USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 95-1479
BRENDAN MCGUINNESS,
Plaintiff, Appellee,
v.
LARRY E. DUBOIS, ET AL.,
Defendants, Appellants.
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No. 95-1480
BRENDAN M. MCGUINNESS,
Plaintiff, Appellant,
v.
LARRY E. DUBOIS, ET AL.,
Defendants, Appellees.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
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Before
Selya, Stahl and Lynch,
Circuit Judges.
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Brendan M. McGuinness on brief pro se.
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Nancy Ankers White, Special Assistant Attorney General, and
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Philip W. Silva, Department of Correction, on brief for appellees,
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Larry E. Dubois, et al.
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February 12, 1996
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Per Curiam. The defendants, John Treddin, a
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disciplinary hearing officer at Massachusetts Correctional
Institute - Cedar Junction (MCI-CJ) and Ronald Duval, the
superintendent at MCI-CJ, appeal the grant of a declaratory
judgment in favor of inmate Brendan McGuinness. McGuinness
cross-appeals the grant of summary judgment on the ground of
qualified immunity in favor of the defendants on his claims
for damages. We reverse the declaratory judgment in favor of
McGuinness and affirm the summary judgment on the damages
claims.
I.
In November 1991, McGuinness got into an altercation
with a prison guard, Sergeant John Andrade, and was charged
with various prison disciplinary code violations, including
being out of place, disrupting the security or orderly
running of the institution, fighting and use of abusive
language. A few days later, McGuinness was notified of a
disciplinary hearing and moved to MCI-CJ's West Wing
Segregation Unit ("West Wing").1 He was placed in the upper
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1. The West Wing is comprised of two sections. The two
upper tiers are denominated as the "Awaiting Action Unit"
("AAU"). The AAU is a secure holding area for an inmate
while he is awaiting a disciplinary hearing. The lower tiers
of the West Wing are the Departmental Segregation Unit
("DSU"). According to prison regulations, an inmate may be
placed in the DSU only after a finding by the Commissioner of
Correction (or his designee) based on substantial evidence
that, if confined in the general population, the inmate poses
a substantial threat (i) to the safety of others, (ii) of
damaging or destroying property, or (iii) to the operation of
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tier of the West Wing, i.e., in the AAU. McGuinness'
disciplinary hearing was held in the West Wing on January 9,
1992. Both McGuinness and Andrade testified and Andrade
submitted his written report. McGuinness admitted that he
argued with, used foul language toward, and struck Andrade,
but claimed that he was provoked when Andrade pushed him.
Andrade acknowledged that he pushed McGuinness away when
McGuinness got right up in his face. McGuinness' request to
call three inmate witnesses from the general population, (who
he alleged were eyewitnesses), was denied "for security
reasons." However, Officer Treddin considered their written
affidavits. Ultimately, Treddin deemed the three affidavits
"non-credible" because in Treddin's opinion all three inmates
saw the confrontation only in part. Treddin found McGuinness
guilty based on McGuinness' own admissions and Andrade's
written report and testimony. Treddin imposed a sanction of
30 days in isolation and recommended that McGuinness lose 100
days of good-time credit.
McGuinness appealed the matter to defendant
Superintendent Duval, claiming, inter alia, that Treddin
wrongfully portrayed McGuinness as the aggressor and
wrongfully denied his request for witnesses due to
McGuinness' placement in the West Wing. He argued that his
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the correctional facility. Mass. Reg. Code tit. 103,
421.09 (1990).
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witnesses "would have been able to explain what they saw much
better if given a chance to give an oral testimony." Duval
denied McGuinness' appeal. Eventually, the incident was
referred to the DSU board and, pursuant to a finding, based
on this November 1991 incident and a subsequent incident or
incidents in January 1992, that McGuinness presented a
substantial threat to the safety of others, McGuinness
received a two year sentence of confinement to the DSU (in
addition to the sanction of 30 days in isolation and loss of
100 days of good-time credit).
II.
In November 1993, McGuinness filed an action in the
district court, pursuant to 42 U.S.C. 1983, naming Officer
Treddin and Superintendent Duval as defendants (as well as
other prison officials not pertinent here). McGuinness'
complaint raised several claims, most of which are not
involved in these cross-appeals. The counts which remain
relevant are these: Count 2 alleged that Treddin violated
McGuinness' right to due process. In particular, McGuinness
alleged that he had been unlawfully transferred to the West
Wing prior to any guilty finding and that Treddin used this
alleged illegal placement in the West Wing as the sole reason
for denying his request for witnesses. Count 4 alleged that
Superintendent Duval violated McGuinness' right to due
process by denying his appeal without any explanation.
