USCA1 Opinion

July 27, 1992

[NOT FOR PUBLICATION]

___________________
No. 92-1014

DAVID A. JOSSELYN,
Plaintiff, Appellant,
v.
PHILIP POIRIER, ET AL.,
Defendants, Appellees.
__________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
___________________
___________________
Before
Selya, Circuit Judge,
_____________
Campbell, Senior Circuit Judge,
____________________
and Boudin, Circuit Judge.
_____________

___________________

David A. Josselyn on brief pro se.

_________________
Nancy Ankers White, Special Assistant Attorney General and
__________________
Charles M. Wyzanski, Senior Litigation Counsel, Department of
____________________
Correction, on Memorandum
of Law in
Support of
Summary
Disposition.

__________________
__________________

-2-

Per Curiam.
___________
appeals

Plaintiff/appellant,

David

A. Josselyn,

the grant of summary judgment in favor of the prison

officials against whom

he brought an action,

pursuant to 42

U.S.C.

1983.

Josselyn,

We affirm.
a prisoner at

the Massachusetts Correctional

Institution (MCI) at Norfolk,

was suspected of attempting to

escape

hours of

in the

early morning

September

15, 1989.

That evening he was transferred to MCI at Cedar Junction.

In March 1990, he
the

investigation of

filed suit with claims stemming

the escape

attempt and

from

his transfer.

Eventually, the parties cross-moved for summary judgment with

the prison officials prevailing.
I.
Before turning
some

preliminary

to the underlying merits,

complaints

appellant

we dispose of

raises

on

appeal.

First, Josselyn contends that he did not have adequate notice

that

defendants'

motion would

summary judgment.
motion

was

motion to

This

or for

treated

as one

argument is specious.

permissibly phrased
dismiss

be

in

summary

the

seeking

Defendants'

alternative, as

judgment.1

The

motion

____________________
1. There were actually two such motions.
The first was
filed in February 1991 with an accompanying memorandum. This
motion recited that it was filed on behalf of 13 named
defendants. There were, however, 16 named defendants and the
omission of 3 names appears to have been inadvertent.
Josselyn filed his opposition and cross-motion in March 1991.
In October 1991, the defendants filed a second motion,
this one reciting all 16 names. This subsequent addition of
earlier-omitted names did not prejudice Josselyn, as this
-3-

itself

gave notice to Josselyn and he was given a reasonable

opportunity to respond,
cross-motion

for

which he did, with an

summary

judgment,

opposition, a

and

accompanying

memorandum.
Second, Josselyn argues that the district court erred in
failing to
The

hold a hearing before

court properly

evidentiary

may grant

hearing or

granting summary judgment.

summary judgment,

oral argument,

"if no

without an
dispute over

material fact exists and a trial or hearing would not enhance

its ability to decide the [remaining

legal] issue."

de Puerto Rico, Inc. v. Radin,

_____________________
_____

856 F.2d 399, 401

1988);

see also Fed.

_________

P.

motion

on

R. Civ.

affidavits).

As

(1st Cir.

43(e) (court

discussed

Posadas
_______

may "hear"

infra, contrary
_____

to

Josselyn's contention, there is no genuine issues of material

fact and no necessity for a hearing.
Third, Josselyn
summary

judgment

memorandum.

Civ. P.

was

not

Findings of

unnecessary on
R.

complains

that the

accompanied
fact and

court's
by

52(a).

defendants' motion,

The court
which sought

any

conclusions

decisions of summary judgment

endorsed, as

grant

of

supporting
of law

motions.

are
Fed.

"allowed," the

summary judgment

based on

____________________
second motion relied on the previously filed memorandum.
In
any event, Josselyn had an opportunity to file a further
response, if it was warranted, but did not do so.
The
district court granted summary judgment in defendants' favor
on November 26, 1991, with judgment entering on December 20,
1991.
-4-

the reasoning set forth

the court's

in their memorandum.

ruling, therefore, is apparent

The

basis for

from the record.

While a supporting memorandum is useful to a reviewing court,

the absence

of such is not

fatal in this case.

Domegan v.
_______

Fair, 859 F.2d 1059, 1065-66 (1st Cir. 1988).

____
II.
We

turn to the

merits of this

grant of summary judgment

Furtado,
_______

950 F.2d

805,

de novo.
808

(1st

appeal.

We

See, e.g.,
_________
Cir.

1991).

review the
Rodriques v.
_________
"Summary

Judgement is appropriate only if there

is no genuine dispute

as

party is

to

material fact

and the

moving

entitled to

judgment as a

matter of law."

