Bolden v. Alston, 298

• Decision Date: 28 January 1987
• Docket Number: D,No. 298,298
• Citation: 810 F.2d 353
• Parties: Michael A. BOLDEN, Sr., Plaintiff-Appellee, v. Al ALSTON, Superintendent, Lincoln Correctional Facility, Nathaniel Hayes, Sergeant; and Edward Kirkland, Sergeant, Defendants-Appellants. ocket 86-2219.
• Court: U.S. Court of Appeals — Second Circuit

Page 353

810 F.2d 353

Michael A. BOLDEN, Sr., Plaintiff-Appellee, v. Al ALSTON, Superintendent, Lincoln Correctional Facility Nathaniel Hayes, Sergeant; and Edward Kirkland Sergeant, Defendants-Appellants.

No. 298, Docket 86-2219.

United States Court of Appeals Second Circuit.

Argued Oct. 24, 1986.

Decided Jan. 28, 1987.

Judith A. Gordon, Asst. Atty. Gen., New York City (Robert Abrams, Atty. Gen., Sue Barnett Bohringer, Asst. Atty. Gen., New York City, on brief), for defendants-appellants.

William E. Betz, New York City (Hall, McNicol, Hamilton & Clark, New York City, on brief), for plaintiff-appellee.

Before KAUFMAN, NEWMAN and PRATT, Circuit Judges.

JON O. NEWMAN, Circuit Judge:

This interlocutory appeal, challenging the denial of qualified immunity, concerns the procedural due process rights to which a state inmate is entitled in prison disciplinary proceedings. Three New York prison officials appeal from an order of the District Court for the Eastern District of New York (Mark A. Costantino, Judge) denying their immunity defense and holding them liable for failure to accord Michael Bolden due process of law in two prison hearings. For reasons that follow, we reverse and direct entry of judgment for the defendants.

Background

The prison hearings concerned charges lodged by Sergeant Nathaniel Hayes, an officer at the Lincoln Correctional Facility (Lincoln), against Bolden, then an inmate at Lincoln. On June 16, 1982, as he approached the prison to report to work, Hayes allegedly saw Bolden standing in a below-grade area near a freight elevator and peering out through an opening accessible to the street. Claiming that Bolden's head was raised above the building line, Hayes filed an inmate misbehavior report charging Bolden with violating two prison rules--"out of place" and "abuse of privileges." At approximately 10:00 p.m. that evening Bolden received notice that these charges had been filed and that he was required to appear before the Adjustment Committee at 10:00 a.m. the following day. He was never notified of a right to call witnesses at the Adjustment Committee Proceeding.

The Adjustment Committee was a committee of one--Sergeant Edward Kirkland. ¹ After reading the charges to Bolden and allowing him an opportunity to respond, Kirkland told Bolden he would recommend a Superintendent's Proceeding. Bolden was then "remanded," ² pending the outcome of the Superintendent's Proceeding, to a Special Housing Unit (SHU), a more restrictive form of confinement. The parties dispute whether that confinement was ordered by Kirkland or merely recommended by Kirkland and later adopted by Superintendent Alston. The record is clear, however, that later that day Alston adopted Kirkland's recommendation to convene a Superintendent's Proceeding.

In the five days intervening between the Adjustment Committee Proceeding and the beginning of the Superintendent's Proceeding, Bolden was apprised of various rights accorded him under state and federal law in connection with the latter forum. First, Alston notified him of his state statutory right to choose an employee to assist him in preparing for the Superintendent's Proceeding. Second, Bolden was served with formal charges more than twenty-four hours before the Superintendent's Proceeding convened. Third, Bolden was informed that he was entitled to call witnesses on his behalf "provided that so doing does not jeopardize institutional safety or Correctional goals."

The Superintendent's Proceeding, which convened on June 22 and concluded on June 24, consisted of eight interviews conducted by Alston alone. Afterwards, Alston sustained the "out of place" charge and sentenced Bolden to time served in the SHU and denial of certain privileges. In addition, Alston recommended that Bolden lose twenty days of his "good time" credits. Based on this recommendation, the Time Allowance Committee suspended Bolden's scheduled release date of July 8, 1982; he was ultimately released on July 15, 1982.

While still in custody, Bolden filed suit under 42 U.S.C. Sec. 1983 (1982) against Hayes, Kirkland, and Alston, seeking injunctive relief as well as compensatory and punitive damages. He claimed that the Adjustment Committee and Superintendent's Proceedings violated his rights to due process and equal protection of the law. The state moved for summary judgment based on qualified immunity; Bolden moved for summary judgment on the merits.

Assessing the cross-motions for summary judgment, the District Court found that appellants had deprived Bolden of his liberty without due process of law. The District Judge identified three categories of procedural violations: first, in the Adjustment Committee Proceeding, appellants did not accord Bolden due process rights mandated in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), including twenty-four hours' notice prior to the proceeding and either notification of a qualified right to call witnesses or an explanation why witnesses may not be called; second, in both proceedings appellants failed to follow procedures mandated by state statutes; and third, in the Superintendent's Proceeding, Alston violated Bolden's rights by impermissibly assuming the dual roles of investigator and arbiter. Concluding that these rights had been clearly established by June 1982, the District Judge rejected appellants' defense of official good faith immunity. The District Judge granted summary judgment to Bolden on the issue of liability and directed the parties to submit briefs for a separate determination of injunctive relief and damages.

Hayes, Kirkland, and Alston invoke the collateral order doctrine, Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985), to appeal the adverse ruling on qualified immunity. They contend that, even if they deprived Bolden of some due process rights, they did not contravene clearly established law and are therefore entitled to qualified immunity.

Discussion

At the outset we encounter a jurisdictional problem. This is an interlocutory appeal of a denial of qualified immunity in a case already decided on the merits, at least as to liability. A final judgment has not been entered, however, since the issue of relief remains to be determined. Ordinarily an order denying qualified immunity on undisputed facts is an appealable order, see Mitchell v. Forsyth, supra, though it is not self-evident that an interlocutory appeal should be available to vindicate a defense that, if successful, would spare the defendants at most the burden of defending against determination of appropriate relief, now that liability has already been adjudicated. Even if an interlocutory appeal is normally available in such circumstances, this case presents a further complication: as will subsequently appear, the issue of qualified immunity is inextricably bound up with the merits of at least one of Bolden's claims. Where that relationship exists, we would normally be obliged to dismiss the appeal and thereby permit the merits to be adjudicated in the District Court. See Group Health Inc. v. Blue Cross Ass'n, 793 F.2d 491, 497 (2d Cir.1986). However, since the District Judge has already adjudicated the merits of the liability issue, we can entertain the appeal of the denial of qualified immunity and exercise pendent jurisdiction to review the liability determinations. Cf. San Filippo v. United States Trust Co. of New York, Inc., 737 F.2d 246, 255 (2d Cir.1984), cert denied, 470 U.S. 1035, 105 S.Ct. 1408, 84 L.Ed.2d 797 (1985). In considering the issues before us, it will be helpful to deal separately with each of the three categories of alleged due process violations.

1. Concerning the alleged denial of Wolff rights at the Adjustment Committee Proceeding, appellants first contend that Bolden's entitlement to such rights had not been clearly established by June 1982. They also contend that the 1983 Supreme Court decision in Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), established that Wolff rights are not constitutionally required in connection with interim confinement pending disciplinary proceedings....