Sullivan v. Pepe

Related Cases

USCA1 Opinion









October 6, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

_________________


No. 94-1281

GLEN M. SULLIVAN,

Plaintiff, Appellant,

v.

PETER PEPE, ET AL.,

Defendants, Appellees.


____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS


[Hon. William G. Young, U.S. District Judge]
___________________

____________________

Before

Torruella, Chief Judge,
___________
Cyr and Boudin, Circuit Judges.
______________


____________________

Glen M. Sullivan on brief pro se.
________________
Nancy Ankers White, Special Assistant Attorney General, and
__________________
Michael H. Cohen, Counsel, Department of Correction, on brief for
________________
appellee.


____________________

____________________




















Per Curiam. Pro se prisoner Glen Sullivan appeals
__________ __

a district court order which granted the defendant prison

officials summary judgment in this civil action that Sullivan

filed under 42 U.S.C. 1983. Sullivan's verified complaint

sought declaratory and injunctive relief and damages as a

result of Sullivan's confinement in administrative

segregation pending a disciplinary investigation and

subsequent disciplinary conviction for participating with

other inmates in the fraudulent use of a credit card to buy

running shoes. As a result of the disciplinary conviction,

Sullivan was required to forfeit sixty (60) days of good time

credits. We affirm the judgment for the defendants with

one modification.

I.

The complaint named the following defendants in their

individual capacities: Peter Pepe, Superintendent of the

Massachusetts Correctional Institution (M.C.I.) at Norfolk,

Larry Dubois, the Massachusetts Commissioner of Corrections,

David Malone, the disciplinary hearing officer who presided

at Sullivan's disciplinary hearing, and Sergeant Stephen

Gatewood, the investigating officer at M.C.I. Norfolk. The

complaint alleged that the defendants deprived Sullivan of

his good time credits without due process by "establishing

guilt without evidence" and "allow[ing] perjured testimony

into the record and bas[ing the finding of] guilt on that



-2-















testimony." Sullivan asked the court to issue a declaratory

judgment to that effect and to expunge his institutional

record of the incident and reinstate his good time credits.

Sullivan also sought compensatory damages in the amount of

$1000 against each defendant for each day that he spent in

segregation and $10,000 in punitive damages from each

defendant.1

Before the defendants were served, the district court

reviewed Sullivan's complaint in connection with his motion

to proceed in forma pauperis (IFP) under 28 U.S.C. 1915(a).
__ _____ ________

On October 8, 1993, the court issued a memorandum and order

which allowed that motion. However, the court noted that

Sullivan's claim for the restoration of his good time credits

could only be raised by a habeas corpus petition under

Preiser v. Rodriguez, 411 U.S. 475 (1973). The court allowed
_______ _________

Sullivan's remaining claims against the defendants to

proceed, noting that its ruling did not determine whether the

complaint was otherwise sufficient to state a claim upon

which relief could be granted. Thereafter, the defendants

were served with Sullivan's complaint.2





____________________

1. Although the complaint is somewhat ambiguous, Sullivan's
subsequent filings indicate that his damages claim is based
solely on his confinement in administrative segregation.

2. However, the record suggests that the defendants did not
receive the court's October 8, 1993 order.

-3-
3















The defendants filed a motion to dismiss or, in the

alternative, for summary judgment. The motion was supported

by affidavits from defendants Malone and Gatewood and

numerous documents from the disciplinary proceeding,

including copies of the disciplinary report that charged

Sullivan with various offenses and the disciplinary hearing

record, which reported officer Malone's description of the

evidence and of the reasons that he found Sullivan guilty.3

Sullivan filed an opposition to the defendants' motion. The

parties' respective filings and Sullivan's verified complaint

indicate that the following facts are undisputed.

Sullivan is serving a 12-20 year sentence for armed

assault. Before the disciplinary incident in issue, he had

accumulated over 280 good time credits and suffered no

forfeitures. On June 9, 1993, Sullivan was removed from the

general population at M.C.I. Norfolk, a medium security

prison, and placed in the institution's Receiving Building.

