This civil rights case, brought by a federal prisoner acting pro se, presents for us a first impression question of the due process rights of a prisoner to the production of documentary evidence at a prison disciplinary hearing. Plaintiff Kenneth McClure Young, II, who lost substantial good time credit as the result of two prison disciplinary hearings, brought suit in the district court for the Middle District of Pennsylvania claiming that the disciplinary hearing officer, defendant Warren Kann, violated his due process rights by refusing to produce a letter in which Young allegedly threatened his cellmate, even though the letter formed part of the basis for the disciplinary charges. Although Young contended that the letter contained no such threat, the district court dismissed the complaint, sua sponte, as legally frivolous under 28 U.S.C. Sec. 1915(d).

We hold that Young's due process claims are arguably meritorious, and that the district court erred in dismissing the complaint. Accordingly, the order of the district court will be vacated and the case remanded for service of process on the defendants and for further proceedings consistent with this opinion.

While Young was incarcerated at the United States Penitentiary in Lewisburg, Pennsylvania, he was charged with making threats of bodily harm to another inmate and refusing a cell assignment.1 The prison incident report stated that Young had physically and verbally threatened his cellmate when a guard attempted to return him to their cell. Prior to this incident, the report claimed, Young had given to the guard a letter that also contained threats against this cellmate. At the hearing on this charge, Young denied having made any threatening statements, either verbal or written. He further claimed that he had informed Kann that the letter had been confiscated by prison authorities and that it should be produced in order to demonstrate that it contained no threatening remarks.

Because Kann did not have a copy of the letter, he excused Young from the room and called the reporting officer into the hearing room and questioned him concerning the letter's contents. After the reporting officer was excused, Young was called back and informed by Kann that the letter itself was not relevant and that the hearing would proceed. Young reasserted that the letter contained no threats and informed Kann that he was not prepared to proceed unless the letter was produced. Kann nonetheless elected to proceed.

When the hearing resumed, Young informed Kann that, in the days preceding the incident, his cellmate had assaulted him, threatened to rape him, and threatened his life.2 Although Young admitted to banging a milk crate against his cell door, he denied that he had physically or verbally threatened his cellmate during the incident. Young was found guilty and received a sanction of 30 days in disciplinary segregation and forfeiture of 40 days statutory good time.3

Following the hearing, Kann filed a Discipline Hearing Officer Report. Although the report stated that his decision was supported by Young's letter, Kann apparently relied upon the guard's oral summary of its contents, rather than his own review of the letter itself.4 In any event, the copy of the letter provided in Young's appendix contains no threatening remarks of any kind.5

Young's complaint in the district court alleges that, during the prison disciplinary hearing referred to above and at a second hearing, Kann and an unnamed stenographer (Jane Doe) violated his rights under the fifth and eighth amendments. Prior to service of process upon the defendants, however, the district court dismissed the complaint as legally frivolous and certified that any appeal from the order would be frivolous and not taken in good faith pursuant to 28 U.S.C. Sec. 1915(d).6 This appeal followed. The United States Attorney has entered an appearance and filed a brief.

Because this case involves only issues of law, our review of the district court's dismissal of Young's complaint as legally frivolous is plenary. Roman v. Jeffes, 904 F.2d 192, 194 (3d Cir.1990) (citing Wilson v. Rackmill, 878 F.2d 772, 774 (3d Cir.1989)). Dismissal under 28 U.S.C. Sec. 1915(d) is proper when the complaint is based upon an "indisputably meritless legal theory or on completely baseless factual contentions." Wilson, 878 F.2d at 774; see also, Neitzke v. Williams, 490 U.S. 319, 327-28, 109 S. Ct. 1827, 1832-33, 104 L. Ed. 2d 338 (1989). This standard is more liberal than that governing cases in which the defendants have been served with and answered the complaint. There, the question is whether Young has in fact stated a due process (or other) claim.

