UNITED STATES COURT OF APPEALS
For the Fifth Circuit
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No. 00-20432
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MORRIS R. BROUSSARD,
Petitioner-Appellee,
VERSUS
GARY L. JOHNSON, Director, Texas Department of Criminal Justice,
Institutional Division,
Respondent-Appellant.
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Appeal from the United States District Court
For the Southern District of Texas
Houston Division
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June 25, 2001
Before DAVIS, WIENER, STEWART, Circuit Judges.
PER CURIAM:
This is an appeal from the district court’s order granting the
application for habeas corpus filed by Morris Broussard, a Texas
state prisoner, challenging a prison disciplinary conviction on due
process grounds. For the reasons that follow, we AFFIRM the
judgment of the district court.
I.
Broussard is an inmate in the Texas Department of Corrections,
Institutional Division, serving a ninety-nine year sentence. In
1991, a confidential informant advised the warden of the Eastham
Unit at which Broussard was incarcerated that Broussard and another
inmate, Lane, were planning an escape. The informant further
advised that, to facilitate their escape, the two inmates had
hidden bolt cutters in the kitchen area, where both men worked.
The warden ordered Hammers, a captain at Eastham, to investigate
the tip, and a search of the kitchen confirmed the presence of the
bolt cutters. Broussard and Lane were charged with the possession
of contraband intended for use in an escape, and both were found
guilty. The primary evidence offered at the prison disciplinary
hearings was the testimony of Captain Hammers, the investigating
officer. Hammers related the information provided to the warden by
the informant and confirmed that the bolt cutters had been found in
the commissary. Hammers had not interviewed the informant
personally, and did not know the identity of the informant or
anything about the informant. Captain Hammers knew only what the
warden had told him. The disciplinary hearing officer did not
allow the inmates to question Hammers as to the reliability of the
informant, nor did the hearing officer receive evidence from
Hammers in camera on the subject. The disciplinary hearing officer
found Broussard and Lane guilty, and the prisoners lost all “good
time” they had accumulated.
Broussard then filed a § 1983 civil rights complaint in the
district court, alleging that his due process rights had been
violated during the disciplinary hearings. The magistrate judge
assigned to the case conducted a hearing pursuant to Flowers v.
Phelps, 956 F.2d 488, modified in part on other grounds, 964 F.2d
400 (5th Cir. 1992). At the Flowers hearing, Warden Martin
testified in camera, giving his reasons for concluding that the
confidential informant was credible and reliable. The warden
2
admitted, however, that little, if any, of this information was
imparted to Captain Hammers before the disciplinary hearing. The
magistrate considered the testimony of the warden and all of the
other evidence presented in the disciplinary board hearing, and
recommended that the lawsuit be dismissed with prejudice.
Broussard objected to this recommendation. The district court
converted Broussard’s suit into a petition for writ of habeas
corpus (because the defendant seeks the restoration of his good-
time credits)1, and granted the writ. The district court concluded
that Broussard’s right to due process had been violated because the
hearing officer failed to independently assess the reliability of
the confidential informant. The district court further held that
without the information provided by the confidential informant, no
competent evidence was presented that supported the hearing
officer’s findings. The district court ordered that Broussard’s
disciplinary conviction be vacated and his good-time credits
reinstated, unless the Texas Department of Criminal Justice-
Institutional Division (TDCJ) provided him a new hearing within
ninety days. TDCJ now appeals that ruling.
II.
We begin by recognizing that “[p]rison disciplinary
proceedings are not part of a criminal prosecution, and the full
panoply of rights due a defendant in such proceedings does not
apply.” Wolff v. McDonnell, 418 U.S. 539, 556, 94 S. Ct. 2963,
1
See Preiser v. Rodriguez, 411 U.S. 475, 488-90 (1973);
Alexander v. Ware, 714 F.2d 416, 419 (5th Cir. 1983).
3
2975 (1974). The Supreme Court has recognized that prisoners do
not have a due process right to confrontation or cross-examination
during prison disciplinary proceedings. Id. “Thus, the prisoner’s
right to call witnesses and present evidence in disciplinary
hearings can be denied if granting the request would be ‘unduly
hazardous to institutional safety or correctional goals.’” Ponte
v. Real, 471 U.S. 491, 495, 105 S. Ct. 2192, 2195 (1985) (quoting
Wolff, supra, at 566, 94 S. Ct. at 2974). However, due process
does require, at a minimum, that there be “some evidence” in the
record to support the disciplinary decision. Superintendent, Mass.
Correctional Inst. v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 2774
(1985).
