Dana Ivy v. Dick Moore Ann Austermann George Lombardi Paul Caspari

BOWMAN, Circuit Judge.

Dana Ivy, a Missouri prisoner, brought this 42 U.S.C. § 1983 action alleging that the defendants, all employees of the Missouri Department of Corrections, had violated his rights under the Fifth, Eighth, and Fourteenth Amendments. The ease was tried to a jury, with the trial court1 entering judgment as a matter of law on some of Ivy’s claims and entering judgment in accordance with the jury’s verdicts for the defendants on Ivy’s remaining claims. His motion for a new trial having been denied, Ivy appeals. We affirm.

The background of the case can be stated briefly. On December 8, 1988, while incarcerated at the Missouri Eastern Correctional Center, Ivy was charged with a prison conduct violation for giving false information to a prison guard. Ivy denied making the false statement, asserting that he was in the prison gym during the episode and that the officer must have confused him with another inmate.

A disciplinary hearing was conducted by a three-member team on December 12 and 13, *6351988. Defendant Ann Austermann2 chaired the hearing team. The team heard the charging officer’s written report and Ivy’s testimony. When Ivy offered into evidence a recreation equipment sign-out sheet from the gym as an alibi document, Ms. Austermann called for a recess in order that she might investigate the authenticity of the document. The next day, when the hearing reconvened, Austermann reported her findings to Ivy and the team. The document was not admitted into evidence. The hearing team then heard from three of Ivy’s witnesses. After considering all the evidence, the hearing team found Ivy guilty of the conduct violation.

As punishment for this conduct violation, Ivy was placed in a Phase II special adjustment unit (“SAU”). Ivy eventually spent 237 days in the Phase II program. Appellees assert this long stay was attributable to Ivy’s inability to modify his behavior and to further conduct infractions. Ivy filed a grievance, which was considered and denied by the prison officials who, in addition to Aust-ermann, are named as the defendants in this lawsuit. The grievance was denied. Ivy then brought the present § 1983 action.

On appeal, Ivy asserts that the trial court erred or abused its discretion in a variety of ways. Having carefully reviewed the case, we conclude that all of the issues Ivy raises lack merit, and that only one of them warrants discussion. We turn to that issue.

As part of a broad attack on the District Court’s grant of judgment as a matter of law on certain of his claims, Ivy points to the evidence showing that Austermann, the chairperson of the hearing team, recessed the disciplinary hearing and personally investigated Ivy’s alibi defense. Ivy argues that this investigation resulted in a less than impartial disciplinary panel and, thus, did not comport with the mandates of Wolff v. McDonnell, 418 U.S. 539, 592, 94 S.Ct. 2963, 2992, 41 L.Ed.2d 935 (1974) (Marshall, J., concurring) (“an impartial decision-maker is a fundamental requirement of due process”). We disagree.

Austermann’s investigation was not done to prepare for prosecution of the charge. Rather, it took place during a recess in the disciplinary hearing, and it was undertaken to determine whether Ivy’s alibi defense was, in fact, true. The nature of prison disciplinary proceedings compels the courts to give wide latitude to prison officials in the manner in which they conduct these proceedings for they “take place in a closed, tightly controlled environment peopled by those who have chosen to violate the criminal law and who have been lawfully incarcerated for doing so.” Id. at 561, 94 S.Ct. at 2977.

Ivy relies upon Malek v. Camp, 822 F.2d 812 (8th Cir.1987). We find Malek without force in this case. In Malek, we held the plaintiffs allegation that the hearing chairman was biased stated a claim for relief under § 1983. Id. at 815. Malek alleged that the chairman of the disciplinary panel had knowledge that several days prior to the hearing Malek had prepared and filed a suit on behalf of another inmate naming the chairman as a defendant. The Court, referring to the issue as a “close” question, id. at 816, found the situation to be one where the plaintiff was alleging a “personal bias.” In contrast, here there is nothing in the evidence to suggest that Austermann was biased against Ivy. On this record, we are unable to find that Austermann’s investigation gave her an interest adverse to Ivy’s “so direct, personal, and substantial as to give rise to a due-process violation.” Dace v. Mickelson, 797 F.2d 574, 578 n. 6 (8th Cir.1986), vacated on other grounds, 816 F.2d 1277 (1987) (en banc). We conclude that the trial court did not err in granting the defendants judgment as a matter of law on this claim.

Finding this appeal wholly without merit, we affirm the judgment of the trial court.

. The Honorable Frederick R. Buckles, United States Magistrate Judge for the Eastern District of Missouri, who handled the case by consent of the parties pursuant to 28 U.S.C. § 636(c)(1) (1988).

. Although Ms. Austermann has since married and now uses her married name, Ann Barnhill, the Court will refer to her as Ann Austermann in order to remain consistent with the style of the case and to avoid confusion,