Huey McDuffie, an inmate at the Ellis Unit of the Texas Department of Corrections (TDC) in June 1976, brought this action under 42 U.S.C. Sec. 1983 and related statutes for a beating he alleges that he suffered at the hands of fellow inmates acting under the tacit authority of the TDC, and for subsequent disciplinary actions including punishment of solitary confinement. Based upon these events, he asserts that his Eighth Amendment right to be free from cruel and unusual punishment and his Fourteenth Amendment due process rights were violated by the Director of TDC and other TDC officials responsible for the Ellis Unit "building tender" system and for charging and disciplining him for his participation in the incident.1 The defendant officials filed a motion for summary judgment dismissal based on qualified immunity, which the district court rejected. We affirm the court's determination that the Eighth Amendment aspect of the case survives a qualified immunity claim, but reverse the court's finding that the relevant defendants are not immune from McDuffie's Fourteenth Amendment claim.

McDuffie alleges that on June 9, 1976, he was severely beaten by two fellow inmates of the Ellis Unit of TDC. He maintains that the individuals who beat him, Johnson and Skinner, were "building tenders"--inmates acting as auxiliary guards in a supervisory capacity over other inmates ostensibly to assist the civilian security forces in controlling the prison. After the altercation, McDuffie was immediately placed in administrative segregation on the orders of defendant L.A. Steele, the Major of Correctional Officers at the Ellis Unit. Three days later, on June 12, 1976, he was brought before the Ellis Unit Disciplinary Committee (the Committee), consisting of Steele, and M.C. Lightsey and Eli Rushing, Assistant Wardens at the Ellis Unit. The Committee found him guilty of offenses related to the incident and sentenced him to 15 days solitary confinement. McDuffie alleges that neither Johnson nor Skinner was disciplined for his part in the June 9 altercation.

In December 1976, McDuffie brought this action seeking compensatory and punitive damages for violations of his constitutional rights. The complaint named (i) W.J. Estelle, Director of TDC, R.M. Cousins, Ellis Unit Warden, and Steele (hereafter "building tender officials" or "building tender defendants") for Eighth Amendment violations associated with the building tender system; and (ii) Estelle, Steele, Lightsey, and Rushing (hereafter "Committee officials" or "Committee defendants") for Fourteenth Amendment violations arising out of the Committee's proceedings. In 1981 all of the defendant officials filed motions to dismiss and for summary judgment, which were denied on July 28, 1983. After further discovery, the same defendants brought similar motions based on qualified immunity, which were denied by court rulings entered in September 1989 and May 1990. The defendant officials bring this otherwise interlocutory appeal pursuant to Mitchell v. Forsyth, 472 U.S. 511, 525-28, 105 S. Ct. 2806, 2814-16, 86 L. Ed. 2d 411, 423-26 (1985) (denial of a claim of qualified immunity is appealable "final decision" under 28 U.S.C. Sec. 1291).

All of the officials argue that they are entitled to qualified immunity against McDuffie's constitutional claims for damages. McDuffie counters that the celebrated case of Ruiz v. Estelle, 503 F. Supp. 1265 (S.D.Tex.1980),2 which found that TDC was ridden with abuse and enjoined common practices in violation of prisoners' constitutional rights, forecloses the defendants' qualified immunity defense.

All of the defendant officials may assert good-faith qualified immunity from retrospective relief when sued in their individual capacity, as they are in this case. Procunier v. Navarette, 434 U.S. 555, 561, 98 S. Ct. 855, 859, 55 L. Ed. 2d 24, 30 (1978); McCord v. Maggio, 927 F.2d 844, 847 (5th Cir.1991). It is well established that "[t]his immunity is defeated if the official[s] took the complained-of action[s] 'with the malicious intention to cause a deprivation of rights,' or the official[s] violated clearly established statutory or constitutional rights 'of which a reasonable person would have known.' " McCord, 927 F.2d at 847 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 815, 818, 102 S. Ct. 2727, 2738, 2738, 73 L. Ed. 2d 396, 409, 410 (1982)). This case proceeds under the second factor--violation of clearly established law.