He was told that he was being placed on pending investigation

status due to claims concerning the fraudulent use of a

credit card. On the following day, Sullivan was interviewed

by Sgt. Gatewood. Gatewood told Sullivan that someone had


____________________

3. The defendants also submitted Sullivan's form request for
witnesses, which identified inmate Steven Santo as the sole
witness Sullivan wished to call in his defense, Sullivan's
letter appealing Malone's disciplinary finding to
Superintendent Pepe, a form recording that that appeal had
been denied, and a record of Sullivan's forfeiture of the
good time credits.

-4-
4















placed an order for two pairs of sneakers in Sullivan's name

with East Bay Running Store, Inc. (East Bay), a Wisconsin

company. The order that Sgt. Gatewood referred to was

fraudulently made with a third party's credit card number.

Sullivan denied knowledge of any credit card or purchase from

East Bay in his name.

On June 22, 1993, Sullivan received a disciplinary

report which alleged that the aforementioned order was placed

with East Bay in Sullivan's name and M.C.I. Norfolk

address.4 The disciplinary report charged Sullivan with





____________________

4. The disciplinary report was prepared by Sgt. Gatewood and
contained the following allegations:

On 6-7-93, an investigation was initiated into the
fraudulent use of credit cards by inmates housed at
MCI-Norfolk. Through investigative techniques and
the interview process the following facts have been
established.

On 5-27-93, an order was placed at East Bay Running
Store, Inc., 427 Third Street, Wausau, Wisconsin, for a
pair of Reebok Shaq Attack sneakers and one pair of Nike
Pantheon sneakers. This attempted purchase was fraudulently
done by using an innocent civilian's credit card number.
This order was scheduled to be shipped to Glenn (sic)
Sullivan, Two Clark Street, P.O. Box 43, Norfolk, MA.
East Bay Running Store was alerted to this credit card fraud
and this order was cancelled.

On 6-9-93, inmate Glen Sullivan was placed in the
Receiving Building Pending Investigation. Inmate
Sullivan was advised of his Miranda rights at this time.

On 6-22-93, this investigation was concluded. Inmate
Sullivan's status was changed from R.B./P.I. to R.B./AA.


-5-
5















multiple offenses, including stealing.5 Sullivan also

received a Request for Representation and/or Witnesses form

which he used to request that inmate Steven Santo be called

as a witness at Sullivan's disciplinary hearing. Santo was

also under investigation for fraudulently using the credit

card, as were several other inmates.

A disciplinary hearing was convened on July 9, 1993 at

which defendant Malone presided. The disciplinary report was

read and Sullivan denied the charges. Although it appears

that inmate Santo was not called as a witness, officer Malone

received an unsworn statement from him which was admitted

into evidence.6 Thereafter, the hearing was adjourned until


____________________

5. The disciplinary report specifically charged Sullivan
with the following offenses under 103 C.M.R. 430.24 (1992):

(2) Violating any departmental rule or regulation, or
any other rule, regulation, or condition of an institution
or community based program[,]
(8) Conduct which disrupts or interferes with the
security or orderly running of the institution.
(23) Unauthorized possession of property belonging to
another person.
(24) Possession of anything, including money or
currency, not authorized for retention of receipt by the
inmate.
(26) Stealing.
(32) Violating any law of the Commonwealth of
Massachusetts or United States[, and]
(33) Attempting to commit any of the above offenses,
aiding another person to commit any of the above
offenses, and making plans to commit any of the above
offenses shall be considered the same as commission of
the offense itself.

6. Santo's statement said, "I, Steven Santo, testify that
Glen Sullivan had no knowledge of any purchase from East Bay
Co. being shipped to him at M.C.I. Norfolk. The order was

-6-
6















the following Monday, July 12th. On that day Sergeant

Gatewood testified that the disciplinary report was accurate,

that an order for two pairs of sneakers was scheduled to be

sent to Sullivan and that informant information showed that

Sullivan was aware that the package of sneakers was coming to

him. However, Gatewood did not know who had placed the

actual order and he acknowledged that Sullivan did not

receive anything as a result of the order.