Id. at 809.
___

We

"review the

record, together with all reasonable inferences therefrom, in

the

light

most

appellant."

favorable

to the

non-moving

party,

here

Id.
___

Unless

otherwise indicated, these facts are essentially

undisputed.

On

September 15,

a.m., after a night

1989, at

approximately 8:45

of heavy rain, prison officials

found a

rope made of prison bedsheets hanging from a wall at Norfolk,

a hole, approximately 2
inner perimeter
needle

to

bedsheets
them.

feet,

chain-link fence, and,

nose pliers.

attached

feet by 1

the

The

ends

had Josselyn's
Josselyn's

room

cut in an adjacent
close by, a

pliers had pieces

with

blue

laundry

pair of

of conduit pipe

electrical

tape.

identification number

was searched

that

afternoon

The
on
and

-5-

several articles of

his clothing,

found to be soaking wet.

inner foot

area.

including sneakers,

were

The sneakers had scuff marks on the

Defendants contend,

although Josselyn now

denies, that
it,

Josselyn's hot pot had blue

identical to

the tape

used to

electrical tape on

connect the

pliers and

pipe.2
Josselyn was placed in
visual

Norfolk's segregation unit and a

body cavity search

p.m., he
placed

was done.

was transferred
in

Awaiting

segregation

Josselyn

Action

unit.

On

meeting was held.

remain

investigation

to Cedar

At approximately 9:30
Junction,

(AA) status

October 25,

where he

in

that

1989, a

was

prison's

classification

The classification board recommended that

in AA

into

status

the

pending the

attempted

results

of the

and

related

escape

disciplinary action.
On November 10,
disciplinary
previously

1989, Josselyn received

report.

This

noted regarding

perimeter fence, pliers,

that

interviews

identified

as

were
the

report

conducted,

inmate

related

who had

the

the

facts

rope, hole

in the

The report also

stated

the homemade

and pipe.

a copy of

at

which

attempted

Josselyn
the

Although the attempted escape occurred between 2 and 3

was

escape.
a.m.,

____________________
2. Josselyn did not contest the existence of the blue
electrical tape on his hot pot at the disciplinary hearing
and a photograph showing the hot pot with blue tape attached
to its cord was admitted into evidence at the hearing.
-6-

the inner perimeter fence

to the

report,

some of

recited that Josselyn

his room,

interviewees
broomsticks
with

the

inmates who

the

fence, cut

with blocks

interviewed

through the

that, with

inner

zone."

These

the assistance

attached, Josselyn

a sheet attached, to the top

According

escape window in

crawled across the "dead

further recited

to climb the wall.

were

climbed out the fire

crawled along

perimeter fence, and

and the wall were lit.

placed a

of

hook,

of the wall and attempted

According to the report, when the attempt

failed, Josselyn moved the hook and sheet down to a different

area,

tried and again failed to climb the wall, then crawled

back

through the "dead zone" and

report

recited that

every

directly tied to Josselyn

returned to his unit.

article of

evidence was

or he had access to

The

either

that material

and was seen with it.

After two
counsel could
reporting
held

on

be

February

district

did not

2,

1990.

at Josselyn's
one
the

request so

continuance due

that

to

the

disciplinary hearing

was

The

investigating

officer

Because the escape incident had been referred to

attorney's

Josselyn invoked
and

present and

officer's illness,

testified.
the

continuances

office for

possible

his fifth amendment right

testify

in

his

own

behalf.

prosecution,

to remain silent
Josselyn

was

represented by a law student, who argued that, on the morning

after

escape attempt, it was

damp outside and that Josselyn

-7-

had been out jogging and had made no attempt to

hide his wet

clothes, which were laying around his room.

On

February

12, 1990,

attempted escape.

Josselyn

was

found guilty

He was given 15 days in isolation

disciplinary board recommended that Josselyn

to higher

security, placed

in the

recommended

superintendent

loss of

recommended,

departmental segregation

good

and

and the

be reclassified

unit (DSU), and lose 1000 days of good time credit.

appealed the

of

Josselyn

time credit.

the commissioner

The

ordered,

that 500, rather than 1000, good time days be forfeited.

An initial DSU

review was held on April 20,

DSU

board recommended a 2

was

ultimately

released

year placement in
to

the

Cedar

1990.

DSU.

Junction

The

Josselyn
general

population on July 9, 1991.

III.
On appeal,

Josselyn argues

that there exist

5 genuine

issues

of material

fact,

which preclude

entry of

summary

judgment in the defendants' behalf.

A.
__
Josselyn

claims that

when

he was

taken to

Norfolk's

segregation unit, prior to his transfer to Cedar Junction, he

had to remove all of his own clothes, underwent a visual body
cavity

search, and

claims

that

was left

these actions

naked for
amounted

several hours.

to

punishment and

He
an

unreasonable search and seizure.

