Unpublished Disposition, 933 F.2d 1015 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 933 F.2d 1015 (9th Cir. 1990)

No. 90-35387.

United States Court of Appeals, Ninth Circuit.

Before EUGENE A. WRIGHT and O'SCANNLAIN, Circuit Judges, and GEORGE,**  District Judge.

MEMORANDUM*** 

James Lee Pinkerton appeals pro se from the district court's grant of summary judgment for the defendant in this section 1983 action. He contends that prison officials denied his rights--both at a disciplinary hearing and at a later administrative segregation hearing--to (a) receive proper notice, (b) call witnesses, and (c) receive written statements of the hearing officers' factual findings and conclusions, all in violation of the due process clauses of the fifth and fourteenth amendments. We now affirm.

* Pinkerton is a federal inmate who, during the events in question, was in the custody of the Washington State Penitentiary in Walla Walla, Washington. On May 14, 1988, he engaged in a scuffle with a cook in the kitchen area of the penitentiary's medium security complex. As a result of and immediately after this incident, Pinkerton was placed in temporary segregation. Four days later, on May 18, Pinkerton appeared at a disciplinary hearing. The hearing officer found him guilty of all the infractions with which he had been charged and imposed ten days of isolation, twenty days of segregation, and thirty days' loss of good time. Pinkerton's subsequent appeal of that decision to Superintendent Kincheloe was unsuccessful.

On May 23, 1988, Pinkerton appeared at an administrative segregation hearing at which he was adjudged to be a threat to the staff and orderly operation of the penitentiary. After that hearing, he was again committed to segregation where he remained until October 27, 1988.1 

II

In Wolff v. McDonnell, 418 U.S. 539 (1974), the Supreme Court outlined "the minimum requirements of procedural due process" that apply to inmates in prison disciplinary proceedings. Id. at 563. Specifically, the Court identified three due process rights:

We hold that written notice of the charges must be given to the disciplinary-action defendant in order to inform him of the charges and to enable him to marshal the facts and prepare a defense. At least a brief period of time after the notice, no less than 24 hours, should be allowed to the inmate to prepare for the appearance....

We also hold that there must be a "written statement by the factfinders as to the evidence relied on and reasons" for the disciplinary action....

We are also of the opinion that the inmate facing disciplinary proceedings should be allowed to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals. Ordinarily, the right to present evidence is basic to a fair hearing; but the unrestricted right to call witnesses from the prison population carries obvious potential for disruption and for interference with the swift punishment that in individual cases may be essential to carrying out the correctional program of the institution. We should not be too ready to exercise oversight and put aside the judgment of prison administrators.... There is this much play in the joints of the Due Process Clause, and we stop short of imposing a more demanding rule with respect to witnesses and documents.

Id. at 564, 566-67 (quoting Morrissey v. Brewer, 408 U.S. 471, 489 (1972)). Pinkerton contends that prison officials deprived him of these three rights before, during, and after the May 18 disciplinary hearing. We are not persuaded.

First, with respect to the question of written notice, the district court found as an undisputed fact that "plaintiff received written notice of a disciplinary hearing to be held on May 18, 1988. The notice sets forth the rights of the inmate at a disciplinary hearing, including the right to request witness statements." Pinkerton v. Kincheloe, No. 88-465 at 2 (E.D. Wash. Apr. 19, 1990) (order granting summary judgment). The court also found that Pinkerton did not raise his objection to the sufficiency of that notice in his initial filings and that the question was therefore not properly before the court. Moreover, Pinkerton has not presented any argument about notice on appeal, and we therefore deem this argument abandoned.

Second, with respect to the right to call witnesses, the district court found that Pinkerton was properly informed of this right, as the foregoing quotation reveals. To the extent that Pinkerton contends that he was only informed of this right and not actually permitted to exercise it, we find his argument unpersuasive. Pinkerton essentially claims that he was denied the opportunity to present the testimony of two witnesses, correctional officer Robert Jones and correctional officer Jesse Campos. As the district court found, however, "the hearing transcript shows that at the disciplinary hearing, plaintiff never mentioned Jones to [the hearing officer]," id. at 17, and Pinkerton has alleged no facts to indicate why it might have been error for the hearing officer to rule, as he did, that Campos's testimony was not necessary. See id. at 19.