Officer Malone's affidavit indicates that Sullivan

complained that he had been unaware that informant

information was going to be used. Malone then excused

Sullivan from the hearing room and Gatewood supplied Malone

with the informant information in executive session. Malone

completed an informant information checklist which indicated

that the disclosure of the informant evidence would be

hazardous to the informant and institutional security. Based

on information provided by Gatewood, Malone's checklist also

found that the informant was reliable because he had been

used on five previous occasions, that the informant's

information was credible, and that no favors had been sought






____________________

for another inmate purpose." Apart from officer Malone's
averment that several inmates had disciplinary hearings
related to the fraudulent purchases on July 9th, the record
does not explain why Santo was not allowed to testify at
Sullivan's hearing.

-7-
7















by, or promises made to, the informant in exchange for the

information.7 The disciplinary hearing then resumed and

Malone told Sullivan that the informant information indicated

that Sullivan had been aware both that an order had been

placed using his name and return address and that a

fraudulently obtained credit card number had been used.

Sullivan then indicated that he had given another inmate

permission to have a package sent to Sullivan because that

inmate had already received a package within the last 30

days.8

As a result of the disciplinary hearing, officer Malone

found Sullivan guilty of conduct which disrupts or interferes

with the security or orderly running of the institution in

violation of 103 C.M.R. 430.24(8) and of attempting to

commit or aiding another to commit stealing in violation of

103 C.M.R. 430.24(33), (26). Malone based his finding on

Gatewood's disciplinary report and testimony, the informant

information, and Sullivan's inconsistent statements at the


____________________

7. The informant information checklist is not before us,
although Massachusetts regulations require that it be made
part of the record of the disciplinary proceedings. See 103
___
C.M.R. 430.15(1)(1992)(hearing officer's finding that the
informant is reliable and the information is credible shall
be included in the record).

8. Thus, while Sullivan initially denied knowledge that a
package was coming to him, he later admitted that he had
given another inmate permission to have a package sent to
Sullivan for the other inmate. However, Sullivan apparently
continued to deny knowledge that the package would have
contained sneakers procured through fraud.

-8-
8















disciplinary hearing. While Malone acknowledged that the

goods did not actually reach Sullivan, he determined that a

guilty finding was warranted because Sullivan had attempted

to fraudulently obtain the shoes.9 Malone recommended that

Sullivan be sanctioned with the loss of sixty (60) days of

good time credits and a custody status review. Sullivan

appealed Malone's finding to Superintendent Pepe, maintaining

that he had no knowledge of the fraudulent purchase.

Superintendent Pepe denied Sullivan's appeal and Commissioner

Dubois thereafter ordered Sullivan to forfeit sixty days of

good time credits.10

Based on the foregoing facts, the defendants made four

arguments in support of their motion for dismissal/summary

judgment. They first asserted that the complaint failed to

state an actionable claim because Sullivan only challenged

the sufficiency of the evidence at his disciplinary hearing

and the record established that the evidence supporting

Sullivan's conviction was obviously sufficient under Hill v.
____

Superintendent of Mass. Correctional Institution at Walpole,
____________________________________________________________

472 U.S. 445, 455-57 (1984)(requiring that there be only


____________________

9. Malone also found that Santo's statement was not credible
because Santo also was involved in the investigation and it
was possible that there had been collaboration on an alibi.
Moreover, Santo did not indicate how he knew that Sullivan
was not involved.

10. Sullivan also contends that he has been reclassified to
M.C.I. Cedar Junction, a maximum security prison, as a result
of the disciplinary finding.

-9-
9















"some evidence" of an inmate's guilt to sustain a prison

disciplinary conviction).11 The defendants argued that there

was ample evidence to support Sullivan's conviction because

(a) it was undisputed that an order had been placed using a

fraudulently obtained credit card number and Sullivan's name

and return address, (b) the only issue was whether Sullivan

knew of the purchase order and its fraudulent nature, (c)

informant information substantiated that Sullivan was one of

the inmates who had participated in the fraudulent use of the

credit card number, and (d) Sullivan's denial of the charges

was properly discounted since he had given inconsistent

statements concerning the state of his knowledge before and

after Gatewood testified. The defendants also argued that

Sullivan failed to state the basis for his claim that

"perjured testimony" had been used against him. They

contended that if that claim was based on the informant's

information, the claim was not actionable because Wolff v.
_____

McDonnell, 418 U.S. 539, 565 (1974), recognized that
_________

informant information may properly be used to obtain prison



____________________

11. In Hill the Supreme Court upheld an inmate's
____
disciplinary conviction for assaulting another inmate based
on a corrections officer's testimony that he saw the
plaintiff/inmate with two other inmates jogging away from the
bruised victim. The victim denied that he had been assaulted
by the plaintiff and there was no direct evidence that any
one of the three fleeing inmates had been the victim's
assailant. Nevertheless, the Supreme Court held that the
evidence against the plaintiff was sufficient although
arguably "meager." See 472 U.S. at 456-57.
___

