Lloyd Matthews, Plaintiff-Appellant, v. Paul Rakiey, et al., Defendants-Appellees, 981 F.2d 1245 (1st Cir. 1992)

In 1989, Lloyd Matthews, an inmate at Massachusetts Correctional Institution Cedar Junction, filed a complaint, pursuant to 42 U.S.C. § 1983 and state law, followed by two amendments to the complaint, against numerous prison officials, alleging, inter alia, due process violations with respect to several separate prison disciplinary proceedings. The district court granted summary judgment in the defendants' favor on these claims on May 29, 1990.¹  We affirm, in part, and vacate and remand, in part.

The district court wrote a 16 page memorandum and order, in which it detailed the factual underpinnings of the various disciplinary charges against Matthews and the rationale for its ruling. Except for its grant of summary judgment as a matter of law to the prison disciplinary board with respect to the board's refusal to grant Matthews access to a videotape of events of November 3, 1989, or to view it itself, we affirm the court's ruling of May 29th. We see no need to replicate the expressed rationale with which we agree. We write only to explain our disagreement with this one aspect of the court's ruling and to elaborate on some other aspects, which, his brief reveals, Matthews has not understood. We recite here only the facts necessary to give context to those claims we have felt required further comment.

Disciplinary Report No. 89-2221

In Matthews' view, he should not have been placed in the Awaiting Action Unit (AAU) on August 16, 1989, while his rehearing on Disciplinary Report No. 89-2221 (possession of marijuana and a weapon) was pending. He suggests this violates Mass. Regs. Code tit. 103, § 421.07(2) (1986), which says that an inmate shall not be transferred to the Departmental Segregation Unit (DSU) for committing a specific punishable offense unless a disciplinary board has first found him guilty of that offense and imposed a sanction and the commissioner has found that the inmate poses a substantial threat (a) to the safety of others or (b) of damaging or destroying property or (c) of interrupting the operation of the prison if he is confined in the prison's general population. See also Parenti v. Ponte, 727 F.2d 21, 24-25 (1st Cir. 1984) (holding that this regulation creates a liberty interest). He says that, because his rehearing on Disciplinary Report No. 89-2221 was still pending in August (and, therefore, the commissioner had not made the necessary finding), he could not be transferred to the DSU on the basis of that pending report.

The short answer is that Matthews was not transferred to the DSU prior to the rehearing of Disciplinary Report No. 89- 2221. He was not returned to the DSU until September 15, 1989, after the rehearing took place. Between August 16th and September 15th, he was held in the AAU, which is "[a]n area ... designated by a superintendent in which a resident may be confined pending a hearing to determine whether such resident shall be transferred to a departmental segregation unit." Mass. Reg. Code tit. 103, § 421.06(1) (1986). And, § 430.21(1) (1987) provided:

At the discretion of the Superintendent or his/her designee, and subject to any applicable review requirements, an inmate who is under investigation for a possible disciplinary offense, or who has been charged with or found guilty of a disciplinary offense, may be placed on awaiting action status at the institution where he/she is then confined. Such status may include more restrictive confinement as deemed appropriate by the Superintendent or his/her designee.

Furthermore, Matthews had been mistakenly released prematurely from the DSU on August 11, 1989, when, in fact, his placement in the DSU as a result of an attempted assault on the prison law librarian (Disciplinary Report No. 88-4510) had been extended to January 1990.²  Granted, the commissioner had extended Matthews' expected release date from his DSU placement for the attempted assault for an additional 6 months because of the marijuana and weapon incident. But, the DSU placement did not occur because of that later incident. And, as noted, a release date from the DSU is a projection only, which the commissioner may condition on, for example, the absence of disciplinary reports. Mass. Regs. Code tit. 103, § 421.08(2) (1986).³ 

Matthews' rehearing on Disciplinary Report No. 89-2221 was held on September 13, 1989. Matthews alleged that the 124 days between the May 12th marijuana and weapon incident and the September 13th rehearing violated the requirement of Mass. Regs. Code tit. 103, § 430.11(2) (1987) that "a hearing before the disciplinary board" be scheduled "within a reasonable time."