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McGuinness asked for compensatory and punitive damages on
these claims. In Count 6 McGuinness requested a declaratory
judgment that his placement in the West Wing was illegal and
the denial of witnesses due to his placement there violated
due process.
The parties cross-moved for summary judgment. In a
memorandum and order, dated March 15, 1995, the district
court concluded that genuine issues of material fact existed
as to whether (a) McGuinness' placement in the AAU
constituted an unlawful placement in a segregation unit prior
to a guilty finding, the imposition of sanctions, and the
appropriate finding of "substantial threat" by the
Commissioner; and (b) Treddin's refusal to allow McGuinness
to call witnesses violated "the rule of Kenney [v.
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Commissioner of Correction, 393 Mass. 28 (1984)]." The
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court, therefore, declined to enter a declaratory judgment,
as requested in Count 6, in any party's favor. The court did
conclude, however, that the state of the law on this issue
was confused and, thus, Treddin and Duval were entitled to
summary judgment on the ground of qualified immunity on
McGuinness' damages claims -- Count 2 (Treddin) and Count 4
(Duval).2
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2. The district court construed Count 4 as a claim against
Duval, not on the basis of respondeat superior (which would
not lie, pursuant to 1983, in any event), but as a claim
that Duval was personally liable for failing to take remedial
action after learning of the alleged due process violation
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Count 6 then went to a one-day bench trial at which
Officer Treddin testified. The court's findings of fact and
rulings of law can be found at McGuinness v. Dubois, 887 F.
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Supp. 20, 21-23 (D. Mass. 1995). In brief, the court ruled
that the AAU is not a DSU. Thus, the court rejected
McGuinness' initial premise, i.e., that his placement in the
AAU constituted an unlawful placement in the DSU prior to the
required findings by the Commissioner. Nonetheless, the
court held that McGuinness was "not given the protections
afforded him by Department of Correction regulations" as
interpreted by Kenney and subsequent caselaw. The court
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declared that Treddin's determination must be set aside and
that the rulings that followed the disciplinary hearing are
void and of no effect and may play no part whatsoever in any
further classification, penal, disciplinary, or release
decisions with respect to McGuinness.
As noted at the outset, Treddin and Duval appeal this
declaratory judgment and McGuinness cross-appeals the March
15 summary judgment denying his claims for damages.
III.
In Wolff v. McDonnell, 418 U.S. 539 (1974), the Court
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held that a state-created right to good-time credit for
satisfactory behavior, forfeitable only for serious
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through McGuinness' appeal following the disciplinary
hearing. Thus construed, the district court found Duval,
nonetheless, entitled to qualified immunity.
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misbehavior, is a sufficient liberty interest within the
Fourteenth Amendment to entitle the inmate to "those minimum
procedures appropriate under the circumstances and required
by the Due Process Clause to insure that the state-created
right is not arbitrarily abrogated." Id. at 557.3 In
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3. Recently, the Court, in Sandin v. Conner, 115 S. Ct. 2293
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(1995), refocused the due process inquiry away from the
parsing of the mandatory/discretionary language in prison
regulations and back to the nature of the deprivation, i.e.,
whether the restraint "imposes atypical and significant
hardship on the inmate in relation to the ordinary incidents
of prison life" or "will inevitably affect the duration of
his sentence." Id. at 2299-302. In Sandin, the Court
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concluded that solitary confinement did not present the type
of atypical, significant deprivation in which a state might
conceivably create a liberty interest. Id. at 2301. Nor did
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it inevitably affect the duration of Conner's sentence. Id.
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at 2302.
Sandin, however, did not retreat from Wolff's holding
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that, if a state statutory provision created a liberty
interest in a shortened prison sentence which results from
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good-time credits, revocable only if the inmate is guilty of
serious misconduct, that inmate is entitled to the procedural
protections outlined in Wolff. Id. at 2297; see also Gotcher
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v. Wood, 66 F.3d 1097, 1110 (9th Cir. 1995) (opining that
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Wolff's due process principles remain applicable in the
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context of revocation of statutory good-time credits after
Sandin).