-10-
10















disciplinary convictions.12 The defendants further argued

that Sullivan's complaint did not allege any procedural

improprieties in the admission of the informant's information

under 103 C.M.R. 430.15(1)-(4)(1992).13 Noting that

summary judgment was appropriate to the extent that matters

outside the pleadings were considered, the defendants also


____________________

12. While the cited page in Wolff did not expressly address
_____
informant information, the Court acknowledged that when
personal or institutional safety was implicated, prison
officials could exclude evidence from their statement of
reasons for taking disciplinary action so long as the
statement indicated the fact of the omission. One court has
observed that Wolff "foreshadowed" the problem of informant
_____
information by indirectly suggesting that evidence might be
excluded from the statement of reasons to protect informants
from retaliation. See Hensley v. Wilson, 850 F.2d 269, 273
___ _______ ______
(6th Cir. 1987).

13. 103 C.M.R. 430.15 (1992) sets forth the Procedures for
the Use of Informant Information. In general, it provides
that a hearing officer may consider evidence that is not
presented in the inmate's presence only if the officer makes
a finding that the informant is reliable and his information
is credible and that finding is included in the record. The
finding should furthermore contain the facts upon which the
hearing officer based his conclusion and a statement of the
informant's information that (a) is as specific as possible
without creating a substantial risk of disclosing the
informant's identity, and, (b) demonstrates that the
informant had personal knowledge of the information he
provided. The hearing officer must also find that disclosure
of the information would create a substantial risk of harm
and must further present a summary of the information to the
inmate at the hearing unless disclosure in any greater detail
than that contained in the disciplinary report would create a
substantial risk of disclosing the informant's identity. The
regulation is reproduced in the appendix to this opinion. As
noted above at n.7, the record does not contain the informant
information checklist that this regulation requires. We note
that the record also does not include a specific description
of the informant information nor any indication that the
informant had personal knowledge of the information he
provided.

-11-
11















argued that they were entitled to summary judgment on grounds

of qualified immunity because they acted with the objective

good faith belief that their actions were proper, and that

the court should decline pendent jurisdiction over any state

law claims that might be read into the complaint (which

invoked both federal and pendent jurisdiction) since there

was no basis for Sullivan's federal cause of action.

Sullivan's opposition to the defendants' motion was

supported by an affidavit from inmate Santo and a photocopy

of a December, 1993 letter that Sullivan had written to East

Bay in an apparent effort to gather documents in support of

his defense.14 While Sullivan's rambling prose is

difficult to comprehend, he maintained that his complaint

stated a claim for the reinstatement of his good time

credits, the expungement of the disciplinary report, and

compensation for each day that he spent in segregation.

Sullivan alleged that he had produced an affidavit and

witness list that the defendants denied him, but he does not

identify what witnesses, apart from Santo, he wanted to call,

nor what evidence would have been elicited from them.15


____________________

14. Sullivan asked East Bay for copies of its records of the
fraudulent orders and Sullivan's own cash transactions with
East Bay. Sullivan's opposition asserted that he had
obtained documentation that would clear him of the
disciplinary charges.

15. The affidavit from inmate Santo that Sullivan submitted
indicated that Santo had ordered items with the credit card
and that Sullivan had no knowledge or involvement in the

-12-
12















Sullivan also alleged that the defendants violated his state

and federal rights by placing him in the Receiving Building

on awaiting action status without due process. However, he

alleged no facts to support this claim, but only made

conclusory assertions that his confinement in administrative

segregation constituted cruel and unusual punishment, denied

him the same privileges as the general population, and

violated Massachusetts policies and regulations.16

On March 4, 1994, the district court endorsed the

defendants' motion with an order indicating that it had

treated the motion as one for summary judgment and allowed it

for all the reasons set forth in the defendants' memorandum.

Sullivan appeals this ruling.