The overarching authority is Wolff v. McDonnell, 418 U.S. 539, 555-56, 94 S. Ct. 2963, 2974-75, 41 L. Ed. 2d 935 (1974), in which the Supreme Court held that, while prisoners retain certain basic constitutional rights, including the protections of the due process clause, prison disciplinary hearings are not part of criminal prosecution, and inmates' rights at such hearings may be curtailed by the demands and realities of the prison environment. Wolff, also holds, however, that a prisoner has a constitutionally protected liberty interest in good time credit, and it enumerates what due process requires when a prison disciplinary hearing may result in loss of such credit. Id. at 556-57, 94 S.Ct. at 2974-75.

First, a prisoner must receive written notice of claimed violations at least 24 hours in advance of the hearing and must be provided with a written summary of evidence relied upon by the fact-finder in reaching its disciplinary decision. Id. at 563-64, 94 S.Ct. at 2978-79. Second, "an inmate facing disciplinary charges must have an opportunity to marshal the facts and prepare a defense." Giano v. Sullivan, 709 F. Supp. 1209, 1214 (S.D.N.Y.1989) (citing Wolff, 418 U.S. at 564, 94 S.Ct. at 2978, and Patterson v. Coughlin, 761 F.2d 886, 890 (2d Cir.1985), cert. denied, 474 U.S. 1100, 106 S. Ct. 879, 88 L. Ed. 2d 916 (1986)). "[T]he 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. ..." Wolff, 418 U.S. at 566, 94 S.Ct. at 2979.7

Under the caselaw, a prisoner's right to produce evidence in his or her defense is limited only by the demands of prisoner safety and institutional order, as determined by the sound discretion of the prison authorities. We note that the discretion to be accorded prison authorities in this area is quite broad. As stated by the Court in Wolff:

We should not be too ready to exercise oversight and put aside the judgment of prison administrators.... [W]e must balance the inmate's interest in avoiding loss of good time against the needs of the prison, and some amount of flexibility and accommodation is required. Prison officials must have the necessary discretion to keep the hearing within reasonable limits and to refuse to call witnesses that may create a risk of reprisal or undermine authority, as well as to limit access to other inmates to collect statements or to compile other documentary evidence.

418 U.S. at 566, 94 S. Ct. at 2979-80; see also Bell v. Wolfish, 441 U.S. 520, 527, 547, 99 S. Ct. 1861, 1868, 1878, 60 L. Ed. 2d 447 (1979). However, the discretion afforded prison officials is not without limits. As we remarked in Woods v. Marks, 742 F.2d 770 (3d Cir.1984), a case involving a prisoner's right to call witnesses at a disciplinary hearing, "[t]he policy of deference to the judgment of prison officials does not require ... that a reviewing court defer to the arbitrary denial of an inmate's limited right[s]." Id. at 773.

Based upon the factual allegations in Young's complaint, there do not appear to be any security reasons for denying Young's request to produce his letter. Nor has Kann proffered any such reasons. The security issues that concerned the Wolff Court were the risk of death or injury to inmate witnesses and informants identified at hearings or in produced documents,8 as well as the potential for breakdown in authority, order and discipline inside the institution.9 418 U.S. at 567-69, 94 S. Ct. at 2980-81. None of these concerns appear to be implicated in the instant case because no witnesses were involved and no informants would be revealed by the production of the letter that Young admits having written.

This court heretofore has not been called upon to apply the requirements of Wolff to determine the extent of a prisoner's right to produce and view documentary evidence at a disciplinary hearing. We are aided in our analysis by three district court decisions. In Giano v. Sullivan, 709 F. Supp. 1209, 1213 (S.D.N.Y.1989), a prison employee assigned to assist a prisoner failed to produce certain investigative reports requested by the prisoner. The hearing officer ignored the prisoner's requests for the production of these reports, saying that he did not have them with him, and continued with the hearing despite the prisoner's repeated protests that he was not prepared to proceed. Id. Not having the reports, the hearing officer relied instead upon the testimony of the investigating officer and a corrections officer. Id. at 1211. The court found that the reason proffered by the prison for withholding the reports from the inmate, the protection of witness identity, was not supported by the record. Id. at 1216. The court thus held that the prisoner was "unconstitutionally denied his right to marshal evidence and present a defense to the disciplinary charges against him." Id.10

Like the prisoner in Giano, Young claims that he twice attempted to convince Kann to delay or postpone the hearing so that his letter, which had been confiscated by the authorities, could be produced. Unlike the prisoner in Giano, however, Young was not allowed to be present during the testimony of the investigating officer, a fact which, if true, further deprived him of the ability to marshal a defense.