-8-

Contrary to Josselyn's
present

any

genuine

issue

contention, this claim does

of

material
________

fact,

for

not
even

accepting these assertions as true, they would not affect the

outcome of the case

under the applicable law.

v. Liberty Lobby, Inc., 477

____________________
that

U.S. 242, 248

only disputes over facts that

of the suit

under the governing

See Anderson
___ ________

(1986) (reciting

might affect the outcome

law will properly

preclude

the entry

of summary

and legitimate

judgment).

security interests of the

privacy interest of the

conducted
not

constitute

inmate, a visual body

punishment

nor an

necessary to conduct a

1991)

conducted

when

disturbance is

visual

and
rooms

inmates

after

after he
not

from

the

receives
violate

-9-

the

search
prison

visual body
or leaves his

prison law
visitors

(1st

Arruda v. Fair,
______
____

(1st Cir.) (holding that a

to or

does

outside the

body cavity

conducted when an inmate enters

way

search of an

F.2d 441, 446 n.7

not an unreasonable search);

cavity search

visiting

transferring

710 F.2d 886, 886-88

on his

probable cause is

visit with a person from

(concluding that

search and

Bell v. Wolfish,
____
_______

visual body cavity

institution); Cookish v. Powell, 945

_______
______

infirmary,

cavity search

unreasonable

558-60 (1979) (holding that

inmate after a contact

unit

prison against the

violation of the Constitution.

441 U.S. 520,

Cir.

the significant

of an inmate suspected of an attempted escape does

seizure in

not

Balancing

library
in the

Fourth

or

and

unit's
Eighth

Amendments), cert. denied,

____________

464 U.S.

that, according to Josselyn,

he

spent

several

hours,

999 (1983).

The

fact

after the search was completed,

naked

in

cell

in

Norfolk's

segregation unit, before he was given a jumpsuit and slippers

for his transfer

to Cedar

Junction, in our

view, does

not

elevate this claim into a constitutional violation.

B.
__
Josselyn claims
some

of the

that

property that

including the clothing

transfer

material

fact,

he had been

implicated

by

unintended loss of

forced to

Again, as with

entry

of

negligent
_________

act

of

his

the claim just

genuine issue of

summary

an

lost

leave behind,

wearing just before

"[T]he Due Process Clause

judgment

in

is simply not

official

causing

or injury to life, liberty, or property."

v. Williams, 474
________

original).

negligently

does not present any

precluding

defendants' favor.

the

he was

to Cedar Junction.

discussed, this claim

Daniels
_______

the defendants

U.S. 327, 328

(1986) (emphasis in

Josselyn's contention that

the defendants'

refusal to reimburse him for the replacement cost of the lost

property

is punishment

advance his claim of a

for

his attempted

escape does

federal constitutional violation.

express no view as to the existence of any state remedy.

C.
__

not
We

Josselyn complains of his transfer to AA status at Cedar

Junction without a hearing and of

the 7 month delay before a

-10-

DSU

review occurred.

factual

Again, this

dispute and,

contention presents

accepting these

Josselyn, we conclude defendants

facts as

no

asserted by

are entitled to judgment as

a matter of law.
The transfer

of an inmate to

pending investigation of misconduct

on

any liberty interest protected

in and of itself.
A state,

by the

regulatory

law.

Massachusetts

has

charges does not impinge

by the Due Process Clause

Hewitt v. Helms, 459 U.S. 460, 468 (1983).

______
_____

however, may create a

protected

more restrictive quarters

Due

Process Clause

Id.
___

at

done

so

correction's regulations

substantive liberty interest

469.
here

related to

through statutory
Josselyn

via

the

the use

argues
department

or
that
of

of segregation

and that the defendants' alleged failure to comply with those

regulations violated his due process rights.

"[A]
placing
Olim
____
of

State

creates

substantive

protected

limitations

on

liberty interest
official

v. Wakinekona, 461 U.S. 238, 249 (1983).

__________
inquiry"

relevant

statutes

Corrections
___________
relevant

is

"to examine
and

closely

regulations."

v. Thompson, 490 U.S.

________

regulations give

essentially unfettered

the

the

discretion."
"[O]ur method

language of

the

Kentucky Dep't of
___________________

454, 461 (1989).

defendant

discretion to

by

prison

If the
officials

place an inmate

in AA

status, no liberty interest has been created.

-11-

We

reviewed the Massachusetts Department of Corrections

"awaiting

action status" detention

Fair, 795 F.2d 235 (1st Cir.

