Brown v. Braxton

• Decision Date: 01 July 2004
• Docket Number: No. 03-6763.,03-6763.
• Citation: 373 F.3d 501
• Parties: Demarcus M. BROWN, Petitioner-Appellant, v. Daniel BRAXTON, Warden, Red Onion State Prison, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

373 F.3d 501

Demarcus M. BROWN, Petitioner-Appellant, v. Daniel BRAXTON, Warden, Red Onion State Prison, Respondent-Appellee.

No. 03-6763.

United States Court of Appeals, Fourth Circuit.

Argued: May 4, 2004.

Decided: July 1, 2004.

ARGUED: Charles E. Luftig, Third Year Law Student, Appellate Litigation Clinic, University Of Virginia School of Law, Charlottesville, Virginia, for Appellant. Susan Foster Barr, Assistant Attorney General, Office of the Attorney General, Richmond, Virginia, for Appellee. ON BRIEF: Neal L. Walters, Charlottesville, Virginia, for Appellant. Jerry Walter Kilgore, Attorney General of Virginia, Richmond, Virginia, for Appellee.

Before WILKINSON, KING, and GREGORY, Circuit Judges.

Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Judge KING and Judge GREGORY joined.

OPINION

WILKINSON, Circuit Judge:

DeMarcus M. Brown, an inmate incarcerated at Red Onion State Prison in Pound, Virginia, was found guilty at a prison disciplinary hearing of assaulting a fellow inmate, Johnnie Lee Beavers. The officer in charge of the hearing denied Brown's request to call Beavers as a witness, but allowed Brown to submit Beavers' written statement in lieu of live testimony. Brown claims that his inability to present Beavers as a live witness denied him due process of law, but we disagree. Prison officials have the discretion, indeed the duty, to protect the inmates committed to their care. Among other concerns, prison authorities justifiably feared reprisal against Beavers in the event that his testimony was not as Brown hoped, and they were not constitutionally required to expose Beavers to the threat of a second beating. We therefore affirm the judgment.

I.

The State of Virginia classifies its correctional facilities at six different levels. Level 1 correctional units provide dormitory-style living for minimum-security inmates convicted of relatively minor offenses. By contrast, Level 5 and 6 prisons house maximum-security inmates convicted of much more serious offenses. Red Onion State Prison, where Brown and Beavers are incarcerated, is Virginia's only Level 6 facility. It provides maximum-security celled living for inmates who have severe behavioral problems; who are serving extremely long sentences; or who present escape risks.

On September 9, 2000, Beavers had completed his duties as an inmate recreation worker and was returning to his cell. When Correctional Officer Samie Fleming opened Beavers' cell door, Brown followed Beavers inside. Fleming heard slapping and hollering from inside the cell, so he closed the cell door and reported an emergency on the cell intercom. Lieutenant James Robinson, Sergeants Gregory Deel and Dwight Moore, and several other correctional officers responded immediately to Fleming's call. According to Lieutenant Robinson, he saw Brown and Beavers fighting on the bottom bunk of the cell. When Brown and Beavers ignored repeated orders to stop fighting, the officers entered the cell and separated the pair. Both Brown and Beavers were then examined by the prison's medical staff.

According to Lieutenant Robinson's Incident Report, signed and dated the day of the fight, the prison nurses who examined Beavers found that his left back tooth had been chipped during the altercation and his left wrist had been cut. Beavers also told the nurses, "I was hit with an adapter." As for Brown, he sustained a bite mark on his right forearm and a few small cuts and abrasions. Brown was later placed in administrative detention, while Lieutenant Kelly Chris investigated the altercation.

On September 18, 2000, Brown was served with a copy of Lieutenant Chris's Disciplinary Offense Report, which stated that Brown was being charged with aggravated assault. Upon being served, Brown requested that Beavers appear as a witness on his behalf. Then on September 22, Beavers submitted to prison officials a written statement that said simply: "At no time did inmate D. Brown assault me with his adapter or in any other way."

On September 25, 2000, Inmate Hearing Officer Brett Edmonds conducted a disciplinary hearing on Brown's assault charge. Lieutenant Chris testified about Fleming's report of the fight, as well as the nurses' report on Beavers' injuries and Beavers' statement to the nurses that he had been hit with an adapter. Chris also testified that during his investigation he had interviewed Beavers. According to Chris, Beavers said that he and Brown had argued prior to the fight, and that later Brown had run into Beavers' cell and attacked Beavers with an adapter wrapped in a sock. As Chris had noted in his Disciplinary Offense Report, an adapter with Brown's name and inmate number was found in Beavers' cell following the fight. Finally, Chris testified that he had also interviewed Brown, who said that he was in Beavers' cell with the permission of Beavers' cellmate to watch television. However, Brown denied making such statements to Chris (and Beavers' cellmate denied knowing Brown, much less giving him permission to watch his television).