Under this standard, our inquiry necessarily entails consideration of the factual allegations that make up McDuffie's claim for relief. It turns, however, on the question "whether the legal norms allegedly violated by the defendant were clearly established at the time of the challenged actions or ... under the defendant's version of the facts ... whether the law clearly proscribed the actions the defendant claims he took." Mitchell, 472 U.S. at 528, 105 S.Ct. at 2816, 86 L. Ed. 2d at 426; see also Thompson v. City of Starkville, 901 F.2d 456, 459 (5th Cir.1990). This inquiry is a purely legal one. Therefore, we review the district court's summary judgment denial of the defendants' qualified immunity claims de novo. Id.

(i) Effect of Ruiz

McDuffie asserts that his constitutional rights were violated in two ways: (i) he suffered an injury as a direct result of the maintenance of the Ellis Unit "building tender" system in violation of his Eighth Amendment right to be free from cruel and unusual punishment; and (ii) he was subjected to disciplinary proceedings which deprived him of certain procedural rights and unfairly punished him for his involvement in the incident with the building tenders, in violation of the Fourteenth Amendment Due Process Clause.

McDuffie contends that Ruiz collaterally estops the defendant officials from relitigating the issue of whether the defendants' conduct violated clearly established statutory or constitutional rights of which a reasonable person should have known, the first prerequisite to finding a state official liable for Sec. 1983 violations. See Harlow, 457 U.S. at 818, 102 S.Ct. at 2738, 73 L. Ed. 2d at 410. Consequently, he argues, relitigation of the issues by way of the defendant officials' plea of qualified immunity should be foreclosed. We agree that Ruiz has preclusive effect on the building tender portion of this case. Because of the different character of Ruiz, however, we cannot give the same effect to its findings with respect to the disciplinary proceeding practices here at issue.3

In order to apply the federal law of collateral estoppel, a court must examine whether (i) the issue at stake is identical to the one involved in the prior litigation, (ii) the determination of the issue in the prior litigation was a critical, necessary part of the judgment in that earlier action, and (iii) special circumstances exist which would render preclusion inappropriate or unfair. Montana v. United States, 440 U.S. 147, 154, 99 S. Ct. 970, 974, 59 L. Ed. 2d 210, 217 (1979); Hicks v. Quaker Oats Co., 662 F.2d 1158, 1166 (5th Cir.1981). McDuffie's offensive use of collateral estoppel is authorized by the Supreme Court's decision in Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S. Ct. 645, 58 L. Ed. 2d 552 (1979). While complete identity of the parties in the two suits is not required, Allen v. McCurry, 449 U.S. 90, 94-95, 101 S. Ct. 411, 414-15, 66 L. Ed. 2d 308, 313 (1980), one "special circumstance" which would counsel against the application of offensive collateral estoppel would operate when the defendant did not have an incentive to litigate the issue vigorously in the prior proceeding. Id. 439 U.S. at 332, 99 S. Ct. at 652, 58 L.Ed.2d at 562.

There is direct precedent for our application of collateral estoppel from Bogard v. Cook, 586 F.2d 399 (5th Cir.1978), cert. denied, 444 U.S. 883, 100 S. Ct. 173, 62 L. Ed. 2d 113 (1979), a Sec. 1983 damages action where we held that Gates v. Collier, 501 F.2d 1291 (5th Cir.1974), aff'g 349 F. Supp. 881 (N.D.Miss.1972), in which this Court granted a group of prisoners injunctive and declaratory relief from prison practices quite similar to the activities enjoined in Ruiz, "precluded relitigation of the constitutionality of conditions and practices" at the Mississippi prison involved in those cases. Another analogous scenario can be found in Williams v. Bennett, 689 F.2d 1370 (11th Cir.1982), cert. denied, 464 U.S. 932, 104 S. Ct. 335, 78 L. Ed. 2d 305 (1983). In that Sec. 1983 case, the Eleventh Circuit held that prison officials were collaterally estopped, on account of prior litigation in which the prison's practices were ruled unconstitutional,4 from relitigating the issue of whether conditions and practices in the prison violated the inmate plaintiff's Eighth Amendment rights. Id. at 1382. See also Crowder v. Lash, 687 F.2d 996, 1011 (7th Cir.1982) (Indiana State Prison inmate may in subsequent damages action make collateral estoppel use of prior litigation involving prison).

