Brown v. Frey, s. 88-2643

• Citation: 889 F.2d 159
• Decision Date: 13 December 1989
• Docket Number: 88-2736,Nos. 88-2643,s. 88-2643
• Parties: 29 Fed. R. Evid. Serv. 118 John William BROWN, Appellee, v. Gerard FREY, Larry Trickey, Appellants, Ron Kennedy, John Bain, J. Shanklin, Walter Fisher, Christie Lynch, Bernice Trickey, Appellants. John William BROWN, Appellant, v. Gerard FREY, Larry Trickey, Ron Kennedy, Appellees, John Bain, J. Shanklin, Walter Fisher, Christie Lynch, Bernice Trickey, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 159

889 F.2d 159

29 Fed. R. Evid. Serv. 118

John William BROWN, Appellee, v. Gerard FREY, Larry Trickey, Appellants, Ron Kennedy, John Bain, J. Shanklin, Walter Fisher, Christie

Lynch, Bernice Trickey, Appellants.

John William BROWN, Appellant, v. Gerard FREY, Larry Trickey, Ron Kennedy, Appellees, John Bain, J. Shanklin, Walter Fisher, Christie Lynch, Bernice Trickey, Appellees.

Nos. 88-2643, 88-2736.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 13, 1989.

Decided Nov. 7, 1989.

Rehearing and Rehearing En Banc Denied Dec. 13, 1989.

Paul M. Rauschenbach, Jefferson City, Mo., for appellants.

Kathleen L. Pine, St. Louis, Mo., for appellee.

Before LAY, Chief Judge, and BOWMAN and MAGILL, Circuit Judges.

MAGILL, Circuit Judge.

John Brown (Brown), an inmate at the Missouri Eastern Correctional Center (MECC), sued various employees of MECC under 42 U.S.C. Sec. 1983 (1982), alleging that the defendants deprived him of numerous constitutional rights including his right: (1) to call witnesses "and/or" counsel substitute at various disciplinary hearings; (2) to receive a hearing "within three working days" of confinement in administrative segregation; (3) to obtain access to the courts; (4) to obtain a fair and impartial disciplinary hearing; and (5) to receive an "adequate investigation" surrounding charges he made improper sexual gestures towards a ten-year-old girl in the prison visiting room. The district court granted defendants' motion for summary judgment on Brown's claim that defendants denied his right of access to the courts and granted defendants' motion for a directed verdict on Brown's claims that defendants abridged his right to a fair and impartial hearing and his right to an adequate investigation. The jury found defendants Lt. Col. Gerard Frey (Frey), Superintendent of MECC, Larry Trickey (L. Trickey), Assistant Superintendent of MECC, and Bernice Trickey (B. Trickey), a caseworker at MECC, liable under Sec. 1983 for depriving Brown of his right to call witnesses "and/or" seek counsel substitute for his disciplinary hearings (hereinafter referred to as "right to witnesses 'and/or' counsel substitute"). The jury also found defendants Frey and Christie Lynch (Lynch), unit manager in Housing Unit 1, liable under Sec. 1983 for violating Brown's right to a hearing within three working days following his confinement in administrative segregation (hereinafter referred to as "right to a hearing within three working days following confinement").

The questions presented by defendants' appeal include: (1) whether the district court erred in refusing to grant defendants' motion for directed verdict based on its conclusion that neither Frey nor Lynch were entitled to qualified immunity on Brown's claim that they deprived him of his right to a hearing within three working days following confinement; and (2) whether the district court erred in refusing to grant defendants' motion for directed verdict based on its conclusion that Frey, B. Trickey and L. Trickey were not entitled to qualified immunity on Brown's claim that they deprived him of his right to witnesses "and/or" counsel substitute. We hold that because defendants were entitled to qualified immunity on both claims, the district court erred in refusing to direct a verdict in favor of defendants. Therefore, the district court's judgment is reversed. ¹

Brown's cross-appeal presents four additional issues: (1) whether the district court erred in granting defendants' motion for summary judgment on Brown's claim that defendants denied him right of access to the courts by threats of transfer to another facility; (2) whether the district court erred in granting defendants' motion for a directed verdict on Brown's claim he was denied a fair and impartial disciplinary hearing because of the marital relationship of two hearing officers; (3) whether the district court erred in granting defendants' motion for a directed verdict on Brown's claim that defendants failed to adequately investigate charges of insulting behavior toward a ten-year-old girl in the prison visiting room before finding Brown guilty of the conduct violation; and (4) whether the district court erred in refusing to allow Brown to cross-examine Captain Ron Kennedy (Captain Kennedy), investigator at MECC, on his prior perjury conviction. We reject Brown's arguments on his cross-appeal and affirm the district court.