Edmonds then gave Brown an opportunity to present evidence in his defense. Brown requested that Beavers be called as a live witness, but Edmonds denied Brown's request. Edmonds then read Beavers' written statement into the record. Accordingly, Brown argued that he should not be found guilty of assault since Beavers himself denied being assaulted in any way. When Edmonds asked Brown whether he had anything else to present, Brown said no; he presented no other witnesses or arguments.

Edmonds proceeded to find Brown guilty of aggravated assault, sentencing him to the loss of 180 days of good conduct time. According to Edmonds' written findings, (1) Brown had been identified by Officer Fleming as the inmate who had entered Beavers' cell; (2) Beavers had sustained injuries consistent with fighting; (3) Beavers had stated to nurses immediately following the fight that he was attacked with an adapter; (4) Brown's adapter was found in Beavers' cell after the fight; and (5) when Beavers was subsequently interviewed by Lieutenant Chris, Beavers confirmed that Brown had assaulted him with an adapter.

Brown presented a host of claims in a state habeas petition to the Supreme Court of Virginia. That court dismissed his petition on November 8, 2001. Brown then reiterated his claims in a habeas petition filed in the United States District Court for the Western District of Virginia, which also dismissed Brown's petition on March 19, 2003. We issued a certificate of appealability on October 24, 2003 to consider whether Brown's right to due process was violated by Edmonds' refusal to call Beavers as a witness.

II.

Brown challenges the constitutionality of Virginia Department of Corrections Division Operating Procedure ("DOP") 861.14(B)(1). Brown alleges that Edmonds relied on DOP 861.14(B)(1) in denying his request to call Beavers as a witness. DOP 861.14(B)(1) provides that in all disciplinary hearings for certain types of charged offenses

[t]he IHO [Inmate Hearing Officer] shall examine each witness' statement for relevance and repetitiveness. A witness' written statement shall not be used in lieu of the witness' testimony at a Disciplinary Hearing, except at Level 5 and 6 institutions and segregation units; the statement from an inmate witness is sufficient. Staff witnesses requested by the inmate should appear at the Disciplinary Hearing at Level 5 and 6 institutions and in segregation units.

DOP 861.14(B)(1) thus regulates the use of witness testimony in disciplinary hearings, and it draws distinctions based upon the type of institution at which the accused inmate is housed, the type of witness sought by the accused inmate, and the type of testimony to be offered by the witness. Specifically, DOP 861.14(B)(1) allows inmates at all Virginia correctional institutions an unqualified right to call staff witnesses at disciplinary hearings. However, only inmates at Level 1, 2, 3 and 4 facilities are guaranteed the right to call willing fellow inmates as live witnesses. Prisoners at Level 5 and 6 facilities who wish to present testimony from their fellow inmates may be required to submit written statements in lieu of live testimony.

A.

An analysis of the constitutionality of DOP 861.14(B)(1) must begin with the Supreme Court's seminal case on the due process rights of prisoners, Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). In Wolff, the Supreme Court considered how prison disciplinary hearings must be structured in order to comport with the demands of the Due Process Clause of the Fourteenth Amendment. The Court was clear that inmates retain rights under the Due Process Clause, but that their rights are "subject to restrictions imposed by the nature of the regime to which they have been lawfully committed." Wolff, 418 U.S. at 556, 94 S.Ct. 2963. Prison disciplinary hearings, unlike criminal prosecutions or parole revocation hearings, "take place in a closed, tightly controlled environment peopled by those who have chosen to violate the criminal law...." Id. at 561, 94 S.Ct. 2963. In many prisons, the inmates can be dangerous to each other, and they are confined to a setting that is often rife with tension between inmates, guards, and prison officials. Id. at 561-62, 94 S.Ct. 2963. As the Court recognized, "[i]t is against this background that disciplinary proceedings must be structured by prison authorities; and it is against this background that we must make our constitutional judgments...." Id. at 562, 94 S.Ct. 2963.

In defining the balance between inmates' due process interests and prison authorities' penological needs, the Wolff Court drew some firm lines. On the one hand, inmates are entitled to advance written notice of the claimed violation, as well as a written statement concerning the evidence relied upon and the reasons for the disciplinary action taken. Id. at 563, 94 S.Ct. 2963. On the other hand,...