Third, with respect to the right to receive a written statement, " [t]he record does contain an 'administrative segregation referral' signed by ... the disciplinary hearing officer." Id. at 23. Although the district court expressed some doubt over whether this document satisfies the requirements of Washington state law, we need only decide whether it satisfies the constitutional requirement of due process, and we conclude that it does: the document "lists reasons for placing plaintiff in administrative segregation." Id. at 24.

III

In Hewitt v. Helms, 459 U.S. 460 (1982), the Supreme Court outlined the minimum requirements of procedural due process that apply in the "informal context of prison officials who propose to confine an inmate to administrative segregation pending completion of an investigation against him." Id. at 476.

We think an informal, nonadversary evidentiary review is sufficient both for the decision that an inmate represents a security threat and the decision to confine an inmate to administrative segregation pending completion of an investigation into misconduct charges against him. An inmate must merely receive some notice of the charges against him and an opportunity to present his views to the prison official charged with deciding whether to transfer him to administrative segregation. Ordinarily a written statement by the inmate will accomplish this purpose, although prison administrators may find it more useful to permit oral presentations in cases where they believe a written statement would be ineffective. So long as this occurs, and the decisionmaker reviews the charges and then-available evidence against the prisoner, the Due Process Clause is satisfied. This informal procedure permits a reasonably accurate assessment of probable cause to believe that misconduct occurred, and the "value [of additional 'formalities and safeguards'] would be too slight to justify holding, as a matter of constitutional principle" that they must be adopted, Gerstein v. Pugh, [420 U.S. 103, 122 (1975) ].

Id. Pinkerton contends that he was denied due process before, during, and after the May 23 administrative segregation hearing. Again, we are not persuaded.

First, with respect to the question of notice, the same arguments apply here as apply above. The district court found as an undisputed fact that " [o]n May 19, 1988, plaintiff received notice of an initial administrative segregation hearing to be held on May 23, 1988. The notice shows that plaintiff once again requested witness statements from [five named witnesses]." Pinkerton, No. 88-465 at 3. Moreover, as the district court also found, Pinkerton failed to raise any notice argument in his complaint, and he has apparently abandoned this argument on appeal.

Second, Hewitt makes no mention of any right to call witnesses at an administrative segregation hearing; it only requires that an inmate have "an opportunity to present his views to the prison official charged with deciding whether to transfer him to administrative segregation." Hewitt, 459 U.S. at 476 (emphasis added). In this respect, Hewitt differs from Wolff, and administrative segregation hearings differ from disciplinary hearings. Denial of the opportunity to call witnesses is, therefore, not cognizable as a constitutional claim.

Similarly, Hewitt does not mention whether prison officials must provide a written statement of their reasoning and decision after an administrative segregation hearing. Even assuming that such a statement is required, the record reveals and the district court found that Pinkerton's hearing officer "prepared an 'administrative segregation recommendation' following the initial hearing," and that document adequately explains the officer's reasoning and decision. Pinkerton, No. 88-465 at 30.

IV

For the foregoing reasons, we affirm the district court's determination that Pinkerton has failed to present a triable issue of fact sufficient to survive summary judgment. Because we conclude that the prison officials satisfied the requirements of due process in their administration of "pre-deprivation" procedures, we need not address the district court's reasoning or conclusions with respect to the "post-deprivation" procedures.

AFFIRMED.

 *

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. s1ed.R.App.P. 34(a), Ninth Circuit R. 34-4

 **

The Honorable Lloyd D. George, United States District Judge for the District of Nevada, sitting by designation

 ***

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit R. 36-3

 1

While in segregation, Pinkerton received a segregation hearing every month