____
that the regulations did
by

the Due

1986).

regulations in Stokes v.
______
In Stokes, we concluded
______

create a liberty interest protected

Process Clause

because, as

then written,

they

permitted prison

officials to place

an inmate in

AA status

only upon occurrence of certain conditions, i.e., pending

(a) a hearing on a
by the inmate

disciplinary offense

(b) an
investigation of
a possible
disciplinary offense by the inmate
(c) a transfer or a reclassification of
the inmate to a higher custody status, or
(d) imposition
of
isolation
time
sanction on the inmate when the inmates's
continued
presence
in
the
general
population poses a serious threat to
persons, property, or the security of the
institution.
Id. at 237.
___
Subsequent
regulations

our

decision

were revised

transfer to Cedar
relevant

to

and,

in

Stokes,
______

at the

Junction and placement

regulation, Mass.

Regs.

the relevant

time of

appellant's

in AA status,

Code tit.

103,

(1987), read:
(1) At
the
discretion
of
the
Superintendent or his/her designee, and
subject
to
any
applicable
review
requirements, an inmate who is under
investigation for a possible disciplinary
offense, or who has been charged with or
found guilty of a disciplinary offense,
may be placed on awaiting action status
-12-

the

430.21

at the institution where he/she is then

confined.
Such status may include more
restrictive
confinement
as
deemed
appropriate by
the Superintendent or
his/her designee.
(2) An inmate who is under investigation
for a possible disciplinary offense, or
who has been charged with or found guilty
of
a
disciplinary offense,
may be
transferred
to another
Massachusetts
institution,
or
an
out
of
state
institution prior to a classification
hearing.
An inmate so transferred may,
at the discretion of the Superintendent
or his/her designee at the receiving
institution,
and
subject
to
any
applicable review requirements, be placed
on awaiting action status. Such status
may include more restrictive confinement
as
deemed
appropriate
by
the
Superintendent or his/her designee.
We interpreted the pre-1987 regulations as
prison officials'

limiting the

discretion to place an inmate in AA status

to those instances expressly set out

in the regulations, one

of which was pending investigation of a possible disciplinary

offense.
prison

We

note that

officials

to

the 1987

transfer

regulation permitted
an

inmate,

who

is

the
under

investigation for a possible disciplinary offense, prior to a

classification
in

AA status

hearing and to
"at the

his/her

designee."

whether

this

discretion of
We

need not,

revision worked

inmate's liberty interest in

population.

place that transferred inmate

We will

the
and

Superintendent or
do

not, determine

substantive

change in

an

remaining in the general prison

assume,

consistent

with our

Stokes

______
analysis, that an inmate has a reasonable expectation that he
-13-

will

be

placed

investigation

in

AA

status

for, (b) has

only
____

of a disciplinary offense.

assume

that (a)

Berrier
_______

(b) and (c)

permitting

he is

been charged with,

guilty

conditions

if

In other

is an

placement

in

(a)

under

or (c) found
words, we will

exhaustive list
__________
AA status.

of the
But cf.
________

v. Allen, 951 F.2d 622, 625 (4th Cir. 1991) (finding

_____

no liberty interest created where language of regulations did

___
not explicitly prohibit
_________________________
inmate in

prison

officials

from

administrative segregation unless one

______

confining
of the four

enumerated situations existed).

Assuming that the department of corrections' regulations
created a
process

liberty interest,
violation.

One

there was, nonetheless,

of

the

expressed

no due

substantive

predicates required
present

in

for placing an

Josselyn's

case;

he,

inmate in AA
in

fact,

status was
was

under

investigation for a possible disciplinary offense when he was

placed in AA

status.

See Smith v.
___ _____

Massachusetts Dep't of
_______________________

Correction, 936 F.2d 1390, 1397 (1st Cir. 1991) (where one of
__________
the requisite substantive predicates for placing an inmate on
AA status was
That

present, there was no due

he was transferred to

status prior to

process violation).

Cedar Junction and

a hearing, likewise,

placed in AA

raises no due

process

concern, either as a matter of the Due Process Clause itself,

Hewitt v. Helms, 459 U.S. at 472 (due process is satisfied by
______
_____
an

informal, non-adversary

review within a

reasonable time

-14-

after

confinement

to administrative

segregation), or
as

as a

matter of

any state-created liberty interest

430.21(2)

permitted

the transfer and placement in AA status prior to a

classification hearing.
It

appears

that

Josselyn's

real

complaint

is

his

suggestion that

the 7 month

Cedar

Junction

and

during

which

time

delay, between his

his DSU
he

review

remained

and

in

AA

transfer to

reclassification,
status,

was

an

impermissible attempt by the defendants to use AA status as a

substitute for a

formal DSU classification.

