Kyle v. Hanberry, 80-7974

• Decision Date: 11 June 1982
• Docket Number: No. 80-7974,80-7974
• Citation: 677 F.2d 1386
• Parties: Fred KYLE, Petitioner-Appellant, v. Jack HANBERRY and Norman Carlson, Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1386

677 F.2d 1386

Fred KYLE, Petitioner-Appellant, v. Jack HANBERRY and Norman Carlson, Respondents-Appellees.

No. 80-7974.

United States Court of Appeals Eleventh Circuit.

June 11, 1982.

Ralph Goldberg, Atlanta, Ga., for petitioner-appellant.

Barbara A. Harris, Asst. U. S. Atty., Atlanta, Ga., for respondents-appellees.

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

Before MORGAN, HILL and KRAVITCH, Circuit Judges.

JAMES C. HILL, Circuit Judge:

In a petition for habeas corpus relief, Fred Kyle alleged that an administrative determination by the Inmate Disciplinary Committee ("IDC") at the Atlanta Federal Penitentiary was arbitrary and capricious and violated his constitutional right of due process and that a determination by the IDC at the Lewisburg Federal Penitentiary violated his due process and first amendment rights. The district court, acting upon the recommendation of a magistrate, entered summary judgment in favor of the respondent government officials. We reverse and remand for further proceedings.

I. The Atlanta Incident

A. The Facts

On October 7, 1979, an inmate at the Atlanta Federal Penitentiary was assaulted. A prison supervisor reported the assault to the IDC after a correctional officer spotted the inmate, William Eaton, washing blood from his face at a prison water fountain at approximately 11:30 A.M. An investigating officer concluded that Kyle was the perpetrator, and Kyle was charged with the incident.

Kyle's alibi was that he had been in religious services the morning of the assault. Kyle requested that four witnesses testify in his behalf at the IDC hearing; two inmate witnesses did so and one inmate witness declined to appear. Kyle expected the final witness, the prison chaplain, to verify his alibi, but the chaplain turned out to be an adverse witness and was not called. At the hearing, the two witnesses testified that they had seen Kyle in the chapel area about 11:30 A.M. on October 7. Kyle testified that he had been in the chapel from 8:15 until 11:30 A.M. and that he was in the Muslim services learning to operate a video TV camera at the time of the assault.

The IDC found Kyle guilty as charged. Based on the severity of the offense and Kyle's past record, the IDC ordered that Kyle be confined in the segregation unit at the penitentiary for 60 days, ordered the forfeiture of 435 days of statutory good-time, and recommended disciplinary transfer. The report of the IDC curtly described the "specific evidence relied on to support findings" as follows:

Officer's statement that Kyle was identified as assailant. Confidential report which identified Kyle as assailant. Investigation and attached memorandum.

The officer's statement referred to in the IDC's report was apparently a part of the correctional supervisor's memorandum reporting the incident to the IDC on the day of the assault. Noting that Kyle had been "tentatively identified" as the assailant, the report stated that "reliable sources" had claimed the incident with Eaton resulted from Kyle's conduct and language in front of visitors on the day of the assault.

The confidential report referred to by the IDC was a memorandum from the prison chaplain to the associate warden. In that memo, the chaplain described the assault as it was reported to him by a "reliable inmate source." The unidentified source had stated that Kyle had changed clothes in his cell after assaulting Eaton, and he had explained that the assault stemmed from Eaton's conduct at a banquet. According to the chaplain's source, Kyle blamed Eaton's conduct as the cause for the prison no longer allowing females from a local CTC to visit the penitentiary. The IDC report indicates that there was no confidential information considered by the IDC that was not provided to Kyle, yet he has stated that he was not told of the chaplain's report.

The investigator's report was unavailable to Kyle and he was unaware of its contents. ¹ Besides discussing Kyle's inability to prove his whereabouts at the time of the assault, the report indicated that a pair of bloody fatigue pants had been found in Kyle's cell.

Kyle began his appeal by filing a request for administrative remedy. Through the response to his request, Kyle learned that the bloody pants had been considered by the IDC and had corroborated the confidential report. The parties dispute whether Kyle exhausted his administrative appeals.