In Muhammad v. Butler, 655 F. Supp. 1470 (D.N.J.1987), a prison investigator was informed of an inmate's planned escape during a telephone call from the inmate's former lover. Id. at 1471. At a subsequent disciplinary hearing, the prisoner was not allowed to hear a tape recording or even to see a transcript of the call. Id. The court found that the security reasons proffered by the prison for denying the inmate's access to this evidence were "unpersuasive." Id. The Muhammad court held that the contention made by the hearing officer--that so long as the alleged contents of the telephone conversation were conveyed to the prisoner, an actual transcript or recording of the call need not be presented to him--did not pass constitutional muster, and that the prisoner's "right to present a defense was clearly abridged by his inability to review these statements." Id. at 1472.

Although the district court here concluded that "[since] defendant Kann had a summary of Young's letter in the Incident Report and a statement from the reporting officer ... [t]here was no need for the letter to be produced at the first hearing," we agree with the Muhammad court that this approach does not satisfy the requirements of due process.11 Furthermore, we disagree with the possible argument that, even if Young's due process rights were violated by Kann's refusal to order production of the letter, such a violation is without consequence since Young admits writing the letter, should have remembered its contents, and could thus effectively defend against the guard's testimony. Such an argument ignores Young's claims that he did not know the guard's specific testimony and that, without the document, he did all that he could to support his assertions: namely, deny the guard's claim that the letter contained threatening statements.

Finally, in McIntosh v. Carter, 578 F. Supp. 96 (W.D.Ky.1983), prison authorities were informed by another inmate of a note allegedly written by prisoner McIntosh asking the informer to help smuggle drugs into the prison. Id. at 97. After obtaining a handwriting sample from McIntosh's cell, a prison investigating officer concluded in his report that the drug smuggling note was written by McIntosh. Id. At McIntosh's disciplinary hearing, the committee apparently did not have the drug smuggling note, but instead relied solely on the investigator's report. Id. at 98. The prison authorities claimed that the note need not be produced at the hearing because only its contents and the handwriting comparison proving McIntosh's authorship were relevant to the charges against him, both of which were summarized in the investigator's report. Id. The court, however, held that the hearing officer had violated McIntosh's due process rights by refusing to allow him to see the note he allegedly had written. Id. at 99. Absent a valid security reason, the court maintained, "McIntosh should be entitled to view the evidence against him." Id.

Although the prisoner in McIntosh had a greater need to "view the evidence against him" due to the potential for fabrication of incriminating evidence by hostile fellow inmates, we find the holding in that case to be directly applicable to Young's situation. Like the hearing officer in McIntosh, Kann appears to have relied upon the investigator's portrayal of the letter, denying Young the opportunity to prepare a defense based upon its actual contents.

We find these cases persuasive and elect to follow them. Assuming that Young's factual allegations are true and that Kann cannot demonstrate a valid security reason on remand, we believe that Kann's refusal to order production of Young's letter at the disciplinary hearing violated Young's due process rights. By denying Young the opportunity to refute the charges against him through the presentation of his own letter, confiscated by the authorities and then used to discipline him, Kann violated the due process rights accorded Young under Wolff to "present documentary evidence" and "marshal the facts in his defense." 418 U.S. at 566, 564, 94 S. Ct. at 2979, 2978. The district court's contrary conclusion was erroneous.

Further, we think that Kann's alleged sole reliance upon the oral summary of the contents of the letter provided, outside of Young's presence, by the guard at the hearing may itself be a due process violation.12 We have warned against hearing officers relying exclusively upon a prison employee's oral summary of information implicating the prisoner. In Helms v. Hewitt, 655 F.2d 487 (3d Cir.1981), rev'd on other grounds, 459 U.S. 460, 103 S. Ct. 864, 74 L. Ed. 2d 675 (1983), on remand, 712 F.2d 48 (3d Cir.1983), the hearing officer relied solely upon an investigating officer's summary of what an unidentified informer had told him concerning the charges brought against the inmate. We held that:

A determination of guilt on such a record, with no primary evidence of guilt in the form of witness statements, oral or written, or any form of corroborative evidence, amounts to a determination on the blind acceptance of the prison officer's statement. Such a practice is unacceptable; it does not fulfill Wolff's perception of "mutual accommodation between institutional needs and objections" and constitutional requirements of due process.