I.

Brown was incarcerated at MECC from January 30, 1983 to March 6, 1985. He was then transferred to the Missouri State Penitentiary after MECC officials found him guilty of a conduct violation for insulting behavior. While incarcerated at MECC, prison officials charged Brown with numerous conduct violations. Only five of the violations provide the basis for Brown's Sec. 1983 suit and the resulting appeal and cross-appeal.

On May 6, 1984, Brown was charged with a conduct violation for destruction of state property when he allegedly damaged a prison window screen. Following a hearing on May 9, 1984, at which the statements of two witnesses taken prior to the hearing were considered, the classification team found Brown guilty of the violation and ordered him to pay $2.50 to repair the screen. B. Trickey was a member of that team. L. Trickey, in his capacity as Assistant Superintendent of Programs, received the recommendation and, finding it insufficient, supplemented Brown's punishment with five days room restriction. B. Trickey and L. Trickey were married at all times during Brown's confinement. In reviewing L. Trickey's recommendation, Frey approved the punishment and issued an order to that effect. There is no claim that defendants violated Brown's constitutional rights in failing to call witnesses at this disciplinary hearing. Furthermore, although the evidence in the record supporting Brown's claim that he requested counsel substitute at this hearing is weak, we assume that he did in fact make that request when filling out the witness request form. ²

On February 7, 1985, Brown received a conduct violation when a prison official found Brown's clothes in another inmate's laundry bag. On February 13, 1985, the classification team found Brown guilty and ordered him to perform an extra twenty hours of duty in the housing unit. Defendants called Brown's only requested witness to testify at his hearing. Brown indicated his desire to be represented by counsel substitute by completing the witness request form.

On February 21, 1985, Brown received another conduct violation for giving false information to prison officials. ³ Brown claimed that Captain Kennedy stated Brown could leave his personal property in his room while he was in administrative segregation. After Kennedy stated that he made no such statement, Brown was charged with the conduct violation. Brown then informed prison officials that he was not told personally by Captain Kennedy but by an inmate, Donnie Willen, that Captain Kennedy had told another prison official, Margaret Puff, who was stationed in a housing unit different from Brown's, that Brown could keep his personal property in his room. Brown requested that Puff and inmate Willen appear as witnesses at his disciplinary hearing. The classification team refused to call either witness. Defendants informed Brown that they would not call Puff because placing a guard in the position of testifying against another guard (Captain Kennedy) would undermine prison authority. At trial, B. Trickey elaborated on the reasons neither Puff nor Willen were called. She testified that the conduct violation as written did not involve either Willen or Puff and, because Puff worked in a different housing unit, she could not possibly have had anything to do with Brown's property.

Brown also claims that defendants abridged his right to seek counsel substitute to help him at this conduct violation hearing. Brown testified defendants took this action because they believed that since he was the prison law clerk, he could defend himself.

B. Trickey sat on the classification team which found Brown guilty of the false information violation. L. Trickey sat as a member of the Adjustment Committee which approved the recommendation. Superintendent Frey subsequently approved the recommendations of both committees.

On February 21, 1985, a prison official charged Brown with a conduct violation for having contraband (an unauthorized typewriter) in his cell. Brown requested three prison staff witnesses at his February 26, 1985 hearing to testify on his behalf: Major Paul Delo, Lieutenant Fred Arflack, and caseworker Rick Jones. The classification team rejected all three witnesses informing Brown that they did not want to undermine prison authority by having a guard testify against another guard (Delo and Jones against Officer J. Shanklin, the reporting employee) and that Lieutenant Arflack would be present at the hearing anyway and refused to offer any testimony helpful to Brown's case. At trial, B. Trickey testified that in addition to the reasons given Brown, Rick Jones was not called because he no longer worked with the Missouri Department of Corrections and Major Delo was not called because the disciplinary bodies already had his written statement. Even though Brown did not name counsel substitute on his witness request form, he testified he requested counsel substitute to assist him at his hearing.

B. Trickey was on the classification team which recommended Brown be punished for the contraband violation. L. Trickey was a member of the Adjustment Committee which approved the recommendation. Superintendent Frey ultimately approved and ordered the punishment.

On March 4, 1985, Brown received his final conduct violation as an inmate at MECC resulting in his transfer to the Missouri State Penitentiary. He received a violation for insulting behavior. This violation stemmed from allegations that over a six-month period Brown, who had been incarcerated for rape and sodomy,...