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2nd Cir. Declines to Rule on Informant Testimony

Jerome Russell is a New York state prisoner. He was infracted for allegedly assaulting another prisoner. At the disciplinary hearing the hearing, officer questioned the investigating guard who had provided statements from the victim and three informants who identified Russell as the assailant. At the hearing, Russell requested the victim and three informants' testimony. The victim refused to answer any questions and the presence of the informants was denied. Russell was found guilty and sentenced to 180 days in segregation and a loss of privileges. Russell conducted an administrative appeal which resulted in a reversal of the disciplinary finding. At a second hearing he was again found guilty, again appealed and again the finding was reversed. No third hearing was ordered and Russell was returned back to the general prison population. Throughout the hearing and appeal process Russell was housed in segregation and denied privileges.

Russell filed suit in federal court under § 1983 claiming that the hearing officer's failure to independently assess the informants' reliability and credibility breached a clearly established due process right. The defendants sought qualified immunity claiming that no such right was clearly established in the second circuit. The district court denied the motion at 782 F. Supp 876 (SD NY) and the defendants appealed.

The court of appeals for the second circuit reversed, holding that there was no clearly established right for prisoners in disciplinary hearings to have informant testimony independently assessed for reliability and credibility by the hearing officer. The appeals court declined to decide the appropriate level of review for such testimony. Instead, the court decided to rule on the narrow question that Russell was properly held in administrative confinement and suffered no deprivation of a protected liberty interest. The court notes that prisoners are not deprived of due process where an administrative appeal has cured a hearing's procedural defects.

Ruling that Russell's segregation was administrative rather than punitive allowed the court to avoid the due process issue. However, while he was administratively appealing the imposed sanction he was denied certain privileges while in segregation. The appeals court held that the denial of these privileges were punitive in purpose and that he could recover monetary damages for their imposition. "The damage would be limited to the loss of privileges, however, because confinement in the SHU pending the appeal was harmless."

The court also did not rule on the question of whether due process is violated by the imposition of prison disciplinary punishment while administrative appeals are pending.

By declining to rule on what procedures must be followed by disciplinary hearing officers using informant testimony on prison hearings, the court essentially grants prison officials continued qualified immunity in the use of such testimony. Regardless of the findings by lower courts in the second circuit that the given procedure was improper, prison officials will be able to escape liability from money damages by claiming that the law on this issue is not clearly established in the second circuit. See: Russell v. Scully, 15 F. 3d 219 (2nd Cir. 1993).

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Related legal case

Russell v. Scully

Russell v. Scully, 15 F.3d 219 (2nd Cir. 06/04/1993)


[2] Docket No. 92-2057

[4] decided: June 4, 1993.


[6] Appeal from a decision of the United States District Court for the Southern District of New York (Robert W. Sweet, Judge) denying a motion for summary judgment on the grounds of qualified immunity. Reversed. Opinion of January 3,.

[7] MARTHA O. SHOEMAKER, Assistant Attorney General, New York, New York (Robert Abrams, Attorney General of the State of New York, New York, New York, of counsel), for Defendant-Appellant Wilbur Wright.

[8] MICHAEL E. SALZMAN, New York, New York (Padraig A. O'Riordain, Flavio Cumpiano Alfonso, Hughes Hubbard & Reed, New York, New York, of counsel), for Plaintiff-Appellee.

[9] Before: Van Graafeiland, Winter and Mahoney, Circuit Judges.

[10] Author: Winter

[11] WINTER, Circuit Judge :

[12] Wilbur Wright appeals from Judge Sweet's denial of his motion for summary judgment. The motion was directed at Jerome Russell's complaint, brought under 42 U.S.C. § 1983 (1988), that Wright violated Russell's Fifth and Fourteenth Amendment rights. Wright, a hearing officer at the Green Haven Correctional Facility, found Russell guilty of assault and violent conduct. In reaching this Conclusion, Wright failed to assess independently the credibility of confidential sources implicating Russell. This appeal invites us to decide whether a constitutional right to such an assessment was clearly established at the time of the hearing. We decline the invitation, however, because Russell's confinement was proper as an administrative measure, and he suffered no violation of constitutional rights.

[13] This action arises from an October 29, 1989 assault on Larry Monroe, an inmate at the Green Haven Correctional Facility. While investigating the assault, Sargeant Bobbie Jo LaBoy spoke to most of the inmates in the cellblock, including the victim and three confidential informants. All three informants identified Russell as one of Monroe's assailants. Fearing for their safety, the witnesses asked LaBoy to keep their identities confidential. LaBoy wrote a misbehavior report based on these conversations and charged Russell with violent conduct, assault, and property damage. Her report also indicated that inmates threatened a "blood bath" unless "the situation was rectified" by Russell's punishment. Pending a hearing, Russell was placed in administrative confinement in the Special Housing Unit.