Helms, 655 F.2d at 502. Although the danger in Helms related more to the risk of relying upon hearsay from an unidentified informer, we find our warning against dependence upon a prison official's account without "any form of corroborative evidence" to be instructive for our present purpose. See also Hensley v. Wilson, 850 F.2d 269, 276-77 (6th Cir.1988) (where only evidence to support disciplinary committee's decision was the statement of an unidentified informer, committee failed to satisfy due process by merely accepting investigatory officer's version of informant's statement and his conclusion that informer was reliable and more credible than prisoner).

C. Does Other Evidence in the Record Support the 28 U.S.C. Sec. 1915 Dismissal?

Even if Young's due process rights were violated at the hearing, the other evidence of threats made to his cellmate during the incident may support the district court's dismissal of the complaint as legally frivolous. We note in this regard that the district court's scope of review of the disciplinary hearing officer's decision was limited to the narrow "some evidence" standard. See Superintendent v. Hill, 472 U.S. 445, 454, 105 S. Ct. 2768, 2773, 86 L. Ed. 2d 356 (1985) (disciplinary board decision in state correctional institution must be supported by "some evidence").

Young admitted to banging the cell door with a milk crate but denied threatening to hit the guard or his cellmate with the crate or in any other way threatening his cellmate during the incident. Young essentially did admit, however, that he refused to accept a program assignment, by attempting to prevent the guard from allowing his cellmate to reenter the cell. The district court's dismissal of Young's complaint was therefore justified as to this charge. However, with respect to the charge of threatening his cellmate, the conflicting accounts of Young's behavior do not justify the district court's dismissal under 28 U.S.C. Sec. 1915(d), particularly in light of Kann's refusal to produce the allegedly threatening letter.

In Chavis v. Rowe, 643 F.2d 1281 (7th Cir.), cert. denied, 454 U.S. 907, 102 S. Ct. 415, 70 L. Ed. 2d 225 (1981), the court held that a prisoner was denied the minimum due process requirements mandated by Wolff where the prison disciplinary committee denied him access to an investigatory report containing exculpatory witness statements. Id. at 1286-87. Even though the disciplinary committee considered this report when reaching its conclusions, the court found that the prisoner was "deprived of his ability to make his own use of this exculpatory evidence before it was given to the fact-finders." Id. at 1286. "If [the prisoner] had been given the material, and argued it to the Committee, it may have been forced to consider the material more seriously." Id. We agree with this approach.13

Not only does Young claim that he was improperly denied access to the letter in order to demonstrate that it did not contain threatening remarks, but he also asserts that his ability to prepare a defense was abridged by Kann's decision that prevented him from hearing or responding to the guard's testimony regarding the content of the letter. If his allegations are true, Young was denied the opportunity to hear whatever else the guard may have testified to concerning his alleged physical threats toward his cellmate. Had Young been able to boost his credibility by impeaching the guard's testimony concerning the letter's content and responding intelligently to any testimony concerning the confrontation at the cell door, Kann may have "consider[ed] ... more seriously," Chavis, 643 F.2d at 1286, Young's contention that the banging of the milk crate against the door was neither intended, nor should have been perceived, as a threat of bodily harm toward his cellmate. As the court noted in Daigle v. Hall, 387 F. Supp. 652, 660 (D.Mass.1975), "if the testimony against the inmate is not to be presented directly by witnesses, it nevertheless must be revealed to the inmate with sufficient detail to permit the inmate to rebut it intelligently." Thus, we think that the denial of Young's due process rights was potentially outcome determinative, at least regarding the degree of severity of the sanctions imposed.14

Based upon the foregoing, we conclude that Young's due process claims are not based upon an "indisputably meritless legal theory or on completely baseless factual contentions." Wilson, 878 F.2d at 774. Accordingly, we hold that the district court erred in dismissing as legally frivolous the portions of Young's complaint relating to the non-production of the letter.