In Ruiz, affirmed by this Court with modifications of certain remedial provisions,5 the parties actually litigated, and the district court necessarily decided, the two precise constitutional issues before us. These issues were also critical, necessary ingredients in that case. See 503 F. Supp. at 1303-07, 1358.

A remaining element is that the defendant have an incentive to vigorously defend the critical issue in the prior proceeding. See Parklane Hosiery, 439 U.S. at 332, 99 S. Ct. at 652, 58 L.Ed.2d at 562. Of course the defendant Estelle was a named defendant in the Ruiz litigation. In addition, those officials not named as defendants in Ruiz were nevertheless bound by the injunction as agents and employees of TDC and Estelle. See Ruiz, 679 F.2d at 1166 (consent decree injunction binding on "Defendants, their successors, agents and employees"). We agree with the Eleventh Circuit that this is sufficient to furnish at least a modicum of incentive. See Williams, 689 F.2d at 1382 n. 13. The question then becomes whether the incentive to defend each particular issue in the first case was sufficiently vigorous.

With respect to the Eighth Amendment issue, prior to Ruiz, the building tender system was an established infrastructure in TDC whereby inmates sometimes provided "the only order existent in inmates' living quarters...." Ruiz, 503 F. Supp. at 1303. At issue in Ruiz was whether the entire building tender practice, upon which TDC relied heavily to fulfill security needs, should be prohibited. Because this was of such great importance, the requirement that the defendant have an incentive to litigate the issue vigorously in the prior proceeding is satisfied with respect to the Eighth Amendment issue. See Williams, 689 F.2d at 1382 (in prison conditions case, in light of serious constitutional violations and broad declaratory and injunctive relief sought in earlier equitable action, incentive to vigorously litigate existed for collateral estoppel purposes). But see, Gutierrez v. Coughlin, 841 F.2d 484, 486 (2d Cir.1988) (prison officials bound by earlier state court equitable action in which they were not subject to personal liability did not have sufficient incentive to litigate the state case for collateral estoppel to apply in subsequent damages action).

This final collateral estoppel element having been satisfied, Ruiz, which held both that the building tender system directly contravened clearly established law in effect in 1976, 503 F. Supp. at 1307, 1388, and that prison officials were "clearly chargeable with notice of the type of constitutional violations which have been proven," 503 F. Supp. at 1385,6 forecloses relitigation of the issue whether McDuffie was denied reasonable protection from violence at the hands of unconstitutional building tenders. The building tender officials, therefore, are not entitled to qualified immunity on the Eighth Amendment issue.7

McDuffie's contention that he was denied constitutional due process in the disciplinary proceedings which followed the fight is more troublesome, as we are not certain that the defendants had a strong incentive to litigate this issue vigorously in Ruiz. Ruiz dealt with many of the problems attendant to prison disciplinary proceedings in TDC about which McDuffie complains. The court found that typical TDC proceedings failed to comply with the minimum requirements for satisfaction of due process in state prison disciplinary hearings announced by the Supreme Court in Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974). These mandates, applicable to all TDC disciplinary hearings, see Ruiz, 503 F. Supp. at 1351, aff'd, 679 F.2d at 1155, are:

(1) The prisoner must be provided with 24 hours advance written notice, informing him of the charges against him, in order to enable him to prepare a defense.

(2) Upon a finding of guilty, the factfinders must provide the prisoner with a written statement of the disciplinary action and the evidence the disciplinary body relied on in reaching its conclusion.

(3) The charged prisoner must be given an opportunity to present his side of the story and must be allowed to call witnesses in his behalf.

(4) The disciplinary body must be detached and neutral.

Id. 418 U.S. at 564-66, 571, 94 S. Ct. at 2978-79, 41 L.Ed.2d at 956-57, 959.

