dissenting.
I respectfully dissent.
The magistrate judge in a carefully crafted report and recommendation stated that Ku-low suffers from mild mental retardation and falls within the “borderline range” of intellectual functioning. Two psychiatrists and a psychologist all agreed that Kulow had very poor verbal comprehension, verbal fluency, learning, memory, reading and writing skills, and that organic brain damage is at least partly responsible for his intellectual deficiencies. They disagreed on whether his explosive temper was the result of an organic personality disorder or was psychological in origin.
In my view, an individual with Kulow’s limitations should have had counsel or counsel substitute appointed to deal with his complaints concerning continuing protective custody and with his disciplinary proceedings for prison rule violations.
The magistrate judge relied on dictum in Wolff v. McDonnell, 418 U.S. 539, 570, 94 S.Ct. 2963, 2981-82, 41 L.Ed.2d 935 (1974), that where the complexity of an issue makes it unlikely that an inmate will be able to collect and present evidence necessary for an adequate comprehension of the case, he should be free to seek the aid of a fellow inmate or substitute counsel. Further, the magistrate judge referred to ISP rules calling for assistance of inmates by staff at disciplinary hearings “as necessary.” The magistrate judge concluded that Kulow’s mental deficiencies and the complexity of the issues relating to his responsibility for his behavior are such that due process requires that he be afforded counsel substitute at prison disciplinary hearings.
I think the court today errs in affirming the order that rejects the magistrate judge’s findings. If the due process clause has any meaning, an individual such as Kulow should be provided counsel or counsel substitute to assist in presenting his case.