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Massachusetts has a statutory provision, Mass. Gen. L.
ch. 127, 129, awarding a good conduct deduction from an
inmate's maximum imprisonment term, forfeitable for
violations of prison rules. And, in the instant case, as a
result of the guilty finding on the disciplinary charge,
McGuinness forfeited 100 days of good-time. McGuinness,
therefore, was entitled to the procedural protections of the
Due Process Clause prior to the revocation of his statutory
good-time credits. (Although Mass. Gen. L. ch. 127, 129
was repealed on July 1, 1994, the repealing provision also
provided that the law in effect at the time an offense is
committed governs sentencing for that offense, i.e., the
repealed section still applies to McGuinness, whose offense
was committed prior to July 1, 1994.)
As explained in greater detail, infra, the issue in
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these appeals is what process was due McGuinness at his
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Wolff, the Court determined that, at a minimum, due process
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entitled an inmate, facing a disciplinary hearing, to (1)
advance (no less than 24 hours) written notice of the claimed
violation, (2) a qualified right 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, and (3) a written statement of
the factfinders as to the evidence relied upon and the
reasons for the disciplinary action taken. Id. at 563-67.
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These cross-appeals concern the second of these due
process requirements -- the parameters of the inmate's
qualified right to call witnesses. The district court found,
and the defendants do not dispute, that MCI-CJ has an
institutional policy of denying an inmate's request to call
inmate witnesses from the general population at a
disciplinary hearing held in the West Wing.4 This policy is
based on the heightened security requirements in the West
Wing, which houses inmates with a demonstrated proclivity for
violence and disruption, and on the resulting effect that
bringing witnesses into the West Wing has on the allocation
of corrections officers there and in the rest of the prison.
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disciplinary hearing under federal constitutional law.
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4. The court also found, however, that there were occasions,
although rare, when a disciplinary hearing involving an
inmate housed in the West Wing had been moved outside that
wing.
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Any inmate entering the West Wing from the general population
has to be strip-searched and accompanied by two correction
officers; restraints are required to move inmates within the
West Wing; and restraints may, or may not, be used in the
presence of hearing officers at disciplinary hearings.
The court held that the Kenney decision, i.e., "the rule
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of Kenney," and subsequent caselaw prohibits the denial of
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witnesses' testimony simply based on an inmate's location in
the West Wing and that the caselaw and the prison regulations
require an individualized assessment that calling a
particular witness would be unduly hazardous to institutional
safety or correctional goals. The court found that no
individualized assessment occurred in McGuinness' case and
thus McGuinness was not given the protections afforded him by
the regulations as interpreted by Kenney and its progeny.
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To a large extent, however, Kenney was simply an
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interpretation of the requirements of state law. In Kenney,
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inmate Kenney had been transferred to the DSU prior to his
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disciplinary hearing on assault charges and confined there
under the same conditions as those inmates transferred to the
DSU pursuant to a finding by the Commissioner that their
behavior posed a substantial threat to the residents,
property, or operations of the institution. Kenney v.
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Commissioner of Correction, 393 Mass. at 29. At his
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disciplinary hearing, Kenney's request that the two alleged
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victims (both inmates in the general population) be allowed
to appear as witnesses was denied. Kenney subsequently
brought an action in state court and on appeal the SJC found
that the prison officials had violated their own regulations,
which have the force of state law, by placing Kenney in a DSU
cell for committing a disciplinary offense before Kenney had
been found guilty, before sanctions had been imposed, and
before the Commissioner had found that Kenney posed a
substantial threat to the institution. Id. at 33-34. As
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Kenney was illegally incarcerated in the DSU, the court
rejected the prison officials' attempt to justify their
denial of his request to call witnesses on basis of his
location in the DSU. Id. at 35.
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To the extent that "the rule of Kenney" is solely a rule
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of state law, it has no application in this 1983 action
claiming a deprivation of McGuinness' rights secured by the
federal Constitution and laws.5 "Federal constitutional
standards rather than state statutes define the requirements
of procedural due process." Russell v. Selsky, 35 F.3d 55,
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60 (2d Cir. 1994) (internal quotation marks and citation
omitted). "The failure of the [disciplinary] board to comply
with its own regulation would constitute a denial of due
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5. To the extent that the prison officials arbitrarily
violated their own state law regulations, it would appear
that McGuinness could have pursued state judicial review.
See Sandin v. Conner, 115 S. Ct. at 2302 n.11.
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process if the regulation were mandated by the Constitution
or federal law." Domegan v. Fair, 603 F. Supp. 360, 364 (D.
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Mass. 1985); see also Olim v. Wakinekona, 461 U.S. 238, 250-
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51 (1983) ("The State may choose to require procedures for
reasons other than protection against deprivation of
substantive rights, of course, but in making that choice the
State does not create an independent substantive right.")
