Wojtkiewicz v. Gunter
| Decision Date | 29 November 1993 |
| Citation | 978 F.2d 1268 |
| Parties | NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of |
| Court | U.S. Court of Appeals — Tenth Circuit |
Before JOHN P. MOORE, TACHA and BRORBY, Circuit Judges.
After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.
Mr. Wojtkiewicz, a Colorado state inmate, filed a pro se civil action against several penitentiary officials based upon 42 U.S.C. § 1983. The trial court granted summary judgment in favor of the defendants and Mr. Wojtkiewicz appeals this decision, pro se. We affirm.
Mr. Wojtkiewicz was assigned to the penitentiary hobby shop as a woodworker and received a nominal wage for this work. An investigation revealed that Mr. Wojtkiewicz had distributed 183 illegal mirrors and 83 illegal frames. Disciplinary proceedings were instituted charging Mr. Wojtkiewicz with a violation of prison regulations concerning bartering and theft. At this hearing the charges were dismissed after it was discovered that Mr. Wojtkiewicz had not timely received notice of the charges and the charges failed to specify what property Mr. Wojtkiewicz had stolen. The case was then "remanded" by a higher prison official for another hearing. Amended charges were prepared and served upon Mr. Wojtkiewicz alleging a violation of the prison regulations concerning unauthorized possession of the mirrors and frames. Adequate notice was given and a full and complete hearing was held. Mr. Wojtkiewicz was found to have violated the regulation and was penalized with the loss of twenty days "good time." Mr. Wojtkiewicz also suffered the loss of his prison job and the loss of his single bunk cell.
Mr. Wojtkiewicz then commenced this action alleging a due process violation of both his liberty and property interests. Defendants filed a motion for summary judgment supported by the appropriate evidentiary matters and Mr. Wojtkiewicz responded, in part, by claiming he did not have to present his evidence until trial.
The district court entered its order and in relevant part stated as follows:
Plaintiff clearly received the process that was due under Wolff v. McDonnell, 418 U.S. 539 (1974). In addition, there was "some evidence" in the record supporting the disciplinary board's findings. Superintendent of the Massachusetts Correctional Institution v. Hill, 472 U.S. 445, 454 (1985). Finally, the plaintiff has no constitutional right either to employment, Ingram v. Papalia, 804 F.2d 595, 596-97 (10th Cir.1986), or in not being double bunked, Rhodes v. Chapman, 452 U.S. 337 (1981); Bailey v. Shillinger, 828 F.2d 651 (10th Cir.1987).
Mr. Wojtkiewicz thereupon filed a motion to reconsider asserting the second administrative hearing placed him in double jeopardy. The district court answered this assertion in a second order stating:
Plaintiff further argues that his right to be free from double jeopardy was violated. Plaintiff contends that after the prison officials presented their first case against him the hearing officer dismissed the initial charges of theft and bartering for lack of evidence. He maintains that the second hearing on the possession charge placed him in double jeopardy.
A review of the hearing officer's disposition of charges reveals that the initial charges were dismissed for failure to comply with the ten day notice rule and for failure to state in the notice of charges what items the plaintiff allegedly stole. The Double Jeopardy Clause is limited to criminal prosecutions. Breed v. Jones, 421 U.S. 519 (1975). Prison disciplinary proceedings are not...
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Powell v. Addison
...1. However, "[t]he mere fact that a prison violates its own rules does not create a due process violation." Wojtkiewicz v. Gunter, 978 F.2d 1268, 1268 (10th Cir. 1992)(unpublished) (citing United States v. Caceres, 440 U.S. 741 (1979)). Thus, the Court finds that Petitioner received adequat......