Gibbons v. Higgins, 94-2636

• Decision Date: 20 December 1995
• Docket Number: No. 94-2636,94-2636
• Citation: 73 F.3d 364
• Parties: NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit. Troy R. GIBBONS, Plaintiff-Appellant, v. J. HIGGINS, Conduct Adjustment Board Chairman, Officer J. Melly, Scott Roberts, Conduct Adjustment Board Members, Defendants-Appellees. 2
• Court: U.S. Court of Appeals — Seventh Circuit

Page 364

73 F.3d 364

NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.

Troy R. GIBBONS, Plaintiff-Appellant, v. J. HIGGINS, Conduct Adjustment Board Chairman, Officer J.

Melly, Scott Roberts, Conduct Adjustment Board

Members, Defendants-Appellees.

²

No. 94-2636.

United States Court of Appeals, Seventh Circuit.

Submitted Oct. 18, 1995. ¹

Decided Dec. 20, 1995.

Before POSNER, Chief Judge, and CUMMINGS and BAUER, Circuit Judges.

ORDER

During a shakedown of cells and strip search of inmates in the disciplinary segregation unit of an Indiana prison, plaintiff Troy R. Gibbons, standing naked in his cell, refused an order to submit to a visual body cavity (VBC) search by bending over and spreading his buttocks, insisting instead that he should be permitted to simply "squat and cough," as in previous VBC searches. The prison's quick response team (QRT) responded with several blasts from a high-powered water hose, causing Gibbons to hold up his mattress as a shield. After a second refusal and several more blasts, Gibbons was removed from his cell and placed in handcuffs and shackles. He later pled guilty before the prison Conduct Adjustment Board (CAB) to disobeying an order, and received a written reprimand. At the same time, he contested but was found guilty of a more serious charge, "physically resisting staff," and the CAB imposed a penalty of one-year disciplinary segregation.

After exhausting his administrative remedies, Gibbons filed this civil rights suit under 42 U.S.C. Sec. 1983 against the CAB members, seeking injunctive relief, "declaratory relief in the form of damages," and expungement of the disciplinary record. The district court later treated the complaint as a petition for a writ of habeas corpus. Gibbons alleged procedural due process violations stemming from the CAB's: (1) refusal to view, or to give Gibbons access to, a videotape of the strip search and cell extraction; (2) refusal to call any member of the quick response team as a witness; and (3) refusal to provide Gibbons with copies of similar "resisting staff" conduct reports given that same day to 27 other inmates on the unit.

The district court found a due process violation only with regard to the videotape. ³ It instructed the prison officials to provide either a new hearing prior to which Gibbons would be given access to the videotape, or in the alternative, proof that the due process violation was harmless because the videotape was not exculpatory. The court invited respondent ⁴ to submit the videotape for in camera review. Respondent filed an affidavit from the correctional officer in charge of the cell extraction, Lt. Michael J. Watson, who stated that he had watched the videotape and had concluded that it was not helpful to Gibbons. Watson stated:

The videotape does not show whether Gibbons was naked or clothed at the outset of the order to submit to a strip search. This is due to the angle of the camera. The audio portion of this videotape does not substantiate claims made by Offender Gibbons that he complied with orders to submit to a search.

The district court accepted that explanation. It noted that the CAB had still failed to explain how Gibbons resisted, but concluded that Gibbons did in fact resist when he refused the order to bend over, and when he held the mattress up as a shield.

The district court went on to deny Gibbons's petition to proceed IFP as to the remaining civil rights damages claim, finding the action frivolous pursuant to 28 U.S.C. Sec. 1915(d), because in the habeas action Gibbons had been unsuccessful in seeking expungement of the disciplinary findings, later citing Heck v. Humphrey, 114 S.Ct. 2364 (1994). ⁵ The court dismissed the damages action with prejudice.

Discussion

As defendants concede, the district court was wrong to construe this procedural due process challenge seeking a new hearing as a habeas corpus petition. See Heck v. Humphrey, 114 S.Ct. at 2372; Graham v. Broglin, 922 F.2d 379, 381 (7th Cir.1991); Viens v. Daniels, 871 F.2d 1328, 1333 (7th Cir.1989). There is no question that Gibbons exhausted his administrative remedies. Thus, the mischaracterization of the complaint as a habeas corpus petition does not affect our discussion with regard to the procedural due process claim, the merits of which the district court fully addressed. We first review the procedural due process arguments.