(Footnote omitted). "The rule of Kenney," therefore, is
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relevant to McGuinness' 1983 action only to the extent that
Kenney accurately recites the parameters of federal due
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process.
The SJC did consider whether Kenney's due process rights
were violated by the denial of his request to call certain
witnesses. Kenney v. Commissioner of Correction, 393 Mass.
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at 34. But that determination was based on its conclusion
that due process requires some support in the administrative
record to justify the denial and none was found in Kenney's
case. Id. at 35, citing Real v. Superintendent, Mass.
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Correctional Inst., Walpole, 390 Mass. 399, 407 (1983).
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However, the Supreme Court has since held that due process
does not require that support for the denial of witnesses
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exist as part of the administrative record; rather prison
officials may satisfy due process by presenting testimony in
court if the deprivation of a liberty interest is challenged
because of that claimed defect in the hearing. Ponte v.
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Real, 471 U.S. 491, 496-97 (1985), vacating and remanding,
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Real v. Superintendent, Mass. Correctional Inst., Walpole,
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supra.
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Insofar as Kenney speaks to the commands of due process,
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therefore, we disagree with the district court's conclusion
that, "properly interpreted," Kenney stands for the
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proposition that "witnesses cannot be denied in a
disciplinary hearing simply based upon the location of the
individual within the prison." McGuinness v. Dubois, 887 F.
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Supp. at 22. Further, of import is the Kenney court's
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treatment of Devaney v. Hall, 509 F. Supp. 497 (D. Mass.
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1981). In Devaney, the district court held that the "across-
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the-board" policy of MCI-CJ [then called MCI-Walpole] of
permitting only written statements of witnesses in
disciplinary hearings held in the DSU [then called Block 10]
did not violate due process as it was not arbitrary nor
beyond the discretion of prison authorities to adopt. Id. at
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500-01. In Kenney, the SJC distinguished Devaney on the
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ground that, unlike Devaney, Kenney was not lawfully held in
the DSU and reliance on his location as a justification for
the denial of witnesses was therefore unreasonable. Kenney
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v. Commissioner of Correction, 393 Mass. at 35 n.11. If,
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"properly interpreted," Kenney stands for the proposition
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that witnesses cannot be denied in a disciplinary hearing
simply based upon the location of the individual within the
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prison, whether lawfully confined in that area or not, then
the SJC would not have distinguished Devaney; rather, the SJC
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would have expressed disagreement with Devaney's holding.
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But the SJC did not do that.
Although we disagree with the district court's
interpretation of "the rule of Kenney," insofar as the
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district court interprets that rule as speaking to the
requirements of federal due process,6 we note that to
prohibit live defense witness testimony at a disciplinary
hearing, numerous courts have interpreted the due process
teachings of the Wolff opinion to require an individualized
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decision, based on the facts of each case. See, e.g.,
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Mitchell v. Dupnik, 67 F.3d 216, 223 (9th Cir. 1995); Forbes
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v. Trigg, 976 F.2d 308, 317 (7th Cir. 1992), cert. denied,
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113 S. Ct. 1362 (1993); Ramer v. Kerby, 936 F.2d 1102, 1104
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(10th Cir. 1991); King v. Wells, 760 F.2d 89, 93 (6th Cir.
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1985); Dalton v. Hutto, 713 F.2d 75, 78 (4th Cir. 1983);
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6. Similarly, we conclude that neither Guyton v. Dubois, No.
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92-1819 (Mass. Super. Ct. July 20, 1992), nor Abrazinski v.
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Dubois, 876 F. Supp. 313 (D. Mass. 1995), further support any
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due process determination. Guyton was found to have been
unlawfully held in the DSU and thus Guyton is simply a
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straightforward application of Kenney. The Abrazinski
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court's discussion of Kenney was dicta and, in any event, for
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reasons discussed, supra, we disagree with that court's
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reading of Kenney as holding that "isolation in a segregation
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unit alone, even if legal, is not sufficient to support a
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denial of witnesses." Abrazinski v. Dubois, 876 F. Supp. at
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323 (emphasis added).
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Bartholomew v. Watson, 665 F.2d 915, 918 (9th Cir. 1982)7;
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but see Powell v. Coughlin, 953 F.2d 744, 749 (2d Cir. 1991).
