Notice: First Circuit Local Rule 36.2(b)6 States Unpublished Opinions May Be Cited Only in Related Cases.glen M. Sullivan, Plaintiff, Appellant, v. Peter Pepe, et al., Defendants, Appellees, 36 F.3d 1089 (1st Cir. 1994)

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.

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 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 

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 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 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 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 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. Sec. 430.24(8) and of attempting to commit or aiding another to commit stealing in violation of 103 C.M.R. Secs. 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 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 "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 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 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  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.

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. 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 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 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 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.

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.

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.

(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.