Ross v. Jones, 88-1569

• Decision Date: 19 October 1989
• Docket Number: No. 88-1569,88-1569
• Citation: 888 F.2d 548
• Parties: 28 Fed. R. Evid. Serv. 1527 James ROSS, Appellant, v. J.M. JONES, K.A. Wandrey, Robin Webb and Larry Dittner, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 548

888 F.2d 548

28 Fed. R. Evid. Serv. 1527

James ROSS, Appellant, v. J.M. JONES, K.A. Wandrey, Robin Webb and Larry Dittner, Appellees.

No. 88-1569.

United States Court of Appeals Eighth Circuit.

Submitted June 16, 1989.

Decided Oct. 19, 1989.

Brock M. Weidner, St. Ann, Mo., for appellant.

Kelly Mescher, Jefferson City, Mo., for appellees.

Before BEAM, Circuit Judge, and HEANEY and BRIGHT, Senior Circuit Judges.

HEANEY, Senior Circuit Judge.

James Ross, an inmate at the Missouri State Penitentiary, filed a complaint under 42 U.S.C. Sec. 1983, alleging that certain employees of the Missouri Training Center for Men in Moberly, Missouri, violated his fourteenth amendment right to due process while he was imprisoned at the Center. Ross appeals from a jury verdict in favor of the defendants and seeks a new trial. We affirm.

BACKGROUND

On November 14, 1985, an inmate at the Center accused Ross and another inmate of sexual assault. Ross was placed in pre-hearing detention, pending an investigation of the allegations. Ross' pre-hearing detention was authorized by Keith Wandrey, the assistant watch officer at the time. Ross testified that he was present when the victim accused him of the crime and allowed an institutional investigator to gather physical evidence from him to complete a packaged sexual assault kit. The evidence was subsequently sent to the Missouri Highway Patrol laboratory for forensic analysis.

According to Robin Webb, Ross' case worker at the Center, the Center's rules require that a classification team meet with an inmate in pre-hearing detention within three working days to determine whether the case should be referred to an Adjustment Board for adjudication. ¹ She testified that she and another employee, acting as a classification team, visited Ross on November 19 and November 22 to review the reasons for his detention. The team decided to refer the case to the Adjustment Board. She also stated that an Adjustment Board met with Ross on November 27 and decided to transfer him to the Special Management Unit (SMU), ² pending the return of the lab tests.

Raymond Newberry, chief investigator at the Center, testified that the lab report from the Highway Patrol was completed on February 28, 1986, sent to the prison on March 3, 1986, and forwarded to him on March 5, 1986. He stated that the lab report indicated that the semen on the victim positively matched Ross' blood group. Newberry related that information to Webb, who wrote out a misconduct report on March 14, 1986. ³ According to Larry Dittner, the functional unit manager of Housing Unit 4, Ross was given a copy of this report and interviewed by an officer that same day.

On March 17, a second classification team met with Ross and informed him of the charges and the evidence against him. The team told Ross that his case was being referred to an Adjustment Board for a final adjudication of his guilt or innocence.

The Adjustment Board held its hearing on March 24, 1986. At that time, Dittner read to Ross the report from the Highway Patrol and the misconduct violation. The Board found Ross guilty of the sexual assault and recommended to the Superintendent of the prison, Jim Jones, that he be transferred to another institution and that his canteen spending be reduced for a month. The Board rejected any extension of his conditional release date.

Ross testified at trial that he was not told of the reason for his detention on November 14, 1985. He stated that he had met with Webb on November 19 but that she only talked to him about contraband in his possession and did not discuss with him the alleged sexual assault. He admitted, however, being present when accused of the crime. He also alleged that he never received a copy of his detention order, although prison officials testified that he had seen the order. Ross stated that he first learned of the reason for his detention sometime between November 14 and November 27 when he filed a state habeas claim. This testimony appears consistent with that of Webb, who stated that she met with Ross twice during this time period. Ross also alleged that he filed grievances with the Superintendent on February 14, 1986, and March 19, 1986, in an attempt to learn what information the prison officials had gathered in his case. His requests were denied.

Ross' theory at trial was that, under Mo.Rev.Stat. Sec. 217.375, an inmate placed in pre-hearing detention has a right to a hearing on the merits of the conduct violation within seventy-two hours, ⁴ that no hearing on the merits occurred for five months, and that the failure to hold a hearing within the statutory time period violated his right to due process. ⁵ Ross sought a jury instruction incorporating this theory:

Your verdict must be for the Plaintiff if you believe that Defendants did not afford Plaintiff a hearing within 72 hours following initial detention as required by Missouri law.

The judge rejected this proposed instruction. Instead, the judge instructed the jury:

Your verdict must be for plaintiff if you believe by a preponderance of the evidence:

First, that plaintiff had a right to a hearing within 72 hours of his confinement in pre-hearing detention, and

Second, that defendants failed to provide a hearing within 72 hours, and

Third, that plaintiff was denied his rights to notice of the charge against him and an opportunity to defend, and

Fourth, plaintiff was thereby damaged.

Jury Instruction No. 8. The jury returned with a verdict in favor of the defendants. On appeal, Ross challenges the accuracy of Instruction No. 8, as well as the decision of the trial court to allow into evidence Ross' prior convictions and sentences.

DISCUSSION

A. JURY INSTRUCTION NO. 8

Our role in reviewing jury instructions is to determine whether the instructions, taken as a whole and viewed in light of the evidence and the applicable law, fairly and adequately submitted the issues in the case to the jury. Jones v. Board of Police Commissioners, 844 F.2d 500, 504 (8th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 2434, 104 L.Ed.2d 990 (1989). An error in instructing the jury in a civil case does not require reversal if it is more probably than not harmless. Benigi v. City of Hemet, 868 F.2d 307, 312-13, as amended, 879 F.2d 473 (9th Cir.1989).

Ross argues that the provision of Mo.Rev.Stat. Sec. 217.375 requiring a hearing within seventy-two hours creates a liberty interest protected by the due process clause of the United States Constitution. The challenged instruction, he asserts, placed the determination of a legal question, i.e., whether he had a right to a hearing, in the hands of the jury. Furthermore, he argues that the instruction required him to prove more than was required under federal or state law. We do not reach the constitutional issue raised by Ross because, even if section 217.375 creates a protectable liberty interest in a hearing within seventy-two hours and the challenged instruction inadequately stated the law, there is sufficient evidence to support the jury's finding that Ross received a hearing within seventy-two hours of being placed in administrative segregation.

The jury was asked to determine whether Ross received due process within seventy-two hours. See Hewitt v. Helms, 459 U.S. 460, 471-72, 103 S.Ct. 864, 871, 74 L.Ed.2d 675 (1983) (minimum requirements of due process include an informal, nonadversary review of the information supporting an inmate's confinement in administrative segregation. In the present case, the weight of the...