The Court,

in

Hewitt v. Helms, 459 U.S. at 477 n.9, noted:

______
_____
administrative segregation may not be
used
as
a
pretext for
indefinite
confinement
of
an inmate.
Prison
officials must engage in some sort of
periodic review of the confinement of
such inmates.
As

in

Hewitt, the
______

record in

this

case "is

sufficient to

dispel any notions that the confinement was a pretext."

Josselyn
regulations
is

was transferred

on September

provided that when

pending, an

initial

"only of an evaluation

15, 1989.

Id.
___
The

a disciplinary investigation

classification hearing,

consisting

of the inmate's security requirements

and programmatic needs," shall be held within 20 working days

of the transfer.
(1987).

Mass. Regs. Code tit. 103,

The regulations

procedural

time

regulations

are

limits

420.09(3)(b)

also provided, however, that "[a]ll

set

directory

forth
and

-15-

may

in

these
be

waived

rules

and

by

the

Superintendent
Mass.

or

the

Regs. Code

September

18,

Commissioner

tit. 103,
1989,

all procedural
thereafter every

their

420.12,

Josselyn

Superintendent had ordered

or

was

430.23 (1987).
notified

an investigation and

time limits.
7 days and

designees."

Josselyn's

that

On
the

was waiving

status was reviewed

Josselyn was notified

that the

investigation was continuing.

On October 25, 1989, the initial hearing
420.09(b)(3) was
Josselyn

remain

in

investigation.3

held, with
AA

status

Thereafter,

the board
pending
and

in

referred to in

recommending that
the

disciplinary

conformity

with

regulations which became effective while he was in AA status,

____________________
3. That this initial classification hearing apparently was
held on the 27th working day after Josselyn's transfer,
rather than within 20 working days as specified in
420.09(3)(b), does not implicate the Due Process Clause.
Regulations which embody only procedural time limits do not
create a liberty interest.
Smith v. Massachusetts Dep't of
_____
______________________
Correction, 936 F.2d at 1397 n.11; see also Hewitt v. Helms,
__________
________ ______
_____
459 U.S. at 471 (the mere creation of a procedural structure
to regulate the use of segregation does not indicate the
existence of a protected liberty interest); id. at 472 (due
___
process satisfied by informal, non-adversary review within a
________
reasonable
time
after
confinement
to
administrative
_________________
segregation) (emphasis added).

And, we note, despite the regulation's phrasing that the

hearing "shall be held within twenty (20) working days of
such a transfer," the regulation itself cannot be read as
creating
some
enforceable
constitutional due
process
entitlement to a hearing within that time, as the regulations
expressly provided that the procedural time limits were
directory and waivable,
420.12, and, were, in fact, waived
in Josselyn's case.
Cf. Maldonado Santiago v. Velazquez
___ ___________________
_________
Garcia, 821 F.2d 822, 827-28 (1st Cir. 1987) (due process
______
rights were
violated by 2-day
delay in post-transfer
hearing).
-16-

Josselyn's status was

Code tit. 103,

reviewed every 15

days.

Mass.

Regs.

421.08(3) (1989).

The disciplinary investigation was completed on November

10, 1989.

After two continuances at

one due to the

hearing was held
guilty

on

Josselyn's request and

reporting officer's illness, the disciplinary

on February

February 12,

1990.

recommended recapture of good

Commissioner

approved

Superintendent

that

2, 1990.
He
time.

the

500 days

Josselyn was
appealed

On March 22,

recommendation
of

the

good

time be

found
board's

1990, the
of

the

forfeited.

Thereafter, Josselyn's DSU review occurred on April 20, 1990.

This

chronology

suggests

steadily

progressive

disposition of

Josselyn's classification

impermissible attempt by the

status as

status and

not an

defendants to use Josselyn's AA

a substitute for

a formal DSU

classification, in

violation of any due process right.

D.
__
Josselyn complains that the disciplinary board relied on
information
the

from

informants'

confidential informants
reliability

or

the

without assessing

credibility

of

the

him to

the

good

time

information.
Because the disciplinary
loss

of

state-created

hearing subjected

liberty

interest

in

credits, Josselyn

was entitled to

"those minimum procedures

appropriate under

the circumstances and required

by the Due

-17-

Process

Clause

to insure

that the

state-created [liberty]

right is not arbitrarily abrogated."

Wolff v. McDonnell, 418

_____
_________

U.S.

539, 557 (1974); see also Langton v.

_________ _______

231,

233 (1st Cir. 1981)

(same).

