Henderson v. Carlson

• Decision Date: 21 January 1987
• Docket Number: No. 86-5270,86-5270
• Parties: HENDERSON, Archie L. v. Norman CARLSON, Director, Bureau of Prisons O'Brien, Jerry, Warden, USP Leavenworth. Appeal of Norman CARLSON and Jerry O'Brien. . Submitted Under Third Circuit Rule 12(6)
• Court: U.S. Court of Appeals — Third Circuit

Page 874

812 F.2d 874

HENDERSON, Archie L. v. Norman CARLSON, Director, Bureau of Prisons O'Brien, Jerry,

Warden, USP Leavenworth.

Appeal of Norman CARLSON and Jerry O'Brien.

No. 86-5270.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit Rule 12(6)

Jan. 21, 1987.

Decided Feb. 27, 1987.

Rehearing and Rehearing En Banc Denied April 3, 1987.

James J. West, U.S. Atty., Albert R. Murray, Asst. U.S. Atty., Scranton, Pa George E. Schumacher, Federal Public Defender, James V. Wade, First Asst., Federal Public Defender, Harrisburg, Pa., for appellee.

Sherree L. Sturgis, Asst. Regional Counsel, Philadelphia, Pa., for appellants.

Before GIBBONS, Chief Judge, WEIS, and HUNTER, Circuit Judges

OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge:

This is an appeal from a decision of the United States District Court for the Middle District of Pennsylvania granting habeas corpus relief to Archie L. Henderson, an inmate at the United States Penitentiary at Lewisburg, Pennsylvania. In reaching its decision the district court held that 1) the fifth and fourteenth amendments require different standards of judicial review of inmate disciplinary proceedings, and that 2) a prison disciplinary committee may not consider any evidence derived from a confidential informant unless the accused prisoner is apprised of the specific facts from which the committee determines that the informant is reliable. For reasons discussed below, we will reverse the order of the district court.

FACTS AND PROCEEDINGS BELOW

In April 1985, Henderson, who was then an inmate at the federal penitentiary at Leavenworth, Kansas, received a written notice from prison officials advising that he had been charged with a violation of prison rules, planning or attempting to introduce drugs into prison facilities. On May 3, 1985, a three member institution disciplinary committee ("IDC") conducted a hearing on the charges. At the hearing evidence was presented indicating that three confidential informants had identified Henderson as a participant in a plan to introduce drugs into the prison through the visiting room. The precise details of the informants' statements were not revealed at the hearing; however, the members of the IDC received an investigative report containing the names of the informants and a detailed summary of their statements. The IDC did not disclose to Henderson the bulk of the investigative report for fear that full disclosure would jeopardize the safety of the informants. However, the undisclosed portions of the report led the IDC to conclude that the informants were reliable. Prison authorities also presented at the hearing evidence gathered through surveillance of Henderson's social visits, telephone calls and letters. This evidence showed that Henderson, a woman named "Dot," and various other people were engaged in a clandestine scheme involving packages from Miami and Missouri, but there was no concrete mention of drugs in any of the surveillance evidence. Based on the informants' statements and the surveillance evidence, the IDC found Henderson guilty of the charged offenses and imposed a penalty of forfeiture of 60 days of Statutory Good Time Credits and prohibited social visits for a period of one year.

After an unsuccessful appeal to the Warden pursuant to 28 C.F.R. Sec. 541.19 (1986), Henderson filed an application for writ of habeas corpus in the United States District Court for the District of Columbia. Henderson was then transferred from the Leavenworth penitentiary to the Lewisburg penitentiary, and the District of Columbia Court, therefore, ordered that the petition be transferred to the Middle District of Pennsylvania.

The district court referred the petition to a magistrate. The magistrate first noted that under Superintendent v. Hill, 472 U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985), the decision of a state prison disciplinary committee will withstand a fourteenth amendment due process challenge so long as the decision is supported by "some evidence." Id. at 457, 105 S.Ct. at 2775. The magistrate went on to hold, however, that challenges under the fifth amendment to federal prison disciplinary action should be reviewed under the higher "rational basis" standard. The magistrate reasoned that, "[t]he considerations of federalism which warrant restraint on the part of federal courts concerning state governmental affairs are absent in the case of a federal prison disciplinary adjudication." Accordingly, he reviewed the IDC decision under the rational basis standard, which is applicable on review of decisions of the United States Parole Commission. See Zannino v. Arnold, 531 F.2d 687 (3d Cir.1976).

