Ivy v. Moore

• Decision Date: 08 September 1994
• Docket Number: No. 92-3158,92-3158
• Citation: 31 F.3d 634
• Parties: Dana IVY, Appellant, v. Dick MOORE; Ann Austermann; George Lombardi; Paul Caspari, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 634

31 F.3d 634

Dana IVY, Appellant, v. Dick MOORE; Ann Austermann; George Lombardi; Paul Caspari, Appellees.

No. 92-3158.

United States Court of Appeals Eighth Circuit.

Submitted June 17, 1993.

Decided Aug. 2, 1994.

Rehearing and Suggestion for Rehearing En Banc Denied Sept. 8, 1994. ^*

Robert C. Cook, St. Louis, MO, argued, for appellant.

Peter J. Krane, St. Louis, MO, argued, for appellee.

Before BOWMAN, Circuit Judge, HEANEY, Senior Circuit Judge, and BEAM, Circuit Judge.

BOWMAN, Circuit Judge.

Dana Ivy, a Missouri prisoner, brought this 42 U.S.C. Sec. 1983 action alleging that the defendants, all employees of the Missouri Department of Corrections, had violated his rights under the Fifth, Eighth, and Fourteenth Amendments. The case was tried to a jury, with the trial court ¹ entering judgment as a matter of law on some of Ivy's claims and entering judgment in accordance with the jury's verdicts for the defendants on Ivy's remaining claims. His motion for a new trial having been denied, Ivy appeals. We affirm.

The background of the case can be stated briefly. On December 8, 1988, while incarcerated at the Missouri Eastern Correctional Center, Ivy was charged with a prison conduct violation for giving false information to a prison guard. Ivy denied making the false statement, asserting that he was in the prison gym during the episode and that the officer must have confused him with another inmate.

A disciplinary hearing was conducted by a three-member team on December 12 and 13 1988. Defendant Ann Austermann ² chaired the hearing team. The team heard the charging officer's written report and Ivy's testimony. When Ivy offered into evidence a recreation equipment sign-out sheet from the gym as an alibi document, Ms. Austermann called for a recess in order that she might investigate the authenticity of the document. The next day, when the hearing reconvened, Austermann reported her findings to Ivy and the team. The document was not admitted into evidence. The hearing team then heard from three of Ivy's witnesses. After considering all the evidence, the hearing team found Ivy guilty of the conduct violation.

As punishment for this conduct violation, Ivy was placed in a Phase II special adjustment unit ("SAU"). Ivy eventually spent 237 days in the Phase II program. Appellees assert this long stay was attributable to Ivy's inability to modify his behavior and to further conduct infractions. Ivy filed a grievance, which was considered and denied by the prison officials who, in addition to Austermann, are named as the defendants in this lawsuit. The grievance was denied. Ivy then brought the present Sec. 1983 action.

On appeal, Ivy asserts that the trial court erred or abused its discretion in a variety of ways. Having carefully reviewed the case, we conclude that all of the issues Ivy raises lack merit, and that only one of them warrants discussion. We turn to that issue.

As part of a broad attack on the District Court's grant of judgment as a matter of law on certain of his claims, Ivy points to the evidence showing that Austermann, the chairperson of the hearing team, recessed the disciplinary hearing and personally investigated Ivy's alibi defense. Ivy argues that this investigation resulted in a less than impartial disciplinary panel and, thus, did not comport with the mandates of Wolff v. McDonnell, 418 U.S. 539, 592, 94 S.Ct. 2963, 2992, 41 L.Ed.2d 935 (1974) (Marshall, J., concurring) ("an impartial decision-maker is a fundamental requirement of due process"). We disagree.

Austermann's investigation was not done to prepare for prosecution of the charge. Rather, it took place during a recess in the disciplinary hearing, and it was undertaken to determine whether Ivy's alibi defense was, in fact, true. The nature of prison disciplinary proceedings compels the courts to give wide latitude to prison officials in the manner in which they conduct these proceedings for they "take place in a closed, tightly controlled environment peopled by those who have chosen to violate the criminal law and who have been lawfully incarcerated for doing so." Id. at 561, 94 S.Ct. at 2977.

