. Moore's own admissions easily meet that

test. Moore objects that he denied any involvement in

making sharpened instruments or actually placing them in

other inmates' cells. The disciplinary findings, however,

suggest that the hearing officer credited that denial, but

nonetheless found that Moore, by admittedly helping to type

the falsely inculpatory note, aided another inmate in a

scheme which involved placing sharpened instruments in

others' cells.

Moore did assert in the district court that he was

physically coerced into helping the other inmate type the

note. However, in an affidavit, Moore described his

testimony before the hearing officeron this point as follows:

"Gaziano [the other inmate] insisted I finish his typing,

Gaziano placed a hand on me and directed me to the seat

behind the typewriter Gaziano was using; I read what Gaziano

had typed and typed less than 2 complete lines that Gaziano

dictated to me . . . ." Moore has nowhere explained why such

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seemingly mild conduct on the part of Gaziano should be

thought to have constituted physical coercion.

Thus, the hearing officer's implicit finding that

Moore's conduct was voluntary appears entirely reasonable.

That finding was obviously not so baseless or arbitrary as to

be constitutionally infirm.

Vagueness. Similarly lacking in merit is Moore's claim

that some of the disciplinary charges against him were vague

and overbroad. Our review of the charges on which Moore was

convicted finds no such deficiency. The only such charge

which could even arguably be thought vague was the charge of

"conduct which disrupt[ed] or interfere[d] with the security

or orderly running of the institution." Moore must

reasonably have been on notice, however, that the specific

conduct he admitted engaging in -- aiding another inmate to

type a note falsely inculpating other inmates -- would be

disruptive and would come under this disciplinary standard.

See El-Amin v. Tirey, 817 F.Supp. 694, 701-03 (W.D.Tenn.

1993), aff'd, 35 F.3d 565 (6th Cir. 1994). In any event,

Moore did not press this point in his brief on appeal, and

has thereby waived it.

Pre-hearing discovery. Moore next alleged that prior to

the hearing, he was denied access to evidence against him.

In his complaint, Moore asserted that on or about March 15

and March 20, 1991, he wrote two letters to defendant Pepe in

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which he "requested he be supplied with all alleged tangible

and material evidence in photographic form, or detailed

written description/report(s), or any informant(s)

information, with applicable names deleted, or laboratory

analysis report(s)." Moore alleged that he received no

response. Moore further alleged that he made a similar

request of the hearing officer, who allegedly responded that

he was not in possession of any objects or documents in

evidence against Moore, but was relying solely on the

disciplinary report.

Hill, supra, 472 U.S. 445, and Wolff, supra, 418 U.S.

539, do not specifically recognize any due process

entitlement to pre-hearing discovery. In Smith, supra, 936

F.2d 1390, however, we held, "While Wolff does not accord an

inmate a [due process] right to pre-hearing discovery, we

think that . . . when an inmate seeks relevant and important

documents central to the construction of a defense, and his

requests are repeatedly denied, an explanation of the reasons

for the denial should be furnished." Id. at 1401. We went

on to note that the denial of discovery did not "r[i]se to a

level of constitutional magnitude" where the requested items

did not appear central to the inmate's defense, and where

defendant's "brief on appeal is bereft of any developed

argumentation to the contrary." Id. at 1401 n.18.

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Moore has supplied no argument, either to the district

court or to this court, why pre-hearing access to the

evidence against him should be thought central to the

construction of a defense. The importance of such access,

moreover, is far from evident. To the contrary, the hearing

officer based his ruling on Moore's admission that he helped

another inmate type a note intended to inculpate other

inmates. In a March 20, 1991 letter to defendant Pepe, Moore

made the same admission. It is hard, therefore, to see how

the denial of discovery prejudiced Moore's defense to charges

that he admitted.

Moore did argue in the district court that he was

physically coerced into helping type the note. As we have

said, however, Moore's own account of his testimony before

the hearing officer suggests that this was a weak defense.

In any event, it is unclear how access to physical evidence

would have bolstered it. For all these reasons, we find no

due process violation in the denial of Moore's discovery

request without explanation.

Isolation. Given the lack of any due process defect in

Moore's disciplinary proceeding, there is no basis for a

finding that his constitutional rights were violated by his

placement in isolation.

Placement on AA status in the RB. We further find that

Moore's placement on AA status in the RB -- first pending

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investigation and resolution of the disciplinary charges

against him, and then pending transfer or reclassification --

did not violate due process.

The Supreme Court has ruled that the due process clause,

in and of itself, does not confer upon a prisoner any liberty

interest in being held in the general prison population.

Hewitt v. Helms, 459 U.S. 460, 467-68 (1983). To be sure,

state laws or regulations may create a protected liberty

interest if, by setting forth "explicitly mandatory language"

and "specified substantive predicates," Kentucky Dep't of

Corrections v. Thompson, 490 U.S. 454, 463 (1989), they

"plac[e] substantive limitations on official discretion,"

Olim v. Wakinekona, 461 U.S. 238, 249 (1983).