The magistrate then held that under our decision in Helms v. Hewitt, 655 F.2d 487 (3d Cir.1981), rev'd on other grounds, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), he was constrained from reviewing in camera the undisclosed portions of the investigative report, which the IDC used in determining that the confidential informants were reliable. As a result, the magistrate determined that there was insufficient evidence of record from which one could assess the reliability of each informant. Accordingly, he discounted the informants' statements and concluded that the remaining evidence did not provide a rational basis for finding that Henderson committed the violations with which he was charged. The magistrate, therefore, recommended that the writ of habeas corpus be granted and that the Good Time Credit be reinstated. ¹ The parties made no objections to the magistrate's report and the district court adopted it without comment.

This appeal followed. We have jurisdiction pursuant to 28 U.S.C. Secs. 1291 and 2253 (1982).

I

Before reaching the merits of this case, we first must determine whether appellants, officials of the United States Bureau of Prisons, waived their right to appeal by failing to make timely objections to the magistrate's report. The Federal Magistrates Act, 28 U.S.C. Sec. 636 provides in pertinent part:

(C) The magistrate shall file his proposed findings and recommendations under subparagraph (B) with the court and a copy shall forthwith be mailed to all parties.

Within ten days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate with instructions.

28 U.S.C. Sec. 636(b)(1)(C). This statutory provision neither precludes nor mandates a waiver of appellate review absent objections. Under our supervisory powers, we are, however, free to promulgate a rule of waiver for failure to make objections under Sec. 636(b)(1)(C). Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Indeed, seven other circuits have held that failure to lodge timely objections with the district court waives appellate review, both as to questions of law and findings of fact. Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir.1980); McCarthy v. Manson, 714 F.2d 234 (2d Cir.1983); United States v. Schronce, 727 F.2d 91 (4th Cir.), cert. denied, 467 U.S. 1208, 104 S.Ct. 2395, 81 L.Ed.2d 352 (1984); United States v. Lewis, 621 F.2d 1382 (5th Cir.1980), cert. denied, 450 U.S. 935, 101 S.Ct. 1400, 67 L.Ed.2d 370 (1981); United States v. Walters, 638 F.2d 947 (6th Cir.1981); Video Views, Inc. v. Studio 21, Ltd, 797 F.2d 538 (7th Cir.1986); Niehaus v. Kansas Bar Ass'n, 793 F.2d 1159 (10th Cir.1986). However, three circuits have rejected such a waiver rule, at least as to the right to appeal questions of law. Lorin Corp. v. Goto & Co., 700 F.2d 1202 (8th Cir.1983); Britt v. Simi Valley Unified School District, 708 F.2d 452 (9th Cir.1983); Nettles v. Wainwright, 677 F.2d 404 (Former 5th Cir. Unit B 1982). Because this appeal raises issues involving the interpretation of legal precepts, we will confine our inquiry to whether a failure to file objections under Sec. 636(b)(1)(C) waives the right to appellate review of questions of law.

Recently, in Welch v. Heckler, 808 F.2d 264, 266 (3d Cir.1986), we were invited to adopt the waiver rule, ² we declined to do so, and we decline again today. We perceive a number of problems with a rule that conditions appellate review on the existence vel non of objections to a magistrate's report. Those circuits that have adopted the rule have already generated numerous exceptions to it. Some courts refuse to apply the rule when a pro se litigant files objections, though not within the ten day time period. Cay v. Estelle, 789 F.2d 318 (5th Cir.1986); Patterson v. Mintzes, 717 F.2d 284 (6th Cir.1983). Others find an exception where the magistrate fails to provide adequate notice of the existence of the rule. ³ E.g., United States v. Valencia-Copete, 792 F.2d 4 (1st Cir.1986); Walters, 638 F.2d at 949. Another court has stated that a party who fails to object in the first instance can move the district court to reconsider its approval of the magistrate's report, Park Motor Mart, 616 F.2d at 605, and others have suggested that the rule does not apply if the result would be "plain error," id., or "manifest injustice," Nettles, 677 F.2d at 410, or would "defeat the ends of justice." Video Views, 797 F.2d at 540. Thus, it is apparent that the waiver rule carries with it an entire body of equity jurisprudence with which we are trepid to get entangled.

Leaving to one side the baggage that the rule carries, we detect a more fundamental problem with the waiver rule. Whether or not objections are made to the magistrate's report, under Sec. 636(b)(1)(C) the district court "may accept,...