Meis v. Gunter

• Decision Date: 10 September 1990
• Docket Number: Nos. 88-2841,89-1207,s. 88-2841
• Citation: 906 F.2d 364
• Parties: Daniel MEIS, Appellee/Cross-Appellant, v. Frank GUNTER, Gary Grammer, Harold Clarke, John Shaw, Mario Peart, Charles Hohenstein, Max Merritt, Richard Knight and certain other Nebraska State Penitentiary security personnel with the rank of Sergeant and above whose names are currently unknown, all in their official and individual capacities, Appellants/Cross-Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 364

906 F.2d 364

Daniel MEIS, Appellee/Cross-Appellant, v. Frank GUNTER, Gary Grammer, Harold Clarke, John Shaw, Mario Peart, Charles Hohenstein, Max Merritt, Richard Knight and certain other Nebraska State Penitentiary security personnel with the rank of Sergeant and above whose names are currently unknown, all in their official and individual capacities, Appellants/Cross-Appellees.

Nos. 88-2841, 89-1207.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 13, 1989.

Decided June 26, 1990.

Rehearing and Rehearing En Banc

Denied Sept. 10, 1990.

Susan M. Ugai, Lincoln, Neb., for appellee/cross-appellant.

Kay E. Tracy, Grand Island, Neb., for appellants/cross-appellees.

Before ARNOLD and MAGILL, Circuit Judges, and LARSON, ^* Senior District Judge.

ARNOLD, Circuit Judge.

Daniel Meis, while an inmate at the Nebraska State Penitentiary, ¹ brought this civil-rights action for money damages and injunctive relief, pursuant to 42 U.S.C. Sec. 1983, against the Director of the Nebraska Department of Correctional Services and other prison officials. In his complaint, Meis claimed that his constitutional right to due process had been infringed because inmates are not allowed access to all administrative regulations, operational memoranda, and other documents that contain standards of conduct to which inmates must conform. The District Court determined that Meis's constitutional rights had been violated, and held that inmates are entitled to access to some, though not all, institutional documents. No damages were awarded, but the defendants were ordered to pay costs and attorney's fees. Both sides appeal. On defendants' cross-appeal, we vacate the judgment of the District Court. Meis has not shown that he himself has ever actually been injured by the lack of access that he complains about, nor has he proved that there is any ascertainable likelihood that he will be harmed in such a way in the future. He therefore lacks standing to make a due-process argument based on lack of access to the documents. (This is not a class action.) On Meis's appeal, which relates to institutional documents describing programs and opportunities available to inmates, the judgment will be affirmed.

I.

This case is about various kinds of documents that govern the Nebraska Department of Correctional Services. There are, first of all, Rules and Regulations of the Department, issued pursuant to the Nebraska Administrative Procedures Act, Neb.Rev.Stat. Sec. 84-901 et seq. (Reissue 1987). It is undisputed that Meis and every other inmate was given a copy of these Rules and Regulations upon entry into the state penal system. At issue in this case are three other kinds of documents: administrative regulations, operational memoranda, and "Now Hear This" memoranda. Administrative regulations ("ARs") are issued by the Director of the Nebraska Department of Correctional Services, and concern the operations of all correctional institutions within the Nebraska prison system. Operational memoranda ("OMs") are issued by the chief executive officer of each prison. The OMs involved in this case were issued by the Warden of the Nebraska State Penitentiary, and concern policies specific to that institution. "Now Hear This" memoranda ("NHTs") are documents circulated by prison officials other than the Director of the Department or the Warden of the Nebraska State Penitentiary. NHTs reflect policies of individual housing units, identify programs and opportunities available to inmates, and set forth criteria used to determine eligibility for those programs and opportunities.

Some ARs, OMs, and NHTs are available to inmates in the prison library. Others are not. Defendants claim that they have made available to inmates all the ARs, OMs, and NHTs that they need to see, and that those documents not made available relate, for example, to institutional security, employee personnel policies, or other subjects of no immediate concern to individual inmates. Meis argues, however, that not all relevant documents are placed in the prison library. He claims that in some instances disciplinary proceedings may be instituted against inmates based upon the contents of an AR, an OM, or an NHT of which inmates had no previous knowledge. In such cases, he argues, due process requires that the inmate charged with a disciplinary offense be given notice in writing of the relevant AR, OM, or NHT.

According to Rule 5 of the Inmate Handbook, a copy of which is issued to every inmate, inmates may be punished only if found guilty of violating a standard of conduct identified in the Code of Offenses. The Handbook contains a copy of the Code of Offenses. The District Court found, however, and we agree, that it is possible for an inmate to be punished on account of conduct that is not completely described in the Code. Under Rule 5(5)II(E), for example, an inmate may be disciplined for "[d]isobeying any verbal or written order or instruction from any employee, or refusing immediately to comply with such direct order." The Code of Offenses itself does not purport to describe the full range of activities of inmates that might be subject to such verbal or written orders. The Code, for example, does not state that an inmate must make up his bed every morning, but disciplinary proceedings have been instituted against inmates who refused to obey a direct verbal order to make up their beds.

In some instances, ARs, OMs, or NHTs themselves are used as "direct written orders" within the meaning of Rule 5(5)II(E). The District Court held that due process requires that an AR, an OM, or an NHT used in this way be provided in advance to an inmate, if he is to be subjected to disciplinary proceedings. "In advance," in this context, means in advance of a claimed violation. In the abstract, we have no quarrel with such a proposition. If, for example, an OM makes it an offense for an inmate to have in his cell more than three books, and if an inmate, not knowing of the OM, has four books in his cell, and if an officer, upon discovering the four books, institutes disciplinary proceedings against the inmate without first informing him of the three-book limit and giving him a chance to get rid of the fourth book, obvious problems of due process arise. There has been no fair notice of what is prohibited. The difficulty, so far as the present case is concerned, is that the proposition is a complete abstraction. Nothing of the kind has ever happened to Meis. He has been subjected to seven disciplinary proceedings. In four of the cases, verbal orders were involved, and he was given clear advance notice and at least one chance to conform his conduct to the order before any disciplinary proceeding was commenced. In three other cases, no such place of repentance, apparently, was afforded, but Meis admitted his guilt on each of the three occasions. He was, for example, cited for failure to work. He was given written notice of the charge and received 20 hours of extra duty as a punishment. He had, however, admitted his guilt. No suggestion is made that on any of the occasions the rules violated were invalid, and Meis did not claim, in any of these disciplinary proceedings, that he was entitled to any kind of documentation in order to allow him to set up a defense of lack of notice.

It is perfectly true, see Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), that inmates have some procedural rights in connection with disciplinary proceedings. They have a right, for example, to be notified in advance of the disciplinary hearing of the nature of the claimed violation. Meis does not argue that he was not fully accorded this right. They also have a right to reasonable access to information necessary to put on a defense, including prison documents, if there are any, which might show that the order or regulation underlying the claimed violation is invalid. Again, we have no quarrel with the District Court's action in the abstract. It required, paragraph 2(b) of the judgment entered November 14, 1988, that documents that are the source of an officer's authority be readily available to an inmate a reasonable time before a disciplinary hearing on a charge against the inmate for violating a direct oral order given by the officer. Again, however, this proposition of law is disembodied--it is not concretely raised by the present record. There is no showing that Meis, in an attempt to defend himself in a disciplinary proceeding, ever requested an AR, an OM, or an NHT that defendants refused to give him. In the future, if Meis is re-transferred to the Nebraska State Penitentiary, and if a disciplinary proceeding is commenced against him, and if he requests, in order to mount a defense, a particular...