Pace v. Oliver, 79-2755

• Decision Date: 16 January 1981
• Docket Number: No. 79-2755,79-2755
• Citation: 634 F.2d 302
• Parties: Ernest Calvin PACE, Plaintiff-Appellant, v. Joseph A. OLIVER et al., Defendants-Appellees. . Unit B
• Court: U.S. Court of Appeals — Fifth Circuit

Page 302

634 F.2d 302

Ernest Calvin PACE, Plaintiff-Appellant, v. Joseph A. OLIVER et al., Defendants-Appellees.

No. 79-2755.

United States Court of Appeals, Fifth Circuit.

Unit B

Jan. 16, 1981.

Paul D. Clote, Houston, Tex. (Court-appointed), for plaintiff-appellant.

Lynda F. Knight, Elizabeth Ann Evans, Asst. Attys. Gen., Montgomery, Ala., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Alabama.

Before GODBOLD, TJOFLAT and VANCE, Circuit Judges.

GODBOLD, Circuit Judge:

Plaintiff, an Alabama state prisoner, brought this suit under 42 U.S.C. § 1983, seeking injunctive relief and damages against prison officials for a long list of alleged violations of his constitutional rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution. The defendants are Warden Oliver, Captain of the Guards Chancery, and the Alabama Board of Corrections.

The issues before us on appeal arose from a disturbance that occurred during November 1977 in the segregation unit of Holman State Prison during which considerable damage was inflicted to state property. After inmates began flooding the unit, prison officials entered the unit and turned the water off. Many inmates then tore loose commodes and sinks in their cells, and some of these fixtures were broken and the pieces thrown in the hallway. A few hours later Pace and other inmates were taken in a group before Warden Oliver, who talked with them.

On November 28 Pace was served with written notice of a disciplinary hearing set for November 29 on a charge of destroying state property by breaking the commode in his cell. At this hearing Pace did not dispute that the commode in his cell was broken during the disturbance, but he gave as his explanation that the commode was already cracked and was accidentally broken when he stood on it to watch prison officials turning off the water. Thus whether the commode was already cracked was a central issue in the hearing.

The board found Pace guilty and recommended that he lose all privileges for 30 days, have a bucket for a toilet for 30 days, lose six months good time, and serve a minimum of six months in segregation or until a segregation review board determined his release. The warden concurred in the disciplinary board's finding and recommendation.

Later Pace brought this suit. Giving a liberal construction to his § 1983 petition, ¹ he raised these issues:

(1) Warden Oliver imposed punishment on him without due process.

(2) Chancery, chairman of the disciplinary board, improperly convened the board because he knew that the warden already had punished Pace for the offense charged.

(3) At the disciplinary board hearing Chancery arbitrarily denied Pace's requests for maintenance records and photographs relating to the commode Pace was charged with having broken.

(4) Pace was subjected to unconstitutional conditions of confinement in segregation cells-relating to lighting, hot and cold water, toilet facilities, restraints on exercise of religion, mail, access to law books, and access to psychiatrists.

(5) There was disparity of administrative punishment between prisoners in segregation and prisoners in the general population found to have committed the same offense (destruction of property).

Defendant denied all allegations.

On issue (1), alleged imposition of punishment by the warden, the district court found, on conflicting evidence, ² that the warden did not impose punishment on Pace without notice when the warden met with the group of prisoners some hours after the disturbance. The district court's conclusion is not plainly erroneous. This disposes of issue (2) as well.

The trial court found for defendants on issues (4) and (5), and these findings are not questioned on appeal.

Issue (3) is the major matter before us. At trial in the district court Pace contended that at the disciplinary hearing he had requested that documentary evidence be produced: prison maintenance records, because they would show that his commode was previously cracked, and photographs of his cell, taken after the disturbance, because they would show that the pieces of his commode were in his cell after the disturbance ended and therefore had not been thrown into the hallway. Neither records nor photographs were produced. According to the trial testimony, Pace's two inmate witnesses testified before the board in support of his version that the commode was already cracked and that it broke when he stood on it.

The witnesses at trial did not agree on whether at the hearing Pace requested that the photographs be produced. Also, it is unclear whether the photographs were in the possession of prison officials or subject to their control. The court found that Pace made no request for the photographs when he was served with the notice; also it made another finding that Pace made no request in writing that the pictures be produced at the hearing. If Pace requested the photographs it was for only the purpose of showing that he had not thrown into the hallway the broken pieces of his commode. This was tangential, if relevant at all. Pace was not charged with disorderly conduct or with throwing the pieces into the hallway but with breaking the commode. He concedes that he broke it, and the issue was whether accidentally or intentionally. The photographs, even if available, were of such doubtful relevance that Pace suffered no injury from their non-production.

This leaves the matter of the prison maintenance records. Under the Handbook of Rules and Information for Inmates of the Alabama Board of Corrections, the charge against Pace, destruction of state property, is a major infraction punishable by deprivation of not...