McGuinness v. Dubois

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

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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).

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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.

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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

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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.

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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

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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.

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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

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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.

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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.

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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

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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).

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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.

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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

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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.

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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.

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