The

Berman, 667 F.2d

______

issue, therefore, is

whether due

process requires,

assessment by

at a minimum,

an independent

board of the

reliability of

the disciplinary

confidentialinformants andthe credibilityof thatinformation.4

Among
established

the

minimum

by

Wolff,
_____

factfinders as to

requirements
is

written

the evidence relied

for the disciplinary

action taken.

of

due

process,

statement
upon and the

Wolff v.
_____

of

as
the

reasons

McDonnell, 418
_________

U.S. at 564.
[T]he provision for a written record
helps to
insure that administrators,
faced with possible scrutiny by state
officials and the public, and perhaps
even
the
courts, where
fundamental
constitutional
rights may
have been
abridged, will act fairly.
Without
written records, the inmate will be at a
severe disadvantage in propounding his
own cause to or defending himself from
others.
It may be that there will be
occasions when personal or institutional
safety
is
so
implicated that
the
statement may properly exclude certain
items of evidence, but in that event the
statement should indicate the fact of the
omission.

____________________
4. Some of the cases in this area freely interchange
reliability and
credibility and so may
refer to the
assessment as
one
of the
credibility
(rather
than
reliability) of the informant and the reliability (rather
than credibility) of the evidence. We infer no meaningful
difference in the interchange.
-18-

Id. at 565.
___
Although
on

the Supreme Court

the issue

informants

of the

are

the

evidence

requirement

required procedures

used,

requirement of a

has not spoken specifically

some

courts

have

written statement by the

relied

that

upon

as

disciplinary

when confidential
interpreted

factfinders as to

thereby

encompassing

committee

evidentiary basis upon which to determine for

informant's story

is probably credible.

this

have

a
some

itself that an
______

See, e.g., Hensley

_________ _______

v. Wilson, 850 F.2d 269, 277 (6th Cir. 1988).

______
[U]nless
the
committee
makes
an
independent determination about what the
facts of the alleged misconduct are by
deciding, minimally, that the hearsay
information has been
supplied by
a
reliable
informant,
it
is
merely
recording the findings
made by
the
investigating officer who has made a
determination
about
the
informant's
reliability,
without
making
any
determination
for
itself about
the
informant's reliability or even the basis
for
the investigator's
opinion that
informant is reliable.
To proceed in
that fashion is not fact finding. It is
recordkeeping.
Id. at 276; see also Kyle v. Hanberry, 677 F.2d 1386, 1389-90
___
________ ____
________

(11th Cir. 1982) (same);

(3d Cir. 1981) (same),
(1983).

Helms v. Hewitt, 655 F.2d

_____
______

487, 502

rev'd on other grounds, 459

______________________

U.S. 460

But see Sanchez v. Miller,

________ _______
______

792 F.2d 694, 702

Cir. 1986) (while requiring an indicia

inconsistent

with Wolff, it
_____

(7th

of reliability is not

is not compelled

by it), cert.
_____

denied, 479 U.S. 1056 (1987).

______
-19-

Three
the

times in the past,

procedures

required

when

we have visited
confidential

used.

In Gomes v.
_____

Travisono, 510
_________

1974),

we reviewed

rules

devised
state

under a
of Rhode

governing

consent decree
Island -

Morris rules required

______

the issue of
informants are

F.2d 537, 540

(1st Cir.

disciplinary

and adopted

the so-called

that any decision

hearings

as law

by the

Morris rules.
______
arrived at must

The
be

based on substantial evidence manifested in the record of the

disciplinary proceeding and that

if any of the facts establishing a Board

determination
are
derived
from
an
unidentified informant: (1) the record
must contain
some underlying factual
information from which the Board can
reasonably conclude that the informant
was credible or his information reliable;
(2)
the
record
must
contain
the
informant's statement in language that is
factual rather than conclusionary [sic]
and must establish by its specifity [sic]
that the informant spoke with personal
knowledge of the matters contained in
such statement.
Id.
___
We stated in Gomes that this requirement was
_____
aimed
at
preventing
arbitrary
determinations, which is the major thrust
of Wolff, which commands
"a written
_____
statement by the factfinders as to the
evidence relied on and reasons" for the
disciplinary action.
If the written
statement
is
intended to
withstand
scrutiny
and
guard
against
misunderstanding,
it
cannot indicate
reliance on speculation or on facts not
in the record.

-20-

Id.
___
to

Some circuit

courts have used this language

support a determination

process,

that federal

irrespective of any state

from Gomes
_____

constitutional due

law, is the

source of a

requirement that a disciplinary board independently determine

the

reliability

of

confidential

credibility of the informant's

v. Hanberry, 677
________
502.

doubt

independent

information.

F.2d at 1390; Helms v.