Again, the short answer reveals the fallacy of Matthews' premise. Matthews received his hearing regarding the May 12th incident on May 18th, certainly "within a reasonable time" as contemplated by § 430.11(2). On September 13th, he received a "rehearing" pursuant to his administrative appeal and the administrative regulations do not provide for any time constraints within which a rehearing must be held.⁴ 

Disciplinary Reports Nos. 90-192, 90-206, 90-208, 90-233

Contrary to Matthews' contention, the board's findings of guilt on these reports were not constitutionally defective because, in each case, the board relied on the report of the reporting officer without other corroborating evidence. Most of the cases cited by Matthews involve instances where a disciplinary board merely incorporated a reporting officer's report, and instances where, in addition to mere incorporation, the report, in turn, contained a mere recital of the reporting officer's conclusion that an unidentified informant was reliable. Some courts have determined that a board's finding of guilt is defective in these instances on two grounds: a) because a statement such as "Based on the reporting officer's report, we find the inmate guilty" does not specify the evidence upon which the board relied in finding guilt⁵  and b) there is no indication that the board made its own independent determination of the informant's credibility.⁶ 

By contrast, the board's findings in each instance in this case reflected no such shortcomings. First of all, no informant information was involved in any of the incidents. Each disciplinary report reflected an eyewitness account of the reporting officer. Second, although the board's report of the disciplinary hearing indicated, in each instance, that the "Board based guilt on the eyewitness testimony as recorded in the officer[']s report," that "STATEMENT OF EVIDENCE RELIED UPON TO SUPPORT FINDING, also specified, in each instance, the evidence in each report that, in the board's view, sufficed for a guilty finding.⁷ 

Disciplinary Report No. 90-206: "Report clearly indicates that R/O [reporting officer] observed subject throw the meal tray against the unit wall."

Disciplinary Report No. 90-192: "Report clearly indicates that R/O positively identified subject as the one who was encouraging a work stoppage and unauthorized group demonstration."

Disciplinary Report No. 90-208: "Report clearly indicates that subject was insolent to R/O, disruptive in the unit, and verbally abusive and threatening to the R/O."

Disciplinary Report No. 90-233: "Report clearly indicates that R/O observed subject threaten the block workers, encourage other inmates to follow his lead, resulting in Inmate Matthews assaulting a block worker, by throwing human feces on him."

Matthews has also cited and attached, as an addendum to his brief, three unpublished memoranda and orders of Massachusetts superior court judges Stokes v. Ponte, No. 90-463 (Mar. 21, 1990) (Zobel, J.); Greenwood v. Rakiey, No. 90-4154 (Jul. 17, 1990) (Bohn, J.); and Colantonio v. Vose, No. 90-4684 (Jul. 30, 1991) (White, J.). These decisions held that, when an inmate disputes the reporting officer's account of events, a disciplinary board cannot find a reporting officer's written report more credible than an inmate's live testimony, in the absence of the reporting officer's own live testimony. They conclude that, in sifting through contradictory testimony, a factfinder must assess the credibility of the witnesses, which it cannot do without the live presence of the witness.

We pass the question of the persuasive weight accorded unpublished superior court memoranda and orders. In any event, in these decisions the inmates had testified and the board had to weigh the credibility of the reporting officers' written statements versus the inmates' live testimony.

In Matthews' case, however, he pled not guilty, then expressly declined to provide any statement in his behalf. Each of the relevant hearing reports states in the section for SUMMARY OF INMATE TESTIMONY:

States to prior experience with the D-Board and he feels that his testimony is not always recorded properly and for that reason he has no statement.

In view of his failure to testify, this is not a situation where the board then had to assess the credibility of live testimony versus written statements. His apparent distrust of the accuracy of the recordation of his testimony does not alter that.

Matthews would have it that in instances where the evidence consists of an accusation by a correctional officer based on personal observation and a bare "not guilty" plea by an inmate, the board could not find guilt, based on the written eyewitness account, in the absence of independent corroborating evidence. That is not the holding of the caselaw he has cited and not the holding of the caselaw we have found. See, e.g., McLellan v. Acting Superintendent, M.C.I., Cedar Junction, 29 Mass. App. Ct. 122, 125 (1990) ("[T]he disciplinary report of Officer Belisle recounted his direct observation of the plaintiff passing a telephone to an inmate on disciplinary isolation, an action which, without any additional validation, may be deemed a violation of the rules."); see also Stokes v. Commissioner of Correction, 26 Mass. App. Ct. 585, 589 ("[T]he board refers in its decision to the officer's incident report, and a copy of the full report is appended to the decision. All of the officers' reports appear to be self-validating. Thus, although more explanation might have been preferable, in each such decision the board's rationale is revealed, and there is at least a basis for a reviewing court or agency administrator to understand how the prison board reached the decision."), further appellate review denied, 403 Mass. 1106 (1988).^8 9 

Incident of November 3, 1989

We now turn to the only argument offered by Matthews which we find has merit.¹⁰  Late on the day of Friday, November 3rd, Matthews was notified of the commissioner's approval of the recommendation that he be released to the general population. He was transferred from the Segregation Unit to the Orientation Unit. There he was told that the 3 to 11 p.m. shift commander had not received his name as an inmate to be released, so he would not be released to the general population, but rather, confined to his cell until the following Monday. He then allegedly threw a cup of urine at a correctional officer. Thereafter, he refused to submit to being handcuffed and removed from his cell. Matthews tied bed sheets across the floor from his desk to his bedframe, apparently to trip anyone entering the cell. He also suspended a bed sheet, as a curtain, from floor to ceiling with bandaids and remained behind this curtain during much of the time attempts were being made to get him to step to the bars to be cuffed.