However, Ruiz required remedial measures for TDC which were more stringent than the Wolff mandates. See Ruiz, 503 F. Supp. at 1358-59, aff'd, 679 F.2d at 1155-56.8 Among them, the court required that TDC officials determine that administrative segregation is necessary to safeguard institutional security before segregating a charged inmate prior to his hearing. This requirement was based on the court's conclusion that a charged inmate, if segregated from other inmates who may have important evidence, is deprived of a meaningful opportunity to prepare a defense in anticipation of a hearing. The court also required that the 24-hour violation notice contain a detailed notice of charges, including all basic information contained in the offense report filed by the charging officer, and that disciplinary committees not include any officer who has filed charges or otherwise participated in any incident which led to the charges. Id.9

Although these requirements obliged TDC to undergo changes to accommodate new procedures, they were not nearly as disruptive and revolutionary as the banning of the building tender system. Coupled with the fact that Ruiz was an action for equitable relief only, we do not perceive the incentive to oppose the sought-for injunction imposing these changes to be sufficiently strong to require application of collateral estoppel. This incentive certainly does not approach the prison system's interest in preserving a large part of its security apparatus. We therefore hold that Ruiz does not foreclose relitigation of the due process issue via the Committee officials' qualified immunity plea.10

(ii) Clearly Established Law--Disciplinary Proceedings

Thus, we must look to see whether the defendant officials' actions violated clearly established law in existence in June 1976. The Ruiz requirements, which were set down in 1980, do not earn the label "clearly established" for purposes of imposing liability on the defendants in this 1976 damages action.11 Fitting McDuffie's allegations into the mandates from Wolff, the 1974 Supreme Court case upon which Ruiz relies with respect to prison disciplinary proceedings, it is clear that the first three minimum requirements were satisfied in McDuffie's case. First, it is undisputed that on June 9, 1976, the day of the incident, McDuffie was presented with a violation notice detailing the charges against him--"disrespectful attitude" and "fighting without a weapon." This notice was provided to McDuffie well over 24 hours before the disciplinary hearing, which took place on June 12. In addition, the charges themselves are fairly self-explanatory and are adequate to meet the first Wolff requirement.12

In compliance with the second Wolff requirement, the disciplinary committee also prepared the required written "Offense Report" sufficiently detailing the evidence upon which it relied to reach its finding of guilt and to impose the punishment of solitary confinement.13 Third, the Offense Report contained a section entitled "Statement of Inmate to Committee," which reads:

While before the committee inmate McDuffie stated that he understood the charges and did not request witnesses in his behalf. It was determined that he could represent himself.

McDuffie signed the form directly beneath this statement.

Wolff 's fourth requirement was also satisfied. Specifically, McDuffie argues that defendant Steele, who he alleges investigated the fighting incident and later served on the disciplinary committee, added the taint of partiality to the proceedings. Again, Ruiz, which held that a prison disciplinary committee "must not include persons who were involved in the incident being judged," see 503 F. Supp. at 1355, cannot be used to answer the Committee defendants' argument that the disciplinary body that decided McDuffie's case was itself detached and neutral. Ruiz relies on Morrissey v. Brewer, 408 U.S. 471, 486, 92 S. Ct. 2593, 2602, 33 L. Ed. 2d 484, 497 (1972), which held that officials involved in the incident should not also judge it. However, we would not expect reasonable persons in the Committee defendants' positions to have understood that Morrissey, which dealt with parolees, governed their actions. This is especially true in view of the Supreme Court's statement in Wolff that "one cannot automatically apply procedural rules designed for free citizens in an open society, or for parolees or probationers under only limited restraints, to the very different situation presented by a disciplinary proceeding in a state prison." Wolff, 418 U.S. at 560, 94 S.Ct. at 2977, 41 L. Ed. 2d at 953 (emphasis added). See Anderson, supra note 6.

There was specific precedent in three circuits prior to 1976 establishing due process protection in the prison disciplinary setting relevant here. The Seventh Circuit held in United States ex rel. Miller v. Twomey, 479 F.2d 701 (7th Cir.1973), cert. denied, 414 U.S. 1146, 94 S. Ct. 900, 39 L. Ed. 2d 102 (1974), that the prison disciplinary committee should not include the officer reporting the infraction--the charging officer,14 but said nothing about "investigating officers." Id. at 716. The Third Circuit in Braxton v. Carlson, 483 F.2d 933 (3d Cir.1973), agreed that the prison official who prepares the formal charges against the prisoner should not serve as a disciplinary committee member; however, the court held that another official who helped to break up the "near-mutiny" which led to the subsequent disciplinary proceedings could later serve impartially as a committee member. Id. at 941. On the other hand, in Clutchette v. Procunier, 497 F.2d 809 (9th Cir.1974), modified, 510 F.2d 613 (9th Cir.1975), reversed on other grounds sub nom. Baxter v. Palmigiano, 425 U.S. 308, 96 S. Ct. 1551, 47 L. Ed. 2d 810 (1976), the Ninth Circuit determined that a prison official who has participated in the case as an investigating or reviewing officer or who otherwise has personal knowledge of the incident involving the accused inmate should not serve on the disciplinary board judging the incident. Id. at 820.

