Cato v. Rushen

• Citation: 824 F.2d 703
• Decision Date: 14 August 1987
• Docket Number: No. 86-1696,86-1696
• Parties: James R. CATO, Plaintiff-Appellant, v. Ruth RUSHEN, Warden G. Sumner, Assistant Warden Williamson, O. Nyberg, Assistant Warden, Mr. Kraener, Mrs. Rodriguez, Mr. Tabasck, Captain Calderon, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 703

824 F.2d 703

James R. CATO, Plaintiff-Appellant, v. Ruth RUSHEN, Warden G. Sumner, Assistant Warden Williamson O. Nyberg, Assistant Warden, Mr. Kraener, Mrs Rodriguez, Mr. Tabasck, Captain Calderon, Defendants-Appellees.

No. 86-1696.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 11, 1987.

Decided Aug. 6, 1987.

As Amended Aug. 14, 1987.

Peter A. Leeming, San Francisco, Cal., for plaintiff-appellant.

Kristofer Jorstad, Bruce M. Slavin, San Francisco, Cal., for defendants-appellees.

Appeal from the United States District Court for the Northern District of California.

Before SNEED, ALARCON and CANBY, Circuit Judges.

SNEED, Circuit Judge:

James R. Cato, a California state prisoner at the time of this suit, appeals the

district court's summary judgment in favor of Ruth Rushen, Director of California's Department of Corrections, and fourteen other defendants employed at San Quentin state prison. Cato's suit, brought under 42 U.S.C. Sec. 1983, alleged that his placement in administrative segregation violated his procedural due process rights because it was based on uncorroborated hearsay statements of a confidential informant. We reverse and remand.

I. FACTS AND PROCEEDINGS BELOW

On March 9, 1981, a confidential informant told Correctional Captain Arthur Calderon of a plan to take hostages to effect escape from the San Quentin state prison. Cato, Johnson, and five other inmates were implicated by the informant in the plot. The informant, who worked in the prison laboratory, said that Johnson asked him to make seven knives out of metal stock to be provided by appellant Cato, who worked in the industries area. The informant asserted that Johnson did not specifically tell him that Cato knew of the plot; Johnson, the informant asserted, merely identified Cato as the source of the metal stock. Cato and Johnson were immediately placed in administrative segregation. ¹

At that point Cato was told of the pending investigation and certain polygraph tests were initiated. The confidential informant submitted to a polygraph test, which was inconclusive with respect to Cato's involvement. Johnson, who denied any knowledge of the plan, in his polygraph test tested deceptive with respect to his denial of his involvement in the plot, and inconclusive with respect to his denial of knowledge of Cato's involvement. Cato's requests for a polygraph test were denied. His request for an investigative employee to assist him in defending the charges was similarly denied.

On April 3, 1981, Program Administrator Martin conducted the plaintiff's disciplinary hearing. Cato was found guilty of an attempt to take hostages, and this finding was upheld on administrative appeal. Martinez, Assistant Director of Appeals Services, subsequently rescinded this disciplinary action and granted Cato a rehearing based on the failure to assign the plaintiff an investigative employee. On August 28, 1981, Cato's disciplinary rehearing was held before Program Administrator O'Shaughnessy, Correctional Counselor Kernan, and Correctional Counselor Fehrenkamp. The plaintiff was once again found guilty.

The tide turned after Cato filed a petition for a writ of habeas corpus in state court. At that point it was stipulated that the disciplinary action would be vacated and that correctional officers could refile the charges if Cato were permitted to take a polygraph examination. Pursuant to the stipulation Cato submitted to a polygraph test, which supported his claim that he was not involved in the plot to take hostages. On the basis of the test results, Cato was released into the general population on February 23, 1982.

Cato brought this 42 U.S.C. Sec. 1983 action, alleging a deprivation of liberty without procedural due process. On November 17, 1985, the defendants filed a motion for summary judgment, which was granted on February 4, 1986. The court ruled, inter alia, that the disciplinary committee's finding that the plaintiff had violated a disciplinary rule was supported by a sufficient quantum of evidence. Excerpt of Record at 356. The plaintiff timely filed a notice of appeal.

II. DISCUSSION

In Superintendent v. Hill, 472 U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985), the Supreme Court held that the findings of a prison disciplinary board that result in the loss of a protected liberty interest must be supported by "some evidence in the record." Id. at 454, 105 S.Ct. at 2773. The defendants concede that the State of California has created a liberty interest, in not being subject to administrative segregation, of which Cato was deprived. See Toussaint v. McCarthy, 801 F.2d 1080, 1098 (9th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 2462, 95 L.Ed.2d 871 (1987). The State, in depriving the plaintiff of that liberty interest, must do so on the basis of "some evidence in the record." Otherwise procedural due process under the circumstances of this case is not satisfied. Hill, 472 U.S. at 455, 105 S.Ct. at 2774. Cato argues that the "some evidence" standard requires evidence possessing some indication of reliability, which he contends was not present in this case.

Before addressing this contention, we wish to point out that at oral argument, Cato's counsel conceded that the initial confinement of a prisoner to administrative segregation need not meet the Hill standard. The reason is obvious. As the Court in Hill recognized, the prison atmosphere is highly charged, and prison officials must be able to act swiftly on the basis of little information to avert dangerous situations. Id. at 456, 105 S.Ct. at 2774. Thus, it is not unreasonable for prison administrators to confine inmates to greater security regions on the basis of a rumor pending an investigation into the accuracy of the rumor. However, after prison officials have had an...