Evans v. Vose

July 5, 1996
                    [NOT FOR PUBLICATION]

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 95-2299

                        DENNIS EVANS,

                    Plaintiff, Appellant,

                              v.

                   GEORGE A. VOSE, ET AL.,

                    Defendants, Appellees.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF RHODE ISLAND

           [Hon. Mary M. Lisi, U.S. District Judge]
                                                              

                                         

                            Before

                    Selya, Cyr and Boudin,
                       Circuit Judges.
                                                 

                                         

David J. Gentile on Motion for Summary Judgment for appellee.
                            

                                         

                                         

     Per Curiam.   We have  reviewed carefully the  record in
                           


this  case,  including  the  transcript of  appellant  Dennis

Evans' disciplinary  hearing.  We summarily  affirm the grant

of summary judgment to appellees.  

     Even if  we assume  without  deciding that  Evans has  a

constitutionally  protected  liberty  interest  in  good time

credits, he  has still failed  to allege sufficient  facts to

support a claim that  his rights to federal due  process were

violated.  

     First, under federal due process standards, an inmate is

entitled  to notice of the charges against him, not to notice

of each  item of evidence which  may be offered to  prove the

charges.   Consequently, providing an  inmate with a  copy of

the disciplinary report satisfies due process. See Langton v.
                                                                      

Berman, 667  F.2d 231,  234 (1st  Cir. 1981).     Since Evans
                  

admits  that he  received timely  copies of  the disciplinary

report  against him  prior to  the disciplinary  hearing, his

claim is without merit.1  
                                   1

     Second, Evans  alleges that  he was  denied  a right  to

present witnesses in  his own defense.   However, the  record

indicates   that  Evans   made  only   a  reference   at  his

disciplinary hearing to a desire  to call prison officials as

witnesses  and that  this claim was  not pressed.   Moreover,

                    
                                

   1Evans' allegation  that  the notice  violated the  Morris
               1
rules is not of federal constitutional dimension, and  such a
violation,  in and of  itself, is not  a sufficient predicate
for a federal due process claim.  

                             -2-


even if we assume that the board erred in  not allowing Evans

to call these witnesses, the error was harmless.  

     The   only  information   those  witnesses   could  have

provided, according to Evans, is that they had not seen Evans

have  more   than  minimal  contact  with   his  alleged  co-

conspirator in  the time immediately preceding  the discovery

of the escape attempt.  Since Evans makes no claim that these

witnesses   were   present   at   all  times   during   which

communication between Evans and his co-conspirator could have

occurred, their  testimony would have done  little to sustain

Evans' claim.  Since Evans has not shown that he suffered any

prejudice from his inability to  call these witnesses, he has

failed to  show any violation of his due process rights.  See
                                                                         

Forbes v. Trigg, 976  F.2d 308, 318 (7th Cir.  1992) (failure
                           

to allow inmate to call witnesses did not violate due process

since "[t]heir testimony could  have added little"); see also
                                                                         

Wolff v.  McDonnell, 418  U.S. 539, 566  (1974) (disciplinary
                               

board   may  deny   request   for  witness   on  grounds   of

irrelevance).

     Evans'  third  claim  is  that  there  was  insufficient

evidence  in the record to support the finding of guilt.  The

only   witness  upon   which   the  board   relied  was   the

investigating officer, who related to the board the testimony

of  two   confidential  informants  and   vouched  for  their

reliability. 

                             -3-


     When  a  disciplinary board's  finding  of  guilt relies

primarily   on  the  evidence   provided  by  a  confidential

informant, due process requires  that the board have adequate

information from which it  could reasonably conclude that the

informant's evidence was reliable.   See Langton, 667 F.2d at
                                                            

235.    We find  that the  board had  a sufficient  basis for

finding that  the informants'  testimony met  the reliability

requirement in this case.

     In his testimony to the board, the investigating officer

made clear that his information about the escape attempt came

from  two separate  informants  and that  each informant  had

provided reliable information in the past.  He also testified

that  physical  evidence (escape  tools)  were  found in  the

possession  of  one of  the  informants.   An  investigator's

personal testimony of  what a confidential informant  stated,

along  with  his  statement  that the  informant  had  proved

reliable in  the  past, is  usually  sufficient to  meet  the

reliability requirement of Wolff.  See Hensley v. Wilson, 850
                                                                    

F.2d  269, 277  (6th Cir.  1988) ("[a]t  a very  minimum, the

investigator  must report  that  a  particular informant  has

proved reliable  in specific  past instances");  Zimmerlee v.
                                                                      

Keeney,  831 F.2d 183, 187 (9th Cir. 1987), cert. denied, 487
                                                                    

U.S. 1207  (1988)  ("that an  informant  previously  supplied

reliable information  is sufficient"); Dawson  v. Smith,  719
                                                                   

F.2d 896, 899  (7th Cir.  1983), cert. denied,  466 U.S.  929
                                                         

                             -4-


(1984) (same); Kyle  v. Hanberry, 677  F.2d 1386, 1390  (11th
                                            

Cir. 1982) ("due  process may be satisfied where  the witness

relaying the information provided by a confidential informant

testifies before the [board] that he knows the informer, that

he has  used him in the past, and that the informer had first

hand knowledge of the  incident reported").  We find  that it

is so in the instant case, especially since physical evidence

was found which corroborated this information. 

     The   judgment  of  the   district  court  is  summarily

affirmed.  See 1st Cir. Loc. R. 27.1.  
                          

     Appellant's  motion to  be allowed  to proceed  in forma
                                                                         

pauperis and  his motion for  appointment of an  attorney are
                    

denied.
                  

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