Absent binding precedent in this circuit and faced with somewhat conflicting decisions in the two circuits which actually addressed the issue relevant here, we cannot say that the law as set forth by the Ninth Circuit in Clutchette was "clearly established" so as to affect the actions within the Fifth Circuit of the Committee defendants in 1976. See Wood v. Strickland, 420 U.S. 308, 322, 95 S. Ct. 992, 1000-01, 43 L. Ed. 2d 214, 225 (1975) (officials not charged with predicting the future course of constitutional law); Williams v. Treen, 671 F.2d 892, 903 (5th Cir.1982), cert. denied, 459 U.S. 1126, 103 S. Ct. 762, 74 L. Ed. 2d 977 (1983) (same); see also Lum v. Jensen, 876 F.2d 1385, 1389 (9th Cir.1989), cert. denied, --- U.S. ----, 110 S. Ct. 867, 107 L. Ed. 2d 951 (1990) (absence of precedent in circuit and conflict among other circuits probably sufficient to undermine clearly established nature of a right). Accordingly, whatever part the Committee officials might have played in allowing Steele to serve as a member of the Committee nonetheless "could reasonably have been thought consistent with the right[ ] they are alleged to have violated"--due process violations in the disciplinary proceedings. See Anderson, 483 U.S. at 638, 107 S.Ct. at 3038, 97 L. Ed. 2d at 529.

We also reject McDuffie's contention that because Skinner and Johnson were not disciplined, the disciplinary committee could not have been neutral. The Ellis Unit officials' decision not to bring charges against Skinner and Johnson has no bearing on the question whether McDuffie himself was accorded due process, especially given the long-established wide discretion granted prison officials. See Bell v. Wolfish, 441 U.S. 520, 547, 99 S. Ct. 1861, 1878, 60 L. Ed. 2d 447, 473 (1979).

Moreover, the evidence as detailed in Officer Mesecher's description of the episode reveals that McDuffie provoked the scuffle and that it was over shortly.15 The evidence further shows that Skinner and Johnson were not allowed to continue beating McDuffie after they had gotten the better of him. The committee was entitled to rely on Mesecher's eyewitness testimony in judging the individuals involved. See Gibbs v. King, 779 F.2d 1040, 1044 (5th Cir.1986), cert. denied, 476 U.S. 1117, 106 S. Ct. 1975, 90 L. Ed. 2d 659 (1986) ("Federal courts will not review the sufficiency of the evidence at a disciplinary hearing; a finding of guilt requires only the support of 'some facts' or 'any evidence at all.' ") (citations omitted).

We conclude from this analysis that, under these circumstances, the Committee officials complied with the clearly established law in force at the time of the events in question in respecting McDuffie's due process rights. See Wolff, supra; see also Baxter, 425 U.S. 308, 96 S. Ct. 1551, 47 L. Ed. 2d 810 (1976) (restricting the reach of Wolff ). We therefore hold that the defendant officials are protected by qualified immunity from liability on McDuffie's Fourteenth Amendment Due Process claim.16

We therefore REVERSE the district court's ruling that the Committee defendants are not entitled to qualified immunity on McDuffie's due process claims. However, we hold that, on these facts, the building tender defendants are not entitled to qualified immunity and thus AFFIRM the district court's denial of their summary judgment motion on this issue and REMAND for further proceedings in accordance with this opinion.

Our holding that the Eighth Amendment claim survives under these facts forecasts neither imposition of liability nor the need for a full trial. Nor does it preclude the possibility of directed verdict or even summary judgment, if properly invoked. Without foreclosing the trial court's independent action on remand, we point out that McDuffie must still establish his claim on the merits. This will require proof of the essential elements of individual culpability on the parts of the building tender officials17 and of the assailants, Johnson and Skinner, and a showing of compensable injury.18

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.