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The Supreme Court, itself, has addressed the validity of an
"across-the-board" policy denying witness requests only
indirectly. While, in Ponte, it disagreed with the
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Massachusetts prison officials' contention that "'across-the-
board' policies denying witness requests are invariably
proper," Ponte v. Real, 471 U.S. at 496, as the Second
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Circuit has said, the Court "has not ruled that such policies
are invariably improper." Powell v. Coughlin, 953 F.2d at
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749 (holding that an across-the-board policy barring the
testimony of mental health staff in an inmate's presence at
prison disciplinary hearings does not violate due process as
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7. We note that while the Bartholomew opinion stated that a
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blanket proscription against calling certain types of
witnesses violated the "suggestion" in Wolff that the
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decision to deny live witness testimony should be made on a
case-by-case analysis of the potential hazards which may flow
from the calling of a particular person, Bartholomew v.
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Watson, 665 F.2d at 918, later cases, in citing Bartholomew,
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have, without comment, transformed this characterization of
Wolff's "suggestion" into a requirement. See, e.g., Mitchell
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v. Dupnik, 67 F.3d at 223.
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We also note that, apart from Bartholomew, all of the
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above-mentioned cases that opine that an across-the-board
proscription against live witness testimony violates due
process appear distinguishable from the present case in that
nothing in those cases suggests that the absolute
prohibitions on the calling of any witnesses or certain
categories of witnesses were even purported to be based on
institutional security. And, in each case cited, including
Bartholomew, the across-the-board prohibition extended
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prison-wide in an undifferentiated fashion to all
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disciplinary hearings.
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the policy is reasonably based on legitimate penological
interests and is not an exaggerated response).
Although some particular case in the future may present
compelling evidence that MCI-CJ's policy of denying live
testimony from inmate witnesses at a disciplinary hearing
held in the West Wing violates due process, we leave
consideration of such a case where it appears presently to
reside -- in the future. We find that, on the facts of this
case, the district court erred in concluding that the
application of this policy to McGuinness violated his right
to due process. McGuinness contends that he was provoked
into striking Andrade and that should lessen any penalty
imposed. McGuinness concedes that, contrary to the prison
rules, he did not inform Officer Treddin in advance about the
content of the expected testimony of Justin Holmes and Jack
Shea, other than characterizing them as eyewitnesses.
Nonetheless, Treddin obtained their affidavits, along with
the affidavit of a third inmate, Michael Dowd, whose
testimony McGuinness had not previously requested. Treddin
concluded that none of the three saw the whole confrontation
- a factual determination certainly within his discretion to
make and not within a court's competency to overturn. See
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Superintendent, Mass. Correctional Inst., Walpole, v. Hill,
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472 U.S. 445, 454-55 (1985) (holding that procedural due
process is satisfied if the decision to revoke good-time
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credits is supported by "some evidence" in the record, which
"does [not] imply that a disciplinary's board's factual
findings ... are subject to second-guessing upon review").
The guilty finding was based on the undisputed facts
that McGuinness was out of his cell, acting disruptive, and
used abusive language and assaulted a staff member.
McGuinness was permitted to present his defense, supported by
witness affidavits, that he was provoked. He has never
suggested what their live testimony would have added, other
than that they would have been able to "explain what they saw
much better."8 The live testimony of the requested
witnesses was denied on the basis of a policy -- the bona
fides of which have not been challenged here -- rooted in
legitimate institutional security concerns. In these
circumstances, the defendants have carried their burden of
proving that the denial of live testimony was neither
arbitrary nor capricious, see Smith v. Mass. Dept. of
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Correction, 936 F.2d 1390, 1399 (1st Cir. 1991), and that
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Treddin did not clearly abuse his considerable discretion,
see Hurney v. Carver, 602 F.2d 993, 995 (1st Cir. 1979), in
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denying McGuinness' request for the live testimony of Holmes,
Shea, and Dowd, even if the denial was based on a general
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8. And, it is not certain that even this suggestion was made
at the disciplinary hearing so that Treddin could consider
it. Rather, on the record before us, this suggestion first
appears in McGuinness' written appeal of the disciplinary
finding to the prison superintendent.
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policy of denying live witness testimony in the West Wing.
"[S]o long as the reasons are logically related to preventing
undue hazards to 'institutional safety or correctional
goals,' the explanation should meet the due process
requirements as outlined in Wolff." Ponte v. Real, 471 U.S.
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at 497.
IV.
The declaratory judgment of May 1, 1995, in favor of
plaintiff McGuinness on Count 6 is reversed. As we have
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concluded that McGuinness' constitutional rights were not
violated, the March 15, 1995 order granting summary judgment
in favor of defendants Treddin and Duval on Counts 2 and 4 is
affirmed. So ordered. No costs.
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