Gibbs v. King

• Decision Date: 02 January 1986
• Docket Number: No. 84-3232,84-3232
• Parties: Maurice GIBBS, Plaintiff-Appellant, v. John T. KING, Secretary, Department of Corrections, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1040

779 F.2d 1040

Maurice GIBBS, Plaintiff-Appellant, v. John T. KING, Secretary, Department of Corrections, et al.,

Defendants-Appellees.

No. 84-3232.

United States Court of Appeals, Fifth Circuit.

Jan. 2, 1986.

R. Paul Yetter, Baker & Botts, Houston, Tex. (Court Appointed), for plaintiff-appellant.

J. Marvin Montgomery, Joseph Erwin Kopsa, Asst. Atty. Gen., Baton Rouge, La., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Louisiana.

Before GARZA, POLITZ, and HILL, Circuit Judges.

ROBERT MADDEN HILL, Circuit Judge.

Maurice Gibbs, a prisoner incarcerated in the Louisiana State Penitentiary, brought suit under 42 U.S.C. Sec. 1983 against John King, Secretary of the Louisiana Department of Corrections; Fulton Rabalais, Alvin Whitstine, Joe Lee Norwood, and Johnny Butler, all supervisory employees at the penitentiary; and Richard Alexander and Lee Slan, both prison guards. In a trial before the magistrate, at the close of Gibbs' case the magistrate granted defendants' motion for involuntary dismissal under Fed.R.Civ.P. 41(b). Gibbs appeals. We affirm in part and reverse in part.

At trial, Gibbs testified that his troubles with appellees began on September 24 or 25, 1981, when he asked prison guard Slan for some toothpaste and salt. When Slan refused, Gibbs said he would write a complaint to the Department of Corrections. Slan responded that he could play the same game and could write Gibbs up too.

On October 6 Gibbs sent a letter to the Secretary of the Department of Corrections, with a copy to appellee Norwood. He complained among other things that Slan had threatened retailiation if he filed a complaint, and that Slan and prison guard Alexander had damaged his typewriter during a scrub-down on September 27. Gibbs received no response to this complaint, and no corrections officials ever discussed it with Slan.

On November 12 Gibbs was written up by Alexander for "Disobedience." The disciplinary report charged Gibbs with having mail and a jump suit under his mattress in violation of prison rules.

At a disciplinary hearing before a disciplinary officer, the prisoner may not present any evidence other than his own word, and the disciplinary officer may impose only a minor penalty. Supervisor Butler, who heard the disciplinary charge, thus refused to allow Gibbs to present affidavits in his defense and found Gibbs guilty "based on [the] credibility of [the prison] officer's statements." Butler sentenced Gibbs to a two-week loss of store privileges.

Gibbs then appealed to a disciplinary board that was comprised of appellees Rabalais and Whitstine. On appeal, Gibbs was entitled to a de novo hearing, including, among other things, the rights to notice, to present evidence and witnesses, and to a written summary of the reasons for the board's decision. Gibbs contended before the disciplinary board that the charge was untrue, and he attempted to present a statement signed by two prisoners to support his defense. Because the statement was not sworn, Rabalais refused to consider it. Gibbs also contended that the policy prohibiting storage of items under mattresses was never posted. He asked to call another prison official to see if the policy had been posted but his request was refused. The board found Gibbs guilty and upheld Butler's sentence on the basis of Alexander's credibility. ¹

Gibbs repeated at the trial before the magistrate his contentions that he did not violate the mattress policy. Finding that the board's decision was supported by "some evidence," the magistrate upheld the board's finding of guilt. Second, Gibbs argued that prison rules required policies to be posted before prisoners could be charged with violating them and that the mattress policy was not posted. The magistrate made no factual findings regarding this issue. Third, Gibbs argued that the board should have considered the unsworn statements. The magistrate rejected this argument finding that the disciplinary board looked at the statements and properly could have rejected them either because they were not sworn or because they were not credible.

On November 16, Gibbs received two more disciplinaries, both from Slan. The first charged that when Slan was telling the inmates on Gibbs' tier to hold down the noise, Gibbs hollered out of his cell that Slan should hold down the noise because he was the only one making noise. The second charged that Gibbs, while on his way to the shower asked Slan if he had a problem. When Slan replied that he did not, Gibbs stated that he would have one soon. Gibbs was found guilty on both reports for "disrespect" under Rule 7 of the Disciplinary Rules and Procedures for Adult Prisoners of the Louisiana Department of Corrections.