_____

But see Sanchez

________ _______

(expressing

informant

v.

that

Miller,
______
Gomes
_____

Hewitt, 655 F.2d at

______
at

702 n.12

concluded

reliability/credibility

the

See, e.g., Kyle

_________ ____

792 F.2d

had

and

that

an

determination

was

required as a matter of federal constitutional law).

Our

own

however,

post-Gomes
_____

reveal a

Berman, 667 F.2d

______
382, 384-85
and

opinions

less certain conclusion.

at 235,

how, as a constitutional

this subject
that
beyond

the

of its

those

we declined to

of

enumerated

information.

specific
in

Langton v.
_______
F.2d

decide whether

requirement, a board must make

last word

on

voiced in Wolff,
_____

procedural requirements

Wolff be
_____

instance to the sound discretion

of an informant

Our

reiterated our preference, as

development

issue,

Hall, 520
____

inquiry into the reliability

and the credibility

this
In

and McLaughlin v.
__________

(1st Cir. 1975),

an independent

visiting

left

in

the

first

of corrections authorities.

Langton
_______

v. Berman,
______

667

F.2d at

235.

At

the same

time,

however,
[w]e continue to advise them to follow
Wolff's mandate to devise regulations to
_____
-21-

assure that
the disciplinary board's
procedure is adequate
to enable
it
reasonably
to
conclude
that
any
confidential information upon which it
acted was
reliable.
We
say this,
however, without committing ourselves as
to what must be open for our review.
Id.
___
While we

remain cognizant of

protection against arbitrary or

officials

stemming

from

nonexistent informants,"
resolution

of the

the "need to

vindictive actions by prison

unreliable
id.,
___

underlying

afford some

unidentified

this case

does

not

or

even

require

constitutional premise.

We

conclude in any event that no due process violation occurred.

That

is

because

those

independent assessment

courts

which

as a minimum due

have

accepted

this

process requirement

conclude that due process is

offered
relied

against
upon

investigating

violated when the only evidence

____

an inmate

by

the

board

officer

of

unidentified informant.
F.2d 1044, 1049 (7th
at 1390-91; Helms
_____

in

is
an

disciplinary hearing
a

hearsay

recital

uncorroborated

See, e.g., McCollum

_________ ________

655 F.2d at

by

report

an

of an

v. Miller, 695
______

Cir. 1982); Kyle v. Hanberry,

____
________

v. Hewitt,
______

and

677 F.2d

501-03; see also

_________

Baker v. Lyles, 904 F.2d 925, 933 (4th Cir. 1990) ("[t]his is
_____
_____
not a case where the only evidence before the prison tribunal
was the hearsay statement of an unidentified informant"); cf.
___
Hensley
_______

v. Wilson, 850 F.2d at

______

276-77 (due process requires

an independent determination by a disciplinary committee of a

-22-

confidential
misconduct is

informant's
found

reliability

upon evidence

where

prisoner

consisting entirely, or
_____________

even substantially, of
___________________

the

statement of

an

investigating

officer that he has been told by confidential informants that

the
903,

misconduct occurred);
905 (7th

clearly be

Cir.

made in

McCollum v.
________

1986) (a

finding

Williford,
_________

793 F.2d

of reliability

any disciplinary proceeding

must

that relies

primarily, but not necessarily exclusively, on confidential

____________________________________________
informants).
Accepting as true, as we must in reviewing this grant of
summary judgment in defendants' favor,
that

the disciplinary

board in

Josselyn's contention

this case

did not

make an

independent assessment of the reliability of the confidential

informants or

the credibility

of their information,

nonetheless, equally true, contrary to

portray it
guilt

otherwise, that the board's

was not based

___

solely, or even

it is,

Josselyn's attempt to
determination of his
substantially, on that

information.
The investigating officer,
that approximately 40 inmates

Philip Poirier, did

were interviewed and that none

had been informants in the past.

of these
the

Poirier also testified that

40 inmates, approximately 8

escape attempt

eyewitnesses

and, of

testify

these 8

implicated Josselyn in
inmates, several

who saw Josselyn attempt to climb the wall.

-23-

were
In

addition to these

informant statements,

however, there

was

much physical evidence conduit pipe attached with blue electrical tape to
pliers and recovered just short of the inner
perimeter fence;
the nose of the pliers containing a galvanized
material, which matched the chain link fence;
poles, fashioned out of broomsticks and blocks,
connected by blue electrical tape, found at the
base of the wall in the inner perimeter area, where
the rope was attached;
the escape rope fashioned from prison bedsheets and
stamped with
Josselyn's laundry identification
number 533;
Josselyn's laundry bag and pillowcase stamped with
his ID number 533, retrieved from his room;
saturated sneakers with scuff marks on the inner
foot area and a saturated sweatshirt found in
Josselyn's room and identified by Josselyn as
belonging to him; and
a hot pot with blue electrical tape on the cord and
Josselyn's name printed on the pot and identified
by Josselyn as his.
The disciplinary board found "[t]he information gathered
from

inmate interviews,

confiscated

and

reporting officer

the

coupled with the

oral

shows the

testimony
board an

physical evidence

obtained

from

the

overwhelming pattern,

clearly indicative

of the fact that

[Josselyn] was directly

involved with an attempted escape."