A "move team" of officers sprayed mace and/or gas into Matthews' cell and then entered the cell. Matthews, still behind the sheet, allegedly "lunged" toward the door with a radio in his hand, which struck the shield carried by the first officer to enter ("the shield man"). Matthews was forcibly shackled and removed. Subsequently, a pen wrapped in gauze and tape at one end was found on the floor of Matthews' cell.

In December 1989, Matthews filed an amended complaint which, inter alia, alleged that he had been charged with assault, attempted assault, and possession of a weapon.¹¹  He added, as defendants, the members of the disciplinary board that considered these charges. He said that the forced extraction had been videotaped by the prison officials (as is apparently the norm), that he had never assaulted or attempted to assault the officers and that the video would show what happened, but that the disciplinary board refused to view the video or allow his legal representative or himself to view the video. He said that he was sanctioned 15 days' isolation for each disciplinary report written by the prison officers.

The members of the disciplinary board moved to dismiss or, in the alternative, for summary judgment. As noted, supra, footnote 10, they, too, failed to submit the underlying disciplinary reports or the record of the disciplinary hearing to the district court. They merely contended, without supporting documents, that the evidence presented at the disciplinary hearing satisfied both federal and state constitutional standards, that, unlike a criminal prosecution, an inmate is not entitled to a full panoply of rights, and "[a]s a result, the plaintiff had no right to exculpatory evidence, liberal discovery, etc...."

In opposing the defendants' motion for summary judgment, Matthews said that the board, in denying his request to produce the tape, indicated that it would not use the tape against him. His claim, however, was that the tape was exculpatory in that it would show that he was not violent and never assaulted or attempted to assault the "move team." He cited Mass. Regs. Code tit. 103, § 430.14(4) (1987), (which gives discretion to the chairperson to deny an offer of evidence in the interests of, inter alia, personal safety, institutional security, relevance, cumulativeness and repetitiveness) and said that the board's denial was based on other than personal or institutional safety.

The district court granted summary judgment, as a matter of law, to the defendant board members with respect to Matthews' claim about the board's refusal to grant Matthews access to the videotape or to view it at the hearing, on the ground that the discipline review board is not required to accept or grant access to any evidence at a disciplinary hearing. This statement is erroneous,¹²  since an inmate facing a disciplinary hearing that may result in the loss of a liberty interest must receive, inter alia, "an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and to present documentary evidence in his defense." Smith v. Massachusetts Dep't of Correction, 936 F.2d at 1398-99 (quoting Superintendent, Massachusetts Correctional Inst. v. Hill, 472 U.S. 445, 454 (1985)). Moreover, " 'the burden of persuasion as to the existence and sufficiency of such institutional concerns [justifying the denial of an inmate's request to call witnesses] is borne by the prison officials, not by the prisoners.' " Id. at 1399-1400 (quoting Grandison v. Cuyler, 774 F.2d 598, 604 (3d Cir. 1985)). And, in Smith, we found that a request for discovery of an item that appeared particularly important to, indeed may have been dispositive of, a defense "stands on the same footing as a request to call witnesses." Id. at 1401 (footnote omitted).

We conclude, therefore, that the district court's grant of summary judgment in favor of the defendant/disciplinary board members was, at best, premature. The defendants' flat-out contention, endorsed by the district court, that Matthews was not entitled to exculpatory evidence is wrong as a matter of law. The board may decline to accept evidence in the interests of institutional security and correctional goals or for other reasons set forth in § 430.14(4), such as relevance or cumulativeness. Wolff v. McDonnell, 418 U.S. at 566-67. And, it may be that the board would have been within its discretion to do so here. But, we just do not know.¹³  In failing to even argue that the board denied Matthews' request for a legitimate reason, much less provide supporting documentation, the board members failed to show that they were entitled to judgment as a matter of law. See Ponte v. Real, 471 U.S. 491, 496-97 (1985) (due process may require prison officials to explain, in a limited manner, either at the disciplinary hearing, or in a later court challenge, the reason why witnesses were not allowed to testify).

We, therefore, vacate the district court's order of May 29, 1990, insofar as it granted summary judgment in favor of the defendant members of the disciplinary review board on Matthews' claim that he was unlawfully deprived of access to potentially exculpatory evidence before the board, i.e., the videotape depicting events of November 3, 1989. We remand for further proceedings, in which the defendants may again move for summary judgment if, in their view, they are able to carry their burden on this issue. In all other respects, we affirm the district court order of May 29, 1990.

Affirmed, in part, and vacated and remanded, in part.¹⁴