These November 16 "Disrespect" charges were heard by a disciplinary board. Gibbs challenged the accuracy of only the second of the two November 16 reports. He testified that when he went to the shower, Slan told him that he had a problem and that Slan would change his attitude. Gibbs replied that Slan had the problem, and Slan said that Gibbs would have one soon. When Gibbs got out of the shower, Alexander gave him the disciplinary and said Slan had sent it. Gibbs was found guilty "based on [his] own statements and [the] credibility of [the disciplinary] report and of officer [Slan's] statements" on the report and sentenced for both violations to five days in Isolation, suspended to ninety days. ²

Secretary King denied appeal. In response to Gibbs' claim that Disciplinary Rule 7 was unconstitutional, he stated that "[i]t adequately describes unacceptable conduct so that the inmate is put on notice as to when he may be subject to punishment." The magistrate affirmed.

Finally, on November 21 Alexander wrote up Gibbs for "Disobedience Aggravated." Alexander stated that he gave Gibbs several direct verbal orders to stop hollering down the tier, but that Gibbs refused to obey.

This charge was heard by a disciplinary board, Gibbs testified that Alexander conducted a shakedown in his cell and began throwing Gibbs' property around. When Gibbs said he would complain to a supervisor, Alexander wrote up a disciplinary report saying that Gibbs had "hollered down the tier." Gibbs was found guilty "based on [the] credibility of [the] officer's statements." He was sentenced to five days in Isolation, suspended to ninety days. Secretary King denied appeal of this conviction and the magistrate affirmed.

In addition to the foregoing, Gibbs attempted to introduce testimony at trial designed to show that King and Norwood had failed properly to supervise department employees. This evidence would have included testimony of another inmate that he had complained about Slan. The magistrate refused to permit this testimony, stating that he would not permit Gibbs "to expand the pleadings."

On Gibbs' claim of harassment, the magistrate stated that the applicable standard was whether the disciplinary board's actions were arbitrary and capricious or an abuse of discretion. He noted that he did not find Gibbs to be a credible witness, and found that the board could reasonably have found the prison guard Alexander to be more credible than Gibbs.

Gibbs argues on appeal that the magistrate erred in dismissing his four claims: (1) that he had been denied due process, (2) that Disciplinary Rule 7 is unconstitutionally vague and overbroad, (3) that appellees had retaliated against him for his filing of an administrative complaint, and (4) that the magistrate erred in refusing to allow him to present evidence on his claim of supervisory liability and in refusing to subpoena appellee King.

I.

In this appeal Gibbs makes several due process challenges to his convictions. He contends that appellees violated his rights by refusing to allow him to present evidence in his own behalf, by failing to post the mattress policy, and by finding him guilty without adequate evidence.

Appellees appear to argue that Gibbs has no protected interest in not being deprived of store privileges and in not having a suspended sentence imposed. The Supreme Court has held that the Due Process Clause itself does not afford inmates an interest in not being subject to conditions which are within the terms of confinement ordinarily contemplated by a prison sentence. But if there is a state-created liberty interest, violation of that interest can call into application constitutional due process protections. Hewitt v. Helms, 459 U.S. 460, 466-69, 103 S.Ct. 864, 868-70, 74 L.Ed.2d 675 (1983); Meachum v. Fano, 427 U.S. 215, 223-27, 96 S.Ct. 2532, 2537-40, 49 L.Ed.2d 451 (1976). We have recently recognized that Louisiana has created such an interest. It is found in the rules to guide prison discipline promulgated by the Department of Corrections. McCrae v. Hankins, 720 F.2d 863, 868 (5th Cir.1983). In McCrae, this court found that the substantive limitations placed on the discretion of prison officials by particularized standards or criteria served to create the liberty interest. 720 F.2d at 867. "[T]he creation of procedural guidelines to channel the decision-making of prison officials" without more does not create a protected liberty interest, but "requiring that certain procedures 'shall,' 'will,' or 'must' be employed" creates a liberty interest. Hewitt v. Helms, 459 U.S. at 471-72, 103 S.Ct. at 871. Where regulations place substantive limitations on official discretion, a state-created liberty interest exists. McCrae, 720 F.2d at 868; Lewis v. Thigpen, 767 F.2d 252, 261-62 (5th Cir.1985).

Under McCrae's reasoning, Gibbs had a right to due process protection. The Disciplinary Rules and Procedures state, "No prisoner may be punished except after a finding of guilt by the Disciplinary Officer or Disciplinary Board, and then only according to the penalty schedule for that violation." The remaining question is what process was due.

An inmate is entitled to prior notice, or "fair...