The refusal to view, or to permit Gibbons access to, the videotape presents serious due process concerns. ⁶ Gibbons has the right to marshal facts in his defense and present witnesses and documentary evidence at the hearing, see Superintendent v. Hill, 472 U.S. 445, 454 (1985); Wolff v. McDonnell, 418 U.S. 539, 563-67 (1974); Rasheed-Bey v. Duckworth, 969 F.2d 357, 361 (7th Cir.1992); Mendoza v. Miller, 779 F.2d 1287 (7th Cir.1985); Chavis v. Rowe, 643 F.2d 1281, 1287 (7th Cir.1981), and the CAB cannot arbitrarily refuse to consider exculpatory evidence. Whitford v. Captain Boglino, No. 93-2660 (7th Cir. Aug. 4, 1995) (per curiam), 1995 WL 459230 at * 8; Viens v. Daniels, 871 F.2d 1328, 1336 n. 2 (7th Cir.1989). A videotape of a strip search, an attempted visual body cavity search, and a cell extraction using a high-powered water hose is potentially of great relevance when an inmate is charged with physically resisting staff. See, e.g., Barnes v. Fauver, 1993 U.S.Dist. Lexis 8453 (D.N.J. June 17, 1993) (permitting inmate to proceed with due process claim where prison hearing officer had refused to examine videotapes on basis that it was sufficient to examine only the corrections officers' incident reports; "This response is inadequate. Barnes's right to due process include his right to produce evidence at disciplinary hearings...."), aff'd. without opinion, 27 F.3d 555 (3d Cir.1994), 1994 U.S.App. Lexis 15655; Malik v. Tanner, 697 F.Supp. 1294, 1300 n. 7 (S.D.N.Y.1988) (if inmate had requested videotape of cell block prior to hearing, it would have been a violation of due process to refuse to consider the videotape); Muhammad v. Butler, 655 F.Supp. 1470 (D.N.J.1987) (prisoner not allowed to hear tape recording of telephone call in which he allegedly planned an escape; reasons for denying access to the evidence were unpersuasive; not enough to have summary of alleged contents of tape).

The CAB's explanation for the refusal of Gibbons's request ("not listed on report and will not be used") ⁷ is inadequate. While a disciplinary board need not give a reason for the denial of an inmate's request for witnesses or potentially exculpatory evidence contemporaneously with the hearing, it may later be required to provide reasons, and demonstrate that the "reasons are logically related to 'institutional safety or correctional goals.' " Ponte v. Real, 471 U.S. 491, 497 (1985). It is the prison's burden--not the inmate's--to prove the denial was not arbitrary or capricious. Ponte v. Real, 471 U.S. at 499. Here, there is no suggestion that the videotape could not be viewed by Gibbons because of prison security concerns, or any other correctional goals. Nor was any other acceptable reason offered. See Whitford v. Boglino, No. 93-2660 (7th Cir. Aug. 4, 1995), 1995 U.S.App. Lexis 20693 at * 24-25 ("after accepting affidavits containing exculpatory evidence, the committee must state its reasons for rejecting the exculpatory evidence"); Chavis v. Rowe, 643 F.2d 1281, 1287 (finding that a statement "we accept the reporting officer[']s charges" is a deficient explanation of its decision).

Nor did the district court's order requiring respondent to prove why the due process violation was harmless result in a supplemental statement from the CAB that could be considered an adequate explanation for the denial. Instead, the court was provided only with Lt. Watson's affidavit asserting his opinion that the videotape was not helpful, which is not a substitute for an explanation from the CAB. See Young v. Kann, 926 F.2d 1396 (3d Cir.1991) (due process violation where the disciplinary hearing officer relied on the oral summary, given outside of the inmate's presence, of the contents of a letter in which the inmate purportedly threatened his cellmate; the hearing officer did not himself review the letter, and refused to produce it at the inmate's request).

The district court here also did not view the tape in camera, although it had earlier invited the prison officials to provide the evidence for the court's review. See Campbell v. Henman, 931 F.2d 1212, 1215 (7th Cir.1991) (reversing district court finding that inmates were not entitled to in camera review of material that inmates believed would be exculpatory; "Minimum due process requires that the district court conduct an in camera review of the entire investigatory file (not only the material relied on to find guilt) to determine whether or not exculpatory information existed").

This failure to explain why the videotape was excluded is compounded by a disturbing lack of clarity in regard to how Gibbons "physically resisted staff." ⁸ Was it a refusal to strip, a refusal to bend over, a refusal to move up to the bars so he could be cuffed, or the act of holding up a mattress to protect himself from the high-powered water hose? ⁹

When the district court ordered respondent to provide Gibbons with the videotape or establish that it was not exculpatory, Lt. Watson provided his affidavit, which stated that he gave Gibbons a "direct order to submit to a proper strip search and Offender Gibbons refused this order." Presumably this refers to the lesser charge of "disobeying an order," to which Gibbons pled guilty and was given a written reprimand. This is supported by the conduct report itself, which charges Gibbons with refusing an order, and notes that as part of the guilty plea Gibbons stated that he...