The magistrate assumed that exhaustion requirements had been met, and he found Kyle's arguments for relief inadequate as a matter of law. The magistrate wrote Apparently, petitioner Kyle argues the proceedings were arbitrary and capricious because no credibility determination was made on the statements made by an informant and that such action violated the bureau of prison's policy statement. It is not necessary that the IDC state with specificity their reasons for believing statements made by inmate informants. Such a written determination may well serve to identify the informant. Clearly, the inmate defendant is not entitled to the name of a confidential inmate informant. Wolff v. McDonnell, 418 U.S. 539 (94 S.Ct. 2963, 41 L.Ed.2d 935) (1974). The chance of retribution and retaliation by the accused inmate or other members of the prison population warrant the nondisclosure of a confidential informant and withholding reasons for relying upon information tendered by the confidential informant. Wolff v. McDonnell, supra; Baxter v. Palmigiano, (425) U.S. 308 (96 S.Ct. 1551, 47 L.Ed.2d 810) (1976), see Duffin v. Fenton, C79-1810A (N.D.Ga. Mar. 18, 1980) (O'Kelley, J.). The consideration given the informant's confidential statement by the IDC members comported with due process requirements.

The district court's order entered summary judgment by adopting the report of the magistrate.

B. The Requirements of Due Process

Kyle has contended that the Atlanta IDC violated his due process rights in three ways: (1) by relying on confidential information without making a determination of the credibility and reliability of the informant, (2) by failing to set out the evidence relied upon as required by Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), and (3) by making findings that were arbitrary and capricious because they were not based on substantial evidence. The appellees dispute the first and third contentions but did not directly address the second one either in their brief or at oral argument. They additionally argue that Kyle has not exhausted his administrative remedies through the procedures established by the Bureau of Prisons and that such exhaustion should not be excused here.

In considering the first due process claim raised by Kyle, we must begin by noting that there is great tension between the peculiar needs of a prison and the due process rights of those confined there. Prisoners' rights are subject to restrictions imposed by the nature of the regime to which they have been lawfully committed, and prison disciplinary proceedings need not provide "the full panoply of rights" that would be due a defendant in a criminal prosecution. Wolff v. McDonnell, 418 U.S. at 556, 94 S.Ct. at 2975. But even though a prisoner's "rights may be diminished by the needs and exigencies of the institutional environment, a prisoner is not wholly stripped of constitutional protections when he is imprisoned for a crime." Id. at 555, 94 S.Ct. at 2974. The "mutual accommodation between institutional needs and objectives and the provisions of the constitution" thus requires a delicate balancing. Id. at 556, 94 S.Ct. at 2975.

The Constitution, as interpreted in Wolff, does not require that inmates be allowed to test through confrontation and cross-examination the credibility of those who accuse them. See id. at 568, 94 S.Ct. at 2980. Those rights might entail a high risk of retribution and retaliation, especially where the identity of an informer would otherwise not have been disclosed to an accused. Prison officials may thus exercise their sound discretion as to the extent of cross-examination allowed in a particular situation. Id. at 568-69, 94 S.Ct. at 2980-81.

The magistrate's recommendation obviously interprets Wolff as foreclosing the possibility that other procedures besides those specifically considered there may be required to insure that a disciplinary committee's actions comport with due process. We disagree. Though Wolff left to prison officials the initial determination of when the balance of interests requires cross-examination, id. at 569, 94 S.Ct. at 2981, it did not address what other procedures might be constitutionally necessary as a check on the credibility of informants relied upon by committees making disciplinary decisions. However, it is clear that "preventing arbitrary determinations ... is the major thrust of Wolff," Gomes v. Travisono, 510 F.2d 537, 540 (1st Cir. 1974), and even if Wolff's enumerated requirements were met in this case, we believe that thrust generally demands more "process" than Kyle was given by the IDC.

"(I)n entrusting to prison officials responsibility for promulgating procedures for arriving at an adequate basis for decision, Wolff intended a genuine, even if single, fact-finding hearing and not a charade." Helms v. Hewitt, 655 F.2d 487, 502 (3rd Cir. 1981). Consequently, to make a decision based on the factual evidence presented, part of a disciplinary committee's task must be to make a bona fide evaluation of the credibility and reliability of that evidence. In a prison environment, where authorities must depend heavily upon informers to report violations of regulations, an inmate can seek to harm a disliked fellow inmate by accusing that inmate of wrongdoing. Since the accuser is usually protected by a veil of confidentiality that will not be pierced through confrontation and cross-examination, an accuser may easily concoct the allegations of wrongdoing. Without a bona fide...