II.

On appeal, Sullivan stresses that while his complaint

sought declaratory and injunctive relief and compensation for

his confinement in administrative segregation, his main

concern is for the restoration of his good time credits.


____________________

fraudulent scheme.

16. The only factual allegations in Sullivan's opposition
related to the disciplinary investigation. Sullivan alleged
that in contrast to the disciplinary report, which suggested
that the defendant prison officials had uncovered the fraud
and contacted East Bay, East Bay had contacted the defendants
to warn them that several orders had been fraudulently placed
on the same credit card number on behalf of different
individuals who had the same address of delivery (i.e.,
M.C.I. Norfolk). East Bay cancelled the orders and furnished
the defendants with a list of names that had been used in the
attempted fraud.

-13-
13















Sullivan reiterates his contention that he was denied due

process in his disciplinary proceedings because his guilt was

established "without evidence" through informant information

and Gatewood's perjured testimony and because he was not able

to call witnesses or obtain affidavits or discovery.17

Sullivan also maintains that this court must review the

dismissal of his claim that he was illegally confined in

administrative segregation. He says that this confinement

hampered the preparation of his defense, but he does not

explain how.18 Sullivan's complaint sought relief for

two distinct events: his confinement in administrative

segregation before his disciplinary conviction, for which

Sullivan sought damages, and the disciplinary proceeding

that resulted in the forfeiture of his good time credits, for



____________________

17. Sullivan also raises several specious arguments. For
example, he contends that we must review the judgment for the
defendants under the standard imposed by Neitzke v. Williams,
_______ ________
490 U.S. 319 (1989), because the district court acted
spontaneously. But it is clear that the district court did
not render judgment for the defendants spontaneously but only
in response to the defendants' motion, thus Neitzke does not
_______
apply. Sullivan also says that because he received a
district court scheduling order before he received notice
that the court had allowed the defendants' motion for summary
judgment he was misled to believe that he would have an
opportunity to amend his complaint and pursue discovery. But
as Sullivan had filed his opposition to the defendants'
motion before the scheduling order issued, Sullivan's
misperception did not result in any prejudice.

18. The defendants' motion for dismissal/summary judgment
did not address Sullivan's segregation claim. The defendants
now contend that we should deem this claim waived because
Sullivan did not plead it sufficiently below.

-14-
14















which Sullivan sought an order expunging his disciplinary

conviction and compelling the restoration of his good time

credits. While Sullivan's damages claim was cognizable under

42 U.S.C. 1983 as an attack on his conditions of

confinement, Preiser v. Rodriguez, 411 U.S. at 499 & n.14
_______ _________

(1973), the district court correctly observed that Sullivan's

claim for the restoration of his good time credits was not

cognizable under 42 U.S.C. 1983. Rather, Preiser v.
_______

Rodriguez, 411 U.S. at 482-500, established that habeas
_________

corpus, with its attendant requirement of exhaustion of state

remedies, is the sole remedy for state prisoners challenging

the actual duration of their confinement on the ground that

they have been unconstitutionally deprived of good time

credits. This distinction appears to have gone unnoticed when

the district court summarily allowed defendants' motion for

summary judgment.

As concerns Sullivan's damages claim based on his

confinement in administrative segregation, Sullivan merely

cites to cases relating to other challenges to inmate

confinement in administrative and disciplinary segregation,

see, e.g., LeMaire v. Maass, 745 F. Supp. 623 (D. Or. 1990)
___ ____ _______ _____

(holding conditions in disciplinary segregation unit, e.g.,
____

cell restraints, constituted cruel and unusual punishment);

Hoffer v. Commissioner of Correction, 412 Mass. 450
______ ____________________________

(1992)(upholding judgment that correction officials' failure



-15-
15















to set conditional release date or conditions of behavior to

enable inmate to secure release from departmental segregation

unit violated due process); Royce v. Commissioner of
_____ ________________

Correction, 390 Mass. 425 (1983) (confinement in awaiting
__________

action status may not be used as a pretext for punishment),

without alleging facts suggesting that defendants subjected

Sullivan to similar conditions. Nor has Sullivan alleged

any facts to suggest that his confinement in the Receiving

Building on awaiting action status violated Massachusetts

regulations.19 Thus, we affirm the judgment for the

defendants insofar as it pertains to Sullivan's claim for

damages based on his confinement in administrative

segregation.