[14] On November 15, 1989, Captain Wilbur Wright presided over Russell's disciplinary hearing. Russell testified in his own defense and called two other inmates to corroborate his testimony. Russell also requested that Monroe, the victim of the assault, be called as a witness. Upon taking the stand, however, Monroe refused to answer any questions. Finally, Russell requested that the three confidential inmate-informers be called to testify. Wright refused this request, but questioned Sargeant LaBoy about the reliability of the confidential sources and the extent of her past experiences with the informants. LaBoy answered that she had dealt with one informant for a year, another for two years, the third for nine years, and that each had proven extremely reliable. There is evidence that Wright knew from prior experience that LaBoy's confidential sources generally provided reliable information.

[15] After the hearing, Wright found Russell innocent of property damage but guilty of assault and violent conduct, and imposed a sentence of 180 days in the Special Housing Unit, and loss of certain privileges. Russell administratively appealed this sentence on the grounds that Wright did not allow him to call certain witnesses and failed to conduct an independent in camera assessment of the confidential informants' reliability. This administrative appeal was successful, the disciplinary record expunged, and a second hearing ordered to be held within seven days.

[16] Captain McGinnis held the second hearing on February 12 and 14, 1990. LaBoy was not allowed to testify about the confidential informants in Russell's presence. Instead, McGinnis heard and recorded LaBoy's testimony and later informed Russell of the substance of her testimony. McGinnis found Russell guilty of assault and violent conduct. Russell again successfully appealed on the grounds that the hearing officer committed procedural error. No third hearing was ordered, and Russell was returned to a general population cell.

[17] Russell thereafter filed this action, alleging that, by imposing sentence without independently assessing the credibility of the confidential informants, Wright had violated Russell's Fifth and Fourteenth Amendment rights. Wright moved for summary judgment on the ground that he enjoyed qualified immunity. Judge Sweet denied the motion, holding that the failure to assess independently the credibility and reliability of informants breached a clearly established due process right and that the defense of qualified immunity was therefore inapplicable. This appeal followed.

[18] Both parties argue that the instant matter turns on the question of whether or not prisoners in 1989 had a clearly established right to an independent examination of the credibility of confidential informants. We need not decide this question, however, because he was subject only to a valid administrative confinement pending his hearing and appeal and suffered no deprivation of a protected liberty interest.

[19] Hewitt v. Helms, 459 U.S. 460, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983), held that the Due Process Clause does not create "an interest in being confined to a general population cell, rather than the more austere and restrictive administrative segregation quarters." Id. at 466-67. Noting that "lawfully incarcerated persons retain only a narrow range of protected liberty interests," id. at 467, the Court held that the Due Process Clause alone does not protect prisoners from even a grievous change "in conditions of confinement." Id. at 468. Moreover, the Court stated that "administrative segregation is the sort of confinement that inmates should reasonably anticipate receiving at some point" because it is necessarily employed "to protect [a] prisoner's safety, to protect other inmates from a particular prisoner, to break up potentially disruptive groups of inmates, or simply to await later classification or transfer." Id. Many of these goals were served by the confinement at issue in this case. In short, Russell's transfer "to less amenable and more restrictive [administrative] quarters for nonpunitive reasons" did not violate rights established under federal due process. Id.

[20] Nevertheless, New York statutes or regulations may create a right to confinement in a general population cell that is then protected by the Due Process Clause. See Wolff v. McDonnell, 418 U.S. 539, 557, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974) (finding federally protected state-created right to good-time credits, although the federal Constitution did not create a similar right independent of state law). This, however, is not the case here. New York's regulatory scheme allows for Russell's confinement: (1) from the charge to the hearing, and (2) from the hearing to the appeal. It is beyond dispute that the prison regulations authorized Russell's prehearing administrative confinement to preserve order and to protect the safety of various prisoners. An investigating officer had spoken to three witnesses who identified him as Monroe's assailant. There was thus good reason to believe the safety of Russell and other inmates would be more secure if Russell was in administrative confinement pending a hearing. 7 N.Y.C.R.R. §§ 301.2-301.5. Moreover, prison regulations also allowed inmates to be kept in special housing units "as a result of a hearing." Id. at 301.4(a). Russell's confinement pending appeal is such a "result of a hearing" and qualifies as administrative confinement. New York did not, nor was it required to, give Russell the right to avoid administrative confinement pending his appeal. See Hewitt, 459 U.S. at 467.

[21] Finally, an inmate is not deprived of due process where an administrative appeal has cured a hearing's procedural defects. See Young v. Hoffman, 970 F.2d 1154, 1156 (2d Cir. 1992) (per curiam); Williams v. Tavormina, No. 89-1247T, (W.D.N.Y. Aug. 28, 1992) (due process was not violated when an appeal corrected a disciplinary hearing's errors).

[22] We therefore reverse.

[23] Disposition

[24] Reversed