This case
695 F.2d

is unlike,

1004,

extortion

in

for example, McCollum

________

which

four inmates

were

v. Miller,
______

charged

with

and pressuring other inmates to perform homosexual

-24-

acts

and the

investigating

only

evidence was

officer,

not

called

detailed statements of unidentified

There

was no question in

hole in the

an

unsworn report
as

witness,

of

an

which

confidential informants.

the present case,

with the gaping

fence and the rope, pipe, pliers and poles found

nearby, that an escape had been attempted.

This
in

case is also unlike Helms v. Hewitt, 655 F.2d 487,

_____
______

which an inmate was

during

a prison

melee

found guilty of
solely on

the

striking an officer
basis of

hearsay

account

of an unidentified informant's uncorroborated story.

Putting

aside the

investigating officer's testimony

that 8

inmates implicated Josselyn, including several who claimed to

have

witnessed

his attempt

to

scale the

physical evidence linking Josselyn

the rope

stamped with his

clothing, including

wall,

there was

to the attempted escape -

laundry ID number,

his saturated

sneakers with scuff marks

on the inside

foot area, and blue electrical tape, found

on an item in his

room, that was the same type as used on the escape tools.
Despite the absence of any reference by the disciplinary
board in its report that it had independently determined that
the

confidential

informants

information

credible

perpetrator,

the

provided
1391

in

physical

were

identifying
evidence

some corroboration.

(the

inquiry

by

reliable

Kyle v.
____

the

and

Josselyn
recovered

their
as

the

obviously

Hanberry, 677 F.2d at

________

disciplinary

board

into

the

-25-

reliability of informants may be diminished or even satisfied

where

there

information
disciplinary

is

corroborating

provided).
board

did

In
not

physical
any
rely

evidence

event,

because

solely,

substantially, on any informant's identification

of

or

the
the
even

of Josselyn

as

perpetrator of the attempted escape,

we conclude that no

due process violation occurred by the board's alleged failure

to make an independent assessment
confidential

informants

or

of the reliability of

the

credibility

of

the
their

information.
To be
physical

sure, Josselyn downplays the

evidence.

He

suggests

stolen; his clothing was

jogging

that morning;

significance of the

that

his bedsheets

wet because, he claims, he

his sneakers

were worn

were

was out

from playing

handball; his hot pot had no blue electrical tape on

it; and

that the entire general prison population had access to items

such as
review

the pipe, poles,

and tape.

But a

court does

not

de novo a disciplinary board's finding of guilt.

Due

process is satisfied if "some evidence" supports the decision

by

the board to

revoke good time

credits.

Superintendent,
_______________

Massachusetts Correctional Inst. v. Hill, 472

_________________________________
____
(1985)
judicial
finding

(declining
review
that

to decide
of

state

"Ascertaining whether

prison

whether

due

disciplinary

statutory

law

this standard

-26-

process requires
proceedings,

provided
is

U.S. 445, 455

but

such review).

satisfied does

not

require

examination

assessment of

of

the

the credibility

the evidence."

Id.
___

record, apart from

fact.

Id.
___

record,

independent

of witnesses, or

weighing of

There certainly was some evidence in the

any informant statements,

the board's conclusion and

decisions of

entire

we are not required to

prison administrators
at 455-56.

that supported
set aside

that have some

"The Federal

basis in

Constitution does

require evidence that logically precludes

not

any conclusion but

the one reached by the disciplinary board."

Id. at 457.
___

E.
__
Finally,

Josselyn argues

requires DSU inmates to wear

moving

to

one

location

unconstitutional form
Josselyn,

he

accepting

as true

record,

the

has

of

no

that the prison

handcuffs and leg shackles when

to

another

is

an

punishment because,

prison

Josselyn's

restraint policy

legitimate government

policy which

record

of

according

violence.

contention as
is

arbitrary and

reasonably

to his

to
Even

prison

related to

purpose of prison security.

There is

no constitutional deprivation.
IV.
For

the

foregoing

reasons,

we affirm

summary judgment in defendants' favor.

the

grant

of

Affirmed.
_________

-27-