Sullivan's due process challenge to his disciplinary

conviction and loss of good time credits requires further

analysis, however. The fact that a prisoner-plaintiff may

not have exhausted state remedies does not preclude dismissal

of a habeas petition which is obviously meritless,

particularly where the government has not raised non-

exhaustion as a defense. See, e.g., Granberry v. Greer, 481
___ ____ _________ _____


____________________

19. The defendants correctly point out that 103 C.M.R.
430.21(1)(1992) authorizes prison officials to place "an
inmate who is under investigation for a possible disciplinary
offense or [who] has been charged with or found guilty of a
disciplinary offense" on awaiting action status "subject to
any applicable review requirements[.]" Sullivan has not
alleged any facts to suggest that any review or other
regulatory requirements were violated by his administrative
segregation.

-16-
16















U.S. 129, 135 n.7 (1987)("it is appropriate for the court of

appeals to dispose of nonmeritorious petitions without

reaching the nonexhaustion issue"); Love v. Butler, 952 F.2d
____ ______

10, 15 (1st Cir. 1991)(same). But we are not satisfied, at

this point, that Sullivan's due process claim can be

considered obviously meritless. The informant's information

was the only evidence that showed Sullivan's knowledge of the

fraudulent purchases and Sullivan is attacking the use of the

informant information to prove his culpability in the scheme.

The Massachusetts regulations governing the use of informant

information were promulgated after the Massachusetts Supreme

Judicial Court determined that due process required certain

safeguards when informant information is used. See, e.g.,
___ ____

Nelson v. Commissioner of Correction, 456 N.E. 2d 1100, 390
______ ___________________________

Mass. 379 (1983); Lamoreux v. Superintendent, Massachusetts
________ _____________________________

Correctional Institution, Walpole, 456 N.E.2d 1117, 390 Mass.
_________________________________

409 (1983). Where the informant information checklist is

not in the record, and the record neither indicates what the

informant's information was nor whether the informant had

personal knowledge of the information he provided, we cannot

say that the "some evidence" test of Hill has been satisfied
____

with respect to the issue of knowledge of fraudulent

purchases. In these circumstances, we believe Sullivan

should be permitted to exhaust his state court remedies in

connection with the due process claim.



-17-
17















Accordingly, the judgment entered for defendants on the

damages claim for confinement in administrative segregation

is affirmed. The judgment entered for defendants on the due
________

process claim for restoration of good time credits shall be

modified to reflect that this claim is dismissed pursuant to
________

Preiser v. Rodriguez, 411 U.S. 475, 482-500 (1973), subject
_______ _________

to exhaustion of state remedies.







































-18-
18




















APPENDIX
________


103 C.M.R. 430.15: Procedures for the Use of Informant
_____________________________________________________________
Information
___________

In disciplinary cases involving informant information,
the hearing officer may consider documentary evidence
and/or testimony which is not presented in the presence
of the inmate or his representative only if, after
viewing and/or hearing such documentary evidence or
testimony, the hearing officer has:

(1) Made a finding that the informant is reliable and
that
the information is credible. This finding shall be
included in the record and should contain the following
information:
(a) the facts upon which the hearing officer based
his conclusion that the informant was reliable and
that the information was credible.
(b) a statement of the information provided by the
informant as specific as possible without creating
a
substantial risk of disclosing the identity of the
informant. The statement should demonstrate that
the
informant had personal knowledge of the information
he provided;

(2) Made a finding that the disclosure of the
documentary evidence or testimony provided by the
informant to the inmate or his representative would create
a substantial risk of harm to the informant, to any other
person, or to the security of the institution;

(3) The hearing officer shall present a summary of the
informant information to the inmate at the hearing.
Such a presentation may, however, be foregone in cases
where disclosure of the information in any greater detail
than that which is contained in the disciplinary report
itself would create a substantial risk of disclosing the
identity of the informant.




-19-
19















(4) The hearing officer may consider informant
information and base the findings in 103 CMR 430.15(1) on
information which is limited to oral or written hearsay
evidence. The hearing officer shall not be required to
interview the informant in person.















































-20-
20