Ivy relies upon Malek v. Camp, 822 F.2d 812 (8th Cir.1987). We find Malek without force in this case. In Malek, we held the plaintiff's allegation that the hearing chairman was biased stated a claim for relief under Sec. 1983. Id. at 815. Malek alleged that the chairman of the disciplinary panel had knowledge that several days prior to the hearing Malek had prepared and filed a suit on behalf of another inmate naming the chairman as a defendant. The Court, referring to the issue as a "close" question, id. at 816, found the situation to be one where the plaintiff was alleging a "personal bias." In contrast, here there is nothing in the evidence to suggest that Austermann was biased against Ivy. On this record, we are unable to find that Austermann's investigation gave her an interest adverse to Ivy's "so direct, personal, and substantial as to give rise to a due-process violation." Dace v. Mickelson, 797 F.2d 574, 578 n. 6 (8th Cir.1986), vacated on other grounds, 816 F.2d 1277 (1987) (en banc). We conclude that the trial court did not err in granting the defendants judgment as a matter of law on this claim.

Finding this appeal wholly without merit, we affirm the judgment of the trial court.

HEANEY, Senior Circuit Judge, dissenting.

Were it any less clear that Dana Ivy's constitutional right to due process was violated I might be inclined to go along with the majority. The facts and the law, however, leave me with no option but to dissent. Virtually all of the touchstones in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), the seminal case on inmates' due process rights in prison disciplinary proceedings, are implicated here: an inmate's right to have his case heard before an impartial disciplinary panel, his right to call witnesses, and his right to present documentary evidence in his defense.

The background of this case, although capable of "brief" recitation as the majority notes, is worth repeating. On December 8, 1988, Ivy was charged with the prison conduct violation of giving false information. According to the reporting officer, Harold Martin, Ivy was in the prison yard around 7:00 p.m. and claimed to have "just come off a visit." A check of the visitor's log by another officer indicated that Ivy had no visitors at that time. Ivy responded to the false information charge by stating that he had been in the gym since chow and could prove it.

A three-member disciplinary committee was convened December 12, 1988, to hear Ivy's case. Ann Austermann, a corrections caseworker, chaired the panel. After hearing the charging officer's written report of the incident, Ivy attempted to offer into evidence a copy of a recreation equipment sign-out sheet that would have confirmed his version of the events that he was in the gym at the time he was reportedly in the prison yard. Austermann promptly recessed the hearing to "investigate the substance" of the sign-out sheet. II Trial Tr. at 18; Depo. at 40, 45.

Austermann's investigation consisted of a telephone conversation with Officer Finley, a prison officer with knowledge of the prison's equipment sign-out sheets, who had possession of the original sheet on which Ivy's name appeared. Finley explained that Ivy was one of the top ten inmates listed on the sign-out sheet for December 8, and that, consistent with routine prison procedure, an inmate worker, not a staff person, filled the sheet out in pencil. Finley explained further that no times were noted on the sheet but that the sheet was available immediately after chow around 6:00 p.m. Austermann never viewed the document herself. She was merely told of its contents by Finley, and relayed this information to the other committee members when the hearing reconvened the next day. Finley never testified in Ivy's presence, and the sign-out sheet was never admitted into evidence. None of the committee members ever viewed the document.

Three witnesses whom Ivy listed on a witness request form provided by the prison were not called to testify when the hearing reconvened the next day. II Trial Tr. at 192-93. Witness statements were not taken from these witnesses either. Instead, for reasons that are not at all clear, three other witnesses were present with Ivy at the hearing.

The Supreme Court in Wolff held that minimum requirements of procedural due process must be observed before a prisoner may be deprived of good-time credit or given the harsh punishment of severely restricted confinement. 418 U.S. at 539, 94 S.Ct. at 2963. Specifically, prison authorities must (1) give advance written notice of the claimed violation; (2) permit the inmate to call witnesses and present documentary evidence in his behalf; and (3) provide a written statement as to the evidence relied upon and the reasons for the disciplinary action taken. ¹ In addition to these protections, the Court made clear that inmates must be afforded the benefit of an impartial disciplinary review panel "so as to eliminate any possibility that subtle institutional pressures ... affect the outcome of disciplinary cases." Id. at 592, 94 S.Ct. at 2992 (Marshall, J., concurring). "[D]ue process is satisfied as long as no member of the disciplinary board has been involved in the...