While perhaps not rising to the level of constitutional deprivations under Wolff, Kann also may have violated an opaque regulatory mandate, further emphasizing the unfairness of the process accorded Young at his first hearing. If Young's allegations are true, Kann violated the procedures prescribed by 28 C.F.R. Sec. 541.17(d) (1990), which provides that "[a]n inmate has the right to be present throughout the DHO [Disciplinary Hearing Officer] hearing except during a period of deliberation or when institutional security would be jeopardized. The DHO must document in the record the reason(s) for excluding an inmate from the hearing." Kann proffered no security reasons for refusing to allow Young to be present while the guard was being questioned, nor does it appear that any such reasons exist.

Although he does not have an absolute right to confront and cross-examine witnesses at a prison disciplinary hearing, see Wolff, 418 U.S. at 567-69, 94 S. Ct. at 2980-81; Baxter v. Palmigiano, 425 U.S. 308, 321-22, 96 S. Ct. 1551, 1559-60, 47 L. Ed. 2d 810 (1976), Young could argue that 28 C.F.R. Sec. 541.17(d) at least establishes a right to be present during the testimony of an adverse witness. In Bills v. Henderson, 631 F.2d 1287, 1296-99 (6th Cir.1980), the court held that the extensive procedural protections contained in state prison regulations, including the right of a prisoner to cross-examine witnesses through a "resident advisor" and to "remain in the hearing room until all witnesses and evidence have been heard," cannot serve as the basis for a civil rights claim in and of themselves where they are beyond the scope of those procedural requirements prescribed by Wolff. However, because the procedures codified at 28 C.F.R. Secs. 541.10-541.20 largely track the due process requirements established in Wolff, Young may have a persuasive argument that 28 C.F.R. Sec. 541.17(d) does establish a due process right cognizable for purposes of a Bivens action, see supra n. 7. Regardless of the constitutionality of the right to be present during the testimony of an adverse witness at a hearing, we agree with the court in McIntosh that "clearly the better practice would be to allow confrontation if it would not interfere with the functioning of the prison." 578 F. Supp. at 98.15III. THE SECOND DISCIPLINARY HEARING

At his second disciplinary hearing, Young was charged with disruptive conduct for intentionally clogging the toilet in his cell, causing it to overflow onto the cellblock range. After essentially admitting that he intentionally caused the toilet to overflow, Young was found guilty of disruptive behavior and received a sanction of 15 days in disciplinary segregation and forfeiture of 8 days of statutory good time.

Young claims that his due process rights were violated at this second hearing because he was forced to proceed without being presented with a copy of the investigator's report. Young had no right to receive a copy of the investigation report, however, because he waived his right to have a staff representative present. See 28 C.F.R. Sec. 541.14(b)(2); Mendoza v. Miller, 779 F.2d 1287, 1294 (7th Cir.1985); see also infra n. 16. Furthermore, Young submitted a written statement of his account of the incident in which he does not deny (indeed, he basically admits) engaging in the disruptive behavior for which he was charged, presenting justifications for his actions and explaining that he was in an "ebullient" state. At the hearing, Young did not deny the charges and would only state that he "did what [he] had to do." Thus, Young's due process claims stemming from his second disciplinary hearing "lack an arguable factual or legal basis." Wilson, 878 F.2d at 774. Accordingly, we hold that the district court did not err in dismissing this part of his complaint as legally frivolous.16

We will affirm the district court's dismissal as legally frivolous of the portion of Young's complaint regarding his conspiracy claims, his due process claims related to the charge of refusing to accept a program assignment brought against Young at his first disciplinary hearing, and his due process claims related to his second hearing. Concomitantly, we will affirm the dismissal as to Jane Doe defendant. We will vacate the order of the district court dismissing as legally frivolous pursuant to 28 U.S.C. Sec. 1915(d) the portions of Young's complaint related to Kann's refusal to produce the allegedly threatening letter at the first disciplinary hearing, and remand the case for service of process on the defendant and for further proceedings consistent with this opinion.