A.
The government does not contend that the evidence presented to
the hearing officer would permit the officer to find that the
confidential informant’s tip was reliable. Instead, the government
argues that due process concerns can be satisfied where additional
information supporting the reliability of a confidential informant
is presented in a later proceeding, after the disciplinary board
hearing.
As stated above, due process requires that there be some
evidence supporting the disciplinary determination. Hill, 472 U.S.
at 454, 105 S.Ct. at 2774. It is clear that a bald assertion by an
unidentified person, without more, cannot constitute “some
4
evidence” of guilt.2 The courts generally require that the
disciplinary board independently assess the reliability of the
informant’s tip based on some underlying factual information before
it can consider the evidence.3 “The touchstone is
reliability...The disciplinary committee must make a reliability
determination prior to its decision...upon any...reasonable basis
having a factual underpinning.” Taylor, 931 F.2d at 702.
In Taylor, the Tenth Circuit observed in dicta that additional
documentation supporting the reliability of the confidential
informant could be submitted to the district court at some time
after the conclusion of the disciplinary hearing. Id. Similarly,
the Seventh Circuit, in Wells, reasoned that “the district court
may...give prison officials the opportunity to supplement the
administrative record.” Wells, 854 F.2d at 1000.
The government urges us to follow the reasoning of Wells and
Taylor and hold that petitioner’s due process rights have not been
violated, because information establishing the reliability of the
confidential informant was given by the warden, in camera, to the
magistrate judge in Broussard’s § 1983 case. We are not persuaded
by the government’s argument. In both Wells and Taylor, the
testifying officer had some knowledge of the confidential
informant’s identity and the facts surrounding his reliability. In
2
See, e.g., Taylor v. Wallace, 931 F.2d 698, 701 (10th Cir.
1991).
3
See, e.g., Hensley v. Wilson, 850 F.2d 269, 276 (6th Cir.
1988); Wells v. Israel, 854 F.2d 995, 999 (7th Cir. 1988); Taylor,
931 F.2d at 702.
5
our case, Captain Hammers had no knowledge of the identity of the
confidential informant, or any other fact supporting the
confidential informant’s reliability.4 Where a witness gives
significant general testimony to the disciplinary board that
supports a confidential informant’s reliability, we do not
foreclose the state from presenting additional details supporting
reliability to the board or a federal court in a later proceeding
inquiring into the details of that witness’s knowledge.5 In this
case, however, no evidence was presented to the disciplinary board
tending to support the confidential informant’s reliability. Under
these circumstances, we agree with the district court that the
prison disciplinary board violated Broussard’s right to due process
by considering the confidential informant’s tip as probative
4
As the district court noted, the proceedings here did not
comply with the TDCJ’s rules governing the use of confidential
informants at disciplinary proceedings. TDCJ’s regulations
provide:
If information provided by a confidential informant will
be used at the disciplinary hearing as additional
evidence, the investigating officer must:
...
b. have interviewed the informant(s) who must have some
knowledge of the incident/circumstances of the alleged
offenses; and determine how the knowledge was gained
which led the investigator to a conclusion of guilt;
...
e. testify at the disciplinary hearing that the testimony
of the confidential informant is believed to be reliable,
based upon his/her interview, and describe in general
terms the substance of the accusation and the conclusion
drawn therefrom...
Office for Disciplinary Coordination, TDCJ, Administrative
Memorandum–-Disciplinary No. 89-VI.E.4-01.
5
See Wells, 854 F.2d at 1000; Taylor, 931 F.2d at 702.
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evidence.
B.
Prison disciplinary proceedings are overturned only where no
evidence in the record supports the decision. See Smith v.
Rabalais, 659 F.2d 539, 545 (5th Cir. 1981). The government argues
that the bolt cutters provide the necessary support for the
disciplinary board’s decision. When we disregard the confidential
informant’s tip, however, the only evidence linking Broussard to
the bolt cutters is that they were found in an area in which he
worked, but to which approximately one hundred inmates had access.
We agree with the district court that such evidence is insufficient
to satisfy even the “some evidence” standard of Superintendent v.
Hill, supra.
III.
For the above reasons, the judgment of the district court
conditionally granting Broussard’s petition for habeas corpus
relief is AFFIRMED. The TDCJ may provide Broussard with a new,
constitutionally adequate hearing within ninety days of the
issuance of our mandate. If such a hearing is not provided,
petitioner’s disciplinary conviction is hereby vacated and TDCJ is
ordered to reinstate his good time credits.
AFFIRMED.
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