In Stokes v. Fair, 795 F.2d 235 (1st Cir. 1986), we

ruled that the Massachusetts Department of Correction

regulations which then governed the placement of inmates in

"awaiting action" detention did create a liberty interest

protected by the due process clause. They did so because

they permitted prison officials to place an inmate on AA

status only upon the occurrence of certain conditions, such

as pending investigation or hearing of a disciplinary offense

or pending transfer or reclassification to higher custody

status. Id. at 237. Due process would therefore require

that an inmate placed on AA status receive an informal, non-

adversary review within a reasonable time, and receive

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subsequent periodic reviews. Hewitt, supra, 459 U.S. at 472,

477 n.9.

In 1987, long before the events of this case, the

relevant regulations were revised, with mandatory language

replaced by language conveying discretion to prison

officials. The current prison regulations provide that "[a]t

the discretion of the Superintendent or his designee, . . . ,

an inmate who is under investigation for a possible

disciplinary offense or has been charged with or found guilty

of a disciplinary offense, may be placed on awaiting action

status . . . . Such status may include more restrictive

confinement as deemed appropriate by the Superintendent or

his designee." 103 C.M.R. 430.21(1). The regulations call

for reviews of RB placement at least weekly. Id. 423.13.

Defendants argue that the current language places decisions

regarding confinement on AA status wholly within the

discretion of the Superintendent, and therefore creates no

liberty interest.

We need not resolve that question. Even if due process

requirements do apply, we would find no constitutional

violation. There is no dispute that Moore was initially

placed on AA status in the RB pending an investigation of

disciplinary charges. Following his disciplinary conviction

he was kept there for a little over three months pending

transfer or reclassification. Thus, he was placed and

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maintained in the RB for purposes in accordance with

applicable regulations. During that period, he received two

classification board hearings regarding his status, as well

as informal weekly reviews, all that due process would

require.

In addition, Moore has not disputed defendants'

assertion that at least some significant portion of his stay

in the RB was in accordance with his own request. In his

brief on appeal, Moore acknowledges that at the April 10,

1991 classification hearing, he "requested to remain at MCI-

Norfolk, even if such classification meant a period of

confinement to receive such favorable classification." In

the district court, he stated that "at this hearing [he]

requested to remain in the general population [at MCI-

Norfolk], even if it meant an extended stay in the R.B. to

allow time for this to be approved." Before his disciplinary

conviction, in a March 20, 1991 letter to defendant Pepe,

Moore also stated, "[I]f I am to be punished for my

association and not coming forward sooner let the punishment

be a stay in the R.B." Although there is a factual dispute

in the record as to whether Moore requested or agreed to

placement in the RB for the entire period he was held there,

under all the circumstances we could find no due process

violation in Moore receiving, on a temporary basis, a

classification status he had specifically requested.

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Finally, Moore's reliance on Hoffer v. Commissioner of

Correction, 412 Mass. 450, 589 N.E.2d 1231 (1992), is

misplaced. Hoffer ruled that, given applicable prison

regulations, due process required that an inmate placed in

the Departmental Segregation Unit ("DSU") be given a

conditional date of release from the DSU, along with

conditions of behavior to obtain such release. 412 Mass. at

455-56; 589 N.E.2d at 1234. The record is clear, however,

that although Moore was placed on AA status in the same

building, the RB, that contains the DSU, Moore was not placed

in the DSU. Cf. Kenney v. Commissioner of Correction, 393

Mass. 28, 34, 468 N.E.2d 616, 620 (1984) (recognizing the

clear distinction between placement on AA status and

placement in the DSU).

In his brief on appeal, Moore does assert that he was

held in the DSU. However, we do not read his affidavit in

the district court to contain any such assertion. In the

affidavit, Moore stated that he was placed on the second

floor of the RB, and it is the uncontroverted assertion of

defendant Pepe's affidavit that the DSU is on the first floor

of the RB, while the second and third floors hold inmates on

AA status. Hoffer, accordingly, is inapposite.

State-law claims. Insofar as Moore's complaint may have

raised pendent state-law claims of violation of prison

regulations, we agree with the district court's ruling that

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such claims were time-barred. Under Massachusetts law,

lawsuits challenging prison discipline must be brought within

the sixty-day statute of limitations set forth at Mass. Gen.

Laws c. 249, 4. McLellan v. Commissioner of Correction, 29

Mass. App. 933, 934-35, 558 N.E.2d 3, 4 (1990). Moore's

final administrative appeal from his disciplinary conviction

was denied in April 1991, and Moore was transferred in July

1991. This lawsuit was not filed until May 1992.

Violation of local rules. Finally, there is no merit in

Moore's argument that the district court erred in granting

defendants' motion for summary judgment because the motion

violated the district court's Local Rule 7.1(A)(2). This

Local Rule requires that the parties confer prior to the

filing of any motion, and defendants apparently sought no

such conference with Moore prior to filing their motion. The

Local Rule, however, became effective on October 1, 1992,

after defendants had already filed their motion on September

25, 1992.